Anilkumar vs The State of Maharashtra

V.K. Tahilramani, J.—This appeal is preferred by the appellant - original accused No. 1 against the judgment and order dated 26.6.2007 passed by the learned Additional Sessions Judge, Sessions Court, Greater Bombay in Sessions Case Nos. 511 of 2005. 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. 200/-, in default R.I. for 15 days. By the very same judgment, the learned Sessions Judge also convicted co-accused Shabir Alam Shaikh for the offence punishable under Section 307 of IPC for causing injury to some other person than the deceased and sentenced him to suffer R.I. for seven years and fine of Rs. 200/- in default R.I. for 15 days.

The prosecution case briefly stated, is as under:

(a) Deceased Sanjay was residing at Tilak Nagar, Goregaon along with his parents and brothers Bablu (PW 1), Manjay and Rohit. The appellant was residing at a distance of five minutes from the house of Sanjay. Original accused No. 2 Shabir was also residing at some distance from the house of Sanjay. Shabir always used to accompany the appellant. Manjay had a love affair with Sunita, the sister of the appellant. When the appellant came to know about his love affair, he gave threats to Manjay that he will kill him. On this ground, twice quarrels took place between the appellant and Manjay. At the time of the incident, PW 2 Jiledar was also residing with the family of Sanjay. He also knew both the accused as they were residing in the same locality.

(b) The incident took place on 28.3.2005 at about 9.30 p.m. At about 9.15 p.m., PW 1 Bablu, deceased Sanjay and PW 2 Jiledar went to one Sarfaraj who was an Ayurvedic Doctor as Jiledar had sustained injury. As Sarfaraj was not present, they were waiting for arrival of Sarfaraj. At that time, the appellant and accused No. 2 Shabir came to the spot. The appellant and accused No. 2 told PW 1 Bablu that his brother Manjay was spoiling the sister of the appellant, hence, they will cut him. The appellant and accused No. 2 were carrying swords at that time. The appellant assaulted Sanjay and co-accused Shabir assaulted Jiledar (PW 2) with sword on his left shoulder, ear and right hand. PW 1 Bablu tried to intervene. The appellant gave threats that if anybody comes to rescue Sanjay, he will cut that person, therefore, Bablu did not come forward to save them. Sanjay fell down on the ground. Thereafter, the appellant and co-accused ran away. PW 2 Jiledar and PW 1 Bablu took Sanjay to Police Station. Then they were referred to the hospital. In the hospital, Sanjay was declared dead. Jiledar was treated in the hospital. PW 1 Bablu lodged F.I.R. Exh. 15. Thereafter, investigation commenced. 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 and co-accused Shabir under Section 302 r/w 34 of IPC for causing the death of Sanjay. Charge was also framed against co-accused Shabir under Section 307 of IPC for causing injuries to Jiledar. The appellant and co-accused Shabir pleaded not guilty to the said charge and claimed to be tried. The defence of both the accused 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 and co-accused Shabir as stated in paragraph 1 above. Being aggrieved by the said conviction and sentence, this appeal is filed by the appellant i.e. accused No. 1 against his conviction and sentence.

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 there is no merit in the appeal.

The conviction is mainly based on the evidence of two eye witnesses i.e. PW 1 Bablu and PW 2 Jiledar. Bablu was the brother of deceased Sanjay. Bablu''s father was the brother of brother-in-law of PW 2 Jiledar. At the time of the incident, Jiledar was residing with the family of Bablu. Bablu has stated that he knew the appellant as the appellant was residing in their locality and the appellant had criminal background. Bablu has stated that he also knew co-accused Shabir. Bablu has further stated that Sunita is the sister of the appellant. The appellant had suspicion that Bablu''s brother Manjay had some relations with the appellant''s sister Sunita. The evidence of Bablu shows that on 28.3.2005 at about 9.15 p.m., Bablu, his brother Sanjay and his uncle Jiledar (PW 2) went to the shop of Sarfaraj. They were waiting for Sarfaraj who was going to give medicine to Jiledar who had sustained injury as he fell down from the staircase. At that time, the appellant and co-accused came running there with swords in their hands. The appellant threatened them that his brother Manjay was spoiling his sister and he will not leave them. The appellant showed sword to PW 1 Bablu, hence, Bablu moved back. The appellant then assaulted Sanjay with sword. Meanwhile, co-accused Shabir assaulted PW 2 Jiledar. After assaulting, the appellant and co-accused ran away.

Mrs. Pooja Sejpal, learned Advocate for the appellant submitted that as far as PW 1 Bablu is concerned, his evidence should not be relied upon because no opportunity of cross-examination was given to the accused, hence, the evidence of Bablu should be discarded.

The evidence of PW 1 Bablu shows that he had stated all the details in his evidence before the Court as stated by him in the F.I.R. Exh. 15. There is no delay in lodging the F.I.R. The evidence of PW 1 Bablu was recorded on 21.2.2006. On that day, on an application filed by the accused, cross-examination of Bablu was deferred to 7.3.2006. Again on 7.3.2006, the appellant filed adjournment application and the same came to be rejected. The applicant-appellant was called upon to cross-examine PW 1 Bablu, however, he declined to cross-examine PW 1 Bablu. The roznama shows that on 20.4.2006, an application was preferred on behalf of the appellant for recalling PW 1 Bablu to examine him. This application was allowed on the very same day and the witness was recalled on 4.5.2006. On that day, the witness was not cross-examined and the matter was adjourned to 18.5.2006. On 18.5.2006 PW 3 Rajkumar and PW 4 Vijay were examined and fresh summons were issued to PW 1 and the matter was adjourned to 2.6.2006. On 2.6.2006, the matter was adjourned to 14.6.2006 as the witness was in U.P. Thereafter, the matter was adjourned to 27.6.2006. On that day, PW 1 Bablu was present, however, again, learned Advocate for the appellant was absent. However, thereafter, learned Advocate for the appellant came to the Court. Thus, it is seen that though on 27.6.2006, PW 1 Bablu was recalled at the request of learned Advocate for the appellant, he was not cross-examined on 27.6.2006. Considering all these circumstances, the argument that opportunity of cross-examination was not given to the accused and therefore, the evidence of PW 1 Bablu is required to be discarded, is not at all sustainable. However, to be on the safer side, we are not taking the evidence of PW 1 Bablu into consideration and instead, we rely on the evidence of PW 2 Jiledar who is also an eye witness to the incident.

PW 2 Jiledar has stated that in the year 2005, he was staying with the brother of his brother-in-law. The sons of the brother of his brother-in-law were Bablu (PW 1), Sanjay (deceased), Manjay and Rohit. Before the incident, he (Jiledar) fell down while climbing staircase, therefore, he was taking medicine from one Sarfaraj (Ayurvedic Doctor). Jiledar has stated that he knew the appellant and co-accused as they were staying in the same locality. Jiledar has further stated that Sunita was the sister of the appellant. On 28.3.2005 at about 9.15 p.m., PW 1 Bablu, Sanjay (deceased) and Jiledar went to Sarfaraj. They were waiting for the arrival of Sarfaraj. At that time, the appellant and co-accused Shabir came to the spot. They told Bablu (PW 1) that his brother Manjay is spoiling his sister, hence, he will cut him. Both the accused were carrying swords. The appellant assaulted Sanjay with sword and co-accused Shabir assaulted Jiledar with sword on his left shoulder, ear and right hand. When PW 1 Bablu tried to intervene, the appellant gave threat that if anybody comes forward to rescue Sanjay, he will cut that person, therefore, Bablu did not come forward to save them. Sanjay fell on the ground in injured condition. Thereafter, both the accused ran away. Then Jiledar and Bablu took Sanjay to the Police Station. They were referred by the police personnel to the hospital. In the hospital, Sanjay was declared dead.

The incident has taken place on 28.3.2005 and the cross-examination of PW 2 Jiledar shows that his statement was recorded on the very same day i.e. on 28.3.2005. Thus, there is no delay in recording the statement of PW 2 Jiledar. The evidence of PW 2 Jiledar is further supported by the medical evidence. PW 12 Dr. Tasgaonkar conducted the postmortem on the dead body of Sanjay. On external examination, he noticed following injuries on the dead body:-

(1) Lacerated wound over left eyebrow, lateral aspect size 1 c.m. x 1/2 c.m. in muscle deep. Margins hemorrhagic;

(2) I.W. left shoulder top, lateral aspect, horizontal length 5 c.m. x 2 mm superficial;

(3) Incised stab wound over left arm and anterior axillary fold. 5 c.m. below shoulder top oblique 6 c.m. x 4 c.m. into deep one angle acute;

(4) Incised stab wound over right side over abdomen 2.5 c.m. below lower margin of right lower rib. 5 c.m. away from mid-line on right side. Vertical size 0.5 c.m. x 1 c.m. into deep with one angle acute;

(5) I/W over right thumb oblique size 1 c.m. x 1/4 c.m. into superficial;

(6) I/W over right ring finger size 1 c.m. x 0.2 c.m. x superficial.

According to Dr. Tasgaonkar, all injuries were ante-mortem.

On internal examination, Dr. Tasgaonkar noticed following injuries:-

(1) Thorax contusion left 3rd and 4th inter coastal with red colour haematoma over area 7 x 6 cm;

(2) Left 2nd inter coastal space perforated due to injury No. 3. Lateral aspect;

(3) Pleura perforated on left side due to external injury No. 3, it contained blood with blood clots 1000 cc;

(4) Left lung upper lobe perforated anterior injury No. 3 and it was hemorrhagic;

(5) Abdomen perforated due to external Injury No. 4 contained blood with blood clot 500 cc;

(6) Liver perforated at lower margin anteriorly.

According to Dr. Tasgaonkar, the cause of death was hemorrhage due to incise stab wounds (unnatural) and all these injuries can be possible by single edged weapon like knife or sword. According to Dr. Tasgaonkar, the injuries on lungs and liver are on the vital parts of the body. In the opinion of Dr. Tasgaonkar, the cumulative effect of all the injuries was sufficient to cause death in the ordinary course of nature and defence injuries were found on the palms.

It is the prosecution case that PW 2 Jiledar was also injured in the incident. This is supported by the evidence of PW 8 Dr. Ugale who examined PW 2 Jiledar. He has stated that the patient Jiledar gave history of assault by known person with sword on left ear pinna, left shoulder and left forearm on 28.3.2005 at 9.30 p.m. He noticed injury on pinna, shoulder and forearm.

The prosecution has also proved the motive for the appellant to commit the murder of Sanjay. This has been brought on record through the evidence of PW 5 Basant. Basant was the father of Sanjay, Manjay as well as Bablu. Basant has stated that the appellant was staying at a distance of five minutes from his house. Basant has stated that his son Manjay had love affair with Sunita, the sister of the appellant. When the appellant came to know about this love affair, he gave threats to Manjay that he will kill him. On account of this, twice quarrels had taken place. Thus, the evidence of Basant shows the motive for the appellant to commit the crime.

We are of the opinion that the evidence of PW 2 Jiledar supported by medical evidence as well as evidence of PW 5 Basant is sufficient to sustain the conviction, hence, it is not necessary to refer to the remaining evidence. On going through the record, we are of the opinion that there is sufficient evidence to show beyond reasonable doubt that the appellant committed the murder of Sanjay by assaulting him with a sword. Thus, we find no merit in the appeal. The appeal is dismissed.