1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 423/1997 Sayyed Ismail s/o Sayyed Ibrahim, Age : 37 years, R/o Bodwad, Taluka – Bhusawal, District – Jalgaon. ...Appellant. Versus The State of Maharashtra, through Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad. ...Respondent. Shri C.R. Deshpande, Advocate for appellant. Shri T.S. Lodhe, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J Date:16th November, 2010. ORAL JUDGMENT:- 1. This appeal is filed by original accused No.1 against the judgment and order passed by the learned IIIrd Additional Sessions Judge, Jalgaon dated 20th December, 1997 in Sessions Case No. 5/1994. The appellant who was the accused No.1 in the lower Court. He and the accused No.2 were charged for the offences punishable under Section 302, 307, 504, 506(II) read with Section 34 of Indian Penal Code. 2 The appellant was convicted for the offence punishable under Section 304(II) of Indian Penal Code and was sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- with default clause whereas the second accused was convicted only for offence punishable under Section 323 of Indian Penal Code and was not sentenced to suffer any rigorous imprisonment. He did not prefer any appeal against his conviction. So, the appellant who was accused No.1, was left alone to file this appeal. 2 3 The facts leading to the prosecution case can be narrated as under. Deceased Anil was son of the complainant Vishwanath. Deceased Anil and his wife Ranjana witness No.8 and his minor son resided separately from his father in an adjoining house. Anil had younger son by name Sunil. At the time of incident, Sunil was unmarried and there was rumour that he had a love affair going on with one Jairun bi who was a relative of the appellant. Deceased Anil had third brother Arun who used to reside in an adjoining house. Deceased Anil’s mother was Sakina who was the Muslim but married to Vishwanath and had begotten him three sons. 4 The incident took place on 5th August, 1993 at about 8.00 a. m.. Complainant Vishwanath and deceased Anil were sitting on Ota in front of Vishwanath’s house. The appellant and the other accused came there with sticks in their hands. They were accusing Sunil of having affairs with Jairun bi and were calling him, asking him to come out and that they would kill him. The complainant Vishwanath and deceased Anil intervened and were showered with blows of sticks. Both sustained injuries. Deceased Anil sustained injuries on his head. He became unconscious and was rushed to the hospital. Complainant Vishwanath sustained minor injury on his leg and was also sent to hospital. At about 3.00 p. m. on that day deceased Anil died due to head injury. Eventually, the appellant and the other accused were arrested and they were charge sheeted. 5 The prosecution in all examined 16 witnesses out of which six were eye witnesses. Prosecution witnesses No. 11,12 and 13 were independent eye witnesses. But they did not support prosecution case at all and they were declared hostile. The prosecution case thus depended on the depositions of witnesses No.7, 8 and 9 who were the family members of deceased Anil. 3 Witness No. 7 Sakina as said above, is the mother of the victim. Witness No. 8 Ranjana is victim’s wife and the witness No. 9 Arun was victim’s real brother. All three witnesses supported the prosecution case and unequivocally stated that it was the appellant who dealt two blows of stick on the head of the deceased. The learned judge of the lower Court disbelieved the deposition of witness No.9 Arun and this leaves us with deposition of witnesses No. 7 and 8. The learned advocate appearing for the appellant challenged the veracity of both these witnesses. In order to appreciate his submissions, one must first narrate as to what these witnesses stated in their depositions. 6 Prosecution witness No. 7 Sakina stated that on the date of incident in the morning hours deceased Anil- her son- came to her with his son. She said, her husband Vishwanath was sitting on the Ota of the house. She said, at that time the appellant/accused No.1, accused No.2 Budhan and the other two other persons came running to their house. She said, the appellant inflicted two stick blows on Anil’s head and the other accused delivered one blow of stick on the knee of her husband Vishwanath. She said, she had seen the incident from her house as she was sitting near the stove. She said, the distance between the stove and the Ota was about 7 to 8 feet. She said, her son Anil after sustaining injury, was lying on the road in front of her house. Her husband Vishwanath on the Ota of her house. She said, after incident the appellant and other accused ran away. In the cross examination, she admitted that she had not stated to the police that the distance between the hearth in her house and Ota was about 7 to 8 feet. She further admitted that the police did not record in her statement that two blows were inflicted on the head of her son Anil. 7 Witness No. 8 Ranjana stated that on that day at about 4 8.00 a. m. the incident took place. She said, she was in the house of her mother in law Sakina because part of her house was being constructed. She said, she was in the house of her mother in law Sakina and was making tea. She said, her husband and her father in law were sitting at the door of the house. She said, the appellant and other accused having sticks in their hands, came running to their house. She said, the appellant was saying that Sunil her brother in law had love affair with his sister and he would therefore kill him. She said, at that time, her father in law and her husband tried to pacify the appellant but the appellant assaulted them. She said, the other accused inflicted two blow on the knee of her father in law, whereas she said, the appellant dragged her husband and inflicted two blow on his head. She said, her husband lost his senses due to injuries and fell in mud. She said, her father in law suffered fracture to his leg. She said, both of them then were taken to the hospital. She also stated that this incident was witnessed by about 20 to 25 neighbours. She further admitted that all the members of her family had witnessed the incident. In the cross examination, she admitted that she had not stated to the police that at the time of incident, she was making tea in the house of her mother in law. She further admitted that she had not stated to the police that her house was partly demolished and that she was cooking her meals in the house of her mother in law. The learned advocate appearing for the appellant rightly pointed out that both these witnesses did not mention each other’s name in their depositions. Sakina did not say that Ranjana was in her house or had come to witness the incident. Neither Ranjana stated that Sakina was seen at the time of incident. 8 The learned advocate also pointed out that witness Sakina could not have seen the incident as she admitted that she was inside the house when the incident took place. He pointed out 5 that this witness could not have seen the incident sitting near the stove. He further pointed out that Sakina made improvement in her statements as she stated for the first time that the appellant had delivered two blows of stick on the head of the victim. According to him, this witness is unreliable. Indeed this witness did not state about presence of other witness Ranjana but the defence can not deny presence of Sakina in the house at the time of incident. It has come in evidence that the house of Sakina consisted only of one room and there was a Ota in front of the house. It is the prosecution case that when the assailants came, they first had altercation. They were abusing Sunil and this must have caused alarm in the locality and neighbourhood. It has come in the evidence that number of neighbours gathered around the place of incident. So, Sakina whose husband and son were ultimately made targets by the assailant, would not ignore the incident. She in fact could have stated that she came out of the house and saw the incident but she did not improve her version in that fashion. She insisted that she saw the incident from inside the house and yet could see what had happened outside the house. Although Sakina does not make mention of presence of Ranjana the other witness, the evidence of Ranjana has to evaluated separately. As regards the improvement in respect of the number of blows delivered by the appellant, I think this can not affect the credibility of the witness. She only increased the number of blows from one to two. I am not inclined to ignore the deposition of this witness. 9 Let me now come to the evidence of prosecution witness No. 8 Ranjana. The learned advocate appearing for the appellant brought to my notice that Ranjana had not stated to the police that at the time of incident she was making tea in her mother in law’s house or that her house was under construction at the relevant time etc.. Besides, he pointed out that Sakina did not 6 mention about Ranjana’s presence in her house. He pointed out that Ranjana thus could not have been in the house of Sakina at the time of incident and to that extent, her deposition is untruthful. I am assuming that this portion of the deposition of this witness is rather exaggeration. But I fail to see as to why Ranjana’s presence at the place of incident should be doubted. It has come on record that her house was situated adjoining her mother in law’s house. Assuming her house was not in order and was partly demolished or partly reconstructed and assuming that she could not have used her own house for residential purpose, there is nothing on record to suggest that she had gone away to reside elsewhere and was not residing in the vicinity. It is not suggested by the defence that at the time of incident she used to reside far away from the house of her mother in law. So, although other witness Sakina did not make mention of presence of this witness at the time of incident, her presence at the time of incident can not be denied. She had no reason to be elsewhere at the time of incident. I think the learned judge of the lower court made no mistake in believing her evidence. So, reliance placed by the learned Judge of the lower court on the deposition of these two witnesses was not incorrect. 10 The learned advocate appearing for the appellant further asserted that the prosecution could not prove the motive of the assault. I am afraid, through the deposition of prosecution witness No. 8 Ranjana, the motive has come on record. The appellant was stating that he would kill Sunil who had love affair with his sister (probably a cousin). 11 The learned advocate then asserted that the Court should not believe the deposition of the above mentioned two witnesses because they were interested witnesses. He said, other independent witnesses did not support prosecution case at all and did not provide corroboration. I am afraid this submission can not 7 be taken into account because the incident took place at broad day light at about 8.00 a. m.. It took place almost on the road in front of the house of the complainant. The incident was witnessed by number of people of the locality. Unfortunately, they did not support the prosecution case. The appellant apparently could not influence the nest of kins of the victim and since they were natural witnesses, their evidence can not be discarded only because they were related to the victim. Unfortunately, for the prosecution, the complainant Vishwanath the husband of witness Sakina died before his deposition could be recorded in the court. He was an important prosecution witness. He was not only an eye witness but also a victim of the assault. But despite his absence, I think the prosecution has proved its case beyond reasonable doubt. 12 The learned advocate appearing for the appellant also submitted that the appellant alone could not have been convicted under Section 304-II since the other accused was also charged with the similar offence using Section 34 of the Indian Penal Code. He said, it was the prosecution case that both the appellant and other accused had any intention to cause death of the victim and since the other accused was not convicted under Section 304(II) of Indian Penal Code, the appellant could not have been convicted for such offence. I am afraid, this submission is not acceptable because the prosecution could not prove the common intention between the assailants. It is seen from the evidence that the appellant in the heat of moment delivered stick blows on the head of the deceased which caused his death. The other accused did not participate in such a assault. The other accused targeted non vital organs of his victim and had not caused any serious injury to him. The learned judge of the lower Court rightly convicted the appellant under Section 304(II) and left aside the other accused. 8 13 The learned advocate appearing for the appellant then made submission that showing leniency to the appellant, the duration of sentence should be reduced. He said, the incident took place in 1993. Since then more than 17 years have passed. The appellant has a family to look after. He has no previous criminal record and even after the incident, he is not involved in any other criminal case. He said, the appellant got enraged probably because his cousin was getting involved with a boy from another community. I am afraid, all these circumstances are already taken into account when a lenient punishment is awarded to the appellant. The sentence of five years rigorous imprisonment and fine of Rs.1,000/- in my view is appropriate sentence and I am not inclined to interfere in it. The appeal should therefore, fail. ORDER The appeal stands dismissed. Issue arrest warrant against the appellant. (A.V. NIRGUDE, J) ts k/16.11.10criapl423.97/ok