drp {1} Cri. Appeal No.162/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.162 OF 2009 Sarwar Baig s/o Mustafa Baig APPELLANT Age-38 years, Occ-Labour R/o Lane No.20, Baijipura Dist-Aurangabad VERSUS The State of Maharashtra RESPONDENT Through P.I. Jinsi Police Station, Aurangabad ....... Mr. J.V.Deshpande, Advocate for the appellant Mr. B.V.Wagh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 9th December 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to suffer Imprisonment for life and to pay a fine of Rs.500/-, in default to suffer SI for one month, vide judgment and order dated 04.12.2010, passed in Sessions Case No.263/2007, by Ad Hoc Additional Sessions Judge, Aurangabad, has questioned the drp {2} Cri. Appeal No.162/2009 correctness of the same, by preferring the present criminal appeal. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- a) Gafoor Sadruddin, PW-5, attached to Jinsi police Station, Aurangabad, while on duty on 12.02.2007, received MLC from Ghati Hospital in respect of death of Sayyad Zaheer, who was declared dead when admitted in the Hospital. Thereupon, he deputed PSI Raute to record the complaint. Accordingly, PSI Raute recorded the complaint (Exhibit-25) of Sayyad Ejaz (PW-3). He forwarded the complaint to Jinsy police station. On the basis of the said complaint an offence was registered at Crime No.16/2007. Investigation of the said crime was entrusted to PW-5. b) During the investigation, immediately after the registration of the offence, spot Panchanama (Exhibit-21) was drawn in presence of Pancha witnesses. Blood mixed soil and plain soil, pieces of broken glass stained with blood were seized from the spot. The appellant was arrested under arrest Panchanama (Exhibit-16). Supplementary statement of the complainant was recorded and thereafter accused Javed was arrested under arrest Panchanama (Exhibit-17). Clothes on the drp {3} Cri. Appeal No.162/2009 person of the appellant were seized at the time of his arrest, under the arrest Panchanama. c) In the morning of 16.02.2007, inquest Panchanama (Exhibit-18) was drawn and the dead body was sent for Postmortem. Dr.Anand B. Mugadlimath conducted Postmortem and he noticed the following injuries on the person of the deceased- 1. Stab wound over left supra elavicular area 4 cm above the mid clavicular line, obliquely placed of size 1.5 X 1 cm X cavity deep and both angles acute, margin sharp (clean cut) reddish. Stab is directed inwards, downwards and medially. Tract of the stab skin subcutaneous tissu-pltisma muscles- subclavian artery-apex of left lung. 2. Abrasion 2 X 1 cm lateral to left nipple (3 cm) reddish in colour. 3. Abrasion of size 1 x 0.5 cm over above the area of left iliac crast, reddish. On the internal examination, he noticed the following injuries, 1. Left plural cavity contains about 1.5 liters of blood. 2. Left lung, collapsed with evidence of stab wound over apex of size 1 X 0.5 X 3 cm deep. Margins sharp. drp {4} Cri. Appeal No.162/2009 According to the Medical Officer, the injury sustained by the deceased is sufficient to cause death, in ordinary course. The external injury mentioned in column No.17 (1) is corresponding to internal injury mentioned in column No.20 (b). He has opined that sub-valvian artery is a major artery which takes blood from heart to brain and in this case that artery was cut. Cutting of such major artery can lead to instantaneous death in fraction of second. He also found that the left lung was punctured and had collapsed. However the right lung was normal. Accordingly, Postmortem report (Exhibit-23) was prepared. d) PW-5 recorded statements of certain witnesses and sent the seized property for chemical analysis. During the investigation blood sample of the appellant was also collected and sent for chemical examination. After receipt of the C.A. reports (Exhibit-35 to 38), and after completion of the investigation, charge sheet was filed against the appellant and accused Javed, before the JMFC, Aurangabad. 9th JMFC Court, Aurangabad, committed the trial to the Court of Sessions. e) Record shows that the Ad Hoc Additional Sessions Judge, Aurangabad had framed charge Exhibit-11 against the appellant and Exhibit-9 against the accused drp {5} Cri. Appeal No.162/2009 Javed for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. Both the accused pleaded not guilty to the charge and claimed to be tried. Record further shows that the prosecution has examined in all 5 witnesses. Prosecution witnesses were – PW-1 Syed Ashfaq, Panch witness to spot Panchanama (Exhibit-21), PW-2 Dr.Anand Mugadlimath, who had conducted the Postmortem on the deceased, PW-3 Syed Ejaz- complainant and eye witness, PW-4 Syed Aziz, Pancha witness to the seizure of clothes of the deceased and PW-5 Gafoor the Investigating Officer. Upon appreciation of the evidence, the trial court acquitted accused Javed whereas convicted the appellant for the offence punishable u/s 302 of the Indian Penal Code. The said judgment is impugned in this appeal. 3. Before considering the rival submissions, it is necessary to advert to the evidence of material witnesses. The star witness of the prosecution is witness No.3 Sayyad Ezaz, the complainant and sole eye witness to the incident. 4. It is in the evidence of PW-3 Sayed Ezaz, the only eye witness to the incident, that the incident took place on 15.02.2007 at about 5 to 5.30 p.m. when he was present in his shop along with accused Javed and Farooq. After some time, Sayed Zahir (deceased) came there. Accused Javed requested him to hold an drp {6} Cri. Appeal No.162/2009 engine to which Zahir refused and hence there was exchange of words between them. This witness had intervened and separated them. At about 7.00 p.m the appellant came there and questioned the deceased as to why he had raised quarrel with his son accused Javed. Thereafter the appellant took out a piece of glass from his pocket and gave a forcible blow near left side neck to Zahir. Zahir had sustained bleeding injury and had felled down. Thereupon, he had taken Zahir to Ghati Hospital and on way had collected sister of Zahir, however on reaching the hospital, the medical officer declared him to be dead. Thereafter, complaint was lodged in the police station. He also identified the piece of glass before the Court, as the same was used by the appellant to stab Zahir. It is in the cross examination of this witness that the said garage is situated infront of a road. As the engine was heavy, accused Javed had requested deceased Zahir to help him in lifting the same to which Zahir had refused. After the incident took place at about 5.30 p.m. Zahir was present in the garage at that time Farooq was also present there. At the time of assault by the appellant on deceased Zahir, this witness was present in the garage. After the assault Zahir had fallen down on the spot. He has also stated that the incident had taken place at the spur of moment. It has come in his further cross examination that prior to the said incident, there was no quarrel between the deceased and accused Javed. The appellant was not working in their garage or in the nearby garage. He denied the suggestion that in his presence appellant had quarreled with his son accused Javed and at that time the deceased tried to pacify drp {7} Cri. Appeal No.162/2009 and in that process he had fallen in front of a car on a piece of tin shit and had sustained the injuries from the scrap material lying in the garage. 5. PW-3 is the sole eye witness examined by the prosecution. During the course of submissions, learned counsel for the appellant urged that the prosecution has not established the motive behind the alleged incident. It is asserted by the learned counsel for the appellant that before the incident of assault, quarrel had taken place between accused Javed and deceased Zahir and it transpired from the cross examination of PW-3 that after the said incident none had gone out of the garage and hence there is no possibility that the appellant came to know about the quarrel between accused Javed and deceased Zahir. Therefore, according to learned counsel for the appellant, the testimony of complainant (PW-3) should not be accepted. It is also tried to urge that from the perusal of the spot Panchanama it cannot be believed that no blood was found on the ground in the garage when the deceased had sustained serious bleeding injury on his neck and the blood was oozing from his neck and then there is every possibility that some traces of blood might have been found on the spot spot where the deceased had fallen. However, no such traces of blood were found on the spot. According to learned counsel for the appellant considering the nature of weapon allegedly used by the appellant and the force behind the assault, there is likelihood that the appellant must have sustained injury, however he was not drp {8} Cri. Appeal No.162/2009 medically examined. It is also urged that considering the CA report, the blood group of appellant as well as deceased was the same and hence there is possibility that due to handling of the glass, injury might have been caused to the appellant and his own blood might have been transferred on his clothes. Therefore, it is urged to discard the testimony of sole eye witness and allow the appeal and acquit the appellant. It is also urged that the co- accused Javed has been acquitted by the trial court and hence on the same grounds the appellant is also entitled to be acquitted by giving benefit of doubt. In the alternative it is urged that considering that only a single blow was allegedly given, the conviction u/s 302 be converted into u/s 304 Part II of the Indian Penal Code. In support of his such submission, learned counsel for the appellant placed reliance on the observations of the Apex Court in the matter of “Walda Chandraiah V/s State of A.P.” (2007) 3 SCC (Cri) 709, “Shaikh Majid V/s State of Maharashtra” (2009) 1 SCC (Cri) 366 and “Vineet Kumar Chauhan V/s State of Uttar Pradesh” (2009) 1 SCC (Cri) 915. 6. Per contra, learned APP supported the impugned judgment and urged that PW-3, the sole eye witness has passed the test of reliability and hence the appeal be dismissed. 7. We have considered the rival submissions. Firstly, it has to be noted that we have to rely on the testimony of PW-3, as the incident occurred at 7.00 p.m. in his presence in the garage drp {9} Cri. Appeal No.162/2009 where he works and hence his presence at the place of incident is natural. Thereafter he had immediately shifted the injured to Ghati Hospital. On his narration MLC was recorded and on the basis of the MLC, PSI Raute had come in the hospital where his statement was recorded. As the complaint was lodged immediately after the incident, there are no chances of any manipulation in the complaint. Secondly, it has specifically came in the cross examination of PW-2, who has conducted the Postmortem, who has denied the suggestion that the injuries are not possible if one falls on a piece of glass. He has specifically stated in the evidence that due to assault the major artery was cut which lead to instantaneous death within fraction of second. The possibility, which was tried to urge that due to fall of deceased on the ground on the scrap material he had sustained the injury, is thus ruled out from the evidence of the medical officer. Considering the proved spot Panchanama, which nowhere discloses that the blood was noticed on the scrap material, which was lying in the garage and hence there is no doubt in our mind that the death of Zahir is caused due to assault by the appellant on his neck. 8. Circumstances, which require to be considered are that immediately after the lodging the complaint, within hours, the appellant was arrested and clothes on his person were seized under Panchanama (Exhibit-16), which was admitted by the appellant himself before the trial court. No doubt, the blood group of the appellant and the deceased is the same, yet at the same drp {10} Cri. Appeal No.162/2009 time, nothing is brought on record either in the cross examination of prosecution witnesses or in the explanation of appellant that during the incident he had sustained injuries and due to the said injuries his own blood was transfered on his clothes. Therefore, the ruling cited by the learned counsel for the appellant, in the matter of “Shaikh Majid V/s State” referred supra, is not applicable to the present case. In the said case the appellant accused had sustained injuries in the alleged incident, which were not explained by the prosecution and hence benefit of doubt was given to the appellant therein and his conviction was converted from section 302 to section 304 Part I of the Indian Penal Code. Likewise, in the matter of “Vineet Kumar V/s State” and “Valda Chandraiah V/s State” referred supra, it was the case that before the incident of assault, some altercation had taken place between the deceased and the appellants. In the present case, no circumstances are brought on record to indicate that before the appellant assaulted the deceased, some altercation had taken place. On the contrary, evidence on record indicates that after arrival of the appellant at the spot, he questioned the deceased as to why he had taken out a quarrel with his son-accused Javed and immediately thrusted the piece of glass on the left side of his neck, which ultimately resulted into his death. Though this is a case of a single blow, yet it squarely covers u/s 300 thirdly and not u/s 304 Part II of the Indian Penal Code. 9. Considering these aspects and the medical evidence, there is no doubt in our mind that the death of deceased Zahir is drp {11} Cri. Appeal No.162/2009 caused due to the assault by the appellant on his neck. Presence of blood of the blood group of the deceased on the clothes of the appellant indicate complicity of the appellant in the said offence. At the same time the appellant has not demonstrated or does not brought on record that due to the injuries sustained by the appellant, his own blood was transferred on his clothes. This is one additional circumstance in addition to the testimony of complainant PW-3, whose evidence is unshaken even in his cross examination and hence it can safely be inferred that the prosecution has established the guilt of the appellant. 10. Considering the overall effect, we do not find any merit in the appeal, which requires any interference by this Court. 11. Consequently, the appeal is dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel162-09