Ahamed Aasif Fakih vs The State Of Maharashtra And Anr
2021 Latest Caselaw 8759 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                       INTERIM APPLICATION NO.1160 OF 2021
                                       in
                         CRIMINAL APPEAL NO.314 OF 2021

Ahamed Aasif Fakih                                        ...Applicant
                      Versus
1) The State of Maharashtra
2) Smt. Rumin Muktar Farid                              ...Respondents
                                  ....
Mrs. Manjula Rao with Ms Sweta Tandel i/b. Mr. G.J. Jain i/b. Momin
Mohd. Farooque Nisar for the Applicant.
Mr. S.V. Gavand, APP for the Respondent No.1-State.
Mr. Sudeep Pasbola for Respondent No.2.


                                   CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 5th JULY, 2021.

P.C.:-

This is an application under Section 389 of the Code of

Criminal Procedure, 1973 for suspension of substantive order of

sentence passed by learned District Judge-6 and Additional Sessions

Judge, Thane in Sessions Case No.284 of 2010 and to enlarge him on

bail.

2. The Applicant was tried for ofences punishable under

Sections 307, 392 and 506(2) of the Indian Penal Code, 1860 and

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Sections 3, 4 and 25 of the Arms Act and under Section 37(1) r/w 135 of

the Bombay Police Act. He has been held guilty of ofence under

Section 307 of the IPC and sentenced to sufer rigorous imprisonment

for ten years and fne of Rs.5,00,000/- i/d to undergo simple

imprisonment for six months. Aggrieved by the conviction and

sentence, the Applicant has fled an appeal, pending which he has

prayed for suspension of sentence.

3. Mrs. Manjula Rao, learned counsel for the Applicant submits

that the Applicant had not inficted any injury with an intention of

causing death of his wife. She further submits that when the Applicant

was diagnosed with cancer, his wife left him and initiated criminal

proceedings against him and his family members. She further contends

that the Advocate, who had already withdrawn his vakalatnama had

engaged himself in settlement talks. She submits that there is no

cogent evidence to prove that the Applicant had inficted any such

injury which was likely to cause death of the victim and that the medical

evidence is contradictory and does not inspire confdence. She submits

that the Applicant was on bail during trial and has not misused his

liberty.

4. Mr. S.V. Gavand, learned APP for the Respondent No.1-State

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and Mr. Sudeep Pasbola, learned counsel for the Respondent No.2 have

vehemently opposed the application. They contend that the evidence of

the victim as well as the medical evidence sufciently proves that the

Applicant had inficted a blow on the vital part of the body by means of

a dangerous weapon and has caused life threatening injuries. It is state

that the prosecution has proved the ofence under Section 307 of the

IPC and considering the gravity of the ofence the Applicant is not

entitled for bail.

5. The Applicant was married to the frst informant-Smt. Rumin

Mukhtar Farid. The marital discord between the Applicant and his wife

resulted in fling criminal as well as civil proceedings. The records

reveal that the Trial Court had requested the parties to explore the

possibility of an amicable settlement. Accordingly, Advocate for the

Applicant and the frst informant scheduled a meeting on 11/02/2010 in

the ofce of Advocate sasin Momin.

6. The case of the prosecution is that the accused came to the

ofce armed with a revolver and pointed the same on the forehead of

his wife Rumin, but the trigger did not work. The Applicant thereafter

went out of the ofce and returned with a dagger and inficted a blow

by dagger on the forehead of Rumin with an intention of causing her

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death. Smt. Rumin, wife of the Applicant lodged the FIR pursuant to

which Crime No.24 of 2010 was registered against the accused at

Bhoiwada Police Station for ofence punishable under Sections 307,

392, 506 (2) of IPC and Sections 3, 4 and 25 of the Arms Act and under

Section 37(1) r/w. 135 of the Bombay Police Act.

7. The learned Judge, after considering the evidence adduced

by the prosecution, held that the Applicant herein had inficted an

injury on the forehead of the frst informant with an intention of

causing her death. Learned Judge therefore convicted the Applicant for

ofence punishable under Section 307 of the IPC and sentenced him as

stated above.

8. The Applicant has been convicted for ofence under Section

307 of the IPC, which reads as under:

"307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fne; and if hurt is caused to any person by such act, the ofender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

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             ..."

9. It is to be noted that the essential ingredient of Section 307

of the IPC is the mens rea, which can be gathered from the nature of

the weapon, part of the body where the injury is inficted and the

nature of the injury caused. The burden is therefore on the prosecution

to prove that the accused caused the act with an intention or

knowledge and under such circumstances that of by that act, death was

caused he would be guilty of murder.

10. In the instant case, the evidence of the victim-Mrs. Rumin

indicates that as soon as the Applicant entered the ofce, he pointed a

country made revolver to the right side of her forehead but the trigger

did not work. The Applicant then picked up a 'Khanjir' from a plastic

bag and stated that "Tu Muze Cancer Huwa Isaliye Chhod Gai" and

swung the Khanjir which hit on the fngers of her right hand. She claims

that accused once again swung the Khanjir, which she tried to avoid but

it hit her forehead and she sustained bleeding injury with a fracture of

the skull.

11. The Applicant has been acquitted in respect of the other

ofences under the Indian Arms Act with a fnding that he was not

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found in possession of the revolver. As regards the assault by dagger

the evidence of the victim does not prima facie indicate that the

Applicant intended to infict a blow of dagger on the vital part of her

body. In fact, the evidence prima facie suggests that he had swung the

dagger and that it had hit the forehead of the frst informant. Thus, the

material on record does not prima facie indicate that the Applicant had

inficted an injury on the vital part of the body with an intention of

causing her death. Needless to state that in the absence of intention or

knowledge, which is an essential ingredient, prima facie there can be no

ofence under Section 307 of the IPC.

12. As regards nature of the injuries, the records indicate that

the victim was referred to IGM Hospital, Bhiwandi on the same date.

The evidence of PW4- Dr. Jayant Mule vis-à-vis the medical certifcate

(Exh.86) indicates that the victim had an incised wound of 12 cm x 3 cm,

bone deep on the anterior middle forehead caused by sharp object and

an incised wound with suspected fracture on exterior aspect of

Phalanges. The Doctor had not opined whether the injury was simple or

grievous in nature but stated that the same would be as per "surgical

opinion and C.T. Scan report". The records indicate that victim did not

get herself treated at IGM Hospital but got herself admitted in a private

hospital i.e. Prime Hospital at Bhiwandi.

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13. The medical certifcate (Exh.120) as well as the evidence of

PW-11 Dr. Namir Khalil Dond, who is a general surgeon indicates that

the victim was brought to the hospital on 11/2/2010 at 9.30 p.m. i.e. at

about the same time that is mentioned in the injury certifcate at

Exhibit- 86. The evidence of PW11 indicates that She had a CLW on the

entire forehead. This witness has stated that there is Orthopedic

surgeon, Neurosurgeon and Radiologist in the hospital. He has

admitted that the victim was not treated by Orthopedic or

Neurosurgeon. He has stated that no X-ray was taken though such

facility was available. The opinion of this Doctor that the victim had

sustained a fracture was thus based only on clinical examination.

14. It is also to be noted that he has admitted in the cross

examination that his cousin Taqdees Pathan is a business partner of the

frst informant. He has stated that he is not aware whether his father is

a witness in 498A proceedings against the Applicant. This witness had

not referred the victim to any other hospital, despite which the victim

did not get herself treated at Prime Hospital but on the same night got

herself admitted in Jupitar Hospital at Thane. The discharge summary

(Exh.187) of Jupitar Hospital states that the frst informant is a friend

and was brought from Bhiwandi with history of attack by husband with

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a chopper. She was treated by a plastic surgeon PW-12 Dr. Shyamol

Banerjee. The prosecution has not placed on record either the X-ray

report or the C.T. Scan report. This was relevant in view of the

discrepancy in the nature of the injury as described in the medical

certifcates (Exhs. 119 and 120), wherein the injury on the forehead is

described as CLW and the evidence of PW11, which indicates that the

victim had sufered an incised (chop wound). Though it is not essential

that bodily injury capable of causing death should have been inficted,

the nature of injury actually caused often gives considerable assistance

in coming to a fnding as to the intention of the accused. The medical

evidence does not prima facie disclose such intention.

15. The Applicant has raised strong grounds to challenge the

impugned judgment. The Applicant, who is sufering from cancer was

on bail during trial and he did not misuse the liberty granted to him.

Moreover, he has given an undertaking not to enter the area wherein his

wife Smt. Rumin Mukhtar is residing and /or conducting business and

that he will not contact her personally and/or through any other mode

or means. In view of the above and considering that fnal disposal of

the appeal is likely to take time, in my considered view this is a ft case

for suspension of sentence pending hearing of the appeal.

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16. Hence, the application is allowed on following terms and

conditions:

(i) The Applicant is ordered to be released on bail on

furnishing bail bonds of Rs.30,000/- with one or two

sureties in the like amount to the satisfaction of the Trial

Court.

(iii) The Applicant shall report to the Trial Court, once in six

months on the day/date specifed by the Trial Court, till

the appeal is fnally disposed of;

(iv) The Applicant shall keep the Trial Court informed of his

current address and mobile contact numbers and/or

change of residence or mobile details, if any, from time

to time;

(v) If there are two consecutive defaults in appearing before

the Trial Court, the learned Judge shall make a report to

the High Court and the prosecution would be at liberty to

fle an application seeking cancellation of bail.

17. The application stands disposed of in above terms.

(SMT. ANUJA PRABHUDESSAI, J.)