Bombay High Court
Santosh Changu Karnekar vs The State Of Maharashtra on 29 November, 2012
Bench: V.K. Tahilramani, A. R. Joshi
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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
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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
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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
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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
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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
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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.)
