YUSUF SARDAR NIYAMATULLA MOMIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Originally five accused were put up in the dock before the Additional Sessions Judge, Thane, for the office punishable under section 395 read with section 397 of the Indian Penal Code in Sessions Case No. 81 of 1976, for having committed jointly and committed act of dacoity and assaulted the complainant Maqbul on 20th April, 1975 at about 10.30 a.m. within the limits of Bhiwandi.

(2.) It was alleged by the prosecution that there was some enmity between the complainant Maqbul and five accused persons and in particular the accused persons had a grievance on account of the conduct of the complainant for remaining absent in Court when the proceeding was pending. On 20th April, 1975 at about 10.30 a.m. while the complainant was on his way to the factory five accused persons collectively rushed towards him and question him as to why he remained absent in Court on 17th instant where upon, the complainant replied that he did so as he had already engaged an Advocate and as such his presence was not felt necessary. It is thereupon that the accused indulged in abusing him in a flithy language. It was further alleged to the effect that the accused No. 1 was armed with a razor, while original accused Nos. 4 and 5 armed with sticks and the accused No. 3 was armed with an iron rod. It was then alleged that accused No. 1 Aspak hit the razor just above the forehead of the complainant causing a bleeding injury, accused No. 2 inflicted fist blow on his mouth. At that time the complainant had Rs. 210/- with him. It was alleged that accused No. 3 took out the said amount from the pocket of the complainant and gave it to accused No. 2 and thereafter, all the accused persons left the spot. The incident is alleged to have been witnessed by one Gyasuddin and 10 others witnesses. The complainant then approached the Bhiwandi Police Station where his complaint was recorded and he was taken to Bhiwandi Hospital for medical treatment. The police having been seized of the matter collected the evidence recorded the statement drew various panchanamas and after completing the same five accused person were charge-sheeted in the Court of Judicial Magistrate and on commitment they were tried in the Court of Sessions Judge, Thane for the said offences and the accused persons pleaded not guilty of the charge and have contended that they have been falsely implicated on account of enmity. Thus, the defence is one of total denial.

(3.) The learned Additional Sessions Judge, who conducted the trial rejected the prosecution case including the testimony of two eye-witnesses in so far as the part played by accused Nos. 1,3,4 and 5 as also to the aspect of injuries having been caused by means of a razor. He has also discarded the evidence regarding the allegation of snatching of the currency notes worth Rs. 210/-. He thus recorded an order of acquittal in favour the rest of the accused persons including accused No. 2 in so far as charge under section 395 read with section 397 is concerned. However, he qualified his order by holding that it was established by the prosecution that one fist blow was inflicted by the accused No. 2 on the face of the complainant thereby causing a simple injury and on the basis of that the learned Judge was pleased to hold accused No. 2 guilty of offence punishable under section 323 of the Indian Penal Code. On this finding, the said accused No. 2 was sentenced to suffer S.I. till rising of court and to pay a fine of Rs. 500/- in default to suffer R.I. for one month. The rest of the accused as indicated above, the were acquitted of all charges. It is this order that is being challenged in this appeal by accused No. 2, who is appellant in this appeal.