Husainbin Hasan Yafai @ Chous vs The State Of Maharashtra. And Anr
2017 Latest Caselaw 6487 Bom

                                   1                     125.16 cri. appeal


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                  CRIMINAL APPEAL NO.125 OF 2016

  Husainbin Hasan Yafai @ Chous,
  Age: 42 years, Occu.: Business,
  R/o. Panjeshah Gurunna Galli,
  House No.22-696,
  Near Char Minar, Hyderabad (A.P.)
                                           ...APPELLANT
                                           (Orig. Accused)
                   VERSUS

  1.       State of Maharashtra

  2.       Khalid Fajil Chaus,
           Age: 76 years, Occu.: Agriculture,
           R/o. Chaubara, Udgir, Tq. Udgir,
           Dist. Latur
                                           ...RESPONDENTS
                                           (Respondent No.2 -
                                           Orig. First Informant)
                                 ...
           Shri. Rajendra Deshmukh, Advocate for Appellant;
           Shri. S.W. Munde, A.P.P. for State;
           Shri. S.R. Choukidar, Advocate for Respondent No.2

                                 ...
                               CORAM: P.R. BORA, J.

DATE : 23/08/2017

ORAL JUDGMENT:

1. The appellant has filed the present appeal

against the order of conviction passed by the Court of

Additional Sessions Judge at Udgir in Sessions Case

No.5/2014, decided on 1st of March, 2016, whereby the

2 125.16 cri. appeal

appellant has been convicted for an offense under Section

307 of IPC and has been sentenced to suffer rigorous

imprisonment for seven years and fine of Rs.15,000; in

default to suffer rigorous imprisonment for further seven

months. Though the appellant has also been held guilty

for the offenses punishable under Sections 504 and 506 of

IPC, no separate sentence has been awarded for the said

offenses.

2. The appellant was prosecuted for the offense

punishable under Sections 307, 504, and 506 of I.P.C., by

Police Station, Udgir, on the complaint lodged by one

Khaled Fazil Chaus, resident of Chaubara road, Udgir,

Taluka and district Latur. According to the report lodged

by said Khaled, on 15th of June, 2013, at about 6.30 a.m.,

the appellant made an assault on him with knife and

caused him severe injuries on hic chest as well as to his

neck. It was complained by Khaled that the appellant first

made assault on his chest by the aid of the knife and then

pierced the said knife in his neck. As is revealing from

the prosecution material, the knife, allegedly pierced by

the appellant from one side of the neck of the informant,

3 125.16 cri. appeal

had come out from the other side. The informant

approached the Police Station in the said condition

whereupon he was immediately sent to the Sub District

Hospital at Udgir. On report of Khaled, an offense was

registered against the appellant vide Crime No.20/2013

and the investigation was carried out. From the spot of

occurrence, election card of the appellant was seized.

The knife was removed in the hospital and then it was

seized by the Police. The accused was arrested on 28th of

August, 2013. The statement of the necessary

witnesses were recorded by the investigating officer. The

clothes on the person of the victim as well as on the

person of the accused were seized by the Police. After

completing the investigation, chargesheet was filed against

the appellant.

3. In order to bring home guilt of the accused, the

prosecution examined as many as eight witnesses and also

placed on record the Chemical Analyzer's report pertaining

to the articles seized in the crime. The defense of the

appellant was of total denial and false implication. The

defense of alibi was also raised by the appellant. It was

4 125.16 cri. appeal

the contention of the appellant that out of previous enmity

between him and the informant, he was falsely implicated

by the informant in the alleged crime vindictively. The

learned Sessions Court, after having assessed the oral as

well as documentary evidence brought before it, held the

appellant guilty for the offenses punishable under Sections

307, 504 and 506 of I.P.C. and sentenced the appellant to

suffer rigorous imprisonment for seven years with fine of

Rs.15,000/-; in default, to undergo the further rigorous

imprisonment for seven months. Aggrieved thereby, the

present appeal is filed by the original accused.

4. Shri R.S.Deshmukh, learned Counsel for the

appellant, submits that the trial Court has utterly failed in

appreciating that there was previous enmity between the

accused and the informant which has resulted in filing a

false report by the accused. Learned Counsel submitted

that sufficient evidence was placed on record to prove that

the appellant and the informant were on inimical terms on

account of a land dispute in between them. Learned

Counsel further submitted that the Sessions Court has

erred in holding the appellant guilty relying on the sole

5 125.16 cri. appeal

testimony of the informant. Learned Counsel, placing

reliance on te judgment of the Honourable Apex Court in

the case of Vadivelu Thevar Vs. The State of Madras ( AIR

1957 SC 614) submitted that, in absence of any

corroboration to the testimony of the victim informant, the

Sessions Court shall not have based the conviction upon

the sole testimony of the informant. Learned Counsel

submitted that though the prosecution did not prove the

fact that the election card seized from the spot of

occurrence was of the present appellant, the trial Court

has relied upon the said evidence to base the conviction of

the accused. Learned Counsel further submitted tat the

Sessions Court has erred in not appreciating that the

informant did not disclose name of the appellant to Alwin,

PW 5 who, according to his story, took him first to the

Police Station and then to the hospital. Learned Counsel

further submitted that the Sessions Court has further erred

in not considering the fact that the Police Inspector Kendre

had recorded the dying declaration of informant wherein

he had made complaint against unknown person and

subsequently, the name of the appellant came to be falsely

implicated. Learned Counsel further submitted that the

6 125.16 cri. appeal

learned Sessions Court has also failed in not taking into

account the material omissions and contradictions in the

oral evidence of the witnesses examined by the

prosecution. Learned Counsel further submitted that

without there being any cogent and sufficient evidence,

the Sessions Court has held the appellant guilty. Learned

Counsel, therefore, prayed for setting aside the order of

conviction and to acquit the appellant of the charges

levelled against him.

5. Shri S.R.Yadav Lonikar, learned A.P.P.,

supported the impugned judgment and order. Learned

A.P.P. submitted that PW 6 Khaled Chaus has given the

ocular account of the entire incident. Learned A.P.P.

submitted that he is the victim of the alleged assault and

he had perfectly identified the appellant to be the

assailant. Learned A.P.P. submitted that the testimony of

PW 6 Khaled has been corroborated by PW 5 Alwin

Karajkar. Learned A.P.P. further submitted that the

election identity card of the appellant was seized from the

spot of occurrence because of which the presence of the

appellant on the spot of occurrence is, undoubtedly,

7 125.16 cri. appeal

proved by the prosecution. Learned A.P.P. further

submitted that in the statement under Section 313 of

Cr.P.C., the appellant though has taken the plea of alibi,

has utterly failed in substantiating the said plea.

Learned A.P.P. submitted that the Sessions Court has

rightly held the appellant guilty for the offense punishable

under Sections 307, 504 and 506 of IPC and no

interference is required in the order of conviction so

passed by the learned Sessions Court. Learned A.P.P.

further submitted that having regard to the nature of

offense, no leniency needs to be shown to the appellant.

He, therefore, prayed for dismissal of the appeal.

6. I have carefully considered the submissions

made on behalf of the appellant and on behalf of the State.

I have perused the impugned judgment and the evidence

on record. The testimony of PW 6 Khaled Chaus is of vital

importance in the present matter. He is the victim of the

alleged assault. In his testimony before the Court, PW 6

has narrated the entire incident as it had happened. The

ocular account provided by PW 6 in his testimony before

the Court fully corroborates the facts as were stated by

8 125.16 cri. appeal

him in the statement which was given by him to the Police

on 15th of June, 2013, on the basis of which the crime was

registered against the appellant. The fact that PW 6 was

assaulted by knife and the knife was pierced in his neck

has been fully established through the prosecution

evidence. As has come on record, PW 6 had reached to

the Police Station in the same injured condition, having

knife inserted in his neck and in the same position, he was

taken to the Government hospital where he was operated

and the knife was removed. PW 1 Dr.Ranidevi Kadam, in

her testimony before the Court, has deposed that she

examined PW 6 Khaled on 15.6.2013 and noticed the

following injuries on his person:

" 1. Incised wound of size 3 cm on either side of midline over sub mandibular region with weapon in situ. Wound of entry left side. Wound of exit right side. injury is grievous and dangerous to life. Injury is possible by sharp object. Age of injury is withing 6 hours.

2. Incised wound on chest wall on left subclavicular region, margine clean cut, of size 4 cm x 1 cm x 2 cm. Injury is simple. Injury is possible by sharp object. The age of injury is withing 6 hours.

                   3.     Incised   wound     on   chest-wall         right




                                       9                       125.16 cri. appeal

mammary region margines clean cut, size 2 cm x 1 cm 1 cm. Injury is simple. Injury is possible by sharp object. The age of injury is within 6 hours."

7. PW 5 Alwin also corroborated the evidence of

PW 6 as about the injuries caused to his neck by a knife.

PW 5 has also identified the said knife before the Court.

From the aforesaid evidence, the prosecution has,

undoubtedly, proved the injuries caused to PW 6. As

noted above, the knife with which PW 6 was assaulted,

was removed in the hospital and then was seized in the

offense. As such, no other proof was required to hold

that the injury to the vital organ of PW 6 was caused with

the said knife which, according to the statements of the

witnesses, was sharp enough to cause the said injury.

8. The next question which now arises whether the

prosecution evidence is sufficient to prove that the assault

on PW 6 was made by the appellant. In the FIR lodged by

PW 6, he has specifically complained that he was assaulted

by a knife by the appellant. In his testimony before the

Court, PW 6 has reiterated the said fact. There was no

question of identification since the appellant is the near

10 125.16 cri. appeal

relative of PW 6. As has been deposed by PW 6, the

appellant is son of his sister Bilkis. The relationship has

not been disputed in the cross examination. It is further

not disputed that some civil litigation is going on in

between PW 6 and the mother of the appellant viz. Bilkis

Begum.

9. In the cross examination of PW 6, it was

suggested to him that, in his first statement recorded by

the Police Inspector Kendre, he had stated that three

unidentified persons attacked on him; of course, the said

suggestion was denied by PW 6. By giving the suggestion

as aforesaid, an attempt was made by te appellant

accused to raise a defense that he was not present on the

spot of occurrence at the relevant time and he did not

make any such assault on PW 6. It is further relevant

and most significant to state that, in his statement

recorded under Section 313 of the Criminal Procedure

Code, a specific plea has been raised by the appellant that

on 15.6.2013 i.e. on the day of the incident, he was not in

Udgir and he came to know about the assault on PW 6 on

28th of August, 2013, by the Police persons. In short, the

11 125.16 cri. appeal

appellant raised the plea of Alibi. It need not to be

stated that once a plea of alibi is raised, the burden shifts

on the accused to substantiate the said defense and to

substantially prove at which place he was when the alleged

incident happened, if not on the spot of the occurrence.

Admittedly, no such evidence has been adduced by the

appellant. In absence of any such evidence, the plea of

alibi has to be turned down.

10. As has been stated by the accused in para 8 of

his written submission under Section 313 of Cr.P.C., on

15.06.2013, when the alleged incident happened, he was

not in Udgir City. It has to be stated that circumstances

leading to Alibi were within the knowledge of the Accused

and as provided under Section 6 of the Evidence Act, he

was to establish the same satisfactorily. It is well settled

that the plea of Alibi must be proved by the accused with

absolute certainty. I am conscious of the legal position

that raising a false plea can not be the sole link or the sole

circumstance, on which a conviction of the Accused can be

based, however, a false plea of Alibi can certainly be a link

in the chain of circumstances. In the present matter, since

12 125.16 cri. appeal

the appellant-accused has utterly failed in substantiating

the plea of Alibi, the possibility of the presence of the

accused on the spot of occurrence at the relevant time,

can not be completely excluded.

11. Moreover, as has been noted by me earlier, the

appellant happens to be the near relative of PW 6 Khaled.

It, therefore, cannot be believed that he would not have

identified the person who made assault on him. Merely

because the statement, if any, recorded by the Police

Inspector Kendre has not come on record, no such

inference can be drawn that in the said statement, PW 6

had stated that he was assaulted by three unidentified

persons.

12. The further fact that from the spot of

occurrence, the election identity card of the appellant was

seized is the another incriminating circumstance against

the appellant. The finding of the election identity card of

the appellant on the spot of occurrence leads to an

inference that he was present on the spot of the

occurrence. No explanation has been provided by the

13 125.16 cri. appeal

appellant in regard to his election identity card found on

the spot of the occurrence. It was sought to be

canvassed by the learned Counsel that since no such

specific question was put to the appellant while recording

his statement under Section 313 of the Code of Criminal

Procedure, the appellant did not have adequate

opportunity to explain the said evidence. However, the

contention so raised cannot be accepted. In the

statement under Section 313 of Cr.P.C., a question was

put to him bringing to his notice the evidence as has come

on record through the spot panchnama at Exh.33 showing

that one identity card was seized from the spot of

occurrence. The appellant has simply stated that the

evidence which has come on record is false. The

appellant was having an opportunity to explain about the

identity card seized from the spot of occurrence but the

said opportunity had not been availed by him.

13. More importantly, as noted by me hereinabove,

the appellant in his statement under Section 313 of Cr.P.C.

has raised the plea of alibi. Once the said plea was

raised by him, the onus had shifted on him to prove the

said plea beyond reasonable doubt and to bring on record

14 125.16 cri. appeal

as to where he was at the relevant time when the alleged

incident happened, if not on the spot of the occurrence.

Admittedly, no such evidence has been adduced by the

appellant.

14. It has to be further stated that through the

evidence of PW 6 Khaled, the motive of the appellant in

making assault has also come on record. As has been

stated by PW 6, there was a property dispute going on

between him ad the mother of the appellant, namely,

Bilkis Begum. Though it is true that a plea of enmity is

double edged weapon, having regard to the evidence

brought on record in the present case, it appears to me

that the prosecution has successfully proved the motive of

the appellant in making assault on PW 6 Khaled. There

seems no reason for disbelieving the testimony of PW 6

which has been sufficiently corroborated by the medical

evidence as well as the testimony of PW 5 Alwin.

15. After having considered the entire evidence on

record, it does not appear to me that the learned Sessions

Court has committed any error in holding the appellant

guilty for an offense under Section 307 of IPC. The

appellant has utterly failed in making out any case so as to

15 125.16 cri. appeal

set aside the order of conviction passed by the Sessions

Court.

16. In so far as the quantum of punishment is

concerned, it was alternatively sought to be canvassed

that the Sessions Court has awarded harsh punishment

which is disproportionate to the offense committed by the

appellant. The contention of the appellant does not

deserve any consideration in view of the evidence on

record. The manner in which the assault was made on

the appellant and the location of the injury caused by the

appellant, there remains no doubt that it was an attempt

made by the appellant to cause death of PW 6. It,

therefore, cannot be accepted that the punishment as has

been imposed by the learned Sessions Court is any way

harsh or disproportionate. No interference is, therefore,

warranted in the quantum of punishment also.

. The Criminal Appeal, being devoid of substance,

deserves to be dismissed and is accordingly dismissed.

(P.R.BORA) JUDGE ...

AGP/