Bombay High Court
Shaikh Amjad Sk. Asad vs The State Of Maharashtra on 20 October, 2012
Bench: A. H. Joshi, U. D. Salvi
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.19 OF 2011
1. Shaikh Amjad Sk. Asad,
Age 20 years, Occ. Business,
R/o Bismilla Colony,
Aurangabad.
2. Shaikh Asad Shaikh Lal,
Age 48 years, Occ. Business,
R/o as above.
3. Javedkhan Ajamkhan,
Age 21 years, Occ. Labour,
R/o Asefiya Colony,
Aurangabad. ... APPELLANTS
VERSUS
The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court of
Bombay, Bench at Aurangabad) ... RESPONDENT
.....
Shri N.S. Ghanekar, Advocate for appellants
Shri S.D. Kaldate, A.P.P. for respondent
.....
W I T H
CRIMINAL APPEAL NO.95 OF 2011
Shaikh Feroz s/o Shaikh Akbar,
Age 35 years, Occ. Labour,
R/o Bismillah Colony,
Aurangabad. ... APPELLANT
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Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
2
VERSUS
1. The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court of
Bombay, Bench at Aurangabad)
2. Jarina Begum Shaikh Asad,
Age 30 years, Occ. Nil,
R/o Bismillah Colony,
Aurangabad.
3. Shaikh Shakil s/o Shaikh Mahemood,
Age 51 years, Occ. Business,
R/o Juna Bazar, Aurangabad ... RESPONDENTS
.....
Shri Sandeep Ladda, Advocate holding for
Shri S.G. Ladda, Advocate for appellant
Shri S.D. Kaldate, A.P.P. for respondent No.1
Shri N.S. Ghanekar, Advocate for respondent No.2.
.....
W I T H
CRIMINAL APPEAL NO.97 OF 2011
Shaikh Feroz s/o Shaikh Akbar,
Age 35 years, Occ. Labour,
R/o Bismillah Colony,
Aurangabad ... APPELLANT
VERSUS
1. The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court of
Bombay, Bench at Aurangabad)
2. Shaikh Amjad s/o Shaikh Asad,
Age 22 years, Occ. Business,
R/o Bismillah Colony,
Aurangabad.
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Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
3
3. Shaikh Asad s/o Shaikh Lal,
Age 50 years, Occ. Business,
R/o as above.
4. Jawedkhan s/o Ajamkhan,
Age 32 years, Occ. Business,
R/o as above. ... RESPONDENTS
.....
Shri Sandeep Ladda, Advocate holding for
Shri S.G. Ladda, Advocate for appellant
Shri S.D. Kaldate, A.P.P. for respondent No.1
Shri N.S. Ghanekar, Advocate for respondent Nos.2 to 4
ig .....
W I T H
CRIMINAL APPEAL NO.318 OF 2011
The State of Maharashtra
through Begumpura Police
Station, Aurangabad ... APPELLANT
VERSUS
1. Shaikh Amjad Sk. Asad,
Age 20 years,
R/o Bismillah Colony,
Aurangabad.
2. Sk. Asad Shaikh Lal,
Age 48 years,
R/o as above.
3. Jawedkhan Ajamkhan,
Age 21 years,
R/o Asefiya Colony,
Aurangabad.
4. Jarina Begum Sk. Asad,
Age 30 years,
R/o Bismillah Colony,
Aurangabad
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Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
4
5. Shaikh Shakil Sk. Mahemood,
Age 51 years,
R/o Juna Bazar,
Aurangabad ... RESPONDENTS
.....
Shri S.D. Kaldate, A.P.P. for appellant
Shri N.S. Ghanekar, Advocate for respondents 1 to 3 & 5
.....
CORAM:
A.H. JOSHI AND
ig U.D. SALVI, JJ.
DATED:
20th October, 2012.
Date of reserving judgment : 27/8/2012
Date of pronouncing judgment : 20/10/2012
JUDGMENT (Per U.D. Salvi, J.)
1. These appeals arise out of the judgment and
order dated 31.12.2010, passed by the learned
Additional Sessions Judge-4, Aurangabad in Sessions
Case No.307/2009.
2. Learned Additional Sessions Judge-4,
Aurangabad convicted and imposed sentences on the
appellants/ accused in Criminal Appeal No.19/2011 on
different counts as under :
i) The appellants/ accused in Criminal
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
Appeal No.19/2011 were sentenced to suffer R.I.
for seven years and to pay fine of Rs.2000/-
each, and in default of payment of fine to
further undergo S.I. for six months each for
commission of the offence punishable under
Section 304-II of the Indian Penal Code, 1860.
ii) The appellant/ accused No.1 in Criminal
Appeal No.19/2011 was sentenced to suffer R.I.
for one year and to pay fine of Rs.1000/-, and in
default of payment of fine to undergo further
S.I. for one month for commission of the offence
punishable under Section 201 of the Indian Penal
Code, 1860.
iii) The appellant/ accused No.2 in Criminal
Appeal No.19/2011 was sentenced to suffer R.I.
for five years and to pay fine of Rs.2000/-, and
in default of payment of fine to further undergo
S.I. for six months for commission of the offence
punishable under Section 307 of the Indian Penal
Code, 1860.
iv) All sentences imposed were to run
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
concurrently.
3. The appellants/ accused in Criminal Appeal
No.19/2011 have questioned their conviction and the
consequent imposition of sentences on them.
4. The State has challenged the entire verdict
of the learned trial Court in Criminal Appeal No.
318/2011.
5. Criminal Appeal No.95/2011 and Criminal
Appeal No.97/2011 have been preferred by the
complainant at whose instance the crime in question in
Criminal Appeal No.19/2011 - C.R. No.I-55/2009, dated
22.10.2009 under Sections 307, 324, 325, 504 read with
Section 34 of the Indian Penal Code was registered with
Begumpura Police Station, Aurangabad. The appellant/
complainant in the Criminal Appeal No.95/2011 has
challenged the acquittal of the respondents/ accused
Nos.2 and 3 of the offences punishable under Sections
143, 147, 148, 120-B, 302 read with Section 149, 307
read with Section 149, 324 read with Section 149, 504
read with Section 149 and 201 read with Section 149 of
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
the Indian Penal Code, 1860 in Sessions Case No.
307/2009. The appellant/ complainant in Criminal
Appeal No.97/2011 has questioned the conviction of the
respondents/ accused Nos.2 to 4 under Section 304-II of
the Indian Penal Code instead of their conviction under
Section 302 of the Indian Penal Code, 1860 in Sessions
Case No.307/2009.
6. The present case arises out of a quarrel
which took place, admittedly, on the street abutting
Azhar Kirana Shop, Bismillah Colony, Aurangabad, in the
limits of Begumpura Police Station some time between
1.30 p.m. and 2.00 p.m. on 22.3.2009. According to the
complainant, Shaikh Feroz, he and his brothers
intervened to pacify accused No.1 Shaikh Amjad, who was
giving abuses to their nephew Shaikh Salman s/o Shaikh
Nazir in the presence of his father accused No.2 Shaikh
Asad and his friend accused No.3 Javed Pathan. Accused
No.2 Shaikh Asad and accused No.3 Javed Pathan in turn
started abusing them and accused No.1 Shaikh Amjad
started assaulting Salman with fist and kick blows.
About that time, the complainant added, he and Shaikh
Nazir tried to disengage accused No.1 Shaikh Amjad from
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
the assault, and thereupon accused No.2 Shaikh Asad and
accused No.3 Javed Pathan started assaulting them with
fist and kick blows, and accused No.3 Javed Pathan
handed over gupti to accused No.1 Shaikh Amjad and
caught hold of his brother Shaikh Nazir and then the
accused No.1 Shaikh Amjad gave blows with gupti on
stomach and person of Shaikh Nazir. The complainant
further disclosed that when his brother Shaikh Afroz
intervened to save Shaikh Nazir, the accused No.2
Shaikh Asad gave blows with hockey stick on his head
and right hand. The complainant further disclosed that
his sister Rehanabegum was also abused and manhandled
and, thereafter, the accused No.1 Shaikh Amjad and
accused No.3 Javed Pathan ran away from the said place.
7. Admittedly, Shaikh Nazir was admitted to
Government Medical College & Hospital, Ghati,
Aurangabad with bleeding injuries and he succumbed to
those injuries at the said hospital thereafter. One
more crime punishable under Section 302 of the Indian
Penal Code, 1860 was added to the list of offences
allegedly committed by the appellants/ accused upon the
demise of Shaikh Nazir.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
8. According to the prosecution, the accused No.
1 Shaikh Amjad discovered gupti used in the crime from
Salim Ali Sarovar, a lake in the vicinity of Delhi
Gate, Aurangabad; and the accused No.2 Shaikh Asad
discovered hockey stick used in the crime from the roof
of his house; and the accused No.5 Shaikh Shakil showed
the place of offence. Nothing was seized from the
place of offence. Clothes of the deceased Shaikh Nazir
as well as the clothes on the person of the accused No.
1 Shaikh Amjad and accused No.3 Javed Pathan were
seized. Seized articles were duly sent to the Forensic
Science Laboratory for further scientific
investigation. Statements of witnesses were recorded.
Post mortem examination of the body of deceased Shaikh
Nazir was conducted in the Forensic Department of
Government Medical College & Hospital, Aurangabad on
23.3.2009. The police collected injury certificate as
well as medical papers from Apex Superspeciality
Hospital, Aurangabad, where the injured Shaikh Afroz
had received medical treatment. On completion of
investigation, the charge sheet was duly lodged against
the accused.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
9. In course of time, the case was committed to
the Court of Sessions and the learned Additional
Sessions Judge, Aurangabad framed charges under
Sections 143, 147, 148, 120-B, 302 read with Section
149, 307 read with Section 149, 324 read with Section
149, 504 read with Section 149 and Section 201 read
with Section 149 of the Indian Penal Code, 1860 against
all the accused. The accused pleaded not guilty and
claimed to be tried.
10. The prosecution examined 11 witnesses
including injured Afroz, two Medical Officers, panchas
to the seizures and discoveries made, persons involved
in the incident, a passer-by and investigating
officers. Results of scientific investigation
conducted by Forensic Science Laboratory were also
placed before the Court. Human blood of 'A' Group -
blood group of the deceased was detected on the cut
shirt of the deceased as well as on cuff of left sleeve
of the full open shirt of accused No.1 Amjad. Besides
denouncing the prosecution case as a false one, the
accused No.1 Amjad and accused No.4 Zarina examined
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
themselves.
11. Occurrence of incident opposite Azhar Kirana
Shop around 2.00 p.m. on 22.3.2009 and description of
the locale was generally admitted by the defence except
the manner in which it had occurred. According to the
accused No.1 Amjad, his comment "Masti Me Aaya Kya?"
made in response to P.W.5 Shaikh Salman's conduct to
shock him with a cut of his motorcycle evoked a violent
response from P.W.5 Shaikh Salman and his relations
P.W.1 Feroz, P.W.7 Afroz and the deceased Nazir
inasmuch as they assembled in front of his residence
with arms in their hands - Salman with knife and others
with wooden logs, and gave call "Amjad Bahar Nikal",
and thereafter started beating him after he stepped out
of his house; and when Salman was about to assault him
with knife, accused No.2 Zarinabegum caught the knife
and sustained a bleeding injury; and in a beating
received by him, his right hand was fractured, and in
an ensuing scuffle between him and Salman thereafter
the knife in hand of Salman fell down; and he had given
a blow with that knife on the right side of the stomach
of the deceased Nazir to defend himself and the
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
deceased Nazir had sustained injury to his hand while
the knife was taken out of stomach; and thereafter he
fled away from the spot, leaving behind the knife, out
of fear of further assault.
12. D.W.2 Zarina, the accused No.4 in the case,
corroborated the appellant/ accused No.1 as regards the
occurrence of the incident and the manner in which she
had sustained injuries.
13. The learned trial Court, it is revealed, did
not whole-heartedly believe the prosecution version and
found the alleged involvement of accused No.4 Zarina
and accused No.5 given in the crime, a suspect.
Learned trial Court ignored the evidence of P.W.4
Azizkhan, a chance witness and based its findings on
the evidence of the complainant, P.W.1 Feroz, P.W.3
Bashir, P.W.5 Salman and P.W.7 Shaikh Afroz. Learned
trial Court viewed the incident as a free fight between
the parties and embarked on exploration of the evidence
so as to find out as to which party was aggressive, and
opined that the evidence of the said four witnesses,
though interested, is rather convincing as regards the
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
roles of the accused No.1 Amjad, accused No.2 Asad and
accused No.3 Javed as aggressors armed with weapons in
light of the defence they adopted. As regards the
injuries sustained by accused No.1 Amjad and accused
No.4 Zarina, learned trial Court did accept that the
said accused had sustained those injuries and the same
had remained unexplained, but such injuries might have
been caused in a free fight between two groups. Based
on this premise, learned trial Court passed the verdict
of guilt as against the appellants/ accused.
14. Learned Advocate Mr. Ghanekar for the
appellants/ accused submitted that the prosecution has
been guilty of suppressing the genesis of incident and
none of the witnesses to the incident offered any
explanation for the injuries sustained by the accused.
On this backdrop, he submitted, the defence that the
accused exercised their right to defend themselves and
the incident was result of such exercise of right of
private defence stood probabalized, more particularly,
in context with the testimonies of D.W.1 Amjad and D.W.
2 Zarina. To reinforce his submissions, he invited the
attention of the Court to the following judgments :
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
1) 2009 Cri.L.J. 2274 (SC)
(State of Uttar Pradesh V s. Gajeysingh & anr.)
2) AIR 2008 SC 3284
(Satyanarayan Yadav Vs. Gajanna)
3) 1976 Cri.L.J. 1736(1) SC.
(Laxmisingh & ors. Vs. State of Bihar)
4) 1997 Cri.L.J. 3839
(Sarjerao Gaikwad Vs. State of Maharashtra)
5)
2008 Cri.L.J. 1651
(Baburao & ors. Vs. State of Punjab)
6) AIR 2002 SC 2980
(Subramani & ors. Vs. State of Tamil Nadu).
He urged the Court to eschew hypertechnical
approach and to pragmatically view the evidence for
assessing the plea of exercise of right of private
defence. According to him, the evidence concerning the
exercise of right of private defence is not to be
weighed in golden scales. If such approach is adopted,
he submitted, it can be seen that the appellants/
accused deserved acquittal in the present case.
15. On the other hand, learned Advocate Mr. Ladda
for the appellant/ complainant in Criminal Appeal Nos.
95/2011 and 97/2011 submitted that there was no life
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
threat to the accused No.1 from the deceased Nazir and
the exercise of right of private defence at the most
could have been against P.W.5 Shaikh Salman, who was
allegedly wielding knife, and such right ceased to be
available the moment it came in the hand of Amjad.
According to learned Advocate Mr. Ladda for the
complainant, the intention to kill the deceased Nazir
was manifest from the fact that the knife completely
penetrated vital organ of the deceased and was moved
thereafter. He pointed out that the situation at the
material time was under control of Amjad when he took
away his mother P.W.2 Zarina from the spot. The fact
that the accused No.2 Shaikh Asad had caused injury to
P.W.7 Shaikh Afroz with hockey stick, he argued, is
enough to show that the accused No.1 Amjad was not
alone and helpless. He submitted that recovery of
sticks in a counter case was disbelieved by the learned
trial Court and likewise causing of injury to accused
Zarina stood falsified in her cross-examination in the
said case. He urged the Court to disbelieve the
defence as the defence did not examine any independent
witness in its support. According to him, the facts in
the case cannot be covered by any of the exceptions
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
under Section 300 of the Indian Penal Code, 1860 and as
such, the act of killing deceased Nazir was nothing
else but plain murder.
16. Learned Advocate Mr. Ladda for the
complainant relied upon following judgments to assist
the Court on the points as enumerated hereinbelow :
(I)
Intention to kill :
1. AIR 1972 SC 2574
(Chahat Khan Vs. State of Haryana)
2. AIR 1980 SC 448
(Mannam Balaswamy Vs. State of A.P.)
3. AIR 1994 SC 1400
(Babubhai Ranchodbhai Patel & anr. Vs. State
of Gujarat)
(II) Single injury leading to murder :
1. AIR 2008 SC 1854
(Bavisetti Kameshwara Rao @ Babal Vs. State
of A.P.)
2. 2008 AIR SCW 4271
(Katta Surendra Vs. State of U.P.)
3. AIR 2006 SC 2659 (1)
(Pappu Vs. State of Madhya Pradesh)
(III) Applicability of exception :
1. 2008 AIR SCW 5689
(Bangaru Venkata Vs. State of Uttar Pradesh)
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
2. AIR 1978 SC 1082
(Pandurang Narayan Jawalekar Vs. State of
Maharashtra)
3. AIR 1993 SC 2426(1)
(Kikarsingh Vs. State of Rajasthan)
4. AIR 1956 SC 99
(Narayan Nair Raghavan Nair Vs. State of
Travancore - cochin)
(IV)
Private Defence
ig :
1. AIR 1978 SC 414
(Vishvas Aba Kurane Vs. State of Maharashtra
etc.)
2. Appeal (Crl.) No.30/2004 & 31/2004
Dated : 24.2.2005
(Mangu Khan & ors. Vs. State of Rajasthan)
17. A clear fact emerges from reading of the
evidence of the persons involved in the incident in
conjunction with undisputed piece of evidence - scene
of offence panchanama (Exhibit 38) that the incident
had occurred on a street abutting Azhar Kirana Shop in
front of the residence of the appellants/ accused. It
can also be seen from the conjoint reading of the
prosecution evidence as well as the evidence adduced on
behalf of the defence that the utterances made by Amjad
- in words of D.W.1 Amjad - "Masti Me Aaya Kya?"
addressed to P.W.5 Salman ignited the incident.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
18. According to the prosecution witnesses, they
went to the said place after leaving their residence
situated 2 or 3 houses apart to pacify the accused
persons, and the accused persons had assaulted them by
kicks and fist blows, and about that time the accused
No.3 Javed took out gupti (Article 9) from his back
side and handed it over to accused No.1 Amjad and the
accused No.3 Javed caught hold of deceased Shaikh Nazir
from back side and accused No.1 Amjad gave blows with
gupti (Article 9) on stomach of the deceased Nazir.
19. According to P.W.1, Feroz, the complainant,
accused No.1 Amjad gave blow with gupti on stomach and
right hand of the deceased; and initially when P.W.7
Afroz went there to save the deceased, the accused No.2
Asad gave a blow with hockey stick (Article 8) on his
head. Curiously, he expressed ignorance about the
injuries sustained by accused No.1 Amjad and
Zarinabegum in the incident. In his cross-examination,
he deposed, except they, their relatives and the
accused persons, no others were present there and none
amongst them, i.e. the persons involved in the incident
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
and their relatives, were having any weapon with them
and nobody assaulted any of the accused persons.
However, at the close of his long cross-examination, he
volunteered a statement that after the accused Amjad
assaulted the deceased the hand of Amjad was fractured,
without further elaborating how it got fractured. This
fact shows that he was knowing the fact of fracture
sustained by Amjad, yet he did not reveal anything
about it till a suggestion was made to him that they
had assaulted Amjad by a stick leading to the fracture
of the hand of Amjad.
20. Cross-examination of P.W.1 Shaikh Feroz
further reveals that he made improvements in his
testimony as under :
(a) That, Shaikh Shakil brought Shaikh Nazir on
motorcycle,
(b) That, all accused persons abused them and
assaulted them by fist and kick blows.
(c) That, the accused Javed took out gupti from
the back side of his person.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
21. P.W.3 Shaikh Bashir gave more or less similar
version of the incident as given by P.W.1 Feroz.
However, he admitted a fact in his cross-examination
that at the time of the incident Zarinabegum had
sustained injury due to cutting of her fingers. His
testimony also suffered from the vice of improvement.
His cross-examination demonstrated that he made
improvements in his testimony as under :-
(i) That, they saw Zarina abusing and beating
Salman.
(ii) That the accused abusing them and assaulting
them with fist and kick blows.
(iii) That the accused No.3 Javed handed over
gupti to accused No.1 Amjad.
(iv) That Javed caught hold of the deceased Nazir.
(v) That after the incident, the accused ran away
from the spot.
22. Significantly, P.W.4 Azizkhan, a passerby,
who claimed to be an eye witness, chose to remain
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
ignorant about the injuries sustained by accused No.1
Amjad and accused No.4 Zarina and towed line of P.W.1
Feroz.
23. While singing more or less the same tune as
that of P.W.1 Feroz in his examination-in-chief, the
P.W.5 Shaikh Salman interestingly revealed in his
cross-examination that he tried to snatch weapons from
the hands of accused No.1 Amjad and accused No.2 Asad
and yet had not sustained injuries to his hand. He too
deposed that the accused No.4 Zarinabegum had not
sustained injuries on her fingers at the time of
incident and nobody from them assaulted Zarinabegum and
Amjad, and he remained ignorant regarding the fracture
sustained by accused No.1 Amjad. His cross-examination
further revealed that he had made improvement in his
testimony as follows :-
(a) That, the accused abused and assaulted them.
(b) That the accused Javed handed over gupti to
accused Amjad at the time of arrival of his
father Nazir.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
(c) That Amjad gave blow with gupti on the hand
of his father.
(d) That the accused Asad gave blow on the head
of Afroz and Feroz.
24. Spectrum of evidence adduced certainly leads
one to believe that the injuries were sustained by the
persons from both the sides in the incident which
occurred in front of the house of the accused on
22.3.2009. However, both the parties have come out
with their respective versions of the incident wherein
the prosecution version lacks in explanation regarding
injuries sustained by the accused. Though the accused
No.1 Amjad was candid enough to give the account of the
injury caused to the deceased Nazir, the prosecution
witnesses not only remained reticent about how the
injuries were caused to the accused No.1 Amjad and
accused No.4 Zarina, but even dismissed the fact that
the injuries were sustained by accused No.1 Amjad and
accused No.4 Zarina in course of the incident. In this
backdrop, the observations made by the learned trial
Court that such injuries might have been caused in a
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
free fight between two groups is nothing but a
conjecture and, therefore, the plea of exercise of the
right of private defence made by the accused warrants
anxious consideration.
25. After going through the judicial
pronouncements of the Hon'ble Apex Court in the cases
cited on behalf of the appellant/ accused in Criminal
Appeal No.19/2011, it can be seen that the proof of the
exercise of right of private defence is not as onerous
on the accused claiming such right as it is on the
prosecution, and preponderance of probability in favour
of such plea is sufficient and the Court, while
considering the issue of extent of the right of private
defence, has to pragmatically view the fact situation
and is not expected to weigh the circumstances in
golden scales for that purpose.
26. In Gajesingh's case (supra), Gajesingh and
Rajpalsingh, duo of brothers, were charged with murder
of Lakhiram by single gunshot allegedly fired from a
licenced gun of their father by Rajpalsingh in course
of the fight between Lakhiram and Gajesingh in front of
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
their (accused's) house. Both the accused were
convicted of the offence under Section 302 read with
Section 34 of the Indian Penal Code, 1860 and were
sentenced to imprisonment for life by the learned trial
Court. In the appeal preferred from the judgment of
the High Court upholding the said conviction and
sentence the Hon'ble Apex Court, after having
considered the defence version that Lakhiram was killed
by the father of the accused Meharsingh on seeing his
sons being assaulted by lathi and balkathi, accepted
the plea of right of private defence. Acceptance of
such plea of right of private defence was propelled due
to non explanation of injuries sustained by the accused
in the incident.
27. In the instant case, we have more or less the
similar situation. Pertinently, the incident had
occurred in front of the residence of the accused,
where, according to the accused No.1 Amjad, the P.W.5
Salman, P.W.1 Feroz, P.W.7 Afroz, the deceased Nazir,
armed with weapons i.e. Salman with knife and others
with wooden logs assembled in front of their house some
10 minutes after he had rebuked P.W.5 Salman with
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
utterances "Masti Me Aaya Kya?", and called him to step
out of his residence. This fact clearly points out as
to who were the aggressors and whether the incident was
generated out of a free fight.
28. The accused No.1 Amjad further deposed that
his mother Zarina intervened and had sustained bleeding
injuries on catching knife in the hand of P.W.5 Salman
when he was about to assault him with knife. He added
that he sustained fracture to his right hand as a
result of all of them beating him. Injuries sustained
by the accused No.1 Amjad and accused No.4 Zarina do
add weight to the defence version. Thus, preponderance
of probability of occurrence of the incident as deposed
by accused No.1 Amjad and accused No.4 Zarina becomes
manifest particularly in absence of explanation in the
prosecution version of the incident regarding
occurrence of such injuries. He added that in the
scuffle between him and P.W.5 Salman, the knife in the
hands of P.W.5 Salman fell down, which he lifted and
used it for giving blow on the right side of the
stomach of the deceased Nazir.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
29. Detection of human blood stains of Group "A"
blood - the blood group of the deceased Nazir on the
left sleeve of the shirt of the accused No.1 Amjad and
no other part point out to a pertinent fact that the
blow of knife was given by the accused No.1 Amjad with
his left hand on the right hand side of stomach of the
deceased Nazir facing him. This sounds probable in the
circumstances wherein right hand of the accused No.1
Amjad was fractured and made defunct in the assault
leaving no option but to use his left hand. This
further probabalizes the accused No.1 Amjad's version
that he had given blow of knife on the stomach of the
deceased Nazir after his hand was fractured in the
assault.
30. These revelations, however, beg a question as
to whether the accused No.1 Amjad had exceeded his
right of private defence when the knife from the hand
of P.W.5 Salman fell down. To answer this question,
one has to further probe into the facts. Injury
sustained by accused No.1 Amjad, fracture of right hand
probabalizes a fact of assault on the accused No.1
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
Amjad with sticks particularly in absence of an
explanation surfacing in the prosecution evidence
therefor.
31. Stick is no less a deadly weapon than knife
and is sufficient to instill in the mind of the victim
who had already suffered fracture of hand, fear or
apprehension of either losing life or of suffering one
more grievous injury in case of assault with such
weapon. There was no reason for accused No.1 Amjad not
to entertain such apprehension after having suffered
fracture to his right hand due to the assault with
sticks. Even after the knife fell from the hands of
P.W.5 Salman, the accused No.1 Amjad, who was facing a
reasonable apprehension of threat to himself was not
expected, as in the words of the Hon'ble Apex Court, to
modulate his defence step by step with any arithmetical
exactitude of only that much which is required in the
thinking of a man in ordinary times or under normal
circumstances. Self preservation was the paramount
consideration in the eyes of the accused No.1 Amjad at
the material time as it is predominant basic instinct
in all living being. Even a mighty tiger with claws
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
and paws in his armoury attacks relatively defenceless
human being out of fear; and the accused No.1 Amjad
being not an exception, was not expected to act
differently.
32. The deceased Nazir had sustained the
following injuries due to use of weapon like knife/
gupti (Article 9) :-
(1) Clean cut injury admeasuring 3.5 cm x 1 cm x
subcutaneous, on approximation 4 cms., margin
clean cut both angles acute horizontally and
tailing over lateral angle.
(2) Clean cut stab wound admeasuring 3.5 cm x 1
cm x cavity deep, on approximation 7 cms.,
elliptical in shape, obliquely placed, lower angle
directed medially and both angles acute with
undermining of medial margin.
33. According to P.W.2 Dr. Jambure, the
Mortician, the weapon was moved after piercing it in
abdomen. This fact, however, has to be viewed in light
of the disclosure in the cross-examination of P.W.2 Dr.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
Jambure that during stabbing there is considerable
relative movement between assailant and victim, and the
movement of blade of weapon following the stab can be
altered on account of such movement.
34. Evidence shows that there existed
circumstances which would have reasonably caused
apprehension in the mind of anyone facing the assault
made by group of men armed with knife and sticks that
he was either to meet his end or suffer grievous hurt
at the hands of the assailants, and the accused No.1
Amjad could not have been an exception to feel
otherwise under such circumstances. Undisputedly, the
accused No.1 Amjad and others fled from the scene of
offence. The accused No.1 Amjad deposed that he ran
away from the spot out of the fear of assault by
Salman, Afroz and Feroz on him. Nothing better than
this emanates from the evidence to shed light on the
then mental condition of the accused No.1 Amjad.
35. As regards accused No.2 Shaikh Asad, there is
evidence of P.W.7 Shaikh Afroz that he was assaulted by
the accused No.2 Shaikh Asad on right side of his head
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
and near right eye with hockey stick (Article 8) when
he rushed to save Shaikh Nazir. P.W.7 Shaikh Afroz
averred about his hospitalisation thereafter. Though
the prosecution did not examine anybody from Government
Medical College & Hospital (Ghati), Aurangabad, the
evidence of P.W.9 Dr. Bhavna Takalkar corroborates the
fact of hospitalisation of P.W.7 Shaikh Afroz for
medical treatment of head injury at Apex Hospital,
Aurangabad between 23.3.2009 and 25.3.2009. She
produced medical case papers (Exhibit 67) and case
papers (Exhibit 69) and revealed the medical history of
assault with hockey stick by Shaikh Afroz. P.W.1
Shaikh Feroz, P.W.3 Shaikh Bashir and P.W.5 Shaikh
Salman also averred about role of accused No.2 Shaikh
Asad in the crime. Discovery of hockey stick (Article
8) by accused No.2 Shaikh Asad is one more piece of
evidence incriminating the accused No.2 Shaikh Asad in
the present case.
36. Accused No.2 Shaikh Asad took defence of
plain denial before the trial Court. However, before
us, he has joined the chorus of the plea of exercising
right of private defence sung by the convicted co-
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
accused.
37. Section 96 of the Indian Penal Code, 1860
declares in clear terms that nothing is an offence
which is done in the exercise of the right of private
defence. These words of law, in our considered
opinion, cast obligation on the Courts judging the
culpability of the accused persons to ascertain whether
the act/s of every accused involved in the crime was/
were done in the exercise of the right of private
defence or not, if such plea is raised by anyone of the
accused either before the trial Court or before the
appellate Court. This obligation becomes patent from
the very words of the succeeding Section i.e. Section
97, which confers right on every person, subject to the
restrictions contained in Section 99, to defend - his
own body and the body of any other person against any
offence affecting the human body. We are, therefore,
cast with an obligation to examine the facts and
circumstances emerging through the evidence in order to
find out whether the actions of accused No.2 Shaikh
Asad were not an offence being done in the exercise of
the right of private defence.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
38. P.W.1 Shaikh Feroz, P.W.3 Shaikh Bashir, P.W.
5 Shaikh Salman and P.W.7 Shaikh Afroz were unanimous
in making an averment that all the accused assaulted
them. P.W.1 Shaikh Feroz and P.W.3 Shaikh Bashir
elaborated this fact further with averment that the
accused assaulted them by fist and kick blows. In a
free fight as the case is tried to be made out, it is
surprising that the accused No.2 Shaikh Asad, when
armed with hockey stick, would have assaulted P.W.1
Shaikh Feroz, Nazir and P.W.7 Shaikh Afroz with fist
and kicks blows. P.W.1 Shaikh Feroz went to the length
of making an averment that accused No.2 Shaikh Asad
assaulted him with hockey stick on his right hand.
However, there is no medical evidence to support this
averment. Interestingly, P.W.5 Salman averred in his
cross-examination that he tried to snatch weapons -
Gupti and hockey stick in hands of the accused No.1 and
accused No.2 Shaikh Asad and yet suffered no injuries.
39. Material improvements noticed in the evidence
of the prosecution witnesses as aforesaid do suggest
that the prosecution witnesses were deviating from the
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
truth in an effort to present an orchested version of
the incident. In the given circumstances, it is very
unlikely, rather improbable, that accused No.3 Javed,
in a free fight ensued between the two groups wherein
he allegedly participated, would have handed over a
potent weapon of assault - gupti carried by him on his
person to accused No.1 Amjad. One also wonders how
P.W.4 Azizkhan figured as witness when P.W.1 Shaikh
Feroz had ruled out presence of anybody else other than
the victim and assailants at the place of incident at
the material time.
40. On the other hand, the defence version, as
discussed above, appears to be more probable and not
implausible in given set of facts and circumstances
emerging through the evidence of the rival parties.
Accused No.2 Shaikh Asad, therefore, can be said to
have had reason to apprehend danger to the life of his
son accused No.1 Amjad at the hands of the rivals armed
with sticks. Evidence further reveals that there was
no involvement of any public servant in the incident
nor was there any time available to the accused to have
recourse to the protection of public authorities.
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
Actions of accused No.1 Amjad and accused No.2 Shaikh
Asad, therefore, can be read as actions in exercise of
the right of private defence.
41. As regards accused No.3 Javed, it can be seen
that there is a room to question his alleged
involvement in the crime as alleged in the light of the
facts and circumstances emanating in the evidence.
42. Lastly it needs to be observed that the cross
case - Sessions Case No.60/2010 against P.W.1 Shaikh
Feroz and P.W.7 Shaikh Afroz ended in acquittal as
their involvement in the crime alleged was assessed by
applying strict standards of proving the case against
them beyond reasonable doubt. Such standard is not
expected in answering the worth of the plea of exercise
of the right of private defence in the present case.
Acquittal of P.W.1 Shaikh Feroz and P.W.7 Shaikh Afroz
is, therefore, of little consequence.
43. Judgments cited on behalf of the appellant/
complainant in Criminal Appeal Nos.95/2011 and 97/2011,
therefore, have no application in facts and
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
circumstances of the present case. No perversity or
unreasonableness can be attributed to the learned trial
Court in acquitting the respondents/ accused in
Criminal Appeal No.95/2011.
44. Criminal Appeal No.19/2011 is, therefore,
allowed. The appellants/ accused in Criminal Appeal
No.19/2011 are acquitted of the offences punishable
under Section 304-II of the Indian Penal Code, 1860.
Appellant No.1 Shaikh Amjad in Criminal Appeal No.
19/2011 is acquitted of the offence punishable under
Section 201 of the Indian Penal Code, 1860. The
appellant No.2 Shaikh Asad in Criminal Appeal No.
19/2011 is acquitted of the offence punishable under
Section 307 of the Indian Penal Code, 1860. Conviction
and sentences imposed on the appellants/ accused in
Criminal Appeal No.19/2011 are set aside. The
appellants in Criminal Appeal No.19/2011 are ordered to
be set at liberty unless required in any other case.
Fine amounts, if any deposited, be refunded to the
respective accused.
45. Criminal Appeal No.95/2011, Criminal Appeal
Cri.Appeal No.19/2011 with
Cri.Appeal Nos.95/2011,
97/2011 & 318/2011
No.97/2011 and Criminal Appeal No.318/2011 are
dismissed.
(U.D. SALVI, J.) (A.H. JOSHI, J.)
