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Judgment
U.V. Bakre, J.—The Appellants (Accused Nos. 1 to 3) along with one Sunil Ramdhan Rathod (Accused No. 4) in Sessions Case No. 73 of 2003, by Sessions Court, Washim were tried for offence punishable under Sections 302, 307, 341, 120B read with Section 34 of Indian Penal Code, and Section 4 read with Section 25 of the Arms Act and Section 37(i)(iii) read with Section 135 of the Bombay Police Act.
The accused Nos. 1 to 3 have been sentenced to undergo Rigorous Imprisonment (R.I.) for life and to pay fine of Rs. 1000/each, in default, to undergo further R.I. for two months each; in respect of the offence punishable u/s 307 read with Section 34 of Indian Penal Code, to suffer R.I. for five years and to pay fine of Rs. 1,000/each, in default to suffer R.I. for further period of two months each; for the offence u/s 120B of Indian Penal Code, to undergo R.I. for life and to pay a fine of Rs. 1000/each, in default, to undergo further R.I. for two months each, and for the offence u/s 341 of Indian Penal Code, to suffer R.I. for three months and to pay a fine of Rs. 200/each, in default, to undergo further R.I. for one month each. Accused Nos. 1 to 3 have challenged their conviction and sentence in the present appeal.
PROSECUTION CASE:
On 24th March, 2003 at about 10.00 hours, the complainant - Abdul Majid Abdul Karim, deceased Abdul Ajij Jan Mohammad, deceased Sheikh Karim Sheikh Husane and injured - Mohammad Shami were coming to Manora by a Commander Jeep belonging to Gajanan Dighade. The accused persons pulled them out of the motor vehicle and assaulted them by delivering the blows of sword on their person. It has resulted in death of Abdul Ajij Jan Mohammd and Sheikh Karim Sheikh Husane. Grievous injuries were caused to Mohammad Shami, with the intention to commit his murder. The assault by accused was over the issue of previous enmity.
The prosecution has examined altogether thirteen witnesses, in order to prove its case. Those are categorized as follows:
(a) Eyewitnesses:
(i) PW 1 - Mohammad Shami Abdul Karim is the injured person.
(ii) PW 6 - Abdul Majid Abdul Karim lodged the Oral Report (Exh.67).
(iii) PW 9 Gajanan Dighade, owner cabdriver of Commander Jeep.
(b) Medical Witnesses:
(i) PW 3 - Dr. Nandu Nande had examined the injured Mohammad Shami Abdul Karim.
(ii) PW 5 - Dr. Rajkumar Rathod who had performed Postmortem Examination of the dead bodies of Abdul Ajij Jan Mohammd and Sheikh Karim Sheikh Husane.
(c) Panch witnesses:
(i) PW 2 - Mohammad Sadiq Mohammd Ayum who was panch of the Memorandum of Statement of Accused No. 1 (Exh.50) and Panchanama of recovery of two swords and a plastic bag (Exh.50A).
(ii) PW 4 - Nisarshah Jabbarshash, the panch of Inquest Panchanams (Exhs.57 and 58) and Panchanama of spot of occurrence (Exh.59).
(iii) PW 7 - Mohammad Jamil Abdul Gani, the panch of Seizure Panchanamas (Exhs.70,71, 72 and 73).
(iv) PW 8 - Wahidkhan Wahabkhan, the panch of Panchanama of damages to the Commander Jeep (Exh.75).
(v) PW 10 - Jeetendra Pawar, the panch of Memorandum of Statement of Accused No. 4 and Panchanama of recovery of his clothes.
P.W.10 has turned hostile.
(d) Investigating Officers and other police personnel:
(i) PW 11 - Uttamrao Jadhad, Deputy Superintendent of Police.
(ii) PW 12 - Ajabrao Aochar, Police Inspector.
(e) PW 13 - Tukaram Datar, Police Constable. He carried 16 articles in sealed condition to the C. A., Nagpur.
The learned Additional Sessions Judge has held on the basis of the evidence of PW 5 - Dr. Rajkumar that death of both victims was homicidal.
In this appeal the point of death of two victims Abdul Ajij Jan Mohammad and Sheikh Karim Sheikh Husain being homicidal is not in dispute.
Based on the ocular evidence of PW 1 - Mohammad Shami Abdul Karim, PW 6 - Abdul Majeed Abdul Kareem and PW 9 - Gajanan Shivram Dighade and the circumstantial evidence of recovery of the swords at the instance of the accused No. 1 and the Chemical Analyser''s report, the learned Additional Sessions Judge held it proved that:
(a) The accused Nos. 1 to 3 were present at the place of incident with weapons in hands;
(b) That these accused did the criminal conspiracy;
(c) Murdered Sheikh Karim and Abdul Ajij and attempted to murder Mohammad Shami and thereby committed the offence punishable under Sections 302, 307, 120B, 341, read with Section 34 of Indian Penal Code.
Learned Sessions Judge acquitted the accused of the offence punishable u/s 4 read with Section 25 of the Arms Act and Section 37(i)(iii) read with Section 135 of the Bombay Police Act. The accused No. 4 has been acquitted of all the offences.
Heard arguments of respective Advocates, and perused the record.
Submission advanced on behalf of the accused No. 1 are as follows.:
(a) Motive or intention for committing murders has not been established.
(b) Only interested witnesses have been examined and there is no corroboration from any independent witness.
(c) The way in which the incident took place, it was not possible for the witnesses to identify the assailants.
(d) There are material omissions and contradictions in the evidence of witnesses.
(e) There are material variations between the ocular and medical evidence.
(f) The accused No. 3 Vasanta was also injured in the same incident for which Sheikh Shami was prosecuted for offence u/s 307 of I.P.C. The Trial Court did not try both the cases together and this has caused prejudice to the accused persons.
(g) The initial report lodged by Abdul Majid, wherein he had reported about assault by unknown persons, has been suppressed.
(h) The injuries on the person of the accused No. 3 are not explained.
(i) The Executive Magistrate, who recorded the statement of P.W.1, has not been examined.
(j) There was delay in recording statement of victim and in seizure of clothes of the accused and also in recovery of weapons.
(k) The weapons were recovered from the place of incident which was open and easily accessible to general public.
(l) The weapons were not sealed.
(m) The presence of P.W.6 at the spot of incident is doubtful.
On behalf of the accused No. 2 and 3 following points are urged apart from those urged on behalf of accused No. 1.:
(a) There are discrepancies, infirmities and lacunae in the prosecution cases.
(b) There are deformities in the prosecution case which do not inspire the confidence to connect the accused with the alleged crime.
Following citations have been relied upon by learned Advocate Dr. Kalsi on behalf of the accused No. 1.:
(i) Marella Chalama Reddy and Others Vs. State of A.P., .
and
State of U.P. v. Guru Charan and Ors. 2010 (1) Supreme 753 Preposition:
When there is any inconsistency between the oral evidence and medical evidence, the oral evidence would normally prevail. But when medical evidence rules out the possibility of the happening of the incident in the manner spoken to by the eyewitnesses, the Court has to necessarily arrive at an opinion that the eyewitnesses are not giving correct version about the incident and ultimately it leads to the conclusion that the witnesses were not in fact present at the place of occurrence and they did not witness the incident at all.
(ii) Ashok Kumar Chaudhary and Others Vs. State of Bihar,
Preposition:
Whenever independent witnesses of the incident which has occurred in public view, are available, reliance on interested witnesses/relatives however credit worthy needs to be relied upon with a caveat of caution.
Learned Advocate Shri R. M. Daga in support of his contentions has relied upon the case of Sanjay Aashroba Upadhe and Anr. v. State of Maharashtra 2010 ALL MR (Cri) 1538.
Preposition:
When testimonies of eyewitnesses are not in consonance with each other and accordingly there are deformities in prosecution case which do not inspire confidence to connect Appellants with alleged crime, the appeal deserves to be allowed.
Learned A.P.P. on behalf of the State firmly argued that the ocular evidence of P.W.1 and P.W.6 sufficiently proves the presence of the accused persons at the scene of offence and further that they are guilty and there is support of medical evidence given by P.W.5. She pointed out that the recovery of the hard and sharp objects with which injuries were caused to the deceased persons and to P.W.1 have been proved by P.W.2, the panch witness and by P.W.12 the investigating officer, to have been recovered at the instance of the accused No. 1 and the said weapons are two swords. She further argued that the case pertaining to the injuries sustained by the accused No. 3 Vasanta, the crime was registered under No. 47/03 in respect of the offence u/s 307 of I.P.C. and since no evidence was found, the learned J.M.F.C., Karanja granted ''C'' summary.
The learned A.P.P. has relied upon Sheo Shankar Singh Vs. State of Jharkhand and Another, , wherein, the Hon''ble Apex Court has reiterated the principles regarding proof and relevance of motive for establishing the guilt of the accused; purpose of test identification parade; omissions of investigating agency to do certain things and effect of defective or illegal investigation.
AS TO EVIDENCE:
The injuries are duly proved by the Medical Officer (PW 5) - Dr. Rajkumar Rathod on the person of both deceased, read with the Postmortem Examination Reports which are at Exhs.64 and 65.
The deceased Abdul Ajij had sustained following external injuries:
(1) incised wound 10 c.m. long fully deep at left wrist joint, passing from base of left little finger obliquely and deeply towards left wrist joint with dorsem of left hand towards left wrist joint separating the left hand from left forearm at left wrist joint except slight attachment on palmer aspect. Left wrist joint bones were cut thoroughly,
(2) incised wound around neck on backside starting from incised wound around neck on backside starting from right side of neck passing backside of neck up to posterior part of left side of neck. This circumstance of incised wound around neck was 18 c.m. long and 8 c.m. deep cutting through neck muscle and includes 2 cervical and vertebra, neck was tilted to left side,
(3) incised wound on scalp 5 c.m. long, half c.m. deep with skin flap removed up to 3 cm., placed obliquely on right parietal region posterior part,
(4) incised wound 15 cm long, 5 cm deep placed transversely at middle of right forearm on posterior aspect involving fracture of radius and ulna bones,
(5) incised wound 5 c.m. long, 1 c.m. deep placed longitudinally on left palm,
(6) incised wound 1 c.m. long, half c.m., deep on middle of 4th finger right on palmar aspect with fingers separated partly and;
(7) incised wound 9 c.m. long by deeply fully penetrating chest with 2 cm broad below the right side of nipples, placed transversely.
(Quoted from page Nos. 334 and 335 of the appeal paper book).
Abdul Ajij had sustained following internal injuries:
Superficial skin irruption at left thigh 3 c.m. long, 2 c.m. broad oblique 1 c.m. long, half c.m. broad at left knee joint, skin irruption at lower leg right lateral aspect, skin irruption left ankle joint lateral aspect. Injuries on thorax were: incised wound 9 c.m. long x deeply fully penetrating the chest 2 cm. broad below the right side of nipple placed transversely, incised wound was to plura, in right lung incised wound 3 c.m. long, 2 c.m. deep and transversely placed.
(Quoted from page No. 335 of the appeal paper book).
The cause of death of Abdul Ajeej was hemorrhagic shock due to multiple injuries on body and according to PW 5 - Dr. Rajkumar Rathod, the injuries on the neck and on the chest are fatal and can cause instant death.
The deceased Sheikh Karim had sustained following external injuries:
(1) incised wound placed transversely at upper part of anterior aspect of neck 19 c.m. long, 5 c.m. deep extending from right side of neck passing anterior aspect of neck up to left side of neck,
(2) incised wound 2 c.m. long, 1 c.m. deep placed obliquely at left arm middle part of lateral aspect.
(3) incised wound 20 c.m. long, half c.m. deep obliquely on outer aspect of left forearm from middle part of left forearm up to left wrist joint,
(4) incised wound at left little finger cut thoroughly at middle part distal to it finger part was absent,
(5) incised wound at middle part of fourth left finger cut thoroughly and distal to it, finger part was absent,
(6) incised wound at middle part of middle finger left cut partially and,
(7) incised wound 3 c.m. long, 1 c.m. deep placed longitudinally at left scapula region.
(Quoted from page Nos. 333 and 334 of the appeal paper book).
The internal examination of the dead body of Sheikh Karim revealed that his trachea was cut.
The cause of death of Sheikh Kareem was also hemorrhagic shock due to multiple injuries on the body, and, according to PW 5 - Dr. Rajkumar, the injury No. 1 can cause instant death.
The Panchanama of spot of occurrence (Exh.59) and the Inquest Panchanamas (Exhs.57 and 58), duly proved by PW 4 - Nisarshah Jabbarshah, the Panch witness, and by PW 11 - Uttamrao Jadhad, the Investigating Officer, reveal that the dead body of Sheikh Karim was lying in the middle of the road, in a pool of blood, whereas the dead body of Abdul Ajij was lying in the pool of blood, in the bed of stream on grass below the bridge.
The evidence of P.W.3 Dr. Nandu Nande and the Medico Legal Certificate (Exh.54) issued by him prove that on 24/3/2003, P.W.3 had examined P.W.1 Mohamad Shamim and following injuries were found on his person.:
(1) Avulsion of skin and underlying muscle, tender side and medial aspect, measuring 4"x4".
(2) Incised wound over dorsal surface middle 1/3 of left forearm, measuring 4"x1"x1".
(3) Multiple cut over left palm and all digital region.
(4) Incised wound over right scupula region of back and abrasion over left side of back.
(5) Contusion over middle 13 of right thigh.
(Quoted from page No. 57 of the appeal paper book).
P.W.3 has deposed that the above injuries are sufficient in ordinary course of nature to cause death.
The question now is whether the accused Nos. 1, 2 and 3 are the authors of the death of the said two deceased persons and of the injuries caused to P.W.1 Shri Mohammad Shami.
In the light of the above contentions of the learned Counsel and of learned A.P.P., this Court has considered the evidence of the prosecution and the impugned judgment.
P.W.1 has stated as follows:
The accused No. 1 Gulab is the Sarpanch of his village and that the accused Nos. 2 and 3 namely Ramrao and Vassanta are the brothers of accused No. 1.
P.W.6 has also identified the accused persons by names namely accused No. 1 as Gulab, accused No. 2 as Rama and accused No. 3 as Vasanta and he has stated that he knows all three since they are residents of his village and accused No. 1 being the Sarpanch of that village.
The above facts about identification of the accused persons is not disputed in the crossexamination of P.W.1 and P.W.6.
The above two witnesses namely P.W.1 and P.W.6 have clearly stated about presence of each other and of Abdul Ajeej Abdul Karim, Abdul Ajeej Jan Mohammad, Abdul Karim Sheikh Hussen, Sheikh Farid and About the accused No. 2 while they were all sitting in the Commander Jeep.
Both these witnesses have unanimously stated about the accused No. 1 and 3 following the Jeep by Motorcycle and then on the bridge stopping the Motorcycle in front of the Jeep due to which the Jeep stopped.
As far as the incident of assault is concerned, the version of P.W.1 is as follows:
...Accused No. 2 asked accused No. 1 Gulab to bring the sword. Immediately bringing swords, blows of sword began.
First blow was given to Abdul Karim. He was injured and fell down. Immediately I came down of the jeep.
Accused No. 1 Gulab gave blow by means of sword to Abdul Ajeej.
Accused No. 3 Vasant gave sword blow on my hand.
Blow was likely to struck to my head so I raised my hand so injury sustained to my left palm.
Accused No. 2 Rama was giving blow by means of sword against me so I raised hand so sustained injury to my left arm.
(Quoted from page No. 36 & 37 of the appeal paper book. Sub paragraphing is done for convenience of analysis. Underlining is done to highlight important and relevant portions).
The version about the incident of assault, as given by P.W6, is as follows.:
...Cry raised ''Mara Mara''. Accused No. 2 Rama began pushing persons sitting in the jeep to P.W.1 Shami and Abdul Kareem and Abdul Ajeej.
Accused No. 2 Rama brought the swords from the place underneath the bridge and handed over the same to accused No. 1 Gulab, accused No. 3 Vasanta.
Accused No. 1 Gulab, accused No. 2 Rama and accused No. 3 Vasanta immediately began giving blows by means of sword forcibly.
Firstly blow was given to Ab. Kareem, thereafter to Ab, Ajeej and then to Mohd. Shami.
(Quoted from page No. 103 of the appeal paper book. Sub paragraphing is done for convenience of analysis. Underlining is done to highlight important and relevant portions).
P.W.9 Gajanan Dighade, the driver of the Commander jeep who was liable to be an eye witness being driver of the jeep subject matter has turned hostile. His evidence is therefore of no use.
Some omissions in the deposition of P.W.1 as pointed out by the learned Advocates for accused persons are as follows.
(a) In the statement (as dying declaration of P.W.1) recorded by Executive Magistrate, P.W.1 did not state about "Matador and 18 persons sitting in the jeep."
(b) In the same previous statement (recorded as dying declaration), P.W.1 did not state that Manora Police admitted him to Government Hospital and his brother Abdul Khallil at 2.00 p.m.
(c) In the statements recorded on 29/3/2003 and 4/6/2003, P.W.1 did not state that there was a scuffle between himself and Vasanta.
(d) P.W.1 has not deposed as to who assaulted Abdul Kareem Sheikh Hussain.
Following discrepancies/omissions were pointed out by the learned Advocate for the accused, in the deposition of P.W.6. :
(a) P.W.6 states that a cry was raised "Maara Maara" and accused No. 2 Rama began pushing persons sitting in the jeep towards P.W.1 Shami, Abdul Karim and Abdul Ajij, which facts are not uttered by P.W.1 at all.
(b) In his examination in chief, P.W.6 says that he was accompanying others to attend the date at Mangrulpir Court, but in his crossexamination, he says that he was not having any work to proceed towards Mangrulpir.
(c) P.W.6 has stated that on account of allegations made by the accused No. 1, search of the house of Majid and also of his house was taken by police on 8.3.2003 to find out whether he possesses swords and due to this, the feelings of P.W.6 were hurt and that all muslim people in the village felt insulted because of the search of the houses.
(d) P.W.6 has admitted that a meeting was subsequently held in connection with the said search, which meeting was of all muslim people from the village.
(e) It is not recorded in the oral report of P.W.6 that Abdul Karim, Abdul Ajij, Mohd. Shami sat on front seat of the jeep and that after learning Kupta phata, a Bullet Motorcycle ridden by Gulab and Vasanta crossed the jeep.
(f) It is recorded in the oral report that P.W.6 and Sheikh Farid put Mohammad Shami in a vehicle and admitted them to rural hospital, but in his deposition P.W.6 denies the same.
(g) It is not recorded in the oral report that accused No. 2 brought the swords from a place beneath the bridge and handed over one to accused No. 1, Gulab and another to accused No. 3 Vasanta.
(h) It is not recorded in the oral report that the accused No. 2 Rama gave blow by means of sword.
(i) The chronology of assaulting Abdul Karim, Abdul Ajij and then Mohd. Shami, one after the other, was not stated by P.W.6 while lodging the oral report.
(j) P.W.1 says that there were about 18 people in the jeep whereas P.W.6 says that there were 10 to 12 passengers in jeep when it arrived near Kupta phata.
(k) P.W.6 has admitted that the accused No. 2 could not push the deceased as well as injured persons who were sitting on the front seat.
(l) P.W.6 has not corroborated P.W.1 as far as the events of alleged assault are concerned.
The spot of occurrence as revealed from the evidence of the eye witnesses namely P.W.1 and P.W.6 and from the evidence of the Commander Jeep owner cabdriver namely Gajanan Dighade (P.W.9) corresponds with the place where the dead bodies of the two deceased persons were found lying.
The evidence of P.W.2 Mohd. Sadiq Mohd. Ayum, the panch witness for the memorandum of disclosure statement made by the accused No. 1, which is at Exhibit 50 and the recovery panchanama of the two swords (Articles 1 and 2), which is at Exhibit 50A, is not shaken in the crossexamination. Merely because, P.W.2 is a Muslim, his testimony which appears to be trustworthy, cannot be discarded.
As per the report of the chemical analysis (Exh. 43) human blood was detected on one of the swords, recovered as above, at the instance of the accused No. 1.
However, the crossexamination of P.W.5 Dr. Rathod who conducted the postmortem examination of the dead bodies of the two deceased reveals as follows.:
(a) The police had not sent the swords (Articles 1 and 2) to P.W.5 for weapon report.
(b) The swords (Articles No. 1 and 2) have got one edge sharp and the other blunt.
(c) It is correct in medical science that whenever there is clean cut size wound, it is incised wound.
(d) The swords (Articles 1 and 2) are of ziczac shape bent at places and injuries by such bent weapons would have bend in the said injuries.
Though P.W.5 is very firm on his stand that the injuries sustained by both the deceased can be caused by the swords (Articles 1 and 2), however, the above points taken from crossexamination of P.W.5 do create a serious doubt about the same and the benefit of the same must go to the accused. Even otherwise, neither P.W.1 nor P.W.6 has identified the said swords as the weapons of assault.
The evidence of recovery of the swords, allegedly at the instance of accused No. 1 therefore loses its value.
P.W.12 the Investigating Officer has stated that at serial No. 21 on 24/4/2003, in the station diary, there is entry in respect of information orally given by the accused No. 1 Gulab Pund, which entry was made at 11.20 a.m. He has further stated that at serial No. 22, in the station diary, there was entry made at 11.30 a.m. in respect of Crime No. 46/2003 for offence under Sections 302, 307 read with 34 of I.P.C. The said extracts of the station diary are at Exh.82. P.W.12 has stated that the accused No. 1 Gulab who was in the lockup made grievance that no cognizance was taken about the grievance made by him and hence P.W.12 prepared the record of complaint given by the accused No. 1 Gulab in the presence of P.S.I. Khandare and accused No. 1 as complainant put his signature below the said complaint. Exh.83 is the said oral report of the accused No. 1, upon which P.S.I. Khandare registered Crime No. 47/2003 u/s 307 of I.P.C. Ultimately, this crime ended as "C" summary. However, the perusal of the oral report Exh.83 shows that it pertains to the same incident.
Upon appreciation of the evidence discussed herein before, it is clear that:
(a) The death being homicidal is proved.
(b) The injuries were suffered by P.W.1 and P.W.6 by deadly weapon i.e. sword used by the accused persons.
(c) The presence of accused Nos. 1 to 3 is duly proved.
What would decide the result in the case is the act of each amongst the accused persons. On discreet scrutiny of testimony of P.W.1 and P.W.6 which is quoted in foregoing paragraph Nos. 30 and 31 what emerges unimpeachably is as follows.:
(a) All the accused assaulted the injured and deceased by use of sword.
(b) Had P.W.1 failed to prevent injury on his vital upper organs by raising hand, the assault would have resulted into a fatal assault, and a grave injury.
(c) Accused Nos. 2 and 3 gave blow by axe to the witnesses.
(d) Accused No. 1 gave blow by sword to Abdul Ajij, the deceased. Accused Nos. 1, 2 and 3 started giving blows of sword to deceased Sheikh Karim and then to Abdul Ajij and to P.W.1.
(e) Insofar as assault on Abdul Ajij as well as Sheikh Karim is concerned, P.W.1 and P.W.2 are concurrent.
In the given situation, the picture, which is portrayed is unshattered. Testimony of P.W.1 as well as P.W.6 is that all the three accused persons were concurrent in assaulting Sheikh Karim while accused No. 1 was at lead in assaulting Abdul Ajij. The result which emerges is as follows.:
(a) All the accused have assaulted Sheikh Karim and caused him vital injuries which have resulted into his death.
(b) Accused No. 1 has caused vital injuries to Abdul Ajij which had resulted into his death.
(c) All the three accused have assaulted P.W.1 and caused him hurt by use of deadly weapon.
(d) The acts of the accused persons are done with common intention to eliminate Sheikh Karim and Abdul Ajij and even to cause death of P.W.1.
In the result, this Court is satisfied that the prosecution witnesses duly proved the charge.
Insofar as the judgments relied upon by the defence are concerned, it would suffice, if those are dealt with briefly. It has not come in evidence that independent witnesses were available. Even in the judgment relied upon by the defence it is clear that the rule of law and precedent is that the witnesses, who are related and hence interested, can always be believed. In order to impeach the worthiness of related witness, the defence has to show that the witness was interested in conviction of the accused persons. Moreover, interested witnesses in itself do not loose creditability. Their evidence could be read with caution if the evidence of independent witness is not brought in spite being available.
As we find, there are no infirmities in the testimony and, therefore, the judgment relied upon by the defence do not serve in any manner to help the case.
In the result, we find no merit in appeal. Appeal is dismissed.