Ayaz Khan Azad Khan vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 9513 Bom

                                 1                        apeal76.17.odt




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                         CRIMINAL APPEAL NO.76 OF 2017



  Ayaz Khan Azad Khan,
  Aged about 36 years, Occ.
  Labourer, r/o. Vikas Maidan,
  Hiwarkhed, Tq.Telhara, Tq.
  Akot, Distt. Akola.                     ..........      APPELLANT



          // VERSUS //


  The State of Maharashtra,
  Through Police Station Officer,
  Police Station, Hiwarkhed,
  Tq. Telhara, Tq. Akot,
  District Akola.                           ..........       RESPONDENT


  ____________________________________________________________  
               Mr.Anzar Baig Mirza,  Advocate for the Appellant.
           Mr.A.M.Deshpande, A.P.P. for the Respondent/State.
  ____________________________________________________________



::: Uploaded on - 12/12/2017                   ::: Downloaded on - 13/12/2017 01:59:37 :::
                                   2                                  apeal76.17.odt


                          ******
  Date of reserving the Judgment           :    21.11.2017.
  Date of pronouncing the Judgment     :    12.12.2017.
                           ******


                                     CORAM     :  R.K.DESHPANDE 
                                                          AND
                                                          M.G.GIRATKAR, JJ.


  JUDGMENT  (Per M.G.Giratkar, J)   :

1. Appellant has challenged the Judgment of conviction in

Sessions Trial No.27 of 2014, by which he is sentenced to suffer

imprisonment for life and to pay a fine of Rs.5,000/- in default to

suffer rigorous imprisonment for one year for the offence punishable

under Section 302 of the Indian Penal Code. He is also convicted for

the offence punishable under Section 324 of the Indian Penal Code

and sentenced to suffer rigorous imprisonment for one year and to

pay a fine of Rs.500/- in default to suffer rigorous imprisonment for

one month.

2. The case of prosecution against the appellant, in short, is

as under :

3 apeal76.17.odt

Azad Khan was the father of appellant. On the day of

incident i.e. on 7.4.2014, at about 8.00 a.m. Azad Khan (father of

appellant) was tying buffalo in front of the house. Appellant started

murmuring/abusing Azad Khan. Azad Khan asked him as to why he

was murmuring/abusing them. Appellant took out a knife and

suddenly stabbed Azad Khan. Younger brother of complainant

namely Fayyaz Khan went to help father. At that time, accused also

stabbed Fayyaz Khan. People gathered there. One Sheikh Riyasu

(PW-3) came there. He caught hold of the appellant. In the scuffle,

Sheikh Riyasu also sustained injury to his hand. Thereafter,

Dulekhan, Shahajad Khan, Akhilkha came there. Accused rushed on

them with knife. They ran away. Appellant also ran away from the

spot of incident. Thereafter, injured Azad Khan and Fayyaz Khan

both were taken to the hospital. They were declared dead.

3. Ejaj Khan Azad Khan (PW-1) went to the Police Station

and lodged report (Exh.30). Crime was registered against the

accused.

4 apeal76.17.odt

4. Dr.Chaitanya Shriram Kulkarni (PW-9) performed post

mortem on the dead body of Azad Khan. He found eleven injuries on

the dead body. As per his opinion, cause of death was due to stab

injuries. Accordingly, he issued Post Mortem Report (Exh.48).

Thereafter, he started post mortem on the dead body of Fayyaz

Khan. He found ten injuries on dead body. As per his opinion, cause

of death was due to stab injury to vital organs. Accordingly, he issued

Post Mortem report (Exh.49).

5. Investigating Officer Digambar Totaram Arakhrao (PW-

10) went to the spot of incident, prepared spot panchanama and

arrested the accused. Accused confessed to show the knife hidden in

his house. Accordingly, his confessional statement was recorded.

Accused produced knife from his house. Investigating Officer

recorded statements of witnesses and sent all the seized property to

the Chemical Analyser, Amravati. After complete investigation, filed

charge sheet before the Judicial Magistrate, First Class. Same was

committed to the Court of Sessions at Akot.

5 apeal76.17.odt

6. The trial Court has framed charge at Exh.21. Same was

read over and explained to the accused. Accused pleaded not guilty

and claimed to be tried. Appellant has taken a defence of insanity.

7. To prove the guilt of accused, prosecution has examined

following witnesses :-

            a.     Ejaj Khan Azad Khan (PW-1).

            b.     Nusarat Khan Barkat Khan (PW-2).

            c.     Sheikh Riyasu Sheikh Jalil (PW-3).

            d.     Shehejad Khan Azad Khan (PW-4).

            e.     Abdul Ansar Sheikh Raheman Qureshi (PW-5).

            f.     Sabir Khan Jabir Khan (PW-6).

            g.     Rizwan Ali Mushtaque Ali (PW-7).

            h.     Firoz Khan Vazir Khan (PW-8).

            i.     Dr.Chaitanya Shriram Kulkarni (PW-9).

            j.     Digambar Totaram Arakhrao (PW-10).

8. The statement of appellant was recorded under Section

313 of the Code of Criminal Procedure. After hearing prosecution

and defence, the learned trial Court convicted the appellant for the

6 apeal76.17.odt

offence punishable under Sections 302 and 324 of the Indian Penal

Code and sentenced him, as stated above.

9. Heard Mr.Anzar Baig Mirza, learned Counsel for the

appellant. He has submitted that the learned trial Court has wrongly

relied on the evidence of Ejaj Khan Azad Khan (PW-1) and Shahajad

Khan Azad Khan (PW-4). In fact, they are not eye witnesses of the

incident. Even though Sheikh Riyasu Sheikh Jalil (PW-3) has not

supported prosecution, the learned trial Court convicted the

appellant for the offence punishable under Section 324 of the Indian

Penal Code for causing hurt to him.

10. Learned Counsel has submitted that the witnesses have

admitted in the cross-examination that the behaviour of appellant

was changed prior to two months of the incident. Learned Counsel

has submitted that he was in mental hospital during pendency of

trial. This fact is not considered by the trial Court and the appellant

is wrongly convicted. At last, prayed to allow the appeal and acquit

the appellant.

7 apeal76.17.odt

11. Heard Mr.A.M.Deshpande, learned A.P.P. for the State.

He has submitted that Ejaj Khan (PW-1) and Shahajad Khan (PW-4)

are real brothers of appellant. There is no reason to disbelieve their

evidence. Deceased were none else than father and brother of the

appellant. Evidence of Ejaj Khan (PW-1) and Shehejad Khan (PW-4)

are well corroborated by the evidence of other witnesses. Appellant

himself confessed to show the knife which was used in the crime.

The said knife was seized as per the confessional statement. Seized

property was sent to Chemical Analyser, Amravati. C.A. Report is at

Exh.60. As per the C.A. Report, blood was detected on knife. Blood

group was of 'B' group. Therefore, it is clear that appellant had

committed murder of his father and brother. Learned trial Court has

rightly convicted the appellant. Hence, the appeal is liable to be

dismissed.

12. Perused the evidence on record. Ejaj Khan (PW-1) has

stated in his evidence that appellant is his real brother. They are

eleven brothers. Nine of them are married. They all reside

separately. Appellant always used to have bickering with his father.

On 7.4.2014, at about 8.00 a.m., his father was tying buffalo in front

of the house. Appellant approached to the father and was

8 apeal76.17.odt

abusing/murmuring. When his father asked him as to why he was

abusing, the appellant took out knife and stabbed him on his chest.

Fayyaz Khan reached there and asked the appellant as to why he

assaulted their father with knife. Then appellant stabbed Fayyaz

Khan on his stomach. Sheikh Riyasu (PW-3) caught hold of the

appellant. He also sustained injury to his hand. His other brothers

and people reached there, but appellant rushed on them having

knife. Due to fear, they ran away. Thereafter, appellant also ran

away. Both the injured Azaz Khan and Fayyaz Khan were taken to

the Government hospital, Akola. Both were declared dead. Ejaj Khan

(PW-1) lodged the report as per Exh.30.

13. Nusarat Khan Barkat Khan (PW-2) has stated about the

Spot panchanama (Exh.33) prepared in his presence by the police.

14. Sk. Riyasu Sk. Jalil (PW-3) has not supported to the

prosecution. But he has stated in his examination-in-chief that he

was proceeding to market. People were running. There was crowd.

He was injured with knife in the hands of accused. Then he went

home. This witness was cross-examined. In the cross-examination, he

9 apeal76.17.odt

has admitted that, at the time of incident, people were running. He

saw knife in the hands of accused.

15. Shahajad Khan Azad Khan (PW-4), brother of appellant,

has stated that, on 7.4.2013, at about 8.00 a.m., he was at home.

Wife of Fayyaz called him and stated that appellant assaulted Fayyaz

with knife. He ran towards the market. He saw Fayyaz Khan was

lying there. He saw the accused stabbing his father on chest. Accused

removed the knife and then rushed on him. He ran away. After

sometime, he came back and took both of them to Government

hospital, Akola. Both were declared dead by the Medical Officer.

16. Abdul Ansar Sheikh Raheman Qureshi (PW-5) has stated

in his evidence that he is a Butcher by profession. He was present in

the shop at about 7.00 to 7.30 a.m. in Somwar weekly market. Ayaz

Khan (appellant) came there and asked for knife. Appellant was

saying that the rope is stuck in the nose ring of bullock and therefore,

he wanted the knife. He did not give him knife. Appellant had scuffle

with him. He took knife and ran away. He fell down. Thereafter, he

came to know that the appellant has stabbed his father and brother

by the same knife. He identified the same knife before the Court.

10 apeal76.17.odt

17. Sabir Khan Jabir Khan (PW-6) has stated that, in his

presence, appellant confessed to show the knife. Accordingly his

statement was recorded. Thereafter, they proceeded to the house of

appellant. The appellant produced the knife from his house which

was seized by the police.

18. Rizwan Ali Mushtaque Ali (PW-7) and Firoz Khan Vazir

Khan (PW-8) have not supported the prosecution.

19. Dr.Chaitanya Shriram Kulkarni (PW-9) has stated about

the post mortem conducted on the dead body of Azad Khan and

Fayyaz Khan. As per his evidence, Azad Khan sustained about 11

injuries and Fayyaz Khan sustained about ten injuries. As per his

opinion, all the injuries were caused by knife. As per his opinion,

cause of death of Fayyaz Khan and Azad Khan was due to injuries to

the vital organ of the body. Accordingly, he issued Post Mortem

Reports (Exh.48 and 49).

20. Nothing is brought on record in the cross-examination of

any of the material witness to disbelieve their testimony. Ejaj Khan

11 apeal76.17.odt

(PW-1) and Shahajad Khan (PW-4) are the real brothers of

appellant. There was no reason to falsely implicate the appellant.

21. Learned Counsel for the appellant tried to show that

appellant was not mentally fit at the time of incident and therefore,

he should not have been convicted. During the course of cross-

examination to Ejaj Khan (PW-1), Sheikh Riyasu (PW-3) and

Shahajad Khan (PW-4), some suggestions were given. These three

witnesses are the nearest relatives of appellant. They have stated that

one month prior to the incident, behaviour of appellant was changed.

Ejaj Khan (PW-1) has stated that previously appellant was drinking

liquor, but before one month he started smoking ganja. But all these

three witnesses have denied that the appellant was behaving like

insane person. Nothing is brought on record to show that, at the

time of incident, appellant was insane.

22. Evidence of Ejaj Khan (PW-1), Sheikh Riyasu (PW-3) and

Shehejad Khan (PW-4) show that, at the time of incident, appellant

stabbed his father and brother namely Azad Khan and Fayyaz Khan

by a sharp weapon i.e. knife. Appellant immediately ran away from

the spot of incident. If really the appellant was insane, he would not

12 apeal76.17.odt

have ran away. It is clear from the evidence of Ejaj Khan (PW-1) and

Shehejad Khan (PW-4), brothers of appellant that the appellant was

maintaining his family. This itself shows that he was not insane at

the time of incident.

23. During the pendency of trial, appellant was sent to

mental asylum. The reason behind mental imbalance, he might have

felt guilty for committing murder of his own father and brother.

Moreover, he was not getting ganja etc. in jail and therefore, he

might have been in a disturbed condition.

24. It is important to note that the appellant might have

been insane after the date of incident. He has to prove his defence

that, at the time of incident, he was insane. Appellant failed to prove

that he was insane at the time of incident. Therefore, appellant failed

to establish his defence as per the provisions of Section 84 of the

Indian Penal Code. Nothing is on record to show that the appellant

was of unsound mind at the time of incident. Learned trial Court has

rightly given reasons about the same.

13 apeal76.17.odt

25. In respect of the offence punishable under Section 324 of

the Indian Penal Code, the learned trial Court has wrongly convicted

the appellant. Offence punishable under Section 324 of the Indian

Pena Code registered for causing hurt to Sk. Riyasu (PW-3). Injured

Sk. Riyasu himself has not stated anything against the appellant. He

has only stated that he was injured with knife in the hands of

accused. But he has not stated that accused caused any injury.

Moreover, injury of Sk. Riyasu (PW-3) is also not proved by the

Medical evidence. Therefore, conviction of accused for the offence

punishable under Section 324 of the Indian Penal Code is wrongly

awarded.

26. In respect of offence punishable under Section 302 of the

Indian Penal Code, prosecution has proved beyond reasonable doubt

that the appellant has committed murder of his father Azad Khan

and brother Fayyaz Khan. Ejaj Khan (PW-1) and Shahajad Khan

(PW-4) are the eye witnesses of the incident. They are real brothers

of the appellant. Nothing is brought on record to disbelieve their

evidence. They have categorically stated that appellant stabbed Azad

Khan and Fayyaz Khan by knife. Their evidence is also corroborated

by the evidence of Abdul Ansar (PW-5).

14 apeal76.17.odt

27. Abdul Ansar (PW-5), who is a butcher by profession, has

stated in his evidence that accused came to his shop early in the

morning at about 7.00 to 7.30 a.m. and demanded knife. When he

refused, appellant scuffled with him, took knife and ran away. After

sometime, he came to know that appellant committed murder of his

father and brother. This witness identified the knife (Article A)

before the Court stating that it was the same knife which was taken

by the appellant from his shop.

28. Evidence of Ejaj Khan (PW-1) and Nusarat Khan (PW-2)

is also well supported by the evidence of Dr. Chaitanya Kulkarni

(PW-9). As per his evidence, injuries found on the dead body of Azad

Khan and Fayyaz Khan were stab injuries. Knife (Article A) was

shown to this witness before the Court. As per his opinion, the

injuries found on the dead body of Azad Khan and Fayyaz Khan

might be caused by said knife.

29. As per the evidence of Medical Officer Dr.Digambar

Kulkarni (PW-10), death of Azad Khan and Fayyaz Khan was

homicidal. C.A. Report (Exh.60) shows that knife (Article 7) and

15 apeal76.17.odt

Payzama (Article 8) were stained with blood of blood group 'B'.

Other articles were also stained with human blood. The blood group

'B' was of Azad Khan. Knife (Article 7) was seized from the appellant

as per his confessional statement.

30. As per evidence of Sabir Khan (PW-6), appellant

confessed to show knife which was hidden in his house. Accordingly,

his confessional statement was recorded. Thereafter, they proceeded

with appellant to his house. He produced knife from his house. The

same was seized in his presence.

31. From the evidence on record, it is clear that the

appellant has committed murder of his father and brother. Evidence

of Ejaj Khan (PW-1) and Shahajad Khan (PW-4) is also supported by

the evidence of Sheikh Riyasu (PW-3) and Abdul Ansar (PW-5).

Their evidence is also supported by recovery of weapon from the

accused. C.A. Report also corroborates the evidence of Ejaj Khan

(PW-1) and Shahajad Khan (PW-4). All these evidence show that

prosecution has proved guilt of the accused beyond reasonable

doubt.

16 apeal76.17.odt

32. Learned trial Court has rightly convicted the appellant

for the offence punishable under Section 302 of the Indian Penal

Code, but the learned trial Judge has not considered the evidence of

Sheikh Riyasu (PW-3). Offence punishable under Section 324 of the

Indian Penal Code was registered against the appellant for

voluntarily causing hurt to Sk. Riyasu (PW-3). Sk. Riyasu himself not

stated that appellant voluntarily caused hurt to him. Moreover,

injury of Sk. Riyasu is not proved by any Medico-legal Certificate.

Medical Officer who had examined Sk. Riyasu (PW-3) not examined

by prosecution. Therefore, conviction of the appellant for the offence

punishable under Section 324 of the Indian Penal Code is liable to be

set aside.

33. Prosecution has proved beyond reasonable doubt about

commission of murder by the appellant of his own father and

brother. Therefore, conviction of the appellant for the offence

punishable under Section 302 of the Indian Penal Code is liable to be

maintained. Hence, we pass the following order.

                                     17                            apeal76.17.odt




                                     // ORDER //        



                               The Criminal Appeal is partly allowed.

The impugned Judgment of conviction for the offence punishable under Section 324 of the Indian Penal Code is hereby quashed and set aside.

The appellant/accused is hereby acquitted of the offence punishable under Section 324 of the Indian Penal code.

Conviction in respect of the offence punishable under Section 302 of the Indian Penal Code is maintained as it is.

The record and proceedings be sent back to the trial Court.

                              JUDGE                         JUDGE
   


  [jaiswal]





                                18              apeal76.17.odt