Single judge allowed the State's appeal against a lower court's order. The court upheld the conviction for attempting murder under Section 307 IPC, citing brutal nature of injuries, and dismissed the plea for sentence reduction.
Appeal dismissed; appellant to surrender within eight weeks or be arrested.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Appeal 369-94
1
Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.369 OF 1994
Mohammad Aslam Nuru Pahilawan..Appellant
Qureshi,
Age : 22 years,
R/o. at Malegaon, Mohammad Ali
Road, Qureshi Hotel, Malegaon,
Taluka Malegaon, District Nasik.
V/s.
The State of Maharashtra..Respondent
Smt.S.A.Dhamale, Advocate, for the Appellant
Mrs.P.P.Shinde, APP, for the Respondent -
State
CORAM:R.C.CHAVAN, J.
DATE:18TH APRIL, 2011
ORAL JUDGMENT
.This Appeal is directed against
appellant's conviction for the offence
punishable under Section 307 of the Indian
Penal Code and sentence of rigorous
imprisonment for six years with a fine of Rs.
800/- or in default further rigorous
imprisonment for three months imposed upon the
appellant by the learned Assistant Sessions
2 Appeal 369-94
Judge, Thane, upon conclusion of Sessions Case
No.517 of 1993.
2.Facts which are material for deciding
this Appeal are as under :-
Appellant's father was working as
butcher at Malegaon. Victim's family was also
in the same business. This had created some
animosity. Appellant is, in fact, a son of
victim's wife's brother. Because of
animosity, appellant's father Nuru Pahilawan
was murdered. In that murder case, the victim
had also been tried as an accused. Therefore,
the two families were not on talking terms.
On 7th June, 1993, the appellant came to the
house of the victim at Bhiwandi. Appellant's
aunt, that is victim's wife, served him with
necessary refreshments. Thereafter, victim
and his son were sleeping in one room. The
appellant entered the room and hit the victim
with an Axe. Victim got up and raised cries
for help. Victim's son got up, and victim's
3 Appeal 369-94
brother, who was sleeping in adjoining room,
rushed towards victim's room. The appellant
took out a knife and stabbed the victim on
abdomen and left hand. The appellant was
overpowered by victim's son and brother and
confined to a room. One Jakia, sister of the
victim had gone the police station and a
police constable came & made arrangement to
have the victim sent for medical treatment.
He took the appellant in custody. On a report
by victim's son, an offence was registered and
on completion of investigation, charge sheet
was sent in the Court of Judicial Magistrate
First Class at Bhiwandi, District Thane, who
committed the case to the Court of Sessions at
Thane.
3.The learned Assistant Sessions Judge
to whom the case was made over charged the
appellant for the offence punishable under
Section 307 of the Indian Penal Code. Since
the appellant pleaded not guilty, he was put
Appeal 369-94
on trial at which the prosecution examined in
all nine witnesses in its attempt to bring
home guilt of the appellant. The appellant's
defence was that the victim was injured, when
victim came to rescue of the appellant, when
appellant was being assaulted by victim's son
and brother. The learned Trial Judge
considered this defence in the light of
evidence tendered and held the appellant
guilty of the offence punishable under Section
307 of the Indian Penal Code and convicted and
sentenced him as afore mentioned. Aggrieved
thereby, appellant has preferred this Appeal.
the appellant and the learned APP for the
respondent � State. With the help of both the
learned Counsel I have gone through the
evidence on record. Victim's son Riyaz Ahmed
Abdul Wahid Qureshi, who gave a report at
Exhibit 16 was examined as P.W.1. He was eye
witness to the incident, since he was sleeping
5 Appeal 369-94
in the same room in which victim was sleeping
when assault was launched. P.W.2 Mohd. Salim
Mohiddin Qureshi, who was sleeping in an
adjacent room also rushed on hearing cries for
help by the victim. P.W.3 Police Constable
Sunil Pandurang Jadhav had come on being
informed of the incident and states that he
apprehended the appellant and caused the
victim to be sent for treatment. P.W.4 Abdul
Wahid Mohiddin Qureshi is the injured person,
who states about the assault launched by the
appellant. P.W.5 Dr. Anwar Ismail Momin
examined the injured person and found that the
victim had an incised wound over abdomen which
was 4� x ¼� x cavity deep, bleeding massively.
The second injury was contused lacerated wound
on left occipital region ½� x ½� x bone deep &
bleeding. The third injury was on the left
side of chest upper zone 2� x ½� into muscle
deep and the fourth injury was on the left
wrist dorsal aspect 1� x ½� x bone deep.
The doctor observed that injuries had been
Appeal 369-94
caused within six hours of the examination.
He found that two of the four injuries were
grievous in nature and could cause death of
patient in ordinary course of nature, if the
patient was not treated properly. P.W.7 Dr.
Sunita Sudhakar Arole treated the injured
person when admitted in Lokmanya Tilak
Municipal General Hospital, Sion, Bombay and
she too stated that one of the injuries was
sufficient in ordinary course of nature to
cause death. P.W.6 PSI Ramdas Sukhadeo Kaklij
registered an offence on the report of Riyaz
Ahmed Abdul Wahid Qureshi. P.W.8 API Dagadu
Keru Jadhav conducted investigation and P.W.9
Police Constable Shantaram Ratho Bhore carried
then incriminating articles to the Forensic
Science Laboratory.
5.In this case, the appellant does not
dispute that the appellant was present at the
spot. He also does not dispute that there was
previous enemity between the parties, since
7 Appeal 369-94
the appellant's father had been murdered and
the injured person was one of the accused, who
faced murder trial. The nature of injuries
which have been observed by the medical
officer rule out the possibility of injuries
being accidental or self inflicted. In fact,
it was the curious defence of the appellant
that P.W.1 Riyaz Qureshi and P.W.2 Mohd.
Qureshi sought to hit the appellant due to
previous enemity and that the victim tried to
intervene and was injured by the blows by
Riyaz Ahmed Qureshi or Mohd. Salim Qureshi.
It does not sound to reason that Riyaz or
Mohd. Qureshi would proceed to assault the
appellant or that Abdul Wahid Mohiddin Qureshi
would try to intervene to save the appellant,
since even Abdul Wahid was accused of murder
of appellant's father. Curiously the
appellant himself has not suffered any injury.
In any case, there is absolutely no reason
for the three witnesses to come out with a
story of assault different than one which they
Appeal 369-94
8
had actually witnessed.
6.The learned Counsel for the appellant
submitted that there are some improvements in
the story. She also pointed out that the
appellant could not have come to the victim's
house armed with weapons. But that really is
not of any consequence, since necessary
weapons could also have been found in the
victim's own house, since victim is a butcher
by profession. Report of the incident was
immediately given. Therefore, the possibility
of concocted version of the incident being
dished out to the police is ruled out. Minor
discrepancies in the evidence of three
witnesses rather lend a ring of truth to their
testimony, since orchestrated harmony in the
evidence of prosecution witnesses some times
leads to suspicion of witnesses having been
tutored. In view of this, it cannot be said
that the learned Trial Judge erred in
concluding on the basis of evidence of P.W.1,
9 Appeal 369-94
P.W.2 and P.W.4 that appellant was author of
injuries on Abdul Wahid.
7.Given the nature of assault and the
injuries sustained by the victim as also
observation of both the Medical Officers that
one of the injuries was sufficient in ordinary
course of nature to cause death, it cannot be
said that the learned Trial Judge erred in
holding that the appellant was guilty of the
offence of attempting to commit murder.
Therefore, no fault can be found with the
conviction of the appellant recorded by the
learned Trial Judge.
8.The learned Counsel for the appellant
submitted that the appellant was just 22 years
old at the time of the incident and had
already suffered imprisonment for about one
year during the trial. The appellant was
convicted about 15 years ago for an incident
which took place before 18 years and has been
10 Appeal 369-94
living in the shadow of conviction.
Therefore, according to her, rather than
sending him back to the prison 18 years after
the incident, imprisonment could be reduced to
that already undergone by increasing the fine.
This suggestion could have been considered but
for the fact that the assault on the victim
was brutal. Therefore, given the nature of
assault in which the appellant was involved
even sentence of rigorous imprisonment for a
period of six years cannot be said to be harsh
even after considering young age of the
appellant.
9.In view of this, Appeal is dismissed.
The appellant shall surrender before the trial
Court within a period of eight weeks and if he
does not do so, the learned Sessions Judge
shall have the appellant arrested and
committed to prison to serve the sentence.
11 Appeal 369-94
3 issues framed by the court
Whether the appellant was guilty of attempting to commit murder under Section 307 of the IPC.
Whether the sentence of rigorous imprisonment for six years was harsh considering the appellant was 22 years old.
Whether the appeal against conviction and sentence should be allowed.
1 provisions across 1 enactments
Mohammad Aslam Nuru Pahilawan
The State of Maharashtra
R.C. Chavan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court