1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 754 OF 2003 (Through Jail) 1. Imran Mohd. Amin Khan 2. Soyeb Mohd. Amin Khan .. Appellants Versus The State of Maharashtra .. Respondent Ms. Indu Verma, appointed counsel for the appellants. Mrs. P.H. Kantharia, APP for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. Reserved for judgment on: 4/01/ 2010 Judgment declared on : 15 /4/ 2010 J U D G E M E N T (Per Mridula Bhatkar, J.) 1. This appeal is against the judgment and order of conviction dated 9 th April, 2002 given by learned Additional 2 Sessions Judge, City Civil & Sessions Court, Greater Mumbai. The appellants accused are convicted for the offence of murder under Section 302 read with Section 34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. 2. Deceased Matiuddin, resident of Sakinaka, Mumbai was the husband of the Complainant- Noorjahan who was the third wife of the deceased. Appellant-1 i.e. original accused-1 is the husband of step daughter of the deceased who was original accused-2 and Appellant No. 2- original accused-.3 is the real brother of accused- 1. Thus, all the accused, complainant and the deceased are related to each other. There was dispute over one room and landed property, between the deceased and the accused. The incident of murder has taken place on the night intervening 21/09/2009 and 22/09/2009 in the house of the complainant and the deceased. At around 3.30 a.m. on the said night, on hearing a knock at the door, the complainant allowed the accused to enter her house. The accused assaulted the deceased. When the complainant tried to protest, she was driven out of the house and appellant-1 i.e. original accused-.1 inflicted injuries with the help of chopper on the person of Mattiuddin i.e. 3 the deceased. Appellant-2, at that time held legs of the deceased. The complainant Noorjahan rushed to her neighbour and called the people in the vicinity. Meanwhile, all the three accused ran away through the window of the said room. Immediately the incident was reported to the police. Body was sent for the postmortem and all the three accused were arrested at Bhiwandi near Shikar Hotel on the same night. On the next day i.e. on 23/09/2009 the police recovered the chopper and blood stained clothes of the accused under Panchanama under section 27 of the Indian Evidence Act, from the house of accused no. 2. All the three accused where charged for the offences punishable under Sections 302 and 452 read with Section 34 of the Indian Penal Code. 3. Learned Sessions Judge has acquitted all the accused from the charge punishable under Section 452 read with Section 34 I.P.C. and acquitted accused-2 Shabana from the offence of murder punishable under Section 302 read with Section 34 I.P.C. The original accused 1 and 3 i.e. appellants 1 and 2 were held guilty for the offence of murder punishable under Section 302 read with section 34 I.P.C. 4 4. Learned Counsel Ms. Indu Verma appearing for the appellants submitted that the conviction is based on the evidence of only one eye witness (PW-1) Mrs. Noorjahan i.e. the wife of the deceased. She has submitted that learned Sessions Judge erred in accepting evidence of PW-1 irrespective of the discrepancies in her evidence and evidence of PW-2 Karim who had arrived at the spot immediately. The evidence of PW-1 and PW-2, whether PW1 was on the roof of her hut or the roof of the hut of Mr. Karim or, whether she went immediately to the house of Mr. Karim(PW-2) is confusing. She pointed out that considering the time span and the movements of Noorjahan when she called Karim for help, there was no opportunity for him to see these three persons. She has submitted that therefore the judgment and order passed by the learned Sessions Judge of convicting the appellants/accused under Section 302 read with Section 34 of the Indian penal Code is illegal and deserves to be set aside. 5. Mrs. P. H. Kantharia, learned APP has vehemently opposed the appeal. She has submitted that there is a direct evidence of the eye witness. PW-1- Noorjahan has seen the accused entering her house and assaulting her husband. She 5 pointed out that PW-1 has sustained cut injuries on her fingers and she was immediately taken to Rajawadi Hospital where she was examined by PW-10- Dr. Sunil K. Kadam. Learned APP has further submitted that there is recovery of chopper from the house of accused No.1 . Evidence of PW-1 in respect of the use of weapon, recovery of chopper and evidence of PW-10- Dr. Sunil Kadam and PW-16 Dr. Vasant Vanmore corroborate on the point of injuries and actual assault. Learned APP argued that the judgment is legal and without any flaw or error and it may be confirmed. 6. We have gone through the entire evidence and the judgment of learned Sessions Judge. Noorjahan-PW-1 is an eye witness to the incident of actual assault. They being her relatives, she knew all the accused earlier so there cannot be any possibility of mistaken identity of the accused. There was no reason for the accused to arrive at the house of the deceased and the complainant at such an odd hour i.e. at 3.30 a.m. Learned sessions Judge has properly appreciated the evidence of wife- PW-1 and of PW-2 who is the next door neighbor. The complainant has disclosed the names of the accused as offenders 6 to PW-2- Karim, immediately. Immediate disclosure and arrival of W-2 Karim is natural and inspires confidence. The complainant was also injured as the injuries were inflicted on her person with some weapon like chopper by the accused before she was pushed out of the room. Evidence of PW1 cannot be discarded on the ground that she is an interested witness. Her presence in the house was natural and her evidence as an eye witness is credible and trustworthy. The defence could not destroy her evidence in the cross examination. 7. The discrepancies regarding the movements of PW-1 and PW-2 which are pointed out by the defence counsel are not material discrepancies and learned Sessions Judge has rightly not given any weightage to such minor discrepancies. Moreover, evidence of the medical officer (PW-12) who has examined the complainant corroborates her evidence. Learned prosecutor has pointed out that during the scuffle, Appellant- 2 has sustained cut injuries and he was examined by PW-11 and the injuries are confirmed in the medical evidence of the Doctor(PW-11). PW-6 Dr. Vasant Vanmore has stated that there were multiple chop wounds on the body of the deceased. He has stated that the 7 cause of the death was haemorrhage and shock due to multiple chop wounds. Recovery of the chopper is proved by PW-5- Panch. Learned prosecutor has drawn our attention to the postmortem report and the death certificate of the deceased. The injuries were not one and two but there were several injuries on the different parts including vital parts of the body leading to the death of the deceased. The ocular evidence of PW-1 that iron weapon like chopper was used in assaulting her husband corroborates the medical evidence. Thus the evidence of PW-1, medical evidence of PW-6 and recovery of chopper, which is proved through PW-5, are the strong incriminating circumstances which remained unshattered. 8. Considering the quality of the evidence, circumstantial and medical, we do not find any error in the judgment delivered by the learned Sessions Judge, Bombay. Learned defence counsel has made futile attempt to distinguish the case of the appellant 2 from the case of accused-1 on the ground that accused-3 was not holding any weapon and did not inflict any injury on the deceased. The submissions of the learned defence counsel cannot be appreciated, considering the active 8 participation of appellant 2 i.e. original accused-3. He held the legs of the deceased tightly so that the deceased could not move and it facilitated accused- 2 to inflict multiple injuries on the deceased. 9. The law of common intention laid down under section 34 I.P.C. is well settled. In the present case, intention of appellant-2 can be easily gathered from his overt act and his participation. We do not find any illegality in the judgment of conviction. Hence the appeal is dismissed. (MRS MRIDULA BHATKAR, J. ) (MRS.RANJANA DESAI, J.)