Bombay High Court
The State Of Maharashtra vs Sk.Iiliyas Sk Chand And Ors on 9 October, 2017
Bench: T.V. Nalawade
Cri. Appeal No. 11/2002
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 11 OF 2002
The State of Maharashtra
Through Kannad Police Station,
Kannad, Dist. A'bad. ....Appellant.
Versus
1. Sk. Illiyas s/o. Sk. Chand,
Age 35 years, Occu. Tailor,
R/o. Old Bus Stand, Kannad.
2. Sk. Anis Sk. Chand,
Age 22 years, Occu. Labour,
R/o. as above, At present
R/o. Aurangabad.
3. Sk. Yunus Sk. Chand,
Age 30 years, Occu. Business,
R/o. Yunus Colony, Aurangabad.
4. Sk. Siddiqui Sk. Amir,
Age 75 years, Occu. Tailor,
R/o. Rajwada, Kannad,
Dist. Aurangabad.
5. Sk. Ismail @ Pashu s/o.
Sk. Ibrahim, Age 40 years,
Occu. Pan Stall, R/o. Bada
Bunglow, Kannad.
6. Sk. Chand Sk. Amir,
Age 68 years, Occu. Tailor,
R/o. Old Bus Stand, Kannad,
Dist. Aurangabad. ....Respondents.
Mr. P.G. Borade, APP for appellant/State.
Mr. M.G. Mustafa, Advocate for respondent Nos. 1 to 3.
Appeal admitted only as against Respondent Nos.1 to 3 as per order
dt. 20.8.2004.
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Cri. Appeal No. 11/2002
2
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
RESERVED ON : 19/09/2017
PRONOUNCED ON : 09/10/2017
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The appeal is filed by the State to challenge the
judgment and order of Sessions Case No. 12/2001, which was
pending in the Court of learned 3rd Ad-hoc Additional Sessions
Judge, Aurangabad. Respondent Nos. 1 to 3 and other accused are
acquitted of the offences punishable under sections 302, 324, 201,
149, 34 etc. of Indian Penal Code ('IPC' for short) and also for
offences punishable under sections 147 and 148 of IPC. The appeal
is admitted only as against respondent Nos. 1 to 3. Both the sides
are heard.
2) In short the facts leading to the institution of the appeal
can be stated as follows :-
Deceased Gausoddin was resident of Kannad, District
Aurangabad and he was a son of first informant Bugabee. They were
living together. Deceased was aged about 35 years and he was
married. Nihaloddin is elder brother of deceased. Deceased has left
behind four sons and three daughters and widow Rajiyabee. Accused
Nos. 1 to 3, present respondent Nos. 1 to 3 are real brothers of
Cri. Appeal No. 11/2002
Rajiyabee and accused No. 6 is father of Rajiyabee.
3) Rajiyabee used to take monetary help from her brothers
as she was finding it difficult to pull on with the income of deceased.
The deceased was against taking of such help by Rajiyabee and due
to that there used to be frequent quarrels between the deceased and
Rajiyabee.
4) On 11.6.2000 when deceased saw Rajiyabee going to the
shop of her brother Shaikh Iliyas (accused No. 1), he became angry
and he started giving beating to Rajiyabee. The shop of Shaikh Iliyas
is visible from the house of deceased. On 12.6.2000 due to the
incident dated 11.6.2000 quarrel took place between deceased
Gausoddin and accused No. 1. During quarrel, accused No. 1 gave
beating to deceased. Deceased approached police against accused
No. 1 due to incident dated 12.6.2000.
5) The incident in question took place on 15.6.2000 at
about 12.30 p.m. The deceased was returning to home for taking
lunch. In the vicinity of shop of Shaikh Iliyas, six accused persons
intercepted the deceased. Accused persons had come with sticks and
iron bars and they started assaulting the deceased. When Bugabee
and her son Nihaloddin went to intervene and rescue the deceased,
Cri. Appeal No. 11/2002
they were also assaulted. Gausoddin sustained bleeding injury to his
head and to other portions of the body. Due to fear Bugabee and
Nihaloddin left the place. Injured was shifted by others to
Government Hospital. Bugabee approached police immediately after
the incident and she gave report against six accused persons. The
crime at C.R. No. 57/2000 came to be registered in Kannad Police
Station for the offences punishable under sections 324, 34 etc. of
IPC at 13.50 hours. Police referred Gausoddin and Nihaloddin to
Government Hospital Aurangabad. Gausoddin succumbed to injuries
on 17.2.2000 and then the crime came to be converted to make it
for the offence of murder.
6) Bodale, P.S.I. of Kannad Police Station made
investigation. Inquest report was prepared and dead body was
referred for post mortem ('P.M.' for short) examination. The doctor,
who conducted P.M. examination on the dead body, gave opinion
that death took place due to head injury and haemorrhage in brain.
There were other injuries like fractures to bones of leg and a finger.
7) The statements of Bugabee and Nihaloddin were
recorded on the day of the incident. Statements of other eye
witnesses were also recorded. The spot panchanama was prepared
prior to the death. When the crime was registered for offences
Cri. Appeal No. 11/2002
punishable under sections 324, 34 etc. of IPC, brothers of Rajiyabee
appeared before police and produced the weapons like iron bars and
stick and they were taken over. Accused came to be arrested after
registering the crime for murder. Remaining weapons were
recovered and seized. Clothes of deceased and Nihaloddin were
taken over under panchanama. All the articles, which were seized
during investigation, were sent to C.A. Office and the chargesheet
came to be filed against six accused persons for aforesaid offences.
8) The charge was framed by Trial Court for the offences
punishable under section 302 r/w. 149 (for committing murder of
Gausoddin), 324 r/w. 149, 201 r/w. 34 and also under sections 147
and 148 of IPC. The offence punishable under section 201 r/w. 34
was considered as against accused Nos. 1 and 2 as they had caused
disappearance of evidence by washing the clothes which were having
blood stains. The charge was framed for offences punishable under
sections 504 r/w. 34, 506 r/w. 34 of IPC and also for the
contravention of provision of section 37(1)(a) punishable under
section 135 of Bombay Police Act. All the accused pleaded not guilty.
No separate charge was framed for assaulting Nihaloddin and also
first informant Bugabee.
9) The prosecution examined in all 12 witnesses. The
Cri. Appeal No. 11/2002
accused took the defence of total denial. No defence evidence is
given.
10) To prove the homicidal death of Gausoddin, prosecution
examined Dr. Anil (PW 9), who conducted P.M. examination on the
dead body in Government Hospital, Aurangabad. The P.M. was
conducted on 18.6.2000 between 8.30 a.m. and 9.30 a.m. The
doctor found following surface wounds on the dead body.
(i) Abrasion over rt. eyebrow of size 5 x 1 cm.,
horizontal directed medially, brownish scab present.
(ii) Sutured wound rt. post auricular region of size 3 cm.
(iii) Deformity seen in rt. leg and left hand.
(iv) Abrasion over dorsum of terminal phalanx of lt.
thumb of size 1 x 1 cm., brownish scab present.
(v) Abrasion over left lumbar region of size 5 cm. x 3
cm., directed downwards and medially brownish scab
present.
(vi) Abrasion over waist on left side above and lateral to
anterior illiac spine of size 3 cms. x 2 cm., brownish scab
present.
(vii) Abrasion over anterior and medial aspects of left
knee of size 1 cm. x 1 cm., and 1cm. x 0.5 cm.,
respectively, brownish scab present.
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(viii) Sutured wound over rt. leg lower 1/3rd, antero
medial aspects of size 0.1 cm.
The doctor found injuries like fracture of right tibia lower 1/3rd and
fracture of first metacarpal of left side.
11) On internal examination, Dr. Anil (PW 9) found following
injuries :-
"(i) Meninges - congested, strechted & tant, Subarchnoid
haemorrhage seen all around
(ii) Brain Matter - congested, oedanatul, Cortial surfaces
showed flattening of gyri. on c/s tiny haemorrhages reddish
blackish seen cerebrain, cerebellum and brain steim more
pronounced on rt. side."
12) Dr. Anil (PW 9) has given evidence that all the aforesaid
injuries were anti-mortem in nature. According to doctor, the death
took place due to head injury and the internal damage was caused
by surface injury Nos. 1 and 2 mentioned above. The P.M. report is
proved as Exh. 60 in the evidence of Dr. Anil (PW 9). Dr. Anil (PW 9)
has given evidence that surface injury on the head with
corresponding internal injury are sufficient to cause death in
ordinary course of nature. The doctor has given opinion that all
these injuries can be caused by weapons like stick and iron bars.
Cri. Appeal No. 11/2002
The defence counsel did not cross examine Dr. Anil and so, it can be
said that the defence is not disputing that Gausoddin died homicidal
death. The defence has admitted inquest panchanama also. This
evidence is sufficient to prove that Gausoddin died homicidal death.
13) To prove that accused persons caused aforesaid injuries
to the deceased in the incident dated 15.6.2000, prosecution has
relied on direct evidence and also circumstantial evidence. Bugabee
(PW 1) and her elder son Nihaloddin (PW 2) are injured eye
witnesses, who are examined by the prosecution.
14) Bugabee (PW 1) has deposed that at about 10.00 to
12.00 hours, she heard hue and cry and then she came out of the
house. She has deposed that she noticed that accused Nos. 1 to 3
were giving beating to Gausoddin. She has deposed that accused
No. 1 - Shaikh Iliyas was holding a stick and accused Nos. 2 and 3
were holding iron bars. She has deposed that accused Nos. 4 and 5
were standing at the spot of offence. She has deposed that accused
Nos. 3 and 4 gave beating to her when she tried to give cover of her
body to the deceased. She has deposed that due to beating,
Gausoddin became unconscious. She has deposed that in the
incident, Nihaloddin was also injured. She has deposed that
Nihaloddin ran away due to fear and she also ran after Nihaloddin.
Cri. Appeal No. 11/2002
She has deposed that from the spot of offence, she directly went to
police station. In her evidence, F.I.R. given by her is proved as Exh.
37.
15) Bugabee (PW 1) has identified all the accused persons in
the Court as the persons who had assaulted deceased Gausoddin
and also to her. Her evidence shows that she does not know the
names of accused persons, though accused Nos. 1 to 3 are real
brothers of her daughter-in-law and accused No. 6 is their father.
This point is being discussed at proper place. She identified the
weapons in the Court and also the clothes of both Gausoddin and
Nihaloddin which were seized by police.
16) Nihaloddin (PW 2) has deposed that on 15.6.2000 when
he had returned to home, he heard commotion. He has deposed that
his son informed him that Gausoddin was murdered. He has deposed
that when he came out of the house, accused Nos. 1 to 3 were
giving beating to Gausoddin by using stick and iron bars in front of
house of Ayub. He has deposed that accused No. 1 - Shaikh Iliyas
was holding stick and accused Nos. 2 and 3 were holding iron bars.
He has deposed that when he went to spot, he was also assaulted by
accused No. 2 - Anis and others. He has deposed that he had held
the bar of Anis to save himself, but other accused assaulted on his
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head, arms and back. He has deposed that accused Nos. 4 to 6 were
standing there when accused Nos. 1 to 3 were assaulting him. He
has deposed that from the spot, he went to police and police
referred him to Government Hospital. His evidence shows that he
witnessed that his mother was also injured in the incident. He has
deposed that due to injuries sustained, Gausoddin was unable to
speak. He has deposed that he produced his clothes having blood
stains before police and Article Nos. 4 and 5, Safari dress, are the
same.
17) Ahemad Ali (PW 3) has given evidence that on 15th, day
of incident, at about 12.00 noon to 1.00 p.m. he heard hue and cry
when he was at home and then he rushed to the spot. He has
deposed that many persons had already gathered on the spot. He
has deposed that accused No. 1 gave blow of stick on the head of
deceased and accused No. 2 - Shaikh Anis gave blow of iron bar. He
has deposed that accused No. 6 was present on the spot. He has
deposed that when he requested the accused persons not to assault,
by saying that Gausoddin may die, accused No. 6 said that if
Gausoddin dies, they would do the needful like burying him, but
others should not intervene in the incident. He has given evidence
that there were two other persons who were involved in the incident
as assailants, but they were not known to him. He has deposed that
Cri. Appeal No. 11/2002
accused No. 4 was present on the spot. Thus, according to him,
there were around seven persons on the spot.
18) Syed Iliyas (PW 7) has given evidence that on the day of
incident at about 12.00 to 12.30 p.m. when he was at home he
heard hue and cry and so, he went to the spot. He has deposed that
in his presence accused Nos. 1 to 3 and two unknown persons
assaulted Gausoddin with iron bars and stick. He has given specific
evidence that accused No. 1 - Shaikh Iliyas used stick and accused
No. 2 - Shaikh Anis and accused No. 3 - Shaikh Younus used iron
bars. He has deposed that accused Nos. 4 and 6 were present on the
spot and they were instigating accused Nos. 1 to 3 to assault the
deceased. He has deposed that when Bugabee and Nihaloddin
intervened in the incident, they were also assaulted by accused.
19) If the time of incident was around 12.30 to 1.00 p.m., it
can be said that the F.I.R., Exh. 37, was given immediately by
Bugabee as the time of registration is mentioned as 13.15 hours.
Copy of F.I.R. was sent to Magistrate to comply the provisions of
section 157 of Cr.P.C. on the same day. It can be said that close
relatives of deceased like brothers and father of the wife of deceased
were involved in the incident and considering the reason behind the
quarrel and also as surface wounds are not appearing serious, police
Cri. Appeal No. 11/2002
did not take the matter seriously. Initially crime was registered for
the offences punishable under sections 324 r/w. 34 etc. of IPC.
20) If F.I.R. at Exh. 37 is taken as the first disclosure of the
incident made by eye witness Bugabee, mother of the deceased, it
can be said that there was no intention to concoct and there was
also no room to concoct as the lady who gave report is illiterate lady
and the family of the complainant appears to be very poor.
21) In Exh. 37, the names of two known accused like Shaikh
Iliyas (accused No. 1) and Shaikh Younus (accused No. 3) were
mentioned and it was informed that there were two unknown
persons, who were assaulting the deceased. Thus, in the F.I.R. the
number of assailants were given as four and there was specific
allegation against accused Nos. 1 and 3 only that they used weapons
like stick and iron bar. Bugabee (PW 1) has given evidence that
accused No. 1 used stick and accused No. 3 used iron bar. She has
mentioned name of her son Nihaloddin as a witness as he was
injured in the incident. In Exh. 37, she has also given reason for the
quarrel, the motive and it was domestic quarrel.
22) In the cross examination of Bugabee (PW 1), it is
brought on the record that she knew accused No. 2 - Shaikh Anis,
Cri. Appeal No. 11/2002
accused No. 4 - Shaikh Siddiqui and accused No. 6 - Shaikh Chand.
In the cross examination, she admitted that accused No. 5 was her
neighbour and he used to contest ward election. Thus, even when as
per her substantive evidence, she knew other accused, she had
given only names of two persons in F.I.R. and she had mentioned
that other two assailants were not known to her. Benefit of this
circumstance can go to accused Nos. 2, 4, 5 and 6 if there is no
convincing evidence against them. The present appeal is admitted
only against accused Nos. 1 to 3.
23) The evidence of Nihaloddin (PW 2) shows that he has
given evidence that assault was made on his head by accused Nos. 1
and 3. He has deposed that iron bar, which was used against him by
accused No. 2 was held by him, so, the blow which was aimed by
accused No. 2 did not hit him. Thus, it can be said that he has not
made specific allegations as against accused Nos. 2, 4 to 6 that they
caused him injuries.
24) Nihaloddin (PW 2) has deposed that accused Nos. 4 to 6
were standing at the spot where assault was going on and they had
given instigation to other accused. There is no need to discuss this
evidence more as the evidence mainly against accused Nos. 1 to 3
needs to be considered in the present matter.
Cri. Appeal No. 11/2002
25) Nihaloddin (PW 2) has deposed that accused No. 2 also
assaulted the deceased, but the evidence in support of assault on
deceased by accused No. 2 is vague in nature. In F.I.R., no
allegation was made against accused Nos. 2, 4 to 6, though in
substantive evidence, PW 1 has given some evidence against
accused No. 2 and also against accused Nos. 4 to 6. Thus, the
evidence given as against accused Nos. 2, 4 to 6 is hit by omission
in the previous statement and also in the F.I.R. and this omission is
material, amounting to contradiction.
26) The evidence of Ahemad Ali (PW 3) is against accused
Nos. 1, 2 and 6 and not against accused Nos. 3 to 5. He has
deposed that accused No. 4 was there, but he has not given
evidence about the overtacts of accused No. 4. He has deposed that
in addition to these accused, there were two unknown assailants.
Thus, the version of Ahemad Ali (PW 3) is not consistent with the
evidence of Bugabee (PW 1) and Nihaloddin (PW 2). Nihaloddin (PW
2) has not given evidence that there was any unknown assailants
involved in the incident.
27) Syed Iliyas (PW 7) has not given evidence against
accused No. 5. He has deposed that there were two unknown
Cri. Appeal No. 11/2002
persons involved as assailants. There is no evidence from
Investigating Officer and others that they could trace the so called
unknown persons involved in the incident. No mention is there in
chargehseet that two more unknown persons were involved, but
they could not be traced. Thus, the versions of the injured witnesses
are consistent with each other in respect of the evidence given as
against accused Nos. 1 and 3. The evidence of other eye witnesses
is there as against accused No. 1, which is consistent.
28) Dr. Ganesh (PW 4) has given evidence that he examined
Bugabee (PW 1) and Nihaloddin (PW 2) in Kannad Government
Hospital on 15.6.2000. He found two injuries on person of Bugabee
and the evidence is given by the doctor is as under :-
(i) Abrasion over right shoulder size 2 x 1 x .2 cm.,
margins irregular, bleeding present.
(ii) Contusion right elbow 2 cm. x 1 cm., margins
diffused red oval. Age of both injuries was within 6 hours,
caused by hard and blunt object. For first injury X-ray was
advised. Second injury was simple.
29) Dr. Ganesh (PW 4) has given evidence that on the
examination made by him of Nihaloddin (PW 2), he found following
injuries on the person of Nihaloddin :-
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(i) Contused lacerated wound on left frontal region of
size 5 cm. x 2cm. x 2 cm., sharp margins horizontal
bleeding present.
(ii) Contused lacerated wound occipital region 2 cm. x 2
cm. x 1 cm., sharp margins horizontal direction bleeding
present.
(iii) Contusion on right forearm 3 cm x 1 cm., margins
diffused oval red.
(iv) Contusion right wrist 5 cm. x 4 cm., oval red margins
diffused.
(v) Contusion right arm 5 cm. x 3 cm., oval red margins,
diffused. All injuries were within 6 hours, caused by hard
and blunt object. First 3 were simple injuries and for 4th X-
ray was advised and injury No. 5 was simple.
30) Exhs. 41 and 42, the injury certificates in respect of PW
1 and PW 2 and the substantive evidence of Dr. Ganesh (PW 4)
shows that the injuries were sustained by these two witnesses within
six hours and they were caused by hard and blunt object. Even when
such period, age of the injuries was mentioned by doctor, the Trial
Court has observed that doctor has not mentioned that the injuries
were fresh. Some cross examination of this doctor was made to
bring on the record that there was some overwriting in M.L.C.
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register. These circumstances have not created reasonable doubt
about the evidence given by doctor or the evidence given by PW 1
and PW 2. Further, there is other circumstantial check to the
evidence given by PW 1 and PW 2. The clothes of PW 2, having
blood stains were taken over during investigation under
panchanama. There was no reason for Dr. Ganesh (PW 4) to create
false record supporting the case of complainant. Thus, the medical
evidence has given necessary corroboration to the evidence of PW 1
and PW 2 and this evidence shows that these two witnesses were
present on the spot at the time of incident and they were also
assaulted.
31) Dr. Ganesh (PW 4) had examined deceased Gausoddin
also at Kannad Hospital immediately after the incident on 15.6.2000.
He had found following injuries on the person of Gausoddin :-
(i) C.L.W. on right leg 4 cm. x 3 cm. x 2 cm.
(ii) C.L.W. behind right ear 3 cm. x 2 cm. x 1 cm.,
bleeding through right ear.
(iii) Contusion over right forearm 3 x 2 cm.
(iv) Abrasion over left elbow 3 x 2 cm. x 1 cm.
(v) Contusion over the left hand 5 x 4 cm. First 4 injuries
were simple and for 5th he was referred to Ghati Hospital.
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These injuries were sustained within six hours. The injury certificate
is proved as Exh. 43 and the record is consistent with the evidence
of Dr. Ganesh (PW 4).
32) In view of nature of cross examination of the aforesaid
witnesses and the grounds of challenge to evidence of Dr. Ganesh
(PW 4), evidence of Dr. Ganesh (PW 4) needs to be compared with
evidence of Dr. Anil (PW 9). It was submitted that the medical
evidence is not consistent if the evidence given by two doctors is
compared. This Court holds that there is no force in this submission
though there are some discrepancies. Most of the injuries noted by
Dr. Ganesh (PW 4) were found on the dead body by Dr. Anil (PW 9).
The suspicion of fracture expressed by Dr. Ganesh during
examination of deceased was confirmed in P.M. examination. The
injury on the right side of head starting from right eyebrow had
caused haemorrhage in brain. The injury which caused the death
was definitely inflicted on 15.6.2000. There was bleeding at this
injury and due to this injury, blood was coming through ear. It needs
to be kept in mind that deceased survived for few days and due to
that there was scab formation. There is nothing to create suspicion
about the evidence given by these two doctors and the record
prepared by them.
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33) Mohammad Bakhar Ali (PW 5), Maintenance Surveyor of
Land Record Office prepared map of scene of offence. The record
produced by this public servant with map is at Exhs. 46 and 47.
34) Shaikh Noor (PW 10) acted as panch witness when spot
panchanama was prepared. The panchanama is proved as Exh. 63 in
his evidence. The evidence of this witness and of Investigating
Officer shows that the spot panchanama was prepared on
15.6.2000, on the day of incident when the crime was registered for
offences punishable under sections 324 r/w. 34 etc. of IPC. This
document shows that on east side of the spot, there is house of first
informant.
35) The map of scene of offence and spot panchanama show
that the shop of accused No. 1 is situated near the spot of offence.
All the eye witnesses, including PW 1 and PW 2, have deposed that
they rushed to the spot after hearing hue and cry. Only PW 1 and
PW 2 could have reached the spot immediately after starting of the
incident and it can be said that remaining witnesses came after PW 1
and PW 2. Thus, the evidence of spot panchanama and map support
the versions of PW 1 and PW 2 and it cannot be said that they
reached the spot after assault was over. The incident took place in
broad day light, at lunch time and so, the witnesses who were at
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home to take lunch could rush to the spot.
36) Shaikh Baba (PW 6) has given evidence on seizure of
clothes of Nihaloddin (PW 2) and clothes of deceased Gausoddin.
The panchanama is proved as Exh. 51 and the clothes are produced
as Articles 3 and 7. He has admitted that already panchanama was
written and his signature was obtained by police. Though there is
such admission, there is evidence of Bodale, Investigating Officer
(PW 12) on the seizure and this Court sees no reason to disbelieve
the Investigating Officer. The evidence is sufficient to prove that
there were blood stains on the clothes of Nihaloddin.
37) Abdul Sayeed (PW 8), another panch witness has given
evidence on seizure panchanama of clothes of accused No. 1. But,
the clothes were recovered on 22.6.2000 from the house of accused
No. 1. There is evidence of Investigating Officer also on this seizure.
They have given evidence that there were faint blood stains on the
clothes. The panchanama is proved as Exh. 54.
38) Abdul Sayeed (PW 8) has given evidence on the
statement given by accused No. 3 under section 27 of Evidence Act.
He has deposed that on the basis of statement of accused No. 3
weapon like stick and iron bar which were kept in the shop of
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accused No. 1 (Tapri) were recovered and the recovery was made on
22.6.2000. From the aforesaid evidence, it can be said that the
recovery is shown to be made from the vicinity of the spot of offence
as the shop is situated in the vicinity of the spot of offence. This
record is at Exhs. 55 and 56. There were blood stains on the
weapons. The evidence is given that the shop was having lock and
accused No. 3 opened the lock and produced the weapons.
39) Syed Moin (PW 11), panch witness has given evidence
that on 16.6.2000 accused No. 1 produced stick in the police station
and it was seized under panchanama at Exh. 65. Evidence is given
by PW 11 that on 16.6.2000 accused No. 2 - Shaikh Anis also
produced iron bar before police and it was seized under panchanama
at Exh. 66. However, prosecution witness Investigating Officer has
given evidence that Shaikh Anis had given his name as Younus
falsely. Exh. 66 shows that the weapon was produced by Younus.
40) Bodale (PW 12), the Investigating Officer has given
evidence that on 16.6.2000 accused Nos. 1 and 2 had come to the
police station (in crime registered for offences punishable under
sections 324 r/w. 34 etc. of IPC) and had produced stick and iron
bar. He has deposed that on that day, accused No. 2 - Shaikh Anis
had falsely represented himself as Younus by giving the name of
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accused No. 3. But, subsequently, police realized that accused No. 2
had made such false representation. It can be said that as the
names of accused Nos. 1 and 3 were in F.I.R., such step was taken
by the defence, the accused at that time to avoid the detention in
custody. It can also be said that as the crime was registered only for
offences punishable under sections 324 r/w. 34 etc. of IPC, their
purpose was served. The police did not take the incident seriously
and accused No. 1 and accused No. 2 (who had represented himself
as accused No. 3) were not arrested and detained by police on that
day.
41) In the evidence of Bodale (PW 12), no omission is proved
in the previous statements of aforesaid material witnesses as
contradictions. This witness is cross examined mainly to suggest him
that due to agitation of people of complainant's side, which was
mainly against accused No. 5, the arrests were made and the crime
was registered for the offence of murder. He has admitted that
around 100 persons had come in procession to the police station to
raise the protest and one Ahemad Ali (PW 3) was present in that
procession. Similar cross examination is done of all the witnesses by
the defence counsel. Even if there is such circumstance, name of
accused No. 5 was not given in F.I.R. at Exh. 37 and he came to be
involved subsequently in the case on the basis of statement of
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Nihaloddin (PW 2) and other statements. Thus, the fact remains that
there was no concoction when Bugabee (PW 1) gave F.I.R.
immediately after the incident. It cannot be said that Bugabee (PW
1) had made false allegation. There is one more circumstance on
which evidence is given by Bodale (PW 12) that accused Nos. 1 and
3 (for accused No. 3 accused No. 2) as stated above had appeared in
the police station on 16.6.2000 and they had produced the weapons.
42) It was submitted for the defence that out of political
rivalry and to implicate accused No. 5 in the case, exaggeration was
made and all the accused persons were falsely implicated. This
submission is not acceptable for the reasons already given. Further,
no prosecution witness including Ahemad Ali (PW 3), who is said to
be political rival has given active part to accused No. 5. There is
evidence of two injured eye witnesses and F.I.R. was given
immediately after the incident and on that basis, in the present case,
truth can be easily separated from the falsehood or exaggeration.
The appeal is admitted only as against accused Nos. 1 to 3 and in
view of the aforesaid discussion, this Court holds that the
prosecution has failed to prove active role of accused No. 2 in the
crime. Aforesaid evidence is sufficient to draw inference that accused
Nos. 1 and 3 had assaulted the deceased and also Bugabee (PW 1)
and Nihaloddin (PW 2). This evidence is sufficient to prove the case
Cri. Appeal No. 11/2002
of the prosecution that these two persons had inflicted injuries to the
deceased and to Bugabee (PW 1) and Nihaloddin (PW 2).
43) With covering letters at Exhs. 69 to 71 the property was
sent to C.A. Office. C.A. reports are at Exhs. 72 to 74. This record is
produced and proved in the evidence of Bodale (PW 12),
Investigating Officer. There is also the evidence of panch witnesses
on seizure of the articles which is already discussed. This evidence
shows that on the pant of accused No. 1 human blood was detected.
On the clothes of Nihaloddin (PW 2) blood of group 'B' was detected.
On the clothes of deceased blood of group 'B' was detected. Blood
group of accused Nos. 1 to 3 is 'A'. Blood group of Nihaloddin is 'B'.
Thus, the presence of blood stains on the clothes of accused No. 1
gives further corroboration to the case of prosecution. No
explanation is offered by accused No. 1 to this circumstance. Thus,
the evidence given as against accused No. 1 is more convincing. The
weapons are also shown to be recovered from his shop and the
incident in question took place near his shop.
44) The learned counsel for accused placed reliance on the
cases reported as (2015) AIR (SCW) 3248 [Golbar Hussain and
Ors. Vs. State of Assam and Ors.], (2014) AIR (SCW) 4984
[Shyamlal Shah and Anr. Vs. State of West Bengal], (2009)
Cri. Appeal No. 11/2002
AIR (SCW) 5973 [Dhanapal Vs. State by Public Prosecutor,
Madras], (2014) AIR (SCW) 2440 [Nallabothu Ramulu @
Seetharamaiah and Ors. Vs. State of Andhra Pradesh] and
(1992) Cri.L.J. 3115 [The State Vs. Kumaresan]. All these
cases are on powers and duties of the Appellate Court and also on
the appreciation of evidence. On this point, one more case can be
cited like AIR 1973 (SC) 2622 [Shivaji Sahebrao Bobade Vs.
State of Maharahtra. The Apex Court has made following
observations in this case :-
"In many cases, especially the earlier ones the Court
has in laying down such principles emphasised the
necessity of interference with an order of acquittal
being based only on compelling and substantial
reasons and has expressed the view that unless such
reasons are present an Appeal Court should not
interfere with an order of acquittal (vide Suraj Pal
Singh v. The State, (1952) SCR 193 = (AIR 1952 SC
52) Ajmer Singh v. State of Punjab, (1953) SCR 418 =
(AIR 1953 SC 76) Puran v. State of Punjab, AIR 1953
SC 4590. The use of the words compelling reasons
embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and
difficulties occasionally arose as to what this Court had
meant by the words compelling reasons. In later years
the Court has often avoided emphasis on compelling
reasons but nonetheless adhered to the view
expressed earlier that before interfering in appeal with
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an order of acquittal a Court must examine not only
questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which
compelled the lower courts to acquit the accused and
should interfere only if satisfied after such examination
that the conclusion reached by the lower court that the
guilt of the person has not been proved is
unreasonable (Vide Chinta v. The State of Madhya
Pradesh, Criminal Appeal No. 178/1959 decided on
18.11.1960 (SC), Ashrafkha Haibatkha Pathan v. The
State of Bombay, Criminal Appeal No. 38 of 1960
decided on 14.12.1960 (SC).)
"..............On close analysis, it is clear that the
principles laid down by the Court in this matter have
remained the same. What may be called the golden
thread running through all these decisions is the rule
that in deciding appeals against acquittal the Court of
Appeal must examine the evidence with particular
care, must examine also the reasons on which the
order of acquittal was based and should interfere with
the order only when satisfied that the view taken by
the acquitting Judge is clearly unreasonable. Once the
appellate court comes to the conclusion the view taken
by the lower court is clearly an unreasonable one that
itself is a "compelling reason" for interference. For, it is
a courts duty to convict a guilty person when the guilt
is established beyond reasonable doubt, no less than it
is its duty to acquit the accused when such guilt is not
so established."
Cri. Appeal No. 11/2002
45) The observations made in the case of Shivaji cited supra
show that Appellate Court has power to set aside the acquittal given
by the Trial Court if the Appellate Court comes to the conclusion
mentioned in the observations which are quoted above.
46) The Trial Court has given reasons for acquittal which are
not tenable in law for the reasons this Court is giving. They are as
under :-
(i) The Trial Court has unnecessarily considered
the evidence given on the previous incidents by witness
like Bugabee (PW 1).
(ii) The Trial Court has considered the possibility of
giving support by Ahemad Ali (PW 3) to the complainant's
side in taking action and prosecuting the matter.
(iii) The Trial Court has considered some
inconsistencies in the evidence of Bugabee (PW 1) and
Nihaloddin (PW 2) and also of other witnesses.
(iv) The Trial Court has considered even the
circumstance of recording supplementary statement of
witness like Syed Iliyas (PW 7) against prosecution.
(v) The Trial Court has considered the inability of
Bugabee (PW 1) to identify accused Nos. 2 and 3 by taking
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correct names of these accused in the Court.
(vi) The Trial Court has observed that mentioning
on M.L.Cs. of the age of the injuries sustained by Bugabee
(PW 1) and Nihaloddin (PW 2) as six hours was not
sufficient and the Medical Officer ought to have mentioned
the injuries as fresh injuries as they immediately
approached police and they were examined immediately by
doctor.
(vii) The Trial Court has given importance to some
overwriting appearing in the record of examination of
Gausoddin and the circumstance that the entries in M.L.C.
register which are not in chronological order.
(viii) The Trial Court has considered the probability
that the injury which was found on the head of dead body
of Gausoddin was caused in the incident dated 12th, when
there was evidence on M.L.C.
(ix) The Trial Court has considered the possibility of
sustaining injuries by Gausoddin due to simple fall and the
possibility of such fall after consumption of liquor by
Gausoddin.
47) The aforesaid circumstances considered by the Trial
Court show that the Trial Court did not properly analyse and
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appreciate the evidence. There was the opportunity to defence to
cross examine the Medical Officers and create probability that the
injuries which were found on the dead body and particularly the
injury which caused the death was old injury, but no such probability
is created in the evidence of doctors. Only because in the past, there
was some incident and accused No. 1 had assaulted the deceased,
that does not mean that the injury found on the dead body was
caused in the past and it was not inflicted on the date of incident in
question. The circumstances like giving of F.I.R. immediately and
other circumstances are already discussed and they have ruled out
the possibility of concoction or creation of false record. Similarly, the
truth is easily separable if the evidence is properly analysed. But the
Trial court did not make an attempt to separate the truth. The Trial
Court ought to have kept in mind that the main witnesses are
illiterate. The Trial Court ought to have kept in mind that Bugabee
(PW 1) must have seen brothers of daughter-in-law, but she was not
remembering them by their names. What is important is proper
identification by this lady of the assailants. In the Court also, she
identified accused Nos. 1 and 3. She was asked to identify Shaikh
Anis, but she identified him as accused No. 3. The contents of F.I.R.
and this circumstance show that there is ring of truth in the
evidence of this lady and her evidence could not have been
discarded for minor discrepancies. Thus, the approach of the Trial
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Court was totally wrong, both in analysing evidence and in
appreciation of evidence. When there is evidence of injured eye
witnesses, the Court is expected to give due weight to the direct
evidence. Further, there was evidence on motive also. The motive is
not disputed by the defence. This Court hold that the Trial Court has
committed serious error in acquitting accused Nos. 1 and 3.
48) The question arises as to what offence is committed by
accused Nos. 1 and 3. Admittedly, accused Nos. 1 and 3 are real
brothers of wife of deceased. There was some dispute between
accused and the deceased as deceased did not want to take the help
from brothers of wife, though infact his family was not making
sufficient income for maintaining of members of the family. The
evidence is brought on the record about such dispute. It appears
that in the past also, when the quarrel took place, deceased was
given beating, but no serious injury was caused to him. Motive is
important for this purpose also. In the incident in question also only
one injury proved to be fatal which was head injury. There was
fracture of bone of one leg and there was fracture of one finger.
These circumstances show that there was no intention of accused
Nos. 1 and 3 to finish the deceased. It can be said that by giving
beating with weapons like stick and iron bar and by giving blow on
the head of the deceased of such weapon, there was knowledge that
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they were likely to cause the death. It cannot be said that they had
the intention to inflict such injury which would cause the death. In
view of the overall evidence and circumstances of the case, this
Court holds that it is not the case of murder, but it is culpable
homicide punishable under section 304 Part II of IPC.
49) The charge was framed for offence punishable under
section 302 r/w. 34 of IPC as against accused Nos. 1 and 3 and so,
accused Nos. 1 and 3 can be convicted for offence punishable under
section 304 Part II of IPC which is lessor offence. There was no
charge for causing injuries to Bugabee (PW 1) and Nihaloddin (PW
2). Further, other accused have got acquittal and there is no
convincing evidence to prove the formation of unlawful assembly.
Accused persons also cannot be convicted for alleged act of washing
clothes to make the evidence disappear. Thus, accused Nos. 1 and 3,
present respondent Nos. 1 and 3 need to be convicted and punished
for aforesaid offence.
50) The incident in question took place in the year 2000 and
we are in the year 2017. It can be said that these respondents,
accused must be taking care of issues of the deceased now. In view
of these circumstances, this Court holds that giving of sentence of
three years rigorous imprisonment to accused Nos. 1 and 3 (original
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accused Nos. 1 and 3) would be just and proper in the present
matter. In the result, following order :-
ORDER
(I) The appeal as against respondent No. 1 -
Shaikh Iliyas s/o. Shaikh Chand and respondent No. 3 -
Shaikh Younus s/o. Shaikh Chand is partly allowed.
(II) The decision of the Trial Court acquitting them
of the offence punishable under section 302 r/w. 34 of IPC
and 302 r/w. 149 of IPC is hereby set aside and they are
convicted for the offence punishable under section 304 Part
II r/w. 34 of IPC. Each of them is sentenced to suffer
rigorous imprisonment of three years and to pay fine of
Rs.500/- (Rupees five hundred). In default of payment of
fine, each accused is to further undergo rigorous
imprisonment for one month.
(III) Respondent Nos. 1 and 3 are entitled to set off
in respect of the period for which they were behind bars in
this crime. This period is to be mentioned by the office in
the conviction warrant which is to be sent to the Jail
authority.
(IV) Respondent Nos. 1 and 3 to surrender their bail
bonds for undergoing the sentence.
(V) The appeal as against respondent No. 2 -
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Shaikh Anis s/o. Shaikh Chand stands dismissed.
(VI) Copy of this judgment is to be given to the
respondent Nos. 1 and 3 free of cost.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
