1 (APEAL-293.90) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.293 OF 1990 Mohmed Alli Rasool Shaikh ) Age- Adult, Occupation – Service ) Resident of Kategaon, Taluka Barshi) District – Solapur ) (At present in Yeroda Prison) )….Appellant (Orig. Accused No.1) Versus The State of Maharashtra ) … Respondent. ---- Mr. Jaideep D. Mane for the appellant. Mr. J.P. Kharge, APP for the Respondent. ---- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATE : DECEMBER 08, 2011 ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Appellant - original accused No.1 is challenging the judgment and order passed by the Additional Sessions Judge dated 13/3/1990 whereby he was pleased to convict the appellant – accused No.1 for the offence punishable under section 302 of the Indian Penal Code and sentence him to suffer rigorous imprisonment for life and to pay fine of 2 (APEAL-293.90) Rs 100/- and, in default, to suffer rigorous imprisonment for two months. The Sessions Judge, however, was pleased to acquit original accused Nos. 2 and 3 for the offence punishable under section 302 read with section 34 and 109 of the Indian Penal Code. He acquitted all the accused for the offence punishable under section 120B of the Indian Penal Code and section 37(1) read with section 135 of the Bombay Police Act. 2. Prosecution case, in brief, is that on 12/3/1988 the deceased Adam alongwith Babu Karim Patel, Vyankappa Babu Jadhav, Shoukat Hasan Mulani and Ashok Pangare were playing cards near Zilla Parishad School of Village Kategaon. It is alleged that, at about 1.00 P.M., accused No.1 came there and he initially gave a blow on the face of the deceased Adam and, thereafter, further inflicted the blow on his head and other parts of the body with Sattur which is the weapon used for cutting meat and, as a result of the said injuries, the deceased Adam died on the spot. Prosecution case is that, thereafter, he went home, changed his clothes and left the village. Police Patil came to the site and, thereafter, lodged a complaint. Police prepared the spot panchanama as also inquest panchanama and accused Nos.2 and 3 were arrested on the same day. During the house search, post cards and letters were attached under the panchanama. The dead body was sent for postmortem and, thereafter, the appellant – accused No.1 was arrested. There was a recovery of burnt clothes at the instance of the 3 (APEAL-293.90) appellant – accused No.1 and they were seized and his locker which was at the place of his service was also searched and certain letters were also seized from that locker. The specimen handwriting of the accused No.1 was also obtained in the presence of panchas. The sattur was recovered at the instance of the appellant – accused No.1 and it was seized under the panchanama. The blood samples of accused No.1 were collected and sent to the Chemical Analyser for examination and report. The disputed letters were sent to handwriting expert for opinion. Charge- sheet was filed. Prosecution examined 13 witnesses out of which some were eye witnesses. Trial Court, on the basis of evidence which was adduced by the prosecution, convicted the appellant – accused No.1 and acquitted accused Nos. 2 and 3. 3. The learned Counsel appearing on behalf of the appellant has taken us through the judgment and order of the Trial Court as also notes of evidence. He submitted that there was a discrepancy in the evidence of prosecution witnesses viz. P.W. 2 – Babu Patel and P.W. 3 – Ashok Pangare. He submitted that P.W. 2 – Babu Patel has stated that they were playing the card game known as “Badam Saat” whereas P.W. 3 – Ashok Pangare has stated in his evidence that they were playing “Laddis”. He submitted that this clearly indicated that both of them were not at the site when the incident took place. It is also submitted that their conduct was not natural since both these witnesses had not 4 (APEAL-293.90) disclosed the incident to any one. It is further submitted that the evidence regarding recovery of sattur at the instance of appellant – accused No.1 also is not trustworthy. It is submitted that recovery panchanama at Exhibits 24 and 25 and at Exhibits-42 and 44 were in the same handwriting of A.S.I. A. Aziz Shaikh and they were written by constable Nimbole. It is submitted that the said constable Nimbole could not have been at two places at the same time, namely, at Pangri and at Pune. He submitted that, therefore, no reliance could be placed on the recovery of sattur at the instance of the appellant – accused No.1. 4. On the other hand, the learned APP appearing on behalf of the State submitted that there were two eye witnesses viz P.W.2 and P.W.3 to the said incident. The medical report corroborated the testimony of these two eye witnesses who have stated that the appellant committed premeditated cold blooded murder and, as such, the Trial Court was justified in convicting the accused No.1 who is the appellant herein. 5. After having heard the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State at length and after giving our anxious consideration to the evidence on record, we are of the view that the Trial Court has properly appreciated the evidence on record and has rightly come to the conclusion that the appellant had committed murder of his own brother deceased Adam and sentenced him to suffer imprisonment 5 (APEAL-293.90) for life. 6. Prosecution has examined 13 witnesses. P.W. 1 – Dagadu Patil, is the Village Police Patil who filed the complaint. P.W.2 – Babu Patel and P.W.3 Ashok Pangare are the eye witnesses to the said incident. P.W. 4 – Satish Law is the panch witness. P.W. 5 – Shankar Sonar is also the panch witness regarding recovery of burnt clothes at the instance of accused No.1. P.W. 6 is the panch witness about search of the house and attachment of letters as also recovery of sattur at the instance of accused No.1. P.W. 7 is the widow of the deceased Adam who has stated that accused No.1 had come to her and she noticed that he was holding the sattur which was blood-stained and his clothes were also stained with blood. P.W. 8 – Issamoddin Naikwadi has narrated that prior to the said incident certain allegations were leveled against the deceased Adam by his mother. P.W. 9 – Mahadev has stated that soon after the incident, he had seen accused No.1 near his well. P.W. 10 – Pandurang is the panch witness in respect of the specimen handwriting of accused No.1. P.W. 11 – Shaikh is the son of deceased Adam. P.W. 12 is the Investigating Officer and P.W.13 is the another Investigating Officer. 7. So far as the evidence regarding handwriting is concerned, Trial Court has disbelieved the opinion which was given by the handwriting expert and this finding has not been challenged by the State. The evidence of P.W. 2 and 3 6 (APEAL-293.90) who were eye witnesses is very relevant and both of them have, in categorical terms, given a graphic account regarding the assault by the appellant on the deceased. The evidence of P.W.2 and P.W.3 has not been shattered in spite of grueling cross examination by the defence. P.W. 3 – Ashok Pangare has given details as to how the incident had taken place and he has corroborated the testimony of P.W.2 and he has stated that the appellant gave a blow with sattur on the face of Adam and, thereafter, he gave the blow on his hand as well as neck and as a result of which Adam died on the spot. His testimony has also not been shattered in spite of grueling cross examination. The submission made by the learned Counsel appearing on behalf of the appellant that there was discrepancy in the evidence of P.W.2 and P.W.3 regarding cards game which was being played by them cannot be accepted. The contradiction is a minor one and it is possible that initially they may be playing “Laddis” and subsequently they may be playing “Badam Saat”. It does not create any doubt about their presence. The medical evidence also corroborated ocular testimony and from the postmortem notes which are brought on record, it can be seen that the Medical Officer has found that there were in all 11 incised wounds. It has been established that the cause of death was homicidal and the testimony of P.W. 2 and 3 is corroborated by the injuries which were found on the person of the deceased. 8. In our view, therefore, the prosecution has proved its 7 (APEAL-293.90) case beyond the reasonable doubt and the judgment and order passed by the Trial Court will have to be confirmed. The learned Counsel appearing on behalf of the appellant laid much emphasis on the fact that two panchanama; one regarding recovery of sattur and the other regarding specimen handwriting being taken of the accused No.1 had been written by the constable Nimbole who could not have been at the same place and time viz at Pangre and Pune. The said submission cannot be accepted. However, at the most, even if the said submission is accepted, in view of the eye witness account of P.W. 2 and 3, even if no reliance is placed on the recovery of Sattur then also the prosecution has succeeded in establishing its case beyond the reasonable doubt. 9. In the result the following order is passed:- ORDER Appeal is dismissed. Judgment and Order passed by the Trial Court is confirmed. Appellant shall surrender within two months. (M. L. TAHALIYANI, J,) (V.M. KANADE, J.) 8 (APEAL-293.90)