Criminal Appeal Nos. 513 and 523 of 1993. Case: Sayed Ahmed Ali Kari alias Munna Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal Nos. 513 and 523 of 1993 |
| Judges | G. R. Majithia , J. and V. Sahai , J. |
| Issue | Evidence Act (1 of 1872) - Section 3; Criminal Procedure Code (2 of 1974) - Section 154; Indian Penal Code (45 of 1860) - Sections 302, 326, 34 |
| Citation | 1995 CriLJ 3585 |
| Judgement Date | June 07, 1995 |
| Court | High Court of Bombay (India) |
Judgment:
Sahai, J.
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Since both these appeals arise out of the same set of facts, we propose disposing them of by a common judgment.
Vide judgment and order dated 12-8-1993, Shri V. C. Singh, Additional Sessions Judge, Greater Bombay, in Sessions Case No. 66 of 1990, and Sessions Case No. 49 of 1991, convicted the appellants of both the appeals on two counts, namely Section 387 read with Section 34 IPC and 302 read with Section 34 IPC; whereas under the first count, he awarded each of the appellants a sentence of five years RI and a fine of Rs. 1,000/- in default to further undergo RI for 30 days, on the second count, he sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default of payment of fine, to further undergo RI for 30 days. The substantive sentences of the appellants were directed to run concurrently. These convictions and sentences have been challenged in the present appeals.
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The prosecution in brief, as emerging from the recitals contained in the FIR, dying declaration of the victim and the evidence of the two eye-witnesses namely Abdul Hamid PW 1 and Abdul Majid PW 2, runs as follows:-
The victim (deceased) Abdul Razak had come to Ajay Transport on S. V. P. Road, Charnal, Dongri, Bombay sometimes between 9 a.m. and 9.30 a.m. on 31-10-1989. Along with him was his nephew Abdul Hamid PW 1 and his brother Abdul Majid PW 2. It is alleged that they used to manage Ajay Roadways which was a partnership firm dealing in transport business. At about 11.45 a.m. when the victim and PW 1 Abdul Hamid were standing on the footpath, in front of Ajay Transport and were talking, the two appellants came from the direction of Charnal. One of them namely Syed Munna told the victim to give Rs. 4,000/- and threatened him that in case he failed to do so, he should be ready to face the consequences. The other appellant Nasir Hussain Shaikh is alleged to have said 'give just now'. On that, the victim replied that since they were from the same Mohalla, why should he pay them the aforesaid amount. He also remonstrated as to why they were threatening him. On that appellant Sayed Munna inflicted a blow, with a knife used for cutting bread, resulting in three fingers of the right hand of the victim being severely injured. The victim's nephew PW 1 Abdul Hamid tried to catch Sayed Munna but, the appellant Nasir Hussain Shaikh thwarted his effort by kicking him on the back. Thereafter, both the appellants are said to have run away towards Charnal. It is alleged that some people who were passing be caught hold of Nasir Hussain near Charnal Island. They brought appellant Nasir Hussain near the Transport Office. In the meantime, a police wireless van from Dongri Police station came there. The appellant Nasir Hussain was handed over to the police. Blood was oozing out from Nasir Hussain's nose as a result of the injuries caused to him by persons, in trying to arrest him. Thereafter, Abdul Hamid PW 1 took the victim to J. J. Hospital on a motor cycle and at the aforesaid. Hospital, the victim was given first aid treatment and thereafter, was sent to Bombay Hospital.
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The FIR was lodged by PW 1 Abdul Hamid at 1.30 a.m. on 31-10-1989, at police station Dongri and in the aforesaid FIR both the appellants are named.
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Dr. Pravin Bagul, PW 7 of J. J. Hospital medically examined the victim and found three of his fingers cut. At the aforesaid hospital, injuries of appellant Nasir Hussain Shaikh were also medically examined.
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The investigation of the case was conducted by SHO Shivaji Wagh PW 6 who at the time of the incident, was attached to police station, Dongri. On the basis of the FIR, lodged by Abdul Hamid PW 1, Shivaji Wagh, PW 6 registered C.R. No. 392/89 u/S. 389, 325, 34 IPC against the appellants. The same day, he went to the place of the incident and between 2.30 p.m. and 3.30 p.m. prepared the spot panchanama. That very day he also went to the Bombay Hospital and at 5.10 p.m. there recorded the statement of the victim, under Section 161 Cr. P.C. After returning to the police station, he recorded statements of some other witnesses. Thereafter, investigation of the case was transferred to PI Gaikwad who has not been examined by the prosecution. On 1-11-1989, SHO Shivaji Wagh learnt that the victim Abdul Razak had succumbed to his injuries in Bombay Hospital.
After completion of the investigation, the charge-sheet was filed against the appellants.
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Going backwards, the autopsy of the dead body of the deceased Abdul Razak was conducted on 1-11-1989 between 9 a.m. to 9. 30 p.m. by Dr. Vijay Kelwekar PW 5. On the dead body, the doctor found the following three injuries:-
(1) Stitched wound on right index finger phalanx palmer surface 3 cm transverse.
(2) Stitched wound on right middle finger 3.5 cm proximal phalanx palmer surface transferse.
(3) Stitched wound on right hand ring finger proximal to middle phalanx 3.5 cm palmer surface.
In the opinion of Dr. Kelwekar, the aforesaid injuries of the deceased were grievous in nature as vessels were cut. He also opined that death of the deceased was on account of pulmonary oedma which was collection of fluid in lungs.
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In the course, the case was committed to the Court of Session. In the trial Court, charges under Sections 387 read with Sections 34...
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