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CriAppeal-741-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 741 OF 2005Shammi Gafoor Pathan,Age 43 years, Occ. Hotel,R/o. Northern Branch,Shrirampur, Dist. Ahmednagar.… AppellantVersusThe State of Maharashtra… Respondent…..Mr. S. P. Katneshwarkar, Advocate for the Appellant.Mrs. Vaishali S. Chaudhari, APP for Respondent-State...… CORAM :ABHAY S. WAGHWASE, J.Reserved on: 14.02.2025Pronounced on: 04.03.2025JUDGMENT : 1.Appellant hereby takes exception to the judgment and orderdated 15.09.2005 passed by learned Additional Sessions Judge,Shrirampur in Sessions Case No. 68 of 2000 recording guilt of theappellant under Section 332 of the Indian Penal Code [IPC]. CriAppeal-741-2005-2- 2.PW1 Police Constable Sahebrao was proceeding towards hishouse on his motorcycle on 17.06.2000. He was given call by presentappellant, who was standing on the other side of the road. Informantresponded and halted. Appellant came, caught hold of informant byhis neck saying that he would not spare him alive for givinginformation resulting into raid at the gambling den, and saying so, heinflicted blows with razor on throat, neck and back. Other policeconstables rushed to save him, but they were also assaulted.Informant was taken to Doctor. Thereafter, in the hospital itself, helodged report resulting into registration of crime vide Exhibit 17.3.PW 10 conducted investigation and after gathering evidence,chargesheeted accused. He was tried by learned Additional SessionsJudge, Shrirampur, who appreciated evidence of in all 10 witnessesand also appreciated documentary evidence like FIR, spotpanchanama, injury certificates etc. On hearing both sides, learnedtrial Judge held charge for offence under Section 332 of IPC to beproved and recorded guilt of the appellant. Above judgment of conviction is now subject matter of theinstant appeal. CriAppeal-741-2005-3- SUBMISSIONSOn behalf of the appellant :4.Learned counsel for the appellant pointed out that there is falseimplication. That, there is no independent witness even when allegedincident had taken place on public road. That, all witnesses are policepersonnel. That, panchas did not support prosecution. He alsoquestioned recovery of razor. According to him, there is improperappreciation and evidence has not been correctly appreciated andnecessary ingredients for attracting the charge were not available andthus, criticizing the judgment, learned counsel seeks interference byallowing the appeal. In the alternate, he would submit that,conviction is almost two decades back and therefore, at leastsentence be reduced than that awarded by learned trial Judge.On behalf of the State :5.In answer to above, learned APP took this Court through theevidence of informant PW1, PW2, PW4 and PW5 and submitted that,not only informant, but other police personnel who had intervened,were also inflicted injuries and they have all deposed to that extent.That, appellant was caught red handed. Medical experts, whoexamined injured witnesses, have also stepped into the witness box.Therefore, according to her, there is no infirmity in the appreciation CriAppeal-741-2005-4- or conclusion reached by learned trial Judge and hence she prays todismiss the appeal for want of merits.EVIDENCE BEFORE THE TRIAL COURTPW1Police Constable Sahebrao Tarkase is the informant andinjured. His evidence at Exhibit 16 reads as under :“1.In 2000, I was attached to Shrirampur City police station.In June 2000, I was attached to D.B. Squad. In D.B. Squad, weare supposed to work in civil dress. Incident took place on17/06/2000. I know the accused. On 15/06/2000, oninformation about gambling on Sangamner road nearSangamner Naka, raid was operated on a gambling den. Theaccused Shammi Gafoor Pathan was running the said gamblingwho was also owner of the said hotel where he was running thegambling den. The members of the raiding party were PHCGaikwad, PC Shelar, Sonawane, myself. We had arrested fivepersons including accused Shammi Gafoor Pathan. Weproduced them before the JMFC concerned. He released themon bail. 2.On 17/6/2000, I came to my duty at City police station. Iwas in plain clothes as I was attached to Detection Branchsquad. At about 2.30 p.m., I was proceeding to my house bySangamner road after finishing my work in the police station. Iwas staying over near spot Girni. I have to go by Sangamnerroad. When I reached near Sangamner Naka, one person gave CriAppeal-741-2005-5- me call saying Tarkase. Therefore, I stopped my motorcycle andgot down from motorcycle. I saw the person who had called mewas none else but accused Shammi Gafoor Pathan. Till hecrossed the road he was talking nicely with me till he reachedto me. When he came near me, he caught hold of my neck withhis left hand and angrily said that raid on his den was due tomy information. Then he told that he would not leave me alive.He then took out a razor from his pocket. By holding the razorin right hand, he gave blows on my neck, on my back, on mythroat. I tried to avoid the blows, In the process, I sustainedinjury at my left thumb and left brow. I also sustained injury onmy throat, neck and back. During the course of attack, PCGadhave, Misal, Ayub Shaikh and PC Mali reached there. Theycame from police station. Accused saw them. Then he rushedtowards them and also assaulted them. In the attack, PCGadhave, Davkhar, Misal and Ayub Shaikh and PC Mali wereinjured. I was shifted to Saint Lukes Hospital. Dr. Masurkarexamined and treated me there. PI Mundhe came in thehospital. He recorded my FIR in the hospital. I read thecontents and signed the FIR. The FIR now shown to me is thesame. It bears my signature. Contents are correct. Exh. 17.Doctor had examined me when my statement was recorded byPI. My clothes were attached under panchanama as they werestained with blood. The accused before court is same. I canidentify my clothes and the razor. The clothes article No. 2, 3, 4now shown to me are the same. The razor Art. 1 now shown tome is the same. CriAppeal-741-2005-6- PW2Police Constable Prashant Misal is also injured. He is examinedat Exhibit 18 wherein he stated that :“1.I was attached to Shrirampur police station as aconstable in the year 2000. That time, complainant was alsoattached to City Police Station Shrirampur. The incident tookplace on 17.6.2000. The informant was attached to D. B. Squadhaving 24 hours duty. The PSO received a phone call.Somebody informed him that accused was assaulting theinformant with razor. It was about 2.30 p.m. when PSO told usto go there. Myself, constable Mali, Ayub Shaikh and Gadhave,Deokhar went on the spot of incident on motorcycle. We saw aperson was assaulting on informant with razor. The accusedwas the same person who is present in Court. We tried tointervene when the accused inflicted injury with razor on myribs. The other constables who were with me also sustainedinjury of raiser. When we were trying to intervene, we sawaccused tried to run away. In the process he fell on the ground.People also gathered there. They also assaulted the accused.We then took the informant as well as the accused to SaintLukes Hospital. The informant Tarkase sustained bleedinginjuries on his neck, throat and back. On enquiry, we came toknow that there was raid on the gambling den. Therefore,accused was annoyed and he assaulted the informant. I canidentify the razor. The muddemal Art. No. 1 now shown to meis the same razor. I was also given medical treatment for myinjuries.” CriAppeal-741-2005-7- PW3Bhagwan acted as pancha to spot panchanama. His evidence atExhibit 19 is as under :“1.I know Sangamner Naka area. I was not called on thespot of incident on 17/6/2000. The panchanama bears mysignature. On that day police had called me at Tilaknagarpolice station. They obtained my signature. It did not happenthat police prepared spot panchanama in my presence.2.On the same day. I was not called at Shrirampur policestation. No weapon was recovered in my presence.”Thus, this pancha witness was declared hostile and cross-examined by the APP.PW4Police Naik Chandrakant Mali, also deposed about the incidentat Exhibit 20 as under : “1.In In the year 2000, I was attached to Shrirampur policestation as a police constable. On 17/6/2000, there was somefight near Sangamner Naka. Then we 4-5 constables rushedtowards the spot of incident on motorcycle. We saw accusedassaulting to informant Tarkase with Razor vastara. Theaccused before the court is same. When we tried to catch holdthe accused, he tried to run away. In the process, accused fellon ground. People also assaulted him. Myself, Gadahve,Shaikh, Davkhar and Misal were the constables who came topacify the incident. The accused also assaulted us and inflictedrazor injuries. Then we took accused and informant and other CriAppeal-741-2005-8- injured in a jeep to hospital for treatment. We were sent tohospital for treatment. Doctor examined all of us. Doctor hadissued certificates. The razor was produced by me which wasthrown by accused near the spot of incident. I produced thesame. It was attached under panchanama. The razor Article no.1 now shown to me is the same.”PW5Police Constable Bhima Sonwane was party to the raid at thegambling den. While in the witness box, he stated as under :“1.I Was attached to Shrirampur City police station in June2000. On 15.6.2000, I was on duty. On that day we receivedintimation in respect of gambling being played by 5 persons atSangamner road near Sangamner Naka. We called twopanchas. Alongwith the panchas, police party operated raid atabout 11.00 a.m. The accused and 4 others were playinggambling. The gambling was being played in the premises ofthe accused. We attached play cards and arrested the accused,and others. I lodged complaint against the accused and others.The O.C. of the said complaint now shown to me is the same. Itbears my signature. Contents are correct. It is at Exh. 24. Theaccused before the court was the same, who was involved inthe gambling.”PW6Police Constable Bhausaheb Gadhave, also an injured, deposedat Exhibit 25 as under :“1.In June 2000, I was attached to Shrirampur city policestation. I know the informant Tarkase. So also the accused. On CriAppeal-741-2005-9- that day at about 2.30 p.m., we received message about assaulton constable Tarkase near Sangamner Naka. We policeconstables myself, constable Misal, and others went to the spotof incident. We saw the accused was assaulting the informant.Public had also gathered there. The accused was assaultingwith razor. When we tried to intervene, accused assaulted uswith razor. I sustained bleeding injury below my waist.Immediately was sent to Kamgar hospital for treatment. Doctorexamined me and treated me. The injury certificate now shownto me. I can identify the razor if shown to me. The razor beforethe court is the same.”PW7Dr. Masurkar, who examined informant Sahebrao, PrashantMisal and Chandrakant Mali, is examined at Exhibit 26,wherein he deposed that :“1. I am in service as Chief Medical Officer at Saint LukesHospital since 1971. On 17.6.2000, informant SahebraoTarkase was admitted in the hospital at 3.30 p.m. He gave ahistory of alleged assault by known person about an hour ago. Iexamined him and found following injuries -1. Multiple incise wounds in various sites on the body. a) Onthe neck, skin deep, left upper neck below the ear 7x.5 cm.2. Skin deep, over the nape of neck left of midline 8 X 0.5 cm.3. Skin deep, antero-lateral aspect of neck on left side, 8 X 1cm. CriAppeal-741-2005-10- 4 very superficial, non-grapin 7 cm. long on antero-lateral leftside, 2 cm. above and parallel to clavicle.5. Skin deep in right submandibular region 7 X cm.6. Skin deep on right side, placed antero-laterally extendingfrom the midline to anterior border of sterno-mastoid muscle10 X cms.7. Skin deep, antero-lateral in lower neck on right side.platysma muscle incised laterally 16x 1.5 cm.The following injuries were on the back-1) Skin deep, 2 in number, both 15x1.5 cm horizontally placedon either side of midline over left 12th rib and right 10th ribrespectively.2) Very superficial 2 in number, 5 cm long each on either sideof midline over left 10th and right 12th rib.C) Minor, very superficial wounds were found on1) Medial border of the nail of right thumb, 1.5 cm long2) Forehead above left eyebrow at its outer border, 2.5 cmlong.3) Upper lip above the line of mustache, on right side 2.5 cm.long.All these wounds were incised wounds. I also found some otherwounds on the person CriAppeal-741-2005-11- Skin loss over an area of 1 cm diameter over the intermediatephalanx of left index finger on the dorsum2) Bite marks 2 sets of teeth marks with bruising no openwounds at almost the same size in the upper third of leftforearm 6 cm below the fold of the elbow Joint medially. Areaaffected was 3.5 in diameter.All the above injuries were fresh. All the injuries in the 1stcategory were caused by sharp weapon with light weight.Injury under the category No. 1 also appeared to have beencaused by similar weapon. Injury under category (2) was dueto human teeth bite. Accordingly. I have issued certificate. Thecertificate of informant Sahebrao Tarkase now shown to mebears my signature. Contents therein are correct. It is at Exh.27. On the same day I had examined injured Prashant Misaland Chandrakant Mali.Prashant Misal was treated only once in our hospital. Iexamined him and found the following injuries on his person.1) minor abrasion over left lumbar region on the back. The saidinjury was fresh and appeared to have been caused by a blunttrauma. I issued the same. It bears my signature. The contentsare correct. It is at Exh. 26.On the same day at about 3.00 p.m., I also examinedinjured Chandrakant Mali and found following injuries.1. Minor abrasion over left foot and left knee. The aboveinjuries were fresh and appeared to have been caused by ablunt trauma. Accordingly, I issued certificate to the injured. It CriAppeal-741-2005-12- is now shown to me is same, it bears my signature. Contentstherein are correct. It is at Exh.29.The injured Sahebrao Tarkase was indoor patient from17.6.2000 to 26.6.2000. The injuries found on his person canbe possible by muddemal razor A. No. 1 now shown to me.I have sent a memo to police in respect of the injuredadmitted in the hospital. The memo now shown to me is same,it bears signature of my assistant doctor who was on duty atthe relevant time. Thereafter, police had come in the hospitaland recorded his statement. I certified that on the statementthat the patient was fully conscious and was able to give astatement. The endorsement on F.I.R. Exh. 17 now shown tome is in my handwritting, it bears my signature, contentstherein are correct.”PW8Dr. Satpute, who examined injured Bhausaheb, has deposed asunder :“1. In June 2000, I was attached to Kamgar Hospital asM.O. on 17.6.2000. I examined Bhausaheb Dnyaddeo Gadhave.I found following injuries on his person.Lacerated wound over left thigh lateral side 5X 1/4th cm.He was admitted in the hospital. However, same day he wasdischarged after treatment. I issued certificate. It is now shownto me is same. It bears my signature, contents are correct Exh.31. The injury can be possible by razor like weapon. Themuddemal A. No. 1 which is now shown to me can cause suchtype of injury.” CriAppeal-741-2005-13- PW9Shankar acted as pancha to seizure panchanama Exhibit 33.His evidence is as under :“1.On 18.06.2000, I was called by police at Saint LukesHospital. In our presence police attached clothes. Accordingly,the panchanama was prepared. Our signatures were obtained.The panchanama now shown to me bears my signature. Thecontents therein are correct. It is at Exhibit 34. The muddemalclothes now shown to me are the same.”PW10Prakash Mundhe was the Investigating Officer.ANALYSIS6.PW1 Sahebrao is the informant and he, in his evidence atExhibit 16, has stated that on 15.06.2000, on information beingreceived about gambling activity going on in a hotel owned by presentappellant, raid was conducted and 5 persons were arrested. Hefurther deposed that on 17.06.2000, while he was returning home,appellant gave him call, approached him, came near him, caught himby his neck with the left hand and said that the raid on his gamblingden was due to information by this witness, and saying that he willnot leave this witness alive, he took out a razor and gave blow on theback side of neck and throat. Witness states that he sustained injurieson throat, neck and back. At that time, police constables Gadhave, CriAppeal-741-2005-14- Misal, Ayyub and Mali reached there to save him, but accused rushedon them also and assaulted them. Informant and other injured weretaken to Doctor Masurkar (PW7) who treated them. He claims to havelodged report while in the hospital. Though informant is subjected to extensive cross, the manner ofquestioning and suggestions, more particularly para 4, shows thatthere is no serious challenge to the occurrence as the questions put tothe informant are, as to how long the incident lasted; when appellantspoke after holding neck; whether people gathered there, whether hefell unconscious. Therefore, such manner of questioning clearly showsthat occurrence is not disputed.7.PW2 Prashant Misal also stated that while at police station on17.06.2000, PSO received phone call about the incident andtherefore, he, constable Mali, Ayub, Ghadve and Davkhar went to thespot. He identified accused to be the same person present in the courtfor assaulting informant with razor. He deposed that when they triedto intervene, appellant inflicted injury on his ribs and also assaultother constables. He also took treatment for the injuries.Even in his cross, above occurrence has remained intact. CriAppeal-741-2005-15- 8.PW4, Chandrakant Mali, another Police Constable, has alsoreported that when they saw accused assaulting PW1 with razor, theyran there and tried to catch the accused and that time, accusedassaulted them also by means of razor. He identified the article razorshown to him in the court.In cross, it is brought that this witness saw informant lying onone side of the road and accused had also sustained injury.9.Similarly, PW6 Bhausaheb Gadhave, also a police constable andwho had suffered injuries to his waist, has reported like PW1 andPW3 and he was also examined by doctor and treated.10.PW7 Dr. Masurkar is the doctor who, in his evidence at Exhibit26, deposed about examining PW1 Sahebrao. He narrated the sizeand nature of injuries on neck and back, which, according to him, areincise injuries. He further deposed that PW1 was treated from17.06.2000 to 26.06.2000. He further deposed about examiningPrashant Misal and Chandrakant Mali and he identified injurycertificates issued by him. CriAppeal-741-2005-16- 11.PW8 Dr. Satpute is another doctor who had examined injuredconstable Bhausaheb Gadhave.12.Therefore, here, there is injured eye witness account, findingsupport from medical evidence. The investigating Officer has testifiedthat razor was produced by Chandrakant Mali (PW4) and he drewpanchanama Exhibit 39. Said razor was handed over on same day at18.05 hours i.e. immediately after the occurrence by said Mali, i.e.none other than injured witness PW4 Chandrakant Mali, who tookaccused in custody and shifted him to hospital for suffering injuries.He deposed that the said razor was picked up by him which wasthrown by accused near the spot of incident. Therefore, seizure ofrazor is also through injured eye witness and his evidence to thisextent has remained intact and unshaken. Therefore, there is noreason to doubt his version.13.Consequently, here, there is injured eye witness accountsupported by two medical witnesses. However, In view of alternatesubmissions made that conviction is awarded almost two decadesback and as apparently the sword of conviction is looming overappellant’s head since then, considering the circumstances in whichthe incident took place, sentence awarded by the trial court isrequired to be reduced. Hence, following order is passed. CriAppeal-741-2005-17- ORDERI.The appeal is partly allowed.II.The conviction awarded to the appellant Shammi Gafoor Pathanby learned Additional Sessions Judge, Shrirampur in SessionsCase No. 68 of 2000 under Section 332 of IPC on 15.09.2005 ishereby maintained.HOWEVERIII.The sentence is reduced and the appellant is hereby sentenced tosuffer rigorous imprisonment for one year.IV.There shall be no change in the fine amount as well as thedefault sentence.V.Rest of the impugned judgment and order is kept intact. [ABHAY S. WAGHWASE, J.]vre