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2017 DIGILAW 1990 (BOM)

Naushad @ Jabbar Beig, S/o Kasimsab Beig v. State

2017-09-22

C.V.BHADANG, PRITHVIRAJ K.CHAVAN

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JUDGMENT : PRITHVIRAJ K. CHAVAN, J. By this appeal the appellant challenges his conviction under Section 302 of Indian Penal Code (for short “IPC”) by the Sessions Judge, North Goa, Panaji on 23.10.2015 by which he has been sentenced to undergo imprisonment for life and fine of Rs.10,000/- in default to undergo imprisonment for 6 months. 2. Briefly stated the facts are that on 24.7.2011, the appellant stabbed one Prashant, with a knife on the left side of chest at about 20.30 hours near a room where the deceased and the appellant were residing at the site of Ruby Construction, Gera Emporium Building, EDC complex, Patto Panaji in a sudden quarrel. Injured Prashant was immediately shifted to the hospital, however, he succumbed to said injury. The appellant came to be arrested and FIR bearing No.216/2011 came to be registered against him at Panaji Police Station, Panaji. 3. PW17 Ramesh Gaonkar, was incharge of the Police station at the relevant time. He visited scene of occurrence and contacted wife of the deceased namely PW16 Lata Machi - the only eye witness of the incident. He also recorded the statements of the witnesses. He arrested the appellant. He also conducted scene of offence panchanama in the presence of Pancha witnesses. He collected the sample of the mud from the spot of the incident under panchanama and sealed the same. He had seized the weapon of offence i.e. a Knife lying on the spot with blood stains. It was duly seized under panchanama. It was a 10 inches long Knife with handle. Its blade is 5.7 inches. Seized muddemal was sent for chemical analysis at CFSL Hyderabad. The appellant was also referred for medical examination. Medical report of the appellant is produced at Exh.24. Clothes of the appellant were also seized. After investigation he laid a chargesheet against the appellant in the Court of Judicial Magistrate, First Class, Panaji under Section 302 of IPC. Learned JMFC, Panaji committed the case to the Court of Sessions at Panaji. 4. Learned Sessions Judge after hearing the prosecution and the defence framed a charge against the appellant under Section 302 of IPC. The appellant pleaded not guilty and claimed a trial. Learned JMFC, Panaji committed the case to the Court of Sessions at Panaji. 4. Learned Sessions Judge after hearing the prosecution and the defence framed a charge against the appellant under Section 302 of IPC. The appellant pleaded not guilty and claimed a trial. Defence of the appellant as emerged from the line of cross examination of the prosecution witnesses as well as his statement under Section 313 of Cr.P.C. is that of denial and false implication in the case. No defence evidence has been adduced on his behalf. 5. In order to substantiate the charge the prosecution examined 18 witnesses. The learned Sessions Judge found that the appellant had knowingly and intentionally caused death of Prashant during the scuffle by inflicting the blow of Knife with force on his chest which had resulted into his death. The learned Sessions Judge, therefore, answered the only point framed by him, in the affirmative and convicted and sentenced the appellant as above. 6. Feeling aggrieved, the appellant is before this Court. 7. We have heard Ms. D. Tulkar, the learned Counsel for the appellant and Shri M. Amonkar, the learned Additional Public Prosecutor for the respondents. We have gone through the evidence on record and the impugned judgment. 8. It is submitted by the learned Counsel for the appellant that it cannot be said to be a case of 302 of IPC inasmuch as it is based on circumstantial evidence in which neither the prosecution has established motive nor there is any evidence worth the name to find the accused guilty of intentionally and knowingly causing the death of deceased Prashant. The learned Counsel took us through the evidence of the various prosecution witnesses. The evidence of most of the witnesses is hearsay in nature as the incident in question occurred during night hours and except wife of the deceased namely PW16 Lata Machi there is no other evidence on record pointing towards complicity of the appellant in committing the said offence. It is submitted that at the most it would be a case falling within the ambit of Section 304-II of IPC. 9. On the other hand, the learned Additional Public Prosecutor supported the impugned judgment. It is submitted that at the most it would be a case falling within the ambit of Section 304-II of IPC. 9. On the other hand, the learned Additional Public Prosecutor supported the impugned judgment. It is submitted by Shri Amonkar, the learned Additional Public Prosecution that there is no reason to disbelieve the testimony of PW16 Lata Machi, as she was the natural witness of the incident when there was altercation and a melee between the deceased and the appellant. It is submitted that prosecution has proved the seizure of the Knife as well as other incriminating material on record which clearly establishes the involvement of the appellant in the crime. It is submitted that discrepancies on record are minor and would not go to the root of the prosecution case. 10. We have carefully considered the circumstances and the rival contentions raised by the prosecution and the defence. 11. Indubitably deceased Prashant died a homicidal death on 24.7.2011. PW1 Dr. Pannag S. Kumar who conducted autopsy on the deceased has deposed that he found four external injuries out of which the injury no.1 was boat shaped stab wound on the left side of front of chest, 2.6 cms long X 1 cms breadth. During internal examination he observed the stab wound through the pericardium and through the lower part of anterior wall of left ventricle near the apex. The stab wound through the left lung and heart was horizontally/obliquely placed. He, therefore, opined that the cause of death was due to haemorrhagic shock consequent to stab injury to the heart and left lung. He also opined that the injury could occur with sharp pointed penetrating cutting weapon. 12. PW4 Sanjay Kumar, was a pancha witness in whose presence an inquest panchanama was drawn at GMC morgue on 25.7.2011. PW5 Anil Rawal, PW7 Nandukumar Sonar, are the witnesses of the scene of offence panchanama whereas PW6 Mahendra Bhandari, is the police photographer who took photographs of the spot of the incident as per the instructions of the Investigating Officer. 13. Prosecution has examined PW12 Basavraj Hosamani, PW13 Mohammad Alam, PW14 Rajani Basumotary and PW15 Mohammed Kalim. These are the witnesses examined by the prosecution whose evidence is mostly of hearsay nature, in the sense, none of these witnesses have had an occasion to witness the incident in question. 13. Prosecution has examined PW12 Basavraj Hosamani, PW13 Mohammad Alam, PW14 Rajani Basumotary and PW15 Mohammed Kalim. These are the witnesses examined by the prosecution whose evidence is mostly of hearsay nature, in the sense, none of these witnesses have had an occasion to witness the incident in question. PW12 Basavraj Hosamani who is a labour contractor at the Gera Construction testified that the appellant was working as his mason at the site of Gera Construction and residing there with his family in the basement of the said building. At the time of incident he was at Hubli. He was telephonically informed by Anil Rawal - Project Manager of Gera Construction. He, therefore reached Panaji on next morning. He does not say anything about the incident in question. PW13 Mohammad Alam Gir was working as a labourer at the Gera construction where the deceased Prashant and his wife PW16 Lata Machi were also labourers residing in the small temporary portion of the basement area. On the day of the incident all of them went to market to buy some grocery. They returned from the market. When this witness reached near the site, he heard a commotion infront of room of Prashant. He noticed that Prashant and appellant were fighting for something. PW13 Mohammad Alam Gir tried to pacify them but in vain. After sometime, PW16 Lata Machi started screaming and therefore, all of them came out and noticed Prashant falling on the ground in front of his room with bleeding injury over his chest. PW16 Lata Machi informed that her husband has been stabbed with Knife by the appellant, however, the appellant was not found over there. Thereafter the injured was shifted to GMC Bambolim in a jeep by this witness alongwith one Mithun admitted him in casualty. After sometime doctor declared him dead. 14. Attention of PW13 Mohammad Alam Gir was drawn to his statement before the police wherein there is no mention that he had stated about quarrel between the deceased and the appellant and they were separated by him. However, Investigating Officer PW17 Ramesh Gaonkar, admits during cross examination that PW13 Mohammad Alam Gir did state before him that he noticed deceased and the appellant quarreling with each other and that he separated them. Thus, is proved that just before the incident PW13 Mohammad Alam Gir witnessed the quarrel between the deceased and the appellant. 15. However, Investigating Officer PW17 Ramesh Gaonkar, admits during cross examination that PW13 Mohammad Alam Gir did state before him that he noticed deceased and the appellant quarreling with each other and that he separated them. Thus, is proved that just before the incident PW13 Mohammad Alam Gir witnessed the quarrel between the deceased and the appellant. 15. PW14 Rajani Basumotary, was working as a welder in the Ruby Company at the relevant time. He was residing at the first floor portion of the building. He knew the deceased. On the date of incident at about 8.00 p.m., he heard shouts of PW16 Lata Machi and therefore, immediately went down. He heard PW16 Lata Machi saying that her husband was assaulted with knife by the appellant. He noticed that Prashant was lying on the ground and blood was oozing out. This witness also knew the appellant who was not at the spot at that time. Similarly PW15 Mohammed Kalim is also a labour contractor under whom deceased Prashant was working alongwith his wife. Around 8.00 p.m, he received a phone call from one Nandukumar disclosing about skirmish between a labourer and Prashant and he was also informed that Prashant was shifted to hospital as he suffered knife injury. One of his labourer by name Mithun informed this witness that Prashant had died in the hospital due to stab injury. Thus all these witnesses had no occasion to see the incident in question. 16. PW16 Lata Machi, is a resident of Umargao, Gujarat. The only eye witness testified that she was not the wife of deceased Prashant but of one Shri Jagdish Machi. Sometime in the year 2011 deceased Prashant brought her to Goa from Gujarat. She was illiterate and started residing with Prashant. Since the appellant and the deceased were employed as labourers at Ruby construction they were residing at the site in temporary rooms. It has come in the evidence of PW16 Lata Machi, that being half working day due to Sunday she went to Panjim Market for buying grocery at around 5.00pm alongwith the deceased. They returned by 6.45 p.m. When she was in the room with the deceased, the appellant started shouting loudly outside and, therefore, Prashant questioned him. The appellant started abusing Prashant in filthy language. They returned by 6.45 p.m. When she was in the room with the deceased, the appellant started shouting loudly outside and, therefore, Prashant questioned him. The appellant started abusing Prashant in filthy language. The appellant said in Hindi “Tere Baap Ki hai kya company.” There was an altercation and exchange of abuses between the appellant and Prashant. When she heard loud abuses, she came out and found appellant inflicting a blow of the knife on the left side of the chest of Prashant. Appellant immediately threw the Knife on the spot and escaped. Due to the blow Prashant fell down. She rushed towards him. Blood was oozing from the injury. She, therefore, called labourers and then took Prashant in room. Thereafter Prashant was taken to hospital in the Company's vehicle. PW16 Lata Machi, accompanied Prashant in the hospital, however, after sometime he was declared dead. PW16 Lata Machi was taken to the police station where she lodged a complaint against the appellant which is at Exh.106. 17. As regards the scuffle between the appellant and the deceased, PW2 Dr. Mandar Kantak who examined the appellant noticed following injuries on his person. “1. Abrasions, multiple, scratch, oblique in 3 X 1.5 cms area for left malar cheek area, 1 cms lateral to left ala of nose, broadest above and tapering below. 2. Abrasion, scratch, 1 X0.1cms, for medial aspect of right orbit, 1 cms lateral to midline, medial to medial canthus of right eye, curved, broadest in middle with tapering ends. 3. Abrasion, scratch, oblique, 3 X 0.1 cm over right malar cheek area, 1 cms lateral to right ala of nose, broadest above and tapering below. 4. Abrasions, multiple, scratch, oblique, 6 X 4 cms area for right front and medial aspect of midright neck with underlying tenderness. 5. Abrasions, scratch, 2 X 0.1 cms for left upper lateral aspect of neck, just below left angle of mandible, curved, broadest in middle with tapering ends. 6. Abrasion scratch, 1 X 0.1 cms for distal phalange back of left thumb, curved, broadest in middle with tapering ends. 18. All these injuries were said to have been caused with finger nails and within 12 to 24 hours of duration. The only inference which would flow from the aforesaid evidence is that these injuries must have been caused during a melee between the appellant and the deceased. 19. 18. All these injuries were said to have been caused with finger nails and within 12 to 24 hours of duration. The only inference which would flow from the aforesaid evidence is that these injuries must have been caused during a melee between the appellant and the deceased. 19. Thus, it is apparent and clear from the evidence of this witness that there was a sudden quarrel between the appellant and the deceased only for the reason that the appellant was shouting loudly outside the room to which the deceased objected. It is not the case of the prosecution that there was any prior enmity or dispute between the appellant and the deceased. PW16 Lata Machi, in her cross examination admits that prior to the incident there was neither any dispute nor enmity between the deceased and the appellant. They quarreled for the first time. Except the evidence of PW16 Lata Machi, there is nothing on record by which even it can be remotely suggested that the appellant had premeditated or had full intention to eliminate the deceased. It is pertinent to note that after inflicting single blow on the left side of the chest of the deceased the appellant threw the knife on the spot itself and ran away perhaps realising that in a heat of passion he had inflicted a lethal blow on the vital part of the body of the deceased. 20. Exception 4 to Section 300 of IPC contemplates that culpable homicide is not a murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation to exception 4 provides that it is immaterial in such cases which party offers the provocation or commits the first assault. 21. The question whether the appellant entertained a particular intention or not is the question which is to be answered from the proved facts and circumstances of the case. Explanation to exception 4 provides that it is immaterial in such cases which party offers the provocation or commits the first assault. 21. The question whether the appellant entertained a particular intention or not is the question which is to be answered from the proved facts and circumstances of the case. From the evidence and the circumstances on record, we are convinced that this case would squarely fall within the ambit and scope of exception 4 to Section 300 of IPC as the quarrel ensued at the spur of the moment without premeditation and the appellant had not taken undue advantage or acted in a cruel or unusual manner as he had inflicted only one blow and not repeated the same. Conviction of the appellant therefore, under Section 302 would not sustain and needs to be altered to Section 304-II of IPC. It is also pertinent to note that the appellant did not conceal the knife but threw the same at the spot itself. It is also a factor indicating that he had no premeditation to commit the murder of the deceased. 22. There are minor omissions and contradictions on record which are insignificant and would not go to the root of the prosecution case. However, it appears that the learned Sessions Judge failed to appreciate the evidence of PW16 Lata Machi in its correct perspective in the light of the fact that she herself had categorically deposed about the sudden quarrel and the resultant fight between the appellant and the deceased during which the appellant inflicted a single blow in the form of stab injury on the chest of the deceased and ran away from the spot after throwing the knife. The prosecution has, therefore, failed to bring home the guilt of the accused under Section 302 of IPC but, instead succeeded in establishing the case falling under exception 4 to Section 300 of IPC. The appellant is, therefore, liable to be convicted under Section 304- II of IPC. It has been sufficiently brought on record that the accused though had knowledge that due to his acts he would cause death but does not carry any intention to cause the death or to cause such bodily injuries which would result in causing the death. Conviction of the appellant therefore, needs to be altered from Section 302 of IPC to Section 304-II IPC. Conviction of the appellant therefore, needs to be altered from Section 302 of IPC to Section 304-II IPC. The impugned judgment passed by the learned Sessions Judge needs to be interfered with to that extent. 23. The learned Counsel for the appellant fairly submits that the appellant be sentenced to imprisonment for the period already undergone by him to which the learned Additional Public Prosecutor has no objection. Considering overall circumstances on record and in the light of the fact that there are no criminal antecedents it would be just and proper to impose a sentence which the appellant had already undergone. As such, following order would meet the ends of justice. ORDER (i) The Appeal is partly allowed. (ii) The Conviction of the appellant for the offence punishable under Section 302 of IPC is modified to one under Section 304 Part II of IPC. (iii) The appellant is sentenced to imprisonment for the period already undergone and to pay a fine of Rs.10,000/-. (iv) Fine, if not already paid, to be deposited before the learned Sessions Judge. (v) On deposit of the fine, the appellant shall be set at liberty forthwith, if not required in connection with any other offence. (vi) The order as regards disposal of the property is hereby maintained.