High Court
Facts
APEAL-841-15.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 841 OF 2015AND CRIMINAL APPLICATION NO. 4902 OF 20241. Yahya Khan Kayyum Khan Pathan Age: 30 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad2. Shiraj Khan Kayyum Khan Pathan Age: 28 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad..APPELLANTSVERSUSState of Maharashtra..RESPONDENTAND CRIMINAL APPEAL NO. 846 OF 20151. Shaheenbee Kayyum Khan Pathan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad2. Naeembee Nawaj Khan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad3. Hameed Khan Daud Khan Copdar Age: 52 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad4. Sharookh Hameed Khan Age: 19 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad5. Abubakar Jabbar Khan Pathan Age: 22 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad6. Husen Khan Nawaj Khan Age: 45 years, Occu.: Business,1 / 21 APEAL-841-15.odt R/o Near Waluj Jama Masjid, Aurangabad..APPELLANTSVERSUSState of Maharashtra..RESPONDENTAND CRIMINAL APPEAL NO. 847 OF 20151. Kayyum Khan Mehtab Khan Age: 55 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad2. Ayyub Khan Noor Khan Chopdar Age: 46 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad..APPELLANTSVERSUSState of Maharashtra..RESPONDENTAND CRIMINAL APPEAL NO. 835 OF 20151. Rizawan Rashid Pathan Age: 23 years, Occu.: Service, R/o Waluj, Tq. Gangapur, Dist. Aurangabad2. Ejajkhan Asmatkhan Pathan Age: 32 years, Occu.: Contractor, R/o Ganesh Colony, Aurangabad3. Shaikh Firoj Shaikh Yusuf Age: 33 years, Occu.: Business, R/o Indira Nagar, Baijipura, Lane No.20, Aurangabad4. Asiyabegum Rashidkhan Pathan Age: 48 years, Occu.: Household, R/o Jama Masjid, Waluj, Tq. Gangapur, Dist. Aurangabad5. Aslam Asmatkhan Age: 34 years, Occu.: Contractor, R/o Rahemaniya Colony, Aurangabad2 / 21 APEAL-841-15.odt6. Khalilkhan Habibkhan Age: 45 years, Occu.: Centering Work, R/o Waluj, Tq. Gangapur, Dist. Aurangabad..APPELLANTSVERSUS1. Kayyum Khan Mehtab Khan Age: 55 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad2. Nawaj Khan Nabab Khan Pathan (Abated)3. Ayyub Khan Noor Khan Chopdar Age: 46 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad4. Shaheenbee Kayyum Khan Pathan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad5. Naeembee Nawaj Khan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad6. Hameed Khan Daud Khan Copdar Age: 52 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad7. Yahya Khan Kayyum Khan Pathan Age: 30 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad8. Sheraj Khan Kayyum Khan Pathan Age: 28 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad9. Shahrookh Hameed Khan Age: 19 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad3 / 21 APEAL-841-15.odt10. Abubakar Jabbar Khan Pathan Age: 22 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad11. Husen Khan Nawaj Khan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad12. State of Maharashtra Through : Waluj Police Station, Waluj, Dist. Aurangabad..RESPONDENTSAND CRIMINAL APPEAL NO. 880 OF 2015State of MaharashtraThrough Waluj Police Station,Dist. Aurangabad..APPELLANTVERSUS1. Kayyum Khan Mehtab Khan Age: 55 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad2. Nawaj Khan Nabab Khan Pathan (Abated)3. Ayyub Khan Noor Khan Chopdar Age: 46 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad4. Shaheenbee Kayyum Khan Pathan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad5. Naeembee Nawaj Khan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad6. Hameed Khan Daud Khan Copdar Age: 52 years, Occu.: Business,4 / 21
Legal Reasoning
APEAL-841-15.odtpole in one of the pits. Appellant – Yahya Khan came there and asked theinjured witnesses not to proceed with the work. They appear to have notlistened. The appellant admittedly arrived one after the other. Although oneof the appellants was said to have wielded gupti, the corresponding injury donot justify the same. None of the appellants had come with brandishingsharp weapon. Admittedly, one of the plots belong to appellant – KayyumKhan. Section 96 of the I.P.C. speaks of exercise of right of private defence,while Section 97 speaks of right of private defence of property, movable orimmovable, of himself or any other person against any act which is anoffence falling under definition of theft, robbery, mischief or criminal trespassor attempt to commit any of the corresponding offences. Section 441 of theI.P.C. defines criminal trespass to mean whoever enters into the property inpossession of another with intent to commit an offence or to intimidate, insultor annoy any person in possession of such property is said to commitcriminal trespass. In our view, entering into someone else’s propertyunauthorisedly (trespassing) with an intention to grab the same may be anoffence. Every person has a right to protect his property from beingunauthorisedly taken over and he should be justified in putting up theresistance to protect the property. It is said that the exercise of right ofprivate defence cannot be weighed in golden scale. Entering upon the plot ofthe appellants and keeping it in possession by the injured would be nothingshort of attributing knowledge to them that they thereby likely to causewrongful loss or damage to the plot owner/s (the appellants). Theingredients of offence of mischief also thereby get covered.17 / 21 APEAL-841-15.odt20.Although Section 300 of the I.P.C. defines the offence of murder,it is not without an exception. Exceptions 2 and 4 to Section 300 of the I.P.C.read thus :-Exception 2.—Culpable homicide is not murder if the offender, in theexercise in good faith of the right of private defence of person orproperty, exceeds the power given to him by law and causes the deathof the person against whom he is exercising such right of defencewithout premeditation, and without any intention of doing more harmthan is necessary for the purpose of such defence.Exception 4.—Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat of passion upon asudden quarrel and without the offender having taken undue advantageor acted in a cruel or unusual manner.In the case of Surinder Kumar vs. Union Territory,Chandigarh, AIR 1989 SC 1094, the Supreme Court, with regard toException 4 to Section 300 of the I.P.C., has observed as under :-“7. To invoke this exception four requirements must be satisfied,namely, (i) it was a sudden fight ; (ii) there was no premeditation ; (iii)the act was done in a heat of passion ; and (iv) the assailant had nottaken any undue advantage or acted in a cruel manner. The cause of thequarrel is not relevant nor is it relevant who offered the provocation orstarted the assault. The number of wounds caused during theoccurrence is not a decisive factor but what is important is that theoccurrence must have been sudden and unpremeditated and theoffender must have acted in a fit of anger. Of course, the offender mustnot have taken any undue advantage or acted in a cruel manner. Where,on a sudden quarrel, a person in the heat of the moment picks up aweapon which is handy and causes injuries, one of which proves fatal,he would be entitled to the benefit of this exception provided he hasnot acted cruelly.”21.In the case in hand, the appellants have acted in exercise of theirright of private defence of their self property. Accused Nos. 7 and 8 appear18 / 21 APEAL-841-15.odtto have exceeded the exercise of their right of defence of their property.Unfortunately, Mohsin lost his life. He suffered two injuries, one of whichproved fatal. As such, the appellants could be said, on preponderance ofprobabilities, to have proven their defence of exercise of right of defence ofproperty and the incident to have occurred in a spur of moment, falling withinException 4 to Section 300 of the I.P.C.22.Except original accused nos. 7 and 8 (Criminal Appeal No.841 of2015), none other appellants admittedly assaulted the deceased. Each ofthe appellant has his independent victim. Some of the injured sufferedinjuries to their vital parts, although simple in nature. Had these appellantsreally intended to commit murder of the other injured, they would not havestopped after each one making a single assault. They could have rainedblows to translate their intention into action. The trial Court has convictedthem for the offence punishable under Section 324 of the I.P.C. andsentenced them to suffer imprisonment for three years with fine. For overthirteen years have passed post incident. Pendency of these appeals wasnothing short of an hanging sword of an apprehension to the other appellantsof their sentence being enhanced with conviction for more grievous offence.Since the other appellants are also held to have exercised the right of privatedefence of property and even if for the sake of assumption and notacceptance, we consider the submissions of learned A.P.P. and learnedcounsel for the victim that it was an attempt on the life of the other injured.The same would, in view of Exceptions 2 and 4 to Section 300 of the I.P.C.,19 / 21 APEAL-841-15.odtbe an offence of attempt to commit culpable homicide punishable underSection 308 of the I.P.C. The punishment provided for the said offence isimprisonment of either description for a term which may extend to sevenyears or even with fine or with both. We, therefore, do not propose tointerfere with the impugned order of convicting the other appellants for theoffence punishable under Section 324 of the I.P.C. The trial Court hasobserved that these appellants had already undergone imprisonment duringinvestigation, enquiry and trial as well. The said period appears to havebeen more than three months against each of such appellants. We,therefore, propose to reduce the quantum of sentence to the period alreadyundergone, without there being any change in the quantum of fine and indefault sentence. The entire fine amount be paid to the widow of thedeceased as compensation. In the facts and circumstances of the case,prayer for additional compensation cannot be accepted.23.In view of above, we pass the following order :-ORDER(I)Criminal Appeal No. 841 of 2015 is partly allowed. Order dated03rd October, 2015 passed by the Court of Additional SessionsJudge, Vaijapur in Sessions Case, No. 116 of 2012 convicting andsentencing appellants - Yahya Khan Kayyum Khan Pathan andShiraj Khan Kayyum Khan Pathan is set aside.Instead, they are convicted for the offence punishable underSection 304 Part II of the Indian Penal Code, and therefore,sentenced to suffer R.I. for ten years. These appellants are behindthe bars since 2011. As such, they have served of entire20 / 21
Arguments
APEAL-841-15.odt R/o Near Waluj Jama Masjid, Aurangabad7. Yahya Khan Kayyum Khan Pathan Age: 30 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad8. Sheraj Khan Kayyum Khan Pathan Age: 28 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad9. Shahrookh Hameed Khan Age: 19 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad10. Abubakar Jabbar Khan Pathan Age: 22 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad11. Husen Khan Nawaj Khan Age: 45 years, Occu.: Business, R/o Near Waluj Jama Masjid, Aurangabad..RESPONDENTS....Mr. N.S. Ghanekar, Advocate for appellants in APEAL/841/15, 846/15,847/15 and APPLN/4902/24Mr. S.S. Halkude, Advocate for appellant in APEAL/835/15Mrs. S.N. Deshmukh, A.P.P. for appellant - State in APEAL/880/2015 and forrespondent – State in all other matters....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 27th FEBRUARY, 2025PRONOUNCED ON : 07th MARCH, 2025JUDGMENT ( PER : R.G. AVACHAT,J. ) :1.This group of five appeals is decided by this common judgmentsince the challenge therein is to one and the same judgment of conviction5 / 21 APEAL-841-15.odtand order of consequential sentence dated 03rd October, 2015 passed by theCourt of Additional Sessions Judge, Vaijapur (‘trial Court’) in Sessions Case,No. 116 of 2012. Criminal Appeal Nos. 841 of 2015, 846 of 2015 and 847 of2015 have been preferred against conviction while Criminal Appeal No. 880of 2015 by the State and Criminal Appeal No. 835 of 2015 by the victim, havebeen preferred for enhancement of sentence.2.The charge (Exh.52) was framed against eleven accusedpersons. Accused No.2 passed away pending trial. The case, therefore,stood abated against him. The prosecution examined twenty-two witnessesand adduced in evidence certain documents. The appellants/convictsexamined seven witnesses in their defence. On appreciation of the evidencein the case, the trial Court convicted the original accused nos. 7 and 8(Criminal Appeal No.841 of 2015) for offence punishable under Section 302of the Indian Penal Code (I.P.C.), and therefore, sentenced them to sufferimprisonment for life and to pay fine of Rs.2,000/- each with defaultstipulation. While rest of the accused were convicted for the offencepunishable under Section 324 of the I.P.C., and therefore, sentenced tosuffer rigorous imprisonment for three years and to pay fine of Rs.1,000/-each with default stipulation. All the accused persons, however acquitted ofthe offences punishable under Sections 143, 147, 148, 307, 326 read withSection 149 of the I.P.C. Except Accused Nos. 7 and 8, rest have also beenacquitted of the offence punishable under Section 302 of the I.P.C. Hence,all these appeals.6 / 21 APEAL-841-15.odt3.The facts, in brief giving rise to the present appeals are asfollows :-The appellants were residing near Jama Masjid, Waluj,Aurangabad. PW 2 – Rizwan (informant) alongwith his family memberswould also reside at Waluj. There is an open plot adjoining residence of theinformant. It was the case of the appellants/convicts that there was anotherplot adjoining the said plot. There was no boundary intervening the two plotsso as to identify ownership of the respective plots. On the given day i.e. on06th April, 2011 by little past 12:30 p.m., the informant and his familymembers brought construction material on the plot. They had already invitedtheir number of relations with a view to ensure that any objection raised tothe proposed construction shall be resisted. As such, the informant and hisfamily members and relations, who were more than 10-20 persons,assembled on the plot.4.Yahya Khan (original accused no.7) came on the plot and askedthem not to proceed with construction for erection of a shed. He claimed titleto the said plot. The other side did not listen. All the appellants, since havetheir respective residences adjoining the other plot, came on the site one byone. They were armed with knifes, sticks and kattis. Oral wrangle took placebetween the two factions. The appellants mounted attack. The appellants(Yahya Khan and Shiraj Khan) assaulted Mohsin. Other appellantsassaulted other injured on the vital parts of the body, either with knives orwith sticks. The appellants then left the site. The injured were rushed to7 / 21 APEAL-841-15.odtGhati hospital. Mohsin succumbed to the injuries. PW 2 – Rizwan lodgedthe F.I.R. (Exh.79).5.Crime, vide C.R. No.39 of 2011 was registered for the offencespunishable under Sections 302, 307, 326, 324, 143, 147, 148 and 149 of theI.P.C. Crime scene panchanama (Exh.77) was drawn. Mortal remains ofMohsin was subjected to inquest and autopsy as well. The appellants werearrested. Clothes on the persons of the appellants and deceased too, wereseized. Pursuant to the disclosure statements made by the appellants(Shainbi, Naimbi, Kayyum, Yahyakhan, Siraj, Ayyubkhan and Abubakar),weapons wielded in the incident were seized. All the seized articles weresent to R.F.S.L., Aurangabad. The C.A. reports were received. Statementsof the persons acquainted with the facts and circumstances of the case wererecorded. On completion of investigation, the appellants were proceededagainst by filing the charge-sheet.6.The charge (Exh.52) was framed. The appellants pleaded notguilty. Initially their defence was of false implication. On appreciation of theevidence in the case, the trial Court convicted and consequently sentencedthe appellants as stated above.7.Learned counsel for the appellants would submit that the evidenceon record would indicate that both the factions were the relations of eachother. They had cordial relations for long until the time of the incident. The8 / 21 APEAL-841-15.odtinjured had already summoned their number of relatives with a view to put upresistance. The plot was owned by the appellants. Family of PW 2 - Rizwan(informant) did not have any document of title to the said plot. Post 12:00noon, the construction material was brought at the site. As such, there werearticles like spade, stones, pick axe, iron rods, tin sheets, etc. They did notlisten to the request of Yahya Khan. They proceeded with the construction.The quarrel, therefore, ensued. The appellants did not have intention eitherto kill or cause injury. The incident happened in a spur of moment. It wasresulted in exercise of right of private defence of own property. Learnedcounsel relied on Exceptions 2 and 4 to Section 300 of the I.P.C. and urgedfor dealing with the appellants accordingly.8.Learned A.P.P. and learned counsel for the victim would, on theother hand, submit that the appellants suffered no injury. As such, there wasno question of fight. No Exception 4 could, therefore, be invoked. The injurycertificates of the deceased and the victims indicate them to have sufferedinjuries on the vital parts. The injuries were caused with sharp weapons.Intention of the convicts was writ large. Learned counsel would submit thatfor the offence punishable under Section 307 of the I.P.C., it was notnecessary that injury should be caused and it should be grievous one. Theywould submit that nature of weapons and the part of body on which the injurywas caused would demonstrate intention of the appellants was attempt tocommit murder. All the appellants had come together. The samedemonstrates common object was to do away with the rivals (victims).9 / 21 APEAL-841-15.odtLearned counsel took us through the definition of the offence of murder andthe quoted judgment of the Supreme Court in the case of Virsa Singh vs.State of Punjab , AIR 1958 SC 465 . They also relied on following set ofauthorities to ultimately urge for enhancing the sentence of the convicts :-1.Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P.(2006) 11 SCC 4442.Jai Prakash Vs. State (Delhi Administration)(1991) 2 SCC 323.Anda and Ors. Vs. State of RajasthanAIR 1966 SC 1484.State of Maharashtra Vs. Balram Bama Patil and Ors.AIR 1983 SC 305(1)5.Awadhesh Kumar Vs. State of UP and Anr.(2019) 10 SCC 3236.State of UP Vs. Faquirey(2019) 5 SCC 6057.Vasant Vithu Jadhav Vs. State of Maharashtra(2004) 9 SCC 318.Baleshwar Mahto and Anr. Vs. State of Bihar and Anr(2017) 3 SCC 1529.State of Rajasthan Vs. Kanhaiya Lal(2019) 5 SCC 639 9.Let us advert to the evidence on record and appreciate the same.PW 19 – Dr. Kailash conducted autopsy on the mortal remains ofMohsin. He noticed following external injuries on Mohsin’s body :-“(I)Evidence of stab wound over lower front of chest on right side ofsize 2.5 x 1 x 5 cm. at coastal arch, in midelavicular line withmedial angle being acute and lateral angle being obtuse, directedstraight inwards. Stab wound is situated 7 cm., right lateral tomidline.(II)Evidence of stab wound over lower front of chest on left side ofsize 7 x 2 cm., into cavity deep, situated 1 cm., left lateral tomidline, medial angle acute, lateral angle obtuse.Injury Nos. I and II are horizontally oblique with clean cut edges.(III)Lacerated wound over right frontal area of size 2.5x1cm., intobone-deep, contuse margin irregular blood infiltrate, vertical.(IV)Abrasion of size 2.5 x 1 cm., on lower back of left side atintrascapular area, 7 cm., left lateral to midline, blood infiltratedirregular, reddish. All these injuries were antemortem in nature.”According to him, Injury nos. 1 and 2 were possible by article10 / 21 APEAL-841-15.odtno.39. He issued postmortem report (Exh.153). In his opinion, Mohsin diedof haemorrhagic shock due to stab injury to liver and left lung.10.PW 22 – Dr. Farina was the Medical Officer with Ghati Hospital.She was on duty on 06th April, 2011. She examined the injured and issuedtheir medical certificates. We propose to refer to each and every injurycertificate, as follows :-NameInjuryNatureWeaponAziz Asmat Khan(Exh.184)CLW to forehead of size 3x1x1cm.SimpleHard objectRizwankhan Pathan(Exh.185)CLW over scalp of size 3x1x1cm.SimpleHard objectKhalil Habibkhan(Exh.186)CLW over left side abdomen of size 2x1x1 cm.SimpleHard ObjectAslamkhan Hasmatkhan(Exh.187)One sharp injury at left side of chestTwo stab injuries over left side chestmeasuring 3x2x2 cm. & 2x2x1 cm.SimpleHard & BluntobjectAsifabegum(Exh.188)Stab injury at neck left side of size 8x2x2 cm.SimpleSharp weaponFiroj Qureshi(Exh.189)CLW over occipital region of size 3x2x1 cm.SimpleHard & Bluntobject11.The appellants did not dispute the incident. Original accused nos.7 and 8 have come with the defence in the nature of the case falling underExceptions 2 and 4 to Section 300 of I.P.C. The other appellants are alsoalleged to have exercised the same right. Admittedly, except accused nos. 7and 8, no other appellant is alleged or proved to have assaulted thedeceased. True, all of them were there when the incident took place. Cross-examination of the injured witnesses, however indicate the appellants arrivedat the crime scene one after the other. A quarrel ensued between the two11 / 21 APEAL-841-15.odtfactions first. Yahya Khan had asked PW 2 – Rizwan not to go ahead withthe proposed construction. In the light of this and the other admissionselicited from the cross-examination of the injured witnesses, we have toconclude whether the defence has been made out. Original accused nos. 7and 8 have been behind the bars for about fourteen years.12.Since the evidence of the informant and the injured witnesses isconsistent with each other, with a view to avoid repetition, we do not proposeto reproduce their evidence in the examination-in-chief, except of PW 2 –Rizwan (informant).13.It is in the evidence of PW 2 – Rizwan that by little past 01:00 p.m.on 06th April, 2011, he was cleaning the said plot. Appellant – Yahya Khancame there and told him that he is the owner of the plot and do not clean thesame. PW 2, alongwith Jalil Khan went to the police station and lodged thecomplaint. According to PW 2, the plot was purchased by his brother –Rashid Khan from one Harun Khan, resident of Pune. No registered sale-deed, however was executed. Only a bond paper was executed andappellant – Kayyum signed the same as witness. Since PW 2 and his familymembers wanted to erect a shed on the said plot, he had asked his brother-in-law, PW 3 - Ejajkhan, who is a contractor, to come with the constructionmaterial. He and his brothers had accordingly came to the site withconstruction material. All of them were engaged in digging the pits andplanting a wooden pole for construction of a shed. The pole was even12 / 21 APEAL-841-15.odterected. A few pits were being dug. That time all the appellants armed withsticks, iron rods, gupti, knife, etc. arrived. All of them started abusing andbeating him and his brothers and others as well. Details of the assaultmounted by the appellants were as under :-- Shaharaz Khan assaulted on the chest of Mohsin with gupti;- Yahya Khan assaulted on the chest and abdomen of Mohsin with kinfe;- Hussein Khan assaulted on the head of Rizwan with stick;- Abu Bakar assaulted on left side rib and forehead of Ejajkhan with knife;- Shahrukh assaulted on left side rib of Khalil Khan with knife;- Ayub assaulted on the left side of Aslam Khan with knife;- Hamid assaulted on the back and legs of Aslam Khan with stick;- Kayyum assaulted on the head of Firoj with iron rod;- Nawaz assaulted on the back and leg of Firoj by wooden rod;- Shainbi assaulted on neck of Asiyabegum by knife;- Naimbee assaulted on the chest of Asiyabegum by belt;Villagers gathered on the spot. They took all the injured to Ghatihospital. Mohsin was declared dead on admission to the hospital. PW 2 –Rizwan was discharged within two hours. He approached the Waluj PoliceStation in the evening and lodged the report of the incident (F.I.R., Exh.79).14.On the same lines is the evidence of PW 4 - Firoj, PW 6 – Asmat,PW 9 - Asiyabegum, PW 17 - Aslam and PW 18 - Khalilkhan (injuredwitnesses).13 / 21 APEAL-841-15.odt15.All the witnesses were subjected to a searching cross-examination. The gist of the matter elicited during the cross-examination isas under :-All the appellants and the injured were relatives of each other.The appellants and PW 2 – Rizwan and his family members were residing inthe same area. Although initially it was denied that there were two plots, thewitnesses came around to admit that there were two plots adjoining eachother. One of them was claimed to have been purchased by PW 2 –Rizwan’s brother from Harun Khan. Appellant – Yahya Khan claimed titlewith possession over the adjoining plot. The crime scene panchanama(Exh.77) indicates the site was seen like one plot. A few pits were dug. Awooden pole was erected. There was nothing at the site to distinguish thetwo plots (no boundary line separating the two plots). PW 2 and his familymembers had very good relations with the appellants until the incident. Both,the appellants and family of the informant were visiting each other. Theinformant and his family members had planned to erect a shed on the saidplot. They had suspected that someone may raise objection. They had,therefore, invited their relatives residing at Newasa and Aurangabad as well.Informant’s brother-in-law was also there with construction material. Assuch, the injured and their relatives, not less than 10-12 persons, were on theplot by little past 12:00 noon. One of them was Jalil Khan. He was inconstabulary. It appears that his presence was also secured to meet alleventualities. One of the injured witnesses admitted that the appellantsarrived at the crime scene one after the other. That rules out their14 / 21 APEAL-841-15.odtpremeditation or formation of common object. It is true that unlawfulassembly can be formed in a spur of moment. Admittedly, appellant – YahyaKhan had requested the informant and others not to go ahead with theconstruction. The crime scene panchanama (Exh.77) indicates they did notlisten. They proceeded with the work. Admittedly, quarrel had ensuedbefore the incident of assault. The informant admitted that quarrel andbeating lasted for five minutes. Articles like peak axe and wooden rod werealready there for construction work. Learned A.P.P. and learned counsel forthe victim were right in submitting that none of the appellants had sufferedany injury. In our view, however for falling a case under Exception 4 toSection 300 of the I.P.C., incident of manhandling or push and pull may besufficient. The injured witnesses gave only their side of story. Noindependent witness has been examined. PW 2 testified that an hour afterYahya Khan arrived at the spot, the assault started. It started no sooner theyplanted a wooden pole in the pit on the plot. He had been in the Ghatihospital for two hours. In spite of police station having been there, he did notreport the matter there. According to him, all the relations were invited sincehe felt that objection may be raised for the proposed work. He furthertestified that Siraj, Abu Bakar, Shahruk and Hussain (appellants) came at thesite one after the other.16.PW 3 – Ejaj admitted that there are two plots adjoining each other.He came to know that one of the plots belonged to Kayyum Khan (appellantherein). There were no markings on the plot. Jalil Khan was invited since he15 / 21 APEAL-841-15.odtwas in police department. Although he claimed to have suffered injury at hiswaist and ribs, his injury certificate negatives his claim.17.PW 4 – Firoj and his brother being relatives of PW 2 – Rizwan andin construction business, had brought construction material at the site in anauto.18.PW 1 - Aman is a witness to the crime scene panchanama(Exh.77). Details thereof have been referred to hereinabove. PW 5, 7, 8, 11to 16 are the panch witnesses to the seizure of clothes of the deceased,injured and the appellants besides disclosure statements made by therespective appellants and recovery of weapons used. Since the incident isundisputed, we do not propose to refer to the evidence of these witnesses inextenso.Conclusion/Appreciation :-19.What could be concluded on appreciation of the evidence referredto hereinabove is -There were two plots adjoining each other. One of them belongsto appellant – Kayyum Khan. The informant claimed to have purchased theanother plot from Harun Khan. However, he did not have document of title.At the site, there were no boundary marks to distinctly identify both the plots.The deceased and the injured had all gathered at the site for raisingconstruction of a shed. They even dig-up 3-4 pits and raised one wooden16 / 21
Decision
APEAL-841-15.odtsentence. They, therefore, be released forthwith, if not required inany other case. There is no change in the quantum of fine anddefault sentence.(II)Criminal Appeal Nos. 846 of 2015 and 847 of 2015 are partlyallowed. Conviction of these appellants for the offence punishableunder Section 324 of the Indian Penal Code is maintained,however the quantum of sentence is reduced to the period forwhich they have already undergone, without there being anychange in the quantum of fine and in default sentence.(III)Criminal Appeal Nos. 835 of 2015 and 880 of 2015, filed forenhancement of sentence, stand dismissed.(IV)Since Criminal Appeal No. 841 of 2015 is disposed of, nothingsurvives in Criminal Application No. 4902 of 2024 and samestands disposed of accordingly.(V)The entire fine amount deposited by the accused be paid to thewidow of the deceased, as compensation.(VI)Registrar (Judicial) of this Court to ensure compliance of this orderforthwith.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD21 / 21