Imtiyaz A. Rahiman Inamdar vs The State Of Maharashtra
2011 Latest Caselaw 146 Bom

    sat                                1
                                                                        cri.appeal 131-91


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                  CRIMINAL APPELLATE JURISDICTION




                                                    
                    CRIMINAL APPEAL NO. 131 OF 1991

            Imtiyaz A. Rahiman Inamdar, age               )
            27 years, resident of House No.6,             )




                                                   
            Telangi, Pachha Peth, Solapur                 )...Appellant

                         vs.




                                          
            The State of Maharashtra                      ...Respondent
                         
            Mr.Prakash Naik i/b. Mr.Ujjwal R. Anandsurve for the
            Appellant.
                        
            Mr.J.P. Kharge, APP for the State.
            


                         CORAM : V.M. KANADE AND
         



                                 M.L. TAHALIYANI, JJ.

DATED : NOVEMBER 30, 2011

JUDGMENT (PER M.L. TAHALIYANI, J.) :-

1 The appellant has been convicted by the 2nd

Additional Sessions Judge, Solapur, for the offences

punishable u/ss. 302 and 324 of IPC. He has been sentenced

to suffer imprisonment for life and to pay a fine of Rs.300/-,

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in default, to suffer RI for one month for the offence

punishable u/s. 302 of IPC. As far as offence punishable

u/s. 324 of IPC is concerned, he has been sentenced to

suffer RI for one month. The substantive sentences are

directed to run concurrently. This judgment was delivered

on 15th February, 1991 in Sessions Case No.186/1990 of

Solapur District.

2 The appellant was in custody after the

judgment and he has been released on bail pursuant to the

Order dated 13th March, 1991 passed by this Court. As such,

at present, he is on bail.

3 Learned Counsel Mr.Prakash Naik is heard on

behalf of the appellant and learned Additional PP

Mr.Kharge on behalf of the State.

4 Before we deal with the submissions made by

the learned Counsel for the appellant and the learned

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Additional PP for the State, it will be convenient to briefly

state the facts of the case and the evidence on the basis of

which the appellant has been convicted.

5 The appellant had a sister by name Hamida

who was in love with the deceased Iqbal. Both of them got

married. The appellant however was not happy. The mother

of Hamida had given consent for marriage of Hamida with

deceased Iqbal. The appellant however, as stated earlier,

was not happy as he did not want his sister to marry Iqbal. It

is a case of prosecution that the marital life of Hamida after

sometime was disturbed as the relations between Hamida

and the deceased could not continue to be cordial for a

longer time. After sometime, Hamida started staying with

her mother and the appellant while the deceased Iqbal went

to reside with his parents. It is a case of prosecution that

since six months prior to the date of incident, the deceased

Iqbal and Hamida had been staying separately. The alleged

incident had taken place in the dispensary of Dr.Kanagi

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(PW 4).

6 According to prosecution case, PW 3 Mumtaj,

wife of Bilal, had gone to the dispensary of Dr.Kanagi for

treatment of her son Asif. While PW 3 was sitting in the

waiting hall, the deceased Iqbal and his sister Mehmooda

had also come there for consulting the doctor. It is a case of

prosecution that Mumtaj and Mehmooda both had entered

the doctor's cabin together. After consulting the doctor, both

had come out of the doctor's cabin and they were in the

waiting hall when the incident in question had occurred. It

is alleged that the appellant had entered the waiting hall

with a dagger in his hand. Iqbal was sitting in the waiting

hall. The appellant caught hold of shirt collar of Iqbal. PW 3

Mumtaj questioned this behaviour on the part of the

appellant. The appellant responded by saying that he would

not spare deceased Iqbal. Dr.Kanagi came out of his cabin

due to commotion in the waiting hall. Dr.Kanagi and his

assistant both had driven the deceased and the appellant out

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of the waiting hall. PW 3 Mumtaj and Mehmooda both

followed the deceased and the appellant. As soon as the

deceased and the appellant came out of the waiting hall, the

appellant had allegedly inflicted dagger (jambiya) blows on

the deceased. The deceased had sustained injuries on

various parts of his body. PW 6 Mehmooda attempted to

intervene and tried to save the deceased from the attack.

However in the process she also sustained a dagger injury.

The deceased had fallen down, due to multiple injuries and

the appellant ran away. In the meantime, Asif, son of

Mumtaj, called his father Bilal. Mumtaj narrated the

incident to Bilal. Deceased Iqbal was taken to civil hospital

in an injured condition by Bilal and Mehmooda. The

deceased was attended by Dr.Patil (PW 5), who declared

him dead before admission. The doctor gave intimation to

Jail Road police station. Police Head Constable Kulkarni

(PW 9) was available at the police station. He made

necessary entries at the police station and gave intimation to

Police Inspector More. By that time, Mumtaj had already

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reached the police station. She had lodged complaint vide

Exhibit 19. The accused himself had surrendered before the

police with a dagger in his hand. Crime No.93/1990 was

registered on the basis of complaint made by Mumtaj.

7 During the course of investigation, the

appellant was arrested. Blood-stained clothes of the

appellant and the dagger were seized under the panchnama.

Mehmooda was sent for medical examination and for

treatment. Statements of witnesses were recorded. Inquest

of the dead body was done and the dead body was sent post

mortem examination. The Medical Officer had reported that

the deceased had died due to 'shock & Haemorrhage due to

stab injury on the back & injury to Lung.' After completion

of investigation, chargesheet was filed in the Court of

Sessions, Solapur.

8 When the case came up for hearing, a charge

u/ss.302 and 324 of IPC was framed against the appellant.

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He pleaded not guilty. The defence of the appellant was

two fold before the trial court, 1) that he had been falsely

implicated, and (2) that the deceased had sustained injuries

during the course of scuffle. The learned trial court recorded

the evidence of about twelve witnesses. The evidence of

witnesses was believed. Defence of the appellant was

rejected and he was convicted as above.

9 During the course of arguments before us, the

learned Counsel for the appellant has submitted that he may

not press for clear acquittal of the appellant as there are

number of witnesses who had witnessed the incident of

assault. As far as cause of death is concerned, there does not

appear to be serious dispute with regard to the opinion

given by the Medical Officer Ashok Kanaki (PW 11). The

Medical Officer has said that death was due to shock and

haemorrhage due to stab injury on back with injury to the

lung. Though the Medical Officer has been cross-examined

at length, nothing has been brought on record to show that

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the injury sustained by the deceased was not sufficient to

cause death in ordinary course of the nature. As far as

injuries sustained by Mehmooda are concerned, the

prosecution has examined PW 10 - Dr.Subhas Ganu. He had

noted that there was one CLW on right thumb about 2 cm x

½ cm. It was opined that the said injury could be caused by

blunt side of the dagger. There is no serious challenge to the

opinion of Dr.Subhas.

10 The learned trial court has examined the

evidence of eye witnesses in detail and has come to the

conclusion that there is no reason to disbelieve those

witnesses.

11 We have also gone through the evidence of the

witnesses particularly PW 3 Mumtaj, PW 4 Dr.Shivanand

Kanagi, PW 6 Mehmooda, PW 7 Bilal and PW 8 Appasaheb

Narhari Dodse.

cri.appeal 131-91

12 As far as actual incident is concerned, the

prosecution case rests upon the evidence of PW 3, 4, 6, 7

and 8.

13 PW 3 has stated in her evidence that she

herself, her son Asif and Mehmooda had entered the cabin

of doctor together and after consulting the doctor, they were

coming out of the cabin. At that time, she heard the shouts.

She had seen that accused had caught hold of the deceased

and accused was holding knife in his right hand. The

accused also said that he would not spare the deceased. In

the meantime, doctor had come out of his cabin in the

waiting hall. Doctor and his compounder (Assistant) had

driven the appellant out of the waiting hall. PW 3, her son

Asif and the Mehmooda had followed them. It is stated by

this witness that the appellant had inflicted dagger blows on

the deceased. She has further stated that when Mehmooda

had tried to intervene, she also had sustained injuries on her

finger. She was also pushed by the appellant.

                                                                          cri.appeal 131-91




                                                                              
           14           PW 4 Dr.Kanagi has also supported the




                                                      

evidence of PW 3. He has clearly stated that he had come

out of his cabin and had asked the deceased and the

appellant to go out of the waiting hall.

15 PW 6 Mehmooda has also supported the

evidence of PW 3 Mumtaj. Her evidence is more or less

similar to the evidence to PW 3. There is nothing in the

cross-examination of this witness to indicate that the

incident had not occurred in the manner described by

Mumtaj. This witness, in addition to corroborate the

evidence of PW 1, has narrated as to how she herself had

injuries on her finger.

16 PW 7 Bilal is the husband of PW 3-Mumtaj. He

was not present at the spot at the time of the incident. He

was informed by his son Asif about the incident. He,

therefore, rushed to the place where the incident had

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allegedly occurred. He was informed by his wife Mumtaj

that the appellant had assaulted the deceased Iqbal. He had

seen the deceased lying at the distance of 25 ft. from

dispensary. PW 7 and PW 6 Mehmooda had taken the

deceased Iqbal to civil hospital where Iqbal was declared

dead.

The evidence of PW 3 Mumtaj and PW 6

Mehmooda establishes beyond reasonable doubt that there

was no scuffle between the deceased and the appellant of

any nature before the incident. It is apparent that appellant

had come to the dispensary with dagger in his hand and had

attempted to assault the deceased in the dispensary itself

and he was driven away by the doctor and his assistant.

However immediately after coming out of the dispensary,

he had inflicted multiple blows on the deceased by means of

dagger. One of the blows inflicted on backside has proved

to be a fatal blow. After having gone through the evidence

of Dr.Shivanand Kanagi (PW 4), we are left with no doubt

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that the evidence of PW 3 Mumtaj and PW 6 Mehmooda

cannot be rejected. We have examined the evidence of PW 3

Mumtaj and PW 6 Mehmooda carefully in view of the fact

that they were relatives of the deceased. However PW 4

Dr.Kanagi, who is an independent witness, has clearly

stated that on 24th May, 1990 at about 8.45 p.m. after

attending Mehmooda, Asif and Mumtaj, he heard the noise

in the waiting hall. When he came out of the cabin, he had

occasion to see that one person had caught hold of collar of

deceased Iqbal. The said person was holding a weapon like

dagger. The accused had been identified by this witness to

be the same person. Both of them were driven out of the

dispensary. Mehmooda and Mumtaj had followed them. As

such the evidence of Mumtaj and Mehmooda had been

corroborated in all material particulars by this witness.

18 As already stated, the learned Counsel for the

appellant has not seriously contested the occurrence of the

incident. However it is submitted by him that there was no

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intention on the part of appellant to cause death of the

deceased. It was also submitted that there is no material on

record to indicate that the appellant intended to cause injury

to the deceased by means of dagger and that the said injury

was sufficient to cause death in ordinary course of the

nature. It was pointed out that the injury caused by the

appellant which had proved to be fatal injury was on

backside of the deceased. It is further submitted that

unfortunately the said injury had caused perforation in left

lung. The learned Counsel has submitted that the appellant

never knew or imagined that the stab injury caused by him

on backside might result in serious injury to the lung of the

deceased. It was, therefore, contended before us that there

was no intention to cause death of the deceased and

similarly, there was no intention to cause bodily injury to

the deceased which was sufficient to cause death in

ordinary course of the nature. The learned Counsel has

further submitted that in view of the fact that the injuries

were not directed on vital parts, the accused could at the

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most be convicted of the offence of culpable homicide not

amounting to murder punishable u/s. 304(II) of IPC. It is

contended that at the most, the appellant could be said to

have knowledge that the injury was likely to cause death. It

is submitted that the appellant had no intention to cause

death or injury sufficient to cause death in ordinary course

of the nature.

19 We do not agree with the submission made by

the learned Counsel for the appellant that there was no

intention to cause death of the deceased. It can be seen that

the appellant was not consenting party to the marriage of his

sister Hamida with the deceased. Moreover since six

months prior to the date of incident, Hamida had been

staying with her mother as her relations with the deceased

were not cordial. As such, the appellant had strong motive

to commit the murder of the deceased. Though the multiple

injuries sustained by the deceased, except the injury no.1,

were not on vital parts of the body, what can be seen is that

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the injuries were inflicted in quick succession. The evidence

also shows that the deceased was trying to ward off the

blows. It is in this process that the dagger did not hit the

regions intended to be hit by the appellant. It has also come

in the evidence that while warding off the blow received by

the deceased at thigh, he had bent down and that thereafter,

the appellant had inflicted injuries on the buttocks of the

deceased.

It is, therefore, clear that in any event, the

appellant was determined to eliminate the deceased. He did

not want to leave any chance of survival of the deceased. In

this regard, it may also be noted here that it is not necessary

that the injuries on vital parts only can lead to death. The

shock and haemorrhage are mainly because of loss of blood.

Multiple injures on various parts of body had led to loss of

blood and haemorrhagic shock and ultimately had resulted

into death of the deceased.

20 Even if it is assumed for the sake of arguments

that the appellant had no intention to cause death of the

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deceased, it can safely be said that the manner in which the

deceased was assaulted by the appellant clearly indicates

that the appellant wanted to cause serious injuries to the

deceased. The knowledge of the appellant that the injuries

will result in death is totally irrelevant. What the

prosecution is under obligation to establish is that the

appellant intended to cause a particular type of injury and

that the said injury was sufficient to cause death in ordinary

course of the nature. The prosecution is not under obligation

to establish that the appellant knew that the injuries

intended to be caused by him were sufficient to cause death

in ordinary course of the nature. The contention of the

learned Counsel for the appellant that the appellant did not

know that the injury inflicted by him on back of the

deceased would prove to be a fatal injury and therefore, he

is entitled for some concession, cannot be accepted. In our

view, the appellant cannot be given benefit of either Part I

of Section 304 or Part II of Section 304 of IPC.

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21 The determination of the appellant and his

readiness to face the consequences can be clearly seen from

the evidence of PW 8. PW 8 Appasaheb Narhari Dodse was

on duty at Sakhar Peth police chowky. The appellant had

surrendered before him at 9.30 p.m. The appellant was

wearing the clothes which he had worn at the time of

incident. He was holding a dagger which was stained with

blood. Sakhar Peth police chowky was attached to the Jail

Road police station. Immediately after the arrival of the

appellant at the police chowky, PW 8 had given intimation

to Jail Road police station. PI More had reached the Sakhar

Peth police chowky.

22 The determination of the appellant is manifest

if one reads the evidence of PW 6 Mehmooda. This lady

was sister of the deceased and she was present at the time of

the incident. She had attempted and intervened to save her

brother. She has sustained injury on her right thumb when

the blunt side of dagger held by the appellant hit her. Apart

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from this, the appellant had pushed her back by inflicting a

blow by means of his elbow. It is thus clear that the

appellant did not want anybody to intervene till he

accomplished his purpose. It is abundantly clear that he was

in no way ready to leave any chance of survival of the

deceased.

In view of the submissions made on behalf of

the appellant that the occurrence is not seriously disputed

and that the appellant prays for conviction for a lesser

offence, we do not find it necessary to discuss other part of

the evidence. As already stated, the case of prosecution is

mainly based on evidence of PW 3, 4, 6, 7 and 8.

24 In brief, it can be stated here that the case of

the appellant is not covered by any exception to Section 302

of IPC. He, therefore, cannot be given any concession u/s.

304 I of IPC.. The case of the appellant also does not fall

u/s. 304 Part II of IPC. The manner in which the deceased

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was assaulted and number of injuries inflicted by the

appellant clearly indicate that the appellant had intended to

cause death of the deceased or atleast he had intended to

cause injuries to the deceased which were sufficient to

cause death in ordinary course of the nature. The learned

trial court has, therefore, rightly held the appellant guilty for

the offence punishable u/s. 302 of IPC for having

intentionally caused death of the deceased Iqbal. The

learned trial court has rightly held the appellant guilty of the

offence punishable u/s. 324 of IPC for having voluntarily

caused injury to the witness Mehmooda by means of dagger

which is a weapon used for cutting. We do not find any

substance in the appeal. The judgment and order of the

learned trial court does not suffer from any infirmity. There

was sufficient evidence before the trial court to convict the

appellant for the offence punishable u/ss. 302 and 324 of

IPC. For all these reasons, we pass the following order :-

                       "      Criminal Appeal is dismissed. Two






                                                                 cri.appeal 131-91


                  weeks' time is given to the Appellant to




                                                                     
                  surrender before the Trial Court."




                                             
                                            
           (M.L. TAHALIYANI, J.)            (V.M. KANADE, J.)