CR.A/665/2000 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 665 of 2000 HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI =================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================== ZABIULLAHB @ NANNE SAHEJAD ALI ANSARI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) =================================== Appearance : MR EE SAIYED for Appellant MR HL JANI, APP, for Opponent =================================== CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and CR.A/665/2000 2/15 JUDGMENT HONOURABLE MR.JUSTICE KS JHAVERI Date : 13/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal is directed against the judgement and order dated 12th May 2000 passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad in Sessions Case No.152 of 1999, whereby the appellant was convicted and sentenced to suffer life imprisonment and to pay fine of Rs.100/-, in default, to undergo simple imprisonment for fifteen days for the offence punishable under section 302 of IPC. 2.0 The prosecution case, in short, is as under: 2.1 The complainant is Professor in B.D. Arts College and he has a daughter and four sons and the elder son Mahammad Rashid was studying for FYBA in Gujarat College. According to the complainant, about eight days prior to the incident in question his son Mahammad Rashid told him that he had an altercation with Jabibulla about playing cricket and he had advised his son not to talk to Jabibulla. On the day of the incident in the evening the complainant and all his family members were in the house. After dinner his son Mahammad went out. At about CR.A/665/2000 3/15 JUDGMENT 8.30 pm Gulam Rasul Shaikh came to the complainant and informed him that Jabibulla had inflicted knife blows on his son Mahmmad and Mahammad had been taken to Shardaben Hospital by one Yakoobbhai. Thereafter the complainant went to Shardaben Hospital where his son was in Emergency Ward and by that time his son had succumbed to injuries. At about 10 PM police reached there and the complainant has lodged the complaint. 2.2 In pursuance of the complaint the same was registered as C.R. No.29/1999 with Gomtipur Police Station for the alleged commission of offence punishable under section 302 of IPC. The police had made necessary arrangements for inquest panchmana in presence of panchas, filled in Marnotar form, prepared panchnama of the clothes of the deceased and also made arrangements for postmortem by sending the dead body for the same. The police has also recorded statements of various witnesses. 2.3 During the course of investigation the appellant was arrested and since the appellant has shown his willingness, the muddamal weapon was recovered at his instance and necessary panchnama was prepared in presence of panchas. CR.A/665/2000 4/15 JUDGMENT 2.4 The police has sent the muddmal articles to FSL for analysis. On receipt of FSL and postmortem reports and after completing all formalities, police submitted chargesheet before the Court of learned Metropolitan Magistrate, Ahmedabad. 2.5 As the offences alleged against the accused were exclusively triable by Court of Sessions, learned Metropolitan Magistrate, Ahmedabad, committed the case to the Court of Sessions at Ahmedabad City. Learned Additional Sessions Judge framed charge against the appellant. As the appellant-accused pleaded not guilty to the charge levelled against him and prayed for trial, to prove the guilt against the accused, the prosecution examined 11 witnesses and also placed reliance on many documentary evidence. 2.6 On submission of closing pursis by the prosecution, learned Additional Sessions Judge recorded further statement of the accused under section 313 of the Code of Criminal Procedure. Upon affording an opportunity of hearing to the learned Advocates appearing for the respective parties, learned Additional Sessions Judge delivered the impugned judgement convicting the appellant for life, which is challenged in the present appeal. 3.0 Heard Mr.E.E. Saiyed, learned Advocate for the appellant and Mr. CR.A/665/2000 5/15 JUDGMENT H.L. Jani, learned APP, for the respondent. 4.0 Mr. Saiyed, learned Advocate for the appellant has taken us through the oral evidence as well as documentary evidence and submitted that the appellant has never intended to cause death of the deceased. 4.1 He submitted that the weapon which has been used is not a deadly weapon and therefore it cannot be said that there was any intention on the part of the appellant to cause death of the deceased. 4.2 According to him the prosecution has failed to prove the case against the accused and there are no eye witnesses to the incident. 4.3 Learned Advocate submitted that the appellant is innocent, he has been wrongly roped in the case and therefore the appeal requires to be allowed. 4.4 Mr. Saiyyad has submitted that in the instant case the chain of events cannot be said to be complete and therefore benefit of doubt may be given to the appellant. CR.A/665/2000 6/15 JUDGMENT 4.5 He has relied upon a decision of the Apex Court in the case of Harjinder Singh V. Delhi Administration reported in AIR 1968 SC 867 wherein it is held that on the facts of the case it was quite legitimate to hold that the accused struck the deceased with the knife with the intention to cause an injury likely to cause death and that therefore the offence fell under section 304 Part I. In that case the intention of accused to inflict the particular injury on the particular place was not proved. 4.6 He has also relied upon a decision in the case of Laxman Kalu Vs State of Maharashtra, reported in AIR 1968 SC 1390 wherein it is held that even though there was no intention to cause death but accused having knowledge that his act was likely to cause death, the offence would fall under Part III of Section 299. 4.7 Lastly the learned Advocate for the appellant has argued that the appellant has already undergone sentence of nine years and therefore keeping in mind the family background and the circumstances narrated above the Court may reduce the sentence as already undergone. 5.0 Mr. H.L. Jani, learned APP for the State has vehemently argued that in this case the prosecution is able to prove the case against the CR.A/665/2000 7/15 JUDGMENT appellant beyond reasonable doubt. 5.1 He submitted that the prosecution has successfully proved the presence of the present appellant at the scene of offence and also his role, using deadly weapon and inflicting knife blows on the deceased. 5.2 He submitted that in view of the attack by the appellant on the deceased, the deceased had sustained serious injuries and succumbed to the injuries and this is not a case where interference of this Court is called for and the appeal deserves to be dismissed. 5.3 He has relied upon a decision in the case of Pulicherla Nagaraju Vs. State of A.P., reported in (2006) 11 SCC 444 wherein the question was when a single blow injury results into death, whether conviction should be under section 302 or 304 of IPC and it was held that whenever the death is on account of a single blow, the contention that the offence is one under section 304 and not section 302 is not acceptable. 6.0 In order to support the case, the prosecution has examined Gulam Rasul (PW5) at Exh.16. In his deposition he has stated that he had reached at Karim Chaudharini Chali at abut 8.30 pm and there he CR.A/665/2000 8/15 JUDGMENT met Javed Shaikh (PW4) who was distributing marriage invitation card. They both saw that in front of shop of Anubhai, Mahammad and the appellant were shouting at each other with loud voice. The appellant was abusing the deceased. Therefore this witness along with Javed Shaikh went to that place. Before they reached the spot the appellant took out a knife and inflicted a blow on the lower part of abdomen of Mahammad as a result of which he fell down. This witness has therefore immediately went to the place of father of Mahammad, and one Yakoob has taken the injured to the Shardaben Hospital. When he reached the house of the injured, the complainant was there and he informed him about the incident. This witness has recognized and identified the appellant who was present in the court. In the cross- examination he was put to several questions but nothing incriminating has come out against the evidence of this witness. On the contrary in his cross examination he has clearly stated that after the quarrel the appellant has taken out the knife and inflicted knife blow to Mahammad. 6.1 The prosecution has examined Javed Abdulla Shaikh, (PW4- Exh.11). According to his deposition, on the day of the incident, he was distributing marriage invitation cards of daughter of his Aunt and at about 8.30 pm he met Gulam Rasul at Karim Chaudharini Chali and they were talking with each other. At that time near the shop of CR.A/665/2000 9/15 JUDGMENT Anubhai, the appellant and Mahammad were shouting at each other and therefore both of them have gone to that place. Before they reached the spot, the appellant took out a knife and inflicted a blow on the lower part of the abdoman of Mahammad, Mahammad fell down and the appellant ran away towards Sarangpur Bridge. One Yakoob took the injured Mahammad to Shardaben Hospital in a rickshaw and Gulam Rasul went to the place of father of the injured. This witness has thereafter gone home and at about 10 PM he had gone to the Shardaben Hospital where he met father of Mahammad, Yakoob and others and he came to know that Mahammad had expired. In the cross- examination he has clearly denied that the appellant and the deceased had come to the place of incident after their arrival. He has fully supported the version of the eye-witness Gulam Rasul (PW5). He has also clearly stated that he has seen the appellant attacking Mahammad with knife. 6.2 The prosecution has examined Dr. Natverbhai Prabhudas Patel (PW11 at Exh.34). In his deposition he has stated as under: “1. On 28.1.1999 I was serving as Medical Officer with Civil Hospital at Ahmedabad, on that day in between 9.30 am to 12 pm I had performed autopsy of one Mohammad Rashid Mohammed Raish Shaikh with my Panel Dr. R.B.Deshmukh. On Post mortem examination certain external injuries were found which we have narrated incolumn no.17. CR.A/665/2000 10/15 JUDGMENT 1. Stab wound obliquely traverse, 2.7 cms x 1.5 cms middle part of left groin margins were sharply cut. At medial end sharply cut and lateral end 0.2cm broad and bruised. Tract at the base of the wound is directing backward into the pelvic cavity. In its tract at the groin cutting the left femoral artery at its front and lateral aspect about 1 cm long cutting abdominal wall and peritoneum entered the cavity producing cut mark on upper border of left pelvic ramus. It has entered into pumen of small intestine perforating through its wall. Dept of the tract is 7 cms directing backwards and slightly upward. 2. Incised wound present over upper part of right side of abdomen over 10th rib to midline horizontal 2 cms long x 0.2 cms wide x skin deep failing effect at the lateral end for 1 cms directing laterally external injury nos.1 and 2 are covered with blood and clots. The above injuries were anti mortem in nature. Because o the above injuries internal injuries were caused which are shown on page 6 and they are as follows: 1. Pelvic cavity contains 400 cc of blood and blood clots. brown color liquid with undigested food substance present about 300 cc. sharp cut and perforation into mid of length of small intestine at ante mesenteric border about 0.5 cms long. intestinal contents coming out through perforation into pelvic cavity. We have opined in column no.23 that cause of death is shock and hemorrhage following injuries. The original post mortem note is written by me, it is signed by me and also supervised by Dr. Deshmukh who has also signed in my presence on the same day. I am shown Mark 6/9 it is the same P M note I produce the same at Exh.34. Above injuries are possible by sharp cutting weapon like muddamal knife, which is shown tome from muddamal. Injury no.1 was sufficient to cause death in ordinary course of nature.” 6.3 In the cross examination this witness has stated that it is not true CR.A/665/2000 11/15 JUDGMENT that injuries nos.1 and 2 described in column no.17 cannot be caused by muddamal weapon shown to him. 6.4 Therefore it is clear that the death was caused due to the injuries sustained by Mahammad which were inflicted by the appellant. The doctor has clearly stated that the injury no.1 was sufficient to cause death in ordinary course of nature. In his cross examination also nothing could be pointed out in favour of the appellant. The cause of death is shock of hemorrhage following injuries and the injuries caused by the appellant were sufficient to cause death in the ordinary course of nature. 6.5 Mahammad Yakoob (PW 8) was examined by the prosecution at Exh.21. This witness has also deposed that he has seen the appellant and Mahammad shouting at each other and the appellant taking out a knife and inflicting knife blows upon the deceased. He further stated that he has taken the injured to the hospital. His version has clearly supported the version of PW5 Gulam Rasul and PW4 Javed Abdulla 7.0 In view of the aforesaid evidence it is clear that on 27th January 1999 at about 8.30 the appellant had altercation with Mahammad Rashid, he has taken out a knife and inflicted knife blows on Mahammad as a result of which he has succumbed to the injuries. Gulam Rasul (PW5) and Javed Abdulla (PW4) were eye witness to this CR.A/665/2000 12/15 JUDGMENT incident and there is no reason to disbelieve their statements. Even in the cross-examination nothing contrary was established and the evidence of the eye witnesses is fully corroborated with each other. Mahammad Yakoob (PW8) has also witnessed the incident and he had taken the injured to the hospital and his evidence also stood supportd/corroborated with other evidence. The presence of the appellant is established beyond doubt. 7.1 On going through the entire evidence on record it is clear that the appellant had altercation with Mahammad Rashid; thereafter he has taken out a knife and inflicted blows upon Mamammad Rashid, at that time Gulam Rasul (PW5) and Javed Badulla (PW4) and Mahammad Yakoob (PW8) were at the scene of offence and have witnessed the incident. Nothing incriminating has come out from their cross examination. 7.2 The postmortem note clearly shows that injury no.1 was sufficient to cause death in ordinary course of nature which is possible by sharp cutting weapon like muddamal knife. The doctor has also deposed that the death was caused due to shock and hemorrhage due to the aforesaid injuries. 7.3 It is required to be noted that the muddamal knife was recovered CR.A/665/2000 13/15 JUDGMENT at the instance of the appellant himself which is proved by Panchnama supported by the panchas. In the FSL report it is found that the blood group of deceased is matched with that of the bloodstain found on the muddamal weapon. Therefore looking to the chain of evidence starting from the eye witness it is evident that the appellant has used the muddamal weapon to cause injuries to Mahammad and as a result he has succumbed to the injuries. The presence of the appellant is clearly established by the evidence of Gulam Rasul (PW5) and Javed Badulla (PW4) and Mahammad Yakoob (PW8). Nothing incriminating has come out from their cross examination which may lead us to believe their evidence to be untrue and unreliable. 7.4 From the evidence it is found that the weapon which was used is that of 10 to 14 inches in length. At the time of incident the appellant was having the weapon in his possession. Therefore it is evident that he has come with the weapon to cause injury to Mahammad and therefore the intention of the appellant is very clear. In the altercation he has immediately attacked Mahammad and inflicted injuries upon him. The very fact that he came along with weapon i.e. Knife shows his intention and therefore the trial court has rightly convicted the appellant under section 302 of IPC. 7.5 As regards the judgement in the case of Harjinder Singh (Supra) CR.A/665/2000 14/15 JUDGMENT is concerned, in the present case the intention of the appellant was established and the knife used is of more than 10 to 14 inches, whereas in the above case it is only 5 to 6 inches. Looking to the overall facts and circumstances of the case, we are of the view that the ratio laid down in the case of Harjinder Singh would not be available to the appellant as there is clear case of intention on the part of the appellant. 7.6 Likewise, the case reported in the case of Laxman Kalu (supra) is also not applicable to the facts of the case inasmuch as in that case the eye witness did not speak about the weapon and only stated that the accused hit the victim with a weapon and ran way, whereas in the present case the appellant himself has come along with the knife, the eye witness has clearly described the weapon and in fact seen the assault and therefore the intention of the appellant was established. 8.0 On the overall facts and circumstances of the case, it is evident that after the altercation the appellant has taken out the muddamal weapon with an intention to cause death of Mahammad, inflicted injuries upon him on the vital part of the body and because of such injury Mahammad has expired. There are eye-witnesses to the incident whose evidence could not be controverted in any manner whatsoever. CR.A/665/2000 15/15 JUDGMENT The appellant himself has shown the muddamal knife which was having bloodstain of the deceased, which is evident from the FSL report. All these evidence clearly go to show that the appellant is guilty of offence under section 302 and this is not a case where the offence can be said to be falling under section 304 Part II of IPC. 9.0 In view of the fact that the case against the appellant has been proved by the prosecution beyond reasonable doubt, we do not find that any illegality or irregularity has been committed by the learned Sessions Judge warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete agreement with the reasonings adopted and findings arrived at by the learned Sessions Judge and no case is made out to cause interference in the appeal. This appeal is, therefore dismissed. [R.P. DHOLAKIA, J.] [K.S. JHAVERI, J.] ar