Nizamuddin Abdul Kadar Sayyed Vs the State of Maharashtra

1.	The	appel	lant was	tried in Sessions	Case	No.827	of
2002	in the		Court of	Sessions at Bombay		for	offences
punishable	under	s	ection 302	read with sect	ion	34 of	the
Indian	Penal	Code	(for	short, "IPC").	The	appellant	was
tried	along	with	two oth	er accused. The		appellant	is
original	accused	2.	By	the impugned		judgment,	the
learned	Sessions	Jud	ge convi	cted the appell	ant	along	with
other	accused	for	offences	punishable under	se	ction	302
read	with sec	tion	34 of	the IPC and sen	tenced	him	to
suffer	R.I. fo	r	life.	The appeal filed	by	the	appellant

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has been admitted. Today, we are considering the bail

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application.

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We have heard, at considerable length, the learned

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: 2 :

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counsel	appea	ring for the appellant. He submitted	that
the	incident	in question took place at about 12.00	O’
clock	in t	he afternoon at the Gateway of India.	The
learned	coun	sel further submitted that judicial	notice
can	be	taken of the fact that this place is	extremely
crowded	and,	therefore, the claim of the eye-	witnesses
that	they had	seen the incident deserves to be	discarded.
He	submitted	that PW-8 and PW-1, who are	the
eye-witne	sses	have given contradictory versions.	They
claim	to	be together. But, PW-8 says that he had	seen
the	incident	from a distance of 150 feet whereas	PW-1
says	that he	saw the incident from a distance of abou	t 10
to	15 feet.	The learned counsel urged that this	itself
indicates	that	both these witnesses are not telling	the
truth.	The	learned counsel then urged that PW-1 has	come
out	with	entirely a new case in his evidence. He	has
stated	that	when he went to the spot, the	deceased
attacked	him	with a knife and he averted the attack	with
his	bag and	his bag was slashed by the knife. This	story
is a	bsent in	the FIR lodged by PW-1 and significantly	the
other	eye-witness	PW-8 does not support this. T	herefore,
PW-1	is	not telling the truth. He further stated	that
the	chemical	analyser’s report is produced in the	court
behind	the	back of the accused. It was not put to	the
accused	in	his statement recorded under section 313	of
the	Criminal	Procedure Code (for short, "the Code")	and,
therefore,	he	was severally prejudiced. The	accused
could The	have learned	offered explanation for this circu counsel further pointed out that,	mstances. according

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: 3 :

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to the	prosec	ution,	on the	clot	hes of	the		appellan	t blood
stains	were	found.	Though	the	blood	group	of	the	blood
stains	tallies		with that	of	the	deceased,		the	co-accused
also has the	same blood	group.	Therefore, this
circumstance	does not help	the pros	ecution.

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3.	None of the submissions of the learned counsel
impress	us. The incident in question had taken place in
the	afternoon at the Gateway of India. It is true that
this	place is crowded. That does not mean that PW-1 and
PW-8	could not have seen the incident because it was a
crowded	place. It may be that there is some discrepancy
in	the evidence of PW-1 and PW-8 so far as the distance
is c	oncerned, but that by itself would not establish that
they	are not trustworthy witnesses if their evidence
otherwise	corroborates each other. We find that the
evidence	of these witnesses prima facie has a ring of
truth.	We are informed by the learned A.P.P. that the
FIR	is lodged shortly after the incident in question. In
the	FIR, the name of accused 2 is found. PW-1 and PW-8
have	assigned specific role to him. Accused 2 was
arrested	on the same day immediately after the incident
near	the scene of offence with the blood stained knife in
his	hand. The blood stains are of the same blood group
as	that of the deceased. It may be that the chemical
analyser’s	report was not put to the accused in his
statement	recorded under section 313 of the Code. But,
the	effect of it will be considered at the final hearing
of	the appeal. In our opinion, the material, which we

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: 4 :

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have	discussed		above,	is	p	rima	faci	e suffi	cient	to
indicate	the	invo	lvement	of	accus	ed 2	in	the	incident	in
question.		We	are	told	that	the decea	sed	surviv	ed	for
about	8	days	after	the	incident	. The		learned		counsel
contended	that		therefore	, at	any	rate,	the	case		under
section	302	is	not	made	out.	Accord	ing	to the		learned
counsel,	i	f t	he	accused	sur	vives fo	r	considerab	le	period
after	the	attack	then	, t	he c	ase may		not fa	ll	under
section	302	of	the	IPC	but,	may fall		under secti	on	304
Part	I or	Part	II of	the	IPC.	In	ou	r opinion,	each	case
will	have	to	be	decided	con	sidering	it’s	peculiar		facts
and	circumstances.		In	the	facts	and	c	ircumstances	of	the
case,	we	are	not	inclined	to	hold, a	t	this stag	e,	that
the	appellant’s	case	would	be	co	vered by		section	304	Part
I	or Part	II of	the	IPC.	Th	e appellant		was not	on	bail

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in the trial court. We are not inclined to grant him

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bail. Application is rejected.

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(SMT. RANJANA DESAI, J.)

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(ANOOP V. MOHTA, J.)

Nizamuddin Abdul Kadar Sayyed v. the State of Maharashtra

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Nizamuddin Abdul Kadar Sayyed v. the State of Maharashtra

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