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2013 Supreme(Bom) 2152
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
K.U. CHANDIWAL & A.I.S. CHEEMA, JJ.
Sikandar Ali Yawar Ali Mirza
Vs.
State of Maharashtra
Criminal Appeal No. 315 & 357 of 2011 with Criminal Appeal No. 330 of 2012
Decided On: 21.10.2013
Mr. SATEJ S. JADHAV, Advocate, for Appellant.
Mr. R.N. DHORDE, Senior Advocate, i/b Mr. V.R. DHORDE for Respondents.
Mr. B.V. WAGH, APP for Respondent-State.
Headnote:Indian Penal Code, 1860 - Sections 300 and 34 - Conviction for murder. - Where role played by each accused persons while assaulting victim resulting into his death, was established therefore all accused persons rightly convicted under Section 302/34, IPC. - The arrest panchanamas of the respective accused examined. All the events of investigation have taken place in quick succession without wasting time and creating embroidery to falsely book innocents. In carrying investigation quickly, as Court has seen that after the FIR panchnama (Exh. 46), inquest, then panchnama Exh. 47, apparels of the accused Sikandar, drawing arrest of the Sikandar at about 1645 hours, taking his apparels immediately, ensures that there was no wedge left by the prosecution. Available evidence of PW Nos. 3 and 4, unmistakenly, points role of each of the accused, including Sikandar.
The punishment provided for offense under Section 302 of IPC is life with fine. Since contemplating to award minimum sentence of life and dealing with an appeal against acquittal, Court is not called upon to hear the respondents in the State appeal on the point of sentence. Life-imprisonment is the Rule and death sentence is an exception. Having drawn a balance sheet of aggravating and mitigating circumstances, Court is of the opinion that imprisonment for life would also be required to be inflicted against original accused Nos. 2, 3, and 4 (respondents in Criminal Appeal No. 330/2012 and 357/201 1).
In the result, it was conjoint act, of accused No. 1 Sikandar, accused No. 2 Shahajan, accused No. 3 Javed Ali and accused No. 4 Sigva Ali, with common intention to eliminate Sarfraj. Benefit of doubt cannot be extended to accused Nos. 2, 3 and 4 as has been done by the Judge and the accused are guilty for homicidal death amounting to murder of Sarfaraj on 11th Jan., 2010, at 9.45 a.m. punishable under Section 302 of IPC.
K.U. CHANDIWAL, J.
1. Appeal No. 315 of 2011 is preferred by Sikandar challenging his conviction recorded in Sessions Case No. 81 of 2010 for offense under Section 302 of IPC directing to undergo imprisonment for life and to pay fine of Rs. 1,000/-
2. The acquittal of original accused no.2 Shahajan, original accused no.3 Javed and original accused no.4 Sigva Ali is questioned by wife of deceased Sarfaraj Hussain (accused nos. 2, 3, 4) and such appeal (No. 357 of 2011) is admitted by this Court on 2.8.2011.
The State has also preferred appeal (No. 330 of 2012) and it was admitted on 27.4.2012, with a direction to hear Appeal Nos. 315 & 357 of 2011 and 330 of 2012, together.
3. Sadiq Hussain (PW No.3, Jafar Ali (PW No.4) are cousins residing at Nagpur. Their maternal uncle Sarfaraj (since deceased) was resident of Jamkhed. All the three decided to carry business in selling of Goggles around Ahmednagar city and they reached Ahmednagar on 9/10.1.2010. On 11.1.2010, these three persons left Hotel Lodge and in order to sell goggles, reached Chaudhari Dhaba to sell goggles to truck drivers near Vilad Ghat in vicinity of village Nimbalak on Nagar Manmad Road. After truck drivers leaving, they eased for tea. Appellant Sikandar and his three brothers (Accused Nos. 2, 3 & 4 respondents) came to said Dhaba, asked Sarfaraj to join them, and carried him to backside of Dhaba. Within a short span of time, owing to commotion, PW Nos. 3 and 4 rushed to backside. They noticed that, respondent Sigwa (accused no.4) and Javed Ali (Accused No.3) had caught hold of Sarfaraj and Sikandar Ali (accused no. 1) with a knife in his hand, assaulted Sarfraj at his left side of neck. Accused Shahjahan (Accused No.2) was abusing and he also dealt fist and kick blows. PW Nos. 3 and 4 started shouting. They controlled. Sikandar Ali. PW No.4 Jafar caught hold of Shahjahan. Attempt to sneak away by Sikandar were aborted. However, Javed and Sigva succeeded in escaping and decamping. Sarfraj was lying unconscious; he was bleeding profusely. These events were witnessed by employee at Dhaba, PW No.7 Amol Sasane.
4. FIR vide Crime No. 1-6 of 2010, of MIDC Police Station, for offense under Section 302 read with Section 34 of IPC against original accused nos. 1 to 4 was recorded. Accused Nos. 1 and 2 came to be arrested immediately after the FIR at 16.45 hours. Spot Panchnama was drawn as spot was shown by the complainant. Inquest was drawn on body of Sarfraj. At 17.50 hours, appellant Sikandar Ali made a voluntary disclosure of concealment of knife, the weapon of assault and it was taken charge from near the vicinity of Chaudhari Dhaba in two pieces between 17.20 to 19.20 hours on 11.1.2010.
5. After regular investigation, charge-sheet was filed. After committal, charge was explained to the accused below Exh.26 by learned Additional Sessions Judge, Ahmednagar. Plea of each of the accused was recorded on 7.1.2011. The accused pleaded not guilty, claimed to be tried, and their defense is of false implication owing to earlier animosity.
6. The inter se relation between PW Nos. 3, 4 and deceased Sarfraj is not in dispute. Inter se relations between Sikandar and Accused nos. 2, 3 and 4 respondents three brothers is also not in dispute. Acquaintance of the parties is also admitted. From tenor of cross examination, there is no serious challenge to homicidal death of Sarfraj. Sikandar disputed his presence at the spot and equally, the other accused.
7. Prosecution has examined following eleven witnesses:
(a) PW No. 1 Abid Ali Shaikh Jainuddin (Exh. 36) has acted as Inquest Panch with another Panch Haribhau Diwte and proved the inquest Panchnama (Exh.37).
(b) PW No. 2 Sachin Dattatraya Narode was an employee of Chaudhari Dhaba, acted as Panch to the spot panchnama drawn at the backside of the Dhaba (Exh.39). He has identified the seized articles Nos. 1 and 2 i.e. blood mixed with soil and plain soil.
(c) PW No. 3 Sadiq Hussain Majloom Hussain Jafari is the eye witness.
(d) PW No. 4
