KAMAL SHIVSHANKAR CHAWRIYA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE original accused no. 1, by this appeal questions his conviction under Section 302 read with Section 149 of the Indian Penal Code and the order sentencing him to suffer imprisonment for life. The case of the prosecution is that Batulbi, the mother of the deceased Nafiz, along with her three daughters, had been to Ajani to attend a wedding and was staying in the house of her brother-in-law. At about 10 p. m. on March 13,. 1984, the accused nos. 1, 6 and 8, namely Kamal, Ashok and Chaman respectively, accompanied by three or four others, came to the place and took ay/ay Nafiz. They all assaulted Nafiz near a peepal tree close to Ruddha Mandir about 50 to 60 paces away. In the morning at about 4 a. m. , Jamilabi, Batulbis sister-in-law, saw Nafiz lying in an injured condition near the house and groaning. She informed about the same to Batulbi and her daughters. Jamilabis son P. W. 3 Afzal removed Nafiz in a rickshaw to the hospital. In spite of the treatment. Nafiz succumbed to his injuries at 4 P. M. The appellant is said to have led the police and produced a full-pant (Article 9) from his house on 14-3-1984. The Chemical Analysers report showed that it was stained with blood of A grove which is the group of blood found on the clothes of the deceased Nafiz. At the trial, the appellant pleaded not guilty to the charge and denied that it was his full-pant which was recovered from his house. The learned Additional Sessions Judge found the evidence of P. W. 1 Batulbi and her daughters, namely P. W. 4 Narmabi, P. W. 5 Multas and P. W. 6 Noorjaba, credible so far as it related to the appellant. He also found that, the evidences was not sufficient to identify the other persons who stood trial along with the appellant and while acquitting others, the learned Additional Sessions Judge convicted the appellant under Section 302 read with Section 149, Indian Penal Code and sentenced him as stated above.

(2.) IN this appeal, Shri N. R. Raga, the learned counsel for the appellant, pointed out that the account of Batulbi and her three daughters was replete with improvements and their evidence could not be believed. We have gone through the entire evidence bearing upon the incident, in which the accused in the company of others was said to have taken away Nafiz from the house of Jamilabi at about 10 p. m. on 13-3-1984. In the First Information Report, which Batulbi gave to the police in the Police Station, which was close to Jamilabis house at about 1-15 p. m. on 14-8-1984 all that was stated that the accused nos. 1, 6 and 8, namely Kamal, Ashok and Chaman respectively, along with three or four boys, came to the house of her brother-in-law and took away her son Nafiz. There was no mention of any of the assaults said to have taken place under the peepal tree or at the Nala beyond the peepal tree nor any reference to the weapons which the miscreants wielded. In view of the fact that the report came to be given soon after the incident on the next day, after Nafiz was removed to the hospital in an unconscious condition, it was reasonable to expect that all the material details of the incident would be mentioned in the First Information Report. There is no whisper about either the assault or the weapons in the First Information Report and it is obvious that Batulbai had given a very exaggerated and fanciful account of the incident in her evidence before the Court. P. W. 5. Afsal was spoke about his having taken the injured Nafiz in a rickshaw, also did not mention any details regarding the incident and only stated that he had taken Nafiz in a rickshaw to the Medical College Hospital in an injured condition and although he made enquiries from his mother about Nafizs injuries, she did not tell him anything about it. The same Criticism applies to the account given by Batubis three daughters.

(3.) THE learned Additional Public Prosecutor contended that the circumstances that the appellant was one of the persons who called Nafiz from Jamilabis house and that Nafiz was found in an injured condition at 4 a. m. would show that the appellant was concerned in the incident of assault. It must be noted that when the appellant left the house in the company of others, there was, no protest by him and if we go by Batulbis account, as mentioned in the complaint (Exhibit: 19), those persons were not armed and there was no apprehension of any harm to Nafiz from them. The evidence of last seen therefore does not assist the prosecution in any manner. The mere finding of Nafiz in an injured condition at 4 am. by Jamilabi (P. W. 7) also would not lead to an inference that the appellant was concerned in the assault. There could be several factors which may have been responsible for the injured condition of Nafiz and anything may have happened between 10 p. m. at night when he left the house until 4 a. m. when he was found in an injured condition in front of the house. The fact that Batulbi and her three daughters slept peacefully at night is also indicative of the position that they did not apprehend any harm to Nafiz at the hands of the appellant or others. Were it not so Batulbi and others would have immediately reported the incident to the police at the Police Station which was close to jamilabis house. With regard to the finding of the blood-stained full-pant (Article 9) on 14/3/1984, it must be pointed out that the panch to the recovery has turned hostile. The appellant denied that it was his full pant and that it was recovered from his house. In these circumstances, we would expect better evidence to show the appellants ownership of the full-part and that evidence is wanting. Even otherwise, merely from the recovery of the bloodstained full-pant, it cannot be said that the appellant had participated in the assault and was responsible for the injuries which were found on Nafizs person. The learned Additional Sessions Judge, without any criminal appraisal of the evidence of Batulbi and her three daughters, accepted their version though it appears to us that their account was not such which could have been so readily accepted and we find it impossible to place reliance on their account.