1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 180 OF 2008 1 Shaikh Taslam @ Tassu @ Alim s/o Shaikh Rahim, age 20 years, occ. Labourer, r/o Sanjaynagar, Georai, Tal. Georai, Dist. Beed, 2 Shaikh Dastgir s/o Shaikh Rahim, age 25 years, occ. & r/o As above, 3 Shaikh Aslam s/o Shaikh Rahim, age 23 years, occ. & r/o as above ....Appellants (Original Accused) VERSUS 1 The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav, advocate for the appellants Shri K.S.Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 24.2.2010. ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The challenge in this appeal is to the conviction and 2 sentence inflicted upon the appellants (original accused nos. 1 to 3) by the judgment and order dated 8.5.2008, rendered by the learned Sessions Judge, Beed, in Sessions Case No. 28 of 2008, convicting the appellants for the offence punishable under Section 302 r/w 34 of the Indian Penal Code and sentencing them to suffer R.I. for life to each of the accused and to pay a fine of Rs. 1,000/- each, with default condition of non-payment of fine to suffer S.I. for three months. 2 The factual matrix of the prosecution case is as under. It is the case of the prosecution that victim Shaikh Aaref and Shaikh Aslam (original accused no.3) were plying auto rickshaw in Georai town and were residing in the same vicinity. It is alleged that on the date of the incident i.e. on 19.11.2007 at about 4.45 p.m., there was altercation between appellant no.3 Shaikh Aslam and the victim Shaikh Aaref on account of snatching of the passengers intending to hire auto rickshaw. It is further alleged that appellant no.3 Shaikh Aslam lost his temper, and therefore, appellant nos. 1 to 3 and their juvenile brother assaulted deceased Aaref when he was sitting in a standing auto rickshaw near Georai new bus stand at auto rickshaw stand and chitchatting with other colleagues, by dragging him outside the 3 said auto rickshaw. It is further alleged that accused no.2 Shaikh Dastgir and accused no.3 Shaikh Aslam caught hold of victim Shaikh Aaref from behind and all the accused assaulted him by fist blows and leg kicks and accused no.3 Shaikh Aslam took out the knife and gave blow thereof over the chest and stomach of victim Shaikh Aaref and thereafter fled away. By the said assault, Shaikh Aaref fell on the ground and PW2 Somnath Gaikwad and PW3 Bhagwat Paithane who were present nearby lifted the victim and removed him to the Government Dispensary by auto rickshaw and after examination the doctor declared him dead before admission. 3 It is also the case of the prosecution that PW8 Gopinath Sarwade, who was working as Police Inspector at Georai police station at the relevant time, was on duty on 19.11.2007 and Head Constable Balwante informed him about receiving a phone call regarding incident of assault that had taken place at Georai Bus Stand and accordingly PW8 PI Sarwade along with staff rushed to the said place and found crowd of the persons there. On inquiry, PW8 PI Sarwade came to know that one Shaikh Aaref was assaulted by knife and he was taken to the hospital, and therefore, PW8 PI Sarwade went to the hospital and on inquiry he was informed that the victim Shaikh Aaref died in the hospital due 4 to assault by knife. PW8 PI Sarwade met to the father of the deceased, who was present in the hospital, as well as saw the dead body of Shaikh Aaref and on inquiry it was disclosed that the appellants herein were the assailants. As per the directions of PW8 PI Sarwade, A.S.I. Helgude prepared the inquest panchanama (Exh.) of the dead body of Shaikh Aaref. PW8 PI Sarwade also recorded statement of the father of the victim and same was treated as the first information report (Exh.) Offence was accordingly registered under C.R.No. 211 of 2007 punishable under Section 302 r/w Section 34 of the Indian Penal Code. 4 The prosecution case further recites that PW8 PI Sarwade prepared the panchanama of the scene of offence (Exh.) on 20.11.2007 in presence of panchas and seized sample of plain soil and soil containing blood from the spot of the incident. He also recorded statements of witnesses from the place of incident and as per the directions of PW8 PI Sarwade, A.S.I. Helgude seized the clothes of the deceased under panchanamas (Exh.). On 21.11.2007 PW8 PI Sarwade recorded statements of other witnesses. Moreover, on 22.11.2007 PW8 PI Sarwade arrested juvenile accused Shaikh Kalim and accused no.3 Shaikh Aslam from Beed, as well as accused no.1 Shaikh Taslam also came to be arrested. On 23.11.2007 accused no.1 Sk.Taslam made the 5 disclosure statement and same was recorded under memorandum panchanama Exh. 55 in presence of panchas and thereafter said accused led the panchas and police personnel to the house of his uncle at Beed and produced clothes and same were seized under memorandum panchanama Exh. 56. 5 Moreover, PW8 PI Sarwade got the information that accused no.3 Shaikh Aslam and accused no.2 Shaikh Dastgir were arrested by L.C.B., and hence, he went and took their custody and arrested them under arrest panchanama and seized their clothes thereunder. On 28.11.2007, accused no.1 Shaikh Taslam made disclosure statement and same was recorded under memorandum panchanama Exh. 58 and he led the panchas and police personnel near Talegaon road and produced one knife article 12 under the bridge and same was seized under memorandum panchanama Exh. 59. PW8 PI Sarwade also sent muddemal articles to the Chemical Analyser’s office during the course of investigation and received the reports thereof from the Chemical Analyser, which are marked as Exhs. 61 and 62. He also referred the witnesses to the Special Executive Magistrate for recording their statements under Section 164 of the Code of Criminal Procedure on 16.1.2008. Accordingly, after completion of investigation, charge sheet came to be filed against the accused 6 persons before the learned Judicial Magistrate, First Class, Beed. However, since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Beed committed the said case to the Court of Sessions, Beed. Accordingly, learned Sessions Judge framed the charge against the accused persons on 12.3.2008 at Exh.9 for the offence punishable under Sections 302 r/w 34 of the Indian Penal Code. 6 To substantiate the charges levelled against the appellants herein, the prosecution examined in as much as eight witnesses as mentioned below. PW1 - Shaikh Farooq Shaikh Gani, father of the deceased – complainant - turned hostile. PW2 – Somnath Gaikwad, eye witness. PW3 – Bhagwat Paithane, eye witness. PW4 – Shaikh Afroj Shaikh Farooq, brother of deceased – disbelieved by the Trial Court. PW5 – Dr. Vitthal Narwate, Medical Officer, who performed postmortem Exh.45. PW6 – Abdul Kalim Abdul Rahimoddin, panch for spot panchanama Exh. 51, panchanamas Exhs. 52, 53 and 54, panchanama regarding seizure of clothes of deceased and clothes of appellants and memorandum 7 panchanama for seizure of clothes Exhs. 55 and 56. PW7 – Rajendra Kshirsagar, panch to memorandum panchanama regarding recovery of knife at the instance of appellant no.3 Shaikh Aslam Exhs. 58 and 59. PW8 – P.I. Gopinath Sarwade, investigating officer. 7 The defence of the accused was of total denial and they have contended that they have been implicated in this case falsely and they are innocent. In support of their case, the accused examined one defence witness, namely Syed Riyaz Shaikh Chand. 8 After scrutinizing and appreciating the evidence, learned Trial Judge convicted and sentenced the appellants as afore stated for the offences punishable under Sections 302 r/w 34 of the Indian Penal Code. Being aggrieved and dissatisfied by the said judgment and order dated 8.5.2008, rendered by learned Sessions Judge, Beed, the appellants herein have preferred the present appeal challenging the same and praying for quashment thereof. 9 Before adverting to the submissions advanced by the learned counsel for the appellants and learned A.P.P. for the 8 respondent, we feel it necessary to scrutinize the material evidence adduced and produced by the prosecution and in the said context, coming to the evidence of PW1 Shaikh Farooq Shaikh Gani i.e. father of the deceased, who lodged the first information report Exh. 34, but it appears that his evidence is hear say evidence and the Trial Court has rightly disbelieved his evidence, and therefore, the said evidence is of no aid and assistance to the case of the prosecution. 10 Coming to the deposition of PW2 Somnath Gaikwad, who has deposed that he is studying in 12th standard in R.B.Attal College, Georai. Deceased Aaref was residing in his neighbourhood since his childhood and he was plying auto rickshaw. The incident took place on 19.11.2007 at about 4.45 p.m. near auto rickshaw point at new bus stand, Georai. He stated that he had gone to canteen near bus stand to take tea and when he went there, he saw crowd near auto rickshaw point and accused no.2 Shaikh Dastgir, accused no.3 Shaikh Aslam and accused no.1 Tassho were assaulting victim Aaref by fists and kicks and thereby Aaref fell down. He also stated that accused no.3 Shaikh Dastgir caught hold of victim Aaref from behind and accused no.1 Tassho held Aaref by his buttocks from behind and accused no.3 Shaikh Aslam inflicted 4-5 blows of weapon like knife 9 over chest and surrounding area of Aaref and thereby Aaref fell down by sustaining bleeding injuries and thereafter assailants fled away from the spot. He further stated that he along with one Bhagwan Paithane i.e. PW3 picked Aaref in one auto rickshaw and one person namely Bagwan also assisted them to take Aaref to the Government Hospital and doctor examined Aaref there and by that time father of Aaref arrived there, but doctor declared Aaref as dead. It is also stated that police personnel recorded his statement as well as the Special Executive Magistrate also recorded his statement and he identified the accused persons in court. 11 During cross-examination, PW2 Somnath stated that his father is contractor as well as father of accused was also contractor. Hence, suggestion was give to him that there was dispute between his father and father of accused on account of contract work, and therefore, he deposed falsely against the accused persons, but same was denied by him. He also stated that he is unable to tell the exact number of blows given to the deceased. He further stated that dispensary was situated about 500 meters away from the spot and he reached there within five minutes after the incident. Suggestion was given to him that accused persons were not present at the time of incident, but 10 same was denied by him. It was also suggested to him that he does not know about the incident, but same was denied by him. 12 Having the comprehensive view of the testimony of PW2 Somnath Gaikwad, it is evident that he has narrated the occurrence of the incident in detail and he has specified the overt act of each of the accused during the occurrence of the incident, but pertinently there is no cross-examination in that respect. The statement of Somnath was recorded by police personnel on the very next day of the incident and role ascribed by PW2 Somnath to each of the accused has gone unchallenged in the cross- examination, which connects the accused persons with the crime. Moreover, the testimony of PW2 Somnath has not been shaken in the cross-examination, which categorically narrates the occurrence of the incident and consequently connects the appellants herein to the crime. 13 That takes us to the deposition of PW3 Bhagwat Paithane, another eye witness, who has stated in his deposition that he is studying in 12th standard in R.B.Attal College, Georai and he knew the deceased Aaref, as he was his class met upto 10th standard and he was residing in his neighbourhood only. He also stated that Aaref used to drive auto rickshaw. He further 11 stated that incident took place on 19.11.2007 at 4.45 p.m. at auto rickshaw point near new bus stand, Georai, when he was sitting with Aaref in an auto rickshaw and was chitchatting with him. At that time, accused no.3 Shaikh Aslam, accused no.2 Shaikh Dastgir, accused no.1 Shaikh Tassho alias Alim and juvenile accused Shaikh Kalim arrived running near their auto rickshaw and accused no.2 Dastgir caught hold of victim Aaref and dragged him out of the rickshaw. Accused no.3 Aslam abused him in Hindi. Thereupon victim Aaref said, “Mai To Hai Re” and fight started between them. He further stated that aforesaid four assailants assaulted Aaref and thereby Aaref fell down. PW3 Bhagwat also stated that accused no.2 Dastgir then caught hold of him from behind and accused no.3 Aslam took out the weapon like Gupti and gave 4-5 blows thereof on the chest and abdomen of Aaref, and at that time also accused no.1 Tassho @ Alim caught hold of Aaref to his buttocks from behind. Aaref fell down due to bleeding injuries and even the accused assaulted Aaref by fist blows and leg kicks and thereafter ran away. He further stated that he lifted Aaref with the help of PW2 Somnath Gaikwad and one Bagwan and removed him to the Government Hospital by auto rickshaw and doctor examined him and declared him dead. Police recorded his statement as well as Officer of the court also recorded his statement. 12 14 During cross-examination, PW3 Bhagwat stated that his father was a trader of kerosene, but stated that he was not aware whether father of accused had given any publication in local news paper on 20.1.2007 and that he had made some complaint against his father with the Tahsildar, Georai. Hence, suggestion was given to him that in order to take revenge, PW3 Bhagwat deposed falsely, but same was denied by him. He does not remember the names of the persons who gathered near the spot of incident. He further stated that dispensary was about five minutes driving from the spot of incident. He could not tell the number of auto rickshaw as well as cause of fight. He further stated that he could not exactly state whether each of the accused gave kick or fist blows to the deceased. Suggestion was given to him that he had grudge against the father of the accused, who used to do social work and rights against his father, but same was denied by him. It was also suggested to him that he was present on the spot of incident, but same was denied by him. 15 Considering the testimony of PW3 Shaikh Bhagwat, it is amply clear that PW3 Bhagwat also narrated the occurrence of the incident in detail and ascribed the overt act committed by accused during the occurrence of the incident and in the 13 commission of the offence, but significantly there is no cross- examination in that respect. During cross-examination few suggestions were given to PW3 Bhagwat, but same were denied by him. 16 Thus, it is also material to note that there are no infirmities and deformities in the narration of the incident narrated by PW2 Somnath and PW3 Bhagwat, nor there is variance in the overt acts ascribed to each of the accused by them during occurrence of the incident in their testimonies and the testimonies of PW2 Somnath and PW3 Bhagwat are in consonance with each other, which have not been shaken in their cross-examination, and therefore, same are required to be accepted, and consequently, same are required to be believed, which categorically connects the accused persons to the crime. 17 Coming to the deposition of PW4 Shaikh Afroj, who is brother of deceased Aaref, who stated that he was plying auto rickshaw and his father was partner therein, as well as he was studying in 10th standard. He stated that the incident occurred on 19.11.2007 at about 5.00 p.m. near new bus stand. He had gone in search of she-goat near bus stand. Aaref was near auto rickshaw point. He stated that he saw accused Dastgir and 14 accused Tassho, who had caught hold of his brother Aaref and Aslam was inflicting knife blows over chest of his brother. He further stated that he saw the said incident from a distance of 50 meters. He ran towards the place and told, “Chhodo, Chhodo”. Aaref sustained bleeding injury and fell down. PW2 Somnath and PW3 Bhagwat came there and they lifted Aaref and removed to the Government Dispensary in auto rickshaw. He has stated that he had followed the said auto rickshaw. The doctor examined Aaref and declared him dead. He further stated that he telephoned his father on his mobile and intimated about the occurrence of the incident, as well as he identified the accused persons in the court. 18 During cross-examination, he stated that he saw Aaref for the first time on the day of incident near bus stand at auto rickshaw point, when he was being assaulted there. He also stated that entire incident was completed within 4-5 minutes, but he did not meddle in the fight and went near Aaref after the attack. He also stated that he did not try to lift Aaref and he even did not tell to allow him to board in the auto rickshaw, nor he felt to inform the occurrence of incident to his uncle. He further stated that he did not actually see the angle and direction of the blow inflicted on Aaref. He also stated that he was not able to 15 notice the hilt of the knife. He further stated that Dastgir had caught hold of Aaref from back by taking his hands from arm-pit of Aaref and then his neck by both hands, but he did not notice the injuries at that time on his waist. He also stated that at about 80 to 90 persons had gathered there and the incident happened at about 10 feet away from the rickshaw point towards northern side, but nobody tried to catch hold of the assailants. He further stated that he did feel to beat the assailants after seeing attack on his brother, but could not beat anyone. He further stated that he did not go inside the gate of dispensary with his father, nor he met his father near dispensary. He also stated that he felt to approach the police and tell about the incident, but he did not go to the police. He further stated that he did not tell about the incident to anyone except his father. He further stated that he saw the incident from a distance of 50 meters. 19 Considering the testimony of PW4 Shaikh Afroj, it is amply clear that PW4 Shaikh Afroj saw the incident from the distance of 50 meters and considering the cross-examination, it appears that the conduct of PW4 Shaikh Afroj is unnatural and even he did not enter into the gate of dispensary, and therefore, the Trial Court has rightly disbelieved the said witness. 16 20 That takes us to the deposition of PW5 Dr. Vitthal Narwate, who stated that in the month of November, 2007, he was attached to the Government Dispensary, Georai and he performed the postmortem on the body of one Shaikh Aaref on 20.11.2007 between 8.00 a.m. to 9.00 a.m. and he noticed the following injuries. “ (1) A stab wound present right mammary area, 2.5 cm. from middle, 14 cm. from mid clavicular 8 cm. from medial end of clavicle I.e. The 4th intercosted of elliptical shape, margins were clean-cut and inverted, size of was 4 x 2 approximate 12 cm. On obliquely directed towards midline. (2) A stab wound present below (i.e. 2.5 cm.) of injury no.1 of Col. No. 17, 3 cm. from midline 16.5 cm. from mid-clavicular line, I.e. 5th intercostal space of eliptical shape, margins were clean cut and inverted of size 3 x 1.5 x approximately 5 cm. and obliquely directed towards midline. (3) A stab wound present over epigastric region (right side) touching midline of elliptical shape. Margins were clean cut and inverted. Size 3 x 1.5 approximately 6 cm. And horizontally directed. (4) A stab wound present over left lower axilla, 6 cm. from apen of axilla, 21 cm. From midline, situated posterior to the mid-axillary line I.e. 3rd intercostal space of elliptical shape, margins were clean cut and inverted. Size 5 cm. X 2 cm. approximately 7.5 c.m., obliquely directed towards midline from back to front. (5) A stab wound present over left lower axilla, situated 2 cm. From mid axillary line 7.5 cm. from apen of axilla, 18.5 cm. from middle, at the 17 level of nipple I.e. 4th intercostal space of elliptical shape, margins were clean cut and inverted. Size 3.5 x 2 approximately 12 cm. directed horizontally. (6) Incised wound over left lumber region, on back side of size 3.5 x 0.3 x 0.5 cm. All injuries were ante mortem. Larynx and Trachea were intact. I have accordingly prepared the postmortem notes in my hand writing and they were signed by me. The contents are true and correct. In my view, the cause of death is cardio respiratory arrest with bilateral homo-thorax with hemopericardia with the injuries of lungs and heart with multiple stab over chest. “ He produced the postmortem notes at Exh. 45. He further stated that the injuries were sufficient enough to cause death instantaneously and the said injuries were possible by knife. 21 During cross-examination, he stated that injuries are possible only when the weapon is sharp and pointed with both sides. Suggestion was given to him that injuries 4, 5 and 6 are possible only when the assailants should be on the backside of the injured, but same was denied by him; wherein he stated that 18 injury no.6 is possible only if blow is given from backside. He further stated that if somebody keeps hand over axilla from backside, injury nos. 4 and 5 are not possible. 22 Considering the testimony of PW5 Dr. Vitthal Narwate and postmortem notes Exh.45, it is amply clear that the victim sustained stab wounds on the vital parts of the body and the cause of death is cardio respiratory arrest with bilateral heomo- thorax with hemopericardia with the injuries of lungs and heart with multiple stab over chest, which were sufficient enough to cause death instantaneously and the said injuries were possible by knife. Therefore, there cannot be any dispute that the victim succumbed to the death due to the stab injuries by knife on his vital parts of body and met with the homicidal death. 23 As regards discovery of knife at the instance of accused no.3 Aslam, coming to the evidence of PW7 Rajendra Kshirsagar, who has stated that accused no.3 Aslam made the discovery statement before the police personnel on 28.11.2007 and same was recorded under memorandum panchanama Exh. 58 and thereafter accused no.3 Aslam led the police personnel and panchas in front of gate of Aditya Engineering College and further bridge in the northern side and went below the said bridge and 19 removed the knife (article 12) from a thorny bush and produced before the police personnel and police personnel seized the same under memorandum panchanama Exh. 59 and PW7 Rajendra panch witness identified accused no.3 Aslam before the court. 24 In the cross-examination, there is nothing damaging to the case of prosecution and the testimony of PW7 panch witness has not been shaken in the cross-examination, and hence, discovery of knife at the instance of accused no.3 Aslam and seizure thereof under memorandum panchanamas Exhs. 58 and 59, are required to be accepted and consequently same is required to be believed. The chemical analyser’s report Exh. 61/C discloses the blood group of accused nos. 1 and 2 as ‘B’; whereas blood group