Amit B. Borkar, J
1. Through this appeal, the appellant challenges the judgment and order dated 28.09.2017, passed by the Ad-hoc Additional Sessions Judge,
Khamgaon, in Sessions Case No.05/2014 convicting and sentencing him in the manner stated hereinafter:â€
Under Section 302 of the Indian Penal Code, 1860 to suffer imprisonment for life and to pay a fine of Rs.5000/-, in default to undergo three
months’ Rigorous Imprisonment.
2. The prosecution case in brief, is that the informant - Sk. Karim Sk.Badar (PW1) is the resident of Bhalegaon near Mosque (Masjid), Tq.
Khamgaon, Dist.Buldana. His brother-in-law (wife's brother) namely Sk. Rais Sk. Gani was residing at the same village Bhalegaon along with his
family. The said Sk. Rais was the only son to his parents. The said Sk. Rais has seven sisters. The said Sk. Rais was holding around 1.5 acres of
agricultural land in Bhalegaon Shivar. There were disputes in relation to the partition of the agricultural lands between the said Sk. Rais on one part,
and his cousin brother Sk. Munshi Sk. Razzak and his sons namely Sk. Mohin, Sk. Mosin and Sk. Matin (who are the accused Nos.1 to 3
respectively). 10-15 days prior to the incident in question (that occurred on 22.10.2013) said Sk. Rais had lodged police report against said Sk. Munshi
and his sons namely Sk. Mosin and Sk. Matin, suspecting that they have burnt Sk. Rais's Soyabin heap in his field, as a result of which said Sk.
Munshi and his sons raised quarrel with Sk. Rais and gave him threat to kill him
3. It is also alleged that on 21.10.2013, in the evening hours, accused Sk.Mosin, Sk. Matin and accused Sk. Mohin, who had returned from Surat
(Gujrat) gave said Sk. Rais abuses and threat that they will see him tomorrow. In the same night, Sk. Rais stated that incident to informant - Sk.Karim
(PW 1). Due to close relations, said Sk.Rais did not lodge police report of that incident.
4. It is stated that on 22.10.2013, the said informant Sk. Karim (PW 1) had been to Pimpalgaon Raja at around 6.30 a.m. for work. He received a
phone call there from somebody informing that at around 7.15 a.m. the accused- Sk. Mohin attacked said Sk. Rais by means of knife near ‘Jhunka-
Bhakar Kendra’ at Bhalegaon. The informant - Sk. Karim immediately rushed to the place of occurrence within 10 minutes. Said Sk. Rais was
lying in the pool of blood there and crowd was gathered there. There were bleeding injuries on the back, chest, arms of said Sk. Rais, which were
caused by sharp edged instrument. Rafiquesha Bhikansha (PW 2), Sk. Rasool Sk. Bashir, informant's wife Jairunbi Sk.Karim(PW 14), informant's
sister-in-law Mumtaz Sk.Gani (PW 7) were present there. Sk. Rais stated there that Sk. Mohin Sk. Munshi assaulted him by means of knife by
coming from his behind and injured him on the instigation of his two brothers. While Sk. Rais was being taken to Khamgaon for treatment in the
vehicle namely Max, he died on the way. The Medical Officer attached to the General Hospital, Khamgaon (in short “G.H.Khamgaonâ€), declared
said Sk. Rais dead. On the same day the informant - Sk. Karim lodged police report (Exh.55) at Pimpalgaon Raja Police Station at 10.45 a.m., and
accordingly, the First Information Report (Exh.56) came to be registered against the accused persons, vide FIR No.48/2013 for the commission of
offences punishable under Sections 302, 504, 506 read with Section 34 of the Indian Penal Code.
5. The Assistant Police Inspector namely Shri R.A.Talekar (PW 16) the Officer in-charge of Pimpalgaon Raja Police Station visited the place of
occurrence on the very day and recorded Spot Panchnama (Exh.63) in presence of the panch witnesses namely Sk. Karim Sk. Bashir (PW 4) and
Sk.Munaf Sk. Musa, both R/o. Bhalegaon. The Investigating Officer Shri Talekar (PW 16) also caused a sketch of the place of occurrence to be
drawn from Revenue Officer, which is at Exh.90.
6. On the information (Exh.45) of the Casualty Medical Officer, G.H. Khamgaon about bringing of said Sk. Rais Sk. Gani to the hospital as dead, a
sudden death proceeding bearing A.D. No.0/2013 (Exh.46) came to be registered at Khamgaon (City) Police Station under Section 174 (1) of the
Code of Criminal Procedure. An Inquest Panchnama (Exh.47) came to be performed on the dead body of said Sk. Rais, at around 9.00 a.m., at G.H.
Khamgaon by Assistant Sub Inspector namely Dilip Atrawalkar attached to Khamgaon (City) Police Station in presence of panch witnesses. The
post-mortem examination was conducted on the dead body of said Sk. Rais at G.H. Khamgaon at the instance of ASI Dilip Atrawalkar.
7. It is claimed that the Investigating Officer during the course of investigation into the said crime recorded memorandum statement of the accused
Sk. Mohin, while he was in police custody and at his instance one knife, one shirt and one handkerchief having blood stains were recovered under
panchnama (Exh.67). The blood stained clothes of said deceased Sk. Rais were seized under seizure panchnama (Exh.118). The Investigating Officer
sent the viscera (preserved by M.O.) of deceased Sk. Rais, the clothes so seized, blood mixed soil and ordinary soil (collected from the spot of
incident) for Chemical Analysis. After completion of the investigation, charge-sheet came to be filed against the accused persons for their involvement
in commission of offences as referred to above. The offence punishable under Section 302 of IPC being exclusively triable by the Court of Sessions,
the case has been committed to Sessions Court for trial.
8. Charge (Exh.33) came to be framed against the accused persons for offences punishable under Sections 302, 504 and 506 read with Section 34 of
the IPC. As the accused persons pleaded not guilty, the trial commenced against them. From cross-examination and statements under Section 313 of
Cr.P.C., the defence of accused is of false implication.
9. During trial, in all, the prosecution examined 16 witnesses, one of them Sk. Yusuf Sk. Bashir (PW 3) was examined as an eye-witness. The learned
Trial Judge believed the evidence of Sk.Yusuf Sk.Bashir (PW 3) as eye-witness and convicted and sentenced the appellant in the manner stated
above.
10. We have heard Shri S.V. Sirpurkar, learned Advocate for the appellant and Shri S.S. Doifode, learned Additional Public Prosecutor for the
respondent.
11. Shri Sirpurkar, learned Advocate for the appellant submitted that testimony of Sk.Yusuf Sk.Bashir (PW 3) alleged to be eye-witness does not
inspire confidence and the learned Trial Judge is not justified in convicting the appellant relying on the sole testimony. He submitted that there are
material inconsistencies and omissions in the testimony of Sk.Yusuf Sk.Bashir (PW 3). He submitted that the Medical Officer â€" Dr. Sunil Joshi (PW
8) has not stated that the injuries on the person of deceased were sufficient in ordinary course of nature to cause death. He submitted that the injuries
on the person of deceased were simple injuries. He invited our attention to the cross-examination of Dr. Sunil Joshi (PW 8) and submitted that Dr.
Sunil Joshi (PW 8) has admitted that the injuries on the person of the deceased were possible by the weapon having sharp edge on both sides. The
weapon alleged to be recovered had sharp edge on only one side and, therefore, it was not possible that the injuries on the deceased were possible by
the weapon recovered. He therefore, submitted that learned Sessions Judge is not justified in convicting the appellant under Section 302 of the IPC.
12. Shri S. S. Doifode, learned Additional Public Prosecutor appearing for the respondent/State supported the impugned judgment and submitted that
the testimony of Sk.Yusuf Sk. Bashir (PW 3) inspires confidence, the ocular evidence of eye-witness is supported by medical evidence and other
circumstantial evidence in the form of recovery of weapon and blood stained clothes. He submitted that from the nature of injuries on the person of
deceased, it is clear that the appellant intended to cause death of deceased and therefore, the Trial Court is fully justified in convicting the appellant
under Section 302 of the IPC.
13. In our view, this appeal deserves to be dismissed, since as we feel that offence punishable under Section 302 of the IPC is made out against the
appellant by the evidence on record. 14. So far as the involvement of the appellant in the incident is concerned, the same has been established beyond
pale of doubt by the credible evidence furnished by Sk. Yusuf Sk. Bashir (PW 3), recovery of weapon at the pointing out of the appellant and the
recovery of clothes having human blood.
15. As is evident from paragraph no.2 of the ocular account furnished by Sk. Yusuf Sk. Bashir( PW 3), he has narrated manner of assault on
deceased Sk. Rais. He stated that he heard voice of Sk. Rais, who was saying “o ma bachaoâ€, that the appellant was assaulting Sk. Rais at that
time. Sk.Yusuf Sk.Bashir (PW 3) stated that he had rushed to the spot of incident where he saw the appellant assaulting Sk. Rais by knife. He stated
that the appellant gave stab blow on his stomach, thereafter on chest, that Sk.Yusuf Sk.Bashir (PW 3) went to rescue Sk. Rais, at that time the
appellant asked Sk.Yusuf Sk.Bashir (PW 3) not to interfere. He stated that the appellant had alone assaulted Sk Rais, accused nos. 2 to 4 came there,
accused no.4 told that “Sk Rais should be finishedâ€. He stated that blood was oozing from stomach and chest of Sk Rais and clothes of Sk. Rais
were stained with blood.
16. We have examined the version of Sk. Yusuf Sk. Bashir (PW 3) and we find him to be an implicitly truthful witness. In the first place, it should be
borne in mind that he has explained the circumstances in which he saw the incident. Secondly, it should be remembered that the manner of assault
described by him is corroborated by the medical evidence. He stated that the appellant inflicted knife blow on abdomen and on chest of the deceased.
The evidence of Dr. Sunil Joshi (PW 8), who performed the autopsy on the corpse of Sk. Rais corroborates this inasmuch as he found an incised
wound on right infra clavicular region, incised wound on right infra mammary region on right lower rib congest border, incised wound on right forearm
region and incised wound on interior aspect of left shoulder. Thirdly, it should be borne in mind that Sk. Yusuf Sk. Bashir (PW 3) is a wholly
independent witness who had no animus or ill will against the appellant. In our view, in the absence of it he would not have falsely implicated the
appellant.
17. We feel that the solitary statement of Sk. Yusuf Sk. Bashir (PW 3) is itself sufficient to fix the involvement of the appellant in the crime. After all
the time honoured rule of appreciation of evidence is that evidence should be judged and not counted. It should be borne in mind that Section 134 of
the Indian Evidence Act, 1872 provides that “no particular number of witnesses shall in any case be required for the proof of any fact.†The
provisions contained in Section 134 of the Indian Evidence Act, 1872 are founded on the principle that the evidence has to be weighed and not
counted. It should be remembered that plurality of evidence is only a rule of prudence and not an inflexible requirement of law. The necessity of
plurality crops up, in those cases, where evidence of a solitary witness is not wholly reliable, and where it is, as is the case here, in view of the
provisions contained in Section 134 of the Indian Evidence Act, 1872, the testimony of a solitary witness is sufficient to convict an accused. It is true
that it is not an inflexible rule of appreciation of evidence that the evidence of an independent witness has to be accepted as gospel truth but, the time-
honoured norm of appreciating evidence is that unless there are some intrinsic improbabilities or some glaring infirmities in the evidence of an
independent witness, which militate against the core of the prosecution case, the same should be accepted by Courts. Such an approach is founded on
the principle that Courts assess evidence on common sense and probabilities and once they find the evidence of a witness to be in tune with
probabilities and he is independent, they are loathe to disbelieve him unless there is some patent infirmity in his evidence, which to repeat, militates
against the core of the prosecution case. This is not the case here.
18. However, we have bonus evidence against the appellant in the form of recovery of his blood stained clothes and recovery of knife at his pointing
out. Sultan Khan (PW 5), who appears to be panch witness on memorandum and recovery panchnama, recorded by Investigating officer, testified in
his examination-in-chief that on 24.10.2013, the police had called him at Pimpalgaon Raja Police Station as a panch witness, that Imran Khan was the
other panch witness, the police had told that the appellant wanted to state something. He deposed that the appellant had made statement before them
that he would show/take out clothes and knife, which he had kept at his house. He stated that the police accordingly recorded the same and after
reading over of it by panchas, they had signed it. He stated that the panch witnesses, the police and the appellant had proceeded to the house of the
appellant by police jeep, the appellant took out one mehndi coloured T-shirt, one black - white squared hanker-chief, both having blood stains and knife
having 7 to 7.5 inches blade, having blood stains, that the police had seized the same under the panchnama and it was read over to panchas, which
bears their signatures. It is pertinent to mention here that this witness had no animus, or ill-will against the appellant. In the absence of the same, in our
view, he would not have falsely deposed about these recoveries. It is pertinent to mention that although, he was subjected to lengthy cross-
examination, but nothing was extracted therefrom, which could make us doubt about his credibility.
19. It needs to be mentioned here that the clothes of appellant i.e. shirt, handkerchief and knife were sent to the Chemical Analyst, who found human
blood bearing “B-group†on the shirt and the knife. In our view, the circumstance that the blood stained shirt, and handker-chief was recovered at
the pointing out of the appellant, on which the Chemical Analyst found human blood bearing “B-group†is an incriminating circumstance. The
Hon’ble Supreme Court in paragraph no.10 of the oft quoted case of Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, reported in (1991)
3 SCC 627 has held that presence of human blood on the recovered article is incriminating evidence.
In our view, the evidence referred to above conclusively establishes the involvement of the appellant in the incident.
20. The learned Advocate for the appellant, failed in advancing any plausible explanation, which could persuade us to reject the ocular account of
Sk.Yusuf Sk.Bashir (PW 3) or the evidence of recovery of knife at the pointing out of the appellant.
21. In our view, the learned trial Judge is fully justified in convicting the appellant for the offence punishable under Section 302 of the IPC. The
evidence of eyewitness - Sk.Yusuf Sk.Bashir (PW 3), which we have accepted, candidly and clearly show that the appellant intentionally inflicted
knife blows on the abdomen and chest of deceased. The evidence of autopsy surgeon Dr.Sunil Joshi (PW 8), clearly shows that the incised stab
wounds inflicted on the abdomen of the deceased resulted in 300 CC of clotted blood in the cavity of abdomen. Dr. Sunil Joshi (PW 8) has stated
probable cause of death due to hemorrhage shock to liver. In reply to letter dated 26.10.2013 received from Police Station, Dr. Sunil Joshi (PW 8)
replied that the injuries caused to the deceased were by the recovered knife. He further replied that the injuries mentioned in his report could have
caused death. In our view, the act of the appellant intentionally inflicting blow on the abdomen and the chest of the deceased and causing injuries
which could have caused death, would be squarely covered by Third Clause of Section 300 of the IPC.
22. An analysis of the Third Clause of Section 300 of the Indian Penal Code would show that for its application, two requirements have to be satisfied
namely:â€
(a) there should be an intention to inflict a bodily injury (it should not be accidental) and;
(b) the injury inflicted should be sufficient in the ordinary course of nature to cause death.
23. Since the evidence of eye-witnesses shows that the appellant intentionally inflicted the knife blow on the abdomen and chest of the deceased and
testimony of the autopsy surgeon makes it crystal clear that the abdomen injury sustained by the deceased was the cause of death, both the
prerequisites are satisfied.
24. Shri Sirpurkar, learned advocate for the appellant, submitted that the conviction of the appellant be downgraded from Section 302 of the IPC to
Section 304 of the IPC. We do not find any merit in this submission. Autopsy surgeon Dr. Sunil Joshi (PW 8), while referring to the letter dated
26.01.2013 stated in his deposition that the injuries caused to the deceased could have caused death. He has further stated that he had noticed 300 CC
of clotted blood in the cavity of abdomen. He stated that the probable cause of death was due to hemorrhage shock to the liver. The appellant had
intentionally inflicted six incised wounds on the vital parts on the person of deceased. It should be borne in mind that Dr. Sunil Joshi (PW 8) is the
wholly independent witness, who had no animus against the appellant. There was enmity between the appellant and the deceased. The appellant
carried knife with him before assaulting the deceased.
25. Shri Sirpurkar, learned Advocate appearing for the appellant brought to our notice some omissions in the statement of Sk.Yusuf Sk.Bashir (PW 3)
recorded under Section 161 of Cr.P.C.. The said omissions, in our view, only touch the fringes of his evidence and not the core. The Hon’ble
Supreme Court in the decision in the case of Matadin and others Vs. State of U.P., reported in 1980 supp SCC 157 has in paragraph no. 3 held that
where the omissions are not in respect of vital matters, they have no adverse bearing on the veracity of the witness. In such a situation, this
submission of Shri Sirpurkar, Advocate also has no force.
26. For the aforesaid reasons, we confirm the conviction and sentence of the appellant for the offence punishable under Section 302 of the IPC and
dismiss this appeal. The appellant is in jail and shall serve out his sentence. Bail bonds of accused nos. 2 to 4 are cancelled. The appeal is dismissed.
Muddemal property, if any, be dealt with according to law.
