High Court
Legal Reasoning
Criminal Appeal No.303/2017:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.303 OF 2017Aslam s/o Babulal Shaikh,Age 23 years, Occu. Labourer,R/o Karanji, Tq. Kopergaon,District Ahmednagar… APPELLANTVERSUSThe State of MaharashtraThrough the Police Station Officer,Police Station, Kopergaon,Tq. Kopergaon, Dist. Ahmednagar(Copy to be served on the Public Prosecutor, High Court of Judicature at Bombay,Bench at Aurangabad… RESPONDENT.......Mr. S.J. Salunke, Advocate for appellant Mr. S.D. Ghayal, Addl. P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 5th January, 2024Date of pronouncing judgment : 10th January, 2024JUDGMENT (PER R.G. AVACHAT, J.) The challenge in this appeal is to a judgment and orderdated 29/6/2017, passed by learned 2nd Additional SessionsJudge, Kopargaon in Sessions Case No.58/2016. Vide impugnedjudgment and order, the appellant has been convicted for offence
Legal Reasoning
Criminal Appeal No.303/2017:: 2 ::punishable under Section 302 of the Indian Penal Code andsentenced to undergo imprisonment for life with fine of Rs.2000/-, indefault to undergo rigorous imprisonment for six months. FACTS2.The appellant along with his parents was tried foroffences punishable under Sections 302, 323, 504 read withSection 34 of the Indian Penal Code. The parents of the appellanthave been acquitted. The State has not preferred appeal againsttheir acquittal.3.The case of the prosecution in brief is that, it was a dayof Ramazan Eid. There is a Masjid, “Jama Masjid” at village KaranjiBk., Taluka Kopargaon, District Ahmednagar. Most of the Muslim(male) persons of the village had been to the Masjid to offerprayers. It was about 10.00 a.m., after prayers were over, most ofthem left the Masjid. About 52 acres of land belongs to Masjid(Wakf). Most of the land was given to Muslim persons forcultivation. Babulal, father of the appellant was, as such, given 1acre of land. He had sold it to one Aarne of village Shirdi. Officebearers of the Wakf had, therefore, preferred an application to theWakf Board. It was allowed. Shri Aarne had to return the land tothe Masjid. It was in the year 2007, a Trust (Wakf) was formed andregistered. Ayub Banemiya (P.W.3) was the President and Hyder Criminal Appeal No.303/2017:: 3 ::Shaikh (deceased) was the Vice President. 5 more persons werethe trustees. 4.Shabbir Shaikh (P.W.1), who is brother of Hyder(deceased), Babulal, his son Aslam (appellant) and 6 – 7 othersremained in the Masjid to discuss over the land for “Kabrastan”.Babulal and the appellant questioned as to why a land is proposedto be bought for Kabrastan when the Masjid (Wakf) held a lot ofland. They also asked for accounts of the funds of the Wakf. Aquarrel, therefore, ensued between Babulal and appellant on onehand and the deceased on the other. Meanwhile, the mother of theappellant too came there. Persons became physical with eachother (short of scuffle). The appellant allegedly went to his house inthe nearby of the Masjid and returned with a Gupti like weapon. Hegave two blows near right ribs of Hyder. Hyder fell down. Theappellant and his father thereafter went away.5.Hyder was rushed to local hospital. Since his conditionwas serious, he was shifted to Critical Care Hospital at Kopargaon.P.W.1 Shabbir, in the meanwhile, approached the Police Stationand lodged F.I.R. (Exh.10). Crime vide C.R. No.85/2016 for offencepunishable under Sections 307, 323, 504, read with Section 34 ofthe Indian Penal Code came to be registered against the appellantand his parents. Hyder succumbed to the injuries. Section 302 of Criminal Appeal No.303/2017:: 4 ::the Indian Penal Code, therefore, came to be invoked.6.P.W.8 Shahaji (Police Inspector) was entrusted with theinvestigation. He paid visit to the scene of offence. Crime scenepanchanama (Exh.25) was drawn. The appellant was arrested.Pursuant to the disclosure statement made by him, a knife came tobe recovered. The dead body was subjected to post mortemexamination. Statements of persons acquainted with the facts andcircumstances of the case were recorded. On completion of theinvestigation, the appellant and his parents were proceeded againstby filing the charge sheet. 7.Learned Additional Sessions Judge (Trial Court) framedthe Charge (Exh.5). The appellant and others pleaded not guilty. Itwas their defence that, in view of a long standing enmity, a falsecrime has been registered. Hyder died of injuries suffered onaccount of his fall on the iron rods lying in the Masjid premises forconstruction purpose.8.To brine home the charge, the prosecution examined 8witnesses and produced in evidence certain documents. Learnedtrial Court, by the judgment and order, convicted the appellant andsentenced as stated above.9.Heard. Learned counsel for the appellant would submit Criminal Appeal No.303/2017:: 5 ::that, the so called eye witnesses examined in proof of a chargewere inimical with the appellant and his family members. Thedispute over affairs of the Wakf was there. Learned counsel tookus through the evidence of P.W.2 Altaf to suggest that, both Altafand P.W.1 Shabbir (informant) were present at one of the shopblocks outside the Masjid. They entered the Masjid only afterhearing cries. The informant is none other than the real brothers ofthe deceased. His claim to have had witnessed the incident stoodfalsified by the evidence of P.W.2 Altaf. The trial Court has,therefore, rightly not believed the evidence of both these witnesses.According to learned counsel, then remained the evidence of P.W.3Ayyub. This witness too was inimical with the deceased. He hadlodged a police report against the appellant and his father one yearbefore the incident. This witness claims to have had shifted theinjured to the hospital. There was admittedly profused bleeding.Had P.W.3 Ayyub really been there to take the deceased to thehospital, clothes on his person must have stained with blood. Theinvestigating officer did not seize his clothes nor did he (P.W.3Ayyuub) offered the same to the investigating officer. So far asregards recovery of knife pursuant to disclosure statement isconcerned, the learned counsel would submit that, the ChemicalAnalyser’s report indicates no blood grouping of the blood stainsfound on the said article could be determined. According to him, it Criminal Appeal No.303/2017:: 6 ::is the case of the prosecution that an assault was made with aweapon like Gupti. The article before the Court is a knife. Ourattention has also been adverted to the evidence of the MedicalOfficer (P.W.6 Dr. Krishna), who conceded to the suggestions thatthe injuries found on the person of the deceased could be possibleif iron rod gets pierced in a body. In support of his submissions, thelearned counsel relied on the following authorities :(1)State of Rajasthan Vs. Teja Singh [2001 ALL MR (Cri) 994 ]Alleged eye witness stated that she had lifted the body of thedeceased which was bleeding and her clothes had becomeblood stained. Investigating Officer failed to recover the saidclothes giving room for a genuine complaint that her presenceis doubtful.(2)State of Punjab Vs. Harbans Singh & anr. [(2003) 11 SCC 203]Non-examination of independent witness, certainly throwsconsiderable doubt on prosecution case. (3)Kalyan Deorao Sawase Vs. State of Maharashtra2022 Cri.L.J. 1088Mere recovery of a weapon/ article on the disclosure statementgiven by the accused u/sec. 27 of the Evidence Act is a weakkind of evidence and cannot be wholly relied upon andconviction cannot be based upon discovery.(4)Pophlya Motya Valvi Vs. State of Maharashtra1979 Cri.L.J. 1310Blood stains on the clothes of agriculturist would hardly provideany incriminating evidence. (5)State of U.P. Vs. Mohd. Iqram & anr. [2011 AIR SCW 3844]Circumstances not put to accused in his examination u/sec.313of Cr.P.C. cannot be used against him. Criminal Appeal No.303/2017:: 7 ::10. The learned Addl. P.P. would, on the other hand, submitthat presence of P.W.3 Ayyub at the scene of offence has not beendisputed. He took us through the reasons given by the trial Court forconvicting the appellant. According to learned Addl. P.P., theevidence on record has rightly been appreciated. No case forinterference with the impugned judgment and order is, therefore,warranted. Learned Addl. P.P. ultimately urged for dismissal of theappeal.11.We have considered the submissions advanced. Letus turn to the evidence on record. It was Ramazan Eid. Most ofthe Muslim persons of village Karanji had gathered in Jama Masjid,at the village to offer prayers. It was little past 10.00 a.m. on7/7/2016, after prayers were over, most of the persons went away.Admittedly, deceased Hyder suffered the injuries in an incident thatoccurred in Masjid after prayers were over. The question is,whether deceased met with homicidal death or was it an accidentas has been suggested by learned counsel for the appellant. Postmortem report (Exh.31) records the cause of death as, “Hypovulmicshock due to lung injury”. Clause 17 of the post mortem reportindicates Hyder to have suffered following surface injuries :-(1)Stapled sutured operative wound on right side of chestwall starting from mid posterior axillary line of 7th ribdirectly forward downward towards mid line up to midclavicular line up to 10th rib, 42 cm. in length and 2 cm. Criminal Appeal No.303/2017:: 8 ::in width.(2)Sutured stapled wound right infra scapular areahorizontal.(3)Sutured stapled operative wound on back of postalmargin 5 x 1 cm.(4)Operated drained output of injury axillary line on 10th rib3 x 2 cm., bleeding.12.P.W.6 Dr. Krishna had conducted the post mortemexamination. He admitted the suggestions given to him in hiscross-examination to the effect that, Injury Nos.1 and 2 may bepossible by insertion of an iron rod. Dr. Krishna’s evidence doesnot, therefore, lead us to infer the deceased to have died as a resultof stab injuries. We have, therefore, to advert to the eye witnessaccount.13.P.W.1 Shabbir (informant) is a real brother of thedeceased. He may, therefore, be said to be an interested witness.In his examination-in-chief, he narrated the incident. It is in hisevidence that, after an oral wrangle between the deceased on onehand and the appellant and his father on the other, the appellantwent home and came back with a Gupti like weapon. He did notsay it was a Gupti. It is further in his evidence that, the appellantgave two blows with the said weapon.14.We do not propose to refer to evidence of P.W.1 Criminal Appeal No.303/2017:: 9 ::Shabbir in extenso in view of evidence of P.W.2 Altaf being grosslyinconsistent with material particulars of the evidence of P.W.1Shabbir.15.P.W.2 Altaf testified that, after the prayers were over on7/7/2016, he was present at one of the shop blocks outside theMasjid. P.W.1 Shabbir was with him. On hearing the shouts/ noiseemanating from the Masjid, both of them went in. He saw Hyder(deceased) lying on the ground. Both Ayyub and Banemiya liftedhim. He and Shabbir assisted Ayyub and Banemiya to make Hydersit on the motorbike. Shabbir (P.W.1) sat on the motorbike to holdHyder. Altaf was riding the motorbike. Hyder was first rushed to alocal hospital. He did not accompany them to the local hospital.Hyder was then shifted to a hospital at Kopargaon. He went toKopargaon.16.Close reading of the cross-examination of P.W.3 Ayyubindicates that, what has been deposed to in his examination-in-chiefhas not at all been denied or taken exception to. True, it has comeon record during the cross-examination of P.W.1 to P.W.3 that,females are not allowed to enter Masjid for prayers and no weaponis allowed to be carried there. Our attention has also been drawn tothe scene of offence panchanama (Exh.25) to suggest the buildingmaterial like sand and iron rods were stored in the Masjid. P.W.2 Criminal Appeal No.303/2017:: 10 ::Altaf admitted that, place whereat Hyder was lying had blood stains.Clothes on the person of Ayyub and Banemiya were blood stained.It is reiterated that, whato has been deposed by P.W.2 Altaf inhis examination-in-chief has not at all been traversed in hiscross-examination. Although his evidence falsifies P.W.1 Shabbirto have been inside the Masjid while the incident took place, hisevidence (P.W.2 Altaf) goes a long way to establish that while heentered the Masjuid, P.W.3 Ayyub and Banemiya lifted Hyder andtook him to a local hospital on a motorbike. As such, presence ofP.W.3 Ayyub at the time of the incident in Masjid gets established. 17.Let us now turn to the evidence of P.W.3 Ayyub. It is inhis evidence that, after the prayers were over, 7 – 8 personsremained behind. Others left the Masjid. Deceased Hyder,Banemiya, Mukhtar, he himself, appellant and his father remainedbehind. A discussion over shortage of land for Kabrastan was thereamongst the persons present in the Masjid. The appellant and hisfather asked Hyder to return 1 acre land to them. A quarrel,therefore, ensued between appellant and his father on one handand the deceased on the other. Parties became physical with eachother (scuffled). The father of the appellant caught hold of collar ofthe father of P.W.3 Ayyub. The appellant assaulted Hyder with aknife (Sura). He gave two blows therewith. Hyder fell down. Hewas shifted to a local hospital of Dr. Jadhav and then taken to Criminal Appeal No.303/2017:: 11 ::Critical Care Centre at Kopargaon.18.In the cross-examination of P.W.3 Ayyub, it has comeon record that, there was profused bleeding. In the first breath hestated that clothes on his person were stained with blood. He thenchanged his version to state that only his hands were stained withblood. Our attention has also been drawn to the scene of offencepanchanama and the photographs thereof to indicate the presenceof P.W.3 Ayyub thereat. His evidence also indicates that he met theinvestigating officer after Hyder breathed his last. For the next 5 –6 days, he was in the village itself. He also admitted to have hadlodged police report against the appellant and his father about oneand a half year before the incident. The said report was in relationto a quarrel over a lavatory of Masjid.19.The question is, whether conviction can be sustainedon the sole testimony of P.W.3 Ayyub. At the cost of repetition, it isstated that, presence of this witness in the Masjid at the very time ofincident has been proved by the evidence of P.W.2 Altaf. P.W.1 toP.W.3 are the cousins of the appellant. There was no family feud.A dispute was over management of the affairs of the Wakf. Noquestions were put to P.W.3 Ayyub and/or the investigating officeras to how many days after the incident his statement was recorded.No question was put to P.W.3 Ayyub in his cross-examination to Criminal Appeal No.303/2017:: 12 ::dispute his presence in the Masjid at the relevant time. It being aRamazan Eid, almost all the Muslims were expected to be in theMasjid to offer prayers. Accordingly, all of them were there.Nothing has been brought on record by the defence to suggestP.W.3 Ayyub was elsewhere at the relevant time. The defence thatthe deceased suffered injuries as a result of fall on iron rod doesnot appeal. The deceased suffered 4 injuries. 2 or 3 of them couldbe said to have been possibly caused if iron rod gets pierced. Forcausing such kind of injuries, a fall of a person has to be on ironrods standing vertical and not lying flat. True, no weapon ispermitted to be carried inside of Masjid. There is, however, nothingto indicate that persons entering the Masjid were first frisked at thegate and whatever impermissible to be carried in is required to beremoved. The fact remains that, the appellant must have with hima knife like weapon with which he gave two blows. Theinvestigating officer was also not questioned as to why did he notseize blood stained clothes of the persons who claim to haverushed Hyder to the local hospital. 20.So far as regards the evidence of seizure of knifepursuant to the disclosure statement is concerned, we are notinclined to give much importance thereto since blood group of theblood stains found thereon could not be ascertained. C.A. report inthat regard is inconclusive. The C.A. reports though admitted in Criminal Appeal No.303/2017:: 13 ::evidence have not been put to the appellant during his examinationunder Section 313 of the Code of Criminal Procedure.21.So far as regards the authorities (supra) relied on bylearned counsel for the appellant are concerned, we need toobserve that the each prosecution case is decided on peculiar factsand circumstances appearing therein. The facts of Teja Singh(supra), it was an appeal against acquittal. It has been observed inpara No.4 of the said judgment as under : “4.We have examined the evidence of the threeeye-witnesses as also that of Iqbal Singh (PW-10)the Investigating Officer. We have also perusedthe evidence of Ram Pratap, Sarpanch (DW-1)and we do not find any reason to differ with thefinding of the High Court which sitting as the firstCourt of appeal on facts, had every right to re-appreciate the evidence. In our opinion, the HighCourt, in that process, has not committed anyerror. As a matter of fact, the explanation putforth by the learned counsel in regard to the delayin the F.I.R. reaching the court is not tenablebecause assuming that there were some Courtholidays that cannot be a ground for the delay inthe F.I.R. reaching the Magistrate, becauserequirement of law is that the F.I.R. should reachthe concerned Magistrate without any unduedelay. We are of the opinion that the explanationgiven by the prosecution regarding the delay inthe F.I.R. reaching the Magistrate is neitherconvincing nor acceptable.”22.So far as regards judgment in Harbans Singh (supra) is Criminal Appeal No.303/2017:: 14 ::concerned, the prosecution witnesses and the respondents belongto different political fractions. They were not on friendly terms.P.W.4 and P.W.11 therein were found to be partisan witnesses.We reiterate that, there can hardly be a precedent in a criminalcase based on facts.23.We reach the conclusion that, uncontroverted evidenceof P.W.2 Altaf makes out the presence of P.W.3 Ayyub in the Masjidwhile the incident took place. No particular number of witnessesare required to prove a fact in issue. Although P.W.3 was not onfriendly terms with the deceased, the reason therefor was notpersonal. The defence version that the deceased died on accountof his accidental fall on iron rods is highly improbable. As such, itwas a case of culpable homicide. Now the question is whether it isa murder or culpable homicide not amounting to murder. 24.We, therefore, need to advert to Sections 299 and 300of the Indian Penal Code, which read thus :299. Culpable homicide.— Whoever causes death bydoing an act with the intention of causing death, orwith the intention of causing such bodily injury as islikely to cause death, or with the knowledge that he islikely by such act to cause death, commits the offenceof culpable homicide.300. Murder.— Except in the cases hereinafterexcepted, culpable homicide is murder, if the act bywhich the death is caused is done with the intention of Criminal Appeal No.303/2017:: 15 ::causing death, or— 2ndly.— If it is done with the intention of causing suchbodily injury as the offender knows to be likely tocause the death of the person to whom the harm iscaused, or— 3rdly.— If it is done with the intention of causingbodily injury to any person and the bodily injuryintended to be inflicted is sufficient in the ordinarycourse of nature to cause death, or— 4thly.— If the person committing the act knows that itis so imminently dangerous that it must, in allprobability, cause death, or such bodily injury as islikely to cause death, and commits such act withoutany excuse for incurring the risk of causing death orsuch injury as aforesaid.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception 4.-- Culpable homicide is not murder if it iscommitted without premeditation in a sudden fight inthe heat of passion upon a sudden quarrel and withoutthe offender having taken undue advantage or acted ina cruel or unusual manner.25.There is nothing to indicate the offence to have beencommitted with premeditation. The incident was preceded by aquarrel and even manhandling between the parties. The appellantfished out a knife like weapon and gave its two blows. The incidenttook place in a spur of moment. The appellant cannot be said tohave had intended to commit murder of Hyder. All of them had Criminal Appeal No.303/2017:: 16 ::been to the Masjid to offer prayers. The appellant’s case getscovered by Exception 4 to Section 302 of the Indian Penal Code.The nature of injuries suffered and it being a case of two blows, thecase falls in Part I of Section 304 of the Indian Penal Code sinceintention to kill is there. The Apex Court, in case of AnbazhaganVs. The State, represented by the Inspector of Police (CriminalAppeal No.2043/2023, decided on 20/7/2023, observed :-“60. Few important principles of law discernible fromthe aforesaid discussion may be summed up thus:- (1) When the court is confronted with the question,what offence the accused could be said to havecommitted, the true test is to find out the intention orknowledge of the accused in doing the act. If theintention or knowledge was such as is described inClauses (1) to (4) of Section 300 of the IPC, the act willbe murder even though only a single injury wascaused. . . . . . (2) Even when the intention or knowledge of theaccused may fall within Clauses (1) to (4) of Section300 of the IPC, the act of the accused which wouldotherwise be murder, will be taken out of the purview ofmurder, if the accused's case attracts any one of the fiveexceptions enumerated in that section. In the event ofthe case falling within any of those exceptions, theoffence would be culpable homicide not amounting tomurder, falling within Part 1 of Section 304 of the IPC,if the case of the accused is such as to fall withinClauses (1) to (3) of Section 300 of the IPC. It would beoffence under Part II of Section 304 if the case is suchas to fall within Clause (4) of Section 300 of the IPC.Again, the intention or knowledge of the accused maybe such that only 2nd or 3rd part of Section 299 of the Criminal Appeal No.303/2017:: 17 ::IPC, may be attracted but not any of the clauses ofSection 300 of the IPC. In that situation also, theoffence would be culpable homicide not amounting tomurder under Section 304 of the IPC. It would be anoffence under Part I of that section, if the case fallwithin 2nd part of Section 299, while it would be anoffence under Part II of Section 304 if the case fallwithin 3rd part of Section 299 of the IPC.(3). . . . . . . . . . . . (4). . . . . . . . . . . . (5) Section 304 of the IPC will apply to the followingclasses of cases: (i) when the case falls under one or theother of the clauses of Section 300, but it is covered byone of the exceptions to that Section, (ii) when theinjury caused is not of the higher degree of likelihoodwhich is covered by the expression 'sufficient in theordinary course of nature to cause death' but is of alower degree of likelihood which is generally spoken ofas an injury 'likely to cause death' and the case does notfall under Clause (2) of Section 300 of the IPC, (iii)when the act is done with the knowledge that death islikely to ensue but without intention to cause death oran injury likely to cause death.To put it more succinctly, the difference between thetwo parts of Section 304 of the IPC is that under thefirst part, the crime of murder is first established and theaccused is then given the benefit of one of theexceptions to Section 300 of the IPC, while under thesecond part, the crime of murder is never established atall. Therefore, for the purpose of holding an accusedguilty of the offence punishable under the second part ofSection 304 of the IPC, the accused need not bring hiscase within one of the exceptions to Section 300 of theIPC.” We are, therefore, inclined to partly allow the appeal. Criminal Appeal No.303/2017:: 18 ::The appellant is in jail since the day of his arrest except his releaseon provisional bail on account of Covid-19. As such, he is actuallyin jail for little over 6 years. We, therefore, propose to sentence himto rigorous imprisonment for a period of eight years with noalteration in the amount of fine imposed by the trial Court.26.In the result, the appeal partly succeeds. Hence theorder : O R D E R(i)The Criminal Appeal is partly allowed.(ii)The order of conviction and the consequential sentence ofthe appellant for offence punishable under Section 302 of the IndianPenal Code, passed by learned 2nd Additional Sessions Judge,Kopargaon in Sessions Case No.58/2016 vide judgment and orderdated 29/6/2017, is hereby set aside. Instead, the appellant isconvicted for the offence punishable under Section 304 (Part I) ofthe Indian Penal Code and therefore sentenced to suffer rigorousimprisonment for eight years and to pay fine of Rs.2000/- (Rupeestwo thousand).(iii)Rest of the terms of the impugned order of conviction andsentence to stand unaltered. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-