Shafi Bala Rais vs The State of Maharashtra

Sadhana S. Jadhav, J.—The appellant herein is convicted for the offence punishable u/s 307 read with Section 34 of Indian Penal Code and is sentenced to suffer R.I. for five years and to pay fine of Rs. 2,000/- in default further R.I. for six months in Sessions Case No. 123 of 1982 by 3rd Addl. Sessions Judge, Thane vide judgment and order dated 14.6.1995. Hence, this appeal. Such of the facts, necessary for the decision of this appeal, are as follows:-

One Pralhad Shankar Naik was residing in Camp No. 1, Near Datta Mandir, on Shivaji Road locality. On 22.7.1980, he was proceeding towards Shahad Naka at about 6.15 p.m. When he reached Omprakash Sweetmart, he noticed that the present appellant was present along with Ramesh Chavan and Mohammad Pehalwan. The appellant and Ramesh Chavan accosted him. The appellant gave him fist blows, whereas Mohammed Rasul Pehalwan assaulted him with knife on abdomen. He fell down.

One Balu Narayan Suryawanshi witnessed the incident. He rushed towards the appellant. On seeing Balu, the assailants fled away. Then Balu along with one Shabir had taken the injured Pralhad to Ulhasnagar Police Station. Shankar Lute, P.S.O. Directed Balu to take the injured to the Central Hospital, Ulhasnagar. PSI Lute followed autorickshaw. Pralhad was not in a position to talk and hence PSI recorded the statement of Balu Narayan Suryawandhi, which was treated as FIR. Crime No. 362/80 was registered against the accused for the offence punishable u/s 307 read with Section 34 of IPC.

Investigation was set in motion. P.I. Yadav proceeded to the spot and recorded the spot panchnama which is at Exhibit 56. He noticed that a knife was lying on the spot which was seized under a panchnama and description of the same is given in the panchnama at Exhibit 56. Police Naik Ragho Patil had brought the present appellant-accused before P.I. Yadav. The accused-appellant was holding a blood-stained knife which was attached under Exhibit 52.

On 22.7.1980, statement of injured Pralhad was recorded by PSI Lute. On 27.7.1980, accused No. 3 was arrested. On 1.8.1980, the original accused No. 3 made a disclosure statement on the basis of which the blade of knife was recovered under a panchnama at Ex.38. On 7.8.1980, charge-sheet was filed in the Court of J.M.F.C, Ulhasnagar. The original accused No. 3 had absconded. By an order dated 12.3.1981, the case against the accused No. 3 was separated. Charge was framed against the present appellant for the offences punishable u/s 307 read with Section 34 of IPC. Accused Ramesh Chavan had expired during the pendency of the trial. Hence, the trial proceeded against the present appellant.

The prosecution has examined seven witnesses to bring home the guilt of the accused.

PW-1 Pralhad Naik is injured. He has specifically deposed before the Court that on 22.7.1980, while he was proceeding to Shahad Naka, he had been to Om Prakash Sweet Mart, where all the accused were present. Accused Shafi and Ramesh had caught hold of him. Accused Shafi gave him fist blows and Mohammed Pehalwan inflicted blows by knife. He has further deposed that he had attempted to rescue himself from the clutches of the assailants. However, subsequently, accused had fled from the spot. He had fallen down and had become unconscious. He was taken to Central Hospital, Ulhasnagar. From there, he was shifted to Sion Hospital where he was an indoor patient for 12-13 days.

in the cross-examination, PW-1 has specifically stated that he has not indicted the present appellant falsely since he happens to be a witness in a case against Pralhad Naik. He has reiterated that the appellant had assaulted him with fist blows. He has refuted the suggestion that the accused Shafi had not caught hold of him. It is, therefore, clear that the allegation against the present appellant is that he had not only caught hold of PW-1, but had initially assaulted him with fist and kick blows. However, the incised wounds cannot be attributed to the present appellant as the injured witness has specifically stated that the said incised wound was not on the present appellant but Mohammad Pehalwan.

on 22.7.1980, the appellant was taken to the Police Station. The Police had called upon the panchas. A handle of knife was seized from the present appellant. The blade of a knife was not attached to the handle. The panchnama is at Exhibit 43.

The Injury Certificate of PW-1 is at Exhibit 47. It reveals that the injured had sustained six incised wounds.

On 1.8.1980, Mohammadali Rasool Shaikh had disclosed to the police that he had concealed the blade of the knife in his room. The memorandum of Mohammad Rasul Shaikh was recorded which is at Exhibit 48. Pursuant to the said memorandum, the blade of the knife was seized at the instance of Mohammad. It was a blade of 15 cm. It is, therefore, clear that the handle of the knife was seized at the behest of the present appellant, whereas the blade of the knife was recovered from Mohammad Rasul Shaikh.

PW-3 Ragho Patil was attached to Ulhasnagar Police Station as Police Constable. He has deposed before the Court that he was on patrolling duty since 16.00 hrs. to 21.00 hrs. on 22.8.1980. At about 6.15 p.m., while he was on patrolling duty, he noticed a crowd of people had gathered near Samarth Muttonwala. He went to the spot and noticed that the present appellant was fleeing away holding a knife in his hand. According to him, the handle of knife was smeared with blood. One person was lying there and blood was oozing from his wound. Another person had sustained injury on his chest. He took the injured to Central Hospital, Ulhasnagar and had taken the accused Shafi i.e. the present appellant to the police station. The present appellant was given in custody.

It is elicited in the cross-examination that on the spot when PW-3 had taken the appellant into custody, he had not recorded the panchnama regarding seizure of weapon from accused Shafi.

PW-4 Namdeo More was working as Police Constable at Ulhasnagar Control Room. He had transferred Pralhad to Sion Hospital Bombay for further treatment. He had seized the clothes of the victim. He had reported to P.S.O. Ulhasnagar Police Station on 23.7.1980. The report is at Exhibit 54. PW-4 has categorically stated in his testimony that in the body of the report at Exhibit 54, he had wrongly mentioned the date as 22.6.1980 instead of 22.7.1980. The witness has not been cross-examined.

At Exhibit 55 is a report of the Addl. Public Prosecutor seeking the permission to produce on record the spot panchnama dated 22.7.1980 calling upon the accused to admit or deny the genuineness of the spot panchnama. The defence had admitted the said document and hence the same was exhibited at Exhibit 56. The recitals of the spot panchnama would show that on the spot they had seized one knife of brass which was blood-stained. It was a sharp-edged weapon. Hence, it is clear that the knife with which the injured was admitted had fallen on the spot. The handle of the knife was with the present appellant. However, the Court cannot be oblivious of the fact that according to the injured eye-witness, i.e. the victim himself, the appellant had assaulted him only with fist and kick blows and not with the alleged weapon or the handle of the weapon which was with the appellant at the time of the arrest.

PW-5 Shankar Lute was attached to the Ulhasnagar Police Station as P.S.I. He has deposed before the Court that on 22.7.1980 in the evening Babu Suryawanshi had brought Pralhad Naik to the Police Station in a rickshaw. He directed Babu to proceed to Central Hospital Ulhasnagar. PW-5 followed them. Pralhad Naik was not in a position to talk and accordingly the Medical Officer had given an endorsement that the patient is not in a position to talk. According to PW-5, Babu had told him that he did not know how the incident occurred, Babu was not alive at the time of trial. On the basis of the statement of Babu, he had recorded the FIR which is registered as Crime No. 362 of 1980. Babu had disclosed to PW-5 that while he was passing on the road, he saw that Pralhad Naik was lying in front of Om Prakash Sweet Mart. According to him, Mohamed ali Rasul Shaikh had stabbed on his abdomen. According to him, Raise Shafi i.e. the present appellant and Ramesh Chavan had assaulted with kick and fit blows. PW-5 had identified the signature of Babu on the said report.

It is elicited in the cross-examination that after registration of the FIR, there was a complaint against Babu and Pralhad Naik and it was alleged in that complaint that Mohamed Ali Rasul Shaikh had received injuries on his chest and that Mohamed Ali was hospitalized.

PW-6 Atmaram Yadav was in-charge of Ulhasnagar Police Station as Senior P.I. According to him, on 22.7.1980, he had taken over the investigation of Crime No. 362/1980 from PSI Lute. He recorded the spot panchnama as shown by police constable R.D. Patil. He had seized a knife which was seen lying on the spot. In the meanwhile, R.D. Patil had brought the accused Shafi Rais who was having the handle of a knife. There was no blood on the said handle. The said handle of knife was seized under the panchnama which is at Exhibit 43. He had arrested the present appellant and Ramesh Chavan on 22.7.1980. On 22.7.1980, he had arrested Mohmed Rasul Shaikh. On 29.7.1980, he had recorded the statements of some witnesses. On 1.8.1980, the blade of the knife was recovered at the instance of Mohamed Rasul Shaikh. The seizure is at Exhibit 48.

It is elicited in the cross-examination that a cross-case is pending against the said Pralhad Shankar Naik and Babu Suryawanshi.

PW-7 Ashok Adhav is the Medical Officer who had examined Pralhad Naik on 22.7.1980. He has proved the certificate at Exhibit 47.

In the above mentioned circumstances, it is clear that Pralhad Naik had not received the stab wounds or grievous injuries at the hands of the present appellant. However, the Court cannot be oblivious of the fact that PW-1 i.e. Pralhad Naik has categorically stated that the present appellant had assaulted him with fist and kick blows. Hence, presence of the appellant at the time of the incident at the said spot is established beyond reasonable doubt. Although the present appellant was arrested soon after the incident holding the handle of the knife, it cannot be said that he is the author of the injuries sustained by Pralhad Naik. In any case, the ocular testimony would prevail over the medical evidence. Hence, the present appellant cannot be held guilty for the offence punishable u/s 307 read with Section 34 of IPC. There is no evidence on record to indicate that the present appellant had shared common intention with Mohamed Rasul Shaikh. The record amply makes it clear that there was some altercation between Mohamed Reis Shaikh and Pralhad. A cross case is pending against Pralahad Naik and Babu Suryawanshi who happens to be the first informant in the present case. This Court can place implicit reliance upon the evidence of PW-1. Hence, the appellant herein could be held guilty for the offence punishable u/s 323 read with Section 34 of IPC. The appellant was in custody from 22.7.1980 to 31.7.1980 and he was released on bail by an order dated 21.8.2006. Hence, the appellant is sentenced to the period already undergone. Hence, the Appeal is partly allowed.

(i) The conviction of the appellant is modified. The conviction of the appellant for the offence punishable u/s 307 read with Section 34 of IPC recorded by the Addl. Sessions Judge, Thane in Sessions Case No. 123 of 1982 is hereby quashed and set aside.

(ii) The appellant is convicted for the offence punishable u/s 323 read with Section 34 of IPC and is sentenced to the period already undergone.

(iii) The sentence of fine is maintained. The same amount be paid to respondent No. 2.

(iv) The appellant is on bail. His bail bonds stand cancelled.

(v) Writ of this order be expedited.