1 cri-apeal-220-05 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 220 OF 2005 Mohammad Haniff Blackwala ] Mohammad Amin Sheikh ] Presently lodged in Kolhapur Central ] Prison, Kalamba, Kolhapur ]..Appellant Convict No.C-2156 [Ori.Accused ] Vs. The Prosecution/ ] The State of Maharashtra ]..Respondent [Ori. Complainant] .... Ms. Anita Kuttikrishnan Advocate for Appellant Smt. A.S.Pai Additional Public Prosecutor for State .... CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. RESERVED ON : NOVEMBER 16, 2010 DECLARED ON : DECEMBER 09, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1 This appeal is directed by the appellant-original accused against the judgment and order dated 10.4.2003 passed by the learned 2 cri-apeal-220-05 Additional Sessions Judge, for Greater Bombay in Sessions Case No. 879 of 1997. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay a fine of Rs. 500/- in default RI for two months. 2 The prosecution case briefly stated, is as under: On 15.3.2009 at about 9 p.m. the complainant PW 1 Samirulla Khan along with his cousin Sarajuddin Mohammad Siddique (deceased) went to Kalpana theatre to see film `Raja Ki Aayegi Barat’. In the theatre, the accused was sitting behind them. The accused asked the deceased to sit on the next chair as he could not see the picture properly. On account of this, a quarrel took place between the accused and the deceased. During the interval, the accused again started quarreling with the deceased. The accused then went outside the theatre and came back with an empty glass bottle of soft drink. He smashed the glass bottle against a chair and pierced the broken bottle in the chest of Sarajuddin. The complainant along with PW 2 Tawar Hussain brought Sarajuddin outside the theatre. Sarajuddin was then taken to Sion hospital. However, on reaching Sion hospital, the Doctor pronounced Sarajuddin dead. Immediately thereafter, PW 1 Samirulla 3 cri-apeal-220-05 Khan lodged his FIR (Exh. 7). Thereafter investigation commenced. During the investigation, the dead body of Sarajuddin was referred for post mortem. The Doctor who conducted the post mortem found curved stab injury gaping wound on the left pericardial region i.e. on 5th intercostal region below nipple 1 cm horizontal x ½ cm. vertical x 9 cm deep in the chest. The doctor also found two abrasions on the right knee. The spot panchnama Exh. 10 came to be drawn. Broken glass bottle and broken pieces of cold drink bottle were found on the spot which came to be seized. The accused came to be arrested. After completion of investigation, the charge sheet came to be filed against the appellant. In due course, the case was committed to the Court of Sessions. 3 Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. It may be stated here that the appellant had admitted that he had gone to Kalpana theatre to watch the film “Raja Ki Aayegi Barat”, however, he has denied the rest of the prosecution case. No specific reason has been given by the appellant as to why he was implicated in this case. He has examined one witness in his 4 cri-apeal-220-05 defence i.e. DW P.C. Gaikwad. After going through the evidence adduced by both sides, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 We have heard the learned advocate for the appellant and the learned Additional Public Prosecutor for the State. The appellant has filed this appeal through jail. The matter was allotted to Advocate Mr. A.Z. Mookhtiar from the legal aid panel. However, as he did not remain present, this Court appointed Ms. Anita Kuttikrishnan to appear for the appellant. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, we are of the opinion that the learned Sessions Judge was right in coming to the conclusion that the appellant committed murder of Sarajuddin and hence, the appeal deserves to be dismissed. 5 The prosecution case is mainly founded on the evidence of PW 1 Samirulla Khan who is an eye witness to the incident. It is to be noted that it is not denied on behalf of the appellant that Sarajuddin died a homicidal death. The post mortem notes Exh.14 show the following 5 cri-apeal-220-05 injuries on the person of Sarajuddin: 1) Stab injury on the left pericardial region i.e. 5th intercostal region 1 cm lateral to the midclavicular line below the nipple, sharp curved having five edges, 1 cm horizontal x ½ cm. Vertical x 9 cm. deep in chest through the intercostal space, bleeding present, gaping present. 2) Two horizontal abrasions on the right knee 2 x 0.5 cm. X 3 cm. X 1 cm. In view of the post mortem notes Exh. 14 which have gone unchallenged since the same has been admitted by the defence under Section 294 of Cr.P.C. considering the injuries mentioned therein, we have no hesitation in holding that the prosecution has proved that Sarajuddin died a homicidal death. 6 To prove that it was the appellant who was assaulted Sarajuddin and caused his death, the prosecution has mainly relied on evidence of PW 1 Samirulla Khan. PW 1 Samirulla Khan has stated in his evidence that on 15.3.2009 at about 9 p.m. he along with his cousin Sarajuddin Mohammad Siddique (deceased) went to Kalpana theatre to see film `Raja Ki Aayegi Barat’. In the theatre, the accused was sitting 6 cri-apeal-220-05 behind them. The accused asked the deceased to sit on the next chair as he could not see the picture properly. On account of this, a quarrel took place between the accused and the deceased. During the interval, the accused again started to quarrel with the deceased. The accused then went outside the theatre and came back with an empty glass bottle of soft drink. He smashed the glass bottle against a chair and pierced the broken bottle in the chest of Sarajuddin. Samirulla has further stated that he along with PW 2 Tawar Hussain brought Sarajuddin outside the theatre. Sarajuddin was then taken to Sion hospital. However, on reaching Sion hospital, the doctor pronounced Sarajuddin dead. Immediately thereafter, he lodged his FIR. Nothing has been elicited in the cross-examination of PW 1 Samirulla Khan so as to disbelieve his testimony. 7 As far as the evidence of PW 2 Tawar Hussain is concerned, he has stated that he had not seen the incident, however, he stated that he had gone to see the movie “Raja Ki Aayegi Barat” at Kalpana theatre at 9 p.m. There was quarrel inside the theatre between Sarajuddin and Samirulla Khan on one side with another person who was indulging in black marketing of cinema tickets. There was scuffle and at that time, Sarajuddin received injury on his chest which was bleeding and the said 7 cri-apeal-220-05 injury was received from a broken bottle. Members of the public who were inside the theatre were talking to each other that blackwala had assaulted that person. He and PW 1 Samirulla khan took Sarajuddin to Sion hospital where he was declared dead by the Doctor. PW 2 Tawar Hussein stated that person whom he was referring to as Blackwala in his evidence, was the accused who was present before the Court. The evidence of this witness has not been shaken in the cross-examination. Thus, the testimony of this witness corroborates the testimony of Samirulla. 8 According to the prosecution, PW 4 Babu Nair who was working as watchman in Kalpana theatre also witnessed the incident and he was examined as an eye witness. However, this witness has not supported the prosecution and as he did not support the prosecution, he was cross-examined by the Public Prosecutor. During the cross- examination, this witness has admitted that the accused had come to the theatre at about 9 p.m. to see the film and this witness had collected the ticket from him and returned counterfoil to the accused. This witness has also admitted that immediately after the interval he heard commotion inside the theatre, however, he has stated that he did not go inside the theatre. Thus, the evidence of PW 4 Babu shows that at the relevant 8 cri-apeal-220-05 time, the accused had come to Kalpana theatre to watch the movie. This establishes the presence of the accused at the scene of the incident. 9 The panchnama of the scene of offence Exh.10 was drawn. The said panchnama was admitted by the defence under Section 294 of Cr.P.C. The panchnama shows broken pieces of soft drink bottle were found at the spot which also corroborates the prosecution case that the accused came with empty cold drink bottle and hit the same against a chair and with this broken bottle, he assaulted Sarajuddin in the chest. The C.A. Report (Exh.18) shows that the broken pieces of bottle (article 10) which were found on the spot, were stained with human blood. C.A. Report further shows that the broken portions of soft drink bottle which were seized from the spot matched with the top portion of the broken bottle sent to the C.A. 10 The learned advocate for the appellant submitted that Samirulla Khan is an interested witness as he is the cousin of the deceased and therefore, his evidence cannot be relied upon. She further contended that the prosecution has not examined any other independent witness, hence, adverse inference ought to be drawn 9 cri-apeal-220-05 against the prosecution. It is pertinent to note that the incident took place in a cinema hall during the interval of the last show and the public who was present in the theatre had come there from various parts of the city and in such circumstances, after the incident the spectators would go away from the theatre and disperse, under such circumstances, it would not be possible to trace any of the witnesses who could have seen the incident, save and except PW 1 Samirulla Khan who had accompanied the deceased on the fateful day to watch the film and also was with the deceased till the end and PW 2 Tawar Hussain. It is not the case of the defence that Tawar Hussain is an interested witness. It is not to be lost sight of that the prosecution has examined PW 4 Babu Nair who is an independent witness. Though Babu Nair may have turned hostile, his admissions have been of great help to the prosecution. As this incident took place in the theatre it would not be possible for the police to trace any other eye witness as no witness would on his own approach the police and tell that he had witnessed the incident. However, after going through the evidence of PW 1 Samirulla khan we do not find any infirmities in the evidence of PW 1 and moreover, the defence has not brought any material on record to show that PW 1 Samirulla Khan has deposed against the accused out of any previous enmity. In fact, no such case was put up to PW 1 Samirulla 10 cri-apeal-220-05 Khan in his cross-examination. In such circumstances, in our opinion the evidence of PW 1 Samirulla Khan can be safely relied upon. It is also pertinent to note that the accused has admitted that he was present in Kalpana theatre at the relevant time. In this connection we may refer to the inquest panchnama Exh. 9 which has been admitted under Section 294 of Cr.P.C. The panchnama shows that in the shirt of the deceased, two cinema tickets were found for the 9 p.m. show of Kalpana theatre. This shows that the deceased along with one other person had gone to Kalpana theatre at 9 p.m. to watch the movie and the evidence of PW 4 though he turned hostile, shows that the accused had also come to watch the 9 p.m. show in Kalpana theatre. This coupled with the evidence of PW 1 Samirulla Khan clearly establishes the prosecution case that it was the appellant who assaulted the deceased with broken glass bottle and caused his death. 11 It needs to be stated that the accused has examined one Anil Gaikwad as a defence witness. Anil Gaikwad was a police constable posted at Sion hospital. On perusal of the evidence of Anil Gaikwad, we find that it is not of much help to the defence. Anil Gaikwad has stated that on 15.3.1997 at about 11.15 p.m. one injured patient Sarajuddin was brought to the hospital by one Tanwar Hussain. The 11 cri-apeal-220-05 injured was unconscious. He made enquiries with Tanwar as to how the injured person received injury. Tanwar informed him that there was ‘mara-mari’ in Kalpana theatre and during that `mara-mari’ injured person received injury. Ms. Kuttikrishnan tried to make much capital out of the fact that this witness has stated that he was not informed the name of the assailant. It is seen that DW 1 Anil Gaikwad made enquiries only with Tanwar who is PW 2. At the time of the incident, PW 2 did not know the name of the accused, hence, obviously it was not possible for him to state the name of the assailant. In this view of the matter, the evidence of DW 1 Anil Gaikwad is not of much help to the defence. 12 The learned advocate for the appellant has contended that the act of the accused would not fall under Section 302 of IPC but it would at the most fall under Section 304-II of IPC. To support this contention, she has pointed out that the incident took place on account of a sudden quarrel and the accused person had given just one stab blow to Sarajuddin. She further pointed out that the act of the appellant was not premeditated but it had occurred at the spur of moment. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is 12 cri-apeal-220-05 sudden or not must necessarily depend upon the proved facts of each case. As far as this aspect is concerned, we find that after the initial quarrel, during the interval the accused again picked up a quarrel with the deceased. He then went outside the theatre and brought an empty glass bottle, he broke it by hitting the same against a chair and then stabbed the broken bottle in the chest of the deceased. The intention to kill is writ large taking into consideration the nature of weapon used, part of the body on which the injury was inflicted and the force which was used to assault the deceased. That a huge amount of force was used by the appellant is evident from the fact that the stab injury was 9 cms. deep and had caused extensive damage inside. The situation would have been a little different if a glass bottle was lying on the spot and the appellant had picked up the bottle and assaulted deceased with the bottle. The fact that after the second quarrel, the appellant went outside the theatre and came back armed with a glass bottle, which he broke against a chair and stabbed the deceased in the chest, drastically alters the situation. This shows that there was sufficient time for his anger to cool down. Thus, it cannot be said that the action of the accused was during the heat of passion. 13 Exception 4 to Section 300 of IPC can be invoked if death is 13 cri-apeal-220-05 caused : (a) in a sudden fight; (b) without premeditation; (c) in the heat of passion; and (d) without the offender having taken undue advantage or acted in a cruel or unusual manner. For the application of Exception 4, therefore, it is not sufficient to show that there was a sudden quarrel but it should also be shown that the act occurred in the heat of passion and without any premeditation. Both these criteria are not satisfied in the present case. The accused after he initiated the second quarrel, went out of the theatre and came back thus, there was sufficient gap of time for his emotions to cool down, hence, it cannot be said that the act occurred in the heat of passion. Secondly, the accused after the second quarrel went outside the theatre and came back with an empty glass bottle, this shows that his further act of breaking the bottle and assaulting Sarajuddin was premeditated. To avail of exception 4, it must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. In the present case, the post mortem notes clearly show that the depth of the injury was 9 cms. and the injury was on a vital part of the body i.e. on heart. Looking to this fact and the nature of the weapon, the force used and other circumstances, we are not inclined to agree with the contention raised by learned advocate for the appellant that the act of the accused would not fall under section 302 of IPC but it would fall under section 304-II of 14 cri-apeal-220-05 IPC. 13 In the result, we do not see any merit in this appeal and the same deserves to be dismissed. The conviction and sentence imposed by the learned Sessions Judge is hereby confirmed. The appellant to serve out the remaining sentence. 14 Before parting with this judgment, we wish to place on record our appreciation for the able assistance rendered by the learned advocate Ms. Kuttikrishnan who even at a very short notice, was throughly prepared and very ably conducted the matter. 15 Appeal dismissed. [D.D.SINHA, J. .] [ SMT. V.K.TAHILRAMANI, J.]