Bombay High Court
Husain Maqbal Shaikh And Ors vs The State Of Maharashtra on 4 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:37593-DB
1/23 1 apeal 801 and 802 of 2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.801 OF 2015
WITH
INTERIM APPLICATION NO.929 OF 2019
IN
CRIMINAL APPEAL NO.801 OF 2015
Shagir Shakil Shaikh
Age -22 years, Occu. Business,
R/o.Haldi Mohalla, Shirur, ....Appellant
Taluka-Shirur, District-Pune.
(Now at Yerawada Jail, Pune)
Versus
The State of Maharashtra
(To be served through ....Respondent
the Ld. P.P. High Court, Mumbai.)
WITH
CRIMINAL APPEAL NO.802 OF 2015
1) Husain Maqbul Shaikh,
Age-32 years, Occ. Business,
R/o. Haldi Mohalla, Shirur,
Taluka-Shirur, District-Pune;
2) Shakur Rajjak Shaikh,
Age-25 years, Occ. Business,
R/o. Haldi Mohalla, Shirur, ....Appellants
Taluka-Shirur, District-Pune; and
3) Majhar Bashir Shaikh,
Age-19 years, Occ. Business,
R/o. Haldi Mohalla, Shirur,
Taluka-Shirur, District-Pune.
(Now all are at Yerawada Jail, Pune)
Versus
The State of Maharashtra
(To be served through ....Respondent
the Ld. P.P. High Court, Mumbai.)
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::: Uploaded on - 23/09/2024 ::: Downloaded on - 26/09/2024 23:44:00 :::
2/23 1 apeal 801 and 802 of 2015.doc
CRIMINAL BAIL APPLICATION NO.224 OF 2018
IN
CRIMINAL APPEAL NO.802 OF 2015
Shakur Rajjak Shaikh,
Age-25 years, Occ. Business,
R/o. Haldi Mohalla, Shirur, ....Applicant/
Taluka-Shirur, District-Pune. Appellant
(Now at Yerawada Jail, Pune)
Versus
The State of Maharashtra
(To be served through ....Respondent
the Ld. P.P. High Court, Mumbai.)
.....
Mr.Satyavrat Joshi i/b. Mr.Debojyoti Talukdar, Advocate for the
Appellant in Appeal No.801 of 2015.
Mr.Debajyoti Talukdar, Advocate for the Appellant/Applicant in
Appeal 802 of 2015.
Mr.S.V. Gavand, APP for Respondent - State.
.....
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 4th SEPTEMBER 2024.
JUDGMENT (PER : Manjusha Deshpande, J.) :
1 The present Appeals have been fled by the Appellant
challenging the judgment and order dated 21.07.2015, passed by
the Additional Sessions Judge Pune in Sessions Case No.521 of
2011. The Appellant in Appeal No.801 is accused no.1 and
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Appellant in Appeal No.802 is accused No.3 in Sessions Case
No.521 of 2011. The Appellants in both the Appeals have been
convicted for the offence punishable under Section 302 read
with 34 of Indian Penal Code (IPC), thereby sentencing them to
suffer imprisonment for life and to pay a fne of Rs.2,000/-, in
default of payment of fne,to further undergo imprisonment for
one year. Since the conviction of Appellants is arising out of one
and the same incident, and resulting in their conviction by a
common judgment, both the Appeals have been heard together.
2 The story of the prosecution in nutshell is that :
The informant, one Chiraguddin Husnuddin Madari
lodged report at Shirur Police Station, District-Pune, alleging
that he was residing in Madari vasti, Haldi Mohalla, Shirur
alongwith his parents, wife, brother and their wives as well as
their children. On the day of incident i.e. 14.02.2011, at about
11:00 a.m. while he was standing infront of his house, his
relative Barkat Haider Madari had gone to the scrap material
shop of one Raju Pathan. There was altercation between Barkat
and the accused Shakur Rajjak Shaikh. After noticing the same,
the brother of informant Shabbir, Husain and Ainnuddin rushed
and tried to pacify the quarrel. Thereafter, informant,
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his brother Shabbir and his relatives Haider Sheku Madari,
Husain Akbar Madari, Chiraguddin Ainnuddin Madari, Didar
Fakir Madari and Fakir Haidar Madari all had gone to a tea stall
located nearby. While returning back after having their tea,
accused nos.1 to 4, namely, Shagir Shakil Shaikh (accused
no.1), Husain Maqbul Shaikh (accused no.2), Shakur Rajjak
Shaikh (accused no.3), and Majhar Bashir Shaik (accused no.4)
rushed towards them, armed with deadly weapons like swords,
stick and swordstick. Accused Husain instigated the other
accused by uttering words such as, 'Don't leave them scot- free
they should be murdered' (in vernacular language). The
accused Shakur, Majhar and Husain caught hold of his brother
Shabbir and accused Shagir gave a blow of sharp edged pointed
weapon on the left chest of Shabbir. Shabbir sustained grievous
injury and fell down. Accused Husain gave a blow of stick on the
head of Didar, due to which he sustained bleeding injury.
Accused Shakur by wielding the sword in his hand threatened
him, while other three accused started beating him and his
companions. Noticing the said incident some of his relatives
rushed towards them and thereafter accused nos.1 to 4 ran
away. Since his brother Shabbir and his relative Didar had
sustained serious injuries, both of them were immediately taken
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to Manikchand Hospital, Shirur. On reaching the hospital,
Shabbir was declared dead and Didar was admitted for
treatment. Therefore Chiraguddin H. Madari lodged a report
and Crime No.53 of 2011 was registered at Shirur Police station
for offence punishable under Section 302 read with 34 of IPC.
During the investigation, accused nos.1 to 4 were
arrested. Their clothes were seized and their blood samples
were collected. After completing investigation, chargesheet was
fled and trial was conducted.
3 During the course of interrogation, accused Shabbir
made disclosure leading to discovery of swordstick. According
to his memorandum statement, which was recorded in
accordance with the procedure as prescribed under Section 27
of the Indian Evidence Act, in presence of panchas, he has
shown his willingness to produce the weapon used in the
offence. Accordingly, he has taken the policemen and panchas
near the water tank of Municipal Council and took out one
swordstick which was concealed under a bush. Similarly,
accused no.3 Shakur also made disclosure statement leading
towards discovery of one stick and one sword. A certifcate
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showing injury sustained by Didar was obtained and clothes of
accused nos.1 to 4 were seized and their blood samples were
taken. Thereafter, articles seized were sent to Chemical
Analyser for analysis.
4 The prosecution has examined P.W. Nos.1 to 12.
Thereafter, statements of accused nos.1 to 4 were recorded
under Section 313 of Code of Criminal Procedure (Cr.P.C.) and
after hearing the arguments advanced by the respective counsel
at length, the learned Judge has been pleased to record
conviction against accused nos.1 to 4 sentencing them to life
imprisonment alongwith fne.
The counsel for the accused had admitted the seizure
of clothes of all the accused, and the contents of the said
panchanama. The spot panchanama Exhibit 124 and inquest
panchanama 125 were not disputed by them.
5 In order to prove that death of deceased Shabbir is
homicidal, Medical Offcer P.W.10 Dr.S.G.Zarekar was examined
by the prosecution. He deposed that he has conducted autopsy
on the corpse of Shabbir. He noticed that there was a
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penetrating stab injury of the size 3 c.m. X 1 c.m. X 8 c.m. deep
in mid-clavicluar line of left side of the chest in the fourth
intercostal space pericardium connected anteriorly and
anterior wall of the left ventricle was found penetrated. He
further stated about a penetrating stab injury of the size 1 and
½ c.m. X ½ c.m. X 2 c.m. deep on anterior wall of the left
ventricle. The injury was found corresponding to the injury
no.1 connecting the stab injury as described in Column No.17 in
the postmortem notes. He has stated that, internal injury shown
in Column No.20(g) in the postmortem notes was possible by the
swordstick and in ordinary course of nature such injuries are
suffcient to cause death. Considering the cogent and convincing
evidence of P.W.10, the learned Judge has come to a conclusion
that the death of the deceased Shabbir was homicidal.
6 The prosecution has examined P.W.Nos.1 to 5 to
prove that accused Nos.1 to 4 in furtherance of their common
intention have knowingly and intentionally caused death of
Shabbir and thereby committed offence punishable under
Section 302 read with 34 of IPC.
The gist of the evidence of P.W.Nos.1 to 5 is that on
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14.02.2011 at about 11:00 a.m. there was quarrel between
accused no.3 Shakur and one Barkat Madari. Upon noticing the
said quarrel, deceased Shabbir, Ainuddin Madari, Husain
Madari and others rushed towards them and pacifed the
quarrel. Thereafter when P.W.Nos.1 to 5 were returning after
having tea from a tea stall near the petrol pump, at about 01:00
p.m. accused nos.1 to 4 rushed towards them armed with
deadly weapons. Accused no.2 Husain was armed with stick,
accused no.1 Shagir was armed with pointed weapon i.e.
swordstick, accused no.3 Shagur @ Shakur was armed with
sword. Accused No.2 Husain instigated other accused by
shouting, 'don't spare, kill them'. Accused nos.2 Husain, accused
No.3 Shakur and accused No.4 Majhar caught hold of Shabbir
and accused No.1 Shagir gave a blow of swordstick (Gupti) on
his left chest. Whereas, accused No.2 Husain gave a blow of stick
on the head of P.W.3 Didar. By then, the other people belonging
to Madari community rushed towards the place of occurrence.
Noticing them, accused Nos.1 to 4 ran away from the spot.
All the fve witnesses in unison have narrated the entire
incident without any inconsistency in their testimony. All the
witnesses who are eye witnesses were subjected to cross-
examination at a considerable length, but, the credibility of
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their deposition could not be shattered. Apart from minor
inconsistencies, the evidence of all the witnesses is clinching
and convincing. Therefore, it was established beyond reasonable
doubt that accused Nos.1 to 4 in furtherance of their common
intention conjointly attacked Shabbir and Didar. As a result of
the blow of swordstick given on the left chest of Shabbir, he died
instantaneously.
While making the submissions, the defence counsel
has vehemently opposed, the prosecution on the ground that the
fatal blow of swordstick was given to Shabbir by accused no.1
Shagir and therefore the other three accused should not have
been roped into by prosecuting them, by resorting to Section 34
of the IPC. While dealing with the said submission of the defence
counsel, the learned Judge has taken into consideration that
this was not a single incident but the actual assault was
preceded by another incident. The frst incident of quarrel had
taken place between accused Shakur Rajjak Shaikh accused
no.3 and one Barkat Madari at 11:00 a.m. The said quarrel was
pacifed by Shabbir and others, the second incident had taken
place after some time when the informant, deceased and his
other relatives were returning back after having their tea. They
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were attacked by accused nos.1 to 4, when they marched
towards the informant and others armed with deadly weapons
like sword, swordstick etc.. In the second incident serious injury
has been caused to Shabbir to his left chest and head injury was
caused to Didar during the conjoint attack made by accused
nos.1 to 4. Returning after some time armed with deadly
weapons, refects the pre planned and premeditated attack by
accused nos.1 to 4 on the Informant, the deceased and other
persons. Returning back after the frst incident armed with
deadly weapon itself shows the premeditation and a plan to
eliminate Shabbir who had tried to pacify the parties in the
earlier dispute. Thus, the accused had hatched a plan to
eliminate deceased Shabbir and made preparations in
furtherance of the plan by procuring deadly weapons,
accordingly accused nos.1 to 4 have attacked P.W.1 to 5 and
their companions.
7 Hence, on the basis of specifc assertion by P.W.1
Chiraguddin H. Madari that accused nos.2 to 4 had caught hold
of Shabbir to enable accused No.1 Shagir to give fatal blow on
left chest of Shabbir which has been corroborated by P.W. Nos.1
to 5 and proved through the witnesses. Hence, all the four
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accused have acted in furtherance of their common intention.
They had hatched a plan to eliminate Shabbir and accordingly
they have successfully executed the plan. On the basis of the
evidence, the learned Additional Sessions Judge, Pune, has
convicted the accused and sentenced them to imprisonment for
life.
8 Appellants have challenged the judgment and order
of conviction on the ground that, the Appellants were not
concerned with the frst incident. Therefore, they had no
intention for preparation, and hatching a plan, by meeting of
minds, to assault the deceased. The prosecution has not
examined any independent witness. All the witnesses are
related to one another. Therefore, they being interested
witnesses, the true story is not projected by the prosecution.
9 The Appellants have also tried to give a different
colour to the story by suggesting that, there was a construction
work going on at the site, where incident occurred. The injuries
to the deceased might have been caused due to accidentally
falling down on the iron rod's at the construction site. The
deceased Shabbir during the scuffe might have fallen on the
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ground on iron rod on the construction site which pierced in his
chest causing his death.
The Appellants have also raised ground that
recovery made from the accused persons is not made in
accordance with procedure contempleted under Section 27 of
the Indian Evidence Act. Hence, the said recovery is not
trustworthy.
10 We have heard the respective counsel for the
Appellants as well as the learned APP for the Respondent-State.
We have gone through the deposition of witnesses. In our view,
P.W. 1 who is informant as well eye witness is the most relevant
and reliable witness, who was present on the said spot. He has
narrated the incident in a unbiased manner. He was also witness
to the frst incident, that taken place at 11:00 a.m.. According to
the said witness, after the frst incident had ended by pacifying
both the parties, by his brother Shabbir, he alongwith his
brother and relatives had tea on the tea stall and while
returning to their house, he noticed four persons marching in
their direction from opposite side. He has described that they
were having weapons i.e. stick and sword in their hands and
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Husain Shaikh was encouraging others by saying that the
informant and others should be murdered and they should not
be left scot-free. He has categorically and with precision stated
about the role of each of the accused involved in the incident.
According to P.W.1 accused Shakur Shaikh, Husain Shaikh and
Majhar Shaikh have caught hold of Shabbir from behind and
Shagir Shakil Shaikh was holding sharp weapon in his hand. He
stabbed that weapon into left side of the chest of his brother
Shabbir. Thereafter Husain Shaikh gave a blow of stick on the
head of Didar Madari causing bleeding injury to his head.
Shakur Shaikh rushed towards them pointing out sword which
was in his hand and started assaulting the informant and others
with his hand. Thereafter, all the accused have run away. He has
identifed the muddemal articles i.e., sword, Bamboo and gupti
which was used in the offence. The deposition of the informant
P.W.1 is also consistent with the FIR Exhibit-80. Similar version
is given in the testimony by P.W.2 Chiraguddin Husnuddin
Madari, who was also the eye witness to the incident.
11 P.W.3 Didar Fakir Madari is the injured eye witness.
The said witness has also categorically deposed about the role of
each of the accused during the said incident. The testimony of
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this witness also could not be shattered in the cross-
examination by the defence counsel. P.W.4 is Husain Akbal
Madari, was present during both the incidents occurred on
14.02.2011. According to him, after hearing the shouts he came
out from his house and he happened to notice the quarrel going
on therefore he had rushed to pacify the quarrel. He has
testifed that he saw quarrel was going on and Ainuddin Madari,
Shabbir Madari had also rushed to pacify the quarrel. He had
accompanied the informant, deceased and all others to the tea
stall and while returning the second incident had taken place. In
his testimony, he has also narrated the same version, as that of
informant and other witnesses, attributing specifc role to each
of the accused, without there being any inconsistency
whatsoever. The testimony of this witness is also consistent and
no infrmity can be gathered in the testimony of this witness.
12 P.W.5 is Haider Shaikhu Madari, was also witness to
both the incidents that had taken place. The memorandum
panchanama has been proved by the prosecution witness
nos.6 and 7. P.W. 6 was a panch witness to the seizure of clothes
of accused Shabbir. P.W.7 Nasim Khan Ajimmuddin was a panch
witness who has been examined in support of disclosure leading
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to discovery of weapons at the instance of accused Shagir Shakil
Shaikh. P.W. 8 Rafq Mohammad Khan is the panch witness who
made disclosure statement leading to discovery of sword and
one stick at the instance of accused Shakur Rajjak Shaikh. P.W.9
Anil Baburao Alkute is the panch witness for seizure of clothes
of witness Didar Fakir Madari, who was injured during the
incident. All the witnesses have categorically stated about
disclosure made by respective accused and after following due
procedure, as contemplated under Section 27, the clothes and
weapons used during the incident of crime has been seized by
the investigating authority. P.W.10 Doctor has also given an
opinion that the injuries described in column no.17 and column
no.20 are possible by swordstick and are suffcient in ordinary
course of nature to cause death. There is no inconsistency even
in the deposition of Doctor.
13 P.W.12 who is a Senior Police Inspector is the
investigating offcer of the offence. According to him, the inquest
panchanama Exhibit 124 and the spot panchanama have been
admitted by the defence. According to him, after seizure of the
articles such as clothes and weapons, he has sent it to the
chemical analyser after proper seizure, packing and sealing the
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same. He has obtained the signature of panchas and he has also
put his signature on the seized articles. All the evidence about
seizure and discovery at the instance of the accused person is a
corroborative piece of evidence. The present case is based on
eye witnesses who were present during the incident that had
taken place. All the witnesses have in unison narrated the
incident as it had occurred before them.
14 Having gone through the testimony of the eye
witnesses i.e. P.W. Nos. 1 to 5, we fnd that there is no
inconsistency or infrmity in the testimony of all the witnesses.
Though Appellants have raised objection that they are all
interested witnesses since they are related to each other, hence
their testimony cannot be relied on. In our opinion, the said
objection is not at all justifable for the reason that, the eye
witnesses are the persons who are actually involved during the
said incident. Most of them were present during both the
incidents which had occurred with a gap of two hours. Though
there are houses nearby, there could have been other witnesses
available, however, considering the involvement of the
witnesses in the incident, they would be the most reliable source
of information which can be safely relied upon. Since all the
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witnesses have unequivocally attributing a role to each of the
accused have testifed about the incident, we do not fnd that the
testimony of those witnesses can be brushed aside merely on
the ground that they are interested witness.
The advocate for the Appellants has objected to the
testimony of the eye witness contending that there is a
variance, inconsistency and contradiction in the evidence of the
so called eye witnesses. Much stress is given to the fact that no
independent witness has been examined, though available. As
we have already observed that there is no better person than
the prosecution witness nos.1 to 5 who were themselves
involved in the incident to give the frst hand information and
the role attributed to each of the accused due to their
involvement in the said incident.
15 The other ground raised by the Appellants is that,
the trial Court has failed to consider that the frst incident was
between Shakur accused no.3 and one Barkat Madari. The
Appellants and deceased were not concerned with the alleged
incident therefore there was no intention, preparation, and
meeting of minds to assault the deceased by Appellants. We do
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not agree with preposition of the Appellants for the reason that
the frst incident had occurred at 11:00 in the morning and the
second incident about 01:00 during afternoon. Therefore, there
was suffcient time for preparation and hatching of plan by
meeting of minds to assault the deceased by the Appellants. It is
only after the frst incident, the Appellants have come together
and have marched towards the informant, deceased and others
armed with weapons. This itself shows that there was a pre
meditation by the Appellant accused. The said incident has not
occurred in a spur of a moment or due to grave or sudden
provocation. The conduct of the accused coming armed with the
deadly weapons like sword, gupti and rod itself show their
intention coupled with the words of encouragement uttered by
Husain who instigated the other accused to commit deadly
assault. All the eye witnesses have categorically stated that the
accused person were armed with weapons. Hence, there is no
substance in the ground raised by the Appellants that there was
no premeditation.
16 The Appellants have judgment of the Hon'ble Apex
Court in case of Jagtar Singh Vs. State of Punjab1, in support of
1 (1983) 2 SCC 342
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his contention that, since there was single blow inficted deep in
the chest resulting in injury to the heart and death of the
deceased, conviction under Section 302 of IPC was improper,
and it was held that, accused had no knowledge that he was
likely to cause injury which would result in death. Relying on
this judgment, the learned Advocate Mr.Joshi has prayed that,
the present offence at the most would be covered by Section 304
Part II, since it was a single blow given by the Appellant
accused. However, the facts of the case relied upon by the
Appellant are different from the facts of the present case. The
Hon'ble Apex Court in the said judgment has observed that
quarrel has taken place in a spur of a moment. The appellant
never expected to meet the deceased. When the deceased was
just passing by the road in front of the house of the appellant,
his forehead dashed with the parnala of the house of the
appellant which provoked the deceased to remonstrate the
appellant. There was evidence to the effect that, there was
exchange of abuses and at that time appellant gave a blow with a
knife which landed on the chest of the deceased.
In view of the background, the Appeal was partly
allowed convicting the appellant therein for having committed
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offence under Section 304 Part II of the IPC. However, in the
present case, the facts are totally different. There are two
incidents. After the frst incident there was time gap, enabling
the accused to hatch a plan. Again after some time only with an
intention to cause death of the deceased and the others
accompanying him, the accused have come armed with
weapons, and with instigation given by accused Husain, blow on
the chest of the deceased was given, which is a vital part of a
body. While giving blow to the deceased he was caught by
Shakur, Majhar and Husain. He was caught hold in order to
ensure that, he would not escape and blow should be
appropriately delivered on a vital part of the body i.e. chest.
Even the postmortem report shows that, it has caused direct
injury to the heart, therefore, it leave no room for any doubt
that there was intention and meeting of minds by the accused to
commit murder of deceased.
The learned Advocate Mr.Joshi has relied on
reported judgment in the case of Anbazhagan Vs. State
Represented by the Inspector of Police 2, wherein the difference
between 304 Part I and Part II has been explained. According to
2 2023 SCC OnLine SC 857
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him, the accused had no knowledge that his action of giving stab
would cause death, since it was a single blow. Therefore,
according to the learned Advocate since it was a single blow the
case of the Appellants would be covered by Section 304 Part II
of the IPC. As observed herein above, since this was a
predetermined and premeditated assault by the accused on the
vital part of the body of the deceased, we do not fnd that this
judgment is applicable to the case of the Appellants.
17 Considering that this is a case based on the version
of the eye witnesses, we do not think that there is any necessity
of any corroboration to the testimony of these witnesses.
However, there is memorandum statement at the instance of
Appellant Shagir in Appeal No.801 of 2015, leading to the
seizure of weapon. P.W.7 Nasim Khan Ajimmuddin has
categorically stated that, after the accused has made disclosure
statement in his presence, he had accompanied the Appellant
accused to the place which was near the water storage tank.
After alighting from the jeep, Appellant had taken them to the
bushes and grass. The weapon was concealed in the grass. The
said weapon was having blood stains on it. After seizure of the
weapon, it was packed and sealed by affxing signature of this
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witness. The testimony of this witness could not be shattered in
in his cross-examination.
18 P.W.8 Rafq Mohd. Khan is the panch witness to the
disclosure statement made by the accused in Appeal No.802 of
2015 fled by accused Shakur Rajjak Shaikh leading to discovery
of sword and one stick. According to the said witness, as per the
directions given by the accused Shakur Shaikh, the jeep
proceeded upto Shanimandir and thereafter they proceeded
towards the water storage tank. Accused has taken them to
bushes and he has taken out one sword and one stick which
were concealed in the bushes. It was seized, packed and sealed,
the signature of panch witnesses were obtained on the label. It
was taken in custody by the concerned offcer. Though in the
cross-examination it has been stated by the said witness that
the water storage tank is accessible to all, however, in the
examination-in-chief, he has categorically stated that it was
seized from the bushes and the weapon was concealed in the
bushes. Therefore, merely the statement that the water storage
tank is accessible to all, cannot by itself make the seizure of the
weapon untrustworthy.
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19 Therefore, in our view, considering that the
consistent version of the incident narrated by all the eye
witness, whose credibility could not be shattered, coupled with
the corroborative evidence in the form of seizure of weapons at
the instance of Appellants-Accused in both the Appeals, which
lends support to the prosecution story in order to prove charge
of offence punishable under Section 302 of IPC. There is no
substance in the alternative prayer made by the Appellants to
convert the sentence from Section 302 to 304 Part II of the IPC
in view of the fact that the blow was given on the vital part of
the body after a plan being hatched and executed by all the
accused. Therefore, in our view the Appellants have failed to
make out a case for causing interference in the judgment and
order of conviction passed by the Additional Sessions Judge,
Pune, in Sessions Case No.521 of 2011, dated 21.07.2015, for
offence punishable under Section 302 read with 34 of IPC, as a
result, both the Appeals are dismissed.
In view of dismissal of the Appeals, Interim
Application No.929 of 2019 and Bail Application No.224 of 2018
do not survive and are accordingly disposed off.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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