MOHAMMAD SHAFIK KHAN MOHAMMAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant in this appeal was accused No. 1 in Sessions Case No. 1 of 1976 in which he had been tried along with one Hanumant Bajirao Deshmukh. The accused was charged for an offence punishable under section 301 of the Indian Penal Code and the other accused who was accused No. 2 was charged for an offence punishable under section 307 read with section 109 of the Indian Penal Code.

(2.) According to the prosecution, one Rajaram Genuji Naikade (who will hereinafter be referred to as 2 "the complainant") was working for sometime as a driller in the construction job at Bhatsai Dam in Shahapur Taluka of Thana district. That work was being carried on by a Company known as Jolly Brothers Pvt. Ltd. Prior to the date of the incident, he had been dismissed from service and, therefore, was not being allowed to enter the labour colony established by the Jolly Brothers Pvt. Ltd. (hereinafter referred as "the Company") for their employees. The incident in which the complainant was injured took place on 6th January, 1972, which was a Thursday. According to the complainant, at about 8.30 or 9.00 he tried to enter the labour colony when at the check-post the accused obstructed him as the complainant was not according to the accused, allowed to enter the area of the labour colony. The complainant swears that he told the accused that he must have writing to that effect, whereupon accused No. 1 and accused No. 2 both gave in writing that they had instructions from the management not to allow the complainant to enter the labour colony. The complainant has given later contradictory statements regarding the where about of this writing. At one place he has stated that he had given it to a friend of his from whom he was not able to collect it; at another stage he has mentioned that it was stolen when he was travelling in the train and he had lodged a complaint about its theft at the Kalyan Railway Police Station. The question whether he had taken such a writing from accused Nos. 1 and 2 is not of much consequence. But, I must proceed on the basis that the complainant was prevented by the accused from entering the labour colony.

(3.) It is then the prosecution case that sometime thereafter when the complainant was going in the labour colony near a common water tap, the accused appeared there all of a sudden from the side of a shop and rebuked him for having entered to colony unauthorisedly. The accused had in his hand what has been described as danda by all the witnesses and with that danda the accused is alleged to have given several blows on the different parts of the body of the complainant. Anticipating the prosecution evidence, I may state that this part of the complainants story is hopelessly unbelievable because the medical evidence shows that not more than one or two blows could have been given on his body. Be that as it may, the blow given by the accused on the right leg of the complainant resulted in the fracture of the bone in the leg. Some women who were present at the common water tap, came to the assistance of the complainant by lifting him and placing him on a cot. Within a shortime thereafter, says the complainant the police arrived on the scene and recorded his complaint, which is at Exhibit 26. In this complaint he has disclosed the name of the accused as his assailant and he has also disclosed the weapon which was used for causing injury to him. Thereafter the complainant was taken to different doctors for treatment and ultimately he was treated in the Thana Civil Hospital for the fracture of his leg bone. The police had registered a complaint under section 325 of the Indian Penal Code. But the complainant was dissatisfied with the same and, therefore, he filed a complaint in the Court of the Magistrate charging the accused with the offence punishable under sections 307, 326 and 109 of the Indian Penal Code. In this complaint, besides the present appellant to whom I am making reference as the accused, several other accused were joined, but ultimately the learned trial Magistrate committed the present appellant and Hanumant Bajirao Deshmukh to the courts of Sessions.