Bombay High Court
Noor Aamad @ Mohmadnur Husen Subhedar vs The State Of Maharashtra on 22 February, 2017
Author: V.K. Tahilramani
Bench: V.K. Tahilramani, M.S. Karnik
cri apeal 1314-13 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1314 OF 2013
Noor Aamad @ Mohmadnur Husen
Subhedar
Age - 42 Years, Occ : Business,
Resident of House No. 490,
Harijanwada, Taloja Gaon, Tal. Panvel,
Dist. Raigad.
[ Presently in Alibag Prison ] .. Appellant
(Org. Accused No. 1)
Versus
1. The State of Maharashtra
2. Arfad Abdul Aziz Patel
Age - 19 Years, R/o. Taloja Village,
Taluka Panvel, District Raigad.
3. Rubina Zahir Patel
Age - 33 Years, R/o. Taloja Village,
Taluka Panvel, District Raigad. .. Respondents
...................
Appearances
Mr. B.R. Patil i/by
Mr. Ujwal Agandsurve Advocate for the Appellant
Mr. H.J. Dedia APP for Respondent No. 1 / State
Mr. S.V. Kotwal i/by Advocate for Respondent Nos. 2 and 3 / original
Mr. Vishal Kolekar complainant
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
RESERVED ON : FEBRUARY 1, 2017
PRONOUNCED ON : FEBRUARY 22, 2017
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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused No. 1 against the judgment and order dated 10.12.2013 passed by the learned Additional Sessions Judge, Raigad-Alibag in Sessions Case No. 105 of 2012. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 25000/-, in default R.I. for one year. The appellant was further convicted for the offence punishable under Section 506(II) of IPC and sentenced to suffer rigorous imprisonment for three years and fine of Rs. 3000/-, in default R.I. for three months. The learned Additional Sessions Judge directed that both the sentences of imprisonment shall run concurrently. The learned Additional Sessions Judge further directed that out of the fine amount deposited by the appellant, an amount of Rs. 25,000/- be paid to the wife of the deceased Zahir, namely Rubina Zahir Patel towards compensation after appeal period is over. jfoanz vkacsjdj 2 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 :::
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2. The prosecution case briefly stated, is as under:
(a) PW 1 Arfad is the first informant in the present case. He had one brother i.e PW 3 Ashpak and three sisters namely Sheema, Farah and Rubina.
Deceased Zahir was the husband of Rubina. Zahir was residing at Taloja. Jugda Patel is the mother of deceased Zahir. Fatima was the sister of Jugda. The appellant, original accused No. 3 - Dastagir and original accused No. 4 - Mohd. Hanif were the sons of Fatima. Original accused No. 2 -
Husenmiya is the husband of Fatima and father of the appellant, Dastagir and Mohd. Hanif.
Deceased Zahir, accused persons as well as PW 1 Arfad were all residing at Taloja. About 3-4 years prior to the incident, a quarrel took place between deceased Zahir and accused persons on account of land. The land was owned by Jugda and Fatima and there was dispute in relation to this land. jfoanz vkacsjdj 3 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 :::
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(b) The incident took place on 6.5.2012. PW 1 Arfad and his brother Ashpak had dinner. Thereafter, they went outside for a walk. They were going by old Mumbra-Panvel road. At about 10.30 p.m., when they came in front of Lakshyache hotel, they saw Zahir on a black colour pulser motorcycle. Then one Maruti Zen car of silver colour came and gave dash to the motorcycle of Zahir. All the four accused persons were in the car. They got down. Zahir started abusing the accused persons. The accused persons then assaulted Zahir with weapons. The appellant assaulted Zahir on the neck with a knife. Accused Nos. 2, 3 and 4 assaulted Zahir with knives on the chest. PW 1 Arfad questioned the accused persons why they were assaulting Zahir whereupon the appellant threatened Arfad and pushed him aside. PW 1 Arfad then got frightened and proceeded to his house. While going, he saw jfoanz vkacsjdj 4 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 ::: cri apeal 1314-13 (j).doc the accused persons assaulting Zahir. Arfad went home and narrated the incident to his parents. After 15-20 minutes, they came back to the spot. That time, they saw pool of blood on the spot and the motorcycle was also lying on the spot. They came to know that Zahir was taken to M.G.M. Hospital. Within short time, he received a phone call that Zahir had died.
(c) Police came to the spot. Arfad told them that he had witnessed the incident. Police took him to Taloja Police Station. There PW 1 Arfad lodged FIR Exh. 36. Thereafter investigation commenced. The dead body of Zahir was sent for postmortem. According to PW 10 Dr. Lohare who conducted the postmortem, the cause of death was due to multiple stab injuries with head injury. All the accused came to be arrested. There was recovery of weapon and blood stained clothes at the jfoanz vkacsjdj 5 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 ::: cri apeal 1314-13 (j).doc instance of the appellant. After completion of investigation, the charge sheet came to be filed.
3. Charge came to be framed against original accused Nos. 1 to 4 under Sections 302 r/w 34 and 506(II) r/w 34 of IPC. All the accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted original accused Nos. 2 to 4 of all the charges, however, learned Sessions Judge convicted the appellant - original accused No. 1 under Section 302 and 506(II) of IPC, hence, this appeal.
4. We have heard the learned counsel for the appellant, learned APP for the State and Mr. Kotwal appearing for the complainant and widow of Zahir. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, jfoanz vkacsjdj 6 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 ::: cri apeal 1314-13 (j).doc the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted Zahir with a knife.
5. In order to sustain the conviction, the prosecution has mainly placed reliance on the evidence of PW 1 Arfad, PW 2 Navid and PW 3 Ashpak. According to the prosecution, these are the eye witnesses to the incident. In addition, reliance is also place on recovery of weapon and blood stained clothes at the instance of the appellant and seizure of blood stained shirt which was on the person of the appellant at the time of his arrest.
6. We shall first deal with recovery of weapon and blood stained clothes at the instance of the appellant. Panch witness PW 9 Anant Patil has deposed about recovery of knife and blood stained clothes at the instance of the appellant. He has stated that on 12.5.2012, the appellant made a statement in his presence that he would show the jfoanz vkacsjdj 7 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 ::: cri apeal 1314-13 (j).doc weapon and the clothes used in the crime. The appellant led them to a water channel and stated that he threw the knife in the channel. There was no one who could enter the channel, hence, the work of finding knife was kept in abeyance. Thereafter, the appellant led them to one house. From the house, the appellant produced his clothes i.e shirt and jeans which were worn by him at the time of the incident. The shirt and jeans produced by him were blood stained. This panch witness does not mention about sealing of these clothes at the spot. This witness has further stated that after two days, the police called him near a bridge. One person Arjun entered into the water channel and found the knife. The said knife was wrapped in a paper. The evidence of this panch witness does not show that the clothes or the knife was sealed on the spot.
7. According to the prosecution, the clothes of the deceased were stained with blood of 'A' group, hence, the blood group of deceased was 'A'. The prosecution has tried jfoanz vkacsjdj 8 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 ::: cri apeal 1314-13 (j).doc to place reliance on C.A. report Exh. 146 which shows that the shirt as well as the jeans recovered at the instance of the accused were stained with blood of 'A' group. Thus, according to the prosecution, these clothes were worn by the appellant at the time of the incident, hence, there were blood stains on these clothes. If we consider this submission, it means that after the incident, the appellant changed his clothes on which there were blood stains and wore fresh clothes and hid the blood stained clothes in his house. However, we would like to advert to the evidence of PW 5 Surendra who is also a panch witness. He has stated that on 7.5.2012 at about 2.00 to 2.30 a.m., police brought accused No. 1 before them and told them that the said person is accused and they have to take his personal search and seize his clothes. Then personal search of the appellant was taken and some blood stains were found near the shirt button and collar on the shirt worn by the appellant. These clothes were then wrapped and sealed. If the prosecution case is to be believed that the appellant after the incident changed his jfoanz vkacsjdj 9 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:53 ::: cri apeal 1314-13 (j).doc blood stained clothes and wore fresh clothes and hid the blood stained clothes in his house, then how blood stains are found on the shirt worn by the appellant at the time of his arrest. It means that the appellant was still roaming around in the same clothes which he had worn at the time of the incident, hence, the clothes worn by him at the time of arrest had blood stains on them. It cannot happen that there are two sets of clothes having blood stains i.e one which was on the person of the appellant at the time of his arrest which had blood stains and another which was recovered at the instance of the appellant from his house. This fact shows that the recovery was a planted one and cannot be believed. So also, the seizure of blood stained shirt which was found on the person of the appellant at the time of his arrest cannot be believed. We would also like to state that PW 1 Arfad had given description of the clothes worn by the appellant at the time of the incident in his examination-in-chief, however, his cross-examination as well as FIR Exh. 36 shows that no such description was given by him when his statement was jfoanz vkacsjdj 10 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc recorded. All these facts raise doubt about recovery of blood stained clothes at the instance of the appellant and seizure of blood stained shirt which was on the person of the appellant at the time of his arrest. In any event, the blood stained clothes which were recovered at the instance of the appellant were not sealed on the spot, hence, no importance can be given to the C.A. report.
8. Now we shall deal with the evidence of the eye witnesses. Before we deal with the evidence of PW 1 Arfad who is also the first informant in the present case, we would like to deal with the evidence of PW 2 Navid and PW 3 Ashpak.
9. According to PW 2 Navid, he witnessed the incident which took place on 06.05.2012 at about 10.30 to 10.45 p.m. near Lakshyache Hotel. He has stated that he saw the four accused and they were assaulting Zahir with knife. However, it is pertinent to note that the incident occurred on 6.5.2012, however, his statement was recorded on 21.5.2012. He has stated that he suo motu went to the police station to give his statement. We would like to advert to paragraph 16 of his jfoanz vkacsjdj 11 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc evidence where he has stated that for 3-4 days after the incident, he was present in his house. He has stated in paragraph 1 that he is related to the accused persons which means he was also related to the deceased as the accused persons and the deceased were related. Despite being related to Zahir, after death of Zahir, he did not go to the house of Zahir who was also residing in the same area as this witness i.e at Taloja. What is further interesting to note is that this witness has stated that he did not narrate the incident to any person from 6.5.2012 to 21.5.2012. Looking to the fact that the statement of the witness was recorded belatedly i.e after almost 15 days and there is no explanation for the delay in recording the statement and his unnatural conduct, we are not inclined to place any reliance on the evidence of this witness.
10. Mr. Patil, learned counsel for the appellant placed reliance on the decision of the Supreme Court in the case of Ganesh Bhavan Patil & Anr. Vs. State of Maharashtra 1. 1 (1978) 4 SCC 371 jfoanz vkacsjdj 12 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc In the said decision, statement of the witness was recorded on following day and the evidence of the said witness was not relied upon. In the present case, as stated earlier, there is delay of almost 15 days in recording the statement of the witness. No explanation has been given for the delay in recording the statement. In addition, the conduct of this witness is also found unnatural in as much as from the date of the incident i.e 6.5.2012 till 21.5.2012, he did not narrate the incident to any person. In addition, after the death of Zahir, he did not go to the house of Zahir though he was related to Zahir. All these facts go to show that he is a got up witness.
11. The second witness is PW 3 Ashpak. Ashpak has stated that the incident took place on 6.5.2012. On that day, he along with his brother went for a walk after dinner. At about 10.30 p.m., he saw Zahir coming on his black colour Pulsar motorcycle. A Maruti Zen car of silver colour came from the jfoanz vkacsjdj 13 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc backside of the motorcycle of Zahir. The appellant was driving the said Zen car. The Zen car gave a dash to the motorcycle of Zahir from backside. Zahir fell in front of Lakshyache Hotel. All the four accused got down from the car. Accused No. 1 assaulted Zahir with a knife on the neck. Thereafter, accused Nos. 2, accused No. 3 and accused No. 4 assaulted Zahir with knife. When Arfad asked the accused why they were assaulting Zahir, the appellant threatened Arfad. Then Ashpak and Arfad started running to their house.
12. Paragraph 5 of the evidence of this witness shows that his averment in examination-in-chief that the appellant was driving the Maruti Zen car is an improvement. He had not stated so before the police. So also, from paragraph 5, it is seen that the fact that the appellant assaulted Zahir with "knife" on the neck is an improvement. Both these facts were not stated by this witness when his statement was recorded. This witness has stated in paragraph 12 that he jfoanz vkacsjdj 14 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc had stated before the police that he had seen the Maruti Zen car giving dash to the motorcycle of Zahir, however, he has admitted that the said averment is not found in his statement.
13. PW 3 Ashpak has stated that police recorded his statement on 7.5.2012 at about 10.00 a.m. in the police station. He alone had gone to the police station to give his statement. He has stated that he suo motu went to the police station and at that time, no relative or friend of his was in the police station. According to him, about 10-15 minutes are required to go to the police station by auto rickshaw from his house. This witness was 16 years old when his evidence was recorded. His evidence was recorded on 23.08.2013 i.e about one year and four months after the incident. This means that this witness was just 14 & 1/2 years old when he went as he claimed on his own to the police station to give his statement to the police. The evidence of this witness in paragraph 10 of the evidence jfoanz vkacsjdj 15 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc shows that he was a minor at the time of the incident and as he was frightened, he did not go to the graveyard for attending the funeral. Looking to all these facts, we find that the stand of this witness to be totally improbable and it appears that he was sent by interested persons to the police station to get his statement recorded in order to support the prosecution case. Looking to all these facts, we are not inclined to rely on the evidence of PW 3 Ashpak.
14. We now deal with the evidence of PW 1 Arfad. PW 1 Arfad is the first informant in the present case. PW 1 Arfad has stated that he had one brother i.e Ashpak and three sisters namely Sheema, Farah and Rubina. Deceased Zahir was the husband of Rubina. Zahir was residing at Taloja. Jugda Patel is the mother of deceased Zahir. Fatima was the sister of Jugda. The appellant, original accused No. 3 - Dastagir and original accused No. 4 - Mohd. Hanif were the sons of Fatima. Original accused No. 2 - Husenmiya is the husband of Fatima and father of the appellant, Dastagir and jfoanz vkacsjdj 16 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc Mohd. Hanif. Deceased Zahir, accused persons as well as PW 1 Arfad were all residing at Taloja. About 2-3 years prior to the incident, a quarrel took place between deceased Zahir and accused persons on account of land. The land was owned by Jugda and Fatima and there was dispute in relation to this land.
15. PW 1 Arfad has stated that the incident took place on 6.5.2012. He and his brother Ashpak had dinner. Thereafter, they went outside for a walk. They were going by old Mumbra-Panvel road at about 10.30 p.m. They came in front of Lakshyache hotel. They saw Zahir on a black colour pulser motorcycle. Then one Maruti Zen car of silver colour came and gave dash to the motorcycle of Zahir. As the driver side glass of the car was open, he saw that the appellant was driving the said car. All the four accused persons were in the car. They got down. They were holding a knife. The appellant assaulted Zahir on the neck with a knife. Accused Nos. 2, 3 and 4 assaulted Zahir with knives jfoanz vkacsjdj 17 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc on the chest. PW 1 Arfad questioned the accused persons why they were assaulting Zahir whereupon the appellant threatened Arfad and pushed him aside. PW 1 Arfad then got frightened and proceeded to his house and narrated the incident to his parents. While going, he saw the accused persons assaulting Zahir. After 15-20 minutes, they came back to the spot. That time, they saw pool of blood on the spot and the motorcycle was also lying on the spot. They came to know that Zahir was taken to M.G.M. Hospital. Within short time, he received a phone call that Zahir had died. Police came to the spot. Arfad told them that he had witnessed the incident. Police took him to Taloja Police Station. There PW 1 Arfad lodged FIR Exh. 36. PW 1 Arfad has identified four accused persons before the Court including the appellant. PW 1 Arfad further stated that the appellant had worn red black mixed checks colour shirt and blue colour jeans at the time of the incident and he has identified Articles 12 and 13 i.e shirt and pant as that of the appellant.
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16. As far as the description of the clothes of the appellant is concerned, the cross-examination of this witness shows that the description of the clothes of the appellant or any of the accused was not given by him when he lodged his FIR. Paragraph 11 of the cross-examination of PW 1 Arfad shows that his averment as the driver's side window was open, he saw that the appellant was driving the car is an improvement. Thus, taking into account the omissions, it shows that it is not known who was driving the car. The incident has taken place near Lakshyache Hotel. There is a kerosene shop to the left side of Lakshyache Hotel. There is a lane adjacent to the kerosene shop and the residence of the accused persons is adjacent to that lane. Thus, it is seen that all the accused persons were residing close to Lakshyache Hotel. It appears that while returning home, their car gave a dash to the motorcycle of Zahir. The evidence on record further shows that after dash was given to the motorcycle of Zahir, Zahir got up and started abusing all the accused persons which is clear from the FIR Exh. 36. The FIR Exh. 36 of Arfad further shows that thereafter, the appellant jfoanz vkacsjdj 19 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc assaulted Zahir on the neck with a sharp weapon. Thereafter, accused Nos. 2, 3 and 4 assaulted Zahir on the chest, stomach, neck and other parts of the body. When PW 1 Arfad tried to intervene, the appellant threatened him with knife. Thereafter accused Nos. 2, 3 and 4 assaulted Zahir. This shows that the appellant assaulted Zahir only once on the neck with a knife. Though PW 1 Arfad has tried to state that when all the accused persons got down from the car, they were holding weapons, it does not appear to be true because Arfad has stated in paragraph 13 that he felt that the accused persons went towards Zahir to save him. Obviously, this witness would not have felt so if he had seen the weapons in the hands of the accused persons when they got down from the car. This shows that there were no weapons in the hands of any of the accused when they got down from the car, otherwise, Arfad would not have felt that the accused went towards Zahir to save him. The FIR Exh. 36 shows that after the dash was given, Zahir started abusing all the accused persons and only thereafter, the accused persons assaulted him with weapons. jfoanz vkacsjdj 20 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 :::
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17. The next question that falls for our determination is whether on the above findings the trial Judge was justified in convicting the appellant under Section 302 simpliciter of IPC, after having acquitted the other three accused who along with the appellant were being tried under Section 302 IPC with the aid of Section 34 IPC. This aspect of the matter assumes importance as PW 10 Dr. Lohare found many injuries on the person of the deceased. We have reproduced the evidence of PW 1 Arfad which shows that the appellant only inflicted injury with knife on the neck of Zahir. On going through his evidence and the FIR Exh. 36, it is seen that thereafter the appellant has not inflicted any injury on the deceased. PW 10 Dr. Lohare has stated that the cause of death is due to multiple stab injuries with head injury. In other words, in view of the opinion of the Doctor, it cannot be conclusively inferred that the death of Zahir was caused due to the injury inflicted by the appellant alone so as to make him liable under Section 302 simpliciter. In such case, the question arises whether the appellant can be convicted jfoanz vkacsjdj 21 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc under Section 302 of IPC notwithstanding the acquittal of the other accused.
18. In Maina Singh Vs. State of Rajasthan 2, a question arose as to whether an accused who faced trial with four others on charges under Section 302 of IPC read with Section 149 of IPC could be convicted under Section 302 of IPC read with Section 34 of IPC, if the other four were acquitted. In deciding the question, the Supreme Court considered earlier cases which dealt with similar question and held :
" As has been stated, the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co-accused, and with no other person. The trial in fact went on that basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So when the other four co-accused have been given the benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased. It was as such not permissible to invoke Section 149 or Section 34 IPC. Maina Singh would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.
2 (1976) 2 SCC 827 jfoanz vkacsjdj 22 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc
19. A similar question again came up for consideration before the Supreme Court in the case of Piara Singh v.
State of Punjab3. The Supreme Court quoted with approval Maina Singh's case (supra) and applying the principle laid down therein in the facts of the case presented before it observed as under:
" The position as it stands on the face of the prosecution case as disclosed in the Court is that only five named and known persons including Piara Singh participated in the murderous assault on the deceased of which four have been acquitted which would lead to the natural presumption that the other four accused persons were not there. In these circumstances, therefore, the conclusion is inescapable that Piara Singh alone cannot be convicted under Section 302 with the aid of Section
34. The appellant, Piara Singh would only be liable for the individual act which he may have committed in respect of the assault on the deceased.
Similar view was taken by the Supreme Court in the case of Gurdial Singh Vs. State of Punjab4. In the case of Gurdial, three accused persons killed the deceased by firing shots from their respective guns. Four firearms injuries were found on the body of the deceased. According to the 3 (1980) 2 SCC 401 4 AIR 1995 SC 2468 : 1995 SCC (Cri) 947.jfoanz vkacsjdj 23 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 :::
cri apeal 1314-13 (j).doc medical report, all the four injuries collectively were sufficient to cause the death. Two of the accused persons were acquitted and only one accused who fired two shots from his gun was convicted under Section 302 of IPC. The Supreme Court observed that the medical evidence did not state that the injuries caused by the convicted accused i.e third accused were sufficient to cause death. The Supreme Court further observed that as the prosecution led evidence to prove that only the three arraigned persons were responsible for the murder and the acquittal is not based on the ground of mistaken identity the appellant would be liable for his individual act only which unmistakably makes out, in view of the weapon used by him and the nature of injuries caused, an offence under Section 326 IPC.
20. Similar view was taken by the Supreme Court in the case of Baul & Anr. Vs. State of U.P. 5. The appellants were father and son. They were prosecuted with one Ramdeo. The Sessions Judge accepted the evidence of eye 5 AIR 1968 SC 728 jfoanz vkacsjdj 24 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc witnesses and convicted all the three accused under Section 302 r/w 34 of IPC. On appeal, Ramdeo was acquitted and the conviction of Baul was altered to Section 325 r/w 109 of IPC and he was sentenced to 5 years R.I. As far as the accused Sadhai was concerned, the conviction was altered from Section 302 r/w 34 of IPC to Section 302 simpliciter. The submissions made by the learned counsel for Sadhai as are reflected in paragraph 7 of the decision in the case of Baul are as under:-
"7. The next submission of Mr. Chakravarty needs some attention. According to Mr. Chakravarty, the offence charged against Sadhai was commission of murder in furtherance of the common intention of two persons, that is, himself and Ramdeo. The Sessions Judge held that both had taken part in the assault in furtherance of a common intention and logically the Sessions Judge was right in his conclusion that if there was a common intention both Sadhai and Ramdeo were responsible for the offence of murder. When the High Court acquitted the other accused (Ramdeo) the High Court converted the conviction from Section 302 r/w 34 to Section 302 simpliciter. In other words, the High Court held Sadhai responsible for all the injuries which had been caused to the deceased. Mr. Chakravarty submits that in a case of this type where four blows were hit on the head by two persons, it would be difficult to say who hit which blow and whether whose blow or blows was responsible for the fracture of the skull. He contends that if Section 34 was available, this jfoanz vkacsjdj 25 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc argument would not be open, but in the absence of common intention, the prosecution case cannot be held proved against Sadhai and he made responsible for all that was caused to the deceased. He submits that there should be some evidence to show that the injury which Sadhai caused to the deceased was at least one of the two major injuries and not one of the two minor injuries. According to him, this raises a doubt in his case and Sadhai's offence cannot be under Section 302 simpliciter. "
In view of the submissions made in relation to accused Sadhai, the Supreme Court observed in paragraph 8 as under:-
"8. No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathies. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which would being his case within S. 302............... it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of S. 302 for an offence under S. 325, Indian Penal Code jfoanz vkacsjdj 26 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years. "
21. As far as the present case is concerned, it was specifically the prosecution case that the appellant along with his father and two brothers that is accused Nos. 2, 3 and 4 caused the death of Zahir by assaulting him with knives. A number of injuries are found on the body of the deceased. According to PW 10 Dr. Lohare , the cause of death was due to multiple stab injuries and head injury. The evidence of PW 1 Arfad shows that the appellant only inflicted a blow with knife on the neck of Zahir. After the appellant inflicted the blow on the neck of Zahir with knife, the other accused i.e accused Nos. 2, 3 and 4 assaulted Zahir with sharp weapons on the chest. Thereafter, PW 1 Arfad inquired from the accused as to why they were assaulting Zahir, however, the appellant threatened PW 1 Arfad, hence, Arfad got frightened and went to his house. This shows that except one blow on the neck with knife, the appellant did not cause any other injury to Zahir. It was not the case of the prosecution that in addition jfoanz vkacsjdj 27 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc to these accused persons, there were any other unknown accused persons or any other accused. It is the categorical case of the prosecution that only accused Nos. 1 to 4 assaulted Zahir, hence, charge was framed against these four accused under Sections 302 r/w 34 of IPC, however, as stated earlier, accused Nos. 2, 3 and 4 have been acquitted and only the appellant came to be convicted under Section 302 simpliciter. Learned APP tried to contend that the evidence of PW 1 Arfad shows that while Arfad was going away from the spot, he saw the accused persons assaulting Zahir with knives. It was, thus, submitted that the appellant in addition to the blow on the neck gave other blows to Zahir. However, from the FIR, it is quite clear that the appellant only assaulted Zahir on the neck with a knife. The FIR shows that after the appellant assaulted Zahir on the neck with a knife, the other accused assaulted Zahir on the chest, stomach and other parts of the body. Then Arfad enquired why they were assaulting Zahir whereupon the appellant threatened Arfad and pushed him aside. Arfad got jfoanz vkacsjdj 28 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc frightened and went home. No doubt, Arfad has stated that while going, he saw the accused persons assaulting Zahir with knife, however, the FIR Exh. 36 shows that after the appellant assaulted Zahir with knife on the neck, accused No. 3 Dastagir assaulted Zahir on the chest and accused Nos. 2 and 4 i.e Husen and Hanif assaulted Zahir on the stomach, neck and other parts of the body. Thereafter, Arfad questioned why they were assaulting whereupon the appellant threatened and pushed him. Arfad has specifically stated in his FIR that hence, he got frightened and while he was proceeding home "the above three accused" i.e accused Nos. 2, 3 and 4 were assaulting Zahir. Arfad has specifically used the words "the above three accused" were assaulting Zahir. The appellant is not included in the above three accused. This shows that after assaulting Zahir on the neck, the appellant did not again assault Zahir.
22. Thus, in the context of principle of law laid down in the cases referred above, the conclusion is inevitable that the jfoanz vkacsjdj 29 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc appellant before us cannot be convicted under Section 302 simpliciter as the prosecution led evidence to prove that only the four arraigned persons were responsible for the murder and the acquittal of the other three accused is not based on the ground of mistaken identity but on the ground that it was the appellant alone who assaulted Zahir. However, it is not borne out by the evidence that the appellant alone assaulted Zahir. The appellant would, therefore, be liable for his individual act only which is a stab wound on the neck of the deceased. Zahir has sustained stab wounds also on the chest and on the stomach. These injuries are not attributable to the appellant. Thus, in view of the facts of this case and the decisions referred to above, the appellant would be liable for his individual act only i.e stab wound on the neck.
23. Learned counsel for the appellant submitted that the appellant had given only one blow with knife. He relied upon the decision of the Supreme Court in the case of Mavila jfoanz vkacsjdj 30 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc Thamban Nambiar Vs. State of Kerala 6. In the said case, the appellant had caused stab injuries on the right side of the chest as well as right cheek with scissor. The Supreme Court negated the contention that the appellant had committed the act in exercise of right of private defence, however, the Supreme Court held that the appropriate conviction would be under Section 304 Part II of IPC and sentenced the appellant to R.I. for seven years.
24. In view of above discussion and for the reasons mentioned above, we hold that the appellant can be held responsible only for his act i.e assault on the neck, hence, we set aside the conviction and sentence of the appellant under Section 302 of IPC, instead, the appellant is convicted under Section 304 Part II of IPC.
25. On the point of sentence, the learned counsel for the appellant has produced two certificates of good behaviour issued by the Superintendent of Nasik Road Central Prison 6 (2009) 17 SCC 441 jfoanz vkacsjdj 31 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 ::: cri apeal 1314-13 (j).doc where the appellant is lodged. These certificates are dated 20.7.2014 and 7.8.2015. In short, these certificates of good behaviour state that the behaviour, work and the adjustment of the appellant with the institution (jail) is good. The appellant does social work in addition to the work of the prison assigned to him. He has realization of his responsibilities and is enthusiastic in rendering services to his co-convicts. The appellant also helps the administration in maintaining health and cleanliness in the wards. Learned APP has verified and stated that indeed the said certificates of good behaviour were issued to the appellant. Looking to the conduct of the appellant in prison and the other facts and circumstances of this case, for the altered conviction of Section 304 (II) of IPC, the appellant is sentenced to suffer R.I. for a period of six years and fine of Rs. 50,000/-, in default R.I. for one year.
26. The conviction and sentenced imposed by the learned Sessions Judge under Section 506(II) of IPC is maintained. jfoanz vkacsjdj 32 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 :::
cri apeal 1314-13 (j).doc
27. Both the substantive sentences of imprisonment under Section 304 (II) and 506 (II) of IPC to run concurrently. The appellant is entitled to set off as per law.
28. The fine amount if deposited by the appellant be paid to the wife of deceased Zahir namely Rubina Zahir Patel towards compensation after appeal period is over.
29. The appeal is partly allowed to the aforesaid extent. [ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ] jfoanz vkacsjdj 33 ::: Uploaded on - 23/02/2017 ::: Downloaded on - 24/02/2017 00:51:54 :::