Criminal Appeal No.1153 of 2007

24th January, 2014

Petitioner Counsel: Smt. N.S.K. AYUBI
Respondent Counsel: Mr. H.J. DEDHIA

JUDGMENT

P. V. HARDAS, J. :- The Appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/- in default of which to undergo further rigorous imprisonment for three months, by the 11th Ad hoc Additional Sessions Judge, Sewree, Mumbai by a judgment dated 31 August 2007 in Sessions Case No.57 of 2007, by this Appeal questions the correctness of his convention and sentence.

2. Facts in brief that are necessary for the decision of this Appeal may briefly be stated thus :

P.W. 5 Police Constable Chandrakant Khade who was attached to the Tilak Nagar Police Station and was posted at bandobast duty on 25 October 2006 at Gandhiya Nagar Masjid was informed by one boy at about 1.30 p.m. to 2.30 p.m. about the quarrel which was going on in the lane. P.W. 5 Police Constable Khade accordingly followed the boy and reached near the godown. On going to the scene, he noted one injured lying in the front seat of the auto-rickshaw and also noticed about three to four persons standing at a distance of 10 ft. from the auto-rickshaw. The said persons told him that the assailant was running towards lane No.5. P.W. 5 Police Constable Khade accordingly chased the assailant and apprehended him. The clothes of the assailant / accused were stained with blood and he was carrying a knife which was also bloodstained. The accused was then taken to the police station and produced before P.S.I. Bhabal. The injured was then taken to the hospital.

3. P.W.9 P.S.I. Shirsat who on 25 October 2006 was attached to the Tilak Nagar Police Station, received a message from Rajawadi Hospital about admission of the injured in the Hospital. He accordingly proceeded to Rajawadi Hospital and reached there at about 3.30 p.m. He noticed the injured in ward No.40 and made enquiry from the Medical Officer if the injured was in a fit condition to give his statement. The Medical Officer opined that the injured was not in a fit condition to give his statement. P.W. 9 P.S.I. Shirsat then recorded the statement of P.W.1 Mohammed Karim at Exhibit 13. The clothes of the injured were seized and an offence was registered on the basis of the statement of P.W.1 vide crime No.220 of 2006 under Section 307 of the Indian Penal Code. P.W.9 P.S.I. Shirsat then returned to the scene of incident and drew the Panchanama at Exhibit 15. From the scene of incident he collected samples of the bloodstains.

4. P.W. 10 P.S.I. Bhabal who was attached to the Tilak Nagar Police Station and was present in the police station, referred the Appellant / accused to the hospital who had been brought to the police station by P.W. 5 Police Constable Khade. The clothes on the person of the accused which were found bloodstained and the knife with which the accused was set to arm were seized and the seizure memo is at Exhibit 17.

5. P.W. 11 P.I. Mansote who was attached to the Tilak Nagar Police Station carried out further investigation in Crime No.220 of 2006. The inquest Panchanama was drawn on 26 October 2006 by P.S.I. Gorave as the deceased had succumbed to the injuries. On 27 October 2006 the viscera was forwarded to the Chemical Analyzer. Statements of witnesses were recorded. On 1 November 2006 the other seized articles were forwarded to the Chemical Analyzer under requisition at Exhibit 32. Further to the completion of investigation, a charge-sheet against the Appellant was submitted. The report of the Chemical Analyzer is at Exhibit 33 which discloses that the blood group of the deceased was 'O', while the blood group of the Appellant was 'AB'. The knife and the clothes of the Appellant were found stained with blood of 'O' group.

6. Injured Rizwan was examined by P.W. 14 Dr. Kathekar who noted the following external injuries :

"(i) Puncture wound on epigastriul 3 x .5 cm x 5 cm fresh

(ii) Puncture wound on epigastriul 2 x .5 cm x 3 cm

(iii) Puncture wound on abdomen 3 x 1 cm x 3 cm

(iv) CLW at abdomen 2 x .5 cm

(v) CLW on right thigh back 3 x .5 cm

(vi) CLW on right thigh back 3 x .5 cm

(vii) CLW on right thigh front 3 x .5 cm."

7. He opined that all the injuries were fresh injuries caused by sharp cutting object and were sufficient in ordinary course of nature to cause death. The injury certificate is at Exhibit 40.

8. On the same day, he had examined the Appellant who had sustained the following external injuries :

"(i) CLW on left wrist 3 x .5 cm fresh

(ii) Swelling tenderness deformity of left thumb"

He opined that both the injuries were fresh. The injury certificate of Appellant is at Exhibit 41.

9. The operation on injured Rizwan was performed by P.W. 8 Dr. Zawar. P.W. 8 Dr. Zawar had noticed the following external injuries :

"(i) I/W 4 c 1 cm in Eprgasaric region just right to midline with Omentum protruding out

(ii) 2 x 0.5 cm in right hypocontrum just lateral to above incised wound

(iii) Incised wound of 2.5 x 1 cm in left Lumbar region

(iv) I/W of 2.5 x 1 cm in left iliac fossa

(v) I/W of 3 x 1 cm over right thigh medial aspect."

10. On opening the abdomen, he noticed the following internal injuries :

"(i) Liver laseration of left lobe of 3 x 0.5 x 1 cm

(ii) Perforation of 2 x 0.8 cm over anterior valve of stomach

(iii) Perforation of 2 x 1 cm over posterior wall of stomach

(iv) Seven perforations of 1.5 cm each at a distance of 2.5 cm from each other starting from 1 feet distal to D-J Flexure

(v) Splenic leseration present

(vi) Continuous bleeding from pancretriac bed present

(vii) Mesentric tare of 2 cm in Jejunum 1 feet from D-J Flexure"

11. According to him, he removed the spleen because of laseration and bleeding. The injured Rizwan succumbed to his injuries during the operation. The papers of the surgical operation are at Exhibit 26.

12. The postmortem on the dead body of deceased Rizwan was performed by P.W. 7 Dr. Bagul who noticed the following external injuries :

"(i) I/w. over Rt. Sternum 13 cm away from umbilical and 3.5 cm away from center midline having size of 2 cm x 0.5 cm with suture intact.

(ii) I/w over right side of1" injury 2.5 x 0.5 cm in size suture intact.

(iii) I/w, Lt. side of lateral umbilical 4 cm away, transverse direction having size of 2.5 cm x 0.5 cm suture intact.

(iv) I/w, lt. side of abdomen below injury No.3/ size 2.5 cm x 0.5 cm suture intact.

(v) Rt. thigh medially 2.5 x .05 cm muscle deep with sharp edges with hemorrhages

(vi) Surgical wound over midline abdomen size 23 cm with 11 suture intact.

(vii) Surgical wound rt. arm medially 2 cm above elbow size 3 cm x 0.5 cm with suture intact.

(viii) Incised would right posterior thigh region middle two wounds noted having size of 2 cm x 0.5 cm and 3 cm x 0.5 cm muscle deep respectively.

(ix) Abrasion over right knee region reddish size 2 cm x 1 cm superficial."

13. He opined that except the surgical wounds and abrasion, rest of the injuries were possible by sharp object. He has opined that the deceased had died due to multiple stab wounds with internal injuries with hemorrhage when operated during laprotomy. The postmortem report is at Exhibit 22.

14. On committal of the case to the Court of Sessions, the Trial Court vide Exhibit 2 framed charge against the Appellant for offence punishable under Section 302 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. The prosecution in support of its case examined 14 witnesses, while the accused in his defence examined one witness. The Trial Court upon appreciation of the evidence, convicted and sentenced the Appellant as aforestated.

15. In order to effectively deal with the submissions advanced before us by advocate Mrs. Ayubi, learned counsel appointed for the Appellant and the learned Additional Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses.

16. The prosecution has examined P.W. 1 Mohammed Karim, uncle of deceased Rizwan. P.W.1 Mohammed Karim states that on 25 October 2006 he had heard some noise and therefore came out of his house. He then proceeded towards godown where he noticed that an auto-rickshaw was parked. In the auto-rickshaw he had noticed deceased with injuries. The deceased was accordingly then brought to Rajawadi Hospital. On way, P.W. 1 Mohammed Karim had inquired from the deceased as to how he had sustained the injuries and deceased had disclosed to Mohammed Karim that Appellant had stabbed him. P.W.1 Mohammed Karim had accordingly lodged his report at Exhibit 13.

17. Counsel appearing on behalf of the Appellant has rightly urged before us that no reliance can be placed on the oral dying declaration as the deceased was admitted in an unconscious state in the hospital. P.W.10 P.S.I. Shivaji Bhabal has also admitted that he could not record the statement of the injured as the injured was not in a fit condition to give his statement. The evidence of D.W. 1 Police Constable Shantaram Misal discloses that the injured was found unconscious and therefore, according to us could not have been in a position to make any declaration to P.W.1 Mohammed Karim. We therefore find that no reliance can be placed on the oral dying declaration alleged to have been made by the injured Rizwan to P.W.1 Mohammed Karim.

18. The prosecution has examined P.W. 4 Ashpak as an eye witness to the incident. P.W.4 Ashpak did not support the prosecution and was declared hostile. The prosecution has also examined P.W.6 Jamil who deposes that on the day of the incident he along with Rizwan and other has consumed liquor. Thereafter there was a quarrel between the Appellant and deceased Rizwan. Deceased Rizwan had then slapped the Appellant. The Appellant was then pacified and left the scene of incident. He further states that after some time he returned to the scene of incident was informed by others that the Appellant had assaulted Rizwan. He had noticed the Appellant fleeing from the scene of incident. Rizwan who had sustained injuries was then taken to the hospital. P.W.6 Jamil has admitted in the cross examination that he had noticed that the Appellant had sustained an injury on the left hand. He states that he had not noticed the Appellant carrying any knife. He has admitted that he has also not noticed as to who were present at the scene of incident. The prosecution has also examined P.W.13 Mohamed Aslam, an owner of the pan shop. He states that on the day of the incident, he had met Rizwan and P.W. 6 Jamil and others. Rizwan had given him Rs.120/- for purchasing liquor and accordingly P.W. 13 Mohammed Aslam had purchased the liquor. Thereafter P.W. 13 Mohammed Aslam, Rizwan, Mohammed Jamil and others had consumed liquor. He states that thereafter Rizwan and Jamil and others sat in front of Chindiwala shop while P.W. 13 Mohammed Aslam went home. P.W 13 Mohammed Aslam returned to the said spot at about 2.00 p.m. and learnt that deceased Rizwan had been killed. He was declared hostile and was cross examined, but nothing of substance has been elicited in the cross examination.

19. The prosecution therefore relies upon the testimony of P.W. 5 Chandrakant Khade who had noticed the Appellant fleeing from the scene of incident and who had chased him and had apprehended him. The clothes of the Appellant were found stained with blood. The Appellant was apprehended carrying a knife which was also found stained with blood. The report of the Chemical Analyzer indicates that the blood group of the Appellant was 'AB' while the blood group of the deceased was 'O'. The knife in the possession of the Appellant and the clothes of the Appellant were found stained with blood of 'O' group. The prosecution witnesses have admitted about a quarrel between the deceased and the Appellant, which thus furnishes motive for the Appellant to commit the crime. The aforesaid circumstances, in our opinion, form a complete chain which excludes every hypothesis of the innocence of the accused. The accused has not been able to offer any explanation of blood stains of 'O' group on his person. The Appellant was apprehended by P.W.5 Police Constable Khade while fleeing from the scene of incident. The Appellant was carrying a bloodstained knife and his clothes were also bloodstained. In these circumstances, therefore according to us the prosecution has proved the offence against the Appellant beyond reasonable doubt. We thus do not find any merit in the Appeal of the Appellant.

20. Consequently, we dismiss the Appeal filed by the Appellant confirming his conviction and sentence. Fees payable to the learned counsel appointed for the Appellant are quantified at Rs.5,000/-. Since the Appellant is in jail, a copy of this judgment be sent to the Appellant.

Appeal dismissed.