Bombay High Court
Sk.Isak S/O Sarwar & 4 Others vs State Of ... on 16 December, 2016
Bench: V.M. Deshpande
ApealS140.00 & 186.00
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.140 of 2000
ig AND
Criminal Appeal No.186 of 2000
A. Criminal Appeal No. 140 of 2000 :
1. Sk. Isak son of Sarwar,
aged 20 years,
2. Sk. Nisar alias Aalu son of
Sk. Sarwar,
aged 18 years,
3. Gafarkha son of Gafurkha,
aged 22 years,
4. Kifayatkha son of Anwarkha,
aged 23 years,
5. Sabirkha son of Nazirkhan,
aged 36 years,
all the appellants are residents
of Bembla Bk. P.S. Khallar,
Distt. Amravati. ..... Appellants.
Versus
::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:40:57 :::
ApealS140.00 & 186.00
2
State of Maharashtra,
through Police Station Officer,
Police Station,
Khallar,
Distt. Amravati. .... Respondent.
*****
Ms. D. V. Sapkal, Adv., holding for Mr. A.S. Kilor, Adv., for the
appellants.
Mr. M.K. Pathan, Addl. Public Prosecutor for respondent.
*****
B. Criminal Appeal No. 186 of 2000 :
State of Maharashtra,
through Police Station Officer,
Police Station,
Khallar,
Distt. Amravati. ..... Appellant.
Versus
1. Sk. Isak son of Sarwar,
aged 20 years,
[Ori. Accused No.2],
2. Sk. Nisar alias Aalu son of
Sk. Sarwar,
aged 18 years,
[Ori. Accused No.3],
3. Gafarkha son of Gafurkha,
aged 22 years,
[Ori. Accused No.4],
::: Uploaded on - 19/12/2016 ::: Downloaded on - 20/12/2016 00:40:57 :::
ApealS140.00 & 186.00
3
4. Kifayatkha son of Anwarkha,
aged38 years,
[Ori. Accused No.5],
5. Sabirkha son of Nazirkhan,
aged 36 years,
[Ori. Accused No.7],
all residents
Distt. Amravati.
of Bembla Bk. P.S. Khallar,
.... Respondents.
*****
Mr. M.K. Pathan, Addl. Public Prosecutor for Appellant-State.
Ms. D. V. Sapkal, Adv., holding for Mr. A.S. Kilor, Adv., for the
respondents.
*****
CORAM : V.M. DESHPANDE, J.
Date : 16th December, 2016
ORAL JUDGMENT :
01. These two appeals can conveniently be disposed of by this
common judgment, since both these appeals arise out of the Judgment
and Order passed by the learned Additional Sessions Judge, Achalpur,
ApealS140.00 & 186.00
in Sessions Trial No. 155 of 1991, dated 25th April, 2000.
02. Criminal Appeal No. 140 of 2000 is filed by the appellants
against their conviction and order of sentence which is imposed upon
them by the impugned Judgment, for the offences punishable under
Sections 148 and 323 read with Section 149 of Indian Penal Code, and
for that they are ordered to suffer Rigorous Imprisonment for three
months by each of them and to pay a fine of Rs. 500/- by each of them
and in default, to suffer further Simple Imprisonment for one month.
They are also convicted of the offence punishable under Section 148
read with Section 149, Indian Penal Code, and for that, they were
were ordered to suffer Simple Imprisonment for one month.
03. Criminal Appeal No. 186 of 2000 is filed by the State against
acquittal of the appellants in Criminal Appeal No. 140 of 2000 of the
offences punishable under Sections 324 and 307, Indian Penal Code.
04. During pendency of the present appeals, Appellant No. 3 -
Gaffarkha and Appellant No.4 - Kifayatkha in Criminal Appeal No. 140
of 2000 expired, as could be seen from the order dated 3rd December,
2013. As such, the appeal of Gaffarkha and Kifayatkha stands abated.
The facts giving rise to the present appeals are as under:-
ApealS140.00 & 186.00
05. PW 12 - Vithoba Nagre on 14th December, 1989 was
attached to Khallar Police Station in Amravati district, as a Police
Station Officer. On the said day, he got an information that one
Jalilkhan [PW 1] is injured, has sustained several injuries and is
admitted in the hospital. Therefore, he along with Police Sub-inspector
- Gawai [PW 11] and other police staff went to the hospital. There,
they noticed Jaillkhan and Sabirkhan [appellant no.4] were having
injuries and were admitted in the hospital. Therefore, he gave
requisition to the doctor to examine the patients. Shri Nagre also
directed PSI Gawai to obtain report of Jalilkhan [Exh.120]. On the basis
of the said oral report, a crime was registered vide Crime No. 105/1989
for the offences punishable under Sections 147, 148, 149 and 307 of
Indian Penal Code. The printed FIR is at Exh.160.
06. As per the oral report lodged by Jalilkhan, he was working as
a driver in Public Works Department of Zilla Parishad since last fifteen
years. On 14th December, 1989 around 9.00 - 9.15 a.m., when he was
going to Daryapur from his house to attend his duties, five-six persons
suddenly came in front of him near Masjid [mosque]. They were
armed with sticks and axes and they started assaulting him. Of them,
Shabir delivered a blow of axe on his head, whereas other persons,
ApealS140.00 & 186.00
namely Nisar alias Aaloo, Gafarkhan, Sayyad Hasan, Sheikh Isak and
Kifayatkhan assaulted him by means of sticks, due to which, he
received injuries. That time, Balu Sawai, Bhaskar Zaparde and
Jagannath Jawanjal witnessed the assault on him.
07. After being entrusted with the investigation, Vithoba Nagre
[PW 12] visited the spot and prepared Spot Panchanama and also
collected stones stained with blood, simple as well as blood smeared
earth. Exh.81 is the Spot Panchanama, whereas Exh.75 is the Seizure
Memo. He also recorded statements of the witnesses. On 14th
December, 1989, arrest of Kifayatkhan was made. Sabirkhan was
arrested on 31st January, 1990, whereas appellant nos. 2 to 4 were
arrested on 27th December, 1989 and the appellant no.5, as observed
above, was arrested on 14th December, 1989.
On 15th December, 1989, Shri Nagre seized axe from the
house of Sabbirkhan in presence of his sister [Exh.139 - Seizure
Panchanama]. He also seized sticks from Kifayat Khan. He completed
other usual investigations and filed the charge-sheet before the Court
of Law.
08. The learned Trial Court framed the charge against the
appellants and six others for the offences punishable under Section
ApealS140.00 & 186.00
307 read with Section 149, and also for the offences punishable under
Section 148 read with Section 149 and under Section 324 read with
Section 149 of the Indian Penal Code. The accused persons abjured
their guilt and claimed for their trial.
In order to prove its case, the prosecution examined in all
twelve witnesses and also relied upon various documents. The learned
Trial Court, after a full-fledged trial, convicted the original Accused No.
2 - Sheikh Isak, Accused No.3 - Nisar, Accused No.4 - Gaffarkha,
Accused No.5 - Kifayatkha and Accused No.7 Sabirkha of the offences
punishable under Section 323 read with Section 149, Indian Penal
Code, and also convicted them of the offences punishable under
Sections 148 and 149, Indian Penal Code. However, they were
acquitted of the offences punishable under Sections 148, 323 and 307
read with Section 149 of Indian Penal Code. Remaining accused
persons were acquitted of all the charges.
09. The judgment gave rise to the present two appeals. The
appellants are challenging their conviction, whereas the State wants
that their conviction should be under Section 324, instead of under
Section 323, Indian Penal Code.
10. I have heard learned Adv. Ms. D.V. Sapkal holding for Adv.
ApealS140.00 & 186.00
Mr. A.S. Kilor for the appellants in Criminal Appeal No. 140 of 2000 and
Mr. M.K. Pathan, learned Addl. Public Prosecutor for the State. With
their able assistance, I have gone through the record and proceedings
and notes of evidence minutely.
11. According to the prosecution, the incident of assault was
witnessed by Najmunnisa [PW 2], the wife of injured Jalilkhan,
Shrikrishna Sawai [PW 3], Balu Ubhad [PW 4] and Shankar Pachkande
[PW 9].
PW 9 - Shankar Pachkande, the other eye-witness has
turned hostile, and has not supported the prosecution at all.
12. Though PW 2 - Najmunnisa is examined as an eye-witness
to the assault on her husband, the learned judge of the court below
has disbelieved her as an eye-witness.
According to her evidence, on the day of the incident, her
husband proceeded with a tiffin box which she prepared, for attending
duty and that time, she was standing in front of her house and when
her husband - injured Jalilkhan reached near the Masjid, the accused
persons made an assault on him.
Her statement that when her husband was proceeding
towards Masjid, she was standing in the courtyard is a proved
ApealS140.00 & 186.00
omission. Further, she has admitted that on the way in between her
house and Masjid, there are houses on both sides. In her cross-
examination, she has admitted that when heard a loud noise of her
husband, she reached to the Masjid. That time, she noticed her
husband Jalil Khan was already on the ground. What is worth to note is
that her evidence is completely silent that from her house, the place of
incident can be seen. Further, the Spot Panchanama does not show
about scattering of the tiffin which Najmunnisa claimed to have
prepared and was with the injured.
13. The aforesaid re-appreciation of her evidence allows me to
confirm the finding of the learned Judge of the Court below that
Najmunnisa cannot be termed as an eye-witness.
14. In so far as PW 3 - Shrikrishna Sawai's evidence is
concerned, his evidence shows that on the day of the incident, he was
working with one Rashidkhan Pathan and was tying bullocks to the
bullock-cart. He noticed that wife of Jalil Khan was making a loud noise
and, therefore, he started running to that side following her. His
evidence further shows that, that time Accused No. 7 - Sabir Khan,
Accused No. 4 - Gaffarkha and Accused No. 3 - Sheikh Nisar alias
Aaloo attacked him by means of weapons in their hands, due to which
ApealS140.00 & 186.00
he fell down and sustained injuries. His evidence is completely silent
that he noticed the attack on Jalilkhan at the hands of the appellants.
Therefore, PW 3 - Shrikrishna Sawai cannot be termed as an eye-
witness in respect of the attack on PW 1 - Jalilkhan. However, his
evidence can be considered as an injured witness who was attacked by
the attackers.
15.
In so far as evidence of Balu Ubhad [PW 4] is concerned, his
evidence would go to show that he has not witnessed attack on either
Jalil Khan or on Shrikrishna; but he came to the spot when Jalilkhan
was lying on the ground. Therefore, he along with the brother of
Jalilkhan and others lifted Jalilkhan for giving medical treatment.
16. Learned APP Shri Pathan submitted that the appellants are
required to the convicted of the offence punishable under Section 324
in view of their conviction under Section 148 of Indian Penal Code.
17. The learned Judge of the court below, while acquitting the
accused persons of the offences punishable under Sections 324 and
307, noticed that in strict sense, the injuries are not proved. In the
present case, x-ray plates of injured Jalilkhan in respect of fracture to
tibia and fibula bones were not placed before the Court. The Injury
ApealS140.00 & 186.00
Certificate [Exh.128] in respect of Jalilkhan shows that there was no
fracture to his skull. The learned Judge noticed that there was no
fracture on the body of PW 3 - Shrikrishna and the injuries were simple
in nature. Further Dr. Purushottam Hole, who has examined the
patient - Shrikrishna, did not state that the injuries suffered by
Shrikrishna were grievous in nature. In that view of the matter, I see
no reason to upset the finding of fact recorded by the court below for
acquitting the appellants of the offences punishable under Sections
324 and 307, Indian Penal Code.
18. The evidence of Vithoba Nagre, Investigating Officer, shows
that when he got the information that Jalil Khan is admitted in the
hospital, he visited the said hospital along with police staff. There, he
noticed that along with Jalil Khan, one Sabir Khan was also admitted in
the hospital. This Sabir Khan is Accused No.7 who is convicted by the
court below.
According to the learned counsel for the appellants, on the
day of the incident, there was a scuffle between two groups and in that
Sabir Khan [Accused No.7] also received injuries. It would be useful to
refer to the portion as appearing in the evidence of Jalilkhan during the
course of his cross-examination, which reads thus:-
"I know Balu Jawanjal, Jagannath Jawanjal,
Bhaskar Zaparde, Shrikrishna Ujjainkar and Shrikrishna
ApealS140.00 & 186.00
Sawai. They are the resident of my village. It is not
correct that I along with these five persons had attached
on Sabirkha and Kifayatkha and tried to commit the
murder of them. But it is true that on the report of
Nasirkha a father of Sabirkha there had been
registration of the offence against me and these five
persons. It is true that Sabirkha and Kifayatkha both are
the accused in this matter and that these five persons
are also the witness in this matter. ....."
From the aforesaid, it is clear that a case is registered against Jalilkhan
and Shrikrishna [PW 3] on the basis of the report lodged by Nasir Khan,
father of Sabirkhan. The said fact is also admitted by the Investigating
Officer as it could be seen from the following:-
"It is true that I also investigated the offences in Crime
No. 106/89 for the offences under Sections 147, 148,
149, 324, 337 and 107 against Jalilkhan and others."
19. Though PW 1 - Jalil Khan claimed that he was admitted in
the hospital for about twenty days, no document is placed on record in
that behalf.
During the course of the cross-examination of Jalil Khan, a
suggestion was given to him that he along with others gathered
unlawfully and attacked Kifayatkhan and Sabir Khan. The said
suggestion is denied by him. Not only that he has stated that he is not
aware as to whether there was any injury to them or not.
The aforesaid claim of Jalilkhan stands falsified in view of
registration of the crime against him and other witnesses vide Crime
ApealS140.00 & 186.00
No. 106/89, as admitted by Vithoba Nagre [PW 12]. Not only that,
Vithoba Nagre has stated in his examination-in-chief itself that when
he reached the hospital, he noticed that not only Jalil Khan was
admitted, but Sabirkhan [accused no.7] was also admitted in the
hospital.
20.
Sabirkhan must not have been admitted by the Medical
Officer just for that. He must have received injuries warranting his
admission as an indoor patient. Not only that, Shri Nagre has stated in
Examination-in-Chief that he gave requisition to doctor for their
examination. However, for the reasons best known to the prosecution,
the Injury Certificate of Sabirkhan is not coming on record. What was
the nature of injuries is not brought on record.
The law on this aspect is well settled by Their Lordships of
Apex Court in Lakshmi Singh & others Vs. State of Bihar [AIR
1976 SC 2263]. The ratio of the said case is that non-explanation of
the injuries sustained by the accused at or about the time of
occurrence or in the course of altercation is very important
circumstance and suppression of the injuries shows that the
prosecution has suppressed the genesis and the origin of the
occurrence and has failed to present true version. Further, Their
Lordships of the Apex Court ruled that the witnesses who have denied
ApealS140.00 & 186.00
the presence of the injury on the person of the accused, are lying and,
therefore, their evidence is unreliable. In the present case, Jalilkhan
[PW 1] has shown ignorance about any of the injuries suffered by
Sabirkhan which claim stood falsified as observed in preceding
paragraphs. In that view of the matter, according to me, the
appellants in Criminal Appeal No. 140 of 2000 are entitled for the
benefit of doubt, since the evidence shows that the injuries were
suffered by PW 1 - Jalil Khan and PW 3 - Shrikrishna in altercation
between the two groups. Further, it is also proved on record that
Sabirkha [original accused no.7] has also received injuries which
remained unexplained. Therefore, the prosecution, in my view, has
utterly failed to prove that which party was an aggressor. Hence the
appellants are entitled for benefit of doubt. That leads me to pass the
following Order:-
ORDER
[a] Conviction and sentence awarded to the
appellants for the offences punishable under
Sections 148 and 323 read with Section 149 of the
Indian Penal Code are hereby quashed and set
aside by quashing and setting aside the Judgment
and Order dated 25th April, 2000 passed by
ApealS140.00 & 186.00
Second Additional Sessions Judge, Achalpur in
Sessions Trial No. 155 of 1991.
[b] Their bail bonds stand cancelled. The fine
amount, if any, paid by the appellants be
refunded to them.
[c] Criminal Appeal No. 186 of 2000 filed by the State
stands dismissed.
Judge
-0-0-0-0-
|hedau|
