Sk Afroz Sk Abbas vs The State Of Mah.Thr.Pso Amravati
2017 Latest Caselaw 9292 Bom

 apeal467of04.odt                          1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.


                     CRIMINAL APPEAL NO.467 OF 2004


 Sk. Afroz s/o. Sk. Abbas,
 Aged about 20 years,
 R/o. Kamunja, Police Station Walgaon,
 District Amravati                                             ...APPELLANT


          ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Officer
 Nagpurigate, Police Station Amravati,
 District Amravati                                          ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. Firdos Mirza, counsel for the appellant.
 Mr. A.V.Palshikar, Additional Public Prosecutor for the respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                       :ROHIT B. DEO, J. 

DATE :05.12.2017

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 23.07.2004, passed by the 2nd Additional Sessions Judge,

Amravati, in Sessions Trial 37 of 2003, by and under which, the

appellant (hereinafter referred to as "the accused") is convicted of

offence punishable under section 307 of the Indian Penal Code

("IPC" for short) and is sentenced to suffer rigorous imprisonment

for a period of 10 years and to payment of fine of Rs. 1000/-.

2 Heard Shri. Firdos Mirza, the learned counsel for the

appellant and Shri. A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent / State.

3 The learned counsel for the accused Shri. Firdos Mirza

invites my attention to an application purportedly moved under

section 482 of Code of Criminal Procedure dated 30.11.2017,

which is signed and affirmed by both the injured / informant and

the convicted accused, the prayer clause of which reads thus:

"(i) grant permission to the applicants to compound the offence in Crime No. 125/2002 for the offence punishable under section 307 of IPC;

(ii) quash and set aside the impugned judgment and order dated 23.7.2004 passed by the 2nd Addl. Sessions Judge, Amravati, in Session Trial No. 37/2003; and

(iii) grant any other relief (s) as may be deemed just, fit and proper, under the facts and circumstances of the case in favour of the applicants".

4 The injured and the convicted accused have stated on

oath that in view of the inter-se relationship and the desire of the

respective families to have cordial and peaceful co-existence, the

offence may be compounded.

5 Pious as the intention may be, the prayer is

misconceived. I am afraid, that post judgment of conviction, there

is neither any law nor a precedent which would permit this Court

to compound the offence.

6 However, having closely scrutinized the evidence on

record, and having heard the learned counsel for the accused Shri.

Firdos Mirza and the learned Additional Public Prosecutor Shri.

A.V. Palshikar, I have no doubt whatsoever that the conviction of

the accused under section 307 of IPC is wholly unsustainable on

facts and in law. At the most, the accused could have been

convicted of offence punishable under section 323 of the IPC. I

can not, but observe, that both the accused who were then aged

18 and 19 years (accused 2 is acquitted by the learned Sessions

Judge) have suffered the agony of a trial and then the anxiety of

the prospect of facing a ten years jail sentence, which is

unfortunate.

7 The evidence on record would reveal, that

concededly, there appears to have been some altercation on the

date of the incident involving the injured / informant Sk.

Nasiruddin, who was then aged 17 years and the accused who was

then aged 19 years.

The injured, who is examined as PW 1 states that on

20.10.2002 at 10.00 a.m. when he was proceeding towards

M.I.D.C. from Kamunja on bicycle, the accused Sk. Nasiruddin and

Sk. Faruk (acquitted accused) accosted and abused the informant.

The accused were told by the informant that should they have any

dispute with the father of the informant, the accused should talk

with him. The deposition is that the accused and the father of the

injured had some dispute inter-se touching the accounts of a

Masjid. PW 1 states that he and the accused reached near the

weighing bridge, a truck was coming from opposite direction, the

accused kicked the bicycle of the injured saying "tk ej pqrds".

The injured fell down and came beneath the rear wheel of the

approaching truck, is the deposition.

8 The dying declaration of the accused was recorded by

the Executive Magistrate at Irwin Hospital. Since the accused

survived, the said statement would be akin to a statement

recorded under section 164 of the Code of Criminal Procedure and

the limited use would be either to corroborate the maker under

section 157 of the Indian Evidence Act or to contradict the maker

under section 145 of the said Act.

In the cross examination of PW 1 portion marked 'A' in the

said statement recorded by the Executive Magistrate was brought

to the notice of PW 1. The said portion reads thus:

"'ks- vQjkst gk lk;dyP;k leksj ;sowu eyk yksVys o eh iMyks- jksMoj iMyks rso<;kr Vzd vkyk - VzdP;k leksjpk pDdk ek>;k ik;koj lk;dyho:u pDdk xsyk R;keqGs eh t[keh >kyks "

The witness denies having made such a statement to the

Executive Magistrate, but then, the statement is duly proved in the

evidence of the Executive Magistrate who is examined as PW 6.

9 The evidence of PW 1 is not implicitly reliable,

exaggeration and over implication is obvious. The evidence of PW

1 is confidence inspiring only to the limited extent of the convicted

accused having kicked the bicycle. However, there is absolutely

no evidence on record to suggest much less prove beyond

reasonable doubt that the accused kicked the bicycle with the

intention that the injured would come beneath the rear wheel of

the truck or with the knowledge that such a result would

inevitably ensue. Indeed, the evidence of how and under which

circumstances did the injured / informant suffered the injury, is

quite blurred. The version of the injured in the evidence before

the Court and the statement recorded by the Executive Magistrate

is discrepant. I consider it extremely unsafe and indeed hazardous

to convict the accused of offence under section 307 of the IPC.

10 Even if the evidence of the injured that the accused

kicked the bicycle is accepted at face value, the only offence of

which the accused can be convicted is under section 323 of IPC.

The judgment and order impugned is set aside to the extent

the accused is convicted of offence under section 307 of IPC.

Instead, the accused is convicted of offence punishable under

section 323 of IPC. The accused has already undergone detention

for period of 2 ½ months, considering the fact that the accused

was 19 years old at the time of the incident which occurred 15

years ago, I deem it appropriate to sentence the accused to

punishment already undergone.

The appeal is partly allowed and is disposed of.

JUDGE

RS Belkhede