Bombay High Court
Sampat Dagdu Sandbhor vs State Of Maharashtra on 31 August, 2015
Bench: A.M. Thipsay
1-APPEALS-608-1996-613-1996.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.608 of 1996
SAMPAT DAGDU SANDHBOUR )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.S.V.Kotwal a/w. Mr.Ashish Sawant, Amicus curiae, for the
Appellant.
Mr.Deepak Thakre, APP for the Respondent - State.
WITH
CRIMINAL APPEAL NO.613 OF 1996
NATHURAM VITHAL MULIK )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.S.V.Marwadi, Advocate for the Appellant.
Mr.Deepak Thakre, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 31st AUGUST 2015.
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ORAL JUDGMENT :
1 Both these appeals can be conveniently disposed of by
this common order as both the appellants were convicted in the
same trial that was held by the Sessions Judge for Raigad, at
Alibaug. The appellants were prosecuted on the allegations of
their having committed an offence punishable under Section 302
of the Indian Penal Code (IPC) read with Section 34 of the IPC.
The learned Sessions Judge, after holding a trial, concluded that
the offence allegedly committed by the appellants was not the one
punishable under Section 302 of the IPC but the offence of
causing simple hurt, punishable under Section 323 of the IPC. As
such, he convicted them of the offence punishable under Section
323 of the IPC read with Section 34 of the IPC, and sentenced
each of them to suffer Rigorous Imprisonment for 6 months and to
pay a fine of Rs.1,000/-, with a default sentence of one month.
Being aggrieved by their conviction and the sentence imposed by
the learned Sessions Judge, the appellants have approached this
court challenging the impugned judgment and order, by filing two
separate appeals.
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2 The appellant in Criminal Appeal No.613 of 1996 is
the original accused no.1 and the appellant in Criminal Appeal
No.608 of 1996 is the original accused no.2. For the sake of
convenience and clarity, they shall be referred to as such in the
body of this judgment.
3 The facts of the case, as put forth before the trial court,
ma, in brief, be stated thus :
The accused no.1 was a driver and the accused no.2
was a conductor, working in the State Transport Corporation. On
14th December 1993, they were on duty in S.T.Bus No.MH 12
4461, which was going to Mumbai from Rajguru Nagar. Shabbir
Yakub Patel, the deceased, was driving a truck bearing no.MTL
6373 belonging to on Babubhai Mujawar. The truck was loaded
with salt bags and was proceeding towards Karad from Bombay by
Bombay-Pune Highway. At Village Kalote, a collision between the
said truck that was being driven by Shabbir Patel and the S.T.Bus
which was being driven by the accused no.1, took place. It
appears that after the collision, some quarrel took place. The
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accused no.1 as well as accused no.2 as also some passengers got
down from the bus and assaulted Shabbir Patel, the driver of the
said truck. The incident of the accident was reported by the
accused no.2 to the police. The truck driver Shabbir Patel also
lodged a report with the police, which was treated as a non-
cognizable case. Shabbir Patel was sent to Primary Health Centre
and the doctor who examined him found injuries on the body of
Shabbir Patel. The doctor specifically noted that Shabbir Patel had
complained of pain in abdomen and on the back.
4 After the incident, the truck proceeded further and
Shabbir Patel went to his native place. It appears that after going
home, he complained to his wife Banubai (PW11) and son Javed
Patel (PW10) of pain and told them that he had been beaten by
the driver and conductor of the S.T.Bus. Shabbir Patel had
swollen eyes. He was taken to Dr.Jahangir Sayyad (PW2) on 17 th
December 1993, where also he complained about the assault on
the Highway. Dr.Jahangir Sayyad noticed the injuries on the
person of Shabbir Patel and as he had swollen eyes, asked him to
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see an eye specialist. On the next day, Shabbir Patel was taken to
Dr.Vijay Karambelkar (PW1), an eye specialist.
5 Shabbir Patel died on 23rd December 1993 and was
buried. After the report of his death was received by Khalapur
Police Station, where a case in respect of a non-cognizable offence
had been registered on the report of Shabbir Patel, P.SI. Shaikh,
(PW12) attached to that police station, obtained an order from the
Magistrate to investigate into the matter as contemplated under
Section 155(2) of the Code of Criminal Procedure (Code) and
carried out further investigation. The dead body of Shabbir Patel
was exhumed from the graveyard, under a panchnama, after
obtaining necessary orders from the Executive Magistrate.
Postmortem examination on the deady body was carried out. The
death was opined to have been caused by 'circulatory collapse due
to rupture of liver.' Since this death was believed to be homicidal,
after investigation, a charge-sheet alleging commission of an
offence punishable under Section 302 of the IPC read with Section
34 thereof came to be filed by the police. There were others, who
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had also, supposedly, assaulted the deceased, but they could not
be traced by the investigating agency. As such, only the present
appellants were prosecuted, as aforesaid.
6 During the pendency of the appeal, the original
accused no.2 (appellant in Criminal Appeal No.608 of 1996)
passed away. However, as the sentence imposed by the learned
Sessions Judge upon him was also of fine, the appeal would not
abate. In the circumstances, Mr.S.V.Kotwal was requested to act as
an amicus curiae and assist the court in the disposal of the appeal.
7 I have heard Mr.S.V.Marwadi, the learned counsel for
the appellant in Criminal Appeal No.613 of 1996. I have heard
the learned amicus curiae. I have heard Mr.Deepak Thakre, the
learned APP for the State. I have gone through the entire evidence
adduced during the trial. I have also carefully considered the
impugned judgment.
8 That, the accused no.1 was the driver of the S.T.bus
and the accused no.2 was the conductor of the said bus, is not in
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dispute at all. That, on 14th December 1993, there was a collision
between the said S.T.Bus and a truck, which was being driven by
the deceased Shabbir Patel, is also not in dispute.
9 Mr.Marwadi, the learned counsel for the accused no.1
submitted that there was no evidence to hold any of the accused
guilty. He submitted that the statements of the witnesses were
recorded belatedly. He submitted that the deceased, when
examined by a doctor on 14th December 1993, had not given the
history of assault by any of the appellants. He also submitted that
two witnesses, who were the passengers in the said S.T.Bus had
not supported the case of the prosecution. The substance of his
contention is that the evidence adduced by the prosecution during
the trial was not reliable and hence the accused persons should
have been acquitted.
10 A reading of the impugned judgment shows that the
learned Sessions Judge specifically came to the conclusion that
Shabbir Patel had died a homicidal death. He also held that it was
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satisfactorily proved that the accused nos.1 and 2 had assaulted
th
the deceased on 14 December 1993, and that, the deceased had
th
died on 23
December 1993, as a result of the said assault.
Inspite of this, the learned Judge held the accused persons guilty
only of an offence punishable under Section 323 of the IPC on the
reasoning that the prosecution could not prove that the assault by
accused nos.1 and 2 was with the intention of causing death or
with the knowledge that death would thereby by caused.
11 Much could be said about the consistency of the
reasoning in the impugned judgment, but since the State has not
sought to challenge the impugned judgment on the ground that it
acquitted the accused persons of a graver and more serious
offence, I do not wish to go into that aspect of the matter. Since
the accused persons have been convicted only of an offence
punishable under Section 323 of the IPC, the point that would
need consideration is quite limited. It is, whether the accused
persons or any of them, in furtherance of the common intention of
both of them, or otherwise, assaulted the deceased Shabbir Patel.
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12 The prosecution examined a number of witnesses, who
could depose about the assault. Suresh Titkar (PW5) and Naresh
Bhandurge (PW6), who were travelling by the said bus, were
examined to establish this aspect, but they did not support the
prosecution case and were declared as hostile. Their evidence is
of no assistance, either to the prosecution, or to the accused
persons. Salim Mulla (PW9), who was working as a cleaner on
the truck of which the deceased was the driver, is an important
witness in the matter. His presence on the truck at the time of the
incident is not in dispute at all. In his evidence, he has mentioned
about the collision between the S.T.Bus and the truck, and has
stated that thereafter, the truck was stopped and he came out of
the truck. While he was checking the damage to the truck, the
S.T.Bus driver i.e. the accused no.1, came towards the truck,
caught the shirt of the truck driver and dragged him out of the
driver cabin. The truck driver fell down and then stood up. The
S.T.Bus driver i.e. accused no.1 gave one slap to the truck driver
on his face, due to which the truck driver again fell down. By this
time, the conductor of the S.T.Bus and two passengers also came
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there and started assaulting the truck driver by giving fists blows
and kicks. By then, one police van came there from Bombay side.
The police took the truck driver to Khalapur Police Station. Salim
Mulla had met the deceased at Vaghire after two days. At that
time, he noticed that the eyes of Shabbir Patel were red and there
was swelling on his face. Shabbir Patel was also complaining of
pain in the stomach. Since most of the happenings viz., of the
collision between the said two vehicles, that the matter being
reported to the police after the collision, and a non-cognizable
case having been registered at the instance of Shabbir Patel on
14th December 1993 itself are not in dispute, the only question
that needs determination is whether the testimony of Salim Mulla
(PW9) is such, as cannot be accepted, believed and acted upon.
13 I am unable to hold so. On the contrary, testimony of
Salim Mulla is corroborated by the very fact that deceased Shabbir
Patel was sent to a doctor by the police on 14 th December 1993
itself. This certificate was produced before the court and tendered
in evidence (Exhibit 16). This certificate, which has been issued by
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Medical Officer attached to Primary Health Centre, Khalapur,
shows that deceased Shabbir Patel was brought to Primary Health
Centre by a Police Constable attached to Khalapur Police Station
and was examined by the Medical Officer at about 5.30 p.m. on
14th December 1993. Shabbir Patel was found to have consumed
alcohol but was not under the influence of alcohol. The history
that was given by him was of an assault by a hard and blunt object
and the record of his examination by the Medical Officer shows
that he complained of pain in head region, that there was swelling
and some redness in both the eyes and swelling near the right eye
was more. Since the learned Sessions Judge has not held the
accused persons guilty of having caused the death of Shabbir
Patel, it is not necessary to go into the nature of injuries or
consider the other medical evidence, which is available in the
testimony of Dr.Vijay Karambelkar (PW1), Dr.Jahangir Sayyad
(PW2) and Dr.Ranjit Mahanti (PW3). What is significant is that,
some injuries had been sustained by the deceased Shabbir Patel,
that the police had noticed the same, and had sent him to Primary
Health Centre for medical examination and treatment. Obviously,
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these injuries had been caused after the accident i.e. collision
between the aforesaid two vehicles.
14 The report made by Shabbir Patel on 14th December
1993 which was registered as a non-cognizable case, is also
relevant in this context. This report was also produced before the
court, tendered in evidence and marked as Exhibit 42. In this
report, Shabbir Patel had spoken about he being assaulted by the
driver and conductor of the S.T.Bus in question and two other
persons. The police had taken action on this report; and the fact
that such a report was made is, by itself, relevant.
15 The evidence of Javed Patel and Banubai Patel, son
and wife of Shabbir Patel, also shows that Shabbir Patel had
informed them of the assault by the driver and conductor of the
S.T.Bus and had complained of pain.
16 Irrespective of whether the statement of Shabbir Patel
would be admissible under the provisions of Section 32(1) of the
Evidence Act, in view of the somewhat unusual reasoning of the
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learned Sessions Judge, the fact remains that the lodging of a report
by Shabbir Patel immediately after the alleged incident, that he was
taken to a Medical Officer at the Primary Health Centre, where the
Medical Officer noted the injuries on his person, lends full
corroboration to the testimony of Salim Mulla, whose presence at
the time of the incident cannot be doubted at all. It is, therefore,
clear that the accused persons had assaulted the deceased after the
collision.
17 In view of this, the conviction of the accused persons
with respect to the offence punishable under Section 323 of the IPC
read with Section 34 thereof, cannot be said to be suffering from
any infirmity. Rather, there might have been a case for the
conviction of the appellants on a higher charge on the basis of the
view taken by the learned Sessions Judge, but since that issue is not
before me, the matter may be left at that. All that needs to be
emphasised is, whatever may be the dispute with respect to the
other aspects of the matter, that the accused persons had assaulted
the deceased on 14 December 1993 and had caused simple hurt to
th
him, cannot be disputed at all.
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18 The only question that now remains to be considered
is in respect of the sentence that was imposed upon the accused
persons. I find that, it was pleaded before the Sessions Judge that
they be given the benefit of the provisions of the Probation of
Offenders Act. The learned Sessions Judge declined to do so.
19 I have carefully considered the facts of the case. There
is no evidence to show the gravity of the assault and the role of
the accused nos.1 and 2 in the assault. There is no evidence to
show how long the assault was going on and there is nothing to
show that it was of a brutal nature. The assault occasioned
because of the collision between the two vehicles and was as a
result of the momentary anger felt by the accused persons. There
were two others also, who had taken part in the assault, but they
could not be traced. The accused no.2 has died during the
pendency of the present appeal, and therefore, is not available to
undergo the sentence.
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20 Mr.Marwadi submits that the accused no.1 is now of
65 years. He has already retired from service.
21 The incident had taken place about 22 years back.
Considering all the aforesaid aspects, in my opinion,
the substantive sentences imposed upon the accused persons
should be reduced to the period already undergone.
The conviction of the appellants with respect to the
offence punishable under Section 323 of the IPC read with Section
34 thereof is maintained.
However, the substantive sentences imposed upon
them are reduced to the period already undergone.
23 Subject to the reduction in the substantive sentences
imposed upon the appellants, the appeals are dismissed.
(ABHAY M. THIPSAY, J.)
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