:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.411 OF 2007 CRIMINAL APPEAL NO.411 OF 2007 CRIMINAL APPEAL NO.411 OF 2007 Salman @ Chindhi Attaulla Khan Age:18 yrs., R/o at: Veer Jijamata Nagar, Room No.63, Worli, Dr.E.Mosses Road, Mumbai- 400 018. Currently lodged at Kalmba Prison, District:Kolhapur. ...Appellant. (Org.Accused) v. The State of Maharashtra (Worli Police Station) ...Respondent. (Org.Complainant) None for the Appellant. Mr.Y.M.Nakhawa, APP for the Respondent/State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 12th January, 2009. DATE: 12th January, 2009. DATE: 12th January, 2009. JUDGMENT: JUDGMENT: JUDGMENT: 1. The Criminal Appeal was called out for hearing on 6th January, 2009, Mr.Nakhawa, learned APP for the State was present, but, nobody appeared for the Appellant and, therefore, in order to give one chance to the appellant, matter was adjourned to 7th January, 2009. On that date also, none appeared for the appellant, however, at the instance of APP, the appeal was adjourned today for hearing. Today also none appears on behalf of the appellant and, therefore, with the help of Mr.Nakhawa, the learned APP, I have gone :2: through the evidence and the appeal is being disposed off. 2. The appellant/accused was prosecuted and convicted for the offence punishable under Section 307 of the Indian Penal Code and sentenced to suffer R.I. for 5 years and to pay a fine of Rs.2,000/- in default to further undergo sentence of three months. 3. Prosecution story is that Irfan Rafique Khan was staying with his aunt (mother’s sister) Shamim Begum Shaikh at Room No.74 E Ward, Veer Jijamata Nagar, Dr.E.Moses Road, Worli, Mumbai. Shamim Begum was residing in the above room alongwith her two sons namely, Mehmood and Ashfaq and two daughters namely, Sajia and Nazia. It is further case of the prosecution that in the night of 8-7-2006 Shamim returned from Mumbra at about 8.00 p.m. At about 1.20 a.m. Irfan got down as he was feeling hot due to closing of the door. After sometime, he returned by holding his abdomen. He was saying that one Chindhi stabbed him by knife and ran away. Irfan was carried to Nair Hospital. During the journey, in taxi to Nair Hospital, Irfan again disclosed that Chindhi resident of ’J’ Ward stabbed him. As per his complaint, F.I.R. was lodged and an offence was registered being C.R.No.230/2006 on 9.7.2006 by Smt. Shamim Begum Shaikh at Worli Police Station under Section 307 of the Indian Penal Code. Accused was :3: arrested on 11.7.2006 who reportedly disclosed about the spot in his house where he had hidden the knife and his clothes at the time of assault which were allegedly recovered by police on 14.7.2006 and seized in presence of panchas. After completion of investigation by PSI Vithal Bagwe and PSI Kapse, charge-sheet was submitted to the Magistrate’s Court. Offence under Section 307 being exclusively triable by the Court of Sessions, case was committed to the Sessions Court at Sewree, Mumbai. 4. Charge was framed against the accused at Exhibit 2 under Section 307 of the Indian Penal Code, which was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. Defence of the accused is that he has been falsely involved on account of earlier quarrel. 5. In order to bring home the guilt of the accused, prosecution examined 9 witnesses. Shamim Begum Shaikh aunt of Irfan was examined as P.W.1, victim of the offence namely, Irfan was examined as P.W.2, Nazia daughter of P.W.1 was examined as P.W.3, Dr. Harshad Mahatme and Dr.Manish were examined as P.W.4 and P.W.9 respectively. P.W.5 is the witness to the spot panchanama. P.W.6 is the panch witness to the panchanama of recovery of knife and clothes of the accused. P.W.7 and P.W.8 are the investigating officers by name PSI Vithal Bagwe and PSI Kapse. As against :4: this, the defence has examined one Chand Khan to prove that the accused was not brought to the house on 14.7.2006 or knife and shirt were not produced by him. 6. P.W.2 Irfan in his evidence stated that on 8-7-2006 at about 9.30 to 9.45 p.m., he had gone to the house of Zuber sir for making inquiry regarding admission in 11th standard. While talking with Zuber sir, the appellant/accused approached at about 10.00 p.m. Appellant was under the influence of alcohol and coming towards them by smoking. The Appellant came and gave push to Irfan and blown cigarette smoke over his face. Irfan asked the accused to return to his house but he did not hear him and started beating. Irfan too beat the accused. In the meanwhile, mother of Zuber sir had been to the spot and she rescued them. Thereafter, Irfan and Zuber sir returned to their respective houses. At about 1.20 a.m. of 9.7.2006 Irfan’s aunt’s daughter was closing the door but she was unable to close, so Irfan asked her that he would close the door. While closing the door, he had seen the accused, searching for him and knocking the door. So he went out of his house. He asked the accused as to why he was wandering. To that question, accused gave blow with knife to him and ran away. Thereafter by holding his injury, he entered his house where his aunt’s daughter was reading. He disclosed to his aunt that the accused gave blow to him. He also disclosed in taxi on the way to the hospital :5: that the accused stabbed him. He was admitted in Nair Hospital for ten days. He was cross-examined, however, his evidence given in chief is not shaken. 7. P.W.1 Shamim Begum Shaikh is the aunt of the victim Irfan. She testified that the incident took place after 6-7 houses from her house. As per her statement, at about 1.20 a.m. on 9.7.2006, Irfan returned to home by holding his abdomen. On enquiry he disclosed that Chindhi stabbed him with knife so he was taken to the hospital. She also deposed that wound of Irfan was tide by her with dupatta. 8. P.W.3 Nazia in her evidence stated that she is residing with her mother alongwith P.W.2 Irfan. In the night of 8.7.2006, she was at her house. At about 1.10 a.m. of 9.7.2006, she was feeling sleepy so she went to close the door but she could not close the door. In the meanwhile, P.W.2 Irfan came there to close the door. So she returned back to the room. After some time Irfan came by holding his stomach so she asked what happened and thereafter, he told that the accused stabbed him. Both P.W.1 and P.W.3 though cross-examined by defence, but nothing has been brought on record to discard the testimony of these witnesses. 9. The above evidence shows that Irfan (P.W.2) and the accused/appellant were known to each other. :6: Incident occurred after 6-7 houses from the house of P.W.1 Shamim. Panchanama of the scene of offence, which is duly proved by P.W.5 Uday Kamble shows that there was electric light outside the lane. Therefore, question of identification of the accused does not arise. Evidence of P.W.2 is cogent, reliable, consistent and trustworthy. There is no reason for P.W.2 to implicate the accused/appellant falsely. Evidence of P.W.2 is corroborated by the evidence of P.W.1 and P.W.3. 10. Evidence of P.W.2 is further corroborated by the statements of Dr.Harshad Mahatme (P.W.4) and Dr.Manish (P.W.9). P.W.4 Dr.Harshad Mahatme categorically stated that on 9.7.2006 in the morning at 1.30 a.m. patient was brought by neighbour Vijay. Patient was conscious at the time of admission and he disclosed that he was assaulted by known person. He further stated that there was no injury except the stab injury on the abdomen. He also stated that patient was operated by his lecturer in his presence. He had noticed small intestine and omentun was protruding out of the injury. 11. P.W.9 Dr. Manish categorically stated that injured was brought to the hospital by his neighbour on 9.7.2006 and he was admitted in hospital and he was discharged on 21.7.2006. He testified that there was stab injury near umbilicus. Small intestine was pouting out. He deposed that on the same date, P.W.2 was :7: operated by Dr.Saurabh and Dr.Harshad and he assisted for the operation. He proved medical certificate at Exihibit 25. P.W.9 further deposed that there were mesentric tear of 2 cm x 1 cm with active bleeding. He found two litres of haemo perritonial. Medical evidence of the above doctors discloses that abdomen is vital part of the body and the injury was deep in nature to abdomen. So from the evidence of P.W.1, 2 and 3 coupled with the evidence of P.W.4 and 9, it is certain that the intention of the accused was to commit murder of P.W.2, so blow was given over the abdomen where there are vital parts. 12. The prosecution relies upon circumstantial evidence in the form of recovery of knife at the instance of the accused on 15.7.2006. P.W.6 is examined at Exhibit 16. He testified that the accused made statement to produce the knife and in his presence memorandum was drawn and at the instance of the accused, he alongwith panchas, accused and police had been to Jijamata Nagar by taxi where they got down from the taxi. Thereafter, they reached the house of the accused in Arab Galli where from accused produced one blood stained knife from the bag, which was kept on mezzanine floor. There were also clothes in the said bag. These articles were seized and panchanama at Exhibit 17 was drawn. From the statement of P.W.6, recovery is proved. :8: 13. From the statement of PSI Bagwe and PSI Kapse, Investigating Officers, it is proved that they seized clothes of the victim and odhani of Shamim Begum Shaikh, the P.W.1 under panchanama at Exhibit 19. This panchanama corroborates the statement of P.W.1 Shamim that she tied wound of Irfan with the help of Dupatta. 14. The accused examined his grandfather at Exhibit 27 Chand Khan Razak. He deposed that police never brought the accused to his house after arrest. However, his evidence is of no help to the accused as the prosecution vide independent evidence established recovery panchanama. Reliance can not be placed on the evidence of this witness as he being in blood relation of accused, is interested witness. 15. Evidence of Investigating Officers coupled with the statements of panch witnesses, statements of doctors, statements of Shamim, Nazia and P.W.2 Irfan is sufficient to arrive at conclusion that on account of earlier quarrel of blowing smoke over the face of Irfan, accused had been to the house of Shamim Begum in the late night at 1.20 a.m. on 9.7.2006 and by giving blow with the knife in the abdomen of P.W.2, Irfan, he ran away. There are no discrepancies and contradictions, which create shadow of doubt over the prosecution story so as to hold the accused guilty for the commission of offence. There is also no reason to disbelieve P.W.2 :9: Irfan, who is victim and who in clear words stated that accused is an assailant, who gave blow over his stomach, which is vital part of the body. In the aforesaid facts and circumstances, in my view, prosecution succeeded in establishing beyond reasonable doubt that the accused committed an offence punishable under Section 307 of the Indian Penal Code. The Sessions Court also came to similar conclusion and convicted the accused and sentenced to suffer R.I. for five years. I see no reason to interfere in the impugned judgment and order. Appeal is accordingly dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)