Sheikh Kamaruddinsk Shabbi vs State Of Mah.Thr.Pso Chandrapur
2018 Latest Caselaw 215 Bom

 apeal443.04.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.443 OF 2004

          Sheikh Kamaruddin s/o Sk. Shabbi,
          Aged 41 years, earlier resident of
          Rayatwari Colony, Miners' Quarters,
          Chandrapur and presently R/o Near
          Saraswati Vidyalaya, C/o Waghmare
          Building, Bhivapur Ward,
          Chandrapur.                         ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through Police Station Officer,
          Ramnagar Police Station,
          Chandrapur.                                        ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.D. Hazare, Advocate for Appellant.
          Shri N.H. Joshi, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                      :      09.01.2018
 DATE OF PRONOUNCING THE JUDGMENT                                    :      10.01.2018



 1]               Exception is taken to the judgment and order dated

16.07.2004 passed by the 4th Adhoc Additional Sessions Judge,

Chandrapur in Sessions Case 155/2000, by and under which, the

appellant (hereinafter referred to as "the accused"), is convicted,

along with one Gufran, of offences punishable under sections 448,

304 Part-II and section 323 of the Indian Penal Code ("IPC" for

short), and while accused Gufran is released on probation,

accused Sheikh Kamaruddin is sentenced to suffer rigorous

imprisonment for four years and to payment of fine of Rs.1000/-

for offence punishable under section 304 Part-II of the IPC, is

sentenced to suffer simple imprisonment for two months and to

payment of fine of Rs.200/- for offence punishable under section

323 of the IPC and is sentenced to suffer simple imprisonment for

two months and to payment of fine of Rs.200/- for offence

punishable under section 448 of the IPC. Azamuddin, who was

also tried along with Gufran and Kamaruddin is acquitted of all

the offences.

2] The gist of the prosecution case as is unfolded during

the trial is thus:-

The informant Mohd. Sharif was residing with his

parents and brother at Rayyatwari Colony Miners quarters,

Chandrapur. Shamsherali, the deceased, was the father of the

informant and was employed with Western Coalfields as Driver.

The accused were also residents of the said colony.

The genesis of the incident was an altercation which

took place at 07:30 p.m. on 28.11.1999 at the pan shop of one

Gupta (P.W.3). The informant Mohd. Sharif (P.W.1) was standing

at the pan shop, the accused Gufran came to the pan shop, abused

and threatened the informant Mohd. Sharif, P.W.3 intervened and

pacified the informant and Gufran. The informant along with

P.W.3 went to S.T.D. booth to make telephone call and then the

informant P.W.1 went to his house. Accused Gufran and

Kamaruddin came to the house of P.W.1, abused P.W.1 and

dragged him out of the house by catching hold of the collar.

Accused Kamaruddin kicked P.W.1, the mother of P.W.1

intervened and at the same time the younger brother of P.W.4

Wahid also arrived at the scene. The deceased Shamsherali who

was sleeping woke up and came out of the house and attempted

to pacify the accused. The accused Gufran and Kamaruddin

fetched a wooden stick and iron rod respectively. Gufran assaulted

P.W.1 with a wooden stick on the shoulder, accused Kamaruddin

rushed towards the deceased Shamesherali with the rod,

Shamesherali caught hold of Kamaruddin, accused Gufran dealt a

stick blow on the hip of Shamesherali and when he turned

towards Gufran, Kamaruddin inflicted a blow on Shamesherali

with the iron rod on his head. Shamesherali was taken to the

hospital in an auto-rickshaw and was declared dead on admission.

P.W.1 lodged the oral report at Ramnagar Police

Station, Chandrapur which was reduced to writing and the oral

report and the printed F.I.R. are Exhibits 21 and 22 respectively

on the record of the trial Court. On the basis of the said report,

which was lodged at 22:20 hours on 28.11.1999, offence

punishable under section 302 read with section 34 of the IPC was

registered.

Investigation ensued, inquest panchnama of the dead

body of Shamesherali was recorded, the body was sent for

postmortem examination and the report obtained, spot

panchnama was drawn and the accused were arrested.

The statements of witnesses were recorded, supplementary

statement of P.W.1 and statement of Wahid were recorded on

05.12.1999. Pursuant to a statement of admission under section

27 of the Indian Evidence Act, the iron rod and stick were

recovered from the bed room of the house of accused Kamaruddin

and were seized vide seizure memo Exh.34. A query was made

from the Doctor as to whether the injury could be caused by the

iron rod to which the Doctor answered that the injury was

possible by the rod. The opinion of the Doctor on the reverse of

Exh.42 is admitted by the defence. The Doctor however, stated

that it could not be definitely opined that the injury can cause

death of a person. Upon completion of the investigation

charge-sheet under section 448, 323 and 302 read withs section

34 of IPC was submitted in the Court of Chief Judicial Magistrate,

Chandrapur, who committed the proceedings to the Sessions

Court. The learned Sessions Judge framed charge under section

448, 323, 302 read with section 34 of IPC, the accused abjured

guilt and claimed to be tried. The defence of the accused is of false

implication. In response to question 51 put in the examination

under section 313 of the Criminal Procedure Code, the accused

stated that he was not present at the time of the incident.

3] The case of the prosecution is substantially based on

the account of the eye witnesses to the incident. The prosecution

examined eight witnesses, including sons P.W.1 Mohd. Sharif and

P.W.4 Wahid Ali and wife of the deceased Isabano as eye witness

to the fatal assault. The owner of the pan shop Ashok Gupta was

examined as P.W.3 to throw light on the genesis of the incident.

P.W.5 Jalil Ahmed and P.W.6 Yashwant Kove are panch witnesses

to the spot panchnama and the seizure memo as regards the

weapons, respectively. Dr. Sunil Warghade is examined as P.W.7

and the Investigating Officer Sanjay Khandekar is examined as

P.W.8.

4] Shri Hazare, the learned counsel for the accused

submits that the evidence on record is grossly inadequate to bring

home the guilt of the accused. The seizure of the iron rod from the

house of the accused is of no relevance since concededly no blood

stains are detected, is the submission. It is further contended that

the medical evidence does not exclude the possibility of the

deceased suffering head injury due to fall. No independent

witnesses are examined although it has come on record that there

are several houses near the scene of incident, is the submission.

Shri Hazare, the learned counsel for the accused contends that the

judgment impugned is against the weight of evidence on record.

Per contra, Shri Joshi, the learned A.P.P. submits that

the evidence of the three eye witnesses is cogent and consistent

and the fact that they are related to the deceased is of no

significance. No suggestion is given to the I.O. or to any other

witness that the incident was witnessed by independent witnesses.

The defence did not suggest that the statement of any eye witness

was recorded and the witness is not examined. A related witness is

not necessarily an interested witness and the presence of the

relatives was but natural since the incident occurred in and in

front of the house of the deceased. The learned A.P.P. further

contends that the fact that the Doctor agreed that collection of

blood in cranial cavity is possible due to fall on the ground does

not dilute the probative value of the consistent ocular evidence.

5] P.W.3 Ashok Gupta, who is the owner of the pan shop

has deposed that between 06:00 to 06:30 p.m. in the evening

there was an alteration between accused Gufran and P.W.1 Mohd.

Sharif. Sharif accused Gufran of being under the influence of

liquor and Gufran retorted that the brother of P.W.1 also

consumes liquor. This evidence has gone unchallenged in the

cross-examination. It is however, extracted that while going home

P.W.1 uttered that Gufran may come to his house and then he will

be dealt with. Shri Hazare, the learned counsel for the accused

contends that the evidence of P.W.3 is inconsistent with the

evidence of P.W.1 Mohd. Sharif who has given a different version

of the genesis of the alteration. P.W.1 Mohd. Sharif has deposed

that accused Gufran stepped on his foot and he asked accused

Gufran to walk properly and whether accused Gufran had

consumed liquor and then an altercation ensued. I do not find the

two versions mutually exclusive. Both P.W.1 and P.W.3 testified

that there was an altercation the cause of which was P.W.1 asking

Gufran as to whether he was under the influence of liquor.

That apart, the variance in two versions and the statement

extracted in the cross-examination that P.W.1 uttered some words

do not suggest, as is contended by the learned counsel for the

accused, that P.W.1 and his family were the aggressors.

6] I have given my anxious consideration to the evidence

of the three eye witnesses, and having done so, I am satisfied that

the prosecution has proved the complicity of the accused beyond

reasonable doubt. It is true that some inconsistencies and

omissions are brought on record. But then, the omissions and

discrepancies are minor and do not destroy the credibility of the

prosecution case. Illustratively, the statement in the deposition of

P.W.2 Isabano that accused Kamruddin gave blow of iron rod on

his forehead is projected as an omission. However, P.W.2 has

stated in her 161 statement that Kamruddin gave a blow with the

rod on the left eye of the deceased Shamesherali. The fact that the

witness has referred to forehead is of little significance.

Similarly, the omission to the effect that Gufran and Kamruddin

caught collar of P.W.1 and took P.W.1 out of the house holding

his collar, although the omission is duly proved, is not significant

enough to be treated as a contradiction. The ocular account of the

wife of the deceased Isabano P.W.2 has stood the test of

cross-examination and is confidence inspiring. Similarly, the

omissions brought out in the evidence of P.W.1 Mohd. Sharif are

again too minor to dent its credibility. I notice from the record

that there was indeed some delay in recording the statement of

P.W.4 Wahid. The incident occurred on 29.11.1999 and the

statement of Wahid is recorded on 05.12.1999. However, apart

from the fact that no attempt is made by the defence to seek the

explanation of the I.O. or to cross-examine Wahid on the aspect of

delay in recording the statement, what is said by Wahid is amply

corroborated by the F.I.R lodged by P.W.1 Mohd. Sharif and the

evidence of Isabano P.W.2, whose statement was recorded with

promptitude. To be fair to the learned counsel for the accused, no

submission is advanced touching the aspect of the apparent delay

in recording the statement of P.W.4 Wahid. In the factual matrix,

I do not find that the delay in recording the statement can be held

against the prosecution or that the Investigating Officer

deliberately delayed recording of the statement since he was

marking his time or waiting to give a particular shape or colour to

the investigation.

7] The evidence of the eye witnesses as regards the

incident is cogent and consistent. The eye witnesses are in unison

in deposing that it was Kamruddin who dealt blow with iron rod

on the head of the deceased Shameherali. The defence that

Shamesherali tried to intervene in the altercation and suffered the

head injury due to fall is, in the teeth of ocular evidence,

unacceptable. It is true that the Doctor agrees that collection of

blood in cranial cavity is possible due to fall, but then the fact that

the Doctor opines that the injury could be caused in diverse

circumstances does not take the case of the accused any further

since such opinion as regards possible alternate cause must give

way to the ocular evidence on record. Equally untenable is the

submission of the learned counsel for the accused that irregular

edges of injury would exclude the use of iron rod as a weapon.

No authoritative text is brought to my notice in support of the

submission. Au contraire, medical jurisprudence recognizes that

laceration commonly occurs over bony prominences and tends to

be irregular shape with abraded or contused margins and are

typically caused by hard and blunt object. Modi on medical

jurisprudence and toxicology states thus:-

When produced by a blunt weapon, such as a club (lathi), crowbar, stone, or brick, a lacerated wound is usually accompanied by a considerable amount of bruising of the surrounding and underlying tissues, and has inverted and irregular edges.

The evidence P.W.7 Dr. Sunil Warghade that the

injury mentioned in column 17 of the P.M. report could be caused

by hard and blunt object like iron rod, has gone unchallenged.

The suggestion given to P.W.7 that the said injury is not sufficient

to cause the death is denied. P.W.7 states that he does not

remember if the iron rod was sent to him for examination,

however, he asserts that the iron rod produced in the court article

'A' may cause such injury. The submission that since no blood

stains were detected on the iron rod, the seizure pursuant to

discovery at the instance of the accused is of no relevance

overlooks the fact that it is not even the case of the prosecution

that when the iron rod was seized the same had blood stains.

The corroborative evidence apart, the ocular evidence on record is

implicitly reliable and even if the discovery of seizure of the rod is

kept out of consideration, I see no reason to differ from the view

taken by the learned Sessions Judge that the offence against the

accused is proved beyond reasonable doubt. The appeal is sans

merit and deserves rejection.

8] The accused is in Central Prison, Nagpur since he was

arrested pursuant to non-bailable warrant issued in view of the

breach of the conditions of suspension of sentence. The accused

be detained in Central Prison, Nagpur or at any other prison to

serve the sentence awarded by the learned Sessions Judge.

The accused shall be entitled to set off under section 428 of the

Criminal Procedure Code, 1973.

  9]               The appeal is dismissed.




                                                 JUDGE


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