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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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