1 APEAL 711.04.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 711 OF 2004 Shabbirkhan Chandkhan age 47 year, Residing at Kamalpura, Near Master S.T.D. At Malegaon, District – Nasik, At present Yerwada Central Prison, Pune. ... Appellant. (Orig. Accused) V/s. The State of Maharashtra. Through Azadnagar Police Station, Malegaon, Nashik. ... Respondent. Mr. U.R. Agandsurve for the Appellant. Mr. D.P. Adsule, APP for the State. CORAM : NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATED : 5th AUGUST 2011. Judgment (Per Chandiwal, J.) :- The learned II Additional Sessions Judge, Malegaon by his Judgment of conviction dated 23rd March 2004 in Sessions Case No.44 of 2003, for an offence punishable under Section 302 of I.P.C., directed the accused – Appellant to undergo imprisonment for life and to pay fine of Rs.2,000/-. The Appellant has questioned the same. 2 APEAL 711.04.sxw 2. The Accused – Appellant had partnership activities in extracting the fats from animal bones by boiling them in frying pans. Their relations were on account of money matters. There were regular brawl on these factors. They had two hired frying pans from one Ilias Ansari. On 3rd January 2003, the accused – Appellant removed one of the frying pan from the furnace to be returned to its owner Ilias Ansari. This was opposed by Juber Khan Karim Khan (Deceased). Deceased wanted to discuss the matter with said Ilias Ansari in respect of the return of the frying pan while the accused had something else in his mind. On 5th January 2003 at around 10.00 a.m. there was altercation between the accused and the deceased on the same issue. The Deceased denied to comply return of frying pan. The Accused got outraged, he had brought a tempo to carry the frying pan. This act was prevented by the deceased and the labours were watching the screams and scolding. The accused was furious on such behaviour of the deceased. He left the unit, came back on bicycle with a bad hanged to the handle. The deceased was chit-chating with Mama driver on the iron cot while labourers and workers started doing the regular activities within nearby area. He parked the same near the Nala besides the field of Jakeriya Abdul Razzak. The accused – Appellant took out the Sura (a big knife), rushed to the deceased and without allowing wastage of momentum, gave blows of Sura to chest, abdomen, neck of the deceased, naturally due to pool of blood emanating, Juber Khan succumbed to the injuries on the spot. Accused threatened one of the person, who intervened and 3 APEAL 711.04.sxw chased him. The accused went to the Police Station informing the Police Officer of the event. The matter was also informed by Abdul Gaffar Khan. Police rushed to the spot. FIR of Abdul Gaffar Khan (Exhibit 23) was recorded. The incriminating articles were seized. Accused was put under arrest. Post- mortem on the dead body of Juber Khan was carried. The seized articles were sent to the Office of the Chemical Analysis. The C.A. Report was positive with presence of human blood on big knife (Sura), which was used in committing the offence. Charge-sheet was presented before the learned Judicial Magistrate, First Class at Malegaon, on 3.5.2003. Case was committed to the Sessions Court. After hearing on charge, the charge was explained to the accused for an offence punishable under Section 302 of I.P.C. The accused pleaded not guilty to the charge. 3. PW-1 Shaikh Rafiq Shaikh Latif and PW-2 Abdul Gaffar Ismile Khan are the two eye witnesses. Though there were six other eye witnesses, however, these are the two persons examined. PW-3 Dr. Mohd. Turabali Deshmukh, as a Medical Officer, carried post mortem on the dead body. PW-4 Shaikh Dadamiya Shaikh Suleman acted as a panch concerning recovery of Sura. PW-5 Gopal Sadashiv Thube carried the investigation. 4. FIR (Exhibit 23), Spot Panchanama (Exhibit 24), Inquest (Exhibit 25), Post-mortem notes (Exhibit 30), seizer memo of Sura (Exhibit 32), C.A. Reports (Exhibits 35,36 and 37) were 4 APEAL 711.04.sxw tendered on record. Defence had admitted the spot panchanama, inquest and post-mortem notes. 5. Accused did not dispute of the partnership and monetary transaction with deceased Zuber Khan at the said place. The accused in statement under Section 313 of Cr.P.C. did not dispute the incident. In answer to question No.43 the accused informed as under :- “ I myself and Juber Khan were doing partnership business at Ovhadi Nala. We did the business smoothly for 7-8 months. Thereafter, dispute cropped up on between us. An amount of Rs.25,000/- was due from Juber Khan. I was insisting him to clear the above amount. The accounts of our partnership business was being maintained by Juber Khan but he was not giving me the account even though I was insisting the same. When I used to ask him account of the business every time he went on abusing me and he avoided to give it. Since the due amount was not paid by Juber Khan and he was also not giving me the account of the business, therefore, I sustained loss and my family members were starving. On 5.1.2003, my wife demanded some amount to me. I said her that I would bring the amount from Juber Khan. I left the home at 8.00 hours and came to Ovhadi Nala. I demanded the amount to Juber Khan but he started quarreling with me. He abused me in filthy language and he also assaulted me. I suffered injury on 5 APEAL 711.04.sxw the foot and both the legs. There were a quarrel, I became annoyed and I took Sura from the ground and assaulted Juber Khan. When Juber Khan tried to assault me by means of axe at that time I took out Sura and made counter attack on him as a result of which he fell down. When I saw Juber Khan fell down, thereafter, I became frightened and thrown Sura and I came running to Police Station and gave information about the incident.” 6. The identity of the witnesses referred above including the deceased and the accused is not controverted. Post mortem notes are not disputed. PW-3 Medical Officer in his evidence has produced and proved the post mortem notes. He submits that on 5.1.2003 at 4.30 p.m. dead body of Juber Khan was brought at Wadia Hospital by Police Constable Shri Bawa, Bakkal No. 424 and he found three injuries viz. : 1. Incised wound over skull from bregma point to occipital external protuberance of size 5½ x 5½ inch and depth of injury upto dura and brain tissue. 2. Incised wound over right side of the neck supraternal region of size 3 x 1½ inch, muscle deep. 3. Incised wound over xipristernal region of size 2 x ½ inch muscle deep. 6 APEAL 711.04.sxw All the above injuries were due to sharp and cutting object with powerful blow. The injuries were fresh within six hours. They were grievous, dangerous for life and they were anti- mortem. On internal examination of head, he found heamatoma under scalp vertex and occiput region. Skull showed fracture of occiput region and vertex right side. On examination of brain, its dura matter was cut, brain on the tissue. According to him, the Sura (big knife – article 1) would be probable weapon to inflict the above referred injuries to the deceased. The deceased died due to hemorrhagic shock due to incised wound over neck and skull. The defence did not cross examine the Medical Officer. It is thus established from the evidence of PW-1, PW-2, PW-3 and Post mortem notes (Exhibit 30), that the death of Juber Khan was homicidal. 7. PW-1 Shaikh Rafiq was one of the employee on the furnace. PW-2 Abdul Gaffar was the owner of another furnace. The furnace belonging to the accused and Juber Khan (deceased) is at a distance of 10 fits from his furnace. It transpires in the evidence of PW-1 and PW-2 that on 3.6.2003 in the morning the accused started removing one of the frying pan from the furnace which was opposed by the deceased, then ensued into a quarrel between the duo. On 5th January 2003, again accused came on a bicycle at the scene of offence. He asked the deceased his desire to return the pan to Iliyas Ansari, the owner, as a tempo was brought for ferrying the frying pan. This tempo was indeed driven by Mama driver. There was again hot exchange of words 7 APEAL 711.04.sxw between the accused and deceased in respect of accounts and the furnace to be returned to owner. PW-1 and PW-2 stated in their evidence that deceased and Mama driver were sitting on the cot while workers were doing their activities nearby. The Accused was armed with a knife Sura kept in his bag on bicycle. Accused – Appellant whipped out knife and stabbed deceased insensately. The evidence of two witnesses on all material particulars match each other, there is no reason to discard the same nor their presence at the material time was disputed by the accused in the cross-examination. On the contrary, PW-1 was suggested in paragraph 4 as under :- “ It is not true that when I reached on the spot at 10.00 hours, I saw quarrel in between accused and deceased and accused, to save from the assault of deceased took out Sura and gave its blow on the person of Juber Khan (deceased). It is not correct that “accused himself suffered grievous injury on his head in the above scuffle. Accused chased the informant with Sura in his hand towards slaughter house, after having assaulted the deceased.” Then again it was suggested “it is not true that I have not seen the incident and I am deposing false.” 8. The above evidence of PW-1, now is considered in tune to the evidence of PW-2, it as stated earlier match to the events, his presence was again not disputed. In paragraph 9 it was suggested that it was PW-2, who had a quarrel with 8 APEAL 711.04.sxw deceased and the accused. The accused became annoyed with the deceased and there was scuffle in between them. The accused, in exercise of his right of self-defence assaulted Juber Khan by means of Sura (big knife). The witness disputed, that the accused suffered injuries on his both legs in the above scuffle and his cloths were stained with the blood. 9. The theory that the accused suffered injuries to his legs or to other body part is not demonstrated by any defence from the accused. On the contrary the evidence illustrate, the accused has virtually accepted that these injuries to his legs were mere aberrations caused due to thorny bushes. There was no grievous injuries or the simple injuries of any nature to the accused on any body part. This is illustrated in arrest panchanama of the accused. 10. At the spot panchanama (Exhibit 24), the corpse was found in pool of blood, lying on the cot and the other material. The theory of the deceased coming across a idle axe and facing the injuries, is illogical, difficult to digest particularly in the light of post mortem notes accepted by the accused. No axe is found at the spot. The another feature in the matter is, the accused himself approached to report the matter. This approach of the accused implicate him with the events providing a coupling to the evidence of PW-1, PW-2, spot panchanama and also recovery of the knife Sura at the instance of the accused. 11. The Investigator PW-5 had taken charge of blood stained 9 APEAL 711.04.sxw earth from the spot including simple earth. The apparels on the person of the accused were taken charge. The Sura (big knife) which was hidden by the accused in bushes near ovhadi nala recovered under panchanama (Exhibit 32) was sent to the office of Chemical Analyzer for analysis. The C.A. report is placed at Exhibits 35,36 and 37. The blood grouping of deceased was found to be of ‘B’ (Exhibit 36), the earth was stained with blood and Sura (big knife) was stained with blood on the blade and handle. The manila baniyan, full pant had moderate number of blood stains. No blood was detected on the full pant of the accused. The blood found on the above referred articles was of ‘B’ group. The blood of the accused was extracted and the C.A. report at Exhibit 37 informs that the ABO grouping could not be given. There is no contradiction between medical and ocular evidence. The C.A. report, thus, conclusively established that the knife was the only weapon used in assaulting the deceased and the blood sprinkled on the shirt of the accused having moderate number of blood stains ranging from about 0.1 c.m. to 3.00 c.m. in diameter on front hand sleeves with blood group ‘B’. There was no explanation from the accused about presence of stains on his persons. 12. The learned defence Counsel submitted that the prosecution should have examined other witnesses. However, it is not a rule of law. Section 134 of Evidence Act covers the field. So far, appreciation of testimony is concerned, the latest view of Apex Court calls for a thought. The Hon’ble 10 APEAL 711.04.sxw Apex Court in the matter of Brahm Swaroop V/s. State of U.P. Reported in (2011) 6 SCC 288 has observed in paragraphs 30 to 32 as under :- “32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the court to reject the evidence in its entirety. “irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and shifting through the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.” 11 APEAL 711.04.sxw 13. The case cannot be brought within the scope of sudden provocation and to cover the case for an offence under Section 304 part I or part II of I.P.C. The accused had regular brawl with the deceased. On 3.6.2003, after initial skirmish at around 10.00 a.m. accused went back, came prepared with Sura on his bicycle, parked the bicycle aside, rushed to the deceased who was unarmed, did not allow to escape deceased. In such event, the deceased was brutally assaulted by the accused. Even after the deceased moulder, the accused inflicted fetal injury at his neck. The facts illustrate, the accused braced up his mind to commit the offence and eliminate the deceased. It was a plan associated with an intention to put an end to the life of his partner, the deceased. The accused knew effect of his blows that it was likely to cause death in ordinary course of nature. 14. In the result, the Appeal is dismissed. The Judgment and Order passed by the II Additional Sessions Judge, Malegaon, in Sessions Case No.44 of 2003, for an offence punishable under Section 302 of I.P.C. is confirmed. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.)