1 apeal45804 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 458 OF 2004 Shaikh Mohammad Issak ] Aged: 57 years, Occ: Service, residing ] at 302/B, Chandrachhaya-II, Mira Road, ] Dist.: Thane ] [Presently lodged at Arthur Road Central ] Prison, Mumbai] ] ...Appellant V/s. The State of Maharashtra ] ...Respondent Mr. Amin Solkar for the Appellant Ms. M.H. Mhatre, A.P.P., for the State. CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: 6TH JANUARY, 2011 ORAL JUDGMENT (Per A.R. Joshi, J.) :- Heard rival submissions at length on this criminal appeal preferred by the sole appellant / original accused, challenging the judgment and order dated 8th March, 2004. By the said impugned judgment and order, the appellant / accused was convicted by the 2 apeal45804 Additional Sessions Judge, Greater Mumbai, for the offence punishable under Section 302 of the Indian Penal Code, and was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-; in default, R.I. for three years. 2. The appellant / accused is in jail. 3. The case of the prosecution, as transpired from the police investigation, and as per the substantive evidence of prosecution witnesses, as detailed in the impugned judgment and order, has been narrated as under:- The present appellant and deceased were real brothers and stayed together in the same tenement. The appellant with his family, including his wife, P.W. No.1, was residing on the loft of the tenement, whereas the deceased, along with his family members, including his two sons, P.Ws. No. 2 and 4, and his sister, P.W. No. 3, were residing on the ground floor. The incident in question occurred on the night of 8th April, 1989 after about 7.30 p.m. It was the period of Ramzan. On the fateful day, in the said room, there was some quarrel ensued between the deceased and the appellant - accused, his real brother. The said quarrel 3 apeal45804 was on account of some water tap and facility of water in the said tenement, which was being denied, at the relevant time, to the deceased. On this count, there was altercation between the brothers, and in order to teach a lesson to the deceased, the appellant - accused went inside the kitchen, and brought the knife and stabbed on the chest, abdomen and other parts of the body of the deceased. Apparently, he had given about 7 blows, causing severe bleeding injuries. The said assault had virtually caused instantaneous death of the deceased, as immediately after the assault, when the deceased was removed to the hospital, he was declared dead. 4. Certain admitted positions can be narrated in order to bring down the scope of the arguments which are to be dealt with in the present appeal:- (i) The case of the prosecution rests on three eye witnesses, P.Ws. No. 2, 3 and 4. P.Ws. No. 2 and 4 are sons of the deceased, whereas P.W. No. 3 is sister of the deceased. (ii) Though there was alleged recovery of blood-stained clothes and a knife at the instance of the appellant / accused as per the provisions 4 apeal45804 of Section 27 of the Evidence Act, the said articles were not produced before the trial Court during the trial. Moreover, no C.A. Report is brought before the Court in order to connect the said articles with the appellant - accused so as to implicate him in the assault. (iii) Apart from P.Ws. 2, 3 and 4, there are no eye witnesses. Even the complainant, P.W. No.1, is not an eye witness. (iv) Statements of the eye witnesses, P.Ws. No. 2, 3 and 4, were immediately recorded after lodging of the complaint, and the said statements were recorded in the immediate proximity of about two to three hours of the incident. (v) Presence of the appellant / accused during the quarrel has been established by the prosecution, and has been accepted by the defence. This is more so in view of the cross-examination of the eye witnesses, P.Ws. No. 2, 3 and 4. (vi) Homicidal death of the deceased is an admitted position, and there is no dispute on this count. 5 apeal45804 (vii) It is the defence of the appellant / accused, which is three- fold, i.e., firstly, that it is the entire denial; secondly, that the real assailant is P.W. No.3, sister of the deceased, and, thirdly, that the appellant / accused was not present on the spot, and was, in fact, offering namaaz in the nearby mosque, and was in presence of D.W. No. 1. (viii) It is also argued on behalf of the appellant that, apparently, there is no attempt made by P.Ws. No. 2 and 4 to intervene in the alleged assault on their father; and they did not try to apprehend the accused, though, allegedly, they had seen him assaulting their father with the help of knife. 5. Bearing in mind the above-mentioned admitted position, the arguments advanced on behalf of the appellant-accused can be scrutinised. Much is argued by learned counsel Shri Amin Solkar on behalf of the appellant / accused that though there are three alleged eye witnesses, there is no independent corroboration to their substantive evidence by way of examination of any other neighbour. While elaborating this point, it is submitted that, according to the prosecution, shouts were raised by the eye witnesses, and more 6 apeal45804 specifically by P.W. No. 3, sister of the deceased. However, nobody from the neighbourhood has been examined, though people had gathered around in large number. Secondly, it is argued that there is no corroboration by way of any filing of C.A. Report, much less incriminating document, against the appellant so far as the alleged recovery of his blood-stained clothes and alleged recovery of knife at his instance are concerned. Thirdly, it is argued that the defence of the appellant / accused is required to be accepted on preponderance of probabilities on two counts, i.e., firstly, that P.W. No. 3 is the real assailant and on the second count that the appellant was not present on the spot, and was in the mosque offering the prayers of Ramzan. 6. The substantive evidence of P.W. No. 9, wife of the appellant, was taken shelter of by learned counsel Shri Solkar and he pointed out that it was specifically brought on record through her evidence that P.W. No. 3 was seen holding the knife in her hand when P.W. No. 9 saw the deceased lying on the ground after having received the severe bleeding injuries. Again, on this count, it is brought to our notice that such defence is also put to P.W. No. 3 during her cross- examination by suggesting that she had assaulted her brother. Again, the shelter of substantive evidence of P.W. No. 9 is taken in order to 7 apeal45804 substantiate the said defence that the appellant / accused was in the mosque and not on the spot; and as such, this negates the case of the prosecution as to his involvement in the assault, more so when there is corroborative evidence lacking due to non-production of the C.A. Report and also non-production of the alleged recovered articles, blood-stained cloths and the knife at the instance of the appellant / accused. 7. Apart from the above arguments, it is strongly submitted on behalf of the appellant-accused that the prosecution had failed to produce the EPR record concerning the history given while admitting the injured / deceased in the hospital on that night. To substantiate this argument, it is further brought on record that the prosecution had produced vide Exhibit 25, the EPR entry concerning the injury sustained on the finger of P.W. No. 9, however deliberately suppressed the EPR entry concerning the deceased person. 8. It is also argued on behalf of the appellant on the conduct of the alleged eye witnesses, P.Ws. No. 2, 3 and 4, as to not disclosing the alleged assault at the hands of the appellant, during the time the deceased was being carried to the hospital and when the complainant, P.W. No. 1, was accompanying the deceased and others and was sitting in the back 8 apeal45804 seat of the same taxi. To substantiate this argument, the substantive evidence of P.W. No. 1 was taken shelter of to the effect that he had no knowledge as to how the injury had taken place, though P.W. No. 1 had stated that the deceased, Mohammed Yusuf, was having knife injury on his chest. 9. It is further brought to our notice that in the substantive evidence, P.W. No. 1 complainant had not specifically mentioned as to how he received the information regarding the assault on the deceased. In other words, it is submitted that there is no specific substantive evidence of P.W. No. 1 that he knew from P.W. No. 2 that the appellant / accused was the assailant. It is further brought to our notice that mere mentioning in his substantive evidence that whatever mentioned in the First Information Report is correct, would not serve the purpose, and there must be specific mention in the substantive evidence as to his knowledge through P.W. No. 2, knowing the name of the appellant as the assailant. The mere mention of the said factual position in the F.I.R. (Exhibit 5) would not serve the purpose, and as such, it is a mitigating circumstance to the case of the prosecution, further argued. Lastly, it is submitted that if at all it is held that the appellant / accused was involved in the assault and/or the stab injuries caused to the deceased, the case is 9 apeal45804 required to be viewed in different perspective, considering the relation between the appellant and the deceased and considering that there was no pre-meditated act, more so when, according to the case of the prosecution, after the hot exchange of words, the appellant / accused went inside the kitchen and brought the knife. It is further argued that such factual position as projected by the prosecution goes to show that the appellant / accused was not prepared and armed with the knife at the inception of the quarrel itself; and that the act committed by the accused was on spur of the moment. 10. In view of the above, it is lastly submitted on behalf of the appellant that at the most, the offence may be altered to offence punishable under Section 304, Part I, thus attracting only imprisonment up to 10 years. 11. Counter to the arguments advanced on behalf of the appellant / accused, learned A.P.P. Ms. Mhatre further placed much reliance on the substantive evidence of three eye witnesses, i.e., P.Ws. No. 2, 3 and 4. It is further submitted on behalf of the State that when the case is based on direct evidence, asking for corroboration by way of other circumstances is not warranted in order to accept the case of 10 apeal45804 the prosecution. In other words, it is submitted on behalf of the State that the conviction of the appellant for the offence punishable under Section 302, I.P.C., can sustain only on the substantive evidence of the eye witnesses and their evidence inspires confidence as in the present case. 12. Secondly, it is argued that when the appellant / accused has taken a specific defence of alibi and alternative defence as to the author of the injuries being P.W. No. 3, it is must for the appellant to bring some material on record to accept the said defence on preponderance of probabilities. On this aspect, substantive evidence of P.W. No. 9 is brought to our notice, and it is submitted that the said witness is a partisan witness, and her testimony is required to be scrutinised with due care and caution not only because she is the wife of the appellant / accused, but also for the reason that she did not immediately disclose the incident to the police, though there was such opportunity to her on the night of the incident. Again, on this aspect, it is brought to our notice that allegedly according to P.W. No. 9, she saw P.W. No. 3 holding a knife in her hand when the deceased was lying on the ground in injured condition. If this would have been the factual position, according to P.W. No. 9, then, her conduct not to disclose the same to the police at the immediate available opportunity raises doubt and in that event, her 11 apeal45804 evidence cannot be accepted as supporting the defence of the appellant / accused. 13. By taking shelter of the substantive evidence of D.W. No. 1, it is argued by learned A.P.P. Smt. Mhatre that considering the proximity of the masjid, where, allegedly, the accused was present for offering namaaz and the place of the incident, the possibility could not be ruled out as to there was every opportunity for the appellant / accused to remain present on the spot during the incident and assault the deceased, more so when there is direct evidence of three eye witnesses. Further elaborating the above argument, it is submitted on behalf of the State that said D.W. No. 1 did not attend the police station at any point of time or even did not write to the police station or to the concerned Court during the trial to give the alleged story as to the presence of the appellant / accused with him during the particular time of the incident. It is brought to our notice that only before the Court, during the trial, the said witness had substantiated the defence of the appellant / accused as to alibi. It is further argued that the burden of the accused is more and the standard of proof required to establish the specific defence of alibi is much more than that is required in the case of preponderance of probabilities. 12 apeal45804 14. Lastly, it is submitted that the present matter cannot be viewed so as to alter the said offence from Section 302 of I.P.C. to Section 304, Part I of IPC, more so when there was intention and knowledge which can be gathered from the circumstances to do away with the deceased, more so when, admittedly, there were seven knife blows given on the vital parts, i.e., chest and abdomen, of the deceased. On this aspect, for the sake of ready reference, said injuries sustained by the deceased can be mentioned as detailed in the post mortem report, which are as under:- "External injuries - (1) Incised stab wound on left upper chest in left mammary line 7 cm away from left axilla, slightly oblique, spindle shaped 4 cm x 2 cm x C.D. with a tailing of 2 cm downwards On dissection - perforates underneath - - Skin and muscles - cuts left 1st rib - left second intercostal space. - Pleura - enters into lt. lung 2 cm x 1 cm, goes through and through of lt. lung upper and middle lobe, exit from left lung 1 cm x 0.5 cm left lung collapsed. Blood in left Thorax 1600 ml. Direction - from front to back above downwards, obliquely. Depth - about 10 cm to 12 cm. (2) Incised wound on left cheek, oblique 8 cm x 0.2 cm x skin deep. (3) Incised wound on Neck, right side in middle, oblique 2.5 cm x 0.5 cm x skin deep. 13 apeal45804 (4) Incised wound on Neck, right side, laterally, oblique 3.5 cm x 0.2 cm x skin deep. (5) Abrasion on right chest, medial to right breast, linear 3.5 cm in length. (6) Abrasion on left middle chest oblique 4 cm x 0.1 cm (7) Incised wound above right eyebrow 1 cm x 0.2 cm x muscle deep." 15. Now, coming back to the argument advanced on behalf of the appellant / accused, so far as non-examination of the independent eye witness is concerned, such a non-examination cannot be taken as fatal to the case of the prosecution, more so when there is direct evidence of eye witness as in the present case. So far as the recoveries at the instance of the appellant / accused, which are not incriminating, are concerned, we have gone through the reasoning given by the learned Additional Sessions Judge, and it must be stated that, without such circumstance, the substantive evidence of eye witnesses, when trustworthy as in the present case, is sufficient enough to bring home the guilt of the accused. 16. So far as the defence of the appellant that he was not the author of the assault, but it was the act of P.W. No. 3, is concerned, 14 apeal45804 the arguments advanced on behalf of the prosecution are required to be accepted; and in that event, it must be stated that there is nothing even on preponderance of probabilities to accept the theory put forth by the appellant as to P.W. No. 3 being the assailant. Again, for the second defence of alibi, the arguments advanced on behalf of the State are required to be accepted over the arguments canvassed on behalf of the appellant / accused; and it must be stated that the accused has failed to establish his alibi, and has not discharged the specific burden cast on him when he is taking the said defence of alibi. This is more so, in view of the import of Section 106 of the Evidence Act. 17. Though much is argued on non-production of the Emergency Patient Register concerning the victim, it is an admitted position that the prosecution has not placed reliance on the said E.P.R., and as such, the argument advanced on behalf of the appellant / accused, as to drawing adverse inference for non-production of such report, is required to be rejected. Otherwise also, it is not the requirement of law that the entire history as to the assault or cause of the injury is to be mentioned in the E.P.R. In the present matter, there is nothing before the trial Court as to what was the history given in the E.P.R. concerning the victim. In that event, if the appellant is taking advantage of this 15 apeal45804 circumstance, then, it is for him to positively show that the history of the assault is so mentioned in the E.P.R. that it is absolving him from the authorship of the assault. In other words, in our view, non-production of the E.P.R. cannot be taken as fatal to the case of the prosecution. 18. On another argument on behalf of the appellant / accused as to P.W. No. 1 not mentioning in his substantive evidence as to how he knew the name of the assailant, it must be stated that P.W. No. 2, son of the deceased, had mentioned in his substantive evidence that he narrated the name of the assailant to P.W. No. 1, and as such, it is specifically recorded in the F.I.R. Though it is an admitted position that, in clear words in the substantive evidence, P.W. No.1 had not stated so as to knowing the name of the assailant from P.W. No. 2, still, he comes with a case that he had given the true and correct account in the F.I.R., and he had vouched for the correctness of the F.I.R. (Exh. 5). 19. In view of the above discussion, in our view, the overwhelming evidence of eye witnesses, P.Ws. No. 2, 3 and 4, is sufficient to bring home the guilt of the accused, and as such, it has been rightly held so by the learned Additional Sessions Judge while convicting the appellant / accused for the offence of murder. 16 apeal45804 20. On this aspect of substantive evidence of P.Ws. No. 2, 3 and 4, it is the factual position that these witnesses were of rather tender age - around 12 and 14 years or so - and the conduct of these boys cannot be taken as unnatural so as to brand them as fabricated witnesses. In other words, considering the gravity of the situation as to the severe assault on their father at the hand of the accused, and that also causing almost instantaneous death by way of inflicting multiple blows by knife, was such a grave scene, and probably, for the same reason, it cannot be expected that they ought to have intervened in the assault when the appellant i.e. accused was armed with knife, a deadly weapon. Even from the substantive evidence of these witnesses, it is a factual position that immediately after the assault, the appellant / accused ran away from the spot, thus making these boys impossible to intervene in the incident or to chase him. In any event, the conduct of these witnesses, from their substantive evidence, cannot be doubted, as argued on behalf of the appellant / accused. 21. The severity of the assault - that also seven blows - is a circumstance which prompts us to reject the last argument of leniency pleaded on behalf of the appellant / accused; and as such, in our considered view, it is not a case in which the offence punishable under 17 apeal45804 Section 302, I.P.C., is required to be altered to the offence punishable under Section 304, Part I, of I.P.C. 22. In view of the above, the present appeal must fail, and same is, accordingly, dismissed. The judgment and order dated 8th March, 2004 passed by the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No. 710 of 1989 is upheld and the impugned conviction and sentence of the appellant / accused is maintained. A.R. JOSHI, J. A.M. KHANWILKAR, J.