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2019 Supreme(Bom) 99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
Sy. Azhar Sy. Kalandar - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No.243, 136 of 2018
Decided On : 04-01-2019
For the Appellant :Mr. S.D. Chande, Advocate, Mr. A.S. Deshpande, Advocate
For the Respondent: Mr. M.K. Pathan, A.P.P.
Headnote:
Indian Penal Code,1860 - Sections 307 and 34 - Indian Evidence Act - Sections 27 - Attempt to murder - Concealed the weapon - Memorandum statement - Whether the injury caused on the abdomen of the injured is possible said requisition is Report of the Medical Officer - Lodged his oral report with Police Station - FIR was in respect of assault made by accused injured - When Sandal procession was taken out in village Ansing and when procession reached near Gandhi square, there was a commotion in procession - Some persons were approaching Temple and in order to prevent them from reaching to Gandhi Square, first informant, injured unknown persons and accused came there and gave a knife blow on abdomen of injured - Report was disclosing commission of cognizable offence – Held, Punishment can be up to life - Legislature has given a discretion to Court to impose duration of sentence commensurate to injury suffered by the surviving victim. In present case, it is seen there was enormous loss of blood due to the injury, injured was required to be operated upon and he was required to be an indoor patient and the nature of injury as per the medical evidence was not only grievous but was life threatening also. refrain myself from disturbing quantum of sentence imposed upon accused - Court below has rightly punished accused no.1Syed for rigorous imprisonment - Accused are concerned are convicted with the aid of Section 34 of the IPC - There is nothing available on record to show accused were knowing accused was armed with dangerous weapon, knife evidence, it is really harsh if they are convicted by taking the aid of Section 34 - Observed in the preceding paragraph of the judgment, their very presence at the spot itself is doubtful - Criminal Appeal No.136/2018 is hereby allowed
1. These two appeals are taken up for final hearing and they are disposed of by this common judgment. These two appeals arise out of judgment and order of conviction passed by learned Additional Sessions Judge, Washim in Sessions Case No.10/2017 on 23.02.2018. By the said judgment and order of conviction, the appellants in these two appeals are convicted for an offence punishable under Section 307 of the Indian Penal Code and directed to suffer the rigorous imprisonment for 10 years by each of them and to pay a fine of Rs.10,000/-to each of them with default clause of sufferance of three months rigorous imprisonment by each of them.
2. Criminal Appeal No.243/2018 is filed by original accused no.1-Syed Azhar Syed Kalandar. Criminal Appeal No. 136/2018 is filed by accused no.2-Mohd. Lukman Mohd. Shaikh Irfan and accused no.3Sk. Rashid Sk. Gani. In the present judgment, they will be referred by their original positions.
3. These three appeals are argued by Mr. A.S. Deshpande with Mr. S.D. Chande, Advocates. The State is represented by Mr. M.K. Pathan, learned A.P.P. for the State.
4. Gajanan Kute (PW6) lodged his oral report Exh.-49 with Police Station, Ansing on 11.05.2016. The FIR was in respect of assault made by accused no.1 Syed Azhar Syed Kalandar on Chintaman Dange (PW7) the injured. As per the oral report, when Sandal procession of Mastan Shah Baba was taken out in village Ansing and when that procession reached near Gandhi square, there was a commotion in the procession. Some persons were approaching from Nagnath Temple and in order to prevent them from reaching to Gandhi Square, the first informant, injured Chintaman and other were taking steps. At that time, two unknown persons and accused no.1 came there and gave a knife blow on the abdomen of the injured. The report was disclosing commission of cognizable offence. Therefore, crime was registered vide Crime No.80/2016 with Police Station, Ansing for an offence punishable under Section 307 of IPC.
5. Case diary of Crime No.80/2016 was entrusted to Subhash Bajare (PW12) a Police Sub Inspector. He executed spot panchanama Exh.-37 in presence of pancha witness Ghanshyam Tahkare (PW3). He also seized clothes of injured under seizure panchanama Exh.-38 in his presence. He also arrested accused no.3-Shaikh Rashid under arrest panchanama Exh.-78. Thereafter, investigation was carried by Yogita Bharadwaj (PW10).
6. Yogita (PW10) arrested accused no.1 and accused no.2, their arrest panchanamas are at Exh.-67 & 68. She also seized clothes of these accused under seizure panchanamas Exh.-31 and Exh.-41, in presence of Chandrasen Ingole (PW2) and in presence of pancha witness Vinod Dudhad (PW4).
7. During investigation, accused no.1 gave his memorandum statement in presence of Vinod Dudhad (PW4). By the said memorandum statement, accused no.1 agreed to show the place where he concealed the weapon. Admissible portion of memorandum statement recorded under Section 27 of the Indian Evidence Act is at Exh.-40. Police party led by accused no.1 reached to his house and from an almira inside the house, accused no.1 took out the knife. Recovery panchanama is at Exh.-41. The investigating officer also sent requisition memo to the District Medical officer, Washim along with the weapon in sealed condition and asked his opinion whether the injury caused on the abdomen of the injured is possible by it. The said requisition is at Exh.-69. Report of the Medical Officer is at Exh.-70. Perusal of Exh.-70 shows that after breaking open the seal, the weapon was taken out by the doctor and thereafter gave opinion that the injury is possible by the said knife. He then resealed the same and sent to the investigating officer. The investigating officer, after completion of other usual investigation filed the charge-sheet in the Court of law.
8. The jurisdictional Magistrate in whose Court the final report was presented, found that the offence is exclusively triable by Court of Sessions. Therefore, the
