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rpa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1554 OF 2004
Santosh Changu Karnekar ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mrs. Sonia Miskin, Advocate appointed for the Appellant.
Mr. A. S. Shaikh, A.P.P. for the Respondent - State.
ig ...
CORAM : MRS. V.K. TAHILRAMANI &
A. R. JOSHI, JJ.
DATED : November 29, 2012.
ORAL JUDGMENT : [PER SMT. V. K. TAHILRAMANI, J.] The Appellant/original accused has directed this Appeal against the Judgment and order dated 29th April, 2004, passed by the learned Additional Sessions Judge, Niphad in Sessions Case No.2 of 2003. By the said Judgment and order, the learned Sessions Judge convicted and sentenced the Appellant under Section 302 of the Indian Penal Code (IPC) and sentenced him to suffer life imprisonment and to pay fine of Rs.1000/- in default R.I. for three months.
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2 The prosecution case, briefly stated, is as under:
On 26th July, 2002, P.W. No.1, complainant Mohammad Tohid Khan was travelling by train from Mumbai to Patna. One Mohammad Akbar Khan i.e. the deceased was also travelling along with him in the said train. So also P.W.No.2 Mohammad Sahabuddin was also travelling in same compartment of the train in which P.W. No.1 Complainant Mohammad Tohid Khan and Mohammad Akbar Khan were travelling. One red bag on which Reebok was written was hanging on a hook in between two seats.
At about 3.45 to 4.00 p.m., P.W. No. 1, complainant Mohammad Tohid Khan got up to go to the toilet. He saw some persons sitting on single chairs in between which the Reebok bag was hung, taking the bag and handing it over to the present Appellant. The complainant went to sleep. After few minutes, he came to know that robbery was going on in the train. When he opened his eyes, he saw the Appellant had placed a knife on the right side of his chest and the Appellant told him in Marathi to hand over whatever he had. P.W.No.1 complainant handed over amount to him. Within few minutes, he heard the deceased Mohammad Akbar Khan ::: Downloaded on - 09/06/2013 19:26:32 ::: 3/8 apeal1554-04 shouting. Mohammad Akbar Khan came near him in injured condition and showed him that his intestines had come out. At that time the Appellant came near the Complainant P.W.No.1 and asked whether Akbar Khan was with him. As the complainant was afraid, he said that Akbar Khan was not with him. Thereafter, the Appellant pulled the chain and stopped the train and went away along with 8 to 10 persons. The time was about 4.15 a.m., at that time. Akbar's injury was tied by means of a cloth. At the next railway station the train was stopped and Akbar Khan was taken to hospital. However, Akbar Khan died at about 6.00 a.m. to 6.15 a.m. P.W. No.2 Mohammad Sahabuddin was also travelling in the very same compartment. He had fallen asleep. He then heard someone saying "NIKAL SALA, NIKAL SALA". When he opened his eyes, he saw the Appellant and one more person were threatening the passengers with knives and extracting money. Thereafter, the Appellant came near, and the Appellant pointed out knife at him and asked him to give him whatever he had. This witness took out Rs.4,000/- which was with him and handed it over to the Appellant.
Then he saw the Appellant turned to another passenger i.e. the deceased Mohammad Akbar Khan and threatened him with knife ::: Downloaded on - 09/06/2013 19:26:32 ::: 4/8 apeal1554-04 and told him to give whatever he had. The passenger took out some money and handed it over to the Appellant. But the Appellant told him to take out some more money. At that time, the passenger i.e. Mohammad Akbar Khan caught the hand of the Appellant and questioned him as to what he was doing. Thereupon the Appellant gave filthy abuses and stabbed Mohammad Akbar Khan in his stomach with the knife. The stomach of Mohammad Akbar Khan was torn. His intestine came out and blood started flowing from the injury. P.W.No.1 complainant Mohammad Tohid Khan took the injured to hospital where as stated earlier he died at about 6.00 to 6.15 a.m. P.W.No.1 complainant Mohammad Tohid Khan lodged the First Information Report (FIR). Thereafter, investigation commenced. The dead body of Mohammad Akabar Khan was sent for post-mortem. The post-mortem notes show that Mohammad Akbar Khan was stabbed with sharp cutting injury on the left iliac region of abdomen 7 inches x 2 inches and cavity deep. The cause of death was due to sharp cutting stab injury. After completion of investigation the charge-sheet came to be filed. The case was committed to the Court of Sessions.
3 Charge came to be framed against the Appellant-original
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accused under Section 302 of IPC. He pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. On going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph No.1 above, hence this Appeal.
4 We have heard Ms. Sonia Miskin, the learned advocate appointed for the Appellant and Mr. S. A. Shaikh, learned A.P.P. for the Respondent - State. We have carefully perused the evidence in the present case. After carefully considering the matter, we are of the opinion for the reasons stated hereinbelow, that there is no merit in the Appeal.
5 The prosecution case is mainly based on the evidence of P.W.No.1 Mohammad Sahabuddin, who is an eye witness in the present case. Mohammad Sahabuddin has stated that he was asleep in the train, when he heard someone saying "NIKAL SALA, NIKAL SALA". When he opened his eyes, he saw the Appellant and one more person were threatening passengers with knives and extracting money. The evidence of P.W.No.2 Mohammad Sahabuddin is supported by the evidence of P.W.No.1 Mohammad ::: Downloaded on - 09/06/2013 19:26:32 ::: 6/8 apeal1554-04 Tohid Khan, who is the complainant in the present case. This witness, the deceased Mohammad Akbar Khan and P.W.No.1 Mohammad Tohid Khan were travelling in the same compartment of the train when the incident happened. At the next railway station the train was stopped and Akbar Khan was taken to the hospital.
6 Both P.W.No.1 Mohammad Tohid Khan and P.W.No. 2 Mohammad Sahabuddin have identified the Appellant in the Test Identification Parade (TIP) held by P.W.No.6, Special Judicial Magistrate Shri Kulkarni. He has deposed in detailed about how he conducted the Test Identification Parade, in which P.W.No.2 Mohammad Sahabuddin identified the Appellant as the person who stabbed Mohammad Akbar Khan. In the Identification Parade, P.W.No.1 Mohammad Tohid Khan had also identified the present Appellant. Nothing has been elicited in the cross-examination of either P.W.No. 1, P.W.No. 2 or the Special Judicial Magistrate P.W.No.
6 Mr. Kulkarni, so as to disbelieve their evidence.
7 Ms. Miskin, submitted that the Identification of the Appellant in the Test Identification Parade cannot be relied upon ::: Downloaded on - 09/06/2013 19:26:32 ::: 7/8 apeal1554-04 because the Test Identification Parade took place after about five months after the incident. As far as this aspect is concerned, it is noticed that the Appellant was arrested more than three months after the incident. Moreover, in the present case, strictly speaking an Identification Parade may not have been necessary because from the evidence on record, it is clear that the incident took place for half an hour, hence the witnesses had ample opportunity to examine the features and other details of the Appellant. The complainant P.W.No.1 Mohammad Tohid Khan in his FIR has given detailed description of not only the Appellant but also the clothes worn by the Appellant, at the time of incident. Had it been a case where the witnesses had seen the accused person for only a few seconds or just one or two minutes, then in such case, an Identification Parade would have been necessary. But here the witnesses had an opportunity to see the Appellant for half an hour. The evidence of P.W.No.2 Mohammad Sahabuddin clearly shows that the incident took place from 3.45 a.m. to 4.15 a.m. i.e. for half an hour. In such case, as the witnesses had an opportunity to see the accused persons for half an hour, hence, even if there is a delay in holding the Test Identification Parade, it would not affect the evidentiary value of these witnesses identifying the accused in the Parade or ::: Downloaded on - 09/06/2013 19:26:32 ::: 8/8 apeal1554-04 in the Court. Thus, in our view, the delay in holding the Test Identification Parade, in the facts and circumstances of the present case would not affect the evidentiary value of the identification of the Appellant by the witnesses so as to disbelieve the testimony of these three witnesses. Their testimony inspires total confidence.
Hence, we find that we can safely rely on the same. The evidence of these three witnesses clearly connects the Appellant to the crime and, it shows that it is the Appellant who caused the murder of Mohammad Akbar Khan. Thus, we find no merit in this Appeal.
Appeal is dismissed.
8 At this stage, we would like to place on record our appreciation for the way Ms. Sonia Miskin, learned appointed Advocate appearing for the Appellant conducted the matter. She has very ably argued the matter.
9 Office to communicate the order to the Appellant who is in jail.
(A.R. JOSHI, J.) (V.K. TAHILRAMANI , J.)
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