Niyaz Ahmad Abdul Jabbar And Ors. vs State Of Maharashtra
2003 Latest Caselaw 667 Bom

JUDGMENT

P.S. Brahme, J.

1. This is an appeal filed by the appellants/original accused Nos. 1, 2 and 3 challenging the judgment and order passed by II Additional Sessions Judge, Nagpur in Sessions Trial No. 428 of 1997 on 4th April, 1998, convicting the appellants for the offence under section 302 read with section 34 of the Indian Penal Code for committing murder of one Niyaj Nayaj Mainuddin and sentencing them to imprisonment for life.

2. The prosecution case as disclosed through the evidence of eye-witnesses Sk. Arif (P.W. 2) and Naeem (P.W. 4) is that on the day of occurrence which took place on 11-2-1997 at about 17.45 hours when they were standing in Naya Bazar Chowk area of Kamptee, Nagpur, deceased Niyaj asked them to accompany him to the house of his aunt namely Surayya to attend the party hosted by her on the eve of Idd festival and accordingly then went to the house of Surayya where they found that some other persons were already present in the house and, therefore, on being asked by deceased Niyaj they all came out of the house and went to chowk area of Kolsa Tal Masjid. After they went there, deceased Niyaj asked them to remain there as he was to go to see his another friend. He accordingly went and within the period of five to ten minutes, returned to that place and then all of them were to proceed to the house of Surayya. It is the case of prosecution that the appellants and one juvenile Majid were seen approaching towards them and they made utterances pointing towards deceased Niyaj that he was to take revenge against them, but they have decided to take revenge against him on account of previous enmity and accused No. 3 Shamma immediately took out a knife from his waist portion and that the victim seeing that stance of accused No. 3, raised his hands and gave a fist blow to accused No. 3 and ran towards the temple of God Shiva and he tried to pull out the Trishul which was embedded in the earth near the statute of Lord Shiva. The appellants and Majid chased behind deceased Niyaj and they also reached to the temple and it was accused No. 3 who then gave kick blow on the person of deceased Niyaj as a result of which deceased Niyaj fell down on the ground and one of the sleeves of his shirt got entangled with the sharp edge of Trishul. When deceased Niyaj was trying to get released his hand, accused Sheikh Mumtaz put his left leg on the right hand of deceased Niyaj and accused No. 1 Niyaz had set on the chest of deceased Niyaj and the appellants and juvenile Majid started assaulting the victim Niyaj by giving blows of weapons which they were armed with. In the assault, victim Niyaj sustained severe and serious injuries on his chest as also other parts of his body and he was almost done to death. Accused No. 3 Shamma is said to have actually cut the throat of the deceased with the weapon he was armed with. The accused persons threatened the witnesses of dire consequences as a result of which none could dare to intervene to rescue the victim, muchless to go to the Police Station to make a report. The appellants ran away seeing the victim Niyaj having died instantaneously on that place.

3. It was witnesses Naeem who later on went to the house of Ainuddin Moinuddin (P.W. 1) who was Uncle of deceased Niyaj and informed him that what had taken place including the fact that the appellants and juvenile Majid have done to death victim Niyaj. Ainuddin immediately went to the place of occurrence and after seeing the dead body of his nephew Niyaj lying near the temple went to the Police Station and lodged the report about the occurrence. On his report (Exh. 32), the Police Station Officer recorded First Information Report (Exh. 33) and offence was registered against the appellants and juvenile Majid vide Cri. No. 54 of 1997. During the course of investigation conducted by P.S.I. Baba Idumiyan Sheikh (P.W. 7), spot panchnama was made vide Exh. 8 and the dead body was sent to Rural Hospital, Kamptee for carrying out the autopsy. The Medical Officer carried the autopsy and prepared the post-mortem note (Exh. 24). As could be seen from the post- mortem report, the Medical Officer noticed in all 12 injuries as described in Column No. 17 as also corresponding injuries which came to be noted in Column Nos. 19 and 20. In the opinion of the Medical Officer, the injuries were ante mortem in nature. The probable cause of death was on account of the multiple injuries including the injuries on the chest as also on the frontal portion of the neck. It is pertinent to note that the Injury No. 1 which was on the neck was an incised wound 3 and 1/2" x 3" x 1/2" around the trachea. The injury over sternal angle was 3" x 1 and 1/2" with other 5 injuries. It is also very pertinent to note that in the thorax region there was fracture on left side of second and third rib as also fracture of the second rib on the right side. There was injury to right and left lungs. Pericardium was found punctured and there was internal injury to the heart having length of 2" on the upper side and that of 1 and 1/2" on the lower side. At this stage, it has to be mentioned that the defence has not disputed the factum of injuries sustained by the victim as also his homicidal death on account of the injuries and that is why defence has admitted the post-mortem report.

4. During the course of investigation, the appellants were arrested and the clothes on their persons were seized by making necessary seizure memo. The appellants while they were in custody on 14-2-1997 appellant No. 1 Niyaz on interrogation made a disclosure and showed willingness to produce the weapons kept by him concealed and accordingly in pursuance of the memorandum (Exh. 41), the appellant No. 1 took out the weapons by going to the place where the same were kept hidden and the same were seized by making necessary panchanama. The articles seized including the clothes of the appellants, deceased and the weapons were sent to the Chemical Analyser for analysis. After completing the investigation, charge-sheet was filed against the appellants and after the case was committed, the appellants were tried before the Additional Sessions Judge, Nagpur.

5. At the trial, the appellants pleaded not guilty to the charge and claimed to be tried. Their defence is that of total denial. The prosecution examined in all seven witnesses including Ainuddin (P.W. 1), Sheikh Arif (P.W. 2) and Naeem (P.W. 4) as eye-witnesses and Mohammad Yusuf Abdul Khan (P.W. 3), who acted as panch for recovery of the weapons at the instance of accused No. 1 in pursuance of the statement made by him vide memorandum (Exh. 41), Kishor Bele (P.W. 6), who was Police Station Officer attached to Police Station, Kamptee at the relevant time when Ainuddin (P.W. 1) lodged the report and Baba Idumiyan Sheikh (P.W. 7), Police Station Officer, who conducted the investigation in the matter. The learned Sessions Judge accepting the evidence of eye-witnesses and also evidence of recovery of weapons at the instance of accused No. 1 and finding stains of blood on the clothes of appellants which were determined as human blood of having blood group 'B' of the deceased, reached to the conclusion that the appellants have done to death victim Niyaj and accordingly convicted them and sentenced to imprisonment for life as stated earlier. This conviction and sentence is under challenge in this appeal.

6. We have heard Shri Daga, learned Counsel appearing on behalf of the appellants. He submitted that the prosecution has not examined material witness namely Surayya to whose house the appellants had gone and they were also to go subsequently as suggested by victim Niyaj. The victim as well as both the eye-witnesses, who were accompanying him, were moving in the area and ultimately they were intercepted by the appellants as per the prosecution case. He also pointed out that as disclosed by the eye-witnesses, it was the victim who first raised his hands and also dealt a fist blow to the appellant No. 3. In such state of facts, the learned Counsel urged that non- examination of witness Surayya is fatal to the prosecution case inasmuch as genesis of the quarrel that gave rise to the incident that took place has not been brought on record. He further urged that the conduct of the witnesses, in not reporting the matter to the police, in not intervening to rescue the victim and also in not disclosing about the incident to anyone, goes to show that the witnesses are not the witnesses of truth. They are got up witnesses. Therefore, it is urged that the evidence of these witnesses does not inspire confidence and as such the trial Court has not appreciated the evidence of these witnesses in correct perspective and as such the trial Court has committed an error in placing reliance on the evidence of this witnesses. The learned Counsel also urged that taking into consideration the fact that there was previous enmity between the appellants and victim Niyaj and also the facts that have emerged from the evidence of witnesses and more particularly the fact that the victim has initially raised his hands and also gone to the extent of giving fist blow to the accused No. 3, is sufficient to infer and spell out that the victim was aggressor and whatever that has occurred subsequently including the attack on the victim by the appellants was the result of provocation caused by the victim himself and, therefore, the case would fall under Exception II and IV of section 300 of Indian Penal Code and as such the trial Court has committed an error in convicting the appellants for the offence under section 302 of Indian Penal Code.

7. Shri T.A. Mirza, learned Additional Public Prosecutor supported the judgment of the trial Court. He specifically pointed out from the report of Chemical Analyser (Exh. 53) that human blood was found on the clothes of the appellants and in that the blood group found on the clothes of appellant Nos. 1 and 3 was the same blood group 'B' as that of the victim. He also pointed out from the report of Chemical Analyser that the blood detected on the dagger and knife is Article Nos. 23 and 24 were of blood group 'B'. This circumstance, according to the learned A.P.P., lends assurance to the eye-witness account showing involvement of the appellants in committing murder of the victim. He, therefore, urged that the appeal merits no consideration.

8. We have already indicated that the factum of homicidal death at the time and place is not at all disputed by the defence. The trial Court has accepted the evidence of both the eye-witnesses. While narrating the prosecution case on the basis of the evidence of eye-witnesses, we have almost stated the eye-witness account given by witness Sheikh Arif. His evidence on the face of it clinchingly goes to show that the victim was assaulted by the appellants in the manner in which the witness stated. The manner in which the incident has taken place, as depicted through the evidence of witness Sheikh Arif would certainly go to show that the witness had an opportunity to witness incident and there was no chance for the witness to make mistake in identifying the assailants as also the part played by the accused as assailants of the victim. Though the learned Counsel for the appellants has made much capital of the fact that Surayya was not examined as a witness by the prosecution and that both the witnesses are chance witness, what we find that the version of this witness Sheikh Arif on material particulars has gone unchallenged, in the sense that there is no cross-examination of the witness in so far as material particulars as regards the assault by the appellants, their presence and participation are concerned.

9. We have also considered the evidence of other eye-witness Naeem (P.W. 4). In his evidence, he has stated that he had accompanied the victim and witness Sheikh Arif on that day and after going out of the house of Surayya, aunt of victim Niyaj, he later told them that he would go to the house of his friend and asked them to meet in the chowk of Kolsa Tal and then his version further goes to show that then they were about to start to the house of Surayya, they saw the accused/appellants including juvenile Majid coming towards them and they asked deceased Niyaj that they would see him instead of waiting for some other day meaning thereby that they had decided to kill the victim and then they attacked the victim near Kolsa Tal Masjid and in the beginning Niyaj was given fist blow by accused No. 3 when accused No. 4 took out weapons which were hidden by him on his person and accused No. 3 gave a blow of knife on the person of deceased Niyaj and rest of the accused also beat and assaulted him with the help of the weapons. He has emphasised in his statement that they witnessed the incident when deceased Niyaj was being beaten and assaulted by the accused. Deceased Niyaj went towards the temple and he tried to pull out the Trishul by his hands but at that time the accused reached there and accused No. 3 gave fist blow on his buttock as a result of which he fell down on the ground and then the right hand sleeve of his shirt got entangled with the Trishul and that time accused No. 3 pressed his leg on the right hand of the victim and rest of the accused sat on the chest and started giving blows on his person. He also deposed that the accused persons gave threats to them as not to enter and rescue the victim and, therefore, they left the place. He has also stated that the neck portion (throat) of the victim was cut with the help of knife by accused No. 3. He stated with emphasis that all the accused assaulted Niyaj on his chest and the victim Niyaj died on the spot. It has also come in his evidence that after the incident was over and the accused ran away, he went to the house of Ainuddin (P.W. 1) and informed him of the incident that had taken place.

10. This version of witness Naeem has been corroborated on all particulars by the ocular account of the incident given by witness Sheikh Arif whose evidence has been found by us acceptable and credible also. The fact that the matter was reported to witness Ainuddin (P.W. 1) and it is further strengthened by the fact that the witness Ainuddin had gone to the spot and after having seen the victim lying dead on the spot, went to the Police Station to lodge the report. This also, in our opinion, lends assurance to the evidence of this witness. Apart from criticising that this witness Naeem was a chance witness, his evidence on material particulars has not been disturbed at all by the defence. What we have noted is the fact that no cross-examination has been directed by the defence Counsel on material particulars relating to the omission incident of assault by the police. Both the witnesses though were very close friends of the deceased had no reason to depose against the appellants. These witnesses have no reason to falsely implicate the appellants. It is true that both the witnesses have not reported the matter to the police. It is also true that both the witnesses did not intervene to rescue the victim. But, then because of the conduct that has been exhibited by the witnesses, so to say an inaction on their part and of remaining stoic, we do not think that the witnesses could be branded as chance witnesses when it is clinchingly established that the witnesses were with the victim right from the beginning. It is also borne out from the evidence of these witnesses that the accused/appellants had given threats to the witnesses and having regard to that the conduct of the witnesses in not intervening to rescue the victim and also not going to the Police Station to report the matter, cannot be said to be incongruous and, therefore, there is no substance in the claim of defence to brand these witnesses as the chance witnesses.

11. The factum of assault with the weapons by the appellants as disclosed by this witness coming from eye-witness account of the matter is further strengthened by the factum of multiple injuries, severe and serious as they are found on the person of the victim. The victim has died of the injuries that were sustained by him in the assault that was made by the appellants.

12. The evidence of witness Mohammad Yusuf (P.W. 3) clinchingly goes to show that the weapons have been seized at the instance of appellant No. 1 in pursuance to the statement made by the appellant No. 1 when he was interrogated by the Investigating Officer. The evidence of Investigating Officer further strengthens the evidence on the point of recovery of the weapons at the instance of appellant No. 1. The trial Court has rightly accepted the evidence of witness Mohammad Yusuf on the point of recovery of the weapons. There is no difficulty in accepting the evidence of this witness and that of Investigating Officer on the point of recovery. We say so because the evidence of this witness Mohammad Yusuf and that of Investigating Officer has remained unshaken though they were subjected to cross-examination by the defence. That apart, what is striking is this suggestion given to this witness Mohammad Yusuf by the defence wherein it was suggested that they collected the articles from the place of incident and thereafter they were brought to the Police Station. In our opinion, factum of recovery as such of the weapons is noway disputed. In addition to that finding of human blood of 'B' group on these weapons, which is also the blood group of the deceased, makes the recovery of weapons at the instance of appellant No. 1 an incriminated circumstances for which no explanation has been given by the appellant except denial in his statement recorded under section 313 of Cri.P.C. Even as regards the seizure of clothes from the person of the accused and having found human blood of 'B' group on the clothes, no explanation has been given by the appellants. But, they have simply denied the same as false. In our opinion, this circumstantial evidence, particularly finding of human blood as also detection of blood having blood group 'B' on the clothes of the accused/appellants is again incriminating circumstance showing the involvements of the appellants in commission of the crime. This has to be accepted without any slightest hesitation when no explanation has come from the side of the appellants when the incriminating circumstance was put to them. The trial Court has rightly accepted the evidence even as to recovery of the weapons, at the instance of appellant No. 1.

13. Taking into consideration the evidence of eye-witnesses, incriminating circumstance arising out of the seizure of weapons and the clothes of the appellants, the involvement of the appellants in committing murder of the victim is established beyond shade of doubt. The very fact that in the assault multiple injuries have been caused on vital organs and as if the assault was not sufficient, at the last his throat has been cut causing severe injury causing internal damage corresponding to that, sufficiently goes to show that the intention of the appellants was to commit the murder of the victim. In the background of the fact that the appellants had appeared on the scene armed with weapons, they chased behind the victim armed with weapons and then they assaulted the victim with the weapons in their hands after the victim fell down and was made incapacitated, it is very difficult to subscribe to the submissions of the learned Counsel for the defence that the victim had caused provocation to the appellants and the assault by the appellants was the result of the provocation caused by the victim. Even accepting the fact, that has emerged from the evidence of two eye-witnesses that the victim has raised his hands and to some extent the witnesses have stated that the victim had given fist blow to one of the accused, by no stretch of imagination, it may be even spelt out that the victim was aggressive when this stance on the part of the victim was after the appellants had taken out the weapons with which they were armed and the victim was not having any weapon with him.

14. The learned Counsel for the appellants submitted that when several persons simultaneously attack with common intent, no distinction between causing the fatal and no-fatal wounds could be drawn while allocating the guilt. While negativing this contention we refer to the observations of the Apex Court in para 7 of the judgment in the case of H.P. Thakore v. State of Gujarat, succinctly observed, "when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the other and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstances that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. Section 34, I.P.C. fixing constructive liability conclusively silences such a refined plea of extrication. Amir Hussain v. State of U.P., ; Maina Singh v. State of Rajasthan, . Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse. 'They also serve who only stand and wait' a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory, presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code"

15. It is for this reason that we do not agree with the submissions of the learned Counsel for the appellants that the case falls under Part II and Part IV of section 300 of the Indian Penal Code.

16. In the result, we have no hesitation in saying that the trial Court has rightly convicted the appellants for committing murder. There is no reason to interfere with the order of conviction and sentence passed by the trial Court. The appeal is dismissed.