1 cra95.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 95 OF 2001 The State of Maharashtra ...Appellant (Orig.complainant) VERSUS Iqbal s/o Karim Ansari ...Respondent (Orig.accused) ..... Smt. Y.M.Kshirsagar, A.P.P. for appellant Shri Sachin S.Bhise, advocate h/f Shri S.B.Bhapkar, advocate for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 07.12.2011 DATE OF PRONOUNCING THE JUDGMENT : 15.12.2011 J U D G M E N T : - 1 Heard respective learned counsel for the parties. 2 cra95.01 2 This is an appeal preferred by the appellant/State i.e. original complainant challenging the judgment and order of acquittal, dated 1.12.2000, rendered by the learned 4 th Judicial Magistrate, First Class, Nanded, in Regular Criminal Case No. 541 of 1998, thereby acquitting the respondent i.e. original accused for the offence punishable under Section 325 of the Indian Penal Code. 3 The factual conspectus and shorn of details of the prosecution case are as follows :- The complainant, namely Mohammed Shahed s/o Abdul Shakur returned from his work place to his house, situated at Lalwadi, Nanded, at about 3.30 to 4.00 p.m. on 26.10.1997 and cleaned Nali situated in front of his house, since it was blocked. After cleaning the said Nali, while washing his hands and legs in front of his house, the accused Iqbal Karim Ansari closed the said Nali by cutting a Babhul tree. Thereafter he started abusing. Hence, the complainant’s father asked the accused why he closed the said Nali and why he was abusing. Thereupon, the accused rushed on the person of complainant’s father and also pushed him and rushed on the person of the complainant and assaulted him by axe on his head and also on his right hand thumb and little finger, thereby the complainant sustained bleeding injuries on his right hand finger 3 cra95.01 and on his head. Thereafter the complainant went to the Shiwaji Nagar police station, Nanded and the police personnel referred him to the hospital for medical treatment, where doctor treated him. Thereafter, the police personnel recorded his complaint in the hospital and offence was registered against the accused under C.R. No. 180 of 1997 under Sections 325, 323 and 504 of the Indian Penal Code. 4 During the course of investigation, the police personnel prepared spot panchanama on 27.10.1997 in presence of panch witness PW5 Sk. Anwar Khan and same is produced at Exh.27. Moreover, the alleged weapon i.e. axe was seized under the seizure panchanama by the police personnel on 30.10.1997. Besides, PW6 Dr. Ramesh Sangavikar on 26.10.1997 gave first aid to injured PW1 complainant Mohd. Shahed at G.G.M. Hospital, Nanded and thereafter he was referred to Surgical Ward for further management, as well as he issued the injury certificate, which is produced at Exh. 30. 5 Accordingly, after completion of investigation, charge sheet was filed against the accused before the court. Thereafter the Chief Judicial Magistrate framed the charge against the accused on 5.10.1999 at Exh.8 under Section 325 of the Indian Penal Code. The 4 cra95.01 accused pleaded not guilty to the charge and claimed to be tried. 6 To substantiate the charge levelled against the accused, the prosecution examined as many as 10 witnesses, as mentioned below :- PW1 Mohd. Shahed s/o Abdul Shakur, complainant and victim PW2 Abdul Shakur s/o Abdul Ahmed, father of complainant as well as victim PW3 Najmabee w/o Anwar Khan, eye witness PW4 Mohd. Asif s/o Mohd. Yousuf, eye witness and nephew of the complainant PW5 Shaikh Anwar Khan s/o Shaikh Habib Khan, panch to the spot panchanama (Exh.27) PW6 Dr.Ramesh s/o Vasantrao Sangvikar, Medical Officer, G.G.M.Hospital, Nanded, who gave first aid to the victim complainant Mohd. Shahed and issued injury certificate (Exh.30) PW7 Shrihari s/o Pandurang Mundhe, X-ray Technician in G.G.M. Hospital, Nanded PW8 Shaikh Anwar s/o Shaikh Farid, panch to seizure panchanama regarding seizure of axe – turned hostile PW9 A.S.I. - Tukaram Megha Mundaware, who recorded the first information report on 26.10.1997 5 cra95.01 PW10 P.S.I. - Kanba Chimnaji Kinarwad, in whose presence first information report was registered by PW9 Tukaram Mundaware 7 The defence of the accused is that on the date of incident, the complainant and his relatives assaulted him and he also filed a case against them, but the complainant falsely implicated the accused in the present case and the accused has not committed the alleged offence and claimed to be innocent. However, the accused neither examined himself on oath nor examined any defence witness to substantiate his defence. 8 After considering the oral and the documentary evidence adduced/produced by the prosecution, as well as after considering the rival submissions advanced by the learned counsel for the parties, the learned trial Court acquitted the accused for the offence punishable under Section 325 of the Indian Penal Code by judgment and order, dated 1.12.2000. Being aggrieved and dissatisfied by the impugned judgment and order of acquittal, the appellant/State has preferred the present appeal and prayed for quashment thereof and urged that the accused be convicted for the offence with which he was charged. 6 cra95.01 9 In order to deal with the submissions advanced by the learned counsel for the parties effectively, it is necessary to advert to the material evidence adduced/produced by the prosecution and in that context, coming to the deposition of PW1 Mohd. Shahed s/o Abdul Shakur i.e. the complainant, who has stated that the incident took place on 26.10.1997 at about 3.30 to 4.00 p.m. in front of his house, where Nali was situated, which was closed, and therefore, he cleaned it and after cleaning the said Nali, while he was washing his hands and legs in front of his house, the accused Iqbal Karim Ansari closed the said Nali by cutting down Babhul tree and started abusing the complainant. Hence, the father of the complainant asked the accused why he closed the Nali and the reason for abusing. However, the accused rushed upon his person and pushed him and also rushed on the person of the complainant and assaulted him by Kurhadi on his head and also his right hand thumb and little finger, due to which he sustained injury on his head, as well as bleeding injuries on his hand. 10 Thereafter, the complainant went to the police station and police personnel referred him to the hospital for medical treatment and the doctor treated him and operated him, and accordingly, the complainant was in hospital for about 13 days. Thereafter, the police 7 cra95.01 personnel recorded his complaint in the hospital which is produced at Exh. 22, as well as he identified the alleged weapon i.e. Kurhadi, which is marked as Article 1. 11 During cross-examination, he admitted that accused is related to him i.e. accused is son of his uncle and his house is situated towards eastern side of the house of the complainant and there is one cement public road. He also stated that he is married, but his wife resides at her parent’s house and she has filed case against him under Section 498-A of the Indian Penal Code. He further stated that he was in the hospital for 13 days. The accused put his case to the complainant that he assaulted the accused and when the accused was digging the pitch and cleaning the Nali, the complainant fell and sustained injury and has taken the disadvantage of it and filed false case against the accused, but same was denied by him. He also stated that the axe bore the blood stains. 12 Considering the contents of the complaint and examination-in-chief of the complainant, he stated that he told the police personnel that the incident took place from 3.30 to 4.00 p.m. on the day of the incident, but admitted that the said time is not recorded in the complaint, amounting to omission therein and improvement in his examination-in-chief. Moreover, there is 8 cra95.01 omission in respect of assault upon his father in the first information report and improvement in his examination-in-chief. Moreover, suggestion was given to him that he had illicit relations with Najmabegum, but same was denied by him. It was also suggested to him that he assaulted the accused and filed the false case against him for the reason that he should not prosecute him, but same was denied by him. It was further suggested to him that he was not hospitalised for 13 days, but same was also denied by him. Suggestion was also given to him that he filed the false case against the accused in collusion with his family members, but same was also denied by him. 13 That takes me to the testimony of PW2 Abdul Shakur i.e. father of the complainant, alleged to be the eye witness to the occurrence of the incident, who stated that on 26.10.1997 at about 3.00 to 3.30 p.m. he was in his house and his son Mohd. Shahed was cleaning the drainage. At that time, the accused came out of house and cut down the tree. Hence, PW2 Abdul Shakur asked the accused why he cut down the tree, as it closed the Nali. Thereupon the accused abused him and pushed him, due to which he fell on the surface and the accused assaulted him on his back. At that time, son of PW2 Abdul Shakur, namely Shahed i.e. the complainant came towards him. The accused assaulted him by axe (Kurhadi) and first 9 cra95.01 blow thereof was given on head and the second blow was inflected on his thumb of the hand and thereby Shahed became unconscious and was feeling giddiness. The nearby people had gathered due to hue and cry, and therefore, the accused ran away. Asif had gone to the police station and police personnel came on the spot and they took his son in their vehicle towards the police station and thereafter he was referred to the hospital. PW2 Abdul Shakur identified Article No.1 as well as the accused in the court. 14 In cross-examination, he stated that the accused is son of his brother. He also stated that the accused assaulted him on his back, and therefore, he went to the hospital and took the treatment. He further stated that police personnel recorded his statement on the second day and on the day of the incident he only narrated the police about the assault. However, he could not assign any reason why the police personnel has not recorded in his statement that the accused obstructed the Nali and the accused assaulted him on his back, amounting to omission in his police station and improvement in his testimony. He also admitted that the accused has filed case against them in the court. It was also suggested to him that the accused was beaten and he would file case against them, and therefore, before that, the present case was filed falsely, but same was denied by him. Suggestion was also given to him that he was deposing falsely that 10 cra95.01 the accused has beaten his son by axe and on his back, but same was denied by him. 15 Coming to the deposition of PW3 Najmabee i.e. the alleged eye witness, who stated that there was quarrel on 26.10.1997 in between 3.30 to 3.45 p.m. between the accused Iqbal and the complainant Shahed and at that time the accused has closed the Nali by cutting the tree and complainant Shahed asked him why he closed the Nali, due to which wastage accumulates. However, the accused pushed the father of the complainant PW2 Abdul Shakur. Hence, the complainant asked him why accused pushed his father. Thereupon, the accused assaulted Shahed by axe on his head and gave another blow thereof on the right thumb of the complainant, and thereby blood started oozing out of the head of the complainant and he became unconscious. At that time, Asif went to the police station. She further stated that many people were present there. She identified the axe i.e. Article No.1 in the court. 16 In cross-examination, she stated that name of his husband is Anwar Khan s/o Habib Khan Pathan. She also admitted that the accused has filed case against them. She knew the complainant Shahed since last 8 to 10 years. She further stated that she has no relations with the complainant and his family and at the 11 cra95.01 same time she stated that her husband is not on sitting terms with the family of the complainant and there are no talking terms. She admitted that on the earlier day, she came to the court for evidence with the complainant and his family members and on the date of evidence also she came with them. She further stated that when the complainant was being beaten by the accused, she went to separate them. However, she did not receive any injury at that time. She separated the complainant and accused by pushing both of them. She further stated that the complainant has wife, who resides at her parental house. She further stated that she does not know whether the wife of the complainant has filed case against her. However, police personnel recorded her statement on 27th. Omissions were brought on record in respect of cutting tree by the accused and putting it on Nali thereby closing it and also in respect of unconsciousness of Shahed i.e. the complainant, amounting to improvement in her testimony. However, she stated that Baniyan and Pant of Shahed were stained with blood, when he received head injury. However, she did not receive any blood stains on her person. It was also suggested to her that since there are relations of her with the complainant, his wife left him, but she denied the same. It was also suggested to her that there being relations between herself and the complainant, she was deposing falsely, but same was also denied by her. Suggestion was also given to her that she kicked on 12 cra95.01 the chest of the accused and after 2-3 days pelted stones on the house of the accused, but same was denied by her. Suggestion was also given to her that she deposed falsely about separating the quarrel of accused and the complainant, but same was also denied by her. 17 Turning to the deposition of next eye witness i.e. PW4 Mohd. Asif, who has deposed in his deposition that he had gone to the house of his grand mother at Lalwadi, Nanded to see her on 26.10.1997 and at about 3.00 to 3.30 p.m. his maternal uncle Shahed went to bring the water from the tap. At that time he was standing in front of house of his grand mother and noticed that his maternal uncle i.e. complainant Shahed was cleaning the Nali. At that time, the accused was cutting tree. Therefore, his maternal uncle i.e. Shahed asked the accused not to cut the tree as it causes closure of Nali. There were abuses in between them and the accused has abused the complainant. At that time, his grand father i.e. PW2 Shakur asked the accused why he was abusing. Thereupon, the accused pushed him and thereby PW2 Shakur fell down. 18 Moreover, the accused has also assaulted the complainant Shahed by axe on his head and the accused has given 13 cra95.01 second blow of axe on the right hand thumb of the complainant, due to which some part of the thumb was separated and there was bleeding injury and complainant Shahed sustained giddiness. Hence, he was shifted to the police station and thereafter police personnel referred him to the hospital. He identified the accused as well as identified the axe in question i.e. Article No.1 in the court. 19 In cross-examination, suggestion was given to him that he was depositing falsely that accused assaulted by Article No.1 and his thumb was separated, but same was denied by him. It was also suggested to him that he was deposing falsely that accused was cutting the tree and he has pushed to his grand father, but same was also denied by him. It was further suggested to him that he deposed falsely that due to assault by the accused, the complainant sustained giddiness, but same was denied by him. However, he admitted that on the earlier day, he came to the court along with his maternal uncle i.e. the complainant. 20 That takes me to the testimony of PW6 Dr. Ramesh, who stated that on 26.10.1997, he was attached to the GGM Hospital, Nanded and Mohd. Shahed was referred to him under requisition letter from police station, Shivajinagar, Nanded at about 5.15 p.m. Accordingly, he examined him and found following injuries : 14 cra95.01 (i) Auto amputation distal part of right thumb grievous in nature caused within 24 hours by hard and blunt object. (ii) Contused lacerated wound ½ x ½ x ½ cm. in margin on the right ring finger, simple in nature caused within 24 hours by hard and blunt object. (iii) Contused lacerated wound ½ x ½ ½ cm. on right temporal region of head of simple in nature caused by hard and blunt object within 24 hours. He also stated that he provided first aid to the injured and then sent him to the Surgical Ward for further management. He also stated that the said injured i.e. the complainant was hospitalized from 26.10.1997 to 7.11.1997 as indoor patient in Surgical Ward. His X- ray was drawn, which disclosed that the distal part of the thumb was broken and the other injuries were simple in nature and he does not found any sign of fracture injury. He further categorically stated that the injuries found on the person of injured Shahed are not possible due to blow of Kurhadi i.e. Axe. He further categorically stated that the injuries found on the person of complainant are possible by way of hard and blunt object i.e. any hard and blunt object having no sharp edge. He also stated that injury can be possible with a very blunt axe having no edge. He issued the injury certificate, which is 15 cra95.01 produced at Exh. 30. 21 During cross-examination, he admitted that it is correct to suggest that injuries caused by axe are always spindle shape, regular in margin, as well as they are incised wounds. He also stated that he has not found any such type of injury, which can be caused by a weapon like an axe on the person of injured Shahed. Hence, he opined that the injuries are caused by hard and blunt object and that even the blunt axe can cause incised wound regular in margin. He admitted that the paper in which X-ray plates are wrapped shows the date as 21.10.1997 i.e. the day on which X-ray was drawn, as well as the signature of Radiologist is also of 21.10.1997. He also admitted that distal part of the thumb is very remote part of the thumb. He further stated that the injuries found on the person of injured Shahed are possible when a person while working falls down on the ground and while cleaning Gatar and removing the garbage. 22 Coming to the deposition of PW9 ASI Tukaram Mundaware, who stated that on 26.10.1997 he was working as ASI at Shivajinagar police station and between 3.00 to 3.30 afternoon one person came at the police station, who had sustained injuries on his head. His statement was recorded by PW9 Tukaram as per his 16 cra95.01 version and crime was registered and thereafter the complainant was referred to the Civil Hospital and investigation was handed over to Beat Jamadar Pathan. 23 In cross-examination, he stated that while giving statement, the complainant has stated that incident had taken place from 3.00 to 3.30 p.m., but he has stated that incident took place between 3.30 to 4.00 p.m. on the day of incident, amounting to discrepancy in the timing. He also admitted that P.S.O. always writes the complaint. Hence, suggestion was given to him that he has no authority to write the complaint, but same was denied by him. Suggestion was also given to him that he wrote the false complaint against the accused with the collusion of the complainant, but same was denied by him. 24 On the afore said background of oral and documentary evidence adduced/produced by the prosecution, the learned Additional Public Prosecutor canvassed that PW1 complainant, namely Mohd. Shahed examined himself and narrated the occurrence of the incident, which was supported by the testimony of his father PW2 Abdul Shakur, who was present there and both the said testimonies involve the accused in the crime. It is also canvassed that PW3 Najmabee is the independent eye witness to 17 cra95.01 the occurrence of the incident and her testimony categorically connects the accused with the crime. Moreover, PW4 Mohd. Asif i.e. nephew of the complainant also witnessed the occurrence of the incident and he is also eye witness to it, who narrated the incident in detail, which, consequently, establishes the nexus between the crime and the accused. Accordingly, it is submitted that the testimonies of the complainant i.e. PW1 Mohd. Shahed, his father PW2 Abdul Shakur, coupled with testimonies of independent eye witnesses PW3 Najmabee, as well as PW4 Mohd. Asif clinches the issue in controversy and connects the accused with the alleged crime. 25 Moreover, it is argued that the evidence of PW6 Dr. Ramesh Sangvikar and the injury certificate (Exh.30) corroborates with the ocular evidence of the afore said witnesses regarding the injuries sustained by the complainant i.e. auto amputation of thumb. Moreover, the learned Additional Public Prosecutor submitted that the complainant Mohd. Shahed was hospitalised for about 13 days i.e. from 26.10.1997 to 7.11.1997 and the injury no.1 sustained by the complainant Mohd. Shahed i.e. distal part of the thumb auto amputation is the grievous injury, which attracts Section 325 of the Indian Penal Code. It is also canvassed by the learned Additional Public Prosecutor that the incriminating Article No.1 i.e. the weapon axe was seized under the panchanama and it has come in the 18 cra95.01 evidence that there was enmity between the accused and the complainant and cross-complaints were filed by them against each other, which itself is the motive behind the afore said assault upon the complainant. It is further canvassed by the learned Additional Public Prosecutor that the testimonies of PW2 Abdul Shakur i.e. father of the complainant eye witness and PW4 Mohd. Asif, who is nephew of the complainant and also an eye witness, cannot be discarded as they are the relatives and interested witnesses, since the said depositions inspire the confidence and connect the accused with the crime. Besides, it is argued that although PW6 Dr. Ramesh stated in his deposition that injuries found on the person of the injured Shahed are possible when a person while working falls down on the ground while cleaning the gutter and removing the garbage, but there is no evidence on record to show that the victim sustained injury due to accidental fall, and therefore, it is submitted that the said statement made by PW6 Dr. Ramesh is of no aid and assistance to the case of the accused. 26 In the circumstances, it is submitted that the evidence on record adduced/produced by the prosecution inspires the confidence that the incident occurred and victim sustained grievous injury at the hands of the accused caused by axe i.e. deadly weapon, and hence, there is no incriminating evidence against the accused to hold him 19 cra95.01 guilty, and therefore, it is submitted that the present appeal deserves to be allowed by quashing and setting aside the impugned judgment and order of acquittal and the accused is required to be convicted for the offence punishable under Section 325 of the Indian Penal Code. 27 Learned advocate Shri Sachin Bhise holding for Shri S.B. Bhapkar, learned counsel for the respondent/accused countered the said argument and opposed the present appeal vehemently and submitted that although PW3 Najmabee and PW4 Mohd. Asif