ABDUL SHAHIM ABDUL BASHIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants Abdul Shahim Abdul Bashir and Abdul Rahman Abdul Bashir along with their father Abdul Bashir Sheikh Roshan, were tried before Additional Sessions Judge, Achalpur in Sessions Case No. 100/1996 for committing murder of one Abdul Kalam Abdul Rashid in furtherance of their common intention. The learned Sessions Judge, vide judgment and order dated 12th February, 1998, convicted the appellants of the offence under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and fine of Rs. 3,000/-, in default, to undergo further R. I. for one year. The third accused Abdul Bashir Sheikh Roshan, however, came to be acquitted. The order of conviction and sentence is under challenge in this appeal.

(2.) THE prosecution case, in brief, is that victim Abdul Kalam and the appellants are the residents of village Ghatladki, which comes within the jurisdiction of Police Station, Chandur Bazar. The incident, which gave rise to this prosecution against the appellants, took place on 1st July, 1996 in village Ghatladki. Both the appellants are real brothers and sons of third accused Abdul Bashir. At the time, when the incident took place, deceased Abdul Kalam was passing towards the market for buying tea powder. When he was near the house of Jalil Patel and Nazir Moulana, the appellant Abdul Shahim accosted him and there was a verbal altercations between them. At that time, when the altercations were going on, the accused Abdul Bashir arrived on the spot and, at once, dealt a blow with stick, he was armed with, on the shoulder of Abdul Kalam. Due to which, the latter fell down in the drain along the street. The appellant Abdul Shahim, who was present there, at once took out knife from his pocket and stabbed Abdul Kalam thirsting a blow in the chest region. The appellant Abdul Rahman also rushed there and assaulted Abdul Kalam with a dagger (suri), inflicting a blow below his arm pit. In the same incident, the victim Abdul Kalam received third blow with the knife which landed on his back side and he collapsed on the ground. The appellants and their father Abdul Bashir then ran away from the spot. Abdul Rashid Sheikh Rahim (P. W. 13), father of victim Abdul Kalam, who was in the market, heard commotion and learnt that his son Abdul Kalam was assaulted. He rushed the place of occurrence and saw his son lying on the ground in injured condition. He carried him straight to the Police Station, Chandur Bazar and lodged a report on the basis of which offence was registered. The Police Officer referred the injured Abdul Kalam to the hospital at Chandur Bazar for treatment, but before any medical aid could be given, Abdul Kalam had succumbed to the injuries. P. S. I. Patil (P. W. 14) was in-charge of Chandur Bazar Police Station and who later on took up investigation in the matter, on being informed of the offence registered in respect of death of Abdul Kalam, rushed to Chandur Bazar and went to the hospital. The dead body of Abdul Kalam was sent to the Medical Officer for postmortem. P. S. I. Patil then returned to village Ghatladki and on his way, accused Abdul Bashir and Abdul Shahim came to be apprehended and were sent to the Police Station. In the course of investigation, the clothes on the person of appellant Abdul Shahim were seized as the same were stained with blood. The weapons of assault, namely, knife and dagger came to be seized in pursuance of the statement made by the appellant Abdul Shahim being recovered at his instance. When these weapons were found and seized, it was noticed that the weapons were stained with blood. All the articles seized including the clothes of deceased were sent to chemical analyser for analysis. After completing investigation, the appellants were sent up for trial before the Additional Sessions Judge, Achalpur. At the trial, the appellants denied the charge, pleaded not guilty and claimed to be tried. The prosecution examined in all 14 witnesses including Sheikh Akram (P. W. 1), Halima Bano (P. W. 2), Sheikh Mehboob (P. W. 3), Raksana Bano (P. W. 5), Mohammad Rafiq Abdul Aziz (P. W. 6), who claimed to be the eye-witnesses to the incident and Abdul Rashid (P. W. 13), father of deceased Abdul Kalam, Dr. Deshmukh (P. W. 8) who performed autopsy on the dead body of Abdul Kalam and Rahul Patil (P. W. 14), P. S. I. attached to the Chandur Bazar Police Station, who carried out investigation in the matter. After the evidence for the prosecution was over, the statements of the appellants came to be recorded under section 313 of Cri. P. C. The defence of appellant Abdul Shahim was that Abdul Kalam and his father Abdul Rashid assaulted him at the time and place of the occurrence and in that assault he sustained injuries with the weapons in the hands of deceased Abdul Kalam and his father Abdul Rashid. It is also suggested by the defence that the deceased Abdul Kalam sustained injuries as in that scuffle his father moved his hand. The learned Additional Sessions Judge, Achalpur accepting the evidence of prosecution witnesses who claimed to be eye-witnesses to the incident, so also medical evidence which lends assurance to the ocular version of the eye-witnesses, came to the conclusion that the victim Abdul Kalam was done to death by the appellants on account of the injuries inflicted with the weapons, they were armed with and as such the appellants were found guilty for murder of Abdul Kalam. Consequently, the appellants came to be convicted and accordingly sentenced as stated earlier.

(3.) THE learned Counsel Shri Daga, appearing for the appellants, while challenging the order of conviction and sentence, submitted with vehemence that the trial Court committed an error in accepting the evidence of witnesses as all the witnesses, who claimed to be eye-witnesses are interested witnesses, being closely and distantly related to the deceased and there are material discrepancies in the evidence of these witnesses and the evidence is contradictory to the medical evidence on record and their evidence suffers from material infirmities on account of omissions and contradictions. The learned Counsel also pointed out that the appellant Abdul Shahim has sustained serious injuries on his person and the prosecution has failed to explain those injuries. This itself is sufficient to discard the claim of the witnesses and the evidence of the eye-witnesses, in this background, cannot be accepted. In this background, the learned Counsel submitted that the prosecution has failed to establish the prosecution case and, therefore, the appellants cannot be found guilty for the offence of murder. The learned Counsel pointed out from the record that the fact that appellant Abdul Shahim sustained injuries has been duly established. However, the witnesses when denied the claim that the appellant Abdul Shahim sustained injuries or came to be assaulted, their evidence is absolutely unworthy of credit. So when their evidence is discarded, there is nothing for the prosecution to establish that the appellants committed murder of deceased Abdul Kalam. He, therefore, urged that the appeal be allowed and the conviction and sentence passed against the appellants be set aside and the appellants be acquitted.