Bombay High Court
State Of Maharashtra vs Munna Abdul Salam Shaikh on 3 October, 1997
Equivalent citations: 1998(5)BOMCR730, 1998(1)MHLJ866
Author: Vishnu Sahai
Bench: Vishnu Sahai, T.K. Chandrashekhara Das
ORDER Vishnu Sahai, J.
1. The respondent Munna Abdul Salam Shaikh was tried by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 542 of 1990 for an offence punishable under section 302, Indian Penal Code. The learned Judge acquitted him on the said count but found him guilty instead under section 304-A, Indian Penal Code and sentenced him to undergo R.I. for 2 years.
Criminal Appeal No. 587 of 1993 has also been preferred by the State of Ma-harashtra challenging the acquittal of the respondent for the offence under section 302, Indian Penal Code.
Criminal Appeal No. 588 of 1993 has also been preferred by the State of Ma-harashtra but with a prayer that the sentence of the respondent for the offence under section 304-A, Indian Penal Code, be enhanced.
2. In short the prosecution case runs as follows :
The informant Sandro Anthony Sequeira, P.W. 1 was a friend of the deceased Said Mozam. He also knew the respondent.
On 8-4-1990 at about 9.00 p.m. Sandro Sequeira left house and went to that of Said Mozam in Transit Camp Chawl No. 43 Bandra (West). He met Said Mozam near his house while he was talking to a mechanic who was holding a bicycle. At about 9.30 p.m. the respondent Munna Abdul Salam Shaikh came there and borrowed the bicycle from the mechanic. After some time the respondent returned the bicycle to the mechanic. He told Sandro and Mozam that he had hired a video and asked them to see the movie which was being shown on the video, in the open space between Mozam's chawl and another chawl. At about 12.30 a.m. Sandro and Mozam decided to avail of the offer given by the respondent. They went to the place where the video was being screened. Mozam brought a chair from his house on which he and Sandro sat. After some time the respondent came and asked them to move their chair as his view was being obstructed. Around 12.45 a.m. Munna asked the respondent as to why he had asked him to move aside. Thereafter a fight ensued between Mozam and the respondent. Sandro intervened and separated them. Thereafter Sandro and Mozam walked towards the house of the latter. The respondent came there armed with a knife and challenged Mozam. On that Mozam took a TV. antenna pole in his hand and thereafter a fight between him and the respondent commenced, opposite A-l Hilal building. Mozam tried to disarm the respondent who was carrying a knife. During the fight the respondent stabbed him with knife on the left side of his chest. Thereafter the respondent ran away.
3. Apart from Sandro this incident was seen by Mohommed Yunus Mohd. Isaq Shaikh P.W. 4 and Ahsan @ Guddu Shadiq Ahmed Jaferry P.W. 5. It is also said that Mohammed alias Haidar P.W. 2 saw the respondent running away with a knife. The witnesses are said to have seen the incident in electric light.
4. As a consequence of the assault made on him by the respondent, Mozam was precariously injured and was unable to speak. At that time his brother Anwar came there and in the ambassador car of one Pravin Seth, Mozam was taken by Mohommed Yunus and Anwar to Bhabha Hospital where the doctor pronounced him dead.
5. The evidence is that constable Mohan Jadhav P.W. 11 who was on casualty duty at Bhabha Hospital, between 5.00 p.m. on 8-4-1990 and 9 a.m. on 9-4-1990, recorded an information in the emergency police register at 1.50 a.m. that one Mozam who was in an unconscious condition and was injured by Munna (respondent) was brought by Anwar and Sandro. Thereafter he telephoned to Bandra Police Station under whose jurisdiction Bhabha Hospital came.
6. The evidence of P.S.I. Maloji Madhavrao Patil, P.W. 12 is that at about 2 a.m. on 9-4-1990 he received a telephone call from constable Mohan Jadhav P.W. 11 to the effect that one Mozam had been stabbed by one Munna in his chest and was brought by Sandro and his brother Anwar to Bhabha Hospital. P.S.I. Patil recorded the information in his hand writing in the station diary. Exhibit 37 is the relevant entry.Thereafter P.S.I. Patil along with police personnel reached Bhabha Hospital and recorded F.I.R. of Sandro P.W. 1 at 3.05 a.m. on the same day.
7. After recording the F.I.R. P.S.I. Patil in the presence of two panchas prepared the inquest panchanama Exhibit 18. He took charge of the clothes on the corpse of the deceased under a panchanama. Thereafter he proceeded to the place of the incident and drew panchanama of the scene of offence, Exhibit 21. From the place of the incident he recovered blood stained earth and iron rod of TV. antenna having blood stains.
8. At about 8 a.m. on 9-4-1986 (sic) RS.I. Patil received an information that the respondent would be found in the vicinity of Bada Masjid area. At about 10.30 a.m. he met Sayyed Khan near Supreme Auto Garage at Sanjeri Apartments and made enquiries about the respondent. Sayyed Khan took him to Shabana Auto Garage which was near the Bada Masjid. There one person was found sleeping behind a car which was under repairs in the said garage and the said person was the respondent. He was apprehended. Panchas, including Shaikh Hanif P.W. 10 were called and in their presence the search of the respondent commenced. He was found wearing a bloodstained full shirt and a full pant. From the right hand pocket of the pant a folded Rampuri knife, Article 2 stained with blood was recovered. The clothes of the respondent and the knife were seized vide panchanama Exhibit 33. Since the respondent was having some injuries he was sent for medical examination to Nagpada Police Hospital where he was examined by Dr. Shivaji Narayan Dound P.W. 8 at 3 P.W. on 9-4-1990. According to Dr. Shivaji Dound the respondent had suffered 10 abrasions on his person. In his opinion they were inflicted within 24 hours and could have been caused by blows with a pipe.
9. Reverting back to the investigation we find that the clothes of the respondent, knife recovered from him, the blood stained clothes of the deceased were sent by P.S.I. Patil for chemical analysis. It may also be mentioned that during the course of investigation P.S.I. Patil recorded the statements of the eye-witnesses and some others.
After receiving the Chemical Analyser's report, on completion of the investigation the respondent was charge-sheeted for an offence punishable under section 302, Indian Penal Code.
10. Going backwards the autopsy on the dead body of Mozam was conducted by Dr. Rajaram Narayanrao Marathe P.W. 7. He found the following ante mortem injuries on the person of Mozam :---
(1) I.W. 2.5 x 1.2 cm. on right 4th inercostal space near sternum;
(2) Abrasion 1 cm. x 1 cm. on right index finger at base of phalynx;
(3) Minor abrasion on left maxilla, chin, It knee, It, upper arm and left fore head.
On internal examination of the dead body Dr. Marathe found pericardium and left ventricle to be pierced. In his opinion the deceased died on account of shock and haemorrhage due to rupture of the heart. He also opined that the injury No. 1 suffered by the deceased was necessarily fatal.
11. The case was committed to the Court of Sessions in the usual manner. In the trial Court the respondent was charged for an offence under section 302, Indian Penal Code. To the said charge he pleaded not guilty and claimed to be tried.
During trial in all the prosecution examined 12 witnesses; 3 of them, namely, Sandro Anthony Sequeira P.W. 1, Mohommed Yunus Mohd. Isaq Shaikh P.W. 4 and Ahsan @ Guddu Shadiq Ahmed Jaferry P.W. 5 were examined as eye-witnesses. One Mohommed alias Haidar P.W. 2 was examined under section 6 of the Evidence Act. His evidence is that he saw the respondent immediately after the incident running away with a knife.
In defence no witness was examined. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the respondent in the manner stated above.
12. As mentioned in para 1 Criminal Appeal No. 587 of 1993 has been preferred by the State of Maharashtra against the acquittal of the respondent for the offence under section 302, Indian Penal Code and Criminal Appeal No. 588 of 1993 has been preferred by the State for enhancing the sentence of 2 years R.I. which has been awarded to the respondent by the trial Court for the offence under section 304-A, Indian Penal Code.
13. We have heard Mr. D.T. Palekar for the appellant and Mrs. G.K. Jadhav for the respondent, in both the appeals. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution, and the impugned judgment. In our view Criminal Appeal No. 587 of 1993 deserves to be partly allowed as we are of the judgment that instead of an offence under section 304-A, Indian Penal Code the respondent should have been convicted for the offence stipulated by section 304(II), Indian Penal Code.
14. While reaching our conclusion we have borne in mind that an appeal against acquittal should only be allowed if the finding of the trial Court is either based on grossly unreasonable assessment of evidence or is perverse or is vitiated by any illegality.
15. In the instant case we find that the learned trial judge has accepted the involvement of the appellant in the incident. He has chosen to rely on the evidence of two of the eye-witnesses viz. Sandro Anthony Sequeira, P.W. 1 and Ahsan @ Guddu Shadiq Ahmed Jaferry P.W. 5. He has also placed reliance on the evidence of Mohommed alias Haidar Ismail Shaikh P.W. 2.
Since there is an appeal for enhancement of sentence under section 377, Criminal Procedure Code, we also examined the question of correctness of conviction of the respondent, for section 377(3), Criminal Procedure Code stipulates that in an appeal for enhancement of sentence the accused may plead for his acquittal.
16. We have gone through the evidence of Sandro Anthony Sequeira, P.W. 1, Moham-med alias Haidar Ismail Shaikh P.W. 2, and Ahsan (c) Guddu Shadiq Ahmed Jaferry P.W. 5 and we find that the learned trial Judge acted correctly in accepting their evidence.
17. We would first like to take up the evidence of Sandro Anthony Sequeira, P.W. 1 and Ahsan @ Guddu Shadiq Ahmed Jaferry P.W. 5, the two eye-witnesses. It is on the basis of the recitals contained in their examination-in-chief that we have set out the prosecution story in para 2 and hence we do not propose graphically recounting the same. In short these witnesses have stated that as the view of the respondent was being obstructed on account of the deceased Mozam and Sandro sitting in a chair in front of him the respondent asked them to move. On this there was a quarrel between him on one side and Mozam on the other. Thereafter Mozam went away with Sandro. Immediately thereafter the respondent brandishing a knife came and challenged Mozarn who tried to disarm him by inflicting blows with the iron bar attached to a T.V. antenna. They also stated that during the course of the quarrel the respondent inflicted a knife blow on the left side of the chest of Mozam, who fell down as a result thereof and was pronounced dead in Bhabha Hospital, where he was immediately taken.
Both the witnesses have stated that they saw the incident in electric tight. It is pertinent to note that in the spot panchanama the investigating Officer has mentioned that there was sufficient light on the place of the incident.
18. We have gone through the evidence of both Sandro Anthony Sequeira and Ahsan @ Guddu Shadiq Ahrned Jaferry and we find them to be truthful witnesses. Both of them have explained their presence on the place of !he incident, Ahsan alias Guddu Shadiq Ahmed Jaferry has stated that on the date and time of the incident he was strolling on Reclamation Road. He met his friend Elias and while he was talking with him he heard sounds of quarrel and saw the incident. It is significant to point that the place where he was talking with Elias was very near the place where the video was being screened.
We also find that the manner of the incident given out by these eye-witnesses is corroborated by medical evidence, inasmuch as in the opinion of the autopsy surgeon ante mortem injury No. 1 suffered by the deceased could be caused by a knife.
The place of incident deposed to by these witnesses also appears to be correct for at the same the Investigating Officer found blood, which on being sent to the Chemical Analyzer was found to be human. It is significant to point out that blood of group "B" was found on the earth and blood of the same group was found on the clothes of the deceased. This means that the deceased had been assaulted at the said place.
19. It needs to be emphasized that both Sandro and Ahsan are independent witnesses. They had no axe to grind against the respondent and in the absence of the same we are not prepared to believe that unless he had really stabbed the deceased they would have falsely implicated him. In our view their evidence inspires confidence and the learned trial Judge acted correctly in accepting it.
20. We also feel that the evidence of Mohommed alias Haidar Ismail Shaikh P.W. 2, inspires confidence. He has explained his presence on the place of the incident. According to him at the time when the incident took place he was talking with Ahsan @ Guddu Shadiq Ahrned Jaferry P.W. 5. He stated that he saw the respondent running away with a knife and Mozam lying on the ground with face downwards. He too also had no axe to grind against the respondent and we also feel that his evidence has been rightly relied upon.
21. In addition to the said evidence there is also the evidence that when the respondent was arrested on 9-4-1990, a blood stained knife was recovered from the hip pocket of his pant. The shirt and pant which he was putting on at the said time was also found to be blood stained. It is significant to point out that the Chemical Analyst found human blood, the blood group being "B", on the said articles. As mentioned earlier the Chemical Analyst found the blood of the deceased to be of "B" Group. The presence of blood of "B" group on the shirt and pant of the respondent and on the knife recovered from him is also a very clinching piece of evidence against the respondent.
22. In our view the learned trial Judge acted correctly in holding the involvement of the respondent in the incident. We however find that the conclusion of the learned trial Judge that the act of the respondent in inflicting a solitary knife blow on the chest of the deceased made out an offence under section 304-A, Indian Penal Code to be perverse. In this connection it would be necessary to advert to section 304-A, Indian Penal Code, which reads thus :--
"304-A. Causing death by negligence.---Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
A perusal of the said section would show that a person who causes the death of another by doing any rash or negligent act not amounting to culpable homicide shall be guilty of the offence contemplated by the section.
23. Culpable homicide has been defined in section 299, Indian Penal Code. The said section reads thus :--
"299. Culpable homicide.---Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
A perusal of section 299, Indian Penal Code would show that the offence of culpable homicide would be made out if a person causes death by doing an act :(a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death;
or (c) with the knowledge that he is likely by such act to cause death.
24. In the instant case we find that the conviction of the respondent lor the offence under section 304-A, Indian Penal Code, is wholly indefensible. As we have seen the offence under section 304-A, Indian Penal Code, stipulates of death being caused of a person by doing any rash or negligent act, not amounting to culpable homicide. In other words where death is not caused by rash or negligent act not amounting to culpable homicide the offence made out would not fall within the ambit of the said section.
25. In the instant case we find from the evidence on record that the respondent caused the death of Mozam not by any rash or negligent act but by the deliberate act of stabbing him with a knife on the left side of his chest. We also find that the act of the respondent amounts to culpable homicide as defined in section 299, Indian Penal Code.
26. Culpable homicide may either be :--
(a) amounting to murder within the meaning of any of the four clauses of section 300, Indian Penal Code; or
(b) not amounting to murder, as stipulated by Part I or Part II of section 304, Indian Penal Code.
In other words the question now to be examined is whether the respondent is guilty of the offence of culpable homicide amounting to murder punishable under section 302, Indian Penal Code, or not amounting to murder punishable under section 304, Indian Penal Code.
27. We have thoughfully reflected on the said question. In our view only the offence of culpable homicide not amounting to murder in terms of section 304(II), Indian Penal Code would be made out against the respondent, for the following reasons :---
(a) there was no prior enmity between the respondent and the deceased.
(b) on a trivial matter the incident leading to the fatal assault on the deceased Mozam took place.
(c) prior to the fata! assault on the deceased by the respondent the deceased himself had assaulted the respondent with the iron bar of a T.V. antenna but of course only to disarm him; and
(d) only a solitary knife blow was inflicted by the respondent on the deceased.
We feel that when the appellant inflicted a solitary knife blow on the deceased he had the knowledge that he was likely to cause his death within the terms of clause thirdly of section 299, Indian Penal Code.
28. In our view considering the circumstances, enumerated in the preceding paragraph, the offence committed by the respondent would not fall underany of the fourclauses of section 300, Indian Penal Code, the breach of which is punishable under section 302, Indian Penal Code the effect that the injury was sufficient in the ordinary course of nature to cause death, the offence would fall squarely within the ambit of clause thirdly of section 300, Indian Penal Code.
The Supreme Court repelled the said contention and took the view that in the circumstances in which the incident took place it could not be said that the accused intended to inflict the injury which proved to be fatal and therefore clause thirdly of section 300, Indian Penal Code would not be applicable. It accordingly converted the conviction of the appellant from one under section 302, Indian Penal Code to that under section 304(II), Indian Penal Code.
30. In (supra) the facts were that there was no malice or ill-will between the appellant and the deceased and when the former met the latter in front of his shop he inflicted a solitary dagger blow on the left side of his chest. The said blow in the opinion of the autopsy surgeon was sufficient in the ordinary course of nature to cause death of the deceased.
Before the Supreme Court it was argued by the prosecution that since the appellant Jawahar Lal inflicted an injury which was sufficient in the ordinary course of nature to cause death, of the deceased the case would squarely fall within the ambit of clause thirdly of section 300, Indian Penal Code. The Supreme Court in paragraph 15 repelled the said submission and observed as follows :
"15. .....Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the 1st appellant intended to cause that particular injury. The weapon used was the usual handy weapon, a Punjabi generally carries a knife. The 1st appellant was near his shop. He did not attempt to inflict any more harm. In the available dim light, the blow landed on the chest. In our opinion, in these circumstances, it would be difficult to say that the 1st appellant intended to cause that particular injury. Even if the injury inflicted proved to be fatal, the case would not be covered by para 3 of section 300,"
It set aside the conviction of the appellant under section 302, Indian Penal Code and instead convicted him under section 304(ll), Indian Penal Code.
31. In our view the ratio laid down in the aforesaid cases squarely applies to the facts of the present case.
We are implicitly satisfied that in the facts of this case only an offence under section 304(ll), Indian Penal Code, and not one under section 302, Indian Penal Code, would be made out against the respondent.
32. The question which remains is the quantum of sentence to be awarded to the respondent for the offence punishable under section 304, Part Il, Indian Penal Code. In our view, considering the over all circumstances the ends of justice would be squarely met if a sentence of 4 years R.I. is awarded to him thereunder.
33. In the result:
(A) Criminal Appeal No. 587/93 is allowed. Instead of the offence under section 304-A, Indian Penal Code, the respondent Munna Abdul Salam Shaikh is found guilty of the offence under section 304(ll), Indian Penal Code. He is convicted and sentenced to undergo 4 years R.I. for the said offence. From the record it is not clear whether the respondent is in jail or on bail. In case he is on bail he shall be taken into custody forthwith to serve out his sentence, in the computation of which the period served by him as an under trial and convict shall be included.
(B) Criminal Appeal No. 588 of 1993 does not survive and is accordingly dismissed.
Before parting with the judgment we would like to place on record our appreciation for the assistance rendered to us by the learned Counsel for the parties in the disposal of these appeals.
In case an application is made for a certified copy of this judgment the same shall be issued on an expedited basis.
34. Order accordingly.