Shahjahan Ali vs State Of Maharashtra Etc.

CRIMINAL APPEAL Nos.458-459 of 2014

SHAHAJAN ALI & ORS. .. Appellant(s)

Versus

STATE OF MAHARASHTRA ETC. ….Respondent(s) With

CRIMINAL APPEAL No.430 of 2014

SIKANDAR ALI …. Appellant(s)

Versus

STATE OF MAHARASHTRA ….Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

The Appellant in Criminal Appeal No.430 of 2014 was

convicted for an offence under Section 302 of the Indian

Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and

sentenced to life imprisonment. The Appeal preferred by Signature Not Verified Digitally signed by CHARANJEET KAUR Date: 2017.05.24 16:52:09 IST him was dismissed by the High Court. The Appellants in Reason:

Criminal Appeal Nos.458-459 of 2014 who were tried along

with the Appellant in Crl. Appeal 430 of 2014 were

1 acquitted by the Trial Court. Their acquittal was

challenged by the State and the wife of the deceased

before the High Court. The High Court reversed the

acquittal and convicted them under Section 302 and

sentenced them to life imprisonment. Aggrieved by the

judgment of the High Court, the Appellants have filed the

above Appeals.

2. An FIR was registered at 11:45 am on 11.01.2010 on

the basis of statement given by Sadiq Hussain Majloom Jafri

(PW-3). As per the FIR, Sarfraj Akbar Syyed who was a

resident of Jamkhed, District Ahmednagar was eking out his

livelihood by selling goggles and spectacles. Sadiq Hussain

Majloom Jafri (PW-3) along with his cousin Jafar Ali (PW-4)

reached Ahmednagar at 10:00 am on 09.01.2010. They

spent the whole day selling goggles at Ahmednagar and

spent the night in a hotel. They continued their activity of

selling goggles during the day time on 10.01.2010 also. On

the night of 10.01.2010, they were joined by their maternal

uncle Sarfraj and all of them stayed at a lodge. At 09:00

am PW-3, PW-4 and Sarfraj reached Chaudhari Dhaba at

Nagar Manmad road, Tal. Nagar, Ahmednagar. They made

an attempt to sell the goggles to the truck drivers at the

dhaba, in vain. They sat on a cot in front of the dhaba and 2 were having tea. The Appellants reached the dhaba and

asked Sarfraj to step aside as they wanted to speak to him.

Sarfraj went with the Appellants to the rear side of the

dhaba. After some time PW-3 and PW-4 heard abuses and

shouts from the back side of dhaba and they rushed to see

what was happening. They saw Sigva Ali (A-4) and Javed

Ali (A-3) catching hold of the hands of Sarfraj. Sikandar Ali

(A-1) attacked Sarfraj with a knife on the left side of his

neck. They also saw Shahajan Ali (A-2) abusing Sarfraj and

assaulting him by giving him fist blows. PW-3 and PW-4

started shouting for help and caught hold of A-1 and A-2

not permitting them to escape. A-3 and A-4 ran away from

the spot. PW-7 who was working at the dhaba also

witnessed the incident. On receipt of information, the

police reached the place of occurrence within half an hour.

A-1 and A-2 were taken into custody by the police. PW-3

and PW-4 took Sarfraj to the Civil Hospital, Ahmednagar in

an auto rickshaw. At 11:30 am, the doctor examined

Sarfraj and declared him dead. Thereafter, PW-3 and PW-4

went to the MIDC Police Station and reported the incident.

3. The Post-mortem was conducted by Dr. Sandhya

Deorao Chavan (PW 8) at the Civil Hospital, Ahmednagar at

2.30 pm. The external injury found on the dead body was

3 described as follows in the post-mortem certificate issued

by PW 8 :-

“1/- Deep incised wound on left side of neck at corotidregion, horizontal, slightly curved laterally 3” length, 1” in breadth and 2.1/2” in depth. Deeper on lateral aspect than medical aspect. Edges are well defined clean and everted and deeply stained. Sprouting of blood seen on left side of chest, shoulder and back. Carotid vessel torn and retracted on left side.”

4. The cause of death was haemorrhage shock due to

rupture of right carotid vessel. Charge-sheet was filed

against all the four accused and thereafter charges were

framed for an offence punishable under Section 302 read

with Section 34 IPC. The Trial Court convicted the Appellant

in Criminal Appeal No. 430 of 2014 for an offence

punishable under Section 302 and sentenced him to life

imprisonment. The other accused who are Appellants in

Criminal Appeal Nos. 458-459 of 2014 were acquitted by

the Trial Court. As stated earlier, the conviction and

sentence of the Appellant in Criminal Appeal No. 430 of

2014 was confirmed by the High Court. The acquittal of the

Appellants in Criminal Appeal Nos. 458-459 of 2014 was

reversed by the High Court and they were convicted under

Section 302 IPC and sentenced to life imprisonment.

5. The deceased Sarfraj was having a shop at Jamkhed

where he was selling goggles. He was the maternal uncle 4 of PW-3 who is also in the same business. PW-3 was

being helped by the deceased for selling goggles in the

Ahmednagar area. The case of the prosecution is that

there was rivalry between the accused and the deceased as

they were in the same business. PW-3, PW-4 and PW-7

deposed that at 10:00 am the deceased, PW-3 and PW-4

reached Chaudhari dhaba at Nagar Manmad road and were

having tea. All the accused reached the dhaba and took

the deceased behind the dhaba saying that they wanted to

speak to him. There is evidence on record to show that the

deceased was attacked by Sikandar Ali (A-1) with a knife

and the other accused assisted him in the attack. Sikardar

Ali (A-1) and Shahjahan Ali (A-2) were caught and handed

over to the police at the spot. Though PW-3 and PW-4 were

related to the deceased, their evidence is credible and

trustworthy. The oral testimony of PW-7 who was working

at the dhaba is consistent with the version of PW-3 and

PW-4. The medical evidence of PW-8 corroborates the oral

testimonies. We are in agreement with the findings

recorded by the Trial Court that the death of Sarfraj is

homicidal in nature. We also do not find fault with the

finding recorded by the Trial Court that the death of Sarfraj

was caused due to the injury caused by Sikandar Ali (A-1). 5

We find no fault with the judgment of the High Court in

confirming the findings of the Trial Court that Sikandar Ali is

guilty of causing the death of Sarfraj.

6. The Trial Court acquitted accused 2 to 4 on the

ground that the only role that was attributed to them by

PW-3 and PW-4 was that they caught hold of the hands of

the deceased during the attack. The Trial Court further

held that though the presence of the Appellants in Crl.

Appeal Nos.458-459 of 2014 was proved there was no

evidence to prove the common intention of these accused

along with A-1. The Trial Court also held that there was no

evidence to show that the attack was pre-meditated. In the

appeals against acquittal, the High Court held that there

was a common intention on the part of A-1 to A-4 to

eliminate Sarfraj. The High Court further held that A-2 to

A-4 assisted A-1 to cause injury to the deceased, and, thus,

were liable to be punished for the homicide. On the basis

of the said findings, the High Court convicted A-2 to A-4

under Section 302 IPC and sentenced them to life

imprisonment..

7. We have no doubt about the complicity of all the

accused in the homicide of Sarfraj. A-1 attacked the

deceased with the knife and caused injury on his neck

which resulted in his death. The other accused assisted 6 him in committing the crime by holding the hands of the

deceased. However, the only question that falls for our

consideration is whether the accused are liable to be

punished for an offence under Section 302 IPC. After

considering the submissions made by the counsel for the

Appellants and scrutinising the material on record, we are

of the opinion that the accused are not liable to be

convicted under Section 302 IPC. We are convinced that

there was neither prior concert nor common intention to

commit a murder. During the course of their business

activity the accused reached the dhaba where the

deceased was present. An altercation took place during

the discussion they were having behind the dhaba. That led

to a sudden fight during which A-1 attacked the deceased

with a knife. Exception 4 to Section 300 is applicable to the

facts of this case. As we are convinced that the accused

are responsible for the death of Sarfraj, we are of the

opinion that they are liable for conviction under Section 304

part II of the IPC. We are informed that A-1 has undergone

a sentence of seven years and that A-2 to A-4 have

undergone four years of imprisonment. We modify the

judgment of the High Court converting the conviction of the

accused from Section 302 to Section 304 part II of the IPC 7 sentencing them to the period already undergone. They

shall be released forthwith.

8. The Appeals are disposed of accordingly.

…................................J [L. NAGESWARA RAO]

..……..........................J [NAVIN SINHA]

New Delhi, May 23, 2017

8 ITEM NO. 1, 1.1 COURT NO. 5 SECTION II-A (For Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CRIMINAL APPEAL No. 458-459/2014

SHAHAJAN ALI & ORS. APPELLANT(s)

VERSUS

STATE OF MAHARASHTRA ETC. RESPONDENT(s)

WITH CRIMINAL APPEAL NO. 430/2014

Date : 23/05/2017 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Mr. Vijay Pratap Singh, Adv.

for Ms. Shilpa Singh, Adv.

Mr. Tripurari Ray, Adv.

for Mr. Vishnu Sharma, Adv.

For Respondent(s) Mr. Nishant R. Katneshwarkar, Adv.

–---

Hon'ble Mr. Justice L. Nageswara Rao pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Navin Sinha.

The judgment of the High Court is modified converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith.

The appeals are disposed of.

[ Charanjeet Kaur ] [ Indu Pokhriyal ] A.R.-cum-P.S. Court Master

[Signed non-reportable judgment is placed on the file ]