Bombay High Court
Mukhtar Ahemad Raziuddin Shaikh vs The State Of Maharashtra And Anr on 15 January, 2018
Bench: Anuja Prabhudessai
Megha 7_apeal_1171& 1178__2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1171 OF 2008
Raju @ Riyaz Ahmad Mohd. Amin
Shaikh ...Appellant
Versus
The State of Maharashtra & Anr. ...Respondents
WITH
CRIMINAL APPEAL NO.1178 OF 2008
Mukhtar Ahemad Raziuddin Shaikh ...Appellant
Versus
The State of Maharashtra & Anr. ...Respondents
.....
Mr. Abhaykumar Apte for the Appellants.
Ms A.A. Takalkar, APP for the Respondent No.1-State.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED: 15th JANUARY, 2018.
JUDGMENT:-
The Appellants, were the accused Nos.7 and 5 in Sessions
Case No.187 of 2003 and who shall be hereinafter referred to as
accused Nos.7 and 5 respectively, have challenged the judgment and
order dated 8th October, 2008 whereby the learned Ad-hoc Additional
Sessions Judge, Greater Bombay, Sewree, has convicted them for
offence punishable under Section 324 r/w. 34 of the IPC and sentenced
to undergo rigorous imprisonment for three years.
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2. The brief facts necessary to decide these appeals are as
under:-
The first informant-PW1-Kadar Khan had lodged a FIR dated 27 th
November, 2002 that at about 7.30 p.m. to 7.45 p.m. while he was
proceeding towards his shop, he accidentally dashed against Babloo
Shaikh. Said Babloo Shaikh pushed him and slapped him. PW1
narrated the incident to his elder brother PW3-Pappu. Said Pappu
went to Babloo Shaikh to enquire about the incident. Babloo
threatened him. Pappu thereafter proceeded towards the police station
to complain about the incident. Sometime thereafter Babloo Shaikh
went to the shop of the first informant alongwith these accused and
some others. They were armed with weapons like iron rod, stump,
chopper, etc. They assaulted the first informant and his brothers and
caused them grievous injuries.
3. PW9-PSI Dilip Gaikwad, who at the relevant time was
attached to Malvani Police station, had received an information that
there was a fight between two groups and that some persons were
injured and were taken to Bhagwati Hospital. He went to the spot
alongwith other police personnel and verified that 8 persons were
injured. PW10-API-Shinde, who was on night duty at Malvani Police
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Station was also informed about the incident. The first informant
PW1-Kadar Khan went to the police station at 11.00 p.m. and lodged
the FIR against these two accused and five others. PW10-API Shinde
recorded the FIR at Exhibit-17. He recorded the statements of the
other injured persons, conducted panchanama and seized the
incriminating material. Upon completion of the investigation, he filed
a charge sheet against these two accused and five others for
committing offence under Sections 143, 144, 147, 148, 324, 326 and
427 r/w 149 of the IPC.
4. On the same date the accused had also lodged a report
against the PW1- Kadar Khan and his brothers, pursuant to which
crime was registered against them for causing death of Mainoddin.
Upon completion of the said investigation, charge sheet was filed
against PW1-Kadar Khan and his brothers for offence under section
302 of the IPC. The case being Sessions triable, was committed to the
Court of Sessions. Since the cross complaint being Sessions Case
No.186 of 2003 filed against the first informant was committed to
Sessions Court, Sessions Case No.187 of 2003 filed against these
accused and others was also committed to the Court of Sessions.
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5. Charge was framed and explained to these accused. They
pleaded not guilty and claimed to be tried. Prosecution in support of
its case examined 11 witnesses. The statements of the accused were
recorded under Section 313 of the Cr.P.C.
6. Upon considering the evidence on record, the learned
Sessions Judge, acquitted the other accused of offence punishable
under Sections 143, 144, 147, 148, 326 and 427 r/w. 149 and 324 r/w.
34 of the IPC and acquitted accused Nos. 5 and 7 of offence punishable
under Sections 143, 144, 147, 148, 326 and 427 r/w. 149 of the IPC.
The accused Nos.5 and 7 were convicted for offence punishable under
Section 324 r/w. 34 of the IPC. Being aggrieved by this conviction and
sentence, the accused Nos.7 and 5 have filed these Appeals.
7. Heard Mr. Abhaykumar Apte for the Appellants and Ms A.A.
Takalkar, APP for the Respondent-State. Perused the records and
considered the submissions advanced by the learned counsels for the
respective parties.
8. It is to be noted that the charge against the accused was
that they alongwith others had formed an unlawful assembly with a
common object of inflicting injury on the first informant and his
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brothers. It was alleged that in furtherance of the common object, this
accused alongwith five others had assaulted the first informant and his
brothers by means of deadly weapons. Having considered the evidence
adduced by the prosecution the learned Trial Judge held that
prosecution has failed to establish that the accused had formed an
unlawful assembly with a common object of assaulting PW1-Kadar
Khan and other injured witnesses and hence, acquitted them of
offences punishable under Sections 143, 144, 147, 148, 326 and 427
r/w. 149 of the IPC. These accused have been convicted for their
individual acts, relying upon mainly on the testimony of the injured
witnesses viz. PW1, PW2, PW3, PW4 and PW5.
9. It is to be noted that PW1 has deposed that on 27.11.2002
at about 7.30 to 7.45 while he was proceeding towards his shop, he
had accidentally dashed against Babloo Shaikh. When his brother
Pappu went to police station to inform about the incident thereafter
said Babloo Shaikh came to his shop alongwith these two accused and
others. PW1 has stated that all the accused persons started beating
them by iron rods, stumps, choppers, etc. According to PW1 the
accused No.7-Raju and accused No.5-Mukhtar had given a blow of iron
bar on his head. He further claimed that Raju had given a blow of
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hockey stick on his head. He had not specified as to which of these
accused had assaulted him with an iron rod. He was also unable to
give description of the weapon. He further states that he was assaulted
from behind and as such he could not see the assailant properly. PW2
further claims that he was assaulted by Raju and Mukhtar by iron bar
and wooden sticks.
10. It is to be noted that in his statement under Section 161 of
Cr.P.C. PW1 had not stated that Raju and Mukhtar were armed with
wooden sticks. This ommission had been brought on record. It is
pertinent to note that PW2 does not mention as to who had assaulted
PW1. PW4 has also given a different version. He claims that all the
accused had entered the shop and had assaulted PW1 and others by
means of iron rods, hockey sticks, chopper, etc. He claims that he was
assaulted by Ibrahim. The testimony of this witness does not indicate
that these two accused were involved in inflicting injury on PW1 or
PW2.
11. PW5 has also stated that all the accused had come to their
shop with hockey sticks, stump, iron rod and assaulted him and his
brothers and that they had sustained injuries. This witness claims that
he was assaulted by Sajjad Mukhtiyar and Javed. The testimony of this
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witness does not indicate that accused No.7 Raju had inflicted injury
on him and /or other injured witnesses. He claims that the accused
No.5-Mukhtar had assaulted him by stump. Evidence of this witness
indicates that accused Mukhtar was armed with stump and the case of
the other witnesses is that Mukhtar was armed with iron rod or hockey
stick. The evidence of this witness is not consistent with the evidence
of the other eye witnesses. It is thus evident that each of these
witnesses have given a different version. Suffice it to say that no
conviction can be recorded on the basis of such inconsistent evidence.
The conviction therefore, cannot be sustained.
12. Under the circumstances, the appeals are allowed. The
impugned judgment and order dated 8 th October, 2008 is quashed and
set aside. Accused Nos.7 and 5 are acquitted of offence under Section
324 r/w 34 of the IPC. Since the accused have already released from
jail, no further order is required.
(ANUJA PRABHUDESSAI, J.)
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