Shaikh Javed Sk.Osman vs The State Of Maharashtra
2009 Latest Caselaw 134 Bom

                                   {1}


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                 
                      BENCH AT AURANGABAD




                                         
           CRIMINAL REVISION APPLICATION NO.219 OF 2009

     1.   Shaikh Javed Sk.Osman
          Age-36 Years, Occ-Business




                                        
          R/o Mamla, Beed

     2.   Shaikh Ajiz @ Khanna Osman
          Age-32 years, Occ-Business, 




                                
          R/o Mamla, Beed

     3.
                   
          Shaikh Vajed Sk.Osman
          Age-26 years, Occ-Business
          R/o Mamla, Beed
                  
     4.   Shaikh Khadir Sk.Khalil
          Age-26 years, Occ-Business
          R/o Mamla, Beed
      


     5.   Shaik Chand Sk.Babu
   



          Age-27 years, Occ-Business
          R/o Mamla, Beed

     6.   Shaikh Akhatar Sk.Shabbir





          Age-23 years, Occ-Business
          R/o Mamla, Beed

     7.   Shaikh Unus Sk.Mujeeb, 





          Age-22 years, Occ-Business
          R/o Mamla, Beed

     8.   Shaikh Firoz Sk.Mujeeb
          Age-20 years, Occ-Business
          R/o Mamla, Beed

     9.   Shaikh Mujeeb Sk.Osman




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            Age-45 years, Occ-Social Service
            R/o Maminpura, Beed                                     APPLICANTS




                                                                               
            VERSUS




                                                       
     1.     The State of Maharashtra 
            Through Police Inspector, 
            Police Station, Paith Beed, 




                                                      
            Dist-Beed

     2.     Sk.Najir Sk.Vajir, 
            Age-30 years, Occ-Education 




                                         
            R/o Mamala, Beed, Dist-Beed                             RESPONDENTS
                         ig          .......
     Mr.S.V.Chillarge, Advocate for applicants 
     Mr.N.B.Patil, APP for the respondent State 
                       
                                     .......

[CORAM : A.V.POTDAR, J.]

DATE: 17th December 2009

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent of

the learned counsel for the parties, this criminal revision is heard

finally at the stage of admission.

2. By the present revision application, the applicants

have approached this Court challenging the order dated

24.07.2009 passed by the Additional Sessions Judge, Beed below

Exhibit-9 thereby rejecting the application of the applicants for

modification in the charge to be framed.

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3. Heard learned counsel for the applicants followed by

the submissions of learned APP. None appears on behalf of

respondent No.2, though duly served. Perused the copy of the

charge sheet made available by learned counsel for the applicants.

4. With the assistance of learned counsel for the

applicant and learned APP, perused the statements of the

witnesses recorded u/s 161 of the Criminal Procedure Code and

the evidence collected during the investigation. It appears that the

Sessions Case No.35/2008 is an offshoot of CR No.23/2007

registered with Paith Beed Police station on the complaint of

respondent No.2, on 23.02.2007. Perusal of the complaint shows

that the incident occurred in the evening of 23rd February 2007, at

the residential premises of respondent No.2. It is alleged that when

the complainant was taking meal, all of a sudden, door of the

house was broke opened and two accused entered in the house

holding revolver and swords. The complainant was brought outside

the residential premises, on the point of revolver where the other

accused were present holding deadly weapons. After the

complainant was dragged out side the house all the accused

assaulted him with the deadly weapons. It is alleged that when the

assault was in progress, other family members of the complainant

attempted to rescue the complainant, however they were also

assaulted. The neighbours intervened and rescued the

complainant and his family members and they were taken to

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hospital for treatment. After completion of investigation,

chargesheet was filed against the applicants.

5. During the course of submissions, it is urged that the

entire evidence collected during the investigation was placed before

the learned Additional Sessions Judge and the charge is framed

u/s 147, 148, 149 r/w section 452, 326, 324 and 307 against the

present applicants. It is also urged that the trial court has not

considered the medical evidence, which is placed before it. The

medical certificate of all the four injured persons indicate that the

injuries sustained by the complainant and his relatives are neither

grievous in nature nor they were on the vital parts of the body. The

medical officer has not opined that the injuries sustained were of

the nature that if had not immediately treated, would have caused

death. In the premise, it is urged that the charge u/s 307 of the

Cr.P.C. will not sustain, however it may sustain u/s 326 or 324 r/w

other sections of the IPC.

6. Learned APP opposed these submissions.

7. A reference of judgment in the matter of "Niranjan

Singh Karan Singh Punjabi V/s Jitendra Bhimraj Bijja"

reported in AIR 1990 SC 1962 found in the judgment of the trial

court. In para 5 and 6 of the reported judgment, criterion are given

as to how to deal with the application u/s 227, if filed by the

defence, at the time of framing of the charge. Considering the

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submissions, though the application is moved u/s 227 of the

Cr.P.C. for discharge, however the same has to be considered for

modification of the charge and not for total discharge.

8. Perusal of the complaint as well as statements of the

witnesses recorded during the investigation prima facie indicate

that the accusation against the applicants in respect of forcible

entry in the house and dragging the complainant out of the house

on the point of revolver and deadly weapons, stands sustained.

However, so far as injuries sustained by the complainant and his

family members, required to be considered in the light of the

weapons recovered at the instances of the applicants. The weapons

recovered are deadly, however at the same time, considering the

nature of the injuries sustained by the injured are also require to

be taken into consideration. The medical officer has described the

injuries as simple in nature and not as such that had not been

treated immediately would have caused death. In the premise, it is

clear that though there is prima facie evidence to proceed against

the applicants, yet not for the charge u/s 307 of the I.P.C., but for

the remaining charges u/s 147 to 149 r/s 452, 326 and 324 or

other charges along with Arms Act. In the premise, the charge

framed against the applicant requires to be altered or modified.

Hence, the application (Exhibit-9), which was rejected, requires to

be sent back for reconsideration in the light of the evidence

collected during the investigation.

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9. In the result, the revision application succeeds. The

Additional Sessions Judge, Beed, on whose file the Sessions Case

No.35/2009 is pending is directed to reconsider the charges to be

framed on the basis of material available on record and frame the

charge against the applicants accordingly.

10. Rule is thus made absolute on the terms indicated

above. The parties are directed to appear before the trial court on

30.12.2009.

sd/-

[A.V.POTDAR, J.]

drp/crirev219-09