1 Cri. Appeal no. 367.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 367 OF 2007 1] Sayyed Yusuf S/o S. Shadulla, Aged 30 years, 2] Sayyed Shadulla S/o S. Nabisab, Aged 65 years, Both R/o Nandur, Tq. Degloor Dist. Nanded ... Appellants V E R S U S The State of Maharashtra through Police Station Degloor Through Public Prosecutor, High Court Bench at Aurangabad ... Respondent ... Mr. P.V. Mandlik, Sr. Advocate with Mr. U.B. Bilolikar, Advocate for Appellants Mr. S.V. Kurundkar, A.P.P. for respondent-State ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. DATED : 11TH NOVEMBER, 2009 ORAL JUDGMENT (PER : P.V. HARDAS, J.) 1] The appellants who stand convicted for the offence punishable under section 302 r/w.34 of the Indian Penal Code by the Additional Sessions Judge, Biloli, by judgment dated 30.8.2007, in sessions case no. 46 of 2006 and sentenced to imprisonment 2 Cri. Appeal no. 367.2007 for life and to pay fine of Rs.2000/- each with a default stipulation of undergoing further rigorous imprisonment for four months in the event of non- payment of fine, by this appeal question the correctness of their conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus:- . P.W. 9 P.S.I. Londhe was attached to the Degloor Police Station and had received a message from the Government hospital, Degloor intimating him that a dead body has been brought to the hospital. He accordingly proceeded to the Government hospital and noticed a dead body in the post-mortem room of the hospital. He questioned the persons who had brought the dead body and accordingly recorded the complaint of P.W. 2 Mirsab S/o Nabisab at exhibit 37. He forwarded the report to the Police Station and on the strength of the report exhibit 37 registered an offence under section 302 r/w. 34 of the Indian Penal Code. He thereafter, returned back to the Government hospital, Degloor and in the presence of two 3 Cri. Appeal no. 367.2007 panchas recorded the inquest panchanama at exhibit 32. The dead body was thereafter handed over to the Medical Officer for conducting the post-mortem examination. The post-mortem on the dead body of the deceased Mahemood came to be performed by P.W.3 Dr. Shaikh Rafiyoddin who noticed the following external injuries: Injury no.1 : Stab wound over left chest in 7th intercostal space 4 c.m. wide and deep upto the thoracic cavity. Injury no.2: Sharp incised wound over left shoulder 4 X 1/2 X 1/2 cm. On internal examination he noticed incised wound over 7th intercostal space corresponding to pleura and noticed an incised wound on the heart over left ventrical of size 3 X 2 cm. He therefore opined that cause of death was shock due to stab injury to heart. The post-mortem report is at exhibit 39. He further opined that the aforesaid injuries could be caused by a knife. On the next day i.e. after performing the post-mortem examination, P.W.9 P.S.I. Londhe seized the clothes of deceased Mahemood in the presence of panch at seizure memo at exhibit 33. Thereafter he visited the scene of offence at village Nandur and drew the scene of 4 Cri. Appeal no. 367.2007 offence panchanama exhibit 39 in the presence of panchas. From the scene of offence he collected samples of mud and blood stained mud. He recorded the statement of the witnesses. P.W. 8 P.I. More who was attached to the Degloor Police Station, arrested both the accused on 5.10.2006 and the wearing apparel of accused no. 1 which was found stained with blood came to be seized vide seizure memo exhibit 46. During custodial interrogation accused no.1 expressed his willingness to point out the place where he had hidden the knife and accordingly memorandum of accused no.1 came to be recorded in the presence of panch witnesses at exhibit 44. Pursuant thereto, the accused led the Police and panchas to village Nandur in a Police jeep and from his house produced a knife which had been hidden in a nitch in the wall. The aforesaid knife came to be seized vide seizure memo exhibit 45. Pursuant to the completion of the investigation the chargesheet against both the appellants came to be filed. 3] On committal of case to Court of Sessions, charge vide exhibit 1 came to be framed against the 5 Cri. Appeal no. 367.2007 accused for offence punishable under section 302 r/w. 34 of the Indian Penal Code. Both the accused pleaded not guilty to the charge and claimed to be tried. The prosecution in support of it's case examined 9 witnesses. The prosecution principally relied on the oral testimony of father of deceased Mahemood and P.W.7 Wasimbee wife of deceased Mahemood who claimed to be an eye witness. P.W. 6 Nagnath who was examined did not support the prosecution and was declared hostile and was cross- examined. The defence of accused no.1 is that deceased, prior to the incident, had caught the hand of his wife with an intention of outraging her modesty and on the date of incident there was a quarrel between the accused no.1 and deceased and during the quarrel deceased had fallen in a ditch, which had been dug behind his house and had sustained injury on account of a sharp protruding object in the ditch. 4] Before we advert to the submissions advanced before us by learned Senior counsel Shri P.V. Mandlik for the appellants, it would be useful to refer to the evidence of prosecution witness. 6 Cri. Appeal no. 367.2007 P.W. 2 Mirsab, father of deceased Mahemood states that accused no.2 is his real brother while accused no.1 is his nephew. The incident of stabbing of deceased Mahemood was a sequel to an earlier incident which had occurred two days of Dashera festival. On that day the accused had abused and threatened P.W. 2 Mirsab when Mirsab was attempting to cut grass on the boundary of the agricultural field. P.W.2 further states that on account of the intervention of villagers the dispute was settled. On the day of incident he had gone to the agricultural land of another person to work as a labour and had returned home at about 5:00 - 5:30 pm. At 6:00 pm. he requested his daughter-in-law P.W.7 Wasimbee to serve him dinner. Accordingly P.W. 7 Wasimbee served dinner to him and hearing some noise of shouting she immediately ran to the rear of the house. P.W. 2 Mirsab states that he waited for some time for the return of Wasimbee and since she did not return, he too went towards rear of the house. On going towards the rear of the house he noticed both the accused fleeing from the scene. Accused no.1 was armed with a knife and accused no.2 was armed with an axe. He chased 7 Cri. Appeal no. 367.2007 both the accused but the persons who had gathered there told him to not to chase the accused but to look after his son who had fallen on ground. He noticed his son lying on the ground with bleeding injury. He accordingly arranged for an auto- rickshaw and took his son to the Government hospital, Degloor. He states that on his arrival at the Hospital, exhibit 37 came to be recorded by the Police. In cross-examination he has admitted as true that alongwith accused no.2 he had jointly purchased agricultural land admeasuring 3 Acre and thereafter had partitioned the said land. He has also admitted as true that though the land was partitioned, Revenue authorities did not effect mutation entry in respect of the individual share of P.W.2 Mirsab and accused no.2. He has denied the suggestion that accused no.1 had requested his son for obtaining separate 7/12 extract as accused no.1 wanted to purchase auto-rickshaw on the basis of security of the agricultural land. He has admitted as true that the dispute which had arisen on account of the cutting of grass was settled by the villagers and besides that dispute no other dispute was existing between him and the accused. 8 Cri. Appeal no. 367.2007 He has also denied the suggestion that prior to the incident his son Mahemood had caught the hand of wife of the accused no.1 with an intention to outrage her modesty. In cross-examination it has been brought on record that when he had gone to the scene of offence, he had noticed three persons at the scene i.e. P.W.6 Nagnath, one Dulheshah and his daughter-in-law Wasimbee. He has further admitted that he had seen the accused when they were at a distance of 25-30 ft. from his house and were running in the opposite direction. He states that his son was lying on the northern side of the drainage channel and was lying on his right side. He has also admitted that there was an injury on his shoulder. He has in his further cross- examination on behalf of the accused no.1 admitted as true that report exhibit 37 came to be scribed after 1-1/2 hour of the incident. He has further admitted as true that the time given by him in his evidence was given by approximation. He has further admitted as true that about 10 persons had assembled at the place at the time of incident. He has also admitted as true in the cross-examination that after his daughter-in-law P.W. 7 Wasimbee had 9 Cri. Appeal no. 367.2007 left the house he had washed his hands and thereafter had gone in the direction in which Wasimbee had gone. He has stated that he went after 2-3 minutes of his daughter in law leaving the house. Omission has been duly proved in the statement recorded during the investigation that he had not stated that since his daughter-in-law had not returned back he too went behind the house. According to us, this omission is on the peripheral aspect of the case and is not a material omission amounting to contradiction, and therefore no dent is made to the evidence of P.W.2. 5] Undisputedly P.W.2 Mirsab is not an eye witness to the incident. Prosecution has examined P.W.7 Wasimbee, wife of deceased Mahemood as an eye witness to the incident. P.W. 7 Wasimbee states that on the day of incident, her husband Mahemood had left the house for inviting P.W.6 Nagnath for dinner. After Mahemood had left the house her father-in-law Mirsab arrived from the agricultural field. She accordingly served him dinner and immediately rushed to the rear of the house as she had heard the voice of her husband. On reaching 10 Cri. Appeal no. 367.2007 the rear of the house, she has noticed accused nos. 1 and 2 assaulting her husband Mahemood with fist blows. She requested them to release Mahemood. Accused no.1 took out a knife from the pocket of his trouser and stabbed the knife on the stomach of Mahemood. Immediately her husband Mahemood fell on the ground. She states that her father-in-law Mirsab also arrived at the scene. Both the accused thereafter ran away. She states that Mahemood was taken to hospital by placing him in an auto- rickshaw. She also referred to the incident of quarrel between the accused and her father-in-law on the day of Dashara. She has been cross examined and in cross-examination she has admitted as true that accused had assaulted her husband in the chowk. She states that the knife was stabbed on the stomach of the husband near the rear wall of house of one Hussainsab. She admitted that the wall was by the side of the drainage channel behind her house. She has stated that she could not observe as to whether Nagnath, Vishnukant Patil, Sarpanch and Babu who were present at the chowk were present. She states that after her father-in- law arrived at the scene, her husband had fallen on 11 Cri. Appeal no. 367.2007 the ground. In further cross-examination she has admitted that the accused were running when her father-in-law had arrived at the scene. She has further admitted in the cross-examination that the incident lasted for 5 minutes after her arrival and residents of the locality had assembled to see the incident. She has admitted that her husband and P.W. 6 Nagnath were friends. She has also denied the suggestion that the accused no.2 had not assaulted her husband by fist blows. 6] Mr. P.V. Mandlik learned Senior counsel for the appellants has urged before us (i) that P.W.7 Wasimbee makes no reference to accused no.2 being armed with an axe or causing any injury by the axe. All that is attributed to accused no.2 is assault by fist. It is also urged before us that the medical evidence is completely silent in respect of any injury being caused by axe; (ii) the prosecution witness namely P.W. 2 Mirsab and P.W.7 Wasimbee have shifted the scene of offence and referred to different scene of offence and as such no reliance can be placed on their testimony. It is further stated that the testimony given by both 12 Cri. Appeal no. 367.2007 these witnesses is discrepant and contradictory time is set up by the prosecution. It is therefore urged before us that both the appellants deserve to be acquitted. Shri Kurundkar learned A.P.P. for the respondent-State has urged before us for dismissal of the appeal by supporting the judgment of the trial Court. 7] We will deal with the submissions of Shri Mandlik learned Senior counsel viz-a-viz accused no.2. No doubt P.W.2 Mirsab in his substantive evidence as well as in the FIR at exhibit 37 states that he had noticed accused no.2 running away armed with an axe. However, P.W.7 Wasimbee who is an eye witness to the incident does not refer to accused no.2 being armed with an axe. P.W.7 Wasimbee also does not refer to any injury being caused to the deceased Mahemood by accused no.2 by an axe. The medical evidence especially the evidence of P.W.3 Dr. Shaikh clearly rules out any injury being caused by an axe. In that light, therefore according to us accused no.2 is entitled to be given the benefit of doubt. 13 Cri. Appeal no. 367.2007 8] In sofar as the contention of learned senior counsel for the appellants is concerned that P.W.2 Mirsab and P.W.7 Wasimbee refer to different spot of incident, according to us this submission is wholly unfounded. A suggestion was given to P.W. 7 Wasimbee that the accused had stabbed the deceased in the chowk, to which she admitted as correct. Thereafter she has admitted to the suggestion that the blow on the stomach by the knife was dealt towards rear of the house. This is precisely the place which is referred to by P.W.2 Mirsab. We find that there is no variance in the evidence of P.W. 2 Mirsab and P.W.7 Wasimbee in respect of the exact spot where the blow was dealt to the deceased Mahemood. The witnesses are rustic witnesses and they have admitted that they have given timings by way of approximation. Timing by way of mathematical accuracy is not expected from such rustic witnesses, particularly when wife of the deceased has witnessed a gruesome assault on her husband. It is extremely harsh to expect that she would note the exact time when the assault started and the exact time upto when the assault lasted. We find that there in no material to dis- 14 Cri. Appeal no. 367.2007 believe the evidence of P.W.7 Wasimbee. P.W. 2 Mirsab and P.W. 7 Wasimbee have been cross-examined at length. After reading the cross-examination of both these witnesses it emerges that no dent is made to their testimony. We find both these witnesses to be wholly reliable and no ground whatsoever is made out to dis-believe them. Merely because P.W.2 Mirsab has stated and has claimed that accused no.2 was armed with an axe would be no ground to dis-believe the evidence of otherwise reliable witness. In respect of accused no.1 on the basis of evidence of P.W.2 Mirsab and P.W.7 Wasimbee, the prosecution has established beyond reasonable doubt that it was accused no.1 who has stabbed the deceased Mahemood and had caused him injury which has resulted in his death. It was vehemently urged before us by learned senior counsel for the appellants that the deceased had fallen in a ditch and had sustained injury. We do not accept the aforesaid submission, as no material has been elicited from the prosecution witnesses, to even remotely arrive at the inference that the injuries sustained by the deceased were on account of a sharp object in the ditch. We have already 15 Cri. Appeal no. 367.2007 noted that evidence of P.W.7 Wasimbee is found reliable by us and therefore, the contention that the deceased had accidentally sustained the injuries is un-sustainable. 9] After giving our anxious consideration to the submissions advanced before us by the learned senior counsel for the appellants, according to us, the Appeal deserves to be partly allowed. Criminal Appeal is partly allowed. Conviction and sentence of accused no.2 Sayyed Shadulla S/o S. Nabisab is hereby quashed and set aside and he is acquitted of the offence with which he is charged and convicted. Fine, if paid by the accused no.2 be refunded to him. Bail bond of the accused no.2 stands cancelled. Appeal filed by the accused no.1 Sayyed Yusuf S/o S. Shadulla is dismissed, confirming his conviction and sentence. Sd/- Sd/- (A.V. NIRGUDE, J.) (P.V. HARDAS, J.) arp