1 cri appeal 332.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 332 OF 1999
Shaikh Baba S/o Shaikh Anis,
Age : 24 Years, Occu. : Rickshaw Driver,
R/o Rajuri Ves, Beed. .. .. Appellant
Versusig
The State of Maharashtra,
(Copy to be served on Public
Prosecutor, High Court of
Judicature of Bombay, Bench
at Aurangabad) .. .. Respondent
Shri A. S. Gaikwad, Advocate h/f Shri S. M. Godsay, Advocate for
the Appellant.
Shri V. G. Shelke, A.P.P. for the Respondent/State.
CORAM : S. S. SHINDE, J.
DATE : 24TH JANUARY, 2011.
JUDGMENT :
. This appeal is filed by the appellant/accused challenging
the judgment and order of the Sessions Judge, Beed in Sessions
Case No. 20/1999 dated 02nd August, 1999.
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2. Brief facts of the case are as under :
The complainant Vidya Sanjay Wadmare is wife of P.W. 5
Sanjay Wadmare, serving as a staff Nurse in the Civil Hospital,
Beed, while her husband P.W. 5 Sanjay Wadmare is serving in
Police Department as a Police Constable and attached to Police
Station, Paraly in the year 1998.
3.
The alleged incident took place on 15.07.1998 at about 9.15
to 9.30 p.m. approximately at Bashirgunj, Beed, near Tara Pan
Centre. On 15.07.1998 as the daughter of P.W. 3 Vidya and P.W.
5 Sanjay namely Puja was not feeling well. P.W. 3 Vidya gave a
telephonic message to Sanjay Wadmare at Paraly about illness of
Puja. Accordingly, P.W. 5 Sanjay came to Beed at about 5.00 p.m.
on 15.07.1998. Both P.W. 3 Vidya and P.W. 5 Sanjay took Puja for
necessary treatment to Dr. Tambde and returned to their house
from the hospital of Dr. Tambde and took dinner at about 8.30
p.m. P.W. 5 Sanjay then informing his wife P.W. 3 Vidya, went to
Tara Pan Centre from Bahirgunj area for taking betel or Pan
approximately at about 9.15 p.m. and after taking betel from
Tara Pan Centre, he was on way to return to his house. At that
time, accused Nos. 1 and 2 attacked Sanjay Wadmare P.W. 5 with
knife and gupti and gave blows to Sanjay. Accordingly, P.W. 5
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Sanjay sustained several injuries on his chest, back, neck, hand
and other parts of body. He raised shouts. Pappu Jogdand,
Madhukar Wadmare and Vinod Dongre who were near the place
of incident, immediately came there. Accused ran away from the
place. Pappu Jogdand, Vinod Dongre and Madhukar Wadmare
then took P.W. 5 Sanjay in auto rickshaw to Civil Hospital, Beed.
Information was also given to P.W. 3 Vidya wife of Sanjay
Wadmare. She also immediately came in the Civil Hospital,
made enquiry with Sanjay about injuries and Sanjay disclosed
that accused Nos. 1 and 2 attacked with knife and gupti on
account of previous enmity and quarrel took place at the time of
marriage some where in the month of November, 1997. P.W. 3
Vidya Wadmare accordingly gave information to the police, who
was on duty at Civil Hospital, Beed. Doctor from the Civil
Hospital who was on duty, namely Kailas Ganpatrao Dudhal,
accordingly, attended P.W. 5 Sanjay Wadmare. He was
accordingly admitted in the Civil Hospital as indoor patient. A
call was given to a concerned Surgeon and accordingly Dr.
Avinash Deshpande, P.W. 6 then came in the hospital and
examined Sanjay Wadmare. Thereafter, he was operated.
Sanjay was in the hospital as indoor patient till 28.07.1998.
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4. On the basis of the report given by P.W. 3 Vidya Wadmare,
Police Station Officer, P. S. Beed (City) accordingly registered
Crime No. 250/1998 against the accused for the offence U/Sec.
307 r/w Sec. 34 of the Indian Penal Code. The investigation of
the above said crime was thereafter handed over to P.W. 10 P.S.I.
Fulzalke, who during the course of investigation, visited the
place of incident, and prepared spot panchanama in presence of
panchas which is proved at Exhibit 13. He also prepared a map
as regards the place as shown by P.W. 4 Pappu Jogdand. He then
during the course of investigation recorded statements of certain
witnesses and arrested accused on 25.07.1998. The accused
while in the custody of police made disclosure statement and
showed their willingness to produce weapons. Memorandum to
that effect is prepared. The accused in pursuance of the
disclosure statement, then produced weapons. The same being
attached by Police Sub-Inspector i. e., article Nos. 7 and 10 before
the Court. The clothes which were on the person of accused Nos.
1 and 2 were also separately attached under separate
panchanamas. The clothes which were on the person of injured
Sanjay Wadmare, were also attached under panchanama Exh.
44. The clothes which were on the person of accused, the clothes
which were on the person of injured Sanjay and weapons article
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Nos. 7 and 10 were then sent to the Chemical Analyser,
Aurangabad, along with the letter on 09.09.1998 along with blood
samples of accused and Sanjay Wadmare. The report is
accordingly received from the Chemical Analyser, Aurangabad.
P.S.I. Phulzalke accordingly after completing the investigation,
submitted charge sheet against the accused before the Chief
Judicial Magistrate, Beed, on 16.10.1998.
5. The Chief Judicial Magistrate, Beed, by his order dated
04.01.1999 below Exh. 1 committed the case to the Court of
Sessions as the offence U/Sec. 307 of the Indian Penal Code being
exclusively triable by the Court of Sessions.
6. The VII Assistant Sessions Judge, Beed (Shri R. S.
Kharkar) framed charge against the accused as per Exh. 5 on
28.01.1999 for the offences U/Sec. 307 r/w Sec. 34 of the Indian
Penal Code. The same was read-over and explained to the
accused. They pleaded not guilty to the charge and claimed to be
tried. Their defence is of total denial. According to them they
being falsely involved in the present case.
7. The prosecution examined as many as ten witnesses. The
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Sessions Court after taking into consideration the entire
evidence on record and after hearing the respective counsel by its
judgment and order dated 02nd August, 1999 convicted the
accused Shaikh Baba Shaikh Anis and accused No. 2 Sayyad
Azim Sayyad Naim for the offence punishable U/Sec. 324 r/w Sec.
34 of the Indian Penal Code and they are sentences to suffer
rigorous imprisonment for six months and to pay fine of Rs. 500/-
each and in default of payment of fine to suffer further R. I. for
one month. The Court has also given set off U/Sec. 428 of the
Criminal Procedure Code, as the accused were arrested on
25.07.1998 and released on bail on 13.10.1998.
8. Learned counsel appearing for the appellant submitted
that, the evidence of eye witnesses cannot be believed. There are
material contradictions in their version. The counsel also
submitted that, the victim is police constable and, therefore, false
case is filed against the appellant. It is further submitted that,
to convincingly prove the prosecution case against the appellant,
there is no proper recovery of the weapon from the appellant.
The counsel invited my attention to the para 18 of the impugned
judgment and submitted that, the learned Judge himself has
observed that, there is no proper recovery of Article Nos. 7 and 10
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at the instance of the accused. Therefore, the counsel appearing
for the appellant would submit that, the appeal deserves to be
allowed.
9. The learned Additional Public Prosecutor appearing for the
respondent/State submitted that, the Sessions Court taking into
consideration the entire evidence on record and evidence of the
prosecution witnesses has convicted the accused/appellant.
Therefore, no interference is warranted in this appeal.
10. With the assistance of the learned counsel appearing for
the appellant and learned Additional Public Prosecutor
appearing for the State I have carefully perused the record and
proceedings. I have also gone through the evidence of the eye
witnesses and also medical evidence and I am of the opinion that,
there is direct evidence in the matter corroborated by the medical
evidence. Therefore, the Sessions Court has rightly convicted the
accused/appellant. The evidence of P.W. 1 Pappu Jogdand and
P.W. 5 Sanjay Wadmare supports the prosecution story. The
Trial Court has discussed the evidence of said witnesses from
para 13 to 17. P.W. 4 Pappu Jogdand and P.W. 5 Sanjay
Wadmare in their evidence have specifically stated about the
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manner in which incident had taken place and assault by the
appellant along with co-accused, the weapons used by them. The
evidence of P.W. 5 Sanjay Wadmare and P.W. 4 Pappu Jogdand
and Vidya Wadmare is corroborated by the medical evidence.
The evidence of P.W. 6 Dr. Avinash Deshpande and P.W. 8 Dr.
Kailash Dudhal shows that, Sanjay Wadmare (victim) was
immediately admitted in the hospital. Dr. Kailash Dudhal in his
evidence at Exhibit 32 stated that, on 15.07.1998 he was on duty
as Medical Officer. At about 9.40 p.m. Sanjay was brought to the
hospital. He examined and found six injuries on his person i. e.
incised wound on left para spinal region, incised wound on right
gluteal region, incised wound on left axilla, incised wound on
anterior aspect of chest, incised wound on left arm posterior
aspect and incised wound on left ear.
11. The Medical Officer has opined that, out of these six
injuries, the injury at Sr. No. 3, 4 and 6 are grievous in nature.
He has also opined that, those injuries are caused within 24
hours prior to his admission in the hospital. According to him,
the injuries are possible with sharp weapon. The evidence of this
witness has been categorically discussed by the Sessions Court.
Therefore, presence of the Pappu Jogdand at the spot is
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established by the prosecution. It has also came on record that,
Pappu Jogdand and Sanjay Wadmare were knowing the
appellant/accused even prior to the incident as this aspect is
sufficiently clear from the evidence as on account of previous
enmity.
It is true that, in para 18 the learned Sessions Court has
expressed displeasure for not having proper recovery of the
weapon and also about the manner in which prosecution has
handled the case to sent the sample to the Chemical Analyser
and procedure followed therein. However, the evidence of the eye
witness which is fully corroborated by the medical evidence
cannot be brushed aside. The eye witnesses have seen the
accused appellant at spot assaulting the Sanjay Wadmare. The
Sanjay Wadmare is police constable and there is no reason to
falsely implicate the appellant and co-accused by the Sanjay
Wadmare. The evidence of the wife of the Sanjay Wadmare
shows that, Sanjay Wadmare immediately narrated the incident
and disclosed the name of the accused to P.W. 3 wife of Sanjay
Wadmare. Therefore, taking over all view of the matter, in my
opinion, the Sessions Court has taken a correct and possible
view. It is true that, the Sessions Court has considered the case
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of offence U/Sec. 307 of the Indian Penal Code. However, in para
20 and 21, the Sessions Court has recorded that, in the facts and
circumstances of the case and nature of injuries sustained by
Sanjay Wadmare and taking into consideration other facts, more
particularly requisite intention to commit offence, the Trial
Court held that, the requisite intention to commit offence U/Sec.
307 of the Indian Penal Code cannot be gathered. Therefore, the
Trial Court recorded the findings that the accused in furtherance
of their common intention caused voluntarily hurt with a sharp
cutting weapon and, therefore, accused committed an offence
U/Sec. 324 r/w Sec. 34 of the Indian Penal Code.
Therefore, taking into consideration over all circumstances
and evidence in the matter, I do not find any reason to interfere
in the impugned judgment and order passed by the Sessions
Judge, Beed, dated 02nd August, 1999 in Sessions Case No.
20/1999.
12. Therefore, the impugned judgment and order is confirmed.
However, taking into consideration the fact that, the appellant is
on bail for long period of 13 years and he has not misused the
bail during this period. The Sessions Court has also recorded
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that, there was no intention to commit such offence U/Sec. 307
r/w Sec. 34 of the I. P. Code. The counsel for the appellant makes
statement that, this is the only alleged offence in which the
appellant is shown as accused. In the facts and circumstances of
this case, the end of justice would meet, if the sentence is reduced
to already undergone period. The appellant accused is convicted
U/Sec. 324 r/w Sec. 34 of I. P. Code. Therefore, taking over all
view of the matter, the conviction of the appellant recorded by the
Trial Court U/Sec. 324 r/w Sec. 34 is maintained, however, the
period of sentence is reduced to already undergone by the
accused/appellant. There shall be no order as regards the
payment of fine amount and the order of Trial Court in respect of
fine is maintained. The accused need not be sent to the jail. The
Sessions Court has recorded in para 2 of the operative part of the
order that the accused appellant was arrested on 25.07.1998 and
released on bail on 13.10.1998 and he was in jail for eighty days
during the pendency of trial.
[ S. S. SHINDE, J.]
bsb/Jan. 11
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