Dismissed

Shahajahan Aliakbar Khan v. the State of Maharashtra

Bombay HC20 Aug 2013APEAL/446/2010

Case brief

AI extract

What is this about?

The court dismissed an appeal against a life imprisonment sentence for murder. It held that because the accused was a third party arriving with a knife during a fight between two unrelated groups, there was no heat of passion or quarrel between the accused and the deceased, thus excluding Exception 4 IPC.

What did the court decide?

The appeal was dismissed; judgment of the Sessions Judge was confirmed, upholding life imprisonment.

Shahajahan Aliakbar Khan Vs the State of… — Murder and Culpable Homicide | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.446 OF 2010

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Shahajahan Aliakbar Khan convict No.C/7599, lodged at Nashik Road Central Prison, Nashik ... Appellant

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Vs.

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The State of Maharashtra ... Respondent

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Mr.Murtaza M. Nazmi, Advocate appointed for the Appellant Ms.V.R. Bhonsale, APP, APP, for Respondent – State

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CORAM: MRS.V.K. TAHILRAMANI & MRS.MRIDULA BHATKAR, JJ.

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DATE: AUGUST 20, 2013

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ORAL JUDGMENT (PER MRS.BHATKAR, J.):

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The appellant is sentenced to suffer R.I. for life imprisonment for the offence punishable u/s 302 of the Indian Penal Code and also to suffer R.I. for 2 years for the offence punishable u/s 326 of the Indian Penal Code.

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The incident of assault has taken place near Buckley building on Wodehouse Road, Colaba, Mumbai at about 10.45 pm on 6.12.2006. A group of five friends i.e., Sunil Shendge i.e., the Complainant (PW1), Anod Kahar (injured), Harish Savare (deceased), Ganesh Haldar (PW6), Sabir Ansari (PW7) went to one Gokul Restaurant near Regal Cinema at around 8pm on that day. They drank beer and had food and started proceeding towards their house. At that time, a group of waiters working in Taj

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Valentan Mwef restaurant situate near Electric house, Colaba including Satish Gupta (PW2) Kamlesh Pathak (PW3), Mangesh Dhuri (PW4), Gopal Girkar (PW5) and one Rakesh Valmiki after their duty, were going towards V.T. Station from Wodehouse road. At that time, a person from one group by mistake pushed one person from the other group, which led to altercations between the persons in the two groups. They started physically fighting with each other and as they were about to separate and disperse, a third person i.e., the accused arrived there with knife in his hand and started stabbing the persons in the group of the complainant at random. He stabbed Harish. He also assaulted PW7 Sabir Ansari and Anod Kahar. Then one person in the group of Harish tried to snatch the knife from the accused. PW7 Sabir was successful in snatching the knife from him. However, he sustained injury to his hand. The other group members went running to Colaba police station and they reported about the scuffle and the assault.

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So PW11 Sukhdev, who was on duty as PSI of Colaba Police Station, rushed to the spot. He found 3 to 4 persons lying there. He shifted them to G.T. Hospital. Harish was declared dead in the hospital. PW7 Sabir Ansari and Anod Kahar were operated. Others were admitted in the hospital for treatment. The accused, who was lying on the spot was also shifted to the G.T. Hospital. As injuries were found on his person, he was also treated. Police registered FIR on the basis of the statement given

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by PW1 Sunil and registered C.R. No.257 of 2006 against the accused u/s 302, 307, 32 of Indian Penal Code and sections 37(1) and 135 of the Bombay Police Act. The police drew spot panchanama. The police seized the clothes of the injured persons under the seizure panchanama. PW12 Gaykar, the Investigating Officer, arrested the accused from the G.T. Hospital on 12.12.2006 after getting discharged. Arrangements for the test identification parade was made by PW8 Kalliyal Mohd. Kani, SEO. He conducted the parade in Arthur Road Jail on 19.12.2006. He prepared a report of the test identification parade (exhibit 23). The police in the course of investigation, recorded statements of the witnesses and collected postmortem notes and the injury certificates. After completion of the investigation, chargesheet was filed in the Court of Magistrate.

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The learned Magistrate committed the case to the Court of Sessions. The learned Sessions Judge framed the charge against the appellant u/s 302, 326, 307 of the Indian Penal Code. He was acquitted from the charge of section 307 but held guilty under sections 302 and 326 of the Indian Penal Code. Hence, this appeal.

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The offence has taken place on account of sudden fight on the public street. On the point of actual assault, the prosecution has examined 7 witnesses. Out of 7 witnesses, PW1 Sunil, PW6 Ganesh and PW7 Sabir are from one group of friends, who had consumed beer and

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were proceeding from the restaurant and PW2 Satish, PW3 Kamlesh, PW4 Mangesh and PW5 Gopal are the persons from the other group i.e., of the waiters, who after their work, were returning to their respective homes. All these witnesses have deposed that on the night at around 10.30 pm to 10.45pm on 6.12.2006, when they were proceeding to their respective homes, one member of the other group pushed one of their members and this was the cause of quarrel. The quarrel flared up into physical fight. At that time, a third person arrived at the spot, who was armed with knife. He started assaulting two persons in the group. This is how Harish Savare sustained stab and incise injuries on his chest and abdomen, which resulted his death. All the 7 witnesses have corroborated each other on the point of incident and the reason of the quarrel. All of them have deposed that none of the members of the two groups was carrying any weapon but a third person arrived there, was holding knife. It is stated by PW1 Sunil and PW6 Ganesh that the person, who was assaulting the members of the group was apprehended by PW1 Sunil and Harish. PW1 Sunil has stated that he could snatch the knife from the accused. However, in that scuffle, the accused fell down.

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PW11 Sukhdev has supported the case of these witnesses that the accused was injured and was lying on the spot. He has stated that on receiving the complaint, when he went to the spot, he noticed 4 to 5 persons lying on the spot . PW7 Sabir became unconscious after assault

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and was lying there. Anod Kahar was also got injured and was lying there and the accused, as per the evidence of PW1 Sunil and PW6 Ganesh, after the knife was snatched, fell down. PW11 Sukhdev has stated that the accused was shifted to G.T. Hospital and he was also treated. PW9 Dr.Paikrao from G.T. Hospital has examined the accused on 6.12.2006. PW9 Dr.Paikrao has stated that he examined one unknown person on that day who was not in a condition to tell his name. He had sustained abrasions on his chin, one CLW on right lumber region and one contusion on mid parietal occipital region of head, one head injury i.e., contusion mid parieto occipital region of the head (exhibit 32). Injury certificate of the accused is proved by the medical officer. Thus, the fact that the accused was found on the spot and he was shifted to the hospital by the police is proved by the prosecution.

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Learned Counsel for the defence has submitted that there are doubtful circumstances in the evidence of the prosecution. He submitted that the injuries on the person of the accused are not explained by the prosecution. There was scuffle between the two groups; the deceased and the persons injured surprisingly are from only one group and none of the persons from the other group i.e., of the waiters group was injured. Thus, it appears that the accused was known to the waiters and, therefore, was from amongst the waiters group, who was helping them and so he used the weapon. The learned Counsel argued that the prosecution could not

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prove motive of assault. He further submitted that as per the evidence of PW1 Sunil and PW6 Harish, only one blow was given to deceased Harish by the accused. If it was so, then how four incised and one stab wounds were found on the dead body of Harish needs to be answered? He submitted that these multiple blows may lead to the inference that the blows might have been inflicted by some other persons in the group and it was not by the accused. He submitted that the accused is to be given the benefit of this doubtful circumstance.

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As stated above, the injuries were found on the person of the accused. The submissions of the learned defence Counsel that the injuries are not explained, cannot be accepted, as in the evidence of PW1 and PW6, they have stated that they tried to apprehend the accused and snatch the knife from the hands of the accused. This shows that there was manhandling and some scuffle between the accused and PW1, PW6 and the deceased Harish. Such abrasions and contusions were possible while attempting to apprehend the accused and snatching the knife from him. Our attention was drawn to paragraph 7 of the evidence of PW1 Sunil wherein he has stated that the accused gave blow of knife on the chest of Harish. On the basis of this evidence, learned Counsel has fortified his submissions that if the case of the prosecution case is of one blow, then finding of multiple injuries on the body of Harish may create a possibility that he might have been stabbed by the other members of the group. This

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circumstance can be explained by referring to para 3 of the evidence of PW6 Ganesh. PW6 Ganesh has deposed that when they were trying to apprehend the accused, Harish sustained the injury of knife on his stomach. Thus, the two witnesses PW1 Sunil and PW6 Ganesh have spoken of one blow of knife to Harish but on two different parts of body. - one on chest and the other on the stomach. Admittedly, there was a scuffle between the two groups. When the groups were about to part, the accused arrived with knife and started assaulting. Naturally, the situation was chaotic. It was 10.45pm. One group of members had consumed beer. In such a situation of chaos, it is not expected from each witness to see the entire incident of assault completely. The probability that the witness is likely to see the assault in part cannot be ruled out. It is not likely that a member of the group to continue to look at one person when there is free fight and chaos. Therefore, the injuries sustained by the deceased as per the evidence of PW10 Dr.Bansode, were 5 due to knife. Out of the two injuries, one was on the chest and one was on the abdomen. There is a possibility that when the other injuries were caused, PW1 Sunil and PW6 might not have seen that portion of the assault. It is true that none of the members of the waiters' group was injured. That group was of 5 waiters, who were returning home after their duty. PW2, PW3, PW4 and PW5 are the persons, who were going to their respective homes. Thus, the prosecution has taken care of examining the witnesses from both the groups. PW2, PW3, PW4 and PW5 have stated that at the

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time of assault, there was hot exchange of words and some beating and at that time, a third person arrived at the spot with knife and he started assaulting.

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The fact that why any member of the group of waiters is not assaulted is answered in the evidence of PW4 Mangesh Dhuri. He has stated that when he saw the knife in the hands of the accused, Rakesh PW2 Satish and PW3 Kamlesh ran away from the spot and immediately, PW4 Mangesh and PW5 Gopal Girkar went to the police station and gave information and lodged complaint. Thus, the members of that group on seeing the weapon in the hands of the accused, fled away and reported about the fight to the police station. PW11 PSI Sukhdev has also supported this evidence of information.

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The prosecution could not bring any motive on record. However, even if the motive is not established by the prosecution, it does not damage the case of the prosecution on the point of actual assault. PW9 Dr.Paikrao has given the details of the injuries on the person of Ganesh and PW1 Sunil, PW7 Sabir and Anodh Kahar. It shows that all of them have sustained CLW, so also perforation injuries. Injury certificates (exhibits 28, 29, 30 and 31 respectively) are produced. He has also examined one unknown person and has given the description of the injuries caused to him. Injury certificate (exhibit 32) is produced before the

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Court. PW12 Gaykar has deposed that the Doctor had informed that the accused was posing himself as dumb but it was confirmed by the Doctor that he was not dumb and he could speak. Test Identification Parade was conducted on 19.12.2007 by PW8 Kalliyal Mohd. Kani, SEO. However, the accused and all the injured witnesses were taken to G.T. Hospital and two witnesses were admitted as indoor patients for 2 – 3 days. Therefore, we do not want to give much weightage to the evidence of the test identification parade.

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Considering the evidence of all the eye witnesses, we are of the view that the prosecution has established that the accused has committed murder of Harish Savare and is responsible for causing grievous hurt to the other witnesses, we do not want to interfere with the findings given by the learned Sessions Judge.

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The learned Counsel for the appellant has submitted that there was a fight on the road and the accused without any premeditation, has tried to pacify the fighting group so it was not preplanned and therefore he be given the benefit of Exception 4 to Section 300 of the Indian Penal Code and it be considered as culpable homicide not amounting to murder.

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In view of Exception 4 to Section 300 of the Indian Penal Code, culpable homicide is not murder if it is committed without premeditation in

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a sudden fight in heat of passion upon a sudden quarrel. Though the section is silent about the quarrel between whom, we are of the view that it should be a quarrel between the accused and the deceased or the deceased or the accused should be a party to a quarrel going on. In the present case, two groups were fighting. The accused was a third person, who arrived at the spot with knife and started assaulting the members of one group with the knife. Thus, there was no heat of passion or anger or quarrel between the deceased and the accused. So he is not entitled to get the benefit of Exception 4 to Section 300 of the Indian Penal Code.

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In case of Evbahadur Jaikrushna Dagal vs. State of Maharashtra¹ , decided by the Division Bench of this Court, to which one of us (Smt.V.K. Tahilramani, J.) was a party, in a similar set of facts, has taken a view that when the deceased had nothing to do with the quarrel and no quarrel took place between the appellant and the deceased and no altercation has taken place, then the case cannot be covered under Exception 4 to Section 300 of the Indian Penal Code. We also place our reliance on Division Bench judgment of the Rajasthan High Court in the case of Bagga @ Kachru vs. State of Rajasthan , 2005 Cr.L.J. 3766 in which the plea of the accused that it was a sudden fight and quarrel and there was no intention to cause death was not accepted.

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1 (Criminal Appeal No.1119 of 2006 decided on 4.12.2013)

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In these circumstances, we confirm the judgment and order of the learned Sessions Judge. Appeal is dismissed.

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Office to communicate this order to the Appellant and the Superintendent of jail where the appellant is lodged i.e., Nashik Road Central Prison, Nashik.

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At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Mr.Nazmi, who has very ably conducted the matter. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at `2,500/-.

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(MRS.MRIDULA BHATKAR, J.)

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(MRS.V.K. TAHILRAMANI, J.)

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Shahajahan Aliakbar Khan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shahajahan Aliakbar Khan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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