Criminal App. No.341 of 2005

7th December, 2007

Petitioner Counsel: R. M. DAGA
Respondent Counsel: Mrs. S. S. WANDILE

Cases Cited:
Jadu Yadav Vs. State of Bihar, 1994 Cri.L.J. 1209 [Para 11]
Sukhbir Singh Vs. State of Haryana, 2002(3) SCC 327 [Para 11]

JUDGMENT

D. D. SINHA, J.:- Heard Mr. R. M. Daga, Adv. for the Appellants and Mrs. S. S. Wandile, Additional Public Prosecutor for the Respondent-State.

2. This Criminal Appeal is directed against the judgment and order dt.13-5-2005 passed by the Additional Sessions Judge, Khamgaon in the Sessions Case No.32 of 2003, whereby the appellant Nos.1 to 6 are convicted for the offences punishable under Sections 147, 302 read with Section 149 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- each having found guilty for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. In default of payment of fine, the appellants are directed to suffer rigorous imprisonment for six months. Appellant No.6 is acquitted of the offence punishable under Section 148 of the Indian Penal Code. The appellant Nos.1 to 6 are sentenced to suffer rigorous imprisonment for one year for the offence punishable u/S.147 of the Indian Penal Code. Similarly, appellant Nos.1 to 5 are sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 148 of the Indian Penal Code.

3. Prosecution case, in the nutshell, is as under :

Ataullakhan Abdullakhan was an agriculturist and at the relevant time, he was residing at village Chandurbiswa, Tq. Nandura. He has three brothers, Ziyaullakhan had seven sons; one of them was deceased Irfankhan. Complainant Javedkhan (PW 1) is the son of Ataullakhan. It is the case of prosecution that Ataullakhan had agreed to purchase agricultural land admeasuring six acres situated at village Dighi, Tq. Nandura from Chandbaig Mirzabaig, resident of Kurla, Mumbai. The said land was already mortgaged with appellant No.3 Abdul Munaf by Chandbaig Mirzabaig for Rs.20,000/-, out of which an amount of Rs.10,000/- was paid by appellant No.3 Abdul Munaf to Chandbaig, Appellant Nos.1 and 2 are sons of appellant No.3 Abdul Munaf, whereas appellant No.3 is brother of appellant Nos.4 to 6. All the appellants are resident of Chandbiswa, Tq. Nandura.

4. It is the case of prosecution that the appellants came to know that the agricultural land in question was agreed to be purchased by Ataullakhan from Chandbaig Mirzabaig for a consideration of Rs.95,000/-. Therefore, all of them were annoyed with Ataullkhan. On 23-2-2003, at about 3.00 P.M., accused went to the house of Ataullakhan and started shouting and abusing him and his family members. Javedkhan (PW 1) and his cousin brother Irfankhan requested the accused persons not to shout and abuse Ataullakhan and his brother Ziyaullakhan since both of them were not present in the house. However, the appellants were not in a mood to listen to their request. It is the case of the prosecution that appellant No.5 Abdul Sayeed instigated all the accused persons to assault Irfankhan. Appellant No.1 Abdul Rais, who was armed with knife, dealt a blow by means of knife on the chest of Irfankhan, who was caught hold by appellant No.5 Abdul Sayeed. Appellant No.2 Abdul Bhikan was armed with an axe and assaulted Irfan on his head by handle of axe. Similarly, appellant No.2 also inflicted injury by means of handle of the axe on the hands and legs of Irfankhan. Similarly, appellant Abdul Sayeed assaulted deceased Irfankhan with stone, appellant No.3 Abdul Munaf assaulted deceased Irfankhan with sticks and appellant No.6 Abdul Loten assaulted the deceased by means of fists and kicks blows.

5. It is the case of prosecution that the appellants assaulted Irfankhan with their respective weapons and therefore, deceased Irfankhan sustained serious injuries on his head and chest. Injured Irfankhan was taken to the Government hospital, however, he succumbed to the injuries on the way to the hospital. Javedkhan (PW 1) gave information about the incident to Chandurbiswa Out Post on the same day at about 17.30 hours and on the basis thereof, Head Constable Kirde recorded the offence bearing No.6 of 2003 for the offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code.

6. The investigating officer arrested the appellant Nos.1 to 5 on 23-2-2003 and the appellant No.6 on 4-3-2003. The investigating officer recorded the spot panchanama and drew inquest panchannma of dead body of the deceased. Autopsy on the dead body of deceased Irfankhan was carried out by Dr. Manoj Chowdhary in the Cottage Hospital, Malkapur. He opined that deceased Irfankhan died due to shock as a result of severe intracranial haemorrhage. Ayajullakhan (PW 2) and Hasnoorbi (PW 4) were also injured in the incident and were sent to the Primary Health Centre, Nandura for their medical examination on 24-2-2004. Blood stained clothes of the injured Hasnoorbi, Javedkhan, Ayajullakhan and Ahsanullakhan were seized on the same day vide seizure memos Exhs.59 to 62. Blood stained clothes found on the person of appellant No.1 Abdul Rais, appellant No.2 Abdul Bhikan, appellant No.3 Abdul Munaf, appellant No.4 Abdul Karim and appellant No.5 Abdul Sayeed were also seized by the investigating officer on 23-2-2003 vide seizure memos Exhs.54 to 58. Similarly, the blood stained clothes of deceased Irfankhan were also seized from his person on 23-2-2003 vide Exh.64.

7. It is the case of prosecution that appellant No.3 Abdul Munaf while in the police custody disclosed that he would produce the stick from his house and accordingly, he produced the same, which was seized vide seizure panchanama (Exh.46). One knife was produced by appellant No.1 Abdul Rais from his house and axe was produced by appellant No.2 Abdul Bhika from his house. Similarly, appellant No.4 Abdul Karim produced knife from his house which was seized vide seizure memo (Exh.52). All these articles were sent to the Chemical Analyser for the purpose of carrying out analysis. Statements of witnesses were recorded. Statements of some of the witnesses were also recorded u/S.164 of the Code of Criminal Procedure. After completing the investigation, charge-sheet was filed against the appellants for the offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code. One of the accused namely Abdul Hanif Abdul Munaf being juvenile at the time of commission of offence, his trial was separated and his case was forwarded to the Juvenile Court for necessary action under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. Charge against the appellants was framed for the above referred offences and the same was explained to them, to which the appellants pleaded not guilty and claimed to be tried. Defence of the appellants was that of denial.

8. Mr. R. M. Daga, learned Counsel for the appellants contended that, in the instant case, there are as many as four eye-witnesses examined by the prosecution in order to bring home the guilt of the accused for the offence of murder. It is submitted that the testimonies of eye-witnesses more or less is consistent with the prosecution case and is also to some extent corroborated by the medical evidence as well as other circumstances brought on record by prosecution. However, even if it is presumed that prosecution has succeeded in bringing home the guilt of the accused, the offence committed by the appellants does not come within the purview of any of the clauses of Section 302 of the Indian Penal Code and at the most, would fall within the ambit of provisions of Section 304-II of the Indian Penal Code.

9. It is contended that, in the instant case, Dr. Chowdhary (PW-12) has conducted Post-Mortem examination on the dead body of Irfankhan and as per the evidence of Medical Officer, there are only two external injuries found on the person of the deceased, those are:

i) contused and lacerated wound just below left nipple obliquely placed size 2 x 1 x 1 c.m. deep.

ii) abrasion over chest left side at level of mid clavicular line above nipple horizontally placed, size 4 x 05 c.m.

Similarly, on internal examination, following injuries were noticed by the Medical Officer :

"Bleeding present below scalp outside skull bone over left temporal area of skull. Fracture temporal bone left side of skull. Fracture line obliquely placed at middle one third of temporal bone of size 3 x 0.5 c.m. into skull deep. Severe intracranial haemorrhage present below fracture side."

10. Dr. Chowdhary has opined that the cause of death of deceased was shock secondary to severe intracranial haemorrhage. Doctor has further stated in his deposition that the injury No.1 mentioned in Column No.17 could be caused by knife (Article 27) and Injury No.2 mentioned in Column No.17 could be caused due to fall on a rough substance. Similarly, the Medical Officer has further stated in his evidence that the injuries described in Column No.19 can be caused by blunt side of the axe (Article 25). Mr. Daga, learned counsel for the appellants has contended that in the cross-examination Dr. Chowdhary (PW 12) has admitted that the injuries described in Column No.17 of the Post Mortem report were not fatal. Similarly, doctor has also not opined as to whether the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. It is submitted that there is only one serious injury sustained by the deceased i.e. injury No.1 mentioned in column No.17 and there is no external or surface injury sustained by the deceased on the head or any other part of the body. The second injury mentioned in column No.17 is merely an abrasion sustained by the deceased on the chest. It is, therefore, contended that the medical evidence shows that the deceased has sustained only one serious injury, which was also not sufficient in the ordinary course of nature to cause death and therefore, even if it is presumed that prosecution has succeeded in bringing home the guilt of the appellants, however, the offences committed by them is not culpable homicide amounting to murder, but is punishable only under Section 304-II of the Indian Penal Code.

11. In order to substantiate its contentions reliance is placed on the decision of the Apex Court reported in 1994 Cri.L.J. 1209 (Jadu Yadav and others Vs. State of Bihar) and 2002(3) SCC 327 (Sukhbir Singh Vs. State of Haryana).

12. Mr. S. Y. Deopujari, Additional Public Prosecutor, on the other hand, has supported the finding of conviction recorded by the trial Court against the appellants for the offences charged. It is submitted that, in the instant case, prosecution has examined four eye-witnesses namely Javedkhan (PW 1), Ayajullakhan (PW 2) (younger brother of deceased), Hasnoorbi (PW 4) and Arun Soyaskar (PW 10). It is, submitted that the evidence of eye-witnesses shows that the appellants formed an unlawful assembly and were armed with deadly weapons and launched assault on deceased Irfankhan, who was completely helpless and unarmed. It is submitted that the evidence of eye-witnesses is consistent with the material particulars of the prosecution case and is also corroborated by the medical evidence coupled with the other circumstances; such as discovery, seizure of weapons as well as seizure of clothes of the appellants and report of the Chemical Analyser which not only completely establish complicity of the appellants but also prove the charge of murder framed against the appellants and since the appellants were members of the unlawful assembly, they are vicariously liable for the offence punishable u/S.302 of the Indian Penal Code, even if the injury inflicted on the person of the deceased was by only one of the appellants which has resulted in causing death of the deceased. The Additional Public Prosecutor further contended that, in the instant case, the testimonies of the eye-witnesses would show that all the appellants committed assault on the deceased with the weapons they were armed with at the relevant time and therefore, prosecution has succeeded in establishing that the common object of the assembly was to commit murder of deceased Irfankhan. It is, therefore, contended that the finding of conviction recorded by the trial Court is sustainable in law.

13. We have considered the rival contentions and scrutinized the prosecution evidence. In the instant case, presence of the appellants at the place of occurrence at the relevant time, armed with weapons is more or less not in serious dispute. Similarly, it is also not seriously disputed by the defence that the deceased received injuries in the assault as mentioned in Column Nos.17 and 19 of the Post-Mortem report. However, the question which falls for our consideration is as under :

"Whether the evidence adduced by prosecution is sufficient to bring home the guilt of the appellants for the charge of murder beyond all reasonable doubts ?"

In the case in hand, prosecution has examined four eye-witnesses namely Javedkhan (PW 1), Ayajullakhan (PW 2), Hanoorbi (PW 3) and Arun (PW 10). Evidence of these eye-witnesses not only corroborates the material particulars of the prosecution case, but is also consistent with each other, which establishes presence of the appellants at the scene of offence armed with deadly weapons like knife, axe etc. and it also shows that all these eye-witnesses have attributed overt act and the evidence further shows that all the appellants have participated in the assault committed on deceased Irfankhan. However, in order to consider the nature of offences committed by the appellants, it is necessary to scrutinize the medical evidence of Dr. Chowdhary (PW 12).

14. Dr. Chowdhary in his deposition has stated that, on 23-2-2003, he had performed autopsy on the dead body of deceased Irfankhan and found two surface injuries which are already mentioned hereinabove. Similarly, the injuries noticed by Dr. Chowdhary on internal examination reflected in clause 19 of the Post-Mortem report are also mentioned hereinabove.

15. It is pertinent to note that, as per the medical evidence, the cause of death was shock secondary to severe intracranial haemorrhage. The medical evidence does not show that there was any external/surface wound noticed by the doctor on the head of deceased, though on internal examination it was noticed by the doctor that there was bleeding present below scalp outside skull bone over left temporal area of skull and there was a fracture of temporal bone on the left side of the skull. In absence of any surface or external injury and for want of evidence in this regard, it is difficult for us to comprehend as to how the deceased had suffered the internal injuries mentioned hereinabove. There are two injuries mentioned in column No.17 of the Post Mortem report, out of which injury No.1 was serious injury, whereas injury No.2 was merely an abrasion. In the instant case, the doctor has also not opined as to whether the injuries individually or collectively was/were sufficient in the ordinary course of nature to cause death. It is pertinent to note that, in the cross-examination, Dr. Chowdhary has specifically admitted that the injuries described in column No.17 of the Post-Mortem report were not fatal. Similarly, he has also admitted in the cross-examination that if the injuries are inflicted on head by the blunt side portion of the axe, it would result in causing of external injury.

16. It is no doubt true that, in the instant case, prosecution has established presence of the appellants as well as commission of assault on the deceased. Considering the injuries sustained by the deceased and the medical evidence of Dr. Chowdhary, it is difficult to hold that the common object of the unlawful assembly was to commit murder of deceased Irfankhan. Out of the external injuries sustained by the deceased, only injury No.1 in column No.17 could have been caused by sharp and pointed object like knife. However, the cause of death was shock secondary to severe intracranial haemorrhage, though there was no corresponding external or surface wound found on the head of the deceased and in absence of opinion of doctor that the injuries individually or collectively were sufficient in the ordinary course of nature to cause death, it is difficult for us to conclude that prosecution has succeeded in bringing home the guilt of the appellants for the offence of murder. In the instant case, prosecution could not specifically refer to any of the objects for which the appellants are alleged to have formed unlawful assembly. Deceased Irfankhan went to the spot of occurrence only to pacify the appellants, however, he had received injuries in the assault committed by the appellants. There is no evidence to show that the appellants threatened or had an intention to commit murder of deceased Irfankhan. However, the occurrence has taken place suddenly, which was unanticipated, wherein the injuries were sustained by the deceased. In the instant case, appellant No.1 Abdul Rais, who was armed with knife, dealt a blow by means of knife on the chest of Irfankhan. However, the deceased died due to shock secondary to severe intracranial haemorrhage.

17. Taking into consideration the evidence of eye-witnesses coupled with the medical evidence and other attaining circumstances, prosecution, in our considered view, has failed to prove beyond all reasonable doubts that the common object of the unlawful assembly was to commit murder of Irfankhan. Similarly, the nature of injuries sustained by the deceased on the chest attributed to appellant No.1. Abdul Rais do not demonstrate that they were inflicted with the intention of causing death. However, the said injuries have endangered the life of deceased Irfankhan and being grievous in nature, the offence committed by the appellant No.1 Abdul Rais would be punishable under Section 325 of the Indian Penal Code. Similarly, the other appellants such as appellant No.2 Abdul Bhikan (who was armed with axe), appellant No.3 Abdul Munaf (who was armed with stick), appellant No.4 Abdul Karim (who was armed with knife), appellant No.5 Abdul Sayeed (who had a stone in his hand) and appellant No.6 Abdul Loten (who though was unarmed, however, he assaulted the deceased with kicks and fists blows) were members of the unlawful assembly, the common object of which was to assault the deceased Irfankhan. And therefore, though appellant No.1 Abdul Rais inflicted grievance injury on the chest of the deceased by means of knife, all other appellants are also vicariously liable along with the appellant No.1, Abdul Rais for the offence punishable under Section 325 of the Indian Penal Code. For the reasons stated hereinabove, the appeal is partly allowed.

The conviction awarded by the trial Court for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code is hereby quashed and set aside. The appellants are convicted for the offence punishable under Section 325 read with Section 149 and are sentenced to suffer rigorous imprisonment for, seven years. The other sentences including that of fine awarded by the trial Court are confirmed. Sentences to run concurrently.

The appellants who have completed the term of seven years of imprisonment shall be released, if not required in any other criminal case.

Appeal partly allowed.