Shaikh Naser @ Nasir @ Chunnu S/O ... vs The State Of Maharashtra
2022 Latest Caselaw 12931 Bom

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

             CRIMINAL APPEAL NO. 435 OF 2016
                          WITH
          CRIMINAL APPLICATION NO. 3200 OF 2022

1.    Shaikh Naser @ Nasir @ Chunnu s/o Shaikh Hasan
      Age : 23 years, Occu. : Labour,
      R/o. Misawadi, Aurangabad.
2.    Shaikh Hasan s/o Shaikh Amin,
      Age : 50 years, Occu. : Labour,
      R/o. Misawadi, Aurangabad.
3.    Shaikh Ashfak s/o Shaikh Hasan
      Age : 30 years, Occu. : Labour,
      R/o. Misawadi, Aurangabad.
4.    Naimkhan s/o Mahemoodkhan
      Age : 23 years, Occu. : Labour,
5.    Amjadkhan s/o Mahemoodkhan
      Age : 20 years, Occu. : Labour
      R/o. Misawadi, Aurangabad.                    ... APPELLANTS
                                                    (Orig. accused)

                       VERSUS
The State of Maharashtra                        ... RESPONDENT

                                    ...
Mr. N. S. Ghanekar, Advocate for the appellant Nos. 1,2,4 and 5
Mrs. Bharati Gunjal, Advocate for appellant No. 3
Mr. S. P. Deshmukh, APP for the respondent/State

                               CORAM : R. G. AVACHAT &
                                       R. M. JOSHI, JJ.

RESERVED ON : 02nd DECEMBER, 2022 PRONOUNCED ON: 13th DECEMBER, 2022

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JUDGMENT (PER- R. M. JOSHI, J.):-

1. Appellants/accused being aggrieved by the judgment

and order of conviction passed in Sessions Case No. 18 of 2012

convicting them for the offences punishable under Sections 143,

147, 148 and 302 read with Section 149 of the Indian Penal

Code have preferred this appeal under Section 374 of the Code

of Criminal Procedure.

2. On 12th September, 2011 at about 11.40 pm

Afsarkhan gave report to the CIDCO Police Station, Aurangabad

stating that on that day at about 9.15 pm he received a phone

call from his nephew Harun who informed him about Khalilkhan,

brother of the informant having received injuries in the quarrel

near Ashirwd building, Misarwadi. He, therefore, immediately

went to the spot and found that Khalilkhan was seriously injured

and lying in the pond. His mother was present at the spot.

Thereafter he along with his nephew and others took injured in

the police vehicle to Ghati hospital where on admission he was

declared dead at about 10.00 pm. It is learnt by the informant

that his brother was to receive certain amount from Shaikh

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Chunnu towards centering work done by him and when

Khalilkhan went to ask for the said money the amount was not

paid and on the contrary said Shaikh Chunnu and others

assaulted Khalilkhan with axe and knife. On the said report of

informant offence came to be registered against the accused

vide Crime No. I-348 of 2011.

3. During the course of investigation accused came to be

arrested in the same night. Police visited the spot panchnama

was done. Clothes of the accused were seized in the police

station under panchnama. Pursuant to the memorandum

statements made by the accused weapons were seized. Enitre

muddemal was sent to Chemical Analyzer. Statements of

witnesses were recorded. On conclusion of investigation, charge-

sheet came to be filed and the case was committed for trial to

the Additional Sessions Judge, Aurangabad.

4. Charge was framed vide Exhibit 29 and as the

accused abjured the said charge they were tried. Prosecution in

order to prove in guilt of the the accused placed reliance on

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testimony of nine (09) witnesses and other documentary

evidence.

5. Learned counsel for appellant Nos. 1, 2, 4 and 5

submitted that alleged eye witnesses are interested witnesses

and on their testimonies conviction can not be recorded. It is

submitted that neither Harun (PW-2) refers to Anwar (PW-3) to

have seen each other at the spot and this according to him

creates doubt about their presence at spot at relevant time. It is

further pointed out that their statements came to be recorded

belatedly and thereby those statements have lost its evidentiary

value and became prone to concoction. Furthermore it is

submitted that when independent eye witnesses were present at

the spot, their non examination proves fatal to prosecution case.

With regard to seizure of clothes, it is submitted that the panch

witness has admitted that the clothes were kept on the table in

the police station at the time of its seizure and which rules out

its recovery at the instance of the accused or from their person.

As far as the alleged recovery of weapon is concerned,

testimony of Investigating Officer is pointed out which according

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to him shows that Investigating Officer has never visited the

house of the accused and hence the correct distance is not

given. He submitted that deceased had number of criminal cases

against him and hence the possibility of deceased being killed by

someone else and accused herein falsely implicated in the

incident of assault on deceased cannot be ruled out. On behalf of

appellant No. 3 Ashpak it is argued that role attributed to him is

clearly distinguishable from other accused. In addition to above

submissions it is submitted that stick is allegedly used by this

accused and medical evidence does not support its use in

assault. She placed reliance on The State of Maharashtra Vs.

Vinod Pandurang Jadhav and Anr., reported in 2020 All MR

(Cri)2360.

6. Learned APP submitted that there is no law that the

testimony of relatives cannot be considered for recording

conviction. It is submitted that presence of these witnesses who

hail from the same area is natural at time of incident at spot

and hence there is no reason to discard their testimony with

regard to the occurrence of incident. According to him once the

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incident in question indicates that all accused had common

object in their mind which is reflected from the number of

injuries inflicted upon the deceased and the utterances made

thus it is not relevant to see as to which accused caused what

injury to the deceased. By referring to the evidence of panch

witnesses seizure of weapons as well as clothes of accused are

proved. CA report is submitted referred to show that weapons

and clothes were stained with the blood of deceased. Thus,

according to him there is no reason of justification to cause any

interference in the present judgment of conviction.

7. Accused herein are charged of forming unlawful

assembly in order to commit murder of Khalilkhan. Section 141

of the IPC contemplates an assembly of five or more person as

unlawful assembly if the common object of the person is to

commit any offence by means of use of criminal force.

Prosecution cannot be expected to lead positive evidence in

order to establish the common object of the persons part of such

unlawful assembly and the same has to be deduced from the

evidence and from the facts and circumstances proved on

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records. If the prosecution succeeds in proving that the accused

herein were members of unlawful assembly with common object

then as contemplated by Section 149 any act done by one

accused is binding on another. In the present case the

prosecution seeks to place reliance on ocular version of eye

witnesses in respect of occurrence of incident in which deceased

died. In addition thereto evidence about incriminating recovery

of blood stained clothes and weapons is taken support of.

8. Afsarkhan (PW-1) is brother of deceased. He learnt at

about 09.15 pm from his nephew Harun about incident in which

Khalilkhan suffered injuries in a quarrel near Ashirwad building.

He, therefore, went on the motorcycle to the spot and found

Khalilkhan lying in the pond in injured condition. He along with

others with a help of police took Khalilkhan to Ghati hospital

where he was declared dead at around 10.00 pm. Record shows

that at about 11.40 pm report came to be lodged vide Exhibit 41

with the concerned police station. Thus, the report in respect of

the incident in question has been lodged immediately without

unnecessary delay wherein the reason for the assault is also

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mentioned. Lodging of immediate report has its own importance

and as the same rules of the possibility of concoction and false

implication.

9. Harun (PW-2) who was aged about 16 years at the

relevant time was studying in 11 standard. He is resident of the

same area where the incident of assault has occurred. According

to him at about 08.45 pm he was in the house and heard

clamour. His brother Ferozkhan went out and came back

immediately stating that quarrel has taken place near Ashirwad

building. He along with his grandmother rushed to the spot and

found Khalilkhan lying in the pond and accused assaulting him

with weapons. He also deposed about they uttering " lkys dks ftank er

NksMks iqjk [kre djks" while causing assault. This witness has testified

about specific role of the accused persons in the said assault and

according to him accused Hasan inflicted axe blow on the head

of Khalilkhan whereas accused Nasar and Naimkhan gave blows

of knife on the chest and back of the deceased. He further

claimed to have seen Ashfak and Amjadkhan beating Khalil with

sticks. Thus, this witness gives the complete account of the

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incident in which deceased sustained injuries.

10. At the stage it is relevant to consider the cause of

death of the deceased. Dr. Nitin Ninal (PW-7) attached to the

Medical Hospital as a Resident Doctor is one of Medical Officers

who conducted autopsy on the dead body of Khalilkhan with

three other Medical Officers. They conducted the post-mortem

between 09.30 am to 11.15 am on 13 th September, 2011. They

noticed in all 19 external injuries on the person of the deceased

which have been specifically recorded in column No. 17 of the

PM notes (Exhibit 109). Those injuries are Lacerated wounds,

contusions, stab wound, incised wounds, abrasions. Medical

Officers also found internal injuries corresponding to the external

injuries and the same were recorded therein in column 19 to 21.

According to the Medical Officer the cause of death of the

deceased is "shock and haemorrhage due to vital organs

following multiple injuries". Considering the nature of injuries

there is no reason to discard the said opinion of the Medical

Officer as to the cause of death. It also indicates that different

types of injuries were found which could be caused by different

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nature of weapons. From evidence on record the conclusion is

inevitable that Khalil died homicidal death.

11. Coming back to the appreciation of ocular evidence

Harun (PW-2) wherein has given specific account of the incident

in question and merely because his statement is recorded after

two days it cannot be held that he is a planted witness. It is not

in dispute that Harun (PW-2) is the resident of same area where

in the incident in question has occurred. Considering the time of

incident i.e. at about 08.45 pm and as the witness was a

student, his presence at the house is absolutely normal. He

specifically states that his brother Firoz informed him about the

quarrel and thereafter he along with his grandmother rushed to

the spot. In the cross-examination of this witness it has come on

record that the house of accused No. 1 is after 4-5 houses from

the spot. All accused herein are members of one family and

therefore, there is reason to believe that the accused persons

were well-known to the witness and so he could specify their

respective role in the assault and identify them.

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12. Testimony of Harun (PW-2) gets corroboration from

evidence of Anwar (PW-3) who has specifically stated about

deceased involved in centering work for accused No.1 and about

owing of money from him. This witness has acquaintance with

the accused for 5 to 6 years since prior to occurrence of

incident. With regard to the incident in question at about 8.30

pm he saw deceased demanding money due towards the

centering work from accused No.1 and quarrel occurred between

them at the spot. He also stated about accused assaulting

deceased together with axe, knife and sickle. He further claimed

that after occurrence of the incident he went to call Jafarkhan.

From this witness also it is brought on record that the accused

No.1 is the resident of same area. There is no suggestion to this

witness that he did not know any accused person before the

occurrence of the incident. Since it is a matter of record that the

accused persons hail from the same area, their identity by

witnesses cannot be disputed.

13. It is sought to be argued by relying upon the

statement of Investigating Officer that when he reached the spot

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at that time there was power cut. The said statement, however,

does not go to show that at the time of actual occurrence of

incident also there was no electric supply at the spot. Even if it is

so it is not impossible for witnesses to recognize the known

persons. The identity of the accused by these witnesses

therefore is duly proved so also their respective and specific role

in the incident of assault on deceased.

14. No doubt defence was able to bring it on record by

cross-examination of the witnesses that the spot of the incident

is a busy place surrounded by shops and residential premises.

Two questions fall for consideration of this court are as to

whether to prove occurrence of any incident examination of

independent witness is mandatory and secondly whether

testimony of relative should always be kept out of consideration

on that sole ground of being related to deceased. It is settled

position of law that the testimony of the relative of the deceased

cannot be discarded on that ground alone if otherwise his

evidence is reliable and worthy of credence. Section 134 of

Evidence Act, mandates no specific number of persons being

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required to prove any particular fact. Similarly examination of

independent witness is rule of caution and not mandate of law.

We find their evidence wholly reliable and hence non

examination of independent witness is not fatal to the case. The

testimonies of these witnesses are sought to be challenged also

on the ground that Harun did not disclose about he having

witnessed the incident to the Police Officers who visited the spot

or to the police personnel at hospital. It is necessary to take

note of the fact that the witness was only aged 15 to 16 years at

the time of incident and considering the nature of incident in

which his maternal uncle died and also in view of the fact that

the police after reaching the spot obviously must have given

preference to take injured to the hospital first, non disclosure of

the witness to the concerned Police Officer about the incident in

question therefore can not be considered fatal to the case of

prosecution. It is further accepted position of law that every

delay caused in recording of the statement is not fatal to the

case of prosecution but if testimony of such witness is found not

wholly reliable then such evidence shall be subjected to more

closure scrutiny. In instant case we find absolutely no reason for

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the witnesses to the name accused as assailants and thereby to

let go real culprits scot free.

15. Apart from the ocular evidence the prosecution has

further relied upon testimony of Sanjay Shinde (PW-6) in whose

presence the clothes of the accused were seized under

panchnama (Exhibits 75, 76, 96 and 101). Admission of this

witness about the clothes having been kept on the table in the

police station by itself is not sufficient to discard his evidence

about seizure of clothes of accused in police station. It is,

pertinent to note that the said recovery is done on 14 th

September, 2011 and the accused were taken in the custody late

in the night of 12 th September, 2011 itself i.e. in short time of

occurrence of incident. Moreover, from the evidence of arrest

panchnamas of the accused it is clear that clothes on their

person recorded therein were only seized by the police. In the

circumstances, merely for want of specific statement about the

clothes of the accused being removed from their person, the

said recovery does not deserve disbelief. The clothes of accused

Ashfak, Naimkhan and Amjadkhan were stained with blood of

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the group of deceased as indicated by CA report (Exhbiit 127).

The case of prosecution gets further strengthened by recovery of

blood stained weapons at instance of accused. There is recovery

of axe, knife and stick. Not only that there is evidence to show

weapons being stained with blood of group 'B' i.e. group of

deceased but opinion of Medical Officer about causing of injury

Nos. 1,2,3 and 19 by hard and blunt object like axe and injury

Nos. 4 to 8, 10, 11, 14 and 17 by pointed knife and injury Nos.

9, 12, 13, 15, 16 and 18 by sharp knife. Thus, prosecution was

successful in establishing use of these weapons in causing

assault on deceased and injuries caused to him led to his death.

16. There is additional circumstance against accused,

Naimkhan showing his presence at the time of incident and his

involvment in assault. Accused Naim was found to have

sustained fresh injury as recorded in his arrest panchanma

(Exhibit 118). Considering the fact that number of weapons were

being used to assault deceased by number of persons in that

case the possibility of causing of the injury while committing

assault is not ruled out completely.

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17. The aforesaid evidence led by the prosecution on

record shows that accused were armed with weapons and

number of injuries were caused to the deceased which are

indicating of the intention as well as knowledge of the accused

to kill him. The obstruction by the accused to the witnesses for

interference therein and utterances not to spare and kill the

accused are additional facts more than sufficient to conclude

that all accused persons herein were part of unlawful assembly

which had a common object of committing murder of deceased

Khalilkhan. Once such conclusion is drawn it is immaterial as to

which accused inflicted which injury on the deceased and hence

those accused who used stick in assault can not be given

separate treatment as, all accused are responsible for the acts of

each other in the assault.

17. On careful consideration of material evidence on

record we find no reason to disbelieve testimonies of eye

witnesses who have given detailed and consistent evidence of

the occurrence of incident. Thus have record no hesitation to

hold that prosecution has proved guilt of accused beyond

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shadow of any reasonable doubt. In the result, appeal must fail.

Hence the following order:

ORDER

(i) Criminal Appeal No. 435 of 2016 is dismissed.

(ii) Pending application, if any, stands disposed of.

(R. M. JOSHI, J.)                             (R. G. AVACHAT, J.)


ssp




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