1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1034 OF 2008
1] Arunkumar @ Kallu Rajendraprasad Pande,
Aged : 34 years,
2] Ashok @ Guddu Rajendraprasad Pande,
Aged : 32 years,
3] Santosh @ Lallu Rajendraprasad Pande,
Aged : 27 years,
All r/o.Bangali Chawl, Yadav Nagar,
Pande Bakery Stores, Near Shivam,
Vidya Mandir, Khairani Road,
Sakinaka, Mumbai
(At present lodged in Mumbai
Central Prison and undergoing the
sentence imposed upon them ....Appellants
Vs.
The State of Maharashtra
(At the instance of Sakinaka Police Station
vide their C.R.No.85 of 2003) ....Respondents
.........
Mr.Sudeep Pasbola, for appellants.
Mrs.V.R.Bhosale, APP for respondent-State.
.........
cri.appeal.1034-08.sxw
::: Downloaded on - 09/06/2013 15:37:50 :::
2
CORAM : P.B.MAJMUDAR &
R.G.KETKAR, JJ.
RESERVED ON : 20 JANUARY, 2010
th
PRONOUNCED ON : 18 FEBRUARY, 2010
th
JUDGMENT : (Per R.G.KETKAR, J.)
This appeal is preferred by the original accused Nos.1 to 3
challenging the judgment and order dated September 17, 2008 passed by
the learned Additional Sessions Judge, Greater Bombay in Sessions Case
No.449 of 2003. By the impugned judgment and order, the learned
Sessions Judge found all the accused guilty under Section 235 (2) of the
Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) of the offence
punishable under Sections 302 r/w.34 Indian Penal Code (for short “IPC”).
The accused were sentenced to suffer imprisonment for life and to pay
fine of Rs.5,000/- each, in default to suffer R.I. for three months each.
The accused No.2 was convicted under Section 235(2) of the Cr.P.C. for
the offence punishable under Section 324 IPC and sentenced to suffer R.I.
for 3 years with fine of Rs.2,000/-, in default, to further suffer R.I. for one
month. The sentences of the accused no.2 were to run concurrently. The
case of the prosecution is as under.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
3
2] Jahid Khan – informant in the present case (P.W.2) along with
brother Laik Khan (hereinafter referred as “the victim”), his brother-in-law
Zulfikar Khan PW 3 along with others were residing in New Iqbal Bakery,
situate at Munna Estate, in front of Cafe Naaz Hotel, Khairani Road,
Sakinaka, Mumbai – 400 072. They were buying bakery products from the
said bakery and also were buying milk, eggs and breads and used to sell
those articles in Hiranandani Complex, Powai and Jalwayu Vihar Society
as hawkers between 5:00 am. and 9:00 am. in the morning and 5:30 pm.
and 10.30 pm. in the evening.
3] The accused were resident of Bengali Chawl, Yadav Nagar,
Khairani Road, which was situate at a distance about 1 k.m. from the said
bakery. The accused were also dealing in the said bakery products by
purchasing them from the said bakery and also used to sell milk, eggs and
breads at other places. About 3 to 4 days prior to the incident in question,
a quarrel took place between Zulfikar PW 3 and uncle of the accused No.1,
as the accused were selling the bakery products, milk, eggs in
Hiranandani Complex, being the area where PW 2 Jahid and PW 3
Zulfikar used to sell the said products. On April 3, 2003, accused Nos.1
and 2 came to the bakery at about 4 pm. and started abusing PW 3
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
4
Zulfikar. After the exchange of hot words. The accused told that they will
come on the next date and will see what to do. They left the bakery.
4] On April 4, 2003, at about 4 p.m. all the accused came to the
said bakery and started abusing PW 3 Zulfikar. Munshi of the said
bakery and PW 2 Jahid tried to pacify the accused persons. Since there
was no response, PW 2 Jahid and the victim told them that they will lodge
complaint to the police. When PW 2 Jahid started for Sakinaka police
station from rear side Galli from the rare side door, he saw some persons
standing in the galli. He felt that they were from the side of accused. He
got frightened and came back to the bakery. PW 2 Jahid started for the
police station from the main road through Saibaba Galli. At that time, the
victim and PW 3 Zulfikar were with him. When they reached near
Siddivinayak General Stores, suddenly accused came to the spot and
intercepted them. Accused No.2 was holding belt. All the three accused
started assaulting victim and PW 2 Jahid. In order to defend himself, the
victim picked up a wooden plank. The accused no.3 picked up stone and
gave blow on the head of the victim. The victim fell down. The Victim
tried to get up and at that time, the accused no.2 caught hold of the legs of
the victim and accused no.1 gave blows of the stone on the head of the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
5
victim. PW 2 Jahid tried to save the victim. While the accused no.1 was
trying to get up, he fell down on the wooden plank. The accused no.2
gave blow of belt to PW 2 Jahid and, consequently, he sustained injury on
the head from the backside. He ran towards bakery. PW 2 and the
Munshi of the bakery along with one Mujjabin and Badkun came to the
spot where they saw the victim lying in the injured condition and the
accused had run away.
5]
It is a case of the prosecution that Mujjabin and Badkun and
PW 2 Jahid Khan brought the Victim to Rajawadi Hospital, Ghatkopar. On
examination, the Doctor declared him dead. PW 2 Jahid was treated by
the Doctor. PW 4 Rizwan reported this fact to the bakery. At that time, the
accused no.1 also reached the hospital as he sustained injury on account
of fall on the wooden plank. The police also reached to the hospital and
PW 2 Jahid told the police that the accused had killed the victim. The
cloths of the victim namely one Khaki brown pant, one off white full shirt
having blood stains, one Sandow green baniyan and one nicker were
seized by the police. The accused no.1 was arrested by the police. He
was provided medical treatment. PSI Nandkishor Taksalkar [PW 9]
registered crime No.85 of 2003 under Sections 302, 324 r/w.34 IPC. The
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
6
inquest panchnama of dead body was prepared (exhibit 37), likewise, he
prepared panchnama of scene of offence (exhibit 16) in the presence of
two panchas. PW 9 also seized two blood stained stones, one wooden
plank, blood mixed earth from the spot under the same panchnama. He
collected the post mortem notes. The further investigation was thereafter
conducted by Police Inspector Ramsiddha Somanna Narote PW 10. He
arrested the accused, seized their cloths, recorded the statements of
witnesses, seized the cloths of the deceased. He sent the cloths of the
deceased and accused and the property seized from the spot to the
Chemical Analyzer, Mumbai. He collected the C.A. Reports which are at
exhibits 40 to 45. He also collected the injury report of the PW 2 Jahid
and accused no.1 which are at exhibits 27 and 28. After completing the
nd
investigation, the charge sheet was filed in the Court of the learned 22
Metropolitan Magistrate, Andheri, Mumbai.
6] By order dated July 14, 2003, the learned Metropolitan
Magistrate committed the case to the Sessions Court, Greater Bombay, for
trial according to law.
7] The charge was framed against the accused under Section
302 r/w.34 IPC. In so far as the accused no.2 is concerned, he was
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
7
charged for offence punishable under Section 324 IPC for causing
voluntarily hurt to PW 2 Jahid Khan by means of belt. The Charge was
read over and explained to the accused in vernacular. They pleaded not
guilty and claimed to be tried. The defence of accused is total denial and
about false implication in the case. It is the defence of the accused no.1
that at the time of incident in question, the victim had assaulted him,
hence, the crowd gathered on the spot and somebody from the crowd had
pelted stones which hit the victim and he sustained injuries and finally lost
the life. It is the further defence of the accused that the victim assaulted
accused no.1 by a wooden plank and the blood appeared on the wooden
plank as would be evident from the perusal of the CA report (Exhibit 41).
Further, the prosecution suppressed the said fact throughout and
consequently, the genesis of the prosecution’s case as also evidence of
the PW 2 to PW 4, is not trustworthy.
8] It is the defence of the accused, that PW 3 Zulfikar Khan and
PW 4 Rizwan had no occasion to witness the incident, however, since they
are the relatives of PW 2 Jahid and victim, they came to be planted as the
witnesses to the incident and their evidence is full of omissions and
contradiction and deserves to be discarded in toto.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
8
9] The accused also raised defence that PW 3 Zulfikar and PW 4
Rizwan were not present when the victim was shifted to the Rajawadi
hospital by PW 2 Jahid with the help of others. This fact establishes that
at the time of incident PW 3 and PW 4 were not present on the spot.
10] In order to prove the charges against the accused, the
prosecution had examined 10 witnesses who can be broadly classified into
the following categories:
ig EYE WITNESSES
1] PW 2 : Jahid Khan, at exhibit 17, who is also injured
witness. He had filed the F.I.R. on April 4, 2003
which is at exhibit 18.
2] PW 3 : Mr.Mohd. Zulfikar, at exhibit 19.
3] PW 4 : Mohd. Rizwan, at exhibit 20.
PANCH WITNESSES
1] PW 1: Mr.Rajesh Fulchand Gupta, at exhibit 15, who is
witness to the scene of offence panchnama at
exhibit 16.
2] PW 7: Tanaji Sakharam Shinde at exhibit 32 who is
witness to the seizer panchnama of belt at exhibit
33.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
9
3] PW 8: Jagannath Baburao Udugare, at exhibit 34, panch
witness. He is the witness to seizer of panchnama
at exhibit 35 under which cloths of the accused
were seized.
MEDICAL EVIDENCE
1] PW 5: Dr.Rajaram Narayan Marathe, at the relevant time
Medical Officer attached to Rajawadi Hospital,
whose evidence is at exhibit 23. He conducted
autopsy on the dead body of the victim and
issued P.M. Notes which are at exhibit 24.
2] PW 6: Dr.Sunil Wamanrao Bhoir, attached to Rajawadi
Hospital, as a Casualty Medical Officer. His
evidence is at exhibit 26. He examined PW 2
Jahid Khan as as also accused no.1 Arunkumar
@ Kallu Rajendraprasad Pande and submitted
injury report at exhibit 27 and 28.
INVESTIGATING OFFICER
1] PW 9 : Mr.Nandkishor Digambar Taksalkar, at exhibit 36.
He recorded the F.I.R. lodged by PW 2 Jahid
Khan at exhibit 18. He prepared inquest
panchnama at Exhibit 37 as also spot panchnama
at exhibit 16. He also seized two stones and one
wooden plank which are marked as Articles “C-1”,
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
10
“C-2” and “A”.
2] PW 10: Mr.Ramsiddha Somanna Narote, exhibit 39, at the
relevant time attached to Sakinaka Police Station.
He prepared spot panchnama exhibit 16 and
seized the cloths of the accused. He recorded
statements of the witnesses and also collected
blood samples of the accused from the Medical
Officer. The blood samples of the victim as also
complainant PW 2 were collected and sent to the
Chemical Analyser. He placed on record the
reports of the Chemical Analyser at exhibit
40 to 45.
11] On the basis of the material on record, as stated earlier, the
learned Sessions Judge convicted the accused under Section 302 r/w.34
IPC and sentenced to suffer R.I. For life and to pay fine of Rs.5,000/-, in
default, to suffer R.I. for 3 months each. The accused no.2 who was
convicted for the offence punishable under Section 324 IPC and
sentenced to suffer R.I. for the 3 years with fine of Rs.2,000/-, in default,
further R.I. for one month. The sentences of the accused no.2 were to run
concurrently.
12] In support of this appeal, we have heard Mr.Sudeep Pasbola,
learned counsel for the appellants and Mrs.V.R.Bhosale, Learned APP for
respondent – State. The learned Counsel for the parties have taken us
through the evidence on record.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
11
13] Mr.Pasbola, learned counsel for the appellants submitted that
it is the case of the prosecution that the incident took place at about 4 pm.
on April 4, 2003 in a busy locality. However, the prosecution has not
examined any independent witness to substantiate its case. The eye
witnesses PWs 2, 3 and 4 are the interested witnesses and the Court has
to consider their evidence with due care and caution. He further submitted
that admittedly in the instant case, the accused no.1 sustained injury and
the prosecution has not offered any explanation on this aspect. He relied
upon several judgments in support of this contention. Mr.Pasbola also
submitted that PW 3 Mohd. Zulfikhar and PW 4 Mohd. Rizwan were not
present on the spot and their presence is extremely doubtful. They cannot
be termed as an eye witness. This is substantiated from the evidence of
PW 2 Jahid exhibit 17 as also FIR exhibit 18. He further submitted that, at
any rate, in the facts and circumstances of the case, Section 34 IPC has
no application. As also, Section 302 IPC has no application. The case
squarely falls under the exception 4 of Section 300 IPC. He submitted
that the accused were not carrying any weapon and it shows that there
was no intention on the part of the accused to commit offence punishable
under Section 302 IPC. On the contrary, from the evidence of PW 2 Jahid,
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
12
it would be evident that, it was the victim who picked up the wooden plank,
and thereafter, the accused picked up the stone. He submitted that the
accused were not agressors. Mr.Pasbola further submitted that the case
of the prosecution is that the accused no.3 picked up the stone and gave
blow on the head of the victim. The accused no.3 did not know that
thereafter the accused no.2 will catch hold of the legs of the victim. The
accused no.2, in turn, did not know/was not aware that thereafter the
accused no.1 will give blows on the head of the victim. Thus, in the instant
case, Section 34 IPC has no application whatsoever. In support of this
submission Mr.Pasbola relied upon several judgments which will be
referred in the due course.
14] On the other hand, Mrs.V.R.Bhosle, learned APP supported
the impugned judgment. She submitted that in the present case, there are
three eye witnesses and one of them namely PW 2 is an injured witness.
The cloths of the accused were recovered and there were blood stains on
it. The injuries were caused by stones i.e. Articles C-1, C-2 on which
blood group “O” was found. PW 5 Dr.Marathe opined that injury no.4
caused to the victim was sufficient in the ordinary course of nature to
cause death. She submitted that in the FIR names of the three accused
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
13
were mentioned. The prosecution has explained the injuries on accused
no.1. Doctor examined accused no.1 and PW 2. The history was narrated
to the effect that the assault was made by many persons with multiple
objects. She submitted that there are no fatal contradictions/omissions in
the evidence of the eye witnesses.
15] In order to appreciate the rival contentions raised on behalf of
the parties, let us examine the evidence laid by the prosecution. In order
to prove the guilt of the accused, the prosecution has examined three eye
witnesses apart from the panch witnesses, the Doctors and the
investigating officers. PW 2 Zahid Khan is the complainant. He deposed
that on April 3, 2003, the accused nos.1 and 2 came to the bakery and
started abusing PW 3 Zulfikar. After the exchange of hot words, they told
that they will come on the next day and will see what to do, and thereafter,
they left. On April 4, 2003 at 4 pm. All the three accused came to the
bakery and started abusing PW 3 Zulfikar. The Munshi of bakery namely
Khujir and Jahid tried to pacify the accused persons. Since there were no
response, Jahid and PW 3 Zulfikar told them that they will lodge complaint
to the police. When Jahid started for Sakinaka police station from the rear
side galli from the rear door, he saw some suspicious persons. He felt that
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
14
they are from the side of accused. He came back to the bakery and
started to the police station from the main door through Saibaba galli. At
that time, the victim and PW 3 Zulfikar were with Jahid. When they
reached near the Sidhivinayak General Stores, suddenly the accused
came and intercepted them. Accused no.2 was holding a belt. All the
three accused started assaulting the victim and Jahid. Therefore, the
victim picked up a wooden plank to defend himself. The accused no.3
picked up a stone and gave blow on the head of the victim. The victim fell
down. Then he tried to get up, at that moment the accused no.2 caught
hold his legs and accused no.1 gave repeated blows of stone on the head
of victim. PW 2 Jahid tried to save the victim. While the accused no.1
was getting up, he fell on the wooden plank. Accused no.1 gave blow of
the belt to Jahid and he sustained injury on the head from backside. He
ran towards the bakery to tell the incident to the Munshi of the bakery.
Then Jahid and Munshi of bakery namely Khujir along with Mujjabin and
Badkun came to the spot where then saw that the victim was lying in the
injured condition and accused had run away. He further deposed that
Mujjabin and Badkun and Jahid brought the victim to Rajawadi Hospital,
Ghatkopar and on examination the Doctor declared him dead. Jahid was
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
15
also treated by the Doctor. By that time, the accused no.1 reached the
hospital as he also sustained injuries due to the wooden plank. The police
also reached to the hospital and then Jahid told the police that the accused
have killed the victim.
16] In the cross-examination PW 2 Jahid deposed that 4-5 days
prior to the date of incident, quarrel took place between PW 3 Zulfikar and
uncle of accused no.1 at Hiranandani Complex. There was minor verbal
abuse on account of customers of each other. Mr.Pasbola, learned
counsel for the appellants, submitted that there is omission in the
deposition of PW 2 Jahid to the effect that though he stated to the police
that 4-6 persons standing in the galli were found suspicious to him, it was
not specifically mentioned in the FIR to that effect. Again he could not
explain why it was not stated in the FIR that PW 3 Zulfikar was also with
them while going to the police station. Again he could not explain the
omission in the FIR to the effect that the victim did not try to run away.
PW 2 Jahid also could not explain why it was not recorded in the FIR that
accused no.2 started weaving belt. Mr.Pasbola submitted that the victim
picked up the wooden plank, and thereafter, stone was picked up by the
accused. Thus, the accused were not aggressors. He further submitted
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
16
that PW 2 Jahid deposed that it is not true that when he started running
towards the bakery, PW 3 Zulfikar was also running towards the bakery.
He also invited our attention to the omission in the evidence of PW 2 to the
effect that though he claims to have informed the police that along with the
Munshi of bakery and himself, Mujjabin, Badkun and Rizwan had came on
the spot of offence, the said fact is not found in the FIR. It is also not found
in the FIR that PW 4 Rizwan telephoned from the hospital to bakery and
reported the incident to the Munshi of Bakery. Mr.Pasbola also submitted
that when the Doctor attached to the hospital asked him about the history
of injuries, the PW 2 did not tell the Doctor that they assault was by many
people by multiple objects. As against this, PW 6 Dr.Bhoir, the Casualty
Medical Officer attached to Rajawadi hospital deposed that the injured PW
2 Jahid gave the history of assault by many people by multiple objects. He
invited our attention to the injury report exhibit 27 which supported the
statement of PW 6 that many people assaulted Jahid with multiple objects.
On the basis of this material, Mr.Pasbola submitted that the mob was
gathered on the spot and assaulted PW 2 Jahid and none of the accused
have assaulted him.
17] PW 3 Zulfikar deposed that one of the accused tried to do the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
17
business in their area i.e.Hiranandani Complex. He told him not to go to
the said area for doing the business. On that count, there was quarrel
between him and one of the accused. On April 3, 2003 at about 4 pm.
Accused no.1 and 2 abused him in filthy language. At that time, PW 2
Jahid and victim were present in the bakery. Accused nos.1 and 2
threatened him and informed that they will carry on the business in
Hiranandani Complex area. They also threatened that they will see him
tomorrow. On the next day i.e. April 4, 2003, between 3:45 pm and 4 pm.
all the three accused come to Iqbal bakery and started abusing. They
started quarreling with him. Munshi of the bakery tried to pacify the
accused persons. Accused continued the quarrel, and therefore, he told
them that he is going to lodge the complaint in the police station. The
victim and PW 2 Jahid started to proceed from the rear side galli of the
bakery. They saw the crowd in the said galli and therefore they came
back. Thereafter, he started from the main door of the bakery. The victim
was followed by PW 2 Jahid and Zulfikar. When they reached upto
Siddhivinayak store, all of a sudden, the accused came on the spot.
Accused no.2 started weaving the belt and assaulted the victim. The
victim picked up a wooden plank which was lying in the galli for his
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
18
defence. At that time, accused no.3 picked up a stone and gave blow to
the victim on his head. The victim fell down and again tried to get up. At
that time, the accused no 2 caught hold of the legs of the victim and
accused no.1 gave him 4-5 blows successively on is head. PW 2 Jahid
rushed there to save the victim. At that time, accused no.2 gave blow to
PW 2 Jahid. He got assault on his head from backside. In order to save
himself, he ran towards the bakery. Accused no.1 chased, but, fell down.
Zulfikar also ran towards the bakery and accused no.1 followed him. PW 2
Jahid shouted “mar dala, mar dala” while running to the bakery.
Thereafter, the Munshi of bakery namely Khujir, Mujjabin, Padaku and PW
4 Rizwan came out of bakery and they went to the scene of offence. They
saw that the victim was lying down and he was injured with the pool of
blood. All the accused had already run away from the scene of offence.
The Munshi of bakery advised them to take the victim to the hospital.
Badkun and Mujjabin took the victim to Rajawadi hospital, Ghatkopar, in a
taxi. PW 3 Zulfikar reached the hospital within half an hours time. Then
he came to know that the victim was already dead. He identified the
wooden plank and stones. He, however, could not identify the belt.
18] Mr.Pasbola, learned counsel for the accused submitted that
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
19
there is contradiction in the deposition of the PW 3 in respect of the hot
exchange and abuses. He invited our attention to the portion of the
evidence of PW 3. It is submitted that when the attention of the PW 3 was
invited to the portion marked “A” in his statement dated April 5, 2003, he
deposed that he, along with PW 2 Jahid, ran towards the bakery together,
however, PW 2 Jahid deposed that he alone went to the bakery. He
submitted that in the statement recorded by the police, it is not recorded
that PW 3 told the accused that he is going to lodge a complaint in
Sakinaka police station. PW 3 could not explain why the following details
are not reflected in the statement recorded by the police viz (1) that Jahid,
victim and himself started to go from the rear side galli of the bakery and
after observing the mob of people in the galli they came back to the
bakery; (2) that near the Siddhivinayak Stores all of a sudden the accused
came; (3) that accused no.2 started weaving his belt and assaulted the
victim; (4) that accused no.3 picked up a stone and give blow to the
victim on his head; (5) that he told the police that accused no.1 gave 4-5
blows of stone to the victim on his head. Mr.Pasbola, therefore, submitted
that in view of this fatal omissions and contradictions the very presence of
PW 3 at the time of incident, creates grave doubt.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
20
19] PW 4 Rizwan deposed that on April 4, 2004 at 4 pm., he was
sleeping in the bakery. He heard commotion outside the bakery. He saw
the three accused quarreling with Jahid, Zulfikar and the victim. They
were abusing each others. The Munshi of bakery came out and settled
the dispute between them. Thereafter, PW 2, victim and PW 3 Zulfikar
told the accused that they are going to lodge the complaint with the police,
and accordingly, they left the place. He noticed that the accused
followed them. After sometime, he followed them as he thought that they
might again quarrel among themselves. When the accused reached near
Siddhivinayak galli, they started assaulting the victim and PW 3. He saw
the belt in the hand of accused no.2. At that time, the victim picked up a
wooden plank which was lying at the place of offence. In the meantime,
accused no.3, picked up a stone and gave blow of stone on the head of
the victim. The victim fell down. The victim tried to get up, however, then
the accused no.2 caught hold of the legs of victim and accused no.1 gave
two or three blows of the stone on the head of victim. PW 2 tried to save
the victim. Thereafter, PW 2 ran towards the bakery. When PW 2 tried to
save the victim, accused no.2 gave blow of belt on the head of PW 2.
Therefore, he frightened on account of said incident, and thereafter, all the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
21
accused fled away from the scene of offence. After sometime, the Munshi
of bakery, PW 2 Jahid, Mujjabin, and Badkun came there. Mujjabin and
Badkun took the victim to the Rajawadi Hospital, Ghatkopar along with PW
2 in a taxi. Thereafter, he went to the Rajawadi Hospital where he met PW
2 Jahid. PW 2 informed him that he should go to bakery and inform that
the victim is dead. Accordingly, PW 4 Rizwan gave a telephone call to the
Munshi of bakery and informed that the victim is dead. He identified the
belt used by accused no.2 as also the two stones. He, however, was not
in a position to say which stone namely Article “C-1” and “C-2” were in the
hands of which accused. He also identified the wooden plank.
20] In the cross-examination, PW 4 Rizwan deposed that he
rushed to the Rajawadi hospital at around 6:30 pm. At that time, he did
not notice the police at the hospital. He also did not see accused no.1 at
Rajawadi Hospital. He did not notice any injury on the person of accused
no.1 at the time of incident. On the day of incident, accused no.1 fell on a
wooden plank while running away. Though he saw him falling on the
wooden plank, he could not tell as to on which part of the body the
accused no.1 sustained injury. He did not notice any injury on the head of
the accused as also on his shoulder or on his back. When he went to the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
22
bakery, the Munshi of bakery was not present. At that time, the police
had not arrived at the bakery. His statement was recorded by the police on
the next day. After the incident, till he visited to Sakinaka police station on
the next day, he did not disclose the incident to anyone. He did not come
across the police after the incident till his statement was recorded on the
next day. He further deposed that there were number of planks and
stones lying on the scene of offence and he had no specific reason to
identify Articles “A” “C-1” and “C-2” in the hands of accused. He identified
the belt because at the time of incident he had seen the belt in the hands
of the accused. He further deposed that it did not happen that Jahid came
to the bakery premises and intimated him, Munshi, Zlfikar and Badkun that
the victim has been killed, therefore, he along with others visited the scene
of offence. He further deposed that he had not seen PW 3 Rizwan at the
place of offence. Mr.Pasbola submmitted that PW 4 Rizwan is not an eye
witness. He was not present at the time of incident. He submitted that
PW 2 deposed that when he went to the bakery to report to Munshi that
the victim is killed, at that time, Mujjabin, Badkun and PW 4 Rizwan were
present in the bakery. It therefore follows that PW 4 was not present at
the time when the incident occurred. Even, PW 2 did not disclose the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
23
presence of PW 4 at the time of occurrence of incident. It is only after the
incident, PW 2 went to report the incident to the Munshi of bakery. At that
time PW 4 Rizwan was present in the bakery. This, therefore, rules out the
presence of PW 4 Rizwan when the incident occurred. He further
submitted that even the perusal of deposition of PW 3 indicates that PW 4
was not present when the incident in question occurred. In fact, PW 4 in
cross-examination deposed that he had not seen PW 3 Zulfikar at the
scene of the offence at the time of incident. Mr.Pasbola further submitted
that PW 3 Zulfikar, on the other hand, deposed that he along with PW 2
Jahid ran towards the bakery together. However, PW 2 Jahid specifically
deposed that it is not true that when he started running towards the bakery,
PW 3 Zulfikar was also running towards the bakery. PW 2 Jahid further
admitted that the presence of PW 3 Zulfikar is not spelt out in the police
station while recording the FIR. On that basis, he submitted that PW 3
Zulfikar and PW 4 Rizwan are not the eye witnesses.
21] We are unable to accept the submission of Mr.Pasbola that
PW 3 Zulfikar is not an eye witness to the offence. It is relevant to note
that the incident in question is not disputed by the appellants. The case of
the prosecution is that as the accused were carrying on the business in
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
24
Hiranandani Complex where PW 2 and 3 and the victim were also carrying
on the same business in the same area. Therefore, there was dispute
between them on the point of the area of business and on that count the
quarrel took place between PW 3 Zulfikar and one of the accused. On
April 3, 2003, the accused nos.1 and 2 came to the bakery and abused
PW 3 Zulfikar in the presence of PW 2 Jahid and victim. On the next day
i.e. April 4, 2003, the accused came to the bakery at about 4 pm and
started quarreling with PW 3 Zulfikar. The Munshi of bakery tried to pacify
the accused persons and since there was no response, PW 2 Jahid, PW
3 Zulfikar and victim decided to lodge the complaint to police. The origin
of the incident in question is basically the business rivalry between PW 3
on one hand and the accused on the other. Merely because the presence
of PW 3 is not mentioned in the FIR, one cannot reach to the conclusion
that PW 3 was not present. The evidence of PW 2 Jahid and PW 3
Zulfikar on the point as to how the the incident in question took place is
coherent and consistent. Merely because in the deposition PW 2 Jahid
stated that “it is not true that after the assault on the victim he started
running towards the bakery PW 3 Zulfikar was also running towards
bakery” on one hand and in the deposition PW 3 stated that he and PW 2
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
25
Jahid were running together, there is contradiction in that regard, it cannot
be said that PW 3 Zulfikar was not present. The presence of PW 3 Zulfikar
at the time of incident is quite natural in the background of the facts and
circumstances of the case. We are also not impressed by the submission
advanced by Mr.Pasbola to the effect that PW 3 Zulfikar deposed that PW
2 Jahid, after the assault on victim, while running towards the bakery
shouted “mar dala, mar dala” and this fact is not recorded in the statement
of PW 3 Zulfikar recorded by the police. In our opinion, the accused cannot
take advantage of this omission. The omission is insignificant. We are
therefore not impressed by the submission that PW 3 Zulfikar was not
present at the time of incident and consequently he is not an eye witness.
22] In so far as PW 4 Rizwan is concerned, we find that PW 2
Jahid deposed that after the assault on the victim, he went to the bakery
for reporting and at that time PW 4 Rizwan was present. PW 3 Zulfikar
also had not deposed the presence of Rizwan at the time of incident. We
are, therefore, of the opinion that PW 4 cannot be said to be an eye
witness to the said incident. It is however true that PW 4 Rizwan visited
the hospital.
23] The prosecution has examined PW 6 – Dr. Sunil Bhoir, a
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
26
Casualty Medical Officer attached to the Rajawadi Hospital. He examined
PW 2 Jahid as also the accused no.1 Arunkumar. He deposed that PW 2
Jahid gave the history of assault by many people by multiple objects. He
also examined accused no.1 who also gave history of assault with multiple
object by many people. He deposed that the accused no.1 sustained
multiple contusion marks on the back and shoulder and the said injury
could have been possible due to fall on hard and blunt substance.
Mr.Pasbola, learned counsel for the appellants, submitted that the
prosecution has not explained the injury of accused no.1. He submitted
that the non explanation of the injury sustained by accused no.1 at the time
of occurrence or in the course of incident is very important circumstance,
from which, the court can draw the following inferences:
a) That the prosecution had suppressed the genesis and
origin of the occurrence and has thus not presented the
true version.
b) That the witnesses denied the presence of the injuries
on the person of the accused are lying on a most
material point and therefore their evidence is unreliable.
c) That in a case there is a defence version which explains
the injuries on the person of the accused it is rendered
probable so as to thrown doubt on the prosecution
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
27
case.
He submitted that the omission on the part of the prosecution to explain
the injuries on the person of the accused no.1 assumes much greater
importance where the evidence consists of the interested or inimical
witnesses or where the defence gives a version which competes
improbability with that of the prosecution version. In support of this
submission, Mr.Pasbola, learned counsel for the appellants, relied upon a
decision of the Apex Court in the case of Lakshmi Singh and others Vs.
State of Bihar, 1976 SCC (Cri) 671.
24] On the other hand, Mrs.Bhosale, learned APP for respondent
State, has submitted that the prosecution has satisfactorily explained the
injuries of accused no.1. She submitted that in the FIR at exhibit 18 lodged
by PW 2 Jahid, he clearly stated that when he went to save the victim, the
accused no.1 while getting up, fell down on the wooden plank. This
version is supported by PW 3 Zulfikar when he deposed that PW 2 Jahid
apprehending further attack ran towards the bakery and on account of
assault on the head, but, accused no.1 then followed him. However, while
running, accused no.1 fell down, and therefore, he sustained injury.
From the nature of injuries received by the accused No.1, it would appear
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
28
that the same were simple and miner ones. Mrs.Bhosale, learned APP
therefore submitted that the prosecution has satisfactorily explained the
injuries. She submitted that even otherwise the non-explanation of the
injuries on the accused cannot ipso facto be ground for throwing out the
prosecution case especially when it is supported by the eye witnesses
including the injured witness. She relied upon the judgment of the Apex
Court in the case of Amar Malla and others Vs.State of Tripura, 2002
Cri.L.J. 4117 and submitted that the prosecution has proved its case
beyond reasonable doubt.
25] In the FIR exhibit 18, PW 2 Jahid Khan had stated that the
accused no.1 while getting up, fell down on the wooden plank. This
version is supported by PW 3 Zulfikar in his oral evidence. PW 6 Dr.Sunil
Bhoir deposed that the injury is possible if one falls on a hard and blunt
surface. As held by the Apex Court in the case of Amar Malla (Supra) even
otherwise the non explaination of the injuries on the accused can not ipso
facto be ground for throwing out the prosecution case especially when it is
supported by the eye witnesses including injured witness PW 2. From the
evidence on record we are satisfied that the accused were aggressors and
the prosecution has already brought on record the genesis and origin of
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
29
the occurrence. We are, therefore, satisfied that the prosecution has
satisfactorily explained the injury of the accused no.1. That apart, in the
present case, PW 2 Jahid and PW 3 Zulfikar are the eye witnesses and as
observed earlier they have given coherent and consistent version about
the occurrence of the incident.
26] The prosecution has examined PW 5 Dr.Rajaram Marathe,
Medical Officer attached to the Rajawadi Hospital, who conducted autopsy
on the dead body of the victim and issued P.M. notes exhibit 24. The
prosecution has duly proved the P.M. report at exhibit 24. The
prosecution has also examined PW 7 Tanaji Sakharam Shinde who is the
witness to the seizer panchnama of belt exhibit 33 and PW 8 Jagannath
Baburao Udugare who is the panch witness to the seizer panchnama
exhibit 35 under which the cloths of the accused were seized. The
prosecution has proved these panchnamas.
27] Mr.Pasbola, learned counsel for the appellants, submitted that
in the facts and circumstance of this case, Section 34 IPC is not
applicable. He submitted that the incident in question occurred at the spur
of moment and it is not outcome of a pre-arranged plan. There was not
meeting of minds of the accused persons. He submitted that the victim
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
30
initially picked up the wooden plank, and thereafter, accused no.3 picked
up the stone and gave blow on the head of the victim, due to which the
victim fell down. At that time, accused no.1 did not know that accused no.2
will catch hold of the legs of the victim. Accused no.2, in turn, did not know
that, thereafter, accused no.1 will give blows on the head of the victim. In
support of this submission Mr.Pasbola relied upon the following
judgments:-
(1) Shambhu Kuer Vs. State of Bihar, (1982) 1 SCC 486.
(2) Dajya Moshya Bhil and others Vs. State of Maharashtra, 1984
SCC (Cri) 611..
(3) Harbans Nonia and another Vs.State of Bihar, 1993 SCC (Cri)
257.
(4) Kashmira Singh Vs. State of Punjab, 1995 SCC (Cri) 890.
(5) Badruddin Vs.State of U.P., 1998 SCC (Cri) 1619.
(6) Mithu Singh Vs. State of Punjab, 2001 SCC (Cri) 668.
(7) Babu Ram and another Vs. State of U.P. and others, 2002
SCC (Cri) 1400.
28] On the other hand, Mrs.Bhosale, learned APP submitted that
Section 34 really means that if two or more persons intentionally do a
common thing jointly, it is just the same as if each of them had done it
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
31
individually. It is a well recognised cannon of criminal jurisprudence that
the Courts cannot distinguish between co-conspirators, nor can they
inquire, even if it were possible as to the part taken by each in the crime.
Where parties go with a common purpose to execute a common object
each and every person becomes responsible for the act of each and every
other in execution and furtherance of their common purpose; as the
purpose is common, so must be the responsibility. She relied upon the
judgment of the Apex Court in the case of Parasa Raja Manikyala Rao and
another Vs. State of A.P., 2004 Cri.L.J. 390.
29] From the evidence on record, it cannot be said that the
accused had a common intention from the beginning regarding
committing murder of the victim as they were not following the victim with
any deadly weapon. As per the evidence of prosecution, none of the
accused were having any deadly weapon with them. However, after
chasing the victim and others, they started exchanging the words and
altercation took place between both the sides. At that time, accused no.3
picked up a stone which was lying on the road and gave blow on the head
of the victim. Accused no.2 caught hold of the victim and thereafter
accused no.1 gave series of successive blows on the head of the victim. It
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
32
cannot be said that accused followed the victim with an intention to commit
murder. However, in a given case, common intention can be developed
even at the spur of a moment. The fact that accused No.2 caught hold the
legs of the deceased and prevented him from being run away, which
facilitated accused No.1 to give fatal blows to the deceased, would suggest
that at a spur of moment common intention was developed between
accused No.1 and 2. As we have stated earlier that it cannot be said that
from the beginning the accused had gone with an intention to commit
murder of the deceased as they had not gone with any deadly weapon
with them. However, ultimately unfortunate incident happened in which
accused Nos.1 and 2 actively participated in committing the murder of the
deceased. In our view, accused No.1 and 2 even for their individual act,
can be said to have committed act of brutal murder of the deceased and
they are required to be convicted for the offence punishable under Section
302 IPC. In the instant case it is not possible to say that there was a
common intention of all the accused to commit murder of the victim. The
individual role of each of the accused is required to be considered to find
out as to which crime he has committed. Since the accused no.3 had
given one blow of the stone on the head of the victim, it cannot be
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
33
attributed to be a vital injury. Therefore, he cannot be convicted under
Section 302 IPC. We have thoroughly gone through the evidence on
record and we have found that there was no common intention on the part
of accused no.3 to commit the murder of the victim.
30] Accused no.2 was holding belt and for the purpose of defence
the victim picked up a wooden plank. At that point of time, accused no.3
picked up a stone and gave blow on the vital part of body of the victim
namely head. The impact of blow was such that victim fell down. At that
time, accused no.2 caught hold of the legs of the victim when he tried to
get up. If the accused no.2 were not to hold the legs of the victim, possibly
he could have escaped. However, since the accuse no.2 caught hold of
the legs of the victim he could not escape, and thereafter, the accused no.
1 gave repeated blows of stone on the vital part of the victim namely head.
The accused no.2 clearly facilitated the assault made by the accused no.1
on the victim. The prosecution has established that there was a common
intention of the accused No.1 and 2 which was developed at the spur of
the moment. So as to ensure that PW 2 Jahid, PW 3 Zulfikar and the
victim do not report the matter to the police and each of them had
participated in the same manner in the act constituting offence. We are,
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
34
therefore, satisfied that the prosecution has established a common
intention as also applicability of Section 34 IPC in so far accused No.1 and
2 are concerned.
31] In the case of Shambhu Kuer (Supra), the conviction of
appellant therein was upheld by the High Court with the findings that he
continued to hold the deceased till the assault was completed by Mandip.
One of the three injuries on the deceased one which had pierced the right
lung, was according to the medical witness, sufficient to cause the death in
the ordinary course. In that the eye witness did not clearly state that the
appellant continued to hold the deceased till the assault was over. It
appeared in the evidence that Shambhu Kuer caught hold of the deceased
and the latter scuffled to get himself released. Immediately thereafter
Mandip took out a knife and started assaulting the deceased. In that
context it was held that from the mere fact that the appellant caught hold of
the deceased and scuffled with him, while Mandip took out a knife and
commenced the assault, it cannot be inferred beyond reasonable doubt,
that he shared the intention of Mandip to murder the deceased. In the
instant case, we have already held that the accuse no.2 caught hold of the
legs of victim and accused no.1 gave successive blows on the head of the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
35
victim. In fact, as the accused no.2 caught hold of the legs of the victim he
could not escape. The case of Shambhu Buer (supra) does not advance
case of the appellants any further.
32] In the case of Dajya Moshya Bhil (supra) the appellants no.2
and 3 therein along with appellant no.1 chased Gunjarya when he tried to
escape from the scene of occurrence. It was also brought in the evidence
that the appellant nos.2 and 3 pelted stones but no one said whether the
stones hit Gunjarya. The gap in the evidence in this behalf was sought to
be filled in by a reference to the medical evidence which indicated that
Gunjarya had suffered two lacerated wounds. The prosecution has laid
the evidence in the instant case which clearly bring home the sequence in
which the accused assaulted victim as also PW 2. The Judgment in the
case of Dajya (Supra) does not advance the case of the appellant any
further.
33] In the case of Harbans Nonia (Supra) on the basis of material
on record the Apex Court came to the conclusion that the two appellants
before it did not have any intention to participate with one Shyambali Nonia
to cause death of the deceased. The facts in the present case are
materially different from the facts in the case of Harbans Nonia (Supra). In
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
36
the case of Kashmira Singh (Supra) it was observed by the Apex Court
that the appellant tried to pick the pocket of PW 5 who called the deceased
and the deceased tried to catch hold of the appellant and it was a sudden
act on the part of William who picked out a knife from his pocket and
inflected a single injury on the deceased. Under these circumstances, it
was held it could not be said that the appellant and Sukhchain Singh had
prior knowledge that William was armed with a knife and the part played by
William could not be a conjoint act so as to attract the element of common
intention on the part of the appellant as well as Sukhchain Singh.
34] We have already held that in the instant case the prosecution
has established applicability of Section 34 IPC as accused No.1 and 2 had
a common intention to commit the offence. It is also relevant to note that
in the case of Kashmira Singh (Supra), the learned Sessions Judge had
acquitted the appellant and Sukhchain Singh which was reversed by the
High Court. In that context, the Apex Court in paragraph No.3 observed
that the High Court did not examine reasons given by the Sessions Court
for acquitting the appellant and Sukhchain Singh. It may be possible that
two views are possible, but the view taken by the Sessions Judge in that
case could be said to be unsound.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
37
35] In the case of Badruddin (Supra) the Apex Court came to the
conclusion that it was difficult to sustain the conclusion that there was
common intention between the appellant and other persons to kill the
deceased. It was also observed that though establishing common
intention is a difficult task for the prosecution, yet, however difficult it may
be, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was a plan or meeting of mind of all the
assailants to commit the offence, be it prearranged or on the spur of the
moment but it must necessarily be before the commission of the crime.
Where direct evidence is not available, it has to be inferred from the
circumstantial evidence. In the present case, from the material brought
on record by the prosecution we are satisfied that the prosecution has
established its case.
36] In the case of Mithu Singh (Supra) on facts it was held by the
Apex Court that there was nothing on record to draw the inference that the
co-accused had gone to the house of the deceased with the intention of
causing her death and such intention was known to the appellant, much
less shared by him. It was observed in paragraph No.6 as under:-
“6. To substantiate a charge under Section 302 with the aid of
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
38
Section 34 it must be shown that the criminal act complained
against was done by one of the accused persons in
furtherance of the common intention of both. Common
intention has to be distinguished from same or similar
intention. It is true that it is difficult, if not impossible, to collect
and produce direct evidence in proof of the intention of the
accused and mostly an inference as to intention shall have to
be drawn from the acts or conduct of the accused or other
relevant circumstances, as available. An inference as to
common intention shall not be readily drawn; the culpable
liability can arise only if such inference can be drawn with a
certain degree of assurance……”
37] In the case of Babu Ram (Supra) the Apex Court recorded
that the prosecution case itself was that there was no prior meeting of the
minds of co-accused. In view of this, in the present case, the reliance
placed by Mr.Pasbola, learned counsel for the appellants, on the judgment
of the Apex Court referred herein above is of no assistance to the
appellants.
38] Mr.Pasbola submitted that the incident in question occurred at
the spur of moment. He further submitted that the accused were not
carrying any weapon, and therefore, they had no intention to kill the victim.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
39
He submitted that, Section 302 IPC is not applicable. In support of his
submission he relied upon the following judgment :-
(1) Ram Karan and others Vs.State of Uttar Pradesh, 1982 SCC
(Cri) 386.
(2) Arvind Kumar Vs. State of Uttar Pradesh, 1988 SCC (Cri) 132.
(3) Khuman Singh and others Vs. State of M.P., 2005 SCC (Cri)
1451.
On the other hand, Mrs.Bhosale, APP submitted that the accused in
furtherance of their common intention committed the offence. There was
pre-arranged plan among the accused to ensure that PW 2 Jahid, PW 3
Zulfikar and victim do not report the matter to the police. They have also
threatened these persons earlier that they will see what to do next. Since
PW 3 Zulfikar insisted that the accused persons should not carry on the
business in their area and since the accused persons intended to carry on
their business in the same area, accused committed offence in question.
39] In the case of Ram Karan and others (Supra) in paragraph no.
6 the Apex Court observed that both sides were in an exasperated mood.
Suddenly at the spur of the moment there ensued a quarrel. Prakash
Chandra and Umesh Chandra on the side of the prosecution died and
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:50 :::
40
Chhotelal on the side of the accused died and each of them met a
homicidal death. On the side of the prosecution Dinesh Chandra was
injured, on the side of accused Ram Karan was injured. From this an
irresistible inference ensued that Exception 4 to Section 300, IPC would be
attracted. The exception provides that culpable homicide is not murder, if
it is committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offenders having taken
undue advantage or acted in a cruel or unusual manner. In the present
case, we have already held that the accused No.3 cannot be held guilty of
the offence under Section 302 IPC and the common intention was
developed between the accused No.1 and 2 at the spur of the moment.
The case of Ram Karan (Supra) does not advance the case of present
appellants any further.
40] In the case of Arvind Kumar (Supra), on the fateful day, the
appellant Arvind Kumar and the deceased Om Prakash Gupta, who were
the student of Motilal Nehru Regional Engineering College, Allahabad,
came late and were not allowed to join their classes. They took the key
from PW 4 Ajit Singh and went to his room in the hostel. When PW 4
came to his room he found the appellant and the deceased playing a game
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
41
of cards. There was a sudden quarrel leading to an altercation and the
appellant whipped out a knife and struck two blows on the deceased
resulting in his instantaneous death. The facts in the case at hand are
different from the facts in the case of Arvind Kumar (Supra).
41] In the case of Khuman Singh (Supra) the Doctor who
conducted post mortem examination did not state that he had found any
injury which was sufficient in the ordinary course of nature to cause death.
In paragraph 10, the Apex Court, on the basis of material on record,
observed that the occurrence took place suddenly and there was no
premeditation on the part of the appellants. The case of Khuman Singh
(Supra) also is of no assistance to the present appellants.
42] The prosecution has examined PW 5 Dr.Rararam Narayanrao
Marathe at exhibit 23. At the relevant time he was working as the Medical
Officer at Rajawadi Hospital. He carried out post mortem examination of
the victim on April 5, 2003. On external examination, he found following
external injuries:-
i. CLW 4 cm X 1 cm bone deep verticle with contuse
margin 1.5 cm on right forehead.
ii. CLW 3 cm X 1 cm. Bone deep verticle with contuse
margin 1 cm on left forehead.
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
42
iii. CLW 5 cm X 1 cm bone deep, oblique with contused
margin 1 cm on left forehead.
iv. CLW 3 cm X 1 cm bone deep, horizontal with contused
margin 1 cm on frontal region with depressed fracture
on frontal bone.
v. CLW 2 cm X 1 cm skin deep, oblique behind left ear.
vi. Contusion 5 cm X 4 cm reddish colour on left scapular
region.
vii. Contusion 5 cm X 2 cm reddish colour on behind neck.
viii.Minor contusion on left shoulder, below left angle of
mandible left cheek and right cheek.
On internal examination, he noticed depressed fracture of frontal bone.
There was subdural hamorrage on frontal lobe. According to this witness,
the cause of death was shock due to fracture skull. It was unnatural. The
injuries were fetal in ordinary course of nature. He deposed that the
injuries mentioned by him were possible by use of article “C-1” and “C-2”.
In the cross-examination, he deposed that it is true that the injury no.(iv)
was connected to internal injury mentioned in column no.19(ii) of his report
exhibit 24. External injury no.19(iv) corresponding to internal injury no.19(ii)
was the cause of death.
43] The prosecution also examined PW 6 Dr.Sunil Wamanrao
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
43
Bhoir at exhibit 26, the Casualty Medical Officer attached to Rajawadi
Hospital, Ghatkopar. He examined PW 2 Jahid and noted following
injuries on his body:-
i. CLW left temporal 1 ½ cm X ½ cm X ½ cm.
ii. CLW left forehead ¾ cm X ¾ cm X ¾ cm.
To that effect, he produced notes at exhibit 27. He also examined accused
no.1 on April, 4, 2003 and noted the following injuries:-
i. Multiple contusion marks on the back and shoulder.
He produced notes to that effect at exhibit 28. He opined that the
aforesaid injuries are possible if one falls on a hard and blunt substance.
In the cross-examination, he deposed that the multiple contusion on the
shoulder and back of accused no.1 could have been possible by any hard
and blunt object.
44] The prosecution has also relied upon the inquest panchnama
dated April 4, 2003 at exhibit 37 which discloses the nature of injuries
sustained by the victim. This evidence is substantiated from the C.A.
Report (Exhibit 40) which indicates that the muddemal stones marked as
exhibit 14 by the C.A. were the stones with human blood group “B” It is
clear from the said C.A. report that on the cloths of the victim namely
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
44
trouser, Sando Baniyan and nicker, stains of human blood group “B” were
found. The blood group of the victim was “B”. The blood group of PW 2
Jahid was “AB” as is evident from the C.A. report exhibit 41. The blood
group of accused no.1 is “O” as per the C.A. Report exhibit 45. As far as
blood group of accused no.2 is concerned, it could not be determined as
the result was inconclusive as is evident from the C.A. report exhibit 42.
The blood group of accused no.3 is “O” as is evident from the C.A. report
exhibit 43. The prosecution has established that the Articles “C-1” and
“C-2” were used as weapons in the commission of offence. Thus, the
prosecution has established the commission of offence on the basis of
this material as also on the basis of evidence of eye witnesses PW 2 and
PW 3.
45] On behalf of the appellants an attempt was made to submit
that at the time of incident other persons also gathered on the spot and
they pelted stones on the victim. On account of this pelting stones from
the mob, the victim sustained injuries and in consequence he died. The
learned Sessions Judge has rightly observed in paragraph Nos.23 to 25
that it was accused nos.1 and 3 who gave blows of the stones to the
victim. Even, the post mortem notes at exhibit 24 prepared by PW 5
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
45
Dr.Marathe indicate that there was subdural hamorrage and fracture on the
frontal bone and the cause of death was shock due to fracture of skull and
frontal bone. This leads to the conclusion that the death of the victim was
homicidal.
46] PW 2 Jahid and PW 3 Zulfikar had deposed that about 4 to 5
days prior to the incident in question a quarrel took place between the PW
3 Zulfikar and uncle of accused no.1 as the accused were selling the
bakery products, milk, eggs in Hiranandani Complex where PW 2 Jahid
and PW 3 Zulfikar used to sell the said products. On April 3, 2003, the
accused nos.1 and 2 came to bakery at about 4 pm. and started abusing
PW 3 Zulfikar. After the exchange of hot words, the accused told them
that they will come on the next day and will see what to do. They left the
bakery thereafter. On April 4, 2003 at about 4 pm. of the accused came to
the said bakery and started abusing PW 3 Zulfikar. The Munshi of the
bakery and PW 2 Jahid started to pacify the accused. Since there was no
response, PW 2 Jahid and PW 3 Zulfikar and victim told them that they will
lodge complaint to the police station. When the victim, PW 2 Jahid and
PW 3 Zulfikar proceeded to lodge the complaint to Sakinaka police station,
at that time, near Siddhivinayak General Stores suddenly accused came
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
46
and intercepted them. Accused no.2 was holding belt and the victim in
order to defend himself picked up a wooden plank lying there. Accused
no.3 gave blow on the head of the victim and the victim fell down. When
he tried to get up, accused no.2 caught hold of the legs of the victim.
Thereafter, accused no.1 picked up stone and gave successive blows on
the head of the victim. Thus, accused no.2 facilitated the assault made by
accused no.1 by the victim and played prominent role in the incident.
Thus, accused nos.1 and 2 are found guilty with the intention of committing
murder of the victim. The prosecution in order to sustain the Charge under
Section 302 r/w.34 IPC has proved that the death of the victim was caused
by accused nos.1 and 2 and/or it was outcome of consequence of the act
of these accused. Accused nos.1 and 2 knew that the injury by means of
stone may cause death of the victim.
47] We, therefore, uphold the conviction of accused nos.1 and 2
under Section 302 r/w.34 IPC. Accused nos.1 and 2 are found guilty under
Section 235(2) of Cr.P.C. of the offence punishable under Section 302 r/w.
34 IPC and are sentenced to suffer imprisonment for life and pay fine of
Rs.5,000/- each, in default, to suffer R.I. for three months.
(i) As far as accused no.2 is concerned, he is found guilty of the
cri.appeal.1034-08.sxw
::: Downloaded on – 09/06/2013 15:37:51 :::
47
offence punishable under Section 324 IPC in causing voluntary hurt to PW
2 Jahid. He is, accordingly, sentenced to suffer R.I. for three years with
fine of Rs.2,000/-, in default, to suffer R.I. for one month. Accused no.2
shall suffer the above said sentences concurrently.
(ii) As far as accused no.3 is concerned, the learned Sessions
Judge held him guilty of the offence punishable under Section 302 r/w.34
IPC and sentenced him to suffer life imprisonment. After considering the
material on record, we are of the opinion that the learned Sessions Judge
was not justified in convicting accused no.3 for the offence punishable
under Section 302 r/w.34 IPC and sentencing him for life imprisonment.
We, therefore, set aside the conviction of the accused under Section 302
r/w.34 IPC as also sentence of life imprisonment awarded by the learned
Sessions Judge. Having regard to the material on record, we are of the
opinion that the accused no.3 is guilty of the offence punishable under
Section 323 IPC and is sentenced to suffer RI for one year.
(iii) Appeal is partly allowed in the aforesaid terms.
[R.G. KETKAR, J.] [P.B. MAJMUDAR, J.]
cri.appeal.1034-08.sxw
::: Downloaded on - 09/06/2013 15:37:51 :::
