Akbar Intijarul Ansari vs State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant - original accused against the judgment and order dated 28.11.2002 passed by the learned 4th Ad-hoc Additional Sessions Judge, Thane in Sessions Case Nos. 529 of 2001. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 500/-, in default imprisonment for three months. Further the appellant was also convicted for the offence punishable under Section 506 of IPC and sentenced to suffer rigorous imprisonment for six months and fine of Rs. 200/- in default R.I. for one month. The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently.

The prosecution case briefly stated, is as under:

(a) The deceased in the present case is Guddu Ali. Guddu Ali was known to PW 4 Makbul and PW 5 Raju. Deceased Guddu Ali, Makbul, Raju and the appellant were all residing in Bhiwandi, District Thane.

(b) On 13.9.2001 in the morning, quarrel had taken place between the appellant and Guddu Ali. The appellant told PW 4 Makbul and PW 5 Raju that there was quarrel between him and Guddu Ali, hence, Guddu should be convinced. Then PW 4 Makbul, PW 5 Raju and the appellant met Guddu. They convinced Guddu. Then they were about to leave. At that time, the appellant picked out a knife which was tucked at his waist and inflicted blow with the knife on Guddu. The knife was embedded in the neck of Guddu. Guddu started shouting for help. Thereafter, the appellant ran away. Before leaving, the appellant told Makbul that he will kill Makbul if Makbul disclosed about the incident to anybody. PW 4 Makbul caught hold of Guddu and he was removing Guddu from that place but while walking Guddu fell down. Makbul also fell down. Makbul then pulled out the knife from the neck of Guddu. People started gathering at the spot. Then Raju and Makbul ran away from the spot due to fear. Someone informed PW 7 Sikandar about the incident. Sikandar then went to the spot. He learnt that Guddu was removed to Indira Gandhi Memorial Hospital, Bhiwandi. He also went to the hospital. In the hospital, the doctor declared that Guddu was dead. Then Sikandar went to Bhiwandi City Police Station and lodged report Exh. 22. Thereafter investigation commenced. The appellant was arrested on 30.9.2001. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Sections 302 and 506 of IPC. The appellant-accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant assaulted Guddu Ali with a knife and caused his death.

The conviction of the appellant is mainly based on the evidence of two eye witnesses i.e PW 4 Makbul and PW 5 Raju. PW 4 Makbul has stated that he knew deceased Guddu Ali as he was from his village. At about 5.00 p.m., he went along with the appellant, Nihal, Basar and Samsher to take tea at Nehrunagar. The appellant told Makbul that on that day in the morning quarrel had taken place between him and Guddu, hence, Makbul should convince Guddu. Basar and Samsher went away saying that they had to attend duty. Then Makbul along with Nihal, appellant and Raju (PW 5) met Guddu. They convinced Guddu. Then Nihal went away saying that he had to attend duty. When they were about to leave the place, the appellant stood up and took out a knife tucked at his waist and inflicted blow with the knife on the neck of Guddu Ali. The appellant then threatened Makbul that he will kill him if Makbul told the appellant''s name to anybody. Thereafter, the appellant ran away. Guddu walked some distance and fell down. Then Makbul pulled out the knife from the neck of Guddu. Makbul kept that knife on the ground. On seeing people coming to the spot, Maqbul went away. Makbul has identified the knife Article 1 as the same knife with which the appellant assaulted Guddu.

PW 5 Raju is the second eye witness in this case. Raju has stated that on 13.9.2001 at about 8.00 a.m., when he was returning from duty, Guddu met him. Guddu told him that quarrels are going on between him and the appellant, so he should convince the appellant. At about 5.00 p.m., Raju along with Makbul (PW 4), Basar, Samsher, Nihal and the appellant went for taking tea. On the way, the appellant told them that his quarrel was going on with Guddu, hence, they should convince Guddu. After taking tea, they went to meet Guddu. Guddu was found sitting on a stone in the open ground near Hanuman Temple at Nehrunagar. Then Basar and Samsher went away saying that they have to attend duty. Then they were convincing Guddu. After convincing Guddu, Nihal also went away. When they were leaving the place, Guddu told the appellant that he was acting like a Dada and Guddu would see the appellant. Thereupon, the appellant took out a knife and inflicted blow with the knife on Guddu. Guddu started shouting for help. Then Makbul caught hold of Guddu and was taking Guddu away from that place but while walking, Guddu fell down and along with him Makbul also fell down. Then Makbul pulled out the knife from the neck of Guddu. Raju has stated that before leaving the place, the appellant told Makbul that he will kill him if he disclosed the said incident to anybody. They saw public coming towards them, hence, they ran away due to fear.

Mr. Sangani, the learned counsel for the appellant stated that both the eye witnesses cannot be believed because PW 4 Makbul has stated that he pulled out the knife from the neck of Guddu and kept that knife on the ground. Mr. Sangani pointed out that PW 5 Raju has stated that Makbul caught hold of Guddu and was removing Guddu from that place but while walking, Makbul and Guddu fell down. Makbul then pulled out the knife from the neck of Guddu. Thereafter, Raju has stated that he also caught hold of Guddu along with Makbul. First Makbul caught hold of Guddu, then Raju also caught hold of Guddu. Mr. Sangani submitted that in such case, the clothes of both these witnesses ought to have been blood stained and no blood stained clothes of these two witnesses have been seized by the investigating agency.

As far as the actual incident is concerned, nothing has been elicited in the cross-examination of both the eye witnesses so as to cause us to disbelieve their testimony. In this case, it is to be noted that the knife was embedded in the neck of Guddu, hence, in such case, no blood would flow out from the injury. Thereafter, Guddu walked a few steps and fell down. After Guddu fell down, Makbul pulled out the knife from the neck of Guddu. The spot panchnama Exh. 11 shows that Guddu had fallen down in the gutter due to which after the knife was taken out from the neck of Guddu, the blood would have flowed into the gutter and would not have come on the clothes of these two eye witnesses.

In any event, the fact that the blood stained clothes of the eye witnesses have not been seized can only amount to a defect in the investigation. The Supreme Court in the case of Karnel Singh Vs. State of M.P., AIR 1995 SC 2472 : (1995) CriLJ 4173 : (1995) 3 Crimes 527 : (1995) 6 JT 437 : (1995) 4 SCALE 752 : (1995) 5 SCC 518 : (1995) 2 SCR 629 Supp : (1995) 2 UJ 646 has observed that in cases of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect in investigation. This Court in the case of Prashant Mahadeo Chavan Vs. The State of Maharashtra has observed that it would not be proper to acquit the accused if the case is otherwise established conclusively. In the present case, we find that the prosecution has proved its case against the appellant through the evidence of two eye witnesses i.e PW 4 Makbul and PW 5 Raju.

Mr. Sangani thereafter contended that as blood stained earth from the spot was not sent for chemical analysis, the appellant is entitled to acquittal. In support of this contention, he placed reliance on the decision of the Supreme Court in the case of Ganesh Datt Vs. State of Uttarakhand, AIR 2014 SC 2521 : (2014) AIRSCW 3414 : (2014) CriLJ 3128 : (2014) 7 JT 373 : (2014) 3 RCR(Criminal) 498 : (2014) 7 SCALE 670 . Mr. Sangani pointed out that in the said case, though the investigating officer seized blood stained earth, it was not sent for chemical analysis and in such case, the accused person came to be acquitted. On going through the said decision, we find that in the said case, there were various reasons for acquitting the accused like the evidence of eye witnesses was inconsistent with the medical evidence, there was no proper explanation for the extensive injuries found on the accused person and various other factors were taken into account while acquitting the accused persons. In the present case, no blood stained earth has been seized, therefore, there is no question of investigating officer sending blood stained earth to C.A. As this decision is distinguishable with the facts of the present case, this decision cannot be made applicable to the present case.

Thereafter, Mr. Sangani pointed out that the entire prosecution case is suspect because no blood stains were found on the spot. As far as this contention is concerned, the spot panchnama Exh. 11 shows that the dead body of Guddu was found lying in gutter. The spot panchnama clearly mentions that as Guddu was found lying in the gutter, no blood stains could be found at the spot. Prior to that, the knife was embedded in the neck of Guddu, hence, it is not possible that blood would ooze out of the injury. In such case, question of seizing blood stained earth from the spot does not arise.

It is the prosecution case that the appellant assaulted Guddu Ali on the neck with the knife. This is supported by the medical evidence. PW 9 Dr. Sontake performed the postmortem on the dead body of Guddu. On external examination, Dr. Sontake found the following injury:-

(i) Stab wound over the anterior aspect of the throat. On left sterno clavicular muscle. Size of injury 1" x 1/2" x cavity deep.

In the opinion of Dr. Sontake, the injury was caused by sharp object.

On internal examination, Dr. Sontake found the following injury:-

(i) Carotid sheath is cut, carotid artery and jugular vein is cut through and through with bleeding present.

Dr. Sontake stated that in his opinion the cause of death is cardio respiratory failure due to hemorrhagic shock due to injury to carotid artery and jugular vessels, left side with sharp object. Dr. Sontake has stated that the injury sustained by Guddu Ali was sufficient to cause the death of a person in ordinary course of nature. As stated earlier, it is the prosecution case that the appellant assaulted Guddu Ali with a knife on the neck. Dr. Sontake stated that injury sustained by Guddu Ali can be caused by knife Article 1. Thus, the medical evidence also supports the prosecution case.

It is the prosecution case that the appellant assaulted Guddu Ali with a knife Article 1 and caused his death. The knife was taken out by PW 4 Makbul from the neck of Guddu and he kept it on the spot. This knife was seized under panchnama Exh. 11. Panch witness PW 3 Irfan has deposed about seizure of knife. He has stated that he was called by the Police opposite Hanuman Temple at Nehrunagar. One knife was seen lying on the spot. The police seized the knife and sealed it. This knife was sent to C.A. As per C.A. report Exh. 35, the knife was stained with blood of ''B'' group. The C.A. report Exh. 37 shows that the blood group of deceased Guddu Ali was ''B'' group. Thus, finding of blood of ''B'' group on the knife further corroborates the prosecution case.

Mr. Sangani lastly contended that the case would not fall under Section 302 of IPC but it would fall under Section 304-I or 304-II of IPC as it is covered under Exception 1 to Section 300 of IPC. To support this contention, he has placed reliance on the evidence of PW 5 Raju who has stated that after Guddu was convinced, when they were leaving, Guddu told the appellant that he was acting like a Dada and Guddu also told the appellant that he will see him. Thereafter, the appellant took out the knife tucked at his waist and assaulted Guddu on the neck with the knife. Mr. Sangani submitted that the appellant assaulted Guddu on account of grave and sudden provocation caused on account of the words uttered by Guddu.

It is to be borne in mind that Guddu was unarmed. The words uttered by Guddu to the appellant are not such as would fall in the realm of grave and sudden provocation. Moreover, it is seen that the appellant came to the spot armed with weapon which shows premeditation on his part, hence, it cannot be said that it is a case of grave and sudden provocation.

On going through the record, we are of the opinion that there is sufficient evidence to prove beyond reasonable doubt that the appellant assaulted Guddu Ali with a knife on the neck and caused his death. Thus, we find no merit in the appeal. The appeal is dismissed.