Shaikh Pappu s/o Kalimuddin Jahagirdar vs The State of Maharashtra

This appeal is directed against the judgment and

order of conviction dated 15.3.2002, passed by learned III Adhoc

Additional Sessions Judge, Aurangabad in Sessions Case

No.425/1999, wherein accused Nos.1 and 2 were convicted for

the offence punishable under Section 307 read with Section 34 of

the Indian Penal Code and they were sentenced to suffer rigorous

imprisonment for three years and fine of Rs.500/-. Respondent

is the State of Maharashtra.

The prosecution case in brief is that, the informant

Syed Ayub (P.W.4), resident of Nizamgunj Colony was Welder by

occupation and on 14.2.1999, at about 2.00 p.m., when he was

returning to his home for lunch, on way accused No.2 Aleem met

him at the Pan Stall of accused No.1 Pappu. Accused No.2 Aleem

threatened the informant on account of non payment of money

to him for drinking liquor at the eve of marriage of one Kadir.

Thereafter, on the same day, at about 7.00 p.m., when the

informant Syed Ayub (P.W.4) was returning to his home, when

he was passing by Chambharwada, both the accused Nos.1 and 2

intercepted him on road and asked him as to why he did not pay

money for drinking liquor. Accused No.1 Pappu Jahagirdar

caught hold of the informant by his hand and at that time,

accused No.2 Aleem inflicted number of knife blows on the back

of shoulder area of informant. The informant sustained bleeding

injuries. Thereafter both the accused bolted away from the spot.

After some time, the mother of informant rushed on the spot and

took him to the hospital in injured condition. Dr. Dinesh Pagaria

(P.W.10), Medical Officer, Government Medical College &

Hospital, Aurangabad, known by local name "Ghati Hospital",

Aurangabad examined the injured Syed Ayub and found number

of incised wounds on the body of informant. He issued Medico

Legal Certificate Exh.46 and referred the injured to Surgery

Department in the same hospital. Dr. Vijay Kandewad (P.W.11),

the then Surgeon, operated the injured informant. By that time,

P.S.I. Madhav Patil (P.W.9), Police Station, Jinsi, Aurangabad was

informed. Therefore, he rushed to the Civil Hospital, Aurangabad

and obtained F.I.R. (Exh.29) in the hospital. In the result, Crime

No.28/1999 was registered under Section 307 read with Section

34 of the Indian Penal Code. P.S.I. Patil (P.W.9) prepared spot

panchanama (Exh.35) and collected blood stained earth sample

from the spot. During the course of investigation, both the

accused were arrested and blood stained clothes were seized

from their person. As per disclosure statement of accused No.2

Aleem, blood stained knife was seized. After completion of the

investigation, charge sheet was submitted before the Judicial

Magistrate, First Class, Aurangabad against both the accused for

the offence punishable under Section 307 read with Section 34 of

the Indian Penal Code.

Offence punishable under Section 307 of the Indian

Penal Code being exclusively triable by the Court of Sessions,

this case came to be committed to the Sessions Court,

Aurangabad.

Charge Exh.14 was framed against accused Nos.1

and 2 for the offence punishable under Section 307 read with

Section 34 of the Indian Penal Code. In support of prosecution

case, prosecution examined total 11 witnesses. After considering

the oral and documentary evidence placed on record, the trial

Court pleased to convict the accused for the punishable under

Section 307 read with Section 34 of the Indian Penal Code.

Therefore this appeal arises.

Heard arguments submitted by learned counsel for

the appellant and learned A.P.P. for the state. The appellant is

referred as per his original status (accused No.1). Learned

counsel for the accused No.1 submits that, at the time of first

part of the occurrence i.e. demand of money near the Pan Stall of

accused No.1 Pappu, no money was demanded by accused No.1.

It was the act of only accused No.2. According to learned

counsel for the appellant, the accused No.1 did not inflict knife

blow on the body of the informant and, therefore, it cannot be

held that he shared the common intention along with accused

No.2 to commit the attempt of murder of informant.

His next limb of argument is that, no independent

witness is examined by the prosecution and, therefore, only on

the basis of sole testimony of informant (P.W.4), conviction

cannot be based. He has drawn my attention towards the injury

certificate (Exh.46), which indicates that, the informant sustained

7 simple injuries. According to learned counsel for the appellant,

as all the injuries are inflicted on the back portion of the body of

informant, "intention to kill" cannot be gathered from the

evidence on record. Therefore, no offence is made out under

Section 307 of the Indian Penal code. He has also pointed out

that, no blood stains were found on the clothes seized from

accused No.1 Pappu.

In this appeal, this Court is unaware regarding filing

of appeal by accused No.2 and its result. Learned defence

counsel expressed his ignorance about the act of accused No.2.

Even learned A.P.P. cannot confirm whether any appeal was

preferred by accused No.1 and whether the same is pending is

disposed of. Therefore, while deciding the appeal, I need not

consider the evidence available against accused No.2.

No doubt, from the C.A. Report (Exh.40), it emerges

that, blood was not found on the clothes of accused No.1 Pappu.

From the C.A. Report, it also emerges that, blood group of

informant is ''A'' and human blood of Group ''A'' was found on

clothes of the informant as well as on clothes of accused No.2

and on the knife blade seized from accused No.2. In the earth

sample seized from the spot of the incident, only human blood

was detected, but its group could not be determined.

Out of 11 prosecution witnesses, Panch Alim Khan

Jalal Khan (P.W.1) Amjad Khan (P.W.2), Shaikh Nazir (P.W.3),

Shaikh Rafiq (P.W.6), Shaikh Jilani (P.W.7), Abdul Sami (P.W.8)

have turned hostile. The evidence of these hostile witnesses is

useless piece of the evidence as nothing could be elicited in their

cross-examination which is helpful to the prosecution.

Therefore, the total prosecution case is based on

testimony of informant Syed Ayub (P.W.4), Dr. Dinesh (P.W.10)

and Dr. Vijay Kandewad (P.W.11). The investigating officer

P.S.I. Patil (P.W.9) has only conducted investigation of this

crime. However, no incriminating article is seized from the

possession of accused No.1 Pappu. Therefore, the fate of this

appeal revolves around the point whether sole testimony of Syed

Ayub (P.W.4) is sufficient to convict the accused No.1 for the

offence punishable under Section 307 of the Indian Penal Code or

not.

Trite law is that, even sole testimony of informant

Syed Ayub (P.W.4), who is the injured witness, can be relied

upon to base the conviction provided that it is free from all

infirmities. Undisputedly Syed Ayub (P.W.4) is not on inimical

terms with any accused person and there was no previous

dispute between the informant and accused persons. Therefore,

false implication of the accused No.1 in the present matter by

informant is impossible.

Syed Ayub (P.W.4) has categorically deposed on oath

that, on the date of incident, at noon hours, when he was

returning to his home for lunch, that time the accused persons

demanded money from him for drinking liquor, but he did not

pay money to them. According to this witness, in the evening at

about 7.00 p.m., when he was proceeding towards his home

through Chambharwada area, on way, accused met him and

asked him that he did not pay money to them for drinking liquor.

Thereafter, the accused No.1 caught hold the hands of informant

Syed Ayub and accused No.2 Aleem started inflicting knife blows

on the left shoulder, right shoulder below neck, below arm pit

and on the back and waist. The informant sustained injuries and

fell down. After some time, his mother Fatema Begum (P.W.5)

rushed on the spot and took him to Civil Hospital where he was

examined by Medical Officer. This witness has duly proved his

F.I.R. Exh.29 obtained by police in the hospital. According to this

witness, he was admitted in the hospital for about 20 to 25 days.

He has also identified his blood stained clothes (Articles 6 and 7).

From the cross-examination of Syed Ayub (P.W.4), it

only emerges that, prior to the incident, accused never

demanded money from him and that was the first occasion that

accused demanded money for drinking liquor. He also admits

that, no person passing by the road paid any heed to him.

Except these stray admissions, nothing could be elicited from the

cross-examination of this witness which creates doubt about the

truthfulness of his contentions. Learned defence counsel tried to

bring on record that prior to this incident, the informant

quarreled with the accused persons. However, that suggestion

was specifically denied by this witness. Learned defence counsel

also suggested that, on the date of incident, informant went to

scrap shop and fell down on the scrap tin sheet and thereafter

sustained injuries on his back. However, these suggestions are

specifically denied by this witness. Even Dr. Dinesh P.W.10) who

examined the informant at Civil Hospital has ruled out the

possibility of sustaining such injuries due to fall on scrap

material. Thus, after careful examination of testimony of

informant Syed Ayub (P.W.4), I do not find any circumstance on

record which creates doubt about the truthfulness of the version

of this witness. I hold that, the entire testimony of Syed Ayub

(P.W.4) is free from every infirmity and conviction can be based

even on his sole testimony.

Otherwise also, Dr. Dinesh (P.W.10) has duly proved

the M.L.C. Certificate Exh.46 and following incised wounds on the

body of informant when he was examined by Dr. Dinesh

(P.W.10) were found :

(1) Incised wound at right middle back region 2 cm x 1 cm x 1/2 cm.

(2) Incised wound at left upper back region 1" x 1 cm x 1/2 cm.

(3) Incised wound at lumber region 2 cm x 1 cm x 1/2 cm.

(4) Incised wound at left index finger 1" x 1 cm x 1/2 cm.

(5) Incised wounds two in numbers at left gluteal region, 2 cm x 1 cm x 1/2cm each.

(6) Incised wound at left arm 1 cm x 1/2 cm x 1/2 cm.

(7) Incised wound at right shoulder region 2 cm x 1 cm x 1/2 cm.

Dr. Dinesh (P.W.10) has opined that, the above

incised wounds found on the body of informant Syed Ayub

(P.W.4) were caused due to sharp cutting instrument within 24

hours from the time of examination. Thus, the oral testimony of

Syed Ayub (P.W.4) is also corroborated by medical evidence of

Dr. Dinesh (P.W.10) and M.L.C. Certificate Exh.46.

Though Dr. Dinesh (P.W.10) opined that all the

injuries found on the body of informant are simple in nature. Dr.

Vijay Khandewad (P.W.11), the then Surgeon from Civil Hospital,

Aurangabad, who treated and operated the injures found on the

body of informant, had also brought on record that the injury on

left infra scapular region was grievous and it could have led to

the death of the informant. Dr. Vijay (P.W.11) being Surgeon,

who operated the informant, the testimony of this witness carried

much weightage regarding the nature of injuries found on left

infra scapular region of the informant.

Otherwise also, the informant Syed Ayub (P.W.4)

deposed before the Court that he was admitted in the hospital for

about 25 days due to the injuries sustained by him during the

occurrence. Therefore, otherwise also, the injury on left infra

scapular region of the informant which was dangerous to his life

and which caused him to remain in the hospital for more than 20

days and made him unable to follow his ordinary pursuits, is

certainly grievous hurt under Section 320 of the Indian Penal

Code.

Learned counsel for the appellant has placed reliance

on the case of Manikappa s/o Ashappa Kalal & others Vs. State of

Karnataka (Criminal Appeal No.3651/2010). However, this case

is distinguishable on facts.

In the circumstances, I have ho hesitation to hold

that, the prosecution has proved beyond reasonable doubt that,

on the above said date, time and place, the accused No.1 and 2,

in furtherance of their common intention, voluntarily caused

grievous hurt to the informant Syed Ayub (P.W.4). As accused

No.1 took active part by holding the hands of the informant

during the occurrence to make him easy target for accused No.2

to easily inflict more than 7 knife blows on the back portion of

body of the deceased, he also shared the common intention with

accused No.2 to cause grievous hurt to the informant.

However, it cannot be ignored that, none of the injury

was caused on any vital part of the body of the informant. All

the injuries are on back side of the body of informant. Therefore,

it cannot be said that, accused had intention to commit murder

of informant. Therefore, considering the overall circumstances of

the case, which indicates that the accused had no motive to

commit murder of the informant and there was no pre-plan even

to intercept him on road to commit his murder. Only by chance

on that day, the informant met to accused on road and on

account of previous demand of money for drinking liquor, they

assaulted the informant by knife and caused grievous hurt to the

informant. Therefore, the accused cannot be convicted for the

offence punishable under Section 307 of the Indian Penal Code.

However, it cannot be ignored that, as accused have voluntarily

caused grievous hurt to the informant, they deserve to be

convicted for the offence punishable under Section 326 of the

Indian Penal Code.

Question may arise whether the sentence of three

years rigorous imprisonment is the adequate punishment, which

is already imposed by the trial Court for the offence punishable

under Section 307 of the Indian Penal Code. Considering the

overall circumstances of this case, I hold that, rigorous

imprisonment for three years and fine of Rs.500/- imposed by

trial Court is just and proper even for the offence punishable

under Section 326 of the Indian Penal Code and it needs no

interference. Such punishment cannot be harsher punishment as

the unarmed informant was injured by the accused persons with

deadly weapon like knife. Therefore, I hold that, this appeal

deserves to be partly allowed and the conviction under Section

307 of the Indian Penal Code deserves to be modified into

Section 326 of the Indian Penal Code. Hence I pass the following

order :

ORDER

The Criminal Appeal is partly allowed :

Conviction of the accused No.1 Shaikh Pappu s/o

Kalimuddin Jahagirdar under Section 307 of the

Indian Penal Code is set aside and modified to that

under Section 326 of the Indian Penal Code. The

accused No.1 Shaikh Pappu s/o Kalimuddin

Jahagirdar is convicted for the offence punishable

under Section 326 of the Indian Penal Code and is

sentenced to suffer rigorous imprisonment for three

years and to pay fine of Rs.500/-, in default to suffer

simple imprisonment for two months.

On deposit of fine amount, the same be paid as

compensation to the informant Syed Ayub (P.W.4).

Accused No.1 Shaikh Pappu s/o Kalimuddin

Jahagirdar shall surrender to his bail bonds before

the trial Court immediately to undergo the sentence.

Set off be given under Section 428 of the Code of

Criminal Procedure for the period already undergone.