Faizan Ahmed Abdul Wahab Shah vs The State Of Maharashtra
2013 Latest Caselaw 106 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.275 OF 2012




                                                                             
     Faizan Ahmed Abdul Wahab Shah             )
     Convict Prisoner No.C/5057,3/2            )




                                                     
     Aged: 38 years, at present                )
     lodged at Kolhapur Central                )
     Prison, Kalamba, Kolhapur                 )
     Maharashtra.                              )                ...Appellant




                                                    
           vs.

     The State of Maharashtra                                   ...Respondent

     Ms. Apeksha Vora, appointed advocate for the Appellant.




                                         
     Ms. A. A. Mane, APP, for the Respondent - State.
                           ig                   CORAM      : A. H. JOSHI, J.

                                          RESERVED ON      : 18th October, 2013.
                         
                                          DELIVERED ON     : 25th October, 2013.

     J U D G M E N T

1] Heard Ms. Apeksha Vora, learned advocate appointed by

the Court and the learned APP. Perused the record.

2] The prosecution case against the accused was as

follows:-

(a) The victim Noor Hasina Begam was married to the appellant in the year 2008. The couple cohabited for 2-3 months. Thereafter the accused started

illtreating her on account of monetary demands. The illtreatment became unbearable and she left the accused and started living with her mother.

(b) During the span of two years when Hasina was residing with her mother the accused used to make threat calls and asked her to return back for cohabitation or else he would kill her.

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           (c)     The    parents     of     victim     performed         her     second

marriage with one Parvez on 12.05.2010 and she began living with Parvez at Govandi. Appellant learnt

about the second marriage of the victim. He started going to her house and threatening her. On one

occasion the accused went to her house and tried to choke her throat.

(d) On 10.07.2010 at about 10.00 a.m. when Noor Hasina was alone in the house and was cooking food, the appellant arrived there and started abusing her

over second marriage against his wishes, caught her neck and began chocking it. Noor Hasina pushed the

accused to save herself. The appellant took out a chopper which was tucked to his waist and assaulted her with that chopper.

(e) Hasina tried to save herself from the blow of chopper. She received blow of chopper on her palm.

Appellant then pressed her down and inflicted multiple blow of chopper over her shoulder, back etc.

due to which she sustained injuries, fainted and fell down. Thereafter the accused ran away.

(f) One woman in the neighbourhood informed about assault to the victim's brother. The brother arrived on the spot. He was accompanied by his wife. They took her to the hospital.

(g) The victim was admitted in the hospital as an indoor patient and was continued as an indoor patient for a long time.

(h) The police recorded the statement of victim's brother in the hospital and it is treated as FIR. Later, Noor Hasina's statement was recorded.

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             (i)     After completing the investigation,                    the charge

sheet was filed under Section 307 of the Indian Penal

Code.

3] The case was tried by the learned Court of Sessions

for Greater Bombay, who was pleased to convict the appellant

under Section 326 of the Indian Penal Code and sentenced him

to five years R.I. fine etc.

4] This appeal received from jail.

5]

The grounds raised and argued in support of appeal by

advocate who was appointed are summarized as follows:-

(a) The admission of all the documents was done by the Advocate for the appellant who was

initially representing the appellant and who had later abandoned from the Trial.

(b) Admission of documents was said Lawyer's decision which was done without consulting the

accused.

(c) Due to said admission, the prosecution did not bring witnesses to prove the injuries and

accused had no opportunity to test the truth as to fact of hurt on attempt to murder or whatsoever.

(d) The said admission has caused an immeasurable harm to the appellant's defence.

            (e)     Prosecution         has   relied        only       on      the





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           statements         of      interested         witnesses            and

independent witnesses were not tendered.

(f) Testimony of PW1 was not corroborated by the evidence of any independent witness.

(g) Out of four witnesses the victim i.e. PW-1 and complainant PW-2 are related to each other

and hence the testimony of PW-2 falls under the category of interested witnesses who would liked to see that the appellant shall be punished, and hence they are interested witness.

           (h)     The
                      ig injuries    described      in    the

show that there was chop wound on right waist at certificate

metacarpal and median.

(i) The injuries mentioned by the victim and the injuries found on her body do not match.

(j) The victim had alleged that she was assaulted

five to six times over her back and waist. Any such injuries are not reflected in injury certificate. This discrepancy was not taken into

consideration by the learned trial Court as the victim's exaggeration bends towards falsehood.

(k) It is evident from the testimony of the victim

that the attack was not intended or directed towards the vital part of the body of the victim which proves that the intention of whoever attacked the victim was not to kill her.

(l) The accused went to trial without proper aid and expert legal assistance which was his right and this has prejudiced his defence.

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(m) The weapon as produced in the Court is also not a chopper but a scythe and therefore the same

is also vacillating.

6] Perusal of record reveals that, testimony of PW1 and

the injury suffered by the PW-1 described in injury

certificate (discharge summary) is the main foundation of

proof of charge of offence under Section 307 of the Indian

Penal code of attempt to murder, which was ultimately held to

be the offence proved under Section 326 of the Indian Penal

Code.

7] The injuries described the discharge summary are as

follows:-

"Chop wound on right wrist at 2 nd/ 3rd/ 4th /5th

metacarpal median ulnar N. injury flexion

tendon injury."

(quoted from page No.46 of the paper book).

8] It is seen that the injury certificate was the

document no.9 in the list of documents. Record shows that the

learned advocate who was initially representing the accused

and had abandoned, had admitted the documents by making an

endorsement on list of documents on 10.02.2011.

9] Perusal of record reveals that the appellant's advocate

had abandoned the proceedings. Ultimately, the advocate from

the Legal Aid Panel was appointed.

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     10]      The advocate appointed in the trial Court from legal




                                                                          

aid panel submitted application at Exh.18A and requested that

the accused be allowed to retract from admission of certain

documents done earlier.

11] The learned Sessions Judge has rejected the said

application. It is seen that it is recorded in the Roznama

dated 29.07.2011 as follows:-

"29/07/11 Coram: H.H. The Addl. Sessions Judge,

SC.No.

Shri N.P. Dalvi (C.R. No.07) Sewree, Mumbai APP Shri Lokhande for the state present. 681/10 PC Shivaji Nagar Police Station present.

Accused in j/c not produced.

None appear for accused.

Kept back:

later on at : 12.10 pm. Accused produced from j/c.

Ex:17 Application filed by advocate for not admitting document. - by passing order on it, same is rejected.

Adjd. For R/E on 16/08/2011."

(quoted from page No.8 of the paper book).

12] In the aforesaid background, the trial proceeded

where the fact of injuries and duration of admission in the

hospitalization, were not required to be proved by the

prosecution by bringing witnesses in the background that the

injury certificate/discharge summary was on admitted

documents.

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     13]         The injury described in the certificate is fracture

     shown    with     symbol    "#".    The    description         does       not   clarify




                                                                                
     whether    the     fracture    is    caused      or    seen     to    a    particular

     finger    2nd, 3rd, 4th and 5th metacarpal and median.




                                                        
     14]          It is to be noted that the injuries described by




                                                       

PW-1 in her deposition read as follows:-

"I tried to save myself and in that process I got blow of chopper over my left palm. He then

pressed me down and gave multiple blows of chopper over my shoulder and back at 5-6 times.

I sustained bleeding injuries." (quoted from page Nos.51 and 52 of the paper

book).

15] In the cross examination PW-1 has admitted that there

is variation in the description of actual injuries and those

narrating by her before the police.

16] As regards the injury PW-2 states as follows:-

"On 10/7/2010, at about 10.15 am I went to meet my sister Noor Hasina. I saw her lying on the ground with injury over her back, shoulder, hand. She was semi conscious. I asked her about

the injuries when she told that Faizal (accused) assaulted her with chopper."

(quoted from page Nos.58 and 59 of the paper book).

17] In so far as act of assault is concerned, PW-1 alone

is a witness. Other witnesses who are shown as eye witnesses

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are not in fact an eye witnesses as they had arrived at the

spot after the incident had occurred.

18] The application for retraction was rejected on

29.07.2011. The trial began on 16.08.2011 and on that date

the examination in chief and cross examination of PW-1 was

completed. Roznama shows that on earlier dates witnesses

were not brought by the prosecution. Therefore, the record

does not support any justification for rejection of the

application for retracting from the admission. Even if the

application would have been considered favourably, witnesses

more could have been summoned without delay, for securing

ends of justice.

19] The perusal of evidence and further reveals that:-

(a) The weapon does not match with the

description given by the witness.

(b) The injuries do not match with version of

witness.

(c) Though the medical certificate shown fracture by "symbol" it was necessary for the prosecution to prove the fracture by

bringing evidence of X-ray examination and supporting testimony of radiologist.

(d) The application for permission for retracting for admission of documents was submitted before the Court before the trial had commenced, and it was rejected in haste.

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                 (e)     In    the     background       that      accused      had
                         applied        for     retracting          from      the




                                                                                 

admission of documents, he has suffered prejudice.

20] It is seen that the injuries are not proved to be

grievous hurt. There cannot be a presumption that the

grievous hurt was caused without formal proof of the fact of

fracture. The fact of existence of fracture cannot be

diagnosed and certified in absence of proof of x-ray plates,

unless the fact of fractured bones is perceivable barely of

perception by naked eyes and sheerly by clinical examination,

its being vivid and palpable. Therefore, proof of x-ray

plates was necessary particularly, the appellant had made an

attempt to retract the admission of medical certificate/

discharge summary.

21] Admission of such a crucial document was akin to

admission of guilt or a confession which an accused is not

bound to make and when made the Court is not bound by such

confession. Ordinarily, when a confession does not bind the

Court, the prosecution is not relieved from its indelible

duty to prove the guilt beyond shadow of a reasonable doubt.

22] In present case, the accused was unrepresented, and

hence the legal aid was given. Legal aid means aid of able

and resourceful aid, and not by way of a compliance of

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formality of assistance. The order refusing to retract from

admission of document should have been challenged. It appears

that the appellant could not get said advise and he has

rather starved of competent and punctual legal aid and

advise.

23] Present is a case which can be cited as an

illustration of prejudice to the defence of the accused due

to erroneous admission of an incriminating document. Said

admission could be regarded as reckless and in excess of

authority and duty of a lawyer towards his client. Nothing

fact, in law or morality did bind the lawyer to admit the

injury certificate/discharge summary.

24] In this situation, there exist serious reasons to

entertain grave doubt as to whether in fact the accused is

guilty of offence punishable under Section 326 of the Indian

Penal Code, and conviction needs to be modified to lesser

sentence.

25] Considering the weakness of prosecution case even if

PW-1 is to be believed, it would be turn out the simple hurt

due to causing incised wound by use of a hard but sharp, by

deadly weapon and not the offence under Section 326 of the

Indian Penal Code. Therefore, the conviction of appellant is

modified to section 324 of the Indian Penal Code.

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     26]        In the result, appeal succeeded and is partly allowed.




                                                                                  
     27]       Heard as regards sentence it is seen that the accused




                                                          

was in jail since 20.09.2011. Now he has already completed

two years and few more days. Therefore, the sentence

undergone by appellant for two years and few days is

considered as adequate of sentence. Sentence is modified

accordingly. Appellant be released forthwith.

     28]          Advocate
                            ig Ms.    Apeksha        Vora,    who    was     appointed         to

represent the appellant be paid from legal aid fund an amount

of Rs.4500/- within one month from today.

( A. H. JOSHI, J.)

wadhwa