Bombay High Court
State Of Maharashtra vs Mohd.Sadiq Sk.Badu Muslim & 2 ... on 29 August, 2017
Bench: Swapna Joshi
1 Judg. 290817 apeal 372.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.372 of 2001
The State of Maharashtra
through Police Station Officer Paratwada. .... Appellant.
-Versus-
1] Mohd. Sadiq Sk. Badu, Muslim
aged 23 years.
2] Mohd. Sabir Sk. Badu, Muslim
aged 26 years,
3] Babbu @ Salimkha s/o Ismailkha, Muslim,
aged 41 years,
All cultivators R/o Bilanpura, Achalpur City,
Tq. Achalpur, District Amravati. .... Respondents.
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Mrs. S.Z. Haider, Additional Public Prosecutor for State.
Mr P.W. Mirza, Counsel for respondents.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 29
August, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant-State
against the judgment and order passed by the learned Ad hoc Assistant
Sessions Judge, Achalpur in Sessions Trial No.45 of 1997 delivered on
14-08-2001, thereby acquitting the respondents/accused of the offence
punishable under Section 307 r/w 34 of the Indian Penal Code.
2 Judg. 290817 apeal 372.01.odt
2] I have heard Mrs. S.Z. Haider, the learned Additional Public
Prosecutor for the State and Mr. P.W. Mirza, the learned Counsel for the
respondents. I have carefully gone through the record of the case.
3] The prosecution case can be summarized in nutshell as
under :-
(PW-1) Complainant Ramesh Tulshiram Bundele as well
as the accused persons were the residents of taluka Achalpur. On
08-11-1996, in between 6.00 pm to 7.00 pm, a quarrel took place between
complainant's son (PW-3) Anup and Sadiq (accused no.1) and Sabir
(accused no.2) for the reason that accused nos. 1 and 2 obstructed
PW-3- Anup from taking the shebuffaloes at cattle pond. PW-3 informed
about the said incident to his father (PW-1) Ramesh on telephone. On
receipt of the said message, (PW-1) Ramesh proceeded to his house.
At that time, the people from the locality pacified PW-3 as well the
accused nos.1 and 2. Thereafter, at about 9.30 pm, PW-1 was having tea
at the hotel of one Chaudhary, near Laxmi talkies. At that time, Sadiq
(accused no.1), Sabir (accused no.2) and their maternal uncle Babbu @
Salim (accused no.3) arrived at the hotel. The accused persons said that
PW-1 had become very furious. On saying this, suddenly accused no.3
dealt a sickle blow to PW-1, Sadiq (accused no.1) dealt a knife blow on
his stomach and Sabir (accused no.2) caught hold of PW-1. PW-1
screamed as 'save, save'. On hearing the hue and cry of PW-1, the
people from the locality gathered at that place and intervened the quarrel.
3 Judg. 290817 apeal 372.01.odt
4] At the relevant time PSI-Arjun Berad was PSI at Paratwada
Police Station. He referred PW-1 to the Cottage Hospital at Achalpur for
medical treatment (Exhibit-26). PW-10 then made enquiry with the
(PW-5) Dr. Ashok Thakary, the Medical Officer as to whether PW-1 was
in a fit condition to give his statement. On obtaining the opinion of PW-5
that the patient was in conscious condition and able to give his statement,
PW-10 recorded the complaint of Ramesh (PW-1). On the basis of the
said complaint, he registered the offence under Section 307 r/w 34 of the
Indian Penal Code. The Medical Officer, Cottage Hospital, Achalpur then
referred the PW-1 to General Hospital, Amravati (Irvin Hospital). PW-1
was admitted in the said hospital from 08-11-1996 to 24-11-1996. On
09-11-1996, the statement of PW-1 was recorded by the Special Judicial
Magistrate. Thereafter, PW-10 was handed over the charge of further
investigation to (PW-11) PSI Ujjwal Gaikwad. On 09-11-1996, (PW-11)
PSI Ujjwal Gaikwad arrested Mohd. Sabir (accused no.2). Accused no.2
showed his willingness to point out the place where he had hidden the
weapons which were kept in the wooden box in his house. The
memorandum panchanama was drawn accordingly (Exhibit-51). PW-11
then took charge of the said weapons i.e. razor, knife and sickle from the
house of accused no.2 in the presence of two panchas vide Exhibit-52.
PW-11 then collected the clothes of injured Ramesh (PW-1) vide
panchanama (Exhibit-28). PW-11 recorded the supplementary statement
of injured Ramesh. Then he handed over the investigation to (PW-12)
API- Shankarsingh Rajput. PW-12 arrested the accused no.1. He took
4 Judg. 290817 apeal 372.01.odt
charge of his clothes vide panchanama (Exhibit-57). PW-12 visited the
place of incident and recorded the spot panchanama (Exhibit-41). He
arrested Sabir (accused no.2) as well as Babbu (accused no.3) on
09-11-1996. During the course of investigation, PW-12 recorded the
statements of witnesses. After the completion of investigation, the
chargesheet came to be filed. The case was committed to the Court of
Sessions. The learned trial Judge framed the charge. After conducting
the trial and analysing the evidence, the learned trial Judge acquitted the
accused as aforesaid.
5] Mrs. S.Z. Haider, the learned A.P.P. vehemently argued that
the judgment of the trial Court is illegal and perverse and as much as the
learned trial Judge has failed to consider the evidence of the injured as
well as the eye witnesses. She contended that the learned trial Judge
ought to have convicted the accused, on the basis of the testimony of the
injured and eye witnesses and would have considered that the injured has
received so many injures on his vital part of the body.
6] Mr. P.W. Mirza, the learned Counsel for the accused
canvassed that no doubt the injured has deposed before the Court and
stated about the injuries received by him, however, the injures are not
corresponding to the weapons taken charge by the Police at the instance
of accused no.2 Sabir. He further contended that there are many
discrepancies in the testimony of injured as well as the alleged eye
witnesses which go to the root of the case and create the entire
prosecution case doubtful.
5 Judg. 290817 apeal 372.01.odt
7] In order to consider the rival contentions of the learned APP
as well the learned Counsel for the accused, it would be advantageous to
go through the testimony of the prosecution witnesses; Ramesh (PW-1),
Narayan (PW-2) and Dr. Ashok (PW-5) who is the Medical Officer.
8] According to PW-1, on the date of incident at 6.00 to 7.00
pm, he along with his wife had gone to the field. Shebuffaloes of one
Sakhare were grazing in his field. Therefore, he asked his son Anup
(PW-3) for taking the shebuffaloes at cattle pond. Thereafter his son
Anup had taken that shebuffaloes towards the cattle pond. While PW-1
with his wife returned to his house, after about half an hour he received
phone call from his son (PW-3) that accused nos. 1 and 2 restrained him
from taking the shebuffaloes in the cattle pond. PW-1 proceeded to
Bilanpura. He noticed that 5/6 persons had gathered at that place. He
convinced that shebuffaloes were not belonging to them but they were
belonging to one Sakhare. The people from the locality gathered there
and they pacified them. Thereafter PW-3 Anup lodged the complaint with
Achalpur Police Station, regarding the obstruction by the accused nos. 1
and 2 for keeping shebuffaloes in the cattle pond. At about 7.30 pm
PW-1 was near Laxmi talkies in a hotel. While he was having tea with his
friend Habib Shamsherkha, Sabir (accused no.2) appeared before him
and suddenly Sabir inflicted injury by means of razor on his neck.
Thereafter, Sabir (accused no.2) caught hold of his waist. Accused no.2
came there and inflicted the injury by means of small knife on his
stomach. Accused no.3 dealt a blow of sickle on his left hand. PW-1
6 Judg. 290817 apeal 372.01.odt
then came on road and by auto rickshaw he went to Paratwada Police
Station. The police from Paratwada Police Station took him at Cottage
Hospital. The statement of PW-1 was recorded by the Police in the
Cottage Hospital (Exhibit-26). The Medical Officer from the Cottage
Hospital referred PW-1 to Irvin Hospital, Amravati.
9] On careful scrutiny of PW-1 it is noticed that there are
discrepancies in his statement with regard to the fact that accused no.1
came to that place and obstructed him and threatened him with dire
consequences. There is also an improvement in his version that his
father came to that place and pacified them. According to PW-1 after
having tea, he noticed that suddenly Mohd. Sabir (accused no.2) came to
that place and inflicted injury on his neck by means of razor and accused
no.2 caught hold of his waist. After making an improvement in his version
he stated that accused no.2 came there and inflicted injury on his stomach
by means of small knife while accused no.3 dealt a sickle blow on his left
hand. If the First Information Report (Exhibit-26) is compared to the
testimony of PW-1, it is noticed that there is glaring discrepancy with
regard to the role of accused no.2 that accused no.2 give a razor blow on
his neck. Similarly, there is no mention in FIR about accused no.3 giving
a blow of sickle on his left hand or neck. The report (Exhibit-26) reveals
that Babbu @ Salim Khan (accused no.3) dealt a sickle blow to PW-1.
The accused no.3 dealt a knife blow to his stomach and accused nos. 1
and 2 were caught hold of his waist. These are the improvements made
by PW-1 while deposing before the Court. While giving the statement
7 Judg. 290817 apeal 372.01.odt
before the Special Judicial Magistrate, the PW-1 made an improvement
by stating that the accused no.2 dealt a razor blow on his neck, gave fight
on his face and dealt a knife blow on his stomach and accused no.3
Babbu @ Salim Khan dealt a Sickle blow on his hand and neck. PW-1
narrated the improved story that accused no.2 gave a fight on his face
and accused no.3 dealt a sickle blow on his hand and neck. The
supplementary statement of PW-1 indicates that there was an
improvement in the version of PW-1 to the effect that the Mohd. Sabir
(accused no.2) dealt a razor blow on his head, face and back. In the
supplementary statement he has stated that Sadiq (accused no.1) dealt a
knife blow on his stomach and Babbu (accused no.3) dealt a sickle blow
on his left hand wrist. Thus, there are improvements in the version of
PW-1. As per the statement recorded by the Special Judicial Magistrate
PW-1 stated that the accused no.3 dealt a sickle blow on his neck and
accused no.2 did not give fight on his mouth. Thus there is no
consistency in the testimony of PW-1 as compared to Exhibit-26 i.e the
statement of PW-1 before the Executive Magistrate and the statement
recored by the Police. All these discrepancies go to the root of the case
and creates a serious doubt about the alleged incident and the manner in
which the alleged incident had taken place.
10] Narayan (PW-2) deposed before the Court that at about
9.30 pm PW-1 met him near Laxmi talkies. They both had tea at tea
stall. After having tea, he went to the grocery shop for bringing articles.
After some time he witnessed from the shop that people had gathered,
8 Judg. 290817 apeal 372.01.odt
therefore, he rushed to that place. He saw that the accused were beating
to PW-1 by means of sickle, knife and razor. He asked not to beat PW-1.
Thereafter, the accused persons fled away from that place. On careful
scrutiny of the testimony of PW-2 it is found that he has not witnessed
the actual incident and it appears that he reached the place of incident
after the incident was over. PW-2 specifically stated that it has not
happened before him while taking tea that accused no. 1 dealt a knife
blow, accused no.2 dealt a razor blow and accused no.3 dealt a sickle
blow to PW-1. He admitted that he had not seen as to which accused
had razor, which accused had knife and which accused had sickle with
him. He could not see as to by which weapon the accused had dealt the
blows on PW-1. He admitted that he had not stated the names of the
accused to the Police. The testimony of PW-2 does not inspire confidence
and from his testimony it can be simply gathered that he reached to the
place of incident after the actual incident of assault was over.
11] Now coming to the Medical evidence. The prosecution has
heavily relied upon the evidence of (PW-5) Dr. Ashok Thakare. PW-5
deposed that he examined patient Ramesh and noticed the following
injuries on his person.
"1) Incised wound on right epigastric region, cavity
deep horizontialy placed, sized 7 inches x
2 inches x cavity deep.
2) Incised would on right fore-arm, transverly
placed size 3 inches x 1 inch into boney deep.
9 Judg. 290817 apeal 372.01.odt
3) Incised wound on left eyebrow, vertically placed
size 4 Inches x ½ x ½ Inches.
4) Incised wound on forehead, transverly placed
size 1 Inch x ½ and ½ Inch.
5) Incised wound on left thumb 1 Inch x ½ Inch x
½ Inch.
6) Incised would below left eye 1 ½ x ¼ x ¼
Inches bleeding positive.
7) Incised wound Horizontially in direction on
neck right side below mandibular angle towards
back side up to survical spine. Size 8 x ½ x ¼
Inch. It was fresh and bleeding.
8) Incised wound on upper side of scalf vertically
placed size 2 inch x ½ x ½ Inch fresh bleeding
was positive.
9) Incised would on 1 Inch front of right tear
vertically placed 4 x ½ x ¼ Inch It was fresh."
12] PW-5 opined that all the injures were caused to the patient
by hard and blunt object. He issued Medical Certificate of (PW-1)
Ramesh (Exhibit-38). PW-5 then referred the patent to General Hospital,
Amravati. PW-5 further deposed that, on 20-11-1996, the Police brought
the weapons and asked his opinion whether the injuries mentioned in the
certificate were possible by the referred weapons. PW-5 opined that the
injuries on the person of Ramesh were possible due to referred weapons.
10 Judg. 290817 apeal 372.01.odt
He issued the certificate in this regard (Exhibit-39). During the cross
examination PW-5 has admitted that, he had not mentioned as to by
which particular weapon the injury was caused to the victim. He admitted
that he had not indicated the width of any of the weapons. PW-5
specifically stated that whoever dealt a blow by knife to the stomach it will
be stab injury by straight and for the length of 4 to 7 inches injury the
weapon ought to have been required more than 4 inches in length. He
further stated that he does not remember whether the weapons were
brought in a sealed condition or not. The testimony of PW-5 is
inconsistent with the evidence that the seized weapon knife
admeasuring 7 inches x 2 inches which is admeasuring 3 inches x 2.5
inches is not sufficient to cause the injury admeasuring 7 inches x 2
inches. From the testimony of PW-5 it is not clear as to which particular
injury received by PW-1 was caused by the weapon like knife, razor and
sickle. The size of the weapon does not match and correspond with the
dimensions of the injuries mentioned by PW-5.
13] In this context the testimony of ASI Shankarsingh (PW-12) is
very important. He had admitted in his cross examination that there was
difference relating to the measurement of the weapons mentioned in the
seizure memo and the measurement taken by the Medical Officer PW-5
(Exhibit-52). Exhibit 39 indicates that PW-5 has examined and measured
the weapons referred to him by the Investigating Officer (PW-12). PW-5
had given the measurement of razor as the length was 2.5 inches sharp
edged and its handle length was 2.5 inches. The length of the handle of
11 Judg. 290817 apeal 372.01.odt
knife was 2.5 inches while the length of sharp edged knife was 3 inches
and the blunt edge was 5 inches. Thus, the length of the shape edge of
the sickle was 8.5 inches. In this context the seizure panchanama of the
weapon (Exhibit-52) depicts the length of razor was 7 inches and length
of the handle was 4 inches and 2 inches was the sharp edge. The length
of the knife was 5.5 inches and handle was 2.5 inches and sharp edge 3.5
inches. The length of the sickle was shown as 20.5 inches and the sharp
edge is 6.5 inches. There is certainly discrepancy in the description and
size of the weapons seized under seizure panchanama (Exhibit-52) and
the measurement taken by the Medical Officer (PW-5) at Exhibit 33.
Thus, there is a glaring discrepancy in the description of the weapons
given by the Investigating Officer (PW-12) and the weapons which were
examined by the Medical Officer (PW-5). Similarly, there is discrepancy in
the measurement of the weapons and the injuries explained by the
Medical Officer (PW-5). In view of the discrepancies, it is doubtful,
whether the weapons which were taken charge by the Investigating Officer
are the same weapons which were used in the offence by the accused
persons while inflicting injuries on the complainant. As far as the seizure
of the weapon is concerned, the testimony of PW-12 reveals that he had
admitted in his cross examination that on 09-11-1996 to 11-11-1996 all the
three accused told him that they do not know at which place they had
kept the weapons. Thus, the seizure of weapons is also doubtful.
14] On perusal of the entire evidence led by the prosecution, the
prosecution case appears to be doubtful even the Medical Officer (PW-5)
12 Judg. 290817 apeal 372.01.odt
has not opined as to whether any of the injury was sufficient to cause
death of the complainant. There are glaring discrepancies in the
testimony of PW-1 with regard to the incident. PW-1 although stated that
he has received the injury on his head, however, he has not whispered as
to who was the perpetrator of the said head injury. The testimony of
Dr. Baliram (PW-13) who is the Radiologist does not disclose any injury
to the head of victim. PW-13 did not find any injury to the skull of the
patient.
15] In view of the facts and circumstances above, it can be said
that the prosecution has failed to prove that the accused had intention to
commit murder of the complainant (PW-1). The other alleged eye
witnesses do not throw any light on the aspect of the incident. In view of
the facts and circumstances, the appeal deserves to be dismissed. There
is no perversity or illegality noticed in the judgment of the trial Court. It is
well settled principle of law in an appeal against order of acquittal, if two
views are possible on the basis of material available on record, view taken
by trial Court in favour of accused should not be disturbed unless the said
view is illegal or perverse. In my opinion, the learned Judge has correctly
appreciated the facts brought on record by the prosecution. Nothing is
brought on record by the prosecution, to intervene in the judgment and
order of acquittal passed by the learned trial Judge. Consequently, the
appeal fails and it is dismissed.
JUDGE
Deshmukh
