1 Cri. Appeal 509.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 509 OF 2007 Mukhtyar Jabbar Tadvi age: 28 years, Occu.: Nil R/o : Pimpalgaon (Hare), Taluka Pachora, Dist. Jalgaon ... Appellant (Orig. Accused) (Appellant is in jail) V E R S U S The State of Maharashtra, Through Police Station, Pimpalgaon (Hare), Taluka Pachora, Dist. Jalgaon (Copy to be served on Public Prosecutor, High Court of Bombay Bench at Aurangabad) ... Respondent ... Mr. S.P. Brahme, Advocate (appointed) for the appellant. Mr. K.G. Patil, A.P.P. for respondent-State. ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. DATED : 18TH NOVEMBER, 2009 JUDGMENT (PER : A.V. NIRGUDE, J.): 1] This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Jalgaon on 18.9.2007 in Sessions Case no. 150 of 2006 convicting the appellant Mukhtyar Jabbar Tadvi r/o Pimpalgaon (Hare), Tq. Pachore, Dist. Jalgaon for the offence punishable under section 302 of the Indian Penal Code and 2 Cri. Appeal 509.2007 sentencing him to suffer imprisonment for life and to pay fine of Rs.5000/- and in default to suffer rigorous imprisonment for six more months. 2] The prosecution case against the appellant, is as follows:- . The appellant and the deceased Munir were neighbours, residing at village Pimpalgaon (Hare). Both of them were labourers. On 16.12.2005, in the evening deceased Munir went to his house, had his dinner with his wife and children, went to his father who was residing next doors, told him that he was going for a movie and left. He went to watch a movie. The appellant was also seen in the movie theater at the same time. At about 11:00 to 11:15 pm., the father of the deceased Qutuboddin- the complainant in this case heard cries and alarms of his son Munir, outside his house. He heard Munir stating that he was stabbed and he was stabbed by the appellant Mukhtyar. He also mentioned that the appellant Mukhtyar was chasing and following him and was about to assault him once again. Hearing this alarm, the complainant hurriedly opened the door of his house and saw his son Munir in injured condition. He had sustained serious stab injury on his abdomen and the appellant Mukhtyar was standing behind holding a knife like weapon in his hand. Since the door was opened, the deceased came inside and fell down. The wife of the deceased Madina also rushed towards the complainant's house, hearing the 3 Cri. Appeal 509.2007 alarms. The appellant then ran away leaving one of his foot-wears behind. The complainant then called local medical practitioner who examined injured Munir and declared him dead. The complainant then went to Police Station and lodged his complaint at 1:00 am. The Police registered offence under section 302 of the Indian Penal Code against the appellant. The Police started investigation, recorded statement of various witnesses. P.W. 4 Dilip stated that the appellant had got a spear like weapon sharpened and repaired from him. The Police rather belatedly arrested the appellant on 3.5.2006. At his instance the Police recovered the weapon of the murder, pursuant to the discovery statement made by the appellant. The learned Judge of the lower Court conducted trial, recorded evidence of the prosecution witnesses and held that the prosecution had proved beyond doubt it's case and as said above, passed the judgment convicting the appellant under section 302 of the Indian Penal Code. 3] We heard learned counsel appointed for the appellant Shri S.P. Brahme and the learned A.P.P. Shri K.G. Patil and realised that following points arise for our consideration: (i) Whether the absence of motive for the offence, would be fatal to the prosecution case? 4 Cri. Appeal 509.2007 (ii) Whether the prosecution witnesses no. (7) and (8)-the complainant and the the widow of the deceased, are believable? (iii) Whether the difference in description of the murder weapon by the prosecution witnesses weakens the case? 4] As per the facts narrated above, the prosecution examined prosecution witness no.7-the complainant, the father of the deceased who stated the facts as per his narration in the F.I.R. It is common ground that the appellant Mukhtyar was a neighbour of this witness. He stated that when he opened the door, hearing the alarms and cries of his son Munir, he found him in injured condition standing in front of his door, whereas the appellant Mukhtyar was standing behind him with a knife like weapon in his hand. He also stated that the knife was stained with blood and that Munir had sustained a stab injury. Of course he did not see as to whether the appellant had stabbed deceased Munir. Prosecution witness no.8 Madina the widow of the deceased also supported the testimony of the complainant. She stated that at about 11:00 pm., she heard shouts of her husband saying that "Oh mother save me." She also heard her husband saying that appellant Mukhtyar had stabbed him in the stomach. She said she came out of the house opening the door and found the appellant standing near the door of the house. She said she could see him because there was 5 Cri. Appeal 509.2007 moonlight. She also stated that she saw the knife in the appellant's right hand and the knife was stained with blood. She said she also saw her husband having injury on his stomach and his intestines were coming out of the wound. She said her husband fell down on the ground near the door of the house of the complainant. She said the appellant Mukhtyar ran away from the spot. Both these witnesses did not say as to what could have been the reason for the appellant to attack and fatally injure Munir. There is virtually nothing on record to show that the deceased and appellant had any quarrel, prior to the incident. As said above, the prosecution witness no.2 Nisar the gate-keeper of the cinema hall, who deposed that he had seen the appellant as well as the deceased having come to watch the movie during that night, did not say that the appellant and the deceased had any interaction at the cinema hall or while they were leaving the hall. He neither indicated that they were seating together to watch the move or that they were together while leaving the cinema hall. 5] Shri Brahme for the appellant asserted that since this is a case based on circumstantial evidence, absence of motive, one of the circumstances, that could have been proved against the appellant if is not shown or proved, the case based on the circumstantial evidence would suffer. He almost asserted that the lack of motive would 6 Cri. Appeal 509.2007 prove fatal to the prosecution case. . We do not accept this contention though we agree that in a case based on circumstantial evidence, motive on the part of the accused is one of the circumstances and is required to be proved by the prosecution and in most of the cases, this circumstance would complete the chain of circumstances for proving the prosecution case. But this rule is not applicable to all the cases. In cases where the other evidence is over-whelming and is sufficient to complete the chain of circumstances, the lack of motive or lack of proof for motive would not prove fatal to the prosecution case. 6] Point no.2: In our view this is the most important aspect of this case. Shri Brahme asserted that both the prosecution witness no.7 and 8 would not have seen the assailant of the victim Munir, during that night. He said admittedly when the victim came shouting towards his house both the witnesses were asleep. He said, both these witnesses must have taken some time to wake up. He said, after waking up, they would have taken further time to realise that the alarm was raised by their own family member-the victim. He said realising this, these witnesses would have taken further few moments in going towards the door of the house and opening the same. He said by that time and sensing that these witnesses would woke up and open their doors, the 7 Cri. Appeal 509.2007 assailant would have escaped from there. He further asserted that the assailant after having dealt one blow on the abdomen of the victim, would not have chased him right up to the threshold of his house. The assailant would have realised, by the time the victim had almost reached up to his house, that he would not be able to catch him up and could have launched another attack. He would have left him alone and would have escaped with out being spotted by the witnesses. Shri Brahme also pointed out to us that the prosecution has not proved as to at which spot, at what distance from the door of the complainant's house the victim sustained the stab blow and so he asserted that there was no possibility of the assailant having chased the victim up to the threshold of his house. . Although this argument is plausible, it must be discarded. As said above, the incident took place at about 11:00 - 11:15 pm. During that night these two prosecution witnesses and others tried to help the victim. The complainant immediately rushed and called a local medical practitioner P.W. 10 to his house. As said above, the victim by that time was already dead. Both these witnesses and others by then knew that it was the appellant who had attacked and stabbed the deceased. Without further delay the complainant reached the Police station and lodged a detailed report specifically saying that the victim before his death made oral dying declaration that it was 8 Cri. Appeal 509.2007 the appellant who had stabbed him and that he had seen the appellant holding a knife in his hand following the deceased. Had this information not been with the complainant, the complainant's report to the Police would have been different. He would have stated that some unknown assailant had stabbed his son etc. These two witnesses therefore, are trustworthy and the learned Judge of the trial Court made no error in believing them. 7] Shri Brahme also pointed out that the prosecution witnesses no. 7 and 8 described the weapon which they saw in the hand of the appellant as "knife", whereas the prosecution witness no. 4 -the village blacksmith- stated that the appellant had obtained from him a 'spear'. . We are not inclined to accept this argument because when the prosecution witness no.7 and 8 flittingly saw the sharp edged weapon in the hand of the appellant at the time of the incident, they had a few seconds to see how the weapon looked like. They probably saw the blade of the weapon and from the size of the blade they described it as a "knife". If the other prosecution witness call it "spear", it could be a case of mis- description of the weapon. In any case, we are not quite impressed with the deposition of P.W. no.4 Dilip- the blacksmith. The Police recorded Dilip's statement rather belatedly after the 9 Cri. Appeal 509.2007 arrest of the appellant in May, 2006. This means this witness did not volunteer the information that he had given to the Police, immediately after the incident. The witness knew the appellant since prior to the incident. He said that on 21.11.2005, the appellant had come to him for getting a spear sharpened and for fixing a handle to it. He said he complied with the order of the appellant and he also said that he could recognize the article 16-the weapon shown to him in the Court hall as the one he had made for the appellant. He admitted that there are several blacksmiths in the village and that several of such spears were made by the blacksmiths in the village for several villagers who were engaged in hunting etc. He further admitted that he could not see any specific mark on article 16-the weapon which could be a mark he made while making the weapon. We do not find this testimony believable. 8] What is still more weak in the prosecution case qua the article 16, is it's discovery at the behest of the appellant. The prosecution proved that the appellant on 8.5.2006 led the Police and panch witnesses to a secluded place near a railway line and retrieved the weapon from the bush. This part of the prosecution case is not only believable. It would not link the weapon to the appellant and the incident. 10 Cri. Appeal 509.2007 Despite this weak link in the case, we still have no hesitation in dismissing the appeal. The Criminal Appeal stands dismissed. The fees of the learned Advocate appointed for the appellant is quantified at Rs.5000/- (Rs. Five Thousand). Sd/- Sd/- (A.V.NIRGUDE, J.) (P.V.HARDAS, J.) arp