1 Appeal 369-94 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.369 OF 1994 Mohammad Aslam Nuru Pahilawan ..Appellant Qureshi, Age : 22 years, R/o. at Malegaon, Mohammad Ali Road, Qureshi Hotel, Malegaon, Taluka Malegaon, District Nasik. V/s. The State of Maharashtra ..Respondent Smt.S.A.Dhamale, Advocate, for the Appellant Mrs.P.P.Shinde, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 18TH APRIL, 2011 ORAL JUDGMENT . This Appeal is directed against appellant's conviction for the offence punishable under Section 307 of the Indian Penal Code and sentence of rigorous imprisonment for six years with a fine of Rs. 800/- or in default further rigorous imprisonment for three months imposed upon the appellant by the learned Assistant Sessions 2 Appeal 369-94 Judge, Thane, upon conclusion of Sessions Case No.517 of 1993. 2. Facts which are material for deciding this Appeal are as under :- Appellant's father was working as butcher at Malegaon. Victim's family was also in the same business. This had created some animosity. Appellant is, in fact, a son of victim's wife's brother. Because of animosity, appellant's father Nuru Pahilawan was murdered. In that murder case, the victim had also been tried as an accused. Therefore, the two families were not on talking terms. On 7th June, 1993, the appellant came to the house of the victim at Bhiwandi. Appellant's aunt, that is victim's wife, served him with necessary refreshments. Thereafter, victim and his son were sleeping in one room. The appellant entered the room and hit the victim with an Axe. Victim got up and raised cries for help. Victim's son got up, and victim's 3 Appeal 369-94 brother, who was sleeping in adjoining room, rushed towards victim's room. The appellant took out a knife and stabbed the victim on abdomen and left hand. The appellant was overpowered by victim's son and brother and confined to a room. One Jakia, sister of the victim had gone the police station and a police constable came & made arrangement to have the victim sent for medical treatment. He took the appellant in custody. On a report by victim's son, an offence was registered and on completion of investigation, charge sheet was sent in the Court of Judicial Magistrate First Class at Bhiwandi, District Thane, who committed the case to the Court of Sessions at Thane. 3. The learned Assistant Sessions Judge to whom the case was made over charged the appellant for the offence punishable under Section 307 of the Indian Penal Code. Since the appellant pleaded not guilty, he was put 4 Appeal 369-94 on trial at which the prosecution examined in all nine witnesses in its attempt to bring home guilt of the appellant. The appellant's defence was that the victim was injured, when victim came to rescue of the appellant, when appellant was being assaulted by victim's son and brother. The learned Trial Judge considered this defence in the light of evidence tendered and held the appellant guilty of the offence punishable under Section 307 of the Indian Penal Code and convicted and sentenced him as afore mentioned. Aggrieved thereby, appellant has preferred this Appeal. 4. I have heard the learned Counsel for the appellant and the learned APP for the respondent  State. With the help of both the learned Counsel I have gone through the evidence on record. Victim's son Riyaz Ahmed Abdul Wahid Qureshi, who gave a report at Exhibit 16 was examined as P.W.1. He was eye witness to the incident, since he was sleeping 5 Appeal 369-94 in the same room in which victim was sleeping when assault was launched. P.W.2 Mohd. Salim Mohiddin Qureshi, who was sleeping in an adjacent room also rushed on hearing cries for help by the victim. P.W.3 Police Constable Sunil Pandurang Jadhav had come on being informed of the incident and states that he apprehended the appellant and caused the victim to be sent for treatment. P.W.4 Abdul Wahid Mohiddin Qureshi is the injured person, who states about the assault launched by the appellant. P.W.5 Dr. Anwar Ismail Momin examined the injured person and found that the victim had an incised wound over abdomen which was 4 x ¼ x cavity deep, bleeding massively. The second injury was contused lacerated wound on left occipital region ½ x ½ x bone deep & bleeding. The third injury was on the left side of chest upper zone 2 x ½ into muscle deep and the fourth injury was on the left wrist dorsal aspect 1 x ½ x bone deep. The doctor observed that injuries had been 6 Appeal 369-94 caused within six hours of the examination. He found that two of the four injuries were grievous in nature and could cause death of patient in ordinary course of nature, if the patient was not treated properly. P.W.7 Dr. Sunita Sudhakar Arole treated the injured person when admitted in Lokmanya Tilak Municipal General Hospital, Sion, Bombay and she too stated that one of the injuries was sufficient in ordinary course of nature to cause death. P.W.6 PSI Ramdas Sukhadeo Kaklij registered an offence on the report of Riyaz Ahmed Abdul Wahid Qureshi. P.W.8 API Dagadu Keru Jadhav conducted investigation and P.W.9 Police Constable Shantaram Ratho Bhore carried then incriminating articles to the Forensic Science Laboratory. 5. In this case, the appellant does not dispute that the appellant was present at the spot. He also does not dispute that there was previous enemity between the parties, since 7 Appeal 369-94 the appellant's father had been murdered and the injured person was one of the accused, who faced murder trial. The nature of injuries which have been observed by the medical officer rule out the possibility of injuries being accidental or self inflicted. In fact, it was the curious defence of the appellant that P.W.1 Riyaz Qureshi and P.W.2 Mohd. Qureshi sought to hit the appellant due to previous enemity and that the victim tried to intervene and was injured by the blows by Riyaz Ahmed Qureshi or Mohd. Salim Qureshi. It does not sound to reason that Riyaz or Mohd. Qureshi would proceed to assault the appellant or that Abdul Wahid Mohiddin Qureshi would try to intervene to save the appellant, since even Abdul Wahid was accused of murder of appellant's father. Curiously the appellant himself has not suffered any injury. In any case, there is absolutely no reason for the three witnesses to come out with a story of assault different than one which they 8 Appeal 369-94 had actually witnessed. 6. The learned Counsel for the appellant submitted that there are some improvements in the story. She also pointed out that the appellant could not have come to the victim's house armed with weapons. But that really is not of any consequence, since necessary weapons could also have been found in the victim's own house, since victim is a butcher by profession. Report of the incident was immediately given. Therefore, the possibility of concocted version of the incident being dished out to the police is ruled out. Minor discrepancies in the evidence of three witnesses rather lend a ring of truth to their testimony, since orchestrated harmony in the evidence of prosecution witnesses some times leads to suspicion of witnesses having been tutored. In view of this, it cannot be said that the learned Trial Judge erred in concluding on the basis of evidence of P.W.1, 9 Appeal 369-94 P.W.2 and P.W.4 that appellant was author of injuries on Abdul Wahid. 7. Given the nature of assault and the injuries sustained by the victim as also observation of both the Medical Officers that one of the injuries was sufficient in ordinary course of nature to cause death, it cannot be said that the learned Trial Judge erred in holding that the appellant was guilty of the offence of attempting to commit murder. Therefore, no fault can be found with the conviction of the appellant recorded by the learned Trial Judge. 8. The learned Counsel for the appellant submitted that the appellant was just 22 years old at the time of the incident and had already suffered imprisonment for about one year during the trial. The appellant was convicted about 15 years ago for an incident which took place before 18 years and has been 10 Appeal 369-94 living in the shadow of conviction. Therefore, according to her, rather than sending him back to the prison 18 years after the incident, imprisonment could be reduced to that already undergone by increasing the fine. This suggestion could have been considered but for the fact that the assault on the victim was brutal. Therefore, given the nature of assault in which the appellant was involved even sentence of rigorous imprisonment for a period of six years cannot be said to be harsh even after considering young age of the appellant. 9. In view of this, Appeal is dismissed. The appellant shall surrender before the trial Court within a period of eight weeks and if he does not do so, the learned Sessions Judge shall have the appellant arrested and committed to prison to serve the sentence. (R.C.CHAVAN, J.) 11 Appeal 369-94