Bombay High Court
Nasir Abdul Farid Khan @ Nasir ... vs The State Of Maharashtra on 7 June, 2016
Bench: V.K. Tahilramani
Sherla V.
apeal.4.2011+(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.4 OF 2011
Riyajuddin Allauddin Khan @ Pammu
E/43, IOC Colony, G.P. Road Bungalow
Andheri (West), Mumbai-400058
(currently in Nashik Jail) ... Appellant
Vs.
State of Maharashtra
(through R.A.K. Marg Police station, Mumbai) ... Respondent
WITH
CRIMINAL APPEAL NO.846 OF 2010
Nasir Abdul Farid Khan @ Nasir Kanya
57, Charvi Chawl, Rahat Nagar
Pathan Masjid, Sewree Cross Road
Mumbai - 400031
(currently in Nashik Road Central Prison,
Nashik) ... Appellant
Vs.
State of Maharashtra
(through R.A.K. Marg Police station, Mumbai) ... Respondent
Mr.R.A. Shaikh i/b Abhishek yende, for the Appellants
Mrs.U.V. Kejriwal, APP, for Respondent - State
CORAM: SMT.V.K. TAHILRAMANI &
MRS.MRIDULA BHATKAR, JJ.
DATE: JUNE 7, 2016
ORAL JUDGMENT (PER MRS.BHATKAR, J.):
1. These two appeals are directed against the judgement and order
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dated 17.8.2010 passed by the Additional Sessions Judge, Greater
Mumbai in Sessions Case No.603 of 2007. The appellants Riyazuddin
Allauddin Khan in appeal No.4 of 2011 is the original accused No.1 and
appellant Nasir Abdul Farid Khan @ Nasir, Kanya in Criminal Appeal
No.846 of 2010 is the original accused No.2 in the Sessions Case No.603
of 2007. The appellants were charged and convicted for the offence
punishable under sections 302 r/w 34 of the Indian Penal Code and are
sentenced to suffer life imprisonment and to pay a fine of Rs.2,000/- each
and In default to undergo R.I. For six months. The Complainant Alangit
Kamar Khan @ Kausar gave information to the police on 11.4.2007 of the
murder of one Rajeshkumar Shreekrishnaji Shrivastav @ Raju by the
appellants/accused at around 1430 hours pursuant to which the offence
was registered at C.R. No.103 of 2007 with R.A.K. Marg police station,
Mumbai. It is the case of the prosecution that the complainant Alangit and
his brother Jehangir were in the business of making readymade garments
on 10.4.2007. Accused No.1 Riyazuddin Khan @ Pammu, accused No.1
in the afternoon objected to the residents throwing trash or the dust in the
dustbin fixed near his shop. Accused No.1 @ Pammu was also a resident
of the locality from his childhood. The complainant challenged the said
objection taken by accused No.1. At that time, the accused No.2, who
was alongwith the accused No.1, abused and threatened the complainant.
The People gathered. Accused No.1 brought a chopper from the
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butchers' shop and by brandishing the said chopper, he threatened the
complainant and other people. At that time, the deceased Raju intervened
and tried to pacify the quarrel. At that time, accused Nos.1 and 2 asked
Raju as to why he wanted to intervene in the matter. The next day, i.e.,
on 11.4.2007, when the complainant was at home, and his brother
Jehangir and the deceased Raju were standing near his room, both the
appellants arrived there and they asked Jehangir to tender apology for the
incident of 10.4.2007. The complainant told them hat this brother would
not tender apology. However, accused No.1 insisted for apology and
when it was refused, accused No.1 took out a weapon looking like a
chopper or a sickle and he thrusted from the backside in the stomach of
Raju who was quietly standing there. Due to this sudden attack, Raju
started running. However, Nasir, accused No.2, caught Raju and
assaulted him with the chopper. The said chopper broke because of the
assault, however, he caught hold of Raju and accused No.1 stabbed on
the chest of Raju. When people started coming there, they were warned
and threatened by the appellants and thereafter the accused ran away.
The complainant came running. His brother Jehangir and other people
shifted Raju to KEM hospital. Raju was declared dead. The complainant
rushed to the police station and gave the complaint. The police arrived at
the spot, drew spot panchanama; recorded statements of the witnesses;
arrested the accused and seized the blood stained clothes of the accused;
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collected the post-mortem report and CA report and after completion of
investigation, chargesheet was filed. The case was committed to the
Court of Sessions.
2. The Sessions Court framed charge against accused No.1 and 2
(and another person by name Mohd. Javed Shafi Shaikh @ Chichi, who
was acquitted from all the offences) under sections 302 r/w 34 of the
Indian Penal Code and under section 4, 25 (1-B)(b) of the Arms Act and
section 37 of the Bombay Police Act.
3.
The prosecution examined 10 witnesses and produced articles so
also documentary evidence before the Court. However the accused put
up the defence that they are innocent and they have not committed any
offence. After considering the evidence tendered by the prosecution and
the defence adopted by the accused persons, the learned Sessions Judge
held the accused Nos.1 and 2 guilty for the offence of murder of Raju.
Hence, these appeals.
4. Mr.Shaikh, the learned Counsel for the Appellants, submitted that
the conviction is based on erroneous appreciation of evidence. The
evidence of PW1 and PW2, who claimed to be the eye witnesses, is not
reliable. The prosecution could not establish any motive behind the
murder. Though the complainant PW1 Alangit Khan @ Kausar, has given
admission that the accused persons had no enmity against the
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complainant or Raju or the witnesses. He argued that there are
inconsistencies and contradictions in the evidence of PW1 and PW2. He
submitted that as per the case of the prosecution on 10.4.2007, a small
boy who wanted to dump trash in the public dustbin, was stopped by the
accused No.1 Pammu who was running a cellphone store opposite the
said dustbin. The learned Counsel submitted that the statement of the
small boy was necessary to prove the incident of the earlier day. He
argued that the incident of 10.4.2007 is imaginary and it is a bogus
creation just to make out a case of motive for section 302 of the Indian
Penal Code. On the point of the incident, he submitted that both the
brothers i.e., PW1 and PW2, cannot be believed. At the time of incident,
Alangit was on the loft of the house and so it was not possible for him to
see the incident and also hear the conversation between the accused
Nos.1 and 2 and Jehangir or Raju. He further submitted that the role
attributed to Nasir is false. He was really not present on the spot. He
further submitted that in the proforma of the FIR, the time of death is
mentioned as 14.30 hrs. Then, at 14.45 hrs, the offence was reported.
However, in the post-mortem notes, the time of death of Raju is mentioned
after 3 pm (i.e., 1500 hours). Therefore, this complaint was subsequently
manipulated as the complainant had no knowledge of the death of Raju.
He further submitted that the prosecution has introduced a bogus theory of
presence of two persons as assailants on the spot. In order to support his
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submissions, he relied on the case papers of KEM hospital where the
history of assault by known person is mentioned. He also relied on the
case papers of the casualty of KEM hospital where the history of assault
with sharp object by known person is mentioned. In the notes of case
papers of KEM hospital, it is mentioned everywhere as by known 'person'.
The learned Counsel submitted that nowhere it is mentioned in plural i.e.,
'persons' but only in singular and it shows that the assault was committed
only by one person. Thus, the incident has not taken place as described
by eye witnesses and therefore, it is to be disbelieved.
ig He further
submitted that the statement of Hamid Kazi, an independent eye witness,
is not examined by the prosecution. He further argued that this is not a
case under section 302. At the most, it can be considered as a case
under section 304(1) of the Indian Penal Code. He submitted that on the
point of spot panchanama, PW5 Ajay Shonu Pawar, a panch witness, has
turned hostile. The spot panchanama, which is produced as exhibit 29,
proved through PW6 Anil Ramesh Sawant, is not reliable. Learned
Counsel pointed out the list of articles produced by the prosecution and
submitted that in the list, Article B is shown as broken knife and article I is
also shown as knife. So, if at all, there was only one broken knife and as
per the case of the prosecution, both the accused Nos.1 and 2 have
assaulted the deceased with knife, then, that cannot be a true case. He
submitted that as per exhibit 18 sketch, Shohrab hotel is not shown
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anywhere and if the accused Nos.1 and 2 were near the Shohrab hotel,
then, they were not present at the time of the incident. Hence, accused
Nos.1 and 2 are to be acquitted.
5. Learned Prosecutor while opposing these appeals argued that the
conviction is based on sound and sufficient evidence. There are two eye
witnesses. The deceased was brutally murdered by the accused with the
chopper. She submitted that the police have recovered the chopper. One
is broken and one is intact. The deceased was taken to hospital but he
was dead. The learned Prosecutor relied on the evidence of the eye
witnesses so also the post-mortem report. She submitted that considering
the quality of the evidence, the appeals be dismissed.
6. We have gone through the evidence of all the witnesses. In this
case, there are two eye witnesses - PW1 Alangit and PW2 Jehangir, who
are brothers and have stated that Riyajuddin @ Pammu was their
neighbour and he used to run a cellphone store. It is true that none of
them deposed that there was previous enmity between them and the
appellants accused. Both of them have stated that the incident of quarrel
on petty issue of throwing trash in the dustbin has taken place on the day
earlier i.e., on 10.4.2007, when Pammu objected to the use of dustbin. The
submissions of the learned Counsel that as no complaint was registered in
respect of the said incident with the police, therefore, this incident is
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imaginary and so also the statement of a small boy who went there to
throw trash in the public dustbin and was prevented from doing so, is not
recorded are material lacunae in the case of the prosecution are not at all
convincing. It is to be noted that the appellant / accused No.1 was the
neighbour of PW1 and PW2 and when he prevented the small boy from
using the dustbin, these brothers intervened. So this was not a big quarrel
though as per their evidence, accused No.1 went to butcher's shop and
brandished chopper. The statement of the small boy is not recorded in the
evidence. However, that it did not affect the credit of the witnesses. Both
of them have corroborated with each other. The argument of the defence
counsel that the evidence of these two witnesses cannot be relied as
these two witnesses are interested, also does not carry any substance.
We fail to understand how these two persons can be interested when their
licensee Raju was killed in the broad day-light. PW1 Alangit has stated
that after the incident of 10.4.2007, on the next day, when he was at home,
he saw accused Nos.1 and 2 coming together towards their house. He
was on the loft. One Pervez PW9 was present outside the garment unit
and from the window of the loft, he noticed that the deceased Raju and his
brother Jehangir were present and Riyajuddin @ Pammu asked Jehangir
to tender apology to his brother about the incident on the day before. His
brother refused. He also said that his brother would not and when Pammu
heard the refusal, he took out the chopper and he tried to assault his
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brother Jehangir. His brother rescued and then Pammu assaulted Raju,
who was standing quietly with the chopper on his waist. He tried to run
away. Nasir caught him. Nasir also was armed with the chopper. He also
assaulted Raju with the chopper. However, the chopper used by Nasir
broke, so Nasir caught hold of Raju and then accused No.1 Pammu
assaulted Raju with the chopper. Nasir threatened the public who
gathered there that if they intervened, they would be assaulted. Raju fell
on the ground. PW2 Jehangir also stated the same facts. Thus, both the
brothers have attributed the act of assault with knife to both the accused,
i.e., accused No.1 and accused No.2. The first assault was mounted on
Raju by Pammu i.e., accused No.1. The submissions of the learned
Counsel that the appellants-accused Nasir is innocent and did not mount
any assault on Raju, cannot be accepted in view of the clear and cogent
evidence of these two witnesses, who attributed specific roles to accused
No.1 Pammu and the accused No.2 Nasir. The blow given by Nasir to
Raju was so forceful that the chopper broke in two pieces. The two pieces
of the chopper i.e., the blade was separated from the handle were
produced before the Court. Another chopper recovered from accused No.1
Riyajuddin was also before the court.
7. It was argued that the appellants did not want to assault Raju. He
intervened and so accidentally he was assaulted. However, we discard
this argument. Pammu mounted first blow on Jehangir, however, Jehangir
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ran away. Raju was innocent, who was attacked by accused No.1. It
might be a case of transferred malice but it is not the case that Raju
intervened and accidentally he received a blow and the accused person
did not intend to injure him. The Doctor Sunil S. Kadam, PW8, who
conducted the post-mortem, has noted his observations in the post-
mortem notes i.e., exhibit 35 and his evidence that there were nearly 9
injuries on the body of Raju and according to him, injury No.1 which was
on temporal occipital region of the head, injury No.7 in the abdomen and
injury No.8 which pierced the abdominal cavity, were on vital parts and all
the injuries were sufficient in the ordinary course of nature to cause death
and the death was caused due to haemorrhagic shock as a result of
multiple stabs. The medical evidence corroborates the ocular evidence of
PW1 and PW2. Raju was immediately shifted to hospital and when PW1
was giving the FIR, he received the information of death of Raju. There is
no discrepancy in the time mentioned in the FIR or in the casualty report.
Similarly, much was argued in respect of the record of his case papers and
casualty report wherein history of assault by known 'person' is mentioned.
It is true that such note is found everywhere, however, it is to be
understood that when the person is taken to a casualty with such multiple
injuries, the staff of the hospital took down the history, might have heard it
by 'person' or 'persons' and he wrote it accordingly. The same history of
assault was naturally carried forward in different papers prepared by
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different Departments, where he was treated and taken. Therefore, it is
not a doubtful situation and there is no discrepancy.
8. We are satisfied that there is a sufficient, consistent and cogent
evidence which establishes that the both the appellants have killed the
deceased brutally and hence, we dismiss the appeals.
(MRIDULA BHATKAR, J.) (V.K. TAHILRAMANI, J.)
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