Aslamkha Anwarkha Pathan (In ... vs State Of Maharashtra Through ...
2016 Latest Caselaw 473 Bom

                                           1                 Apeal478-13.odt        



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                                   NAGPUR BENCH : NAGPUR




                                                   
                        CRIMINAL APPEAL NO.478 OF 2013
                                      ...


    Aslamkha Anwarkha Pathan,




                                                  
    Aged about 22 years,
    Occupation: Education,
    R/o Chandol, Tahsil & Dist. Buldana,
    Presently in Jail.                            ..             APPELLANT




                                               
                              ig   .. Versus ..


    State of Maharashtra,
    through Police Station Officer,
                            
    Dhad, Buldhana.                               ..            RESPONDENT
      

    Mr. A. R. Sambre, Advocate for Appellant.
    Mrs. M.H. Deshmukh, Additional Public Prosecutor for Respondent.
   



                                   ....


                  CORAM : B.R. Gavai & A.S. Chandurkar, JJ.

DATED : March 09, 2016.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed by

the learned Additional Sessions Judge, Buldana dated 29.07.2013

thereby convicting the appellant for the offence punishable under

Section 302 of the Indian Penal Code and sentencing him to suffer

imprisonment for life and to pay fine of Rs.10,000/- and in default of

payment of fine to suffer simple imprisonment for one month, the

2 Apeal478-13.odt

appellant has approached this Court.

2. The prosecution story as could be gathered from the

material placed on record is thus:-

On 20.01.2011 at around 12 to 12.30 water was released

in the taps of the village Chandol. The first informant PW1

Ansarkha, his brother Yunuskha had come to fetch the water. The

house of the accused is situated at a short distance from the house

of deceased Yunuskha. The branches of arabic tree having thorns

were lying near the tap. Deceased Yunuskha, the brother of the

first informant, lifted the said branches and kept the same in an

open space near the house of the accused Aslamkha. The accused

came out of the house and abused him as to why he shifted the

branches and as such started abusing Yunuskha. The first

informant, his parents were trying to give understanding to the

accused/appellant. However, he did not listen to them, went inside

the house and brought iron rod (Pahar) and assaulted the deceased

Yunuskha with the said iron rod on his head from the rear side. As

such Yunuskha fell down. After that accused no.3 Sakirabee, the

mother of the appellant, came there with a knife and assaulted the

deceased on the fingers of his right hand. When the mother of the

deceased tried to cover the deceased to save him, accused no.4

Shabanabee i.e. the sister of the appellant, caught hair of the

mother of the deceased and threw her. It is also the prosecution

case that accused No.2 Anwarkha, the father and sister of the

3 Apeal478-13.odt

appellant also assaulted the deceased Yunuskha and his mother

with kicks and fist. The first informant thereafter brought an auto-

rickshaw and he along with his mother brought Yunuskha to Gramin

Hospital, Dhad. After giving him treatment, they were sent to

Buldana by an Ambulance. When Yunuskha was brought to hospital

in Buldana, the Doctors informed that his condition was serious and

as such it was advised to take him to Aurangabad. However, on the

way to Aurangabad, deceased Yunuskha succumbed to injuries and

died near Dhalsawangi.

3. An oral report below Exh.44 was lodged by PW1

Ansarkha. On the basis of the oral report, a printed first information

report came to be registered below Exh.45. After the registration of

the first information report, investigation was set in motion. At the

conclusion of the investigation, charge sheet came to be filed in the

Court of the Judicial Magistrate First Class, Buldana against the

original four accused. Charge came to be framed for the offence

punishable under Section 302 of the Indian Penal Code. The

appellant pleaded not guilty and claimed to be tried. At the

conclusion of the trial, the trial Judge acquitted accused Nos. 2,3

and 4, however, convicted the appellant/original accused no.1 as

aforesaid. Being aggrieved thereby, the present appeal.

4. Mr. A.R. Sambre, the learned counsel for the appellant

submits that the prosecution case is based on the evidence of near

4 Apeal478-13.odt

relatives of the deceased. He submits that all the witnesses are

interested witnesses and the conviction on the basis of the

testimony of such interested witnesses is not sustainable in law. He

further submits that though various independent witnesses like the

women who had come to collect the water, have not been

examined by the prosecution. He submits that even the

investigating officer has admitted that he had not recorded the

statement of the women who had come to collect the water. The

learned counsel further submits that the learned trial Judge has

disbelieved the very same witnesses insofar as the role attributed to

the other accused is concerned. However, on the basis of the same

set of evidence, the appellant has been convicted. The learned

counsel, therefore, submitted that the order of conviction and

sentence deserves to be set aside.

5. Mrs. Deshmukh, the learned Additional Public Prosecutor

on the contrary submits that merely because the witnesses are

interested cannot be a ground to discard their testimony. She

submits that all the witnesses are consistent insofar as the role

attributed to the present appellant is concerned. She submits that

it is on account of assault made by the present appellant on the

vital part of the body of the deceased, the death of the deceased

has occurred. The learned Additional Public Prosecutor therefore,

submits that no interference is warranted in the judgment and order

passed by the learned trial Judge.

                                         5                      Apeal478-13.odt        




    6.            With the assistance of the learned               counsel for the




                                                                             

appellant and the learned Additional Public Prosecutor appearing for

the respondent, we have scrutinised the entire evidence.

7. We find that in view of the evidence of PW10 Dr.

Sumatilal Boralkar and the post mortem report below Exh.74, no

interference is warranted with the finding that the death of the

deceased is homicidal.

8. One of the grounds on which the order of conviction is

assailed by the learned counsel for the appellant is the delay in

lodging the first information report. It is the contention of the

appellant that though the incident has taken place at around 12 to

12.30 hours, the first information report is registered after a period

of four hours. It is submitted that the place of occurrence is

situated at 7 to 12 kilometers from Police Station.

9. The perusal of the evidence of PW1 Ansarkha would

reveal that after the incident had taken place, the deceased was

immediately taken to Dhad. He was given treatment there for

about 20 minutes. Thereafter as they were advised to go to

Buldana, the deceased was taken by PW1 to Buldana. From

Buldana, they were advised to go to Aurangabad. However, on the

way itself, the deceased died. Thereafter PW1 came to Police

6 Apeal478-13.odt

Station to lodge the first information report. In that view of the

matter, we find that the delay in lodging the first information report

is sufficiently explained. As such the contention in that regard is

without any substance.

10. The next ground of attack is that all the witnesses are

interested witnesses. No doubt that the relatives would be

interested witnesses. However, merely because the witnesses are

interested, cannot be a ground to discard their testimony in toto.

The only requirement is that the evidence of such witnesses is

required to be scrutinised with greater care and caution. The

perusal of the evidence of PW1 Ansarkha would show that after the

deceased had removed and shifted the branches of arabic tree near

the house of the appellant, the appellant had come there and

started abusing the deceased. Thereafter the appellant went inside

the house, brought iron road and assaulted on the back side of the

head of Yunuskha. Due to the said attack, the deceased fell on the

ground. PW3 Shamshadbi is the wife of the first informant PW1

Ansarkha. She has also attributed the similar role to the present

appellant. PW6 Khatunbee is the mother of the deceased and PW7

Shahabaskhan is the son of the first informant. All of them have

attributed the similar role to the present appellant. All these

witnesses have been thoroughly cross-examined. However, their

testimony is unshaken. We find that the evidence of these

witnesses is trustworthy, reliable and cogent. In any case the

7 Apeal478-13.odt

learned trial Judge had an occasion to witness the demeanour of

these witnesses and has also found them to be trustworthy insofar

as the role attributed to the present appellant is concerned. Apart

from that the prosecution has examined an independent witness

PW8 Soharabh Khan . He has also attributed the same role. This

witness has also been thoroughly cross-examined. Nothing

damaging has come in the evidence of this witness also. There is

no reason as to why this independent witness should give a false

deposition against the appellant. In that view of the matter we find

that the prosecution has proved beyond reasonable doubt that it is

on account of the assault made by the present appellant with Pahar

on the back side of his head, the deceased sustained injuries which

has resulted to cause his death.

11. That leaves us with the question as to whether the

conviction under Section 302 of the Indian Penal code needs to be

maintained or altered to a lesser offence. The perusal of the

evidence of the witnesses itself would reveal that on account of the

deceased removing the thorny branches of arabic tree and keeping

them near the house of the appellant, there was a quarrel between

the appellant and the deceased. The evidence further shows that

the appellant went inside the house and brought an iron road

(Pahar) and assaulted on the back side of the head of the deceased.

It is to be noted that the father of the appellant is working as a

mason and the weapon which is used in the crime is a tool used by

8 Apeal478-13.odt

the mason in their work. It is further to be noted that even

according to the prosecution witnesses, the assault was made by

hard and blunt side of the said weapon. It is further to be noted

that the investigating officer has himself admitted in his evidence

that the attack on the deceased was not preplanned. We,

therefore, find that in a sudden fight in the heat of passion upon a

sudden quarrel, the incident has taken place. Undisputedly there is

no premeditation. In a quarrel, the appellant went inside the house,

brought the weapon which was readily available in his house as his

father was a mason and had attacked the deceased on the back

side of his head, that too by a hard and blunt side. We, therefore,

find that the present case would squarely fall under Exception 4 of

Section 300 of the Indian Penal Code. In that view of the matter, we

find that the conviction under Section 302 of the Indian Penal Code

would not be sustainable and will have to be altered to the one

under Part I of Section 304 of the Indian Penal Code.

12. That leaves us with the question regarding the sentence.

Undisputedly the incident is the outcome of the quarrel since the

deceased had removed the thorny branches of a tree and kept the

same near the house of the appellant. It appears that the appellant

enraged with this, abused the deceased which resulted into quarrel

and in the said quarrel, the appellant losing his control brought the

weapon from his house and assaulted the deceased. There are no

criminal antecedents against the appellant. At the time of the

9 Apeal478-13.odt

incident, he was a school going boy. The appellant has already

undergone imprisonment for a period of more than five years. In

that view of the matter, we find that the sentence which has

already undergone by the appellant would serve the purpose.

13. In the result, the appeal is partly allowed. The order of

conviction under Section 302 of the Indian Penal Code is altered to

one under Part I of Section 304 of the Indian Penal Code. The

conviction of life sentence is reduced to the sentence already

undergone. The rest of the order regarding fine etc. is maintained.

          (A.S. Chandurkar, J. )                (B.R. Gavai, J.)
      


                                         ...
   



    halwai/p.s.