Majid Yusuf Shaikh vs The State Of Maharashtra
2004 Latest Caselaw 160 Bom

JUDGMENT

Kakade, J.

1. The appellant has preferred this appeal against the Judgment and Order dated 2.2.2000 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No. 1310 of 1998 wherein he was convicted for life imprisonment and to pay fine of Rs. 10,000/- in default to undergo R.I. for one year.

2. The facts giving rise to the present case, in brief, are thus :

On 14.1.1998 at about 11.15 a.m. dispute occurred between P.W.1 Nagan the complainant, the appellant and one Sanjay Nepali on the basis of earlier dispute that had arisen a couple of days prior to the incident. On that day a person who was with the complainant had intervened in the matter between the Complainant Nagan, the accused and Sanjay Nepali. It was the case of the prosecution that after the intervention Sanjay Nepali pushed aside Manoj Kaundar. Said Manoj fell down and thereafter the present accused lifted the wash basin from the shop nearby and hit it on the head of Manoj, as a result thereof the deceased collapsed. He was hospitalised but succumbed to his injuries. A complaint came to be lodged by Complainant P.W.1 Nagan and offence was registered against the Accused. The present accused was arrested, however, his accomplice Sanjay Nepali was never traced and reported absconding. After the death of the deceased inquest panchanama was made and his body was sent to the post mortem examination. The panchanama of scene of incident was also prepared. The wash basin which said to be the weapon of offence was also seized at the time of panchanama of the spot. The statement of several witnesses were recorded and on completion of the investigation the chargesheet was sent to the court of law. The learned Magistrate committed the case to the court of Sessions.

3. The learned Additional Sessions Judge framed the charge against accused for the offence punishable under Section 302 read with 34 of the Indian Penal Code. The accused pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence. On which basis the learned Trial Judge came to the conclusion that it was sufficient to bring home the guilt against the accused for murder of deceased and accordingly convicted and sentenced him in aforesaid manner.

Hence the appeal.

4. We heard Ms. Katpitia, the learned counsel for the Appellant and Mrs. Kantharia, the learned APP for the State at length. We have also perused the entire evidence on record.

It is to be noted that the entire case is based upon the ocular testimony of two witnesses duly corroborated by the medical evidence on record. P.W.1 Nagan has stated that earlier incident i.e. on 12.7.1998 he had parked his rickshaw outside the zopadpatti at about 8.00 p.m. at which time two persons by name Madan and Meghraj came to him near the rickshaw. The complainant knew both of them. They were pushing his autorickshaw on the back side. Due to which quarrel ensued in which course the said Madan caught hold of complainant's hand and in the said quarrel said Madan and Meghraj assaulted the complainant. Regarding this incident a police complaint was filed. On 14.7.1998 the complainant along with deceased Manoj and one more friend Raju left the residence of his brother and proceeded to the residence of his sister Ratna. They left at about 10.30 a.m. and were coming to the residence of his sister by bus. They reached their destination and alighted from the bus and were proceeding on M. Datta Road, at which time the present accused along with one Sanjay Nepali met them in front of Koli cottage of Char Bungalow. Sanjay Nepali asked him as to why he had lodged a complaint against him in the Police Station and the complainant informed him that he did not file a complaint against Sanjay Nepali. At that time accused who was in the company of Sanjay Nepali was also abusing him and started assaulting. Accused assaulted him and also abused him. At that time friend Manoj asked them not to quarrel and suggested that they should have talk with each other. However, the accused and said Sanjay Nepali did not listen. Sanjay Nepali pushed deceased Manoj, as a result of which he fell down. Thereafter the complainant and his friend Raju were caught hold by Sanjay Nepali, in the meantime the accused lifted one wash basin nearby and hit the same on the head of the deceased, deceased Manoj became unconscious and accused and his accomplice Sanjay Nepali ran away. Complainant and his friend Raju moved deceased in a autorickshaw to Cooper Hospital where Manoj died due to the injuries on the next day. The police was duly informed and recorded the complainant's FIR and registered the offence against the accused as well as his accomplice Sanjay Nepali, who is since absconding. In the course of the investigation panchanama of the spot was prepared which was shown by the complainant.

This factual matrix narrated by the complainant before the court is squarely corroborated by his FIR which was recorded immediately after the incident in the hospital by the police. The testimony of P.W.2 Ankush further corroborates the complainant's version regarding the incident. According to P.W.2 Ankush, he knew accused as well as his accomplice Sanjay Nepali. Ankush is a rickshaw driver and he was present at the time of incident and has stated that there was heated discussions between Sanjay and the complainant and fight ensued between complainant on one side and two unknown persons on the other side, in which course the accused hit wash basin lying nearby on the head of Manoj, as a result of which deceased fell down. It is to be noted that the evidence of complainant as well as witness Ankush are sufficient to establish the factum of assault at the hands of the accused, as a result of which Manoj suffered fatal injury.

The medical evidence on record shows that Manoj died due to head injury. According to the Medical Officer, the post mortem examination revealed that there was sub-dural heamatuma under the scalp all around 7 cm x 5 cm on right side partio temporal region. According to him, the injury was sufficient in normal course to cause death, therefore the medical officer also supports the version of both the eye witnesses to the extent that injury was caused due to hard and blunt substance like wash basin.

5. The learned counsel for the appellant vehemently urged that there was discrepancy between the complainant's testimony before the Court and his FIR, and therefore, evidence of complainant was rendered unreliable. In support of this submission it was pointed out that certain contents of the testimony regarding their earlier altercations were absent in the FIR. In our considered view, this so called improvement in the evidence made by the complainant is totally inconsequential, especially when core of the evidence of the complainant regarding the assault and authorship of the crime are duly reflected and supported by the FIR lodged immediately after the incident.

It was further submitted on behalf of the appellant that complainant and deceased accompanied by one Raju at the time of the incident, however, the prosecution ha snot examined the said Raju and therefore, the prosecution version is rendered doubtful. We disagree with this proposition. No doubt that Raju's testimony would have further strengthened the prosecution case, however, absence thereof, has not weakened the prosecution case, in view of testimonies of two eye witnesses which are found to be reliable and trustworthy.

It was further submitted on behalf of the appellant that the post mortem report showed that there were blood stains on the skin of the deceased, however, the prosecution has come with the case that there were absolutely no blood stains, nor there was any bleeding injury and thus medical evidence is contrary to the ocular testimonies. In this regard also we must note that the blood stains on the body of the deceased were found obviously of abrasion injury which must have been caused in the scuffle in the course of the incident and when deceased fell to the ground unconscious after he was hit by the accused on the head with wash basin. Much ado was sought to be made of the fact that the panch witness has stated that the wash basin which was produced before the court was not same, which was used in the assault and therefore, it was urged on behalf of the appellant that the prosecution has planted the fabricated evidence on record. In our considered view, it may be noted that the wash basin in question may not be identified by the witness, however, the ocular testimonies are clear enough to show that the accused did make assault with the help of wash basin on the head of the deceased. Even if it is assumed for a moment that the said wash basin as a weapon of the offence is not seized by the police, still the authorship of the crime cannot be doubted for a moment and absence of weapon of offence would be of no avail to the defence in any manner whatsoever.

6. For the reasons recorded above, we hold that there is absolutely no doubt that the appellant is the author of the crime, and therefore, the learned judge has rightly appreciated the evidence to that extent.

7. The learned counsel for the appellant further urged that the facts on record were sufficient to shows that the accused assaulted the deceased in course of scuffle and the weapon of offence was also not deadly weapon and therefore, the case would not be covered under Section 300 r/w Section 302 of the Indian Penal Code but would be covered by lesser offence i.e. Section 304(secondly) of the Indian Penal Code. Taking into account surrounding circumstances and peculiar facts involved in the case we find much force in this argument. Even if we take into account the factual matrix of the incident in which course the accused hit nearby wash basin on the head of the deceased, the fact remains that the wash basin was not a deadly weapon and it is obvious that the accused had no intention to kill the deceased at the relevant time. In other words, the facts on record show that the act was done with the knowledge that it is likely to cause death but without any intention to cause death, and therefore, the act of the accused, in our considered view, would be covered by Section 304(secondly) of the Indian Penal Code.

8. In the result the appeal is partly allowed. The conviction and consequent sentence of the accused for offence punishable under Section 302 read with 34 of the Indian Penal Code is hereby set aside including payment of fine and instead, he is convicted for commission of offence under Section 304(secondly) and is sentenced to suffer R.I. for seven years.

9. In view of the above the Criminal Application for expediting the trial also stands disposed of.