Full Judgment Text
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PETITIONER:
YUSUF MUSA CHAUHAN & ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 13/02/1996
BENCH:
NANAVATI G.T. (J)
BENCH:
NANAVATI G.T. (J)
RAY, G.N. (J)
CITATION:
JT 1996 (3) 10 1996 SCALE (2)98
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI. J.
This appeal by special leave has been filed by the
convicted accused against the common judgment and order
passed by the High Court of Bombay in Criminal Appeal Nos.
938 and 939 of 1978. Cr.A. No. 938/78 was filed by accused
Nos. 1 and 2 and Cr.A. No. 939/78 was filed by accused Nos.
3 to 6. The High Court dismissed both the appeals and
confirmed the conviction and sentence recorded by the Court
of Sessions, Greater Bombay. Cr.A. No.887/79 filed by
accused Nos. 7 and 8 was allowed and they have been
acquitted. Appellant No.6 (accused No.6) died during the
pendency of this appeal.
Harbhajan Singh alias Bodha for whose murder the
appellants have been convicted was residing at Arthur Villa
situated at a distance of about 20 feet from the junction of
Gaothan lane No.l and Swami Vivekanand Road (S.V. Road).
S.V. Road in the main road running through Andheri, a suburb
of Bombay. and Gaothan lane Nos.1, 2 and 3 are its lanes.
Gaothan lane No.2 where accused Nos.1, 3, 4, 6 and acquitted
accused Nos.7 and 8 were residing is about 30 feet away
from Gaothan lane No.1. Gaothan lane No.2 wherein accused
Nos. 2 and 5 were residing is little ahead of Gaothan lane
No.2. Bodha was residing with his widowed mother Surjit
Kaur and five brothers, namely (1) Sukhwinder Singh, (2)
Rajinder Singh, (3) Harbinder Singh, (4) Jitender Singh and
(5) Surender Singh. Bodha had a friend named Afzal, who was
earlier residing in Arthur Villa but later on shifted to
Varsova, a nearby suburb.
On 22.4.1977, at about 7 P.M. Afzal left his house at
Varsova and went to Andheri to meet his married sister.
Then at about 9 P.M. he went to Golden Gate Restaurant
situated on S.V. Road. Bodha met him there, They remained
there till some time before 11 P.M. As Afzal wanted to catch
the last bus leaving Andheri for Varsova at about 11.05
P.M., they left the restaurant and came near the bus stop
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which was in between Gaothan lanes No.1 and 2 on S.V. Road.
Afzal stopped at the bus stop and Bodha proceeded further
towards his house. When he reached near the junction of S.V.
Road and Gaothan lane No.1, he was attacked by a crowd of
about 10 to 12 persons, including the 8 accused and some
injuries were caused to him. Afzal saw the assault on
his friend and run to his rescue. On seeing Afzal
approaching them the assailants turned their attention
towards Afzal and assaulted him with the weapons which they
were carrying. Afzal received number of injuries,became
giddy and fell down in the nearby gutter. Meanwhile, Bodha
started running towards his house. Accused-appellants Nos.1
to 6 ran after him. Appellant No.1 had an open knife in his
hand and appellant No.2 was armed with a big iron ’zara’ (a
utensil with many holes, ordinarily used by cooks and
confectioners). Bodha pushed open the front door of his
house, crossed the first room, went into the second room and
while he was trying to open the door of kitchen, appellants
Nos.1 and 2 who had followed him right inside his house,
assaulted him again. Appellant No.1 gave a knife blow on the
chest of Bodha and Appellant No.2 gave a ’zara’ blow on his
head. The two appellants then ran away from there. Bodha
fell down at that very spot as a result of the injuries
received by him. Appellant Nos. 3 and 6 who had also chased
Bodha did not enter the house but remained standing outside
abusing Bodha and uttering threats When Kuldip Kaur, sister
of Bodha and Rajinder Singh went near the door, appellant
No.6 asked them to bring Bodha out as he wanted to take
revenge as Bodha had some days before the date of the
incident beaten them. On Kuldip Kaur informing them that
Bodha had received serious injuries and had become
unconscious, appellant Nos.3 to 6 also ran away. Seeing the
serious condition of her son, Surjit Kaur sent her younger
son Surender Singh to call her brother Harbans Singh who was
residing close by. Harbans Singh on being informed bout the
incident immediately contacted the police control room. The
control room informed the mobile police van moving in that
area. P.S.I. Nanaware who was the incharge of the mobile van
reached Arthur Villa within 5 to 6 minutes. Finding the
condition of Bodha serious, he removed Bodha with some of
his family members in the van to Cooper hospital. The Doctor
who examined Bodha found him dead. So he informed police
constable Kadam who was on duty about Bodha’s death.
Constable Kadam sent a telephone message to Andheri Police
Station. Within a short time the investigation started.
Accused Nos. 3 to 6 were taken into custody at about 5 A.M.
Accused Nos. 1 and 2 were arrested on 24.4.1977 and Accused
Nos. 7 and 8 were arrested on May 5. 1977.
All the appellants and acquitted accused Nos.7 and 8
were tried by the learned Additional Sessions Judge. Greater
Bombay, in Sessions Case No.207 of 1977 for the offences
punishable under Sections 147, 148. 302 read with 149. 307
read with 149, 449 read with 149 and 450 read with 149 of
the Indian Penal Code. In the alternative they were also
charged under Sections 307 read with 34 and 302 read with 34
I.P.C. Appellant Nos. 1 to 6 were also charged under
Sections 449. 450 both read with Section 34 I.P.C. The
learned Additional Sessions Judge convicted all the accused
for the offences with which they were charged.
All the convicted accused filed appeals in the High
Court challenging their conviction and sentence. On re-
appreciation of the evidence, the High Court also found with
respect to the first part of the incident near the junction
of the road that the evidence of Harbinder Singh (PW5) in
toto and that of Afzal (PW6) in part i.e. except regarding
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identification of the accused was rightly relied upon as it
received corroboration from the find of blood. three ’zaras’
out of which two were stained with human blood, one blood-
stained razor and blood-stained bush shirt of Afzal from
near that junction. As regards the assault on Bodha which
took place inside the house, the High Court came
to the conclusion that the evidence of Kuldip Kaur (PW2),
Rajinder Singh (PW4), Surjit Kaur (PW3) and Charanjit Singh
(PW9) was reliable and trustworthy. The High Court agreed
with the finding of the Sessions Court that Appellant Nos. 1
to 6. had formed an unlawful assembly common object of which
was to commit murder of Bodha and that in prosecution of
that object the killed Bodha and injured Afzal. The High
Court, therefore, dismissed the appeals of Appellant Nos. 1
to 6. With respect to Accused Nos. 7 and 8 evidence of Afzal
(PW6) and Robin (PW8) was not found to be reliable. The High
Court, therefore, set aside the conviction of those two
accused and acquitted them.
Mr. Mohta, learned senior counsel for the appellants
submitted that the High Court has not properly appreciated
certain aspects which would show that in all probability
deceased Bodha and Afzal were attacked by unknown persons
and not by the appellants. He submitted that the prosecution
was not able to suggest any motive for Appellant Nos. 1 to 6
to form an unlawful assembly and kill Bodha. He also
submitted that the version of Afzal (PW6) and Harbinder
Singh (PW5) was that Bodha and Afzal were assaulted by a
crowd of about 12 to 15 persons, that 4 to 6 persons in the
crowd had iron zaras with them and that Bodha was given
only zara and fist blows. He further submitted that if
Bodha and Afzal were really injured by the appellants then
Afzal would not have failed to give their names when he
gave his first statement to the police, as the appellants
were known to him since long. He aalso submitted that having
disbelieved the evidence of Afzal the High Court should not
have accepted the evidence of Harbinder Singh (PW5)
regarding the identity of the assailants, more particularly,
because he was a chance witness. It was also submitted that
deceased Bodha had a criminal record as disclosed by the
evidence on record and in all probability he was beaten by
the members of the public and/or his enemies. The learned
counsel challenged the finding recorded by the High Court
that the evidence of eye-witnesses Kuldip Kaur (PW2),
Rajinder Singh (PW4), Surjit Kaur (PW3) and Charanjit Singh
(PW9) was reliable and trustworthy and submitted that the
fatal assault on Bodha must have been outside his house and
these witnesses had not seen the same. He submitted that if
they had seen the incident then they would not have failed
to inform P.I. Nanaware (PW25) that Appellant Nos. 1 and 2
had given blows to Bodha and that Appellant Nos. 3 to 6 at
that time were standing outside abusing and threatening
Bodha and members of the family, while they were going
together in the police van to Cooper Hospital. He also
submitted that the evidence of Police Constable Kadam (PW24)
who was on duty at the Cooper Hospital, discloses that
before sending information to Andheri Police Station he had
inquired from Rajinder Singh (PW4) about the names of the
assailants but Rajinder Singh could not disclose their
names. He submitted that no blood was collected from inside
the second room where according to the eye witnesses the
assault had taken place and that would also go to show that
in fact the fatal assault on Bodha was not inside his house
but had taken place outside. The learned counsel submitted
that the conduct of these eye-witnesses in not preventing
Appellant Nos. 1 and 2 from giving blows to Bodha and not
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raising an alarm creates a serious doubt regarding their
claim that Appellant Nos. 1 and 2 had followed Bodha inside
the house and given blows there.
We have carefully gone through the evidence and
judgment of the High Court. We find that all the aspects
emphasized by the learned counsel have been considered by
the High Court and the findings by it are supported by good
reason. It is now well-settled that when there is direct
evidence of trustworthy eye-witness absence regarding motive
loses its importance as a circumstance in favour of the
accused. Though there is no evidence to show what actually
prompted the appellants and acquitted accused Nos.7 and 8 to
cause the death of Bodha on that day, evidence of Kuldip
Kaur (PW2) and Rabinder Singh (PW4) discloses that Appellant
Nos. 3 to 6 were abusing Bodha and uttering threats and
Appellant No. 6, Yasin, was shouting that he wanted to take
revenge against Bodha as Bodha had assaulted them
previously. It is not in dispute that assault on Bodha and
Afzal took place near the junction of the lane with the S.V.
Road. It is also not in dispute that there was sufficient
light at the said place. The evidence of Harbinder Singh
(PW5) that in the crowd of 12 persons which attacked his
brother Bodha and Afzal he had seen the appellants has
remanded unshaken. It was possible for this witness to
identify the appellants as they were all known to him since
his childhood. His explanation regarding his presence at
that time has been accepted by both the courts below and his
evidence on that point has also remained unshaken. This
witness had no reason to falsely involve the appellants and
let go the real assailants. Merely because the High Court
did not accept the evidence of Afzal (PW6) as regards his
and Bodha’s assailants for the reason that he had not
disclosed the names of assailants in his first two
statements and had not given any rational explanation for
that omission. it would not be proper to say that the High
Court should have rejected the evidence of Harbinder Singh
also.
The versions of witnesses Harbinder Singh and Afzal
that during the first part of the incident Bodha was given
only ‘zara’ and fist bless cannot be considered as
improbable or unnatural. On seeing Bodha near the junction
of the lane the assailants ran towards him. Bodha must have
not remained stationary. Therefore, it all depended upon
which of the assailants were able to reach him first.
Moreover, when they saw Afzal rushing towards them, they
left Bodha and started beating him. If under these
circumstances no injury was caused to Bodha at that time by
a weapon like a knife or razor. it cannot be said that on
the ground of improbability or unnaturalness their evidence
should have been discarded. The evidence of witness
Muneshwar (P.W.7) discloses that the iron zaras were removed
from the rear portion of his shop which is near the place of
the incident after he had closed it at about 10.30 P.M.
The contention raised by the learned counsel for the
appellants that in all probability Bodha was fatally
assaulted near the junction or outside his house but not
inside and that none of the persons claiming to be the eye
witnesses had really seen the incident, deserves no serious
consideration because except a bare suggestion to some of
the eye-witnesses there is no material on record on basis of
which it can be said that the blow which proved to be fatal
was given outside and not inside the house. As the High
Court has pointed out, apars from the evidence of the eye-
witnesses the evidence of Ratan Lal Jain and the
investigating Officer and also the Panchnama of the scene of
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offence (Exhibit 47) discloses that there was a pool of
blood in the second room. Only because the Investigating
Officer committed to collect the blood scrapping from the
second room it cannot be concluded that the evidence of
those witnesses on this point was false. As the second part
of the incident is proved to have taken place inside the
house. obviously, the inmates of the house must have seen
what happened before their eyes. Presence to Surjit Kaur
(P.W.3) and Rajinder Singh (PW4) inside the house could not
have been doubted. Presence of Kuldip Kaur (PW2) was.
however, challengeable on the ground that she being a
married woman was likely to be at her husband’s place.
Kuldip Kaur and her mother have explained in their evidence
as to why she was at her mother’s place and that explanation
has been accepted by both the courts below. Apart from the
inmates oi the house there is evidence of P.I. Nanaware
(P.W.25) who was incharge of the mobile van and who had
reached Arthur Villa within about fits minutes, that he had
seen Kuldip Kaur in the house. That part of his evidence has
remained unchallenged. Her statement was recorded by the
police between 1.30 A.M. and 2.30 A.M. on that night as
deposed by P.I. Naik (P.W.28). She had given full details
regarding the incident including the names of the appellants
and the two acquitted accused if she had not seen the
incident she could not have within a short time invented the
story and would not have falsely involved the accused as she
had no enmity with them. Even after close scrutiny of her
evidence the High Court found it reliable and we see no
reason to differ from that finding. The High Court has also
after closely scrutinizing the evidence of Rajinder Singh
and Police Constable Kadam (P.W.24) come to the conclusion
that Kadam was telling lies when he stated that when he
inquired from Rajinder Singh at the Cooper Hospital as to
who were the assailants of Bodha he could not name them. The
contention of the learned counsel that evidence of Charanjit
Singh (P.W.9) should not have been accepted as being a
police man though in a different state he would not have
remained a mere spectator if he was really present when
Bodha was attacked inside the house. The witness has
explained that it all happened suddenly and when Bodha came
running inside the house he was reading a book. Thus. there
was hardly any time before he could have intervened. We are
of the opinion that the High Court has not committed any
error in relying upon these eye-witnesses.
The finding recorded by the High Court that the
appellants were members of an unlawful assembly and that
they caused death of Bodha in prosecution of their common
object is also unassailable. Not only they had run towards
Bodha when they saw him near the junction of the lane and
attacked him there but they also chased him right upto his
house and even inside it by Appellant Nos. 1 and 2.
Initially, all of them were armed with weapons and some of
them had caused injuries to Bodha and also Afzal who had
come to his rescue. When Bodha was chased Appellant No.l was
carrying an open knife in his hand and Appellant No.2 had a
zara with him. Though Appellant Nos. 3 to 6 had not carried
weapons when they had chased Bodha their conduct in uttering
threats and challenging Bodha to come out so that they could
take revenge is indicative of the fact that they were all
acting in prosecution of their common object. The High Court
was, therefore, right in confirming their conviction and
sentence.
In the result, this appeal fails and is dismissed.
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