Partly allowed

Mohammad Abdul Ajij Shaikh and Anr. v. the State of Maharashtra

Bombay HC20 Jun 2013APEAL/459/1993

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court partially allowed the appeal, quashing conviction and sentence on attempted murder charges. The court held that appellant 1 was liable for voluntarily causing grievous hurt (Section 326 IPC), not attempt to murder. Appellant 2 was acquitted of attempt to murder but convicted of voluntarily causing hurt (Section 323 IPC) without shared common intention.

What did the court decide?

Conviction and sentence under Section 307 IPC set aside for both appellants. Appellant 1 convicted under Section 326 IPC and sentenced to 1 year RI plus fine. Appellant 2 acquitted of Section 307 IPC;

Mohammad Abdul Ajij Shaikh and Anr. Vs the State… — Murder and Culpable Homicide | Bombay HC (2013)

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(203)APEAL-459-93(FH)

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Tilak

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL No.459 of 1993

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Mohammad Abdul Ajij Shaikh

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Mahiboob Abdul Ajij Shaikh Both residents of Tilak Nagar, Majrewadi now Sangameshwar Nagar Akkalkot, District.Solapur ... Appellants Versus The State of Maharashtra ... Respondent

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Mr.Arfan Sait, Advocate appointed for the appellants. Mrs.S.D.Shinde, APP for the State.

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CORAM : ABHAY M. THIPSAY, J.

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DATED : JUNE 20, 2013

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ORAL JUDGMENT: -

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1 The appellants were prosecuted on the allegation of having committed offences punishable under sections 307 IPC and 323 IPC read with section 34 of the IPC. The Addl. Sessions Judge, Solapur after holding a trial, found them guilty of the said offences, and sentenced both of them to suffer Rigorous Imprisonment for five years, with respect to the offences punishable under section 307 IPC read with section 34 of the IPC, and Rigorous Imprisonment for

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three months with respect to the other offence. It is being aggrieved by the said order of judgment and conviction passed on 17 August 1993 by the Addl. Sessions Judge, Solapur in Sessions Case No.34 of 1991, that the appellants have approached this Court by way of the present appeal.

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2 At the time of the admission of the appeal, the sentences imposed upon the appellants were suspended, and the appellants were directed to be released on bail. However, their Advocate did not remain present before the Court when the appeal came up for final hearing. In order to procure their presence, warrants of arrest were directed to be issued against them. In execution of the arrest warrants, the appellants came to be arrested, and are presently in custody undergoing the sentences imposed upon them. As their advocate on record was not remaining present before the Court, Mr.Arfan Sait was appointed under the Free Legal Scheme to prosecute the appeal.

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3 I have heard Mr.Arfan Sait, the learned counsel appointed for the appellants. I have heard Mrs.S.D.Shinde, learned APP for the State. I have been taken through the impugned judgment, the entire evidence adduced during the trial, and other relevant record.

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4 The prosecution case, as put forth before the Trial Court in brief, was as follows :-

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Vidhya Bhushan (PW 3) was working in a factory owned by Dr.Rajendra @ Raju Shah (PW 6). On the recommendation of Vidhya Bhushan, one Rais was employed by Rajendra Shah in the said factory. After a few days, Rais was removed from the job. Rais suspected that this was done at the instance of Vidhya Bhushan. Therefore, Rais along with the appellants, and some others, went to the factory premises, abused and threatened Vidhya Bhushan. Rajendra Shah was informed about this incident, who tried to settle the dispute, but did not succeed. That on 20 June 1987, at about 11.00 to 1.30 p.m, Vidhya Bhushan (PW 3), his brother Bharat Bhushan (PW 5) and the other brother Milind Chivrikar (PW 8) along with other family members were sleeping in their house. On hearing the knock on the door, the same was opened by Vidhya Bhushan. The appellants who were outside, abused Vidhya Bhushan. Vidhya Bhushan went out of the house so that the in-mates in the house would not be disturbed. Bharat Bhushan and Milind had, however, woken up. Bharat Bhushan noticed that the appellant no.1 Mohammad Abdul Ajij Shaikh had a knife in his hand, and cautioned Vidhya Bhushan by shouting. Vidhya Bhushan thereupon caught hold of the appellant no.2 Mahiboob Abdul Ajij Shaikh. Bharat Bhushan went to rescue Vidhya Bhushan. It is at that time, that the appellant no.1 Mohammad Abdul Ajij Shaikh gave a blow with a knife on the lower left ribs of Bharat Bhushan. Vidhya Bhushan left the appellant no.2 Mahiboob, and rushed towards Bharat Bhushan to save him when the appellant no.2 picked up a stone and threw it towards Vidhya Bhushan. The stone hit Vidhya Bhushan on his head. Bharat Bhushan was taken to Civil Hospital, Solapur where

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he was examined and treated by Dr. Gautam Jagtap (PW 4). In the same night, Dr.Prakash Ghatole (PW 11) performed surgery over Bharat Bhushan. PSI Birajdar (PW 9), on learning about the incident, went to the Civil Hospital, Solapur where Bharat Bhushan had been admitted. He recorded the statement of Vidhya Bhushan which was treated as the First Information Report in the course of investigation. The appellants were arrested. Certain articles came to be seized in the course of investigation. On 23 June 1989, the appellant no.1 disclosed certain information in the presence of panchas, pursuant to which a knife was recovered from his house. This knife, as also the blood samples of Bharat Bhushan and the appellant no.1 Mohammad were collected, and along with the other seized articles, sent to the Chemical Analyzer for analysis and report.

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5 During the trial, the prosecution examined 12 witnesses. It is not necessary to discuss the evidence of all the witnesses, as the material witnesses are only Vidhya Bhushan (PW 3), Dr. Gautam Jagtap (PW 4), Bharat Bhushan (PW 5), Rajendra Shah (PW 6), Milind (PW 8), PSI Birajdar (PW 9) and Dr. Ghatole (PW 11).

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6 In his evidence, Vidhya Bhushan (PW 3) has mentioned about the incident consistently with the prosecution case. He has spoken about Rais and his companion abusing Vidhya Bhushan, and accusing that it was due to him that Rais had lost his job. His evidence shows that he was knowing both the appellants previously though he was not knowing their names. He has categorically

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stated that the appellant no.1 Mohammad gave a blow to Bharat Bhushan with a knife. He also stated that when he was trying to save Bharat Bhushan, the appellant no.2 Mahiboob picked up a stone and threw it on him.

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7 The evidence of Bharat Bhushan is also consistent with the version of the prosecution.

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8 If the evidence of these two witnesses is examined, it could be easily noticed that there are absolutely no infirmities in their evidence. Nothing has been brought out in the crossexamination of either of these two witnesses which would discredit their version.

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9 The learned counsel for the appellants attempted to create some doubt about the testimony of Milind (PW 8). His attempt was to show that, in all probability, Milind was not an eye witness to the incident. In the view that I am taking, it is not necessary to go deeper and analyze the evidence of Milind to find out whether the same is trustworthy, inasmuch as the evidence of Vidhya Bhushan and Bharat Bhushan, is acceptable and reliable. The same is corroborated by the evidence of Dr. Jagtap (PW 4) and Dr. Ghatole (PW 11).

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10 The evidence of Dr.Rajendra Shah (PW 6) also corroborates the version of Bharat Bhushan and Vidhya Bhushan to a certain extent. It shows that Rais had been employed on the recommendation of Vidhya Bhushan, and that the services of Rais

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were subsequently terminated. His evidence also shows that Vidhya Bhushan had told him that two to three boys had come to the factory, and had some quarrel with Vidhya Bhushan. It appears to be a fact that it is on the recommendation of Vidhya Bhushan that Rais was removed. The version of Rajendra Shah is not shaken in any way in the cross-examination.

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11 Thus, once the evidence of Vidhya Bhushan and Bharat Bhushan is found to be reliable and acceptable, particularly because it is also supported by medical evidence, it cannot be doubted that the appellant no.1 had indeed assaulted Bharat Bhushan with a knife.

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12 The learned counsel for the appellants submitted that there was no satisfactory evidence of the identity of the appellants as the assailants, as no Test Identification Parade in the matter was held. He also pointed out that the evidence of the identification made in the Court, during the trial, was not satisfactory, and could not be relied upon. I am not impressed by this contention, inasmuch as the appellants were previously known to Vidhya Bhushan, though he did not know their names. Though it is not clear, how the Investigating Agency got the identity of the appellants as the assailants fixed before their arrest, the fact remains that there is no serious challenge to the evidence of identification in the cross-examination of Vidhya Bhushan. Under these circumstances, since it is very clear that the appellants were known to Vidhya Bhushan since prior to the incident, the identification of the appellants as the assailants made in the Court

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during the trial, can be safely relied upon when the evidence in respect of such identification is not shaken in the cross-examination.

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13 There are only two aspects which need consideration. The first would be what offences the appellants, or any of them, can be said to have committed on the facts proved. The other aspect would be whether there was satisfactory evidence against the appellant no.2 Mahiboob to hold him guilty of the alleged offences.

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14 Rais has not been examined as a witness in this case. He is also not an accused. The prosecution case is that it is because of the sympathy felt for Rais that the appellants were angry with Vidhya Bhushan, and that this anger led to the assault. However, the knife which the appellant no.1 Mohammad was possessing was used by him only when Bharat Bhushan shouted and cautioned Vidhya Bhushan in that regard, which resulted in Vidhya Bhushan’s reaction of apprehending the appellant no.2 Mahiboob. It is significant that the appellant no.1 gave a blow with the knife on the left side of Bharat Bhushan only when Vidhya Bhushan had already caught hold of the appellant no.2, and Bharat Bhushan was rushing towards Vidhya Bhushan – although to save him. The evidence of Vidhya Bhushan and Bharat Bhushan, leaves no manner of doubt that the appellant no.1 rushed towards Vidhya Bhushan after Vidhya Bhushan had caught the appellant no.2. According to Vidhya Bhushan himself, the appellant no.1 rushed towards him to get the other accused, rescued. Thus, a clear picture that emerges is as follows:-

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The appellants had some grudge against Vidhya Bhushan because the services of Rais were terminated on Vidhya Bhushan’s recommendation, and the appellants had, in all probability, gone to the house of Vidhya Bhushan after making preparations to cause hurt to him, inasmuch as the appellant no.1 was carrying a knife with him. However, the assault actually took place only when Bharat Bhushan shouted and cautioned Vidhya Bhushan by saying that the appellant no.1 was having a knife with him, and when this resulted in Vidhya Bhushan’s reaction of apprehending the appellant no.2. Bharat Bhushan was also coming towards Vidhya Bhushan and the appellants, and it is under these circumstances, that the blow came to be given to Bharat Bhushan by the appellant no.1.

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15 The appellant no.2 Mahiboob was not armed with any weapon. He is alleged to have lifted a stone lying there, and of having thrown it on Vidhya Bhushan. Since all this happened after Bharat Bhushan had shouted and after the appellant no.2 had been held by Vidhya Bhushan, it is difficult to hold that the knife blow which was given by the appellant no.1 to Bharat Bhushan, was in furtherance of the common intention of both the appellants. From the evidence adduced during trial, such an inference cannot be safely drawn. Though the role of picking up a stone and throwing it towards Vidhya Bhushan is attributed to the appellant no.2, it appears to be a sudden reaction of the appellant no.2 as a result of the fact that he had been held by Vidhya Bhushan and does not go to show that he and the appellant no.1 shared any common intention.

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16 So far as the appellant no.1 Mohammad Abdul Ajij Shaikh is concerned, though that he assaulted Bharat Bhushan with a knife cannot be doubted, it is doubtful whether the assault was with such intention and/or knowledge, as would be required for constituting the offence punishable under section 307 of the IPC. In every criminal trial, even while drawing inferences, out of two reasonable possibilities, one in favour of the accused is to be preferred. It is not the case of the prosecution that Rais had sent the appellants to attack Vidhya Bhushan, inasmuch as, Rais is not an accused in this case. It is therefore, difficult to hold that the appellants would entertain an intention to do away with Vidhya Bhushan, because he was instrumental in termination of the services of Rais. The offence committed by the appellant no.1 appears to be one punishable under section 326 of the IPC, rather than one punishable under section 307 of the IPC.

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17 So far as the applicant no.2 is concerned, since the evidence that a stone was indeed thrown towards Vidhya Bhushan by the appellant no.2, and that it hit Vidhya Bhushan causing injuries to him, is unshaken, there is no reason to doubt the same. However, this would establish only the commission of an offence punishable under Section 323 of the IPC, in the absence of any evidence to show that grievous hurt was thereby caused to Vidhya Bhushan. As discussed earlier, he cannot be held responsible for the act of the appellant no.2. Similarly, the act of the appellant no.2 – viz., of throwing stone towards Vidhya Bhushan, cannot be said to be in furtherance of the common intention of the appellant nos.1 and 2. For this act, the appellant no.1 cannot be held guilty.

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18 Thus, to conclude, the appellant no.1 is proved to have committed an offence punishable under section 326 of the IPC. The appellant no.2 is proved to have committed an offence punishable under Section 323 of the IPC. Since the evidence does not indicate that the acts attributed to the appellants respectively, were done by them in furtherance of the common intention of both of them, each one of them would be liable for his own acts.

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19 The learned counsel for the appellants urged that a lenient view with respect to the sentences, be taken. He submitted that the incident had taken place in the year 1989. The appellants were convicted by the judgment and order dated 17 August 1993.

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20 I have considered the matter.

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21 Since the offence punishable under section 326 of the IPC is also a serious one, and since the appellant no.1 has been in custody hardly for about 5 months, an extremely lenient view in the matter of sentence, is uncalled for. Inspite of the distance of time which is certainly a factor that would weigh in favour of leniency in the matter of sentence, the gravity of the act of the appellant no.1 is such that he must be made to undergo some further substantive sentence. In my opinion, this is a case where the victim ought to be adequately compensated for the sufferings undergone by him. It would be, therefore, necessary to impose suitable sentence of fine upon the appellant no.1, and direct the victim to be compensated from out of the amount of such fine.

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22 So far as the appellant no.2 is concerned, he has been awarded a sentence of rigorous imprisonment for 3 months for the offence punishable under Section 323 of the IPC, which has already been undergone by him. The same sentence should be maintained.

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23 After considering all the relevant aspects of the matter, I am of the opinion that the following order would meet the ends of justice.

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O R D E R

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Appeal is partly allowed.

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The conviction of the appellant no.2 Mahiboob Abdul Ajij Shaikh with respect to the offence punishable under Section 307 of the IPC and the sentence imposed upon him therefor, is set aside. The appellant no.2 stands acquitted of the said offence. However, his conviction with respect to the offence punishable under Section 323 of the IPC and the sentence imposed therefor, is maintained.

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The conviction of the appellant no.1 Mohammad Abdul Ajij Shaikh in respect of the offences punishable under section 307 IPC and also 323 of the IPC, and the sentences imposed upon him therefor, are set aside. Instead, he is convicted of an offence punishable under section 326 IPC, and is sentenced to suffer RI for 1(one) year, and to pay a fine of Rs.25,000/- in default to

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suffer RI for 1(one) year. If the fine is recovered, an amount of Rs.20,000/- therefrom, shall be paid to the injured Bharat Bhushan (PW no.5), as compensation.

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A copy of this order be sent to the appellants in prison.

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Appeal is disposed of in the aforesaid terms.

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( ABHAY M.THIPSAY,J )

Mohammad Abdul Ajij Shaikh and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohammad Abdul Ajij Shaikh and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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