1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.722 OF 2008 Chandkhan s/o Dauylatkhan Patha, Age 35 years, Occu.Driver, R/o Khudbe Nagar, Taluka Hadgaon, Dist.Nanded ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mrs S.S. Jadhav, Advocate for appellant Mr K.S. Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 18th November 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and Section 323 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for one month and rigorous imprisonment for one month and to pay fine of Rs. 1,000/-, in default of which to undergo further rigorous imprisonment for 15 days, with a direction that the substantive 2 sentences would run concurrently, by the Additional Sessions Judge-2, Nanded, by judgment dated 22.11.2008, in Sessions Case No.87/2008, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W.11 Ramchandra Ghuge, who was in charge of Police Station, Hadgaon received information on 22.1.2006 from one Shaikh Rustum Shaikh Hyder that the accused had stabbed his son when the deceased had tried to intervene in the quarrel between the accused and his daughter. On the basis of the said report an offence vide Crime No.6/2006 was registered under Section 302 of the Indian Penal Code against the accused. Upon registration of the said offence, a scene of the offence panchnama came to be drawn and from the scene of the offence one white coloured paijama, one baniyan, one handkerchief came to be seized. Thereafter inquest panchnama of the dead body of deceased Shaikh Ahmed came to be drawn in the presence of panchas at Exh.11. The dead body was referred for post mortem examination along with the requisition at Exh.35. Post mortem on the dead body of deceased came to be performed by P.W.7 Dr.Kamble who noticed one external injury which was a stab 3 wound at right seventh inter coastal space on mid clavicular line 2 cm x 1 cm upto liver. On internal examination he noticed rupture to the liver 4 cm x 1 cm transverse. He, therefore, opined that the probable cause of death was cardio respiratory failure due to haemorrhagic and hypovolumic shock due to injury to the vital organ like liver. The post mortem report is at Exh.27. On the same day he had examined Shaikh Rustum Shaikh Hyder and noticed the following injuries : 1. Incised wound at left frontal area size was 3 cm x 1 cm oblique in shape. It was within 24 hours and it might have been caused by hard weapon and it was simple in nature; 2. Contusion right index finger 1 x 0.5 cm in size it was transversed in shape and age of injury within 24 hours and caused by hard weapon and nature of injury was simple. He opined that injury No.1 could be possible if a person is hit with a wooden plank. The injury certificate is at Exh.28. The accused was traced at Andhra Pradesh and the accused came to be arrested. During custodial interrogation on 13.4.2008 the accused expressed his willingness to point out the place where the knife was hidden. Accordingly, memorandum of the accused came to be recorded in the presence of panch at Exh.32. The 4 accused led the Police and the panch to the office of B & C on the Hadgaon-Tamsa road and then to a graveyard. From near the tree, accused produced the knife which was buried under the ground. The said knife came to be seized at Exh.33. The said knife was referred to the Chemical Analyzer along with the other seized articles and as per the report of the Chemical Analyzer at Exh.41 human blood was detected on the said knife. Upon completion of the investigation a charge-sheet against the accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.4 framed charge against the appellant for offence punishable under Sections 302, 324 and 506 of the Indian Penal Code. Upon consideration of the evidence of the prosecution, the trial Court convicted and sentenced the appellant as afore stated. 4. P.W.2 Rustum is the injured witness and father of deceased Shaikh Ahmed. P.W.2 Rustum states that on 22.1.2006 he was in his house in the evening. The appellant-accused was attempting to set fire to his daughter and wife of the appellant was shouting for help. On hearing the cries for help deceased went to extricate the daughter of the appellant from his clutches and thereafter accused started abusing deceased in a filthy language. The appellant-accused then stabbed the deceased by a knife on his 5 abdomen. While P.W.2 Shaikh Rustum was attempting to save his son, the accused hit a wooden plank on his head. He has given the names of the witnesses who were present at the scene of the offence. He states that he had lodged his complaint. In cross-examination omission has been duly proved that he had not stated in his report that the appellant was attempting to ablaze his daughter. Nothing useful has been elicited in his cross- examination to discredit the version of P.W.2 Shaikh Rustum. 5. Prosecution has also examined P.W.4 Goribi wife of deceased. She states that on 22.1.2006 in between 5.30 to 6.00 p.m. she was cooking food. The accused had received Rs.6,000/- out of which he had paid Rs.5,500/- towards the arrears of electricity consumption charges and had given Rs.500/- to his wife for household expenses. The accused was demanding the amount from his wife in respect of Rs.500/- given to her. On that count there was quarrel between the appellant and his wife and thereafter the accused poured kerosene on his daughter and attempted to set her ablaze. Wife of the appellant rushed out of the house and cried for help. On hearing her cries all the neighbours rushed to the house of the accused and the accused abused all those who were present in filthy language. Accused stabbed deceased with a knife on his abdomen. Her father-in- law P.W.2 Shaikh Rustum also rushed to the scene and the 6 accused hit him with a wooden plank on his head. In cross- examination she has admitted that she did not enter the house of the accused. She has also admitted that she had not stated in her previous statement that the accused was demanding amount of Rs.500/- from his wife. She has admitted that though she had stated in her previous statement that the accused had stabbed her husband on the abdomen she could not explain as to why it was not so written. She states that she had gone to the accused on hearing the cries for help. She was confronted with the portion from her previous statement wherein she had stated that the accused had stabbed her husband on his chest. She explained that according to her the abdomen and chest were one and the same. 6. Prosecution has examined P.W. 5 Vilas, another eye witness who states that on the day of the incident the accused was abusing his daughter in filthy language and he had also gone to the scene of the offence. The accused had poured kerosene on his daughter and his daughter was crying for help. The deceased came to the scene of the offence and asked the accused as to why he was abusing and thereupon the accused threatened the deceased that he would see everyone and would kill them. The accused then brought the knife from his house and stabbed deceased on his chest. In the meantime father of deceased also 7 arrived at the scene and the accused took a wooden plank and hit it on the head of the father of deceased. In cross-examination he admitted to be correct that the father of deceased had arrived after deceased had fallen. He then gives a startling admission, “It is correct in the darkness due to melee the deceased fell down. I do not know that the deceased had already sustained an old injury on the right side of his abdomen.” He then states that he had not seen the accused hitting a wooden plank on the head of P.W.2 Shaikh Rustum but had seen the wooden plank in the hands of the accused. He then admits that the accused did not pour kerosene on his daughter. P.W.6 Munirkhan states that along with others deceased and his father had gone to intervene and separate the quarrel but the accused had abused all of them. Deceased went near the accused and at that time the accused hit the deceased with “something” which the witness could not see. He states that deceased fell down and thereafter the accused hit a wooden plank on the head of Shaikh Rustum. 7. According to us no reliance whatsoever can be placed on the testimony of P.W. 5 Vilas and P.W.6 Munirkhan. P.W. 2 Shaikh Rustum, who is an eye witness to the incident clearly stands corroborated by the recitals of the first information report at Exh. 13 which was lodged soon after the incident. The wooden plank came to be seized from the scene of the offence. The description 8 of the wooden plank is to be found in Exh.15 which is the scene of the offence panchnama. The wooden plank was 1’ x 4” in length and 6 ½” in width. At one end the wooden plank was 5” in width. There was a sharp nail like object affixed on one end and at the other end there was an iron strip of length 10” with a “L” shaped hook. We thus find from the description of the wooden plank the injuries caused to P.W.2 were possible by the wooden plank. 8. Learned Counsel for the appellant has urged before us that no reliance whatsoever could be placed on the testimony of P.W.2 Shaikh Rustum, particularly in the light of the discrepant versions of P.W.4 Goribi, P.W. 5 Vilas and P.W.6 Munirkhan. We have already held that no reliance can be placed on the testimony of P.W.5 Vilas and P.W.6 Munirkhan. It appears to us that possibly P.W.4 Goribi must have arrived at the scene of the offence after the incident was over and may not have actually witnessed the appellant accused stabbing the deceased. Even if the evidence of P.W.4 Goribi is left out of consideration, according to us evidence of P.W.2 Shaikh Rustum corroborated by the recitals in his report at Exh.13, clearly establishes that the appellant-accused had stabbed deceased and thereafter had inflicted injuries by a wooden plank to P.W.2 Shaikh Rustum. 9 9. Learned Counsel for the appellant then urged before us that the appellant-accused did not have the intention of causing death of deceased. According to the learned Counsel a quarrel was going on between the appellant and the other inmates of the house. In a fit of rage the appellant-accused stabbed the deceased. There was no quarrel between the deceased and the appellant and as such no intention could be ascribed to the appellant-accused of committing murder of deceased Shaikh Ahmed. 10. Deceased had not in any manner intimidated the appellant- accused. There is no evidence whatsoever that there was a quarrel or a scuffle between the appellant and the deceased, at least it is not suggested to the prosecution witnesses. The appellant-accused had no cause whatsoever for stabbing the deceased. The appellant-accused had inflicted an injury to deceased which had resulted in the death of deceased. The injury inflicted by the appellant-accused was an intentional injury and was not an accidental injury. The injury inflicted was sufficient in ordinary course of nature to cause death of deceased and in fact, the deceased had died as a result of the said injury. In such circumstances, according to us it would be idle to urge before us that the appellant-accused had no intention to commit murder of deceased Shaikh Ahmed. According to us the 10 appellant-accused would be guilty of offence punishable under Section 302 of the Indian Penal Code. 11. In the light of above, we do not notice any merit in the present appeal and the present appeal is, therefore, dismissed confirming the conviction and sentence. ( A.V. POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/722.08criapeal)