Gulam Dastagir @ Budda Rahimtulla ... vs The State Of Maharashtra
2015 Latest Caselaw 216 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION




                                                                         
                   CRIMINAL APPEAL NO.104 OF 2007




                                                 
    Gulam Dastagir @ Budda Rahimtulla Shaikh
    Aged 21 years, Indian Inhabitant,
    Occ : Rickshaw Driver,
    Permanent resident of
    Chirag Nagar, Kaju Tekdi,




                                                
    Sudha Seva Society, Ghatkopar (West),
    Mumbai 400 086.                                       ..Appellant.

          versus




                                         
    The State of Maharashtra
    (At the instance of Ghatkopar
                         
    Police Station vide C.R.No.27 of 2006)              ..Respondent.
                                        .....
    Dr. Yug M. Chaudhary with Ms. Parijata Bhardwaj, Ms. Naima Shaikh
                        
    and Mr. Talat Sayed i/b Khan Abdul Wahab for the Appellant.
    Smt. V.R. Bhonsale, Addl.P.P. for the State.
                                        .....
                                 CORAM : SMT V.K. TAHILRAMANI &
                                              A.S. GADKARI, JJ.

24th August, 2015.

ORAL JUDGMENT (PER SMT V.K. TAHILRAMANI, J.) :

The Appellant - original accused No.1 has preferred this Appeal

against the judgment and order dated 20th December, 2006 passed by

the learned Adhoc Additional Sessions Judge, Sewree, Mumbai in

Sessions Case No.336 of 2006. By the said judgment and order the

learned Sessions Judge convicted the Appellant under Section 302 of

the Indian Penal Code and sentenced him to imprisonment for life and

fine of Rs.5,000/-, in default further rigorous imprisonment for three

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months.

2. The prosecution case briefly stated is as under :

It is the prosecution case that on 17th January, 2006 at about

5.45 p.m. the Appellant assaulted Mahesh Chavan with a knife and

caused his death. The incident occurred in Ganesh Maidan which is

situated at Ghatkopar, Mumbai. The incident was witnessed by P.W.1 -

Sachin, P.W.2 - Vinod and P.W.5 - Pratibha. Out of them P.W.1 - Sachin

who knew the deceased as well as the Appellant lodged the F.I.R.

Thereafter investigation commenced. After completion of investigation

charge-sheet came to be filed.

3. Charge came to be framed against the Appellant and two other

accused under Section 120B and under Section 302 of the Indian Penal

Code. All the accused pleaded not guilty to the said charge and

claimed to be tried. Their defence is that of total denial and false

implication. After going through the evidence adduced in this case,

the learned Sessions Judge acquitted original accused Nos.2 and 3 of

all the charges. However, the learned Sessions Judge convicted and

sentenced the Appellant as stated in paragraph 1 above, hence, this

Appeal.

4. We have heard learned counsel for the Appellant and the learned

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APP for the State. We have carefully considered their submissions, the

facts and and circumstances of this case, the judgment and order

passed by the learned Sessions Judge and evidence in this case. After

carefully considering the matter, for the below mentioned reasons, we

are of the opinion that there is no merit in the Appeal.

5. In order to support the conviction, the prosecution has placed

reliance on the evidence of three eye-witnesses i.e. P.W.1 - Sachin,

P.W.2 - Vinod and P.W.5 - Pratibha. P.W.1 - Sachin has stated that he

knew deceased Mahesh as he was his Gym partner. On 17 th January,

2006 at about 6.45 p.m. when he was returning home, he noticed the

Appellant stabbing deceased Mahesh with a knife in front of the house

of the deceased which was situated in Laxmibai Chawl. On account of

the stab injuries, there was profuse bleeding from the body of

Mahesh. On account of the injuries Mahesh collapsed on the ground.

He then took Mahesh to Rajawadi Hospital, where the doctor declared

that he was dead.

6. P.W.2 - Vinod is the second eye-witness. Vinod has stated that

on 17th January, 2006 he had come out of the house to ease himself.

When he was returning back, he saw the Appellant assaulting Mahesh

with a knife. After the incident, Mahesh was taken to the hospital.

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    7.    P.W.5 - Pratibha is the last eye-witness in this case.           She has

stated that she was residing at Laxmibai Chawl at Ghatkopar (West),

Mumbai along with her family. She has further stated that on 17 th

January, 2006 at about 5.45 p.m., she was standing on the road

adjoining Ganesh Maidan. At that time, she saw the Appellant giving

blows with knife to Mahesh Chavan.

8. On going through the evidence of all the three eye-witnesses, we

find that nothing has been elicited in the cross-examination of any of

these three witnesses so as to disbelieve their testimony. We find their

testimony to be wholly truthful, consistent and reliable and hence, we

have no hesitation in relying on the same.

9. In addition to the evidence of the three eye-witnesses, the

prosecution has also placed reliance on the evidence of P.W.6 - Satish.

Satish has stated that on 17th January, 2006 at about 5.45 p.m. when

he was returning home, he saw the Appellant running away with a

knife. After crossing some distance, Satish saw that Chavan was lying

in pool of blood and Sachin (P.W.1) and another boy lifted Mahesh and

put him in rickshaw.

10. It was contended by learned counsel for the Appellant that the

case would not fall under Section 302 of the Indian Penal Code, but it

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would fall under Section 304 Part I of the Indian Penal Code. He

submitted that the incident would fall either under Exception 1 or

Exception 4 to Section 300 of the Indian Penal Code. Exception 1 deals

with an act which occurs on account of grave and sudden provocation

and Exception 4 deals with an act which occurs during a sudden

quarrel. To support his contention that it is a case of grave and sudden

provocation, he has placed reliance on the evidence of P.W.5 - Pratibha

who has stated that just before the Appellant stabbed Mahesh Chavan,

Mahesh Chavan challenged accused No.1 and asked him to do

whatever he wanted to do. Thereafter the Appellant stabbed Mahesh

Chavan. In our view, this sentence by the deceased is not of such a

nature that it would lead to grave and sudden provocation to the

Appellant due to which the Appellant would have stabbed the

deceased ten times with a knife. Out of these 10 incised wounds

sustained by Mahesh Chavan, six of them were on the left side of the

chest. Looking to the facts and circumstances of this case, in our

opinion, the instant case would not be covered by Exception 1 i.e. the

act which takes place on account of grave and sudden provocation.

11. Thereafter learned counsel for the Appellant again placed

reliance on the evidence of P.W. 5 - Pratibha to show that the incident

took place during a quarrel. He submitted that in this view of the

matter, the case would be covered by Exception 4 to Section 300 i.e.

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an act which occurs during a sudden quarrel. He drew our attention to

the evidence of P.W.5 - Pratibha wherein she has stated that a scuffle

took place between the Appellant and the deceased. A quarrel started

between the Appellant and the deceased. Thereafter the Appellant

started giving blows with a knife to the deceased. To bring a case

within Exception 4 to Section 300 of the Indian Penal Code, all the

ingredients mentions in it must be found. For the application of

Exception 4 to Section 300 of the Indian Penal Code, it is not sufficient

to show that there was a sudden quarrel and there is no premeditation

on the part of the accused, but it must further be shown that the

accused has not taken any undue advantage or acted in a cruel and

unusual manner. The fact that the Appellant assaulted the deceased

with a knife ten times on the body and out of these, six blows were

given on the left side of the chest of the deceased and the fact that

the deceased was unarmed, shows that the Appellant had taken undue

advantage of the situation especially of the fact that the deceased was

unarmed. It may also be stated that the medical evidence shows that

in all the deceased sustained 14 injuries. Out of these 14 injuries, 10

are incised wounds. The rest are abrasions. Out of the 10 incised

wounds, 6 are on the left side of the chest. The internal injuries show

that injury No.4 perforated pleura as well as heart, injury No.5

perforated pericardium and the lower pole of the heart and injury No.6

caused perforation of the lung. Keeping in view the number and

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nature of injuries, it shows that the Appellant did not just have the

knowledge that the act would be likely to cause death, but the

Appellant intended to cause death of Mahesh. Looking to the facts

and circumstances of this case, the nature of the weapon used, the

part of the body on which the injuries were inflicted, the force used

while assaulting and the nature of the injuries, which injuries as seen

from the medical evidence were extensive in nature, we are of the

considered opinion that the case would not fall under Exception 1 or

Exception 4 to Section 300 of the Indian Penal Code. Hence, we find

no merit in the Appeal. The Appeal is dismissed.

    (A.S. Gadkari, J.)                       (Smt. V.K. Tahilramani, J.)