Bombay High Court
Shambabu Lathujisingh Yadav vs The State Of Maharashtra on 3 March, 2016
Bench: A.M. Thipsay
907.APEALNo.4102013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.410 OF 2013
Shambabu Lathujisingh Yadav,
Age 20 years, Occu. Ice Cream Vendor,
R/o.Footpath in front of Hotel Apolo,
Colaba, Mumbai 400 001.
Presently in the custody of
the Kolhapur Prison. ... Appellant
V/s.
The State of Maharashtra,
(Through Colaba Police Station
C.R.No.44/2011) ... Respondent
.....
Ms.Geeta Anand, Advocate for the Appellant.
Mr.V.B.Konde-Deshmukh, APP for the Respondent/State.
....
CORAM : ABHAY M. THIPSAY J.
DATED : 3rd MARCH 2016.
ORAL JUDGMENT :
1. This Appeal is directed against the Judgment and
Order passed by the Assistant Sessions Judge for Greater Bombay
in Sessions Case No.790 of 2011 convicting the appellant of an
offence punishable under Section 307 of the Indian Penal Code
read with Section 34 of the IPC and sentencing him to suffer
Rigorous Imprisonment for 10 years and to pay a fine of
Rs.1000/-. There were two accused in the said case. The
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appellant was the accused No.1 therein. The accused No.2 - one
Kamarali - has been acquitted by the learned Assistant Sessions
Judge.
2. The prosecution case, as put forth before the trial
Court, in brief, be stated thus :
The appellant, one Atahussain Mohd. Hassan Shaikh
(PW1) and his cousin Arif Shaikh Mohd. Hanif Shaikh (PW6) are
all Ice Cream vendors, who carry on their business in the area near
Gate of India. There were some disputes between them which
arose over the business rivalry and in connection with the disparity
in the price of the ice-cream that used to be sold by them. On
16/05/2011, while the Atahussain and his cousin Arif were
proceeding on road from in front of Hotel Taj Mahal, one Kallu
Hasibali (PW7) met them and then they all proceeded further
together. The appellant and Kamarali - original accused No.2 -
met them. The appellant and the Kamarali threatened Atahussain
and Arif. The accused No.2 Kamarali caught Arif by his left arm
and directed the appellant to stab him. That the appellant
thereupon took out a knife which had kept near his waist, abused
Arif, said that he would finish him (Arif), and gave a blow of the
knife in the abdomen of Arif. Arif sustained a serious injury. A
part of his intestine came out. When Arif started shouting, the
appellant and Kamarali ran away. While running away with the
knife, the appellant was apprehended by police naik Laxman
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Sandav (PW2), who was on patrolling duty in that area.
Atahussain lodged a report with the police, which was treated as
the First Information Report and a Crime was registered.
Investigation was carried out, which resulted in filing of charge-
sheet against the appellant and the said Kamarali, alleging
commission of an offence punishable under Section 307 of the IPC
read with Section 34 of the IPC by them.
3. I have heard Ms.Geeta Anand, the learned counsel for
the appellant. I have heard Mr.V.B.Konde-Deshmukh, the learned
Additional Public Prosecutor for the Respondent/State.
4. I have carefully gone through the entire evidence
adduced during the trial and the impugned Judgment.
5. In his evidence, the informant Atahussain and the victim
Arif (PW6) did not implicate Kamarali Shaikh. Kamarali was,
therefore, acquitted by the learned Assistant Sessions Judge there
being no evidence to show his involvement in the alleged offence.
6. So far as the appellant is concerned, there is
overwhelming evidence against him. Atahussain (PW1) and Arif
(PW6) knew him. He has been named in the First Information
Report as the actual assailant. The evidence of Atahussain (PW1)
and Arif (PW6) is corroborated by the evidence of Kallu Shaikh
(PW7), who is also an eye-witness to the incident.
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7. The evidence of police naik Laxman Sandav (PW2)
shows that while patrolling at the material time, he caught the
appellant while the appellant was running with a knife in his
hand. The evidence also shows that the knife was blood stained.
The person apprehended by Laxman Sandav (PW2) has been
identified by him as the appellant.
8. I have carefully gone through the cross-examination of
these witnesses and I do not find that the version of any of these
witnesses has been shaken in any manner by the cross-
examination.
9. There is some other evidence against the appellant also
which is in the nature of disclosure statement made by him,
pursuant to which the shop from where he had purchased the
knife used in the commission of offence was found. The evidence
shows that similar knives were found in the said shop. I am,
however, not inclined to give much importance to this evidence.
10. The clothes of the victim and also that of the appellant
were taken charge of during the course of investigation. There
were stains of blood on them, which was revealed to be human
blood of group 'B', which is the blood group of the victim Arif
(PW6).
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11. After going through the evidence and the impugned
Judgment the conclusion arrived at by the learned Assistant
Sessions Judge the appellant had indeed assaulted victim Arif by
knife by giving a blow on his abdomen, appears to be correct.
Considering the nature of injury inflicted upon the victim, the part
of body selected for giving the blow and the nature of the weapon
used, the conclusion that the offence committed by the appellant
would be one punishable under Section 307 of the IPC also
appears to be correct. There is no challenge to the medical
evidence that the injury caused to the victim was sufficient in the
ordinary course of nature to cause death.
12. The only question that is seriously urged before me is
of the propriety of the sentence of Rigorous Imprisonment for 10
years as has been imposed upon the appellant. It is submitted that
the sentence is rather harsh and needs to be reduced.
13. It is submitted that the appellant comes from a lower
strata of the society and that he is poor. It is also submitted that
he is an orphan. It is also submitted that his age, at the material
time, was about 19 years and he had no past criminal record. I
find that the fact that the appellant is an orphan was pleaded
before the learned Assistant Sessions Judge also.
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14. Indeed, the appellant appears to be a poor person. It
also appears that the appellant has resiled from his original case
which was to the effect that the appellant and one Kamarali
(accused No.2) had assaulted him. The appellant, for reasons best
known to him, has given a clean chit to Kamarali during his evidence
in the trial.
15. Considering all the relevant aspects of the matter, I am
inclined to reduce the sentence imposed by the learned Assistant
Sessions Judge on the appellant.
16. It needs to be mentioned that the learned Assistant
Sessions Judge has committed an error in convicting the appellant
in respect of offence punishable under Section 307 of the IPC read
with Section 34 of the IPC. The prosecution case was that the
assault was in furtherance of the common intention of the
appellant and one Kamarali, but the learned Assistant Sessions
Judge having found that Kamarali was not involved in the alleged
incident, out to have convicted the appellant for an offence
punishable under Section 307 of the IPC simplicitor. The mention
of Section 34 of the IPC while convicting the appellant was
uncalled for, though that was the original charge as per the
prosecution case.
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17. In the result, the conviction of the appellant is altered
to that of an offence punishable under Section 307 of the IPC,
simplicitor.
18. The substantive sentence imposed upon the appellant
is reduced to the Rigorous Imprisonment for a period of eight
years.
19. Subject to the correction in the operative order as
regards the Section of Indian Penal Code under which the
appellant stands convicted, and the reduction of the substantive
sentence, as aforesaid, the appeal is dismissed.
(ABHAY M. THIPSAY J.)
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