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2018 Supreme(Bom) 720
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, K.L. WADANE, JJ.
The State of Maharashtra through Police Station Kotwali, Parbhani - Appellant
Versus
Shaikh Matin Javed s/o. Shaikh Khaja Moinoddin - Respondent
Criminal Appeal No. 187 of 2003
Decided On : 04-06-2018
Advocate Appeared:
For the Appellant : Mr. S.J. Salgare
For the Respondent: Mr. S.S. Kazi
Headnote:
Indian Penal Code,1860 - section 326 - Criminal Procedure Code,1973 - section 107 - Evidence Act - sections 7 and 8 - FIR- Offence of murder - First informant was working as Headmaster relevant time wife of accused was serving in same school since as Assistant Teacher and due to that first informant knew accused- Education officer has refused to give approval to appointment of wife of accused in said school and as this problem cropped up in school management transferred wife of accused to other school situated at District - She was relieved from school of accused became angry with first informant as he started feeling that only due to first informant his wife was transferred to distant place from accused started visiting school of first informant and started giving threats of life to first informant- At time of election State Legislature accused had visited school of first informant but on that occasion first informant was not available in school and on that occasion accused had given beating to school peon- school peon had given report to Police Station out of that incident accused then begged for pardon and police had started only chapter proceeding Criminal Procedure Code hereinafter referred to against accused –Held, medical evidence shows that first informant was indoor patient to aforesaid injuries- Considering nature of injuries and this circumstance and also opinion given by doctor that injury was grievous in nature this Court holds that grievous injury was inflicted by accused- Thus accused can be convicted for offence punishable even if evidence on motive is ignored evidence on motive already discussed helps to ascertain intention of accused- Similarly site of body where injury is inflicted nature of weapon used and number of injuries inflicted are also circumstances which need to be considered while ascertaining intention of accused at relevant time evidence on record shows that in past threat of life were given and at time of incident accused said that it was to be last day of life of first informant- Due to all these circumstances this Court holds that there was intention of murder- Thus in case of death of first informant accused could have been convicted for offence of murder- first informant survived and so accused needs to be convicted for offence of attempt of murder - Inference of intention mentioned in IPC always needs to be drawn from surrounding circumstances Court in two cases reported - State by Public Prosecutor Madras State of Madhya Pradesh In first case in view of facts of that case Apex Court held that it was not possible to take different view than view taken by Trial Court of acquittal- In second case circumstance like delay caused in lodging FIR- and other circumstances were considered due to which doubt was created about evidence given by so called eye witnesses- facts and circumstances of each and every case are always different- In present case first informant stuck to his version- FIR- was given immediately- evidence of first informant has corroboration of circumstances like medical evidence and also direct evidence- Accused has also not come out with different probability and he has taken defence of total denial- In view of these circumstances this Court holds that Trial Court has committed serious error in giving decision of acquittal in of accused respondent- Criminal cases need to be decided on basis of facts and circumstances of those cases- On decisions of Courts of record cannot be referred as precedents Court gave an opportunity to counsel of respondent accused to have his say on offence which can be made out- Similarly opportunity was given to have say on quantum of penalty- In view of nature of dispute and number of injuries caused this Court holds that sentencing accused with imprisonment of five years will be just and sufficient - Appeal allowed
T.V. Nalawade, J.
1. The appeal is filed against judgment and order of Sessions Case No. 207/2001, which was pending in the Court of 4th Additional Sessions Judge, Parbhani. The Trial Court has acquitted the respondent accused of the offences punishable under sections 307 and 201 of Indian Penal Code (hereinafter referred to as 'IPC' for short) and also of the offences under Arms Act and Bombay Police Act. Both the sides are heard.
2. In short, the facts leading to the institution of the appeal can be stated as follows :-
First informant Masood Khan was working as the Headmaster in Gulam Nabi High School, Jintur at the relevant time. The wife of the accused was serving in the same school since the year 1993 as Assistant Teacher and due to that the first informant knew the accused. The Education officer has refused to give approval to the appointment of the wife of the accused in the said school and as this problem cropped up in the year 1997, the school management transferred the wife of the accused to other school situated at Pusad, District Yawatmal. She was relieved from the school of Jintur. The accused became angry with the first informant as he started feeling that only due to the first informant his wife was transferred to distant place from Jintur.
3. The accused started visiting the school of the first informant and started giving threats of life to the first informant. At the time of election to State Legislature, accused had visited the school of first informant, but on that occasion, the first informant was not available in the school and on that occasion, the accused had given beating to school peon. The school peon had given report to Jintur Police Station out of that incident. The accused then begged for pardon and police had started only chapter proceeding under section 107 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for short) against the accused. Accused then started defaming the first informant and his institution due to the aforesaid dispute by publishing news against them in newspapers.
4. The incident in question took place on 9.8.2000 at about 10.00 a.m. On that day, the first informant left home for Jintur at about 9.55 a.m. and he was passing by the side of a Masjid of Parbhani. The accused came out of Masjid with a weapon which was concealed by him in piece of cloth. After coming close to the first informant, the accused removed the cloth, gave threat of life and started giving blows of weapon. That weapon is generally used for cutting mutton. There were two persons in the company of accused, but they were not known to the first informant. The blows of knife caused bleeding injuries to the limbs and other parts of the body of first informant. The first informant collapsed there and he was about to become unconscious. Some persons from Masjid and others who were passing thereby rushed to the spot. They had seen the accused assaulting the first informant. They shifted the first informant first to the Government Hospital, Parbhani. He was indoor patient in Government Hospital, Parbhani and there, his F.I.R. was recorded by police. The crime was registered on the basis of this F.I.R. in Kotwali Police Station, Parbhani for the offences punishable under section 307 r/w. 34 etc. of IPC at C.R. No. 99/2000. As condition of the first informant was serious, he was shifted to Aurangabad Hospital. He was indoor patient till 28.8.2000 due to multiple injuries caused to him. In all 13 injuries were found on his person. M.L.C. was prepared by the hospital of Parbhani and the discharge card was collected by police from the Civil Hospital, Aurangabad. Opinion was given that the injuries were sustained within six hours.
5. During the course of investigation, statements of witnesses came to be recorded on the day of incident and subsequently. The accused came to be arrested. During investigation, accused gave statement to police about the place where he had concealed the weapon, where he had th
