{"id":141051,"date":"2006-11-24T00:00:00","date_gmt":"2006-11-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammed-arshad-vs-state-of-maharashtra-ors-on-24-november-2006"},"modified":"2015-12-12T00:11:20","modified_gmt":"2015-12-11T18:41:20","slug":"mohammed-arshad-vs-state-of-maharashtra-ors-on-24-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammed-arshad-vs-state-of-maharashtra-ors-on-24-november-2006","title":{"rendered":"Mohammed Arshad vs State Of Maharashtra & Ors on 24 November, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohammed Arshad vs State Of Maharashtra & Ors on 24 November, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (crl.)  1674 of 2005\n\nPETITIONER:\nMohammed Arshad\t\t\t\t\t\t\n\nRESPONDENT:\nState of Maharashtra & Ors.\t\t\t\t\t\n\nDATE OF JUDGMENT: 24\/11\/2006\n\nBENCH:\nS.B. Sinha & Markandey Katju\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWith Criminal Appeal No.1676 of 2005<\/p>\n
S.B. Sinha, J.\n<\/p>\n
\tThese criminal appeals arise out of a common judgment dated
\n8.12.2004 passed by a Division Bench of the High Court of Judicature at
\nBombay, Bench at Aurangabad in Criminal Appeal No.478 of 2002.\n<\/p>\n
\tThe appellants, along with one Syed Salim, were tried for commission
\nof an offence under Section 302\/34 of Indian Penal Code, 1860 (‘IPC’, for
\nshort) and were directed to suffer Rigorous Imprisonment for life.  A fine of
\na sum of Rs.3,000\/- each was also imposed.\n<\/p>\n
 \tAbdul Karim (P.W.11), at the relevant point of time, was attached
\nwith Shivaji Nagar Police Station, Nanded as Police Inspector.  He received
\nan information at about 10.45 p.m. that an incident had occurred at
\nAshrafnagar.  He went there in a police jeep and came to know that one
\nKayyum was injured in a quarrel, which took place between him and one
\nSyed Shaukat.  He came to learn that Kayyum was admitted in the
\nGovernment Hospital.  He went there and found him in the ‘Out Patient
\nDepartment’ (OPD) in an injured condition.  Before him a statement was
\nmade by Mohammed Shakeel (P.W.6) which was treated as a First
\nInformation Report.\n<\/p>\n
\tSince the deceased, Kayyum, was operated, his statement could not be
\nrecorded immediately.  P.W.11, however, went to the place of occurrence on
\nthe next day and recorded statements of some witnesses.  He recorded the
\nstatement of one Rauf, who was present in the hospital.  He also seized the
\nblood stained clothes of the victim.\n<\/p>\n
 \tWhile in hospital, Kayyum gave three dying declarations  one on
\n17.3.1999 before the attending physician, Dr. Kagane, who was examined as
\nP.W.10.  He gave a dying declaration before a Judicial Magistrate on
\n18.3.1999, which is very short one and is reproduced hereinafter :\n<\/p>\n
\t“I. S.B. Shaikh, 4th Judicial Magistrate 1st class,
\nNanded will ask you few questions and you may answer
\nthose without any fear.\n<\/p>\n
Q.1\tWhat is your name and where do you stay?\n<\/p>\n
Ans.\tShaikh Khayum s\/o Shaikh Nabisab, r\/o
\nAshraf Nagar, Nanded.\n<\/p>\n
Q.2\tHow did the incident take place?\n<\/p>\n
Ans.\tI have been injured by weapons on 17.03.99
\nin front of the house of Shaukat by Shaukat,
\nSaleem and others.\n<\/p>\n
Q.3\tWho is responsible for the said incident?\n<\/p>\n
Ans.\tThe above mentioned people are
\nresponsible.”\n<\/p>\n
\tI have been read over the statement given by me
\nand the same is correct.\n<\/p>\n
\t\t\t\tThumb impression of left hand”\n<\/p>\n
\tYet again, a dying declaration was made before the Investigating
\nOfficer on 19.3.1999, which is a detailed one.  Therein, the deceased
\ndisclosed that he was running business of fissile stone in partnership with
\nappellant-Arshad and he invested a sum of Rs.60,000\/- in the said business.
\nHe, however, wanted the said amount back from Arshad.  Although, he was
\nassured thereabout, Arshad did not pay him back the same.  He furthermore
\nnarrated two instances, one of which took place on 1.3.1999.   While he was
\nriding a two-wheeler, accidentally it dashed with the motorcycle of Syed
\nShaukat who was sitting thereupon drinking water.  He started abusing him.
\nThe matter was reported to the police station, but, on intervention of their
\nparents no report was lodged and the matter was compromised.  He narrated
\nthe second incident which took place on 17.3.1999 at about 6 O’clock when
\nhe and his cousin Mohammed Rais were going to the hotel ‘Sailani’
\ntogether, Syed Shaukat was standing in front of his house and asked as to
\nwhy he had been looking at him, to which he replied in the negative.
\nShaukat, allegedly, threatened him saying that that was his last day and
\nasked him to do whatever he could.  He went to hotel ‘Sailani’ and thereafter
\nreported the matter to the police station of Shivajinagar.  He came back to
\nthe hotel and discussed the matter with his friends.  He, thereafter, having
\nthought that his mother must be worrying, went to his house to tell about the
\nincident to his family members.  While returning from the hotel, when he
\nreached in front of a mutton shop, Syed Salim (absconding) came on the
\nroad and asked him to wait and as soon as he stopped his motorcycle, he,
\nallegedly, gave a call saying “Shaukat Bhai” and started assaulting him with
\na knife.  At that time Shaukat and Arshad came running.  Whereas Shaukat
\ntook out his knife and assaulted him in his chest and stomach, Arshad,
\nallegedly, assaulted him on his back by a wooden stick.  He, thereafter,
\nstarted shouting and begged them not to hit him, whereupon several people
\ncame running and rescued him.  They made him sit on the motorcycle and
\nbrought him to the hotel.  The motive for alleged commission of the said
\noffence, in his words, is as under :\n<\/p>\n
\t“Therefore, S. Shaukat S. Kasim his brother-in-law
\nS. Arshad s\/o S. Hussain who are staying in my lane as I
\nasked for the money in the contractorship of fissile stone
\n(1) S. Shaukat S. Kashim (2) Saleem s\/o S. Hussain (3)
\nM. Arshad s\/o M. Hussain assaulted me with knife and
\nkhanjar and wooden stick on my chest, right side of neck,
\non right side of my bicep and with an intention to kill me
\nhave caused injuries to me.  At present my health is
\ngood.”\n<\/p>\n
\tThe deceased died three days after the incident.\n<\/p>\n
\tApart from the appellants and Syed Salim, it appears one Syed
\nMaqdum was also prosecuted for commission of the said offence, although,
\nhe was not named in the dying declaration of the deceased.  He, however,
\nwas acquitted.  The learned Sessions Judge found the appellants herein as
\nalso the said Syed Salim to be guilty of commission of the offence under
\nSection 302\/34 IPC.  The appeal preferred thereagainst by the appellants
\nherein as also Syed Salim was dismissed.  Both the learned Trial Judge and
\nthe High Court relied upon the evidence of Farukoddin (P.W.2), Mohammed
\nShakeel (P.W.6) and Mohammed Rais (P.W.7), as also the dying
\ndeclarations of the deceased Kayyum.\n<\/p>\n
\tBefore we advert to the depositions of the said witnesses as also the
\ndying declarations of the deceased, we may notice the injuries suffered by
\nthe deceased, which are as under :\n<\/p>\n
(1)\tAbrasion at nose anteriorly on left side.  Size 2.5 x
\n1 cm.  Brown scarp formed.\n<\/p>\n
(2) \tStitched wound of 3 stitches (2.5 cm.) at the neck
\non the right side on the lower aspect.  On
\ndissection track directed medially down-wards in
\nright thoracic cavity.  Pleura showed
\ncorresponding cut of 2.5 cm. (clean cut) with
\ncorresponding puncture wound of 2.3 cm. x 0.3
\ncm. x 1.5 cm. at upper lobe.  Blood clots seen in
\nthe track and adherent to lung.  Evidence of right
\nhaemothorax-1600 ml with few blood clots.\n<\/p>\n
(3)\tStitched wound at left side second inter-costar
\nspace, Mid-clavicular line (3 stitches) 2.5 cm. in
\nlength, stitches intact.\n<\/p>\n
(4)\tStitched wound at left side of chest, seventh inter-
\ncostal space anterior axillary (fold), Line (2
\nstitches intact) 1.5 cm.\n<\/p>\n
(5)\tStitched wound on chest right side, seventh inter
\ncostal space anterior axillary (fold) 3 stitches 2.5
\ncm.\n<\/p>\n
(6)\tStitched wound on abdomen on right siden
\nLumber region, (2 stitches intact) 8 cm. above
\niliac-crest.\n<\/p>\n
(7)\tStitched wound on abdomen right para medical,
\nvertical, 11 stitches intact (suggestive of
\nlaprotomy).\n<\/p>\n
(8)\tStitched wound over abdomen 2 stitches left side
\njust below umbilicus.\n<\/p>\n
(9) \tStitched wound on right arm on middle third
\nlaterally 4 stitches intact.\n<\/p>\n
(10)\tStitched wound on right elbow laterally four
\nstitches intact.\n<\/p>\n
(11)\tStitched wound on right wrist medially, six stitches
\nintact.\n<\/p>\n
(12)\tStitched wound on right forearm middle third
\nregion medially (2 stitches intact).\n<\/p>\n
(13)\tEvidence of veni-section left ankle medially.”\n<\/p>\n
\tIt is of some significance to point out that although, the appellant-
\nMohammed Arshad is stated to have assaulted the deceased with a stick on
\nhis back, no such injury was found on his person.
\n\tMr. Sanjay R. Hegde, learned counsel appearing on behalf of the
\nappellant in Criminal Appeal No.1674\/2005 – Mohammed Arshad would
\nsubmit that the prosecution case cannot be relied upon inasmuch as : (1) the
\ndeceased had not named the appellant in two dying declarations; (2) an
\nimprovement was made by the deceased in his 3rd dying declaration, wherein
\nsome role was attributed for which no credence can be given.\n<\/p>\n
\tMr. Uday Umesh Lalit, learned Senior Counsel appearing on behalf of
\nthe appellant in Criminal Appeal No.1676  Syed Shaukat, pointed out that
\nFarukoddin (P.W.2) was not an eye-witness.  It was furthermore submitted
\nthat his evidence as regards the purported statements made to him by the
\ndeceased relating to the mode and manner of assault by the appellant and the
\nsaid Syed Salim had not been believed by the High Court also.  The learned
\ncounsel urged that Mohammed Shakeel (P.W.6) is also not reliable as
\nalthough he had helped the deceased to sit on the motorcycle, his clothes did
\nnot become blood stained although, admittedly, the deceased received
\nserious injuries and blood was oozing profoundly.  Drawing our attention to
\ndeposition of Mohammed Rais (P.W.7), the learned counsel would contend
\nthat he had introduced one ‘Dastiwala’ and even his identity as accused No.4
\nhad not been established.  It was further submitted that both P.Ws.6 and 7
\nwere interested witnesses, as P.W.6 was a friend of the deceased and P.W.7,
\nadmittedly, was related to him.\n<\/p>\n
\tIn the First Information Report as also in his evidence, P.W.6 had
\nnamed the appellants herein and Syed Salim.  He was an eye-witness.  He
\ncategorically stated that whereas Salim had a khanjar in his hand, Arshad
\nhad a wooden stick.  He also heard the deceased crying as “Save me”, “Do
\nnot beat me”.  He also heard the deceased taking the names of the appellants
\nand Syed Salim, whereupon he rushed to the spot and found them to be
\nassaulting the deceased.  The clothes of the deceased were stained with
\nblood.  He found injuries on his person.  After the accused fled away, he
\nhelped the deceased to sit on his motorcycle and was taken to the hotel.
\nMohammed Rais (P.W.7) was another eye-witness.  He deposed in regard to
\nthe business dealings by and between the deceased and Arshad.  He also
\ndeposed in regard to the incidents which took place on 8th, 14th and 17th of
\nMarch, 1999.  Fakruddin (P.W.2), on the other hand, came to the spot
\nimmediately after the occurrence.  He is not an eye-witness in the strict
\nsense of the terms but the same is corroborative in nature.\t  He, however,
\nreached the spot immediately after the occurrence.  As noticed hereinbefore,
\nhis testimony of the fact that the deceased told him about the participation of
\nthe appellants and Syed Salim had not been believed by the High Court.\n<\/p>\n
\tIt is no doubt true that the appellants and Syed Salim were named in
\nthe First Information Report, but, the deceased was the only person who
\ncould tell about the actual incident.  He, as noticed hereinbefore, made three
\ndying declarations.  The 1st dying declaration was before the doctor.  He did
\nnot name Mohammed Arshad, although, he named Syed Shaukat and Sayed
\nSalim.\n<\/p>\n
\tNo doubt in his 1st dying declaration he named Shaukat and Salim and
\nstated “others”, but we do not find any reason as to why despite the fact that
\nhe had later on described the motive on the part of Arshad, he did not take
\nhis name as one of the assailants  in his 1st dying declaration.\n<\/p>\n
 \tThe comments made by the learned counsel that in the dying
\ndeclaration before the Judicial Magistrate he did not state in details the role
\nplayed by each of the accused, cannot be accepted as only three questions
\nwere put to him by the learned Judicial Magistrate, out of which only
\nquestion Nos.2 and 3 are relevant.  It was for the learned Magistrate to ask
\nfor the details of the incident.  He did not do so and presumably, therefore,
\nthe deceased had no occasion to state about the incident in detail in his dying
\ndeclaration before the learned judicial Magistrate.  The dying declaration
\nbefore the Investigating Officer, which was recorded on 19.3.1999, is a
\ndetailed one.  It is not in the question-answer form.  He stated about his
\nfamily at some details, his running of the business in partnership with
\nArshad as also the incidents which had respectively taken place on 8th, 14th
\nand 17th of March, 1999.  The statements made by him corroborated the
\nstatements made by the eye-witnesses  Mohammed Shakeel (P.W.6) and
\nMohammed Rais (P.W.7).  Submission of Mr. Lalit that testimony of P.W.6
\nshould not be believed, cannot be accepted.  Only because his clothes did not
\nbecome blood stained, in our view, is not of much significance.  He only
\nhelped the deceased to sit on the motorcycle, and the same may be the
\nreason of his clothes not stained with blood.  There was, thus, no reason for
\nus to reject the testimony P.W.6 in regard to Shaukat.  It may be true that
\nP.W.7 named one ‘Dastiwala’.  He, however, explained the same stating :\n<\/p>\n
“….We reached the house.  Kayum said that he would go
\nback to hotel.  Kayum left the house with Yamaha Motor
\nCycle, I followed him.  I was on the bicycle.  In front of
\nhouse of Pasha, Salim stopped Kayum.  Thereafter Salim,
\nShaukat, Arshad and Dastiwala were beating Ayub with
\nstick Khanjar and Knife.  I ran away after seeing them.  I
\nagain say that I ran towards Kayum.”\n<\/p>\n
\tHe, however, stated :\n<\/p>\n
“….It is true that a person returning from ‘Haj’
\npilgrimage wears white scarf (Dasti).  It is not true that
\nSuleman Pirani was always wearing white scarf.”\n<\/p>\n
We also do not find much substance in the submission of Mr. Lalit
\nthat when the Police Inspector Abdul Karim – P.W.11, made inquiries from
\nMohammed Shakil – P.W.6, the names of the appellants were not disclosed.
\nThat was not the occasion where the names could be disclosed as P.W.11
\nhad only informed him about the incident.  All the people must have been
\nworried abut the deceased.  Furthermore, it is not in dispute that the incident
\ntook place at about 10.30 p.m., whereas the First Information Report was
\nlodged at about 11.45 p.m.  It is, therefore, unlikely that appellant – Syed
\nShaukat had been falsely implicated, particularly, in view of the fact that as a
\nsequel to the incident which took place on 8th March he had lodged a report
\nand in respect of the incident which took place on 14th March, the deceased
\nhad lodged a report.\n<\/p>\n
Furthermore, Dr. Rajendra Kagane – P.W.10 in his evidence
\ncategorically stated that injury No.2, which was vital, could be inflicted with
\nArticle 12 which overt act was ascribed to the appellant.  The said weapon
\nwas also recovered pursuant to the confession made by him.\n<\/p>\n
We, therefore, do not find any merit in the appeal preferred by Syed
\nShaukat.\n<\/p>\n
So far as the appeal preferred by Mohammed Ashraf is concerned, we
\nare of the opinion that he is entitled to benefit of doubt.  He was not named
\nin the first two dying declarations.  He was named only in the 3rd dying
\ndeclaration.  No injury by stick was found on the back of the deceased.  The
\nmotive ascribed as against him did not find place in the First Information
\nReport.  Evidently, the deceased made improvement in his 3rd dying
\ndeclaration before the Police Officer.\n<\/p>\n
Keeping in view the backdrop of events, we fail to see any reason as
\nto why appellant Mohammed Arshad would not have been named in the 1st
\nor 2nd dying declarations if the motive for his involvement was non-payment
\nof a sum of Rs.60,000\/-  as was disclosed by the deceased.\n<\/p>\n
This Court in Balbir Singh & Anr. vs. State of Punjab [2006 (9)
\nSCALE 537] relying upon several decisions of this Court including State of
\nMaharashtra vs. Sanjay<\/a> s\/o Digambarrao Rajhans [(2004) 13 SCC 314]
\nand Muthu Kutty & Anr. vs. State by Inspector of Police, T.N. [(2005) 9
\nSCC 113] held :\n<\/p>\n
“We are of the opinion that whereas the findings of
\nthe learned Sessions Judge as also the High Court in
\nregard to guilt of Appellant No.1 must be accepted,
\nkeeping in view the inconsistencies between the two
\ndying declarations, benefit of doubt should be given to
\nAppellant No.2.  We, however, uphold the conviction
\nand sentence of both the Appellants under Section 498-A
\nIPC.”\n<\/p>\n
For the reasons aforementioned, while allowing Criminal Appeal
\nNo.1674 of 2005, Criminal Appeal No.1676 of 2005 preferred by Syed
\nShaukat is dismissed.  Appellant Mohammed Arshad shall be released
\nforthwith, if not required in connection with any other case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohammed Arshad vs State Of Maharashtra & Ors on 24 November, 2006 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (crl.) 1674 of 2005 PETITIONER: Mohammed Arshad RESPONDENT: State of Maharashtra & Ors. DATE OF JUDGMENT: 24\/11\/2006 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-141051","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohammed Arshad vs State Of Maharashtra & Ors on 24 November, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammed-arshad-vs-state-of-maharashtra-ors-on-24-november-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammed Arshad vs State Of Maharashtra & Ors on 24 November, 2006 - 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