Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.224/2009 AND CRIMIINIAL REVISION APPLICATION NO.126/2009 CRIMINAL APPEAL NO.224/2009 1] Yunnus Husen Pathan, age 24 yrs., occu.business, r/o Nannaj Tq.Jamkhed Dist.Ahmednagar. 2] Hasan Husen Pathan, age 37 yrs., occu.agri., r/o as above. ...Appellants.. (Org.accused) Versus 1] The State of Maharashtra. 2] Latif Mahboob Pathan, age 67 yrs., occu.business, r/o Nannaj Tq.Jamkhed Dist.Ahmednagar. ...Respondents... (No.2 org.complainant) ..... Shri S.V. Sudrik, Advocate h/f Shri S.S. Jadhavar, Advocate for appellants. Shri N.R. Shaikh, APP for respondent no.1. Respondent no.2 served. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 2 - CRIMINAL REVISION APPLICATION NO.126/2009 Latif Mehboob Pathan, age 65 yrs., occu.business, r/o Nannaj Tq.Jamkhed Dist.Ahmednagar. ...Petitioner... Versus 1] The State of Maharashtra, through Police Station, Jamkhed. Tq.Jamkhed Dist.Ahmednagar. 2] Hasan Husain Pathan, age 35 yrs., occu.business, r/o Nannaj Tq.Jamkhed Dist.Ahmednagar. ...Respondents... ..... Shri S.S. Wagh, Advocate for petitioner. Shri N.R. Shaikh, APP for respondent no.1. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 21.12.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant no.1 – original accused no.1 - Yunnus, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.10,000/-, in default of which to undergo Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 3 - simple imprisonment for six months and for offence punishable u/s 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years, and the appellant no.2 – original accused no.2 - Hasan, who stands convicted for offence punishable u/s 323 of the Indian Penal Code and sentenced to suffer simple imprisonment for 11 months, by the Additional Sessions Judge-2, Ahmednagar, by judgment dated 31.3.2009, in Sessions Case No.137/2007, by Criminal Appeal No.224/2009 question the correctness of their conviction and sentence. Criminal Revision Application No.126/2009 has been filed by the petitioner - original complainant questioning the acquittal of respondent no.2 - original accused no.2 – Hasan for offence punishable u/s 302 of the Indian Penal Code. Since both these matters arise from the same judgment, both these matters are being decided by this common judgment. 2] Such of the facts as are necessary for the decision of the appeal and the revision may briefly be stated thus: PW 7 ASI Vikram Karhad, who was attached to Jamkhed Police Station, recorded the complaint of PW 2 Latif at Exhibit 34. On the basis of the said complaint of PW 2 Latif at Exhibit 34, he registered an offence vide Crime No. 29/2007 and accordingly submitted his report to his superiors at Exhibit 47. He referred injured PW 2 Latif and injured PW 5 Amjad for medical examination along with the requisition at Exhibit 48. The injured did not go the Rural Hospital, Jamkhed, but went to Bhagirathi Hospital along with injured Rashid. PW 7 ASI Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 4 - Karhad proceeded to the Rural Hospital at Jamkhed where injured Rashid was admitted. Since Rashid was unconscious and was not in a fit condition to give his statement, the Medical Officer endorsed accordingly. PW 7 ASI Karhad thereafter learnt that injured Rashid had been admitted in Bhagirathi Hospital at Ahmednagar and accordingly proceeded to Bhagirathi Hospital at Ahmednagar and issued a letter to the Medical Officer at Exhibit 50 enquiring from him the condition of injured. On the said letter at Exhibit 50, the Medical Officer endorsed that injured was not in a position to give his statement. On 14.3.2007 i.e. on the next day of the incident, PW 7 ASI Karhad drew the scene of the offence – panchanama at Exhibit 28 in the presence of witnesses and from the scene of the offence, collected ordinary mud and blood mixed mud and a wrist watch. The aforesaid things came to be seized under the said panchanama. The statements of witnesses came to be recorded. Accused no.1 Yunnus was said to be admitted in the Civil Hospital and, therefore, was not arrested. Efforts were made at recording the statement of injured Rashid on the next day but the Medical Officer opined that injured Rashid was not in a condition to give his statement. Medical certificates of the injured came to be collected and since Rashid succumbed to his injuries, offence punishable u/s 302 r/w 34 of the Indian Penal Code came to be added. The Judicial Magistrate, First Class, was communicated vide Exhibit 53 about addition of Section 302 of the Indian Penal Code. One Jamir produced the clothes of injured Rashid in the hospital, which came to be seized in the presence of panchas vide seizure memo at Exhibit 23. The seized property came to be Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 5 - deposited in the Police Station and a receipt at Exhibit 54 came to be issued to PW 7 ASI Karhad. Further investigation was conducted by PW 10 PSI Adatrao. PW 10 PSI Adatrao arrested accused no.1 Yunnus on 25.3.2007 under the arrest panchanama at Exhibit 66. On 26.3.2007, accused no.1 Yunnus had expressed his willingness to produce his clothes, which had been hidden in the room of his maternal uncle. Accordingly, memorandum of accused no.1 Yunnus came to be recorded in the presence of panchas at Exhibit 67. The accused led the Police and the panch to the house of his uncle and after entering the middle room of the house, the accused produced his clothes, which were blood stained, from under a suit-case , which came to be seized vide seizure memo at Exhibit 68. The clothes of accused no.1 are Articles 4, 12 and 13 respectively. The seized clothes came to be deposited in the Police Station and accordingly a receipt at Exhibit 69 came to be issued to PW 10 Adatrao. Further investigation came to be entrusted to PW 11 PI Pawar. He recorded the supplementary statement of witnesses and arrested accused no.2 Hasan on 22.3.2007. During custodial interrogation on 22.3.2007, accused no.2 Hasan had expressed his willingness to produce the weapons, which had been hidden in his mutton shop. Memorandum of accused no.2 came to be recorded in the presence of panchas at Exhibit 71. Accused no.2 Hasan led the Police and the panch to his mutton shop and produced the weapons from his shop, which came to be seized under the seizure memo at Exhibit 72. The stick – Article 8, iron rod – Article 9 and wooden log – Article 10, came to be seized under the said seizure memo. The seized property was deposited in the Police Station Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 6 - and a receipt at Exhibit 73 was obtained. On 27.5.2007, PW 11 PI Pawar referred all the seized property to the Chemical Analyser along with the requisition at Exhibit 74. The reports of the Chemical Analyser are at Exhibits 75 and 76. 3] Post mortem on the dead body of deceased Rashid came to be performed by PW 8 Dr.Gosavi. He noticed following injuries on the dead body of Rashid: [1] Sutured wound over right temporo parietal area, ovem shaped 18 cm. x 0.5 cm. x 0.5 cm. with clean margins, surgical incised wound as shown in cl.17. [2] Sutured wound over right fronto parietal area with ragged margin with 3 stitches and it may be caused by hard and blunt object. [3] Sutured wound with ragged margin, left temporo parietal area with five stitches. It may be caused by hard and blunt object. [4] Tracheostomy which is circular in shape over anterior trachea with oozing of serous fluid, done for artificial ventilation. [5] Punctured wound with sticking over the left thigh which was done for femoral vein catheterisation. He opined that all the injuries were ante mortem and injury nos.2 & 3 could be caused by hard and blunt object. On internal examination, he noticed contusion under the scalp and contusion on the right tempo parietal area with hematoma 6 x 6 cms. Contused hematoma 4 x 4 cms. was seen over the left parietal area. In the right fronto tempo parietal cortex, contusion edema and sub- arachnoid hage and partial liquifaction and in the left fronto temporal region, contusion and hemorrhage weighing 1400 grams. He has opined that injury no.1 in column no.17 is an operative injury while injury nos.2 & 3 had caused Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 7 - hemorrhage beneath the scalp. He has opined that injury nos.2 & 3 could be possible by Article 8 – stick. He, therefore, opined that the probable cause of death of deceased was due to cardio respiratory failure due to brain contusion and hemorrhage involving bilateral right fronto parieto temporal brain area due to blunt injury with heavy hard and blunt object. The post mortem report is at Exhibit 59. 4] Further to the completion of investigation, a charge-sheet against the appellants - accused came to be filed. The trial Court, vide Exhibit 19, framed charge against both the appellants for offence punishable u/s 302 r/w 34 and u/s 324 r/w 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses while the accused in their defence examined two witnesses. The trial Court, by relying on the prosecution evidence, convicted and sentenced the appellants as afore-stated, which has given rise to the filing of the present appeal and the revision. 5] In order to deal effectively with the submissions advanced before us by the learned counsel for the appellants and the other respective counsel, it would be useful to refer to the evidence of the prosecution witnesses. 6] PW 2 Latif, uncle of deceased Rashid, states that he is resident of village Nannaj and his nephew PW 5 Amjad and his brother Rashid were residing near his house. He further states that he and deceased Rashid had started business for Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 8 - Amjad as father of Amjad had died. He states that they started the business of running a mutton shop under the name and style of “Janta Mutton Shop”. Deceased Rashid was helping PW 5 Amjad in purchasing and selling mutton. Deceased Rashid used to purchase poultry. The entire poultry was purchased by deceased Rashid and accused no.1 Yunnus used to purchase practically half each of the poultry from the poultry dealer. PW 2 Latif further states that accused no.1 Yunnus also runs a mutton shop in the name and style of Pakiza Mutton Shop. Both the accused were running their mutton shops prior to the incident and since last 11 to 12 years. Deceased Rashid had started his mutton shop about six months prior to the incident. The customers began to flock to the shop of deceased Rashid and PW 5 Amjad as they were providing good quality meat at reasonable rate. On account of that, there used to be frequent quarrels between deceased Rashid and the accused. Bitterness existed between them on account of purchase of poultry. On one occasion, the accused had taken all the poultry in their custody and on that count, there was quarrel between deceased and accused. 7] PW 2 Latif further states that on 13.3.2007 at about 6-00 a.m., the poultry dealer by name Aklun had brought the poultry in the market and the accused had purchased all the poultry and had taken the poultry to their mutton shop. Deceased Rashid and Amjad opened their shop at 6-30 a.m. and PW 2 Latif had followed them. He states that he heard the sound of quarrel and had seen that Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 9 - deceased Rashid had gone towards the dealer of poultry for purchasing the poultry. The dealer informed deceased Rashid that he would be able to provide poultry to deceased Rashid by taking the same from accused no.1 Yunnus. Accused Yunnus had abused Rashid and had stated that he would kill deceased Rashid. Accused Yunnus dealt a blow of stick on the head of Rashid and which had resulted in an injury on his left parietal region. Accused no.1 Yunnus dealt another blow by stick on the head of Rashid, which resulted into injury on his right parietal region. PW 2 Latif states that he rushed for intervening in the quarrel and for rescuing deceased Rashid. Accused no.2 Hasan was twirling a weapon known as Kondka (a wooden ball, which is tied by a string to a wooden stick). Latif sustained an injury on his head at the hands of accused no.2. Accused no.1 Yunnus also assaulted PW 5 Amjad on the wrist of his right hand. PW 3 Mahavir, PW 4 Somnath and one Kureshi, who were present there, tried to intervene. PW 3 Mahavir snatched the stick from the hands of accused no.1 Yunnus and accused no.1 Yunnus then rushed towards his shop and brought an iron rod. Accused no.1 Yunnus assaulted with the said rod on the back of deceased Rashid. PW 4 Somnath snatched the said rod from the hand of accused Yunnus. Blood began to ooze from the injury of Rashid and Rashid became unconscious and was thereafter shifted to Jamkhed Rural Hospital for treatment. After preliminary first aid in Jamkhed Rural Hospital, Rashid was shifted to Bhagirathi Hospital at Ahmednagar. Latif states that he waited in the village in order to look after the children and for arranging finances. Deceased Rashid succumbed to his injuries Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 10 - on 24.3.2007 in the hospital. Latif states that on the same day, he went to the Police Station and lodged his report about the incident. The report was not scribed as the Police informed him that they would record the statement of the injured after he regains his consciousness. He states that in the evening, he had gone to the Police Station and had requested them to scribe his report as Rashid was unconscious and ultimately his report came to be scribed at Exhibit 34. 8] In cross examination, PW 2 Latif has admitted that the poultry dealer has a vehicle known as “Tata 407” in which he carries about 5,000 to 10,000 hens and distributes the poultry to various persons. The said dealer comes once in a week. He has admitted that he had not produced any documents to show that the mutton shop of deceased Rashid was doing far better business than the mutton shop of the accused. He has admitted not to have stated about it in his report at Exhibit 34. He could not state the exact dates on which there was quarrel between deceased Rashid and the accused. He has admitted not to have complained to the Police Patil or the Police about the same. He has admitted not to have stated either in his report or in his statement recorded during investigation about the earlier quarrel between deceased Rashid and the accused. Similarly, he has admitted not to have stated in his complaint about earlier instance where the accused had purchased all the poultry and on account of which there was quarrel between accused and deceased Rashid. He has further admitted that on the day of the incident, the poultry dealer had delivered all the poultry to accused no.1 Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 11 - Yunnus and on that day, deceased Rashid could not purchase any poultry. He has admitted that purchasing all the poultry by accused no.1 Yunnus would have adversely affected their business. He has has admitted that on the day of the incident, deceased Rashid and the poultry dealer went towards the mutton shop of accused no.1 as accused no.1 had purchased the poultry. He has admitted that PW 5 Amjad followed them. He has denied the suggestion that deceased Rashid and PW 5 Amjad requested the poultry dealer to give them half of the poultry purchased by accused no.1. Latif has admitted in further cross examination that on arriving at the scene, he had witnessed quarrel between accused no.1 an deceased Rashid and PW 5 Amjad. He has also admitted that there was jostling amongst themselves. He has denied the suggestion that Rashid and Amjad were trying to enter the shop of accused no.1, but accused no.1 was preventing them. He has denied the suggestion that during the incident, deceased Rashid had fallen on the ground and had sustained an injury having fallen on the ground. PW 2 Latif has denied the suggestion that on account of twirling of the weapon known as Kondka by accused no.2, he had not sustained the injury. He has admitted that blood was oozing from his injury and his clothes were stained with blood. He has stated that accused Yunnus had dealt a stick blow on his head. He has admitted that accused no.1 had hit him lightly on the forehead and there was swelling on his forehead. He has also admitted that Rashid was standing at a distance of 5 to 6 ft. in front of Amjad. He has further admitted not to have stated in his report that accused Hasan was twirling weapon known as Kondka in order to prevent others Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 12 - from rushing to the rescue of Rashid and Amjad. Similarly, he has admitted not to have stated in his report that he had sustained an injury to his forehead at the hands of accused no.2, who was twirling the said Kondka. He could not explain as to why it was not stated in his report that PW 5 Amjad had sustained an injury by the stick blow dealt by accused no.1 Yunnus. Similarly, he could not explain as to why it was not stated in his report that Rashid went towards the poultry dealer. Similarly, he could not explain as to to why it was not stated in his report or in his statement that the poultry dealer had informed deceased Rashid that the dealer would provide half the hens sold to accused no.1 Yunnus by taking the same from accused no.1. He has admitted not to have stated in his report or in his statement about accused no.1 Yunnus abusing Rashid and threatening him that he would kill Rashid. He has admitted to have stated in his report that accused no.1 Yunnus was armed with a bamboo stick (Velu). He has admitted not to have specifically stated in his report that accused no.1 Yunnus assaulted with the stick on the left and right side head of Rashid. This omission is in respect of situs where the accused no.1 had assaulted the deceased. 9] In further cross examination, PW 2 Latif has admitted that the incident occurred at about 6-30 a.m. and at that time, there was no rush of people at the spot. He has denied the suggestion that PW 4 Somnath and PW 3 Mhavir had reached the scene of the incident after the incident was over. He has admitted not to have mentioned in his report that accused no.1 Yunnus brought an iron rod from Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 13 - his shop and assaulted deceased Rashid on his back. He has admitted that when PW 3 Mahavir and PW 4 Somnath arrived at the scene, he (PW 2 Latif) was standing at a distance of 7 to 8 ft. from the shop of accused no.1. He states that he had intervened in the said quarrel and when he had gone near them, deceased Rashid had fallen down. He has admitted that PW 3 Mahavir and PW 4 Somnath were present prior to the assault on Rashid. He has admitted that he does not recollect if he had stated about presence of one Kureshi at the scene of the offence. He could not explain as to why it was not stated in his report that PW 3 Mahavir had snatched the stick from the hand of accused no.1 Yunnus. Similarly,a he could not explain as to why it was not mentioned in his report that PW 4 Somnath had snatched the iron rod from the hand of accused no.1 Yunnus. He has stated that the Police had told him to state the facts in a brief manner and, therefore, all the details were not stated by him. 10] PW 2 Latif has further admitted that he had initially gone to the Police Station at about 12 noon to 12-30 p.m., but could not assign any reason why it was not stated in his report that the Police had told him that they would record the statement of injured Rashid after he regains consciousness. 11] Prosecution has examined PW 5 Amjad, nephew of PW 2 Latif and deceased Rashid. PW 5 Amjad states that he and his uncle deceased Rashid were running Janta Mutton Shop. He states that one poultry merchant by name Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 14 - Akluj was supplying poultry to them. He further states that accused nos.1 & 2 were running Pakiza Mutton Shop and the same merchant used to supply poultry to them. 50% of the poultry was supplied by the merchant to Amjad and Rashid while 50% of the poultry was supplied by the dealer to the accused. He further states that on 13.3.2007 at about 6-30 a.m., he along with Rashid had gone for opening the shop. They had opened the shop and had noticed the van of the poultry dealer and they learnt that accused had purchased all the poultry from the said dealer. Deceased Rashid, therefore, went towards the place where the dealer was standing and enquired with him about the poultry on which Rashid was informed that the dealer would provide the poultry after bringing the same from accused. The mutton shop of the accused is situated at a distance of about 200 to 250 ft. from the shop of Amjad. The dealer, therefore, went towards the accused demanding the poultry, but the accused did not hand over the poultry to the dealer. Amjad further states that accused no.1 Yunnus then brought a stick from his mutton shop and dealt a blow on the right side head of Rashid. Amjad states, at that point of time, he had come near the scene of the offence. Yunnus thereafter dealt another blow of the stick on the left side of the head of Rashid. After receiving the two blows, Rashid fell on the ground and accused Yunnus then dealt a third stick blow on the back of Rashid. Amjad states that he intervened in the quarrel and raised his hand in order to protect his uncle and the accused then dealt a stick blow on his right wrist. He states that PW 2 Latif came there and PW 3 Mahavir and PW 4 Somnath also arrived there. He further states that PW 3 Crim.Appeal 224/09 & Crim.Revn.Appln. 126/09 - 15 - Mahavir snatched the stick from the hand of accused no.1 and then Yunnus went inside his shop and brought an iron rod. The accused then dealt a blow of iron rod to deceased Rashid. PW 4 Somnath snatched the iron rod from the hand of Yunnus. Accused no.2 Hasan was twirling the weapon known as Kondka intending that no one should intervene in the quarrel. PW 2 Latif sustained an injury by the said wooden Kondka. PW 3 Mahavir gave water to Rashid and thereafter Rashid was taken to the hospital in a jeep. He further states that the Police officers had come to the hospital and he had requested them to record his report, but the officers told him that they would first record the statement of injured Rashid. 12] In cross examination, PW 5 Amjad has admitted that deceased Rashid was admitted in Bhagirathi Hospital at Ahmednagar. He could not state if there was an Out Post near the S.T. Stand. He has admitted that Police Constables had come in Bhagirathi Hospital on 13th, 14th and 16th.