CRIA/13/2000 of SAYYAD MAGDUM JANNY and ORS. Vs STATE on 20 December 2002

1. Sayyad Magdum Janny

2. Abdul Shaikh

3. Sayyad Mehhboob

All presently undergoingsentence at Central Jail, Aguada, Bardez, Goa................ APPELLANTS

VERSUS

STATE.............................. RESPONDENT----- Mr. S.G. Dessai, Sr. Advocate, with Mr. Arun B. deSa & Mr. Shivam S. Dessai, Advocates, for theAppellants.

Ms. Winnie Coutinho, Addl. Public Prosecutor, forthe State-Respondent.

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CORAM : P.V. KAKADE,J.

DATED: DECEMBER 20, 2002.

JU D G M E N T

The Appellants/Accused have preferredthis Appeal against the Judgment and the Orderpassed by the Additional Sessions Judge, Margao, inSessions Case No.19 of 1997 holding them guilty ofcommission of the offences punishable under Section304 (Clause I) read with Section 34 of the IndianPenal Code and Section 323 read with Section 34 ofthe Indian Penal Code and sentencing them to Rigorous Imprisonment for five years and to payfine of Rs.2,000/-, in default, to undergo SimpleImprisonment for a period of three months, for theearlier offence; and to Rigorous Imprisonment forsix months for the latter count of the offence.Both the substantive sentences were directed to runconcurrently.

2. The facts giving rise to the case, ina nutshell, are thus:

One Sayyad Raja (P.W.2) had advanced asum of Rs.8,000/- to accused No.1 in November 1996.On 31-3-1997, at about 9.30 p.m. the said SayyadRaja and his wife had gone on their two-wheeler toSTD booth to phone some relatives and, at thattime, accused no.1 was sitting in that booth.Sayyad Raja (P.W.2) demanded his money ofRs.8,000/- from the accused No.1, but the accusedNo.1 refused to pay and there was some hot exchangeof words and during that time the accused No.1 alsogave threats to P.W.2 Sayyad Raja and there wasalso a scuffle between them. Thereafter, at about9.45 p.m., P.W.2 Sayyad Raja and his wife returnedto their home and wife got down and P.W.2 came backto Arlem, Raia, near the saw mill at the house ofhis brother Sayyad Kassim, the deceased, at about 10.00 p.m. P.W.2 collected his brother SayyadKassim and Kassim’s brother-in-law Rajab Ali Shaikh(P.W.1) and all of them proceeded towards Kavate,Raia Manora at the house of Sayyad Raja (P.W.2) fordinner. The scooter was being driven by P.W.1Rajab Ali Shaikh. At about 10.10 p.m. theyreached the house of accused No.1 which was ontheir way and P.W.2 told Rajab Ali Shaikh to stopthe two-wheeler so that he wanted to demand hismoney from the accused No.1. P.W.1 stopped thescooty by the side of the road and P.W.2 along withhis brother Sayyad Kassim got down. At that time,all the accused persons with common intentionassaulted Shaikh Kassim (the deceased), P.W.2Sayyad Raja and Rajab Ali Shaikh (P.W.1). P.W.1ran away from the scene and came to Arlem,collected his scooter from one Saife Sayyad andwent to Police Station and then came back to thescene. In the meantime, Sayyad Kassim was thrownin a gutter and the accused persons had left thescene. The son of the owner of the house in whichthe accused No.1 was sitting lifted Sayyad Kassimfrom the gutter and put him on the road. SayyadKassim had died.

3. Thereupon, P.W.1 Rajab Ali Shaikh

lodged complaint on 1-4-1997 at about midnight

which was recorded by P.I. Rohidas Patre (P.W.11).The offence was registered under Section 302 readwith Section 34 of the Indian Penal Code at 0.10hours. It was followed by panchanama of the sceneof the incident. One metal pipe and one iron rakewith blood stains were also found at the scene ofoffence and were also seized by the police underpanchanama. Photographs were taken of the scene ofthe offence. P.W.11 arrested accused No.1 on1-4-1997. Inquest panchanama was drawn by P.W.11on that very day in the presence of the panchwitnesses. The injured P.W.1 Rajab Ali Shaikh wasexamined by P.W.3 Dr. Martina Fernandes at 11.55p.m. on 31-3-1997 and P.W.2 was examined at about1.25 a.m. on 1-4-1997. The Medical Officer issuedcertificates accordingly. The dead body of SayyadKassim was sent for post-mortem examination whichwas performed by Dr. Avinash Pujari on 1-4-1997 inthe afternoon. The accused No.2 came to bearrested on 3-4-1997 and the accused No.3 wasarrested on the next day. Statements of witnessescame to be recorded between 1-4-1997 and 14-4-1997.The seized articles as well as samples of bloodetc. were sent for chemical analysis and thereport of the Chemical Analyser was received in duecourse. On completion of the investigation, thecharge-sheet was sent to the Magisterial Court who committed the case to the Court of Sessions as theoffences involved were exclusively triable by theSessions Court.

4. The learned Sessions Judge framed the charge-sheet against the accused persons foroffences punishable under Sections 304 and 323 readwith Section 34 of the Indian Penal Code. Theaccused persons denied the charge and claimed to betried. The defence of the accused at the trialstage was that of the denial simpliciter.

The prosecution led its evidence atlength on which basis the learned Sessions Judgecame to the conclusion that the act of theAppellants/accused came within the four corners ofthe offences punishable under Sections 304 (ClauseI) and 323 read with Section 34 of the Indian PenalCode and proceeded to record the Order ofconviction and consequent sentence against them inthe aforesaid manner. Hence the Appeal.

5. I heard Mr. Surendra Dessai, thelearned Senior Counsel, for the Appellants andMs.Winnie Coutinho, the learned Additional PublicProsecutor the the Respondent State, at length.

6. At the outset, it may be noted thatthe defence of the Appellants at the trial statewas that of denial simpliciter. However, in thecourse of his arguments, Mr. Dessai, the learnedCounsel for the Appellants, took up a stand to theeffect that the accused had acted in furtherance oftheir right of private defence. It was submittedon behalf of the Appellants that there was graveand sudden provocation and the witnesses includingthe deceased were armed with weapons and in viewthereof, the accused persons acted in self-defenceas a result of which the deceased died in thecourse of the incident. In the light of thisaspect, it would be just and proper on my partinitially to deal with the evidence on record as itis, in order to ascertain whether such evidence issufficient to bring home the guilt, and then,consider the submissions made on behalf of theAppellants setting up the theory of right ofprivate defence.

7. On a critical perusal of the entireevidence on record, it is to be noted that theevidence of P.W.1 Rajab Ali Shaik as well as thatof P.W.2 Sayyad Raja forms the backbone of theprosecution case in view of the fact that not onlythey were present at the time of the incident but

also they are found to be injured persons in thecourse of the incident in the hands of the accusedpersons. Then again, the evidence of P.W.1 andP.W.2 is fortified by various circumstantialaspects of the evidence in general, and thetestimony of P.W.7 Sayyad Babu in particular, whois said to be chance witness and has stated that atthe time of the incident he was passing by the roadand saw the accused No.1 was carrying iron pipe andaccused No.3 had rake whereas accused No.2 was notarmed with anything. He has further stated that hehas seen that they assaulted the witness SayyadRaja and the deceased Sayyad Kassim at that time.According to him, the accused No.1 assaulted thedeceased with iron pipe and accused No.3 assaultedhim with the iron rake. He was frightened and wenthome. This witness, in my considered view, hasprovided the support to the testimonies of P.W.1and P.W.2. It is true that his statement isrecorded by the Investigating Officer with delay ofabout 14 days, but scrutiny of his evidence doesnot show anything as to why he should be totallydiscarded and disbelieved from consideration.Before turning to the evidence of P.W.1and P.W.2, it must be noted that there issufficient evidence on record to support the finding recorded by the learned Sessions Judge tothe effect that the death of Sayyad Kassim washomicidal. A perusal of the post-mortem reportprepared by P.W.4 Dr. Avinash Pujari makes thisaspect quite clear. The evidence of Dr. Pujarishows that the cause of death was shock due todamage suffered by brain, intra-cranialhaemorrhage, fracture of left rib and contusion ofleft lung as a result of impact by blunt force orobject. It is true that he has not specificallypointed out which injury was fatal one, still hehas stated in the course of cross-examination thatthe contusion and abrasions on the body of thedeceased were alongwith internal injuries whichtogether were not simple. Be that as it may, thefact remains that it must be gathered from hisevidence that the cumulative effect of injuries onthe person of the deceased have caused the death atthe relevant time. This aspect has to be takeninto account with the evidence as well as admittedposition of the presence of the accused personswhether at the time they have taken up the plea ofprivate defence. Therefore, there is no doubtwhatsoever that the deceased suffered homicidaldeath.

8. A critical perusal of the entire

evidence of P.W.2 clearly shows that there was aquarrel between himself and accused earlier to theincident near the telephone booth and, in fact,there was scuffle between them. He has stated thatthereafter he came to his house. He has furtherstated that after coming back by the scooty andreaching his wife at his home he went to hisbrother Kassim at about 9.00 p.m. and thereafteralong with Kassim and Kassim’s brother-in-law RajabAli Shaikh went to his house for dinner at whichtime Rajab Ali Shaikh (P.W.1) was riding thescooty. This aspect is corroborated by theevidence of P.W.1 Rajab Ali Shaikh himself when hehas stated that on that day he was alone at homeand his family members had gone to attend thewedding and at about 8.30 hours P.W.2 came and tookhim and Sayyad Kassim for dinner. Evidently allthe three accused persons are residents of RaiaManora and, therefore, it is also established thattheir house is on the way to the house of P.W.2and, therefore, the narration to that regard madeby P.W.1 and P.W.2 cannot be doubted at all and isfound to be most natural.

So far as the description of the actualincident is concerned, P.W.2 has deposed that onreaching near the house of the accused, he saw that all the three accused were on the road and onseeing them, he asked P.W.1 to stop the vehicle ashe wanted to ask the accused No.1 about the moneywhich he had borrowed. At that time, the assaultstarted as a result of which the accused No.1 gaveblow with iron pipe on his head on the right sideand also on the left leg due to which he fell down.He has further stated that on seeing him fallingdown, his brother Kassim came to his rescue andKassim was also assaulted by accused No.1 and 3 witthe said weapons. Though he could not see thenature of the weapons used by accused no.1 andaccused No.3 to assault his brother, the pipe withwhich he was assaulted was of iron. he has statedthat after the assault on his brother, the accusedpersons went away and he tried to go near hisbrother but he could not do so and fell down on theroad unconscious and regained his consciousness inthe hospital where he found that Kassim had died.This particular description of the assault is fullycorroborated by P.W.1 and there is absolutely nodoubt whatsoever that accused No.1, 2 and 3assaulted the deceased as well as the witnesses atwhich time iron rods and iron rake were used as aresult of which the deceased died and the witnessessuffered injuries.

The entire evidence of these witnesses isfully corroborated by the other evidence on recordincluding that of panch witnesses and thus there isno doubt whatsoever that the incident did takeplace as per the account given by P.W.1 and P.W.3in respect of the entire incident. The perusal ofthe entire Judgment of the learned Sessions Judgeshows that he has appreciated each and every aspectof the prosecution evidence on record and has cometo the reasonable conclusion that the offencescharged against the accused persons are duly provedbeyond the reasonable doubt.

9. Mr. Dessai, the learned Counsel forthe Appellants, vehemently urged that theprosecution has not established that the injurysuffered by the deceased was likely to cause deathor the injury inflicted was sufficient in theordinary course of nature to cause death.According to him, the evidence of the doctor P.W.4does not show that the deceased suffered suchinjury as was likely to cause death or any injuryinflicted was sufficient in the ordinary course ofnature to cause death. However, in my consideredview, the evidence of Dr.Pujari is definitelysufficient to show that the cumulative effect ofthe injuries suffered by the deceased was sufficient in the ordinary course of nature tocause death. In other words, what is necessary inthis regard is presence of evidence to reach thisconclusion, and not necessarily a statement to thateffect by medical witness himself. Be that as itmay, the fact remains that the medical evidence issufficient to show that the cumulative effect ofthe injuries on the deceased were sufficient in theordinary course of nature to cause death and,therefore, in my considered view, the findingrecorded by the learned trial Judge that theoffence under Section 304 (Clause I) has beencommitted, cannot be faulted with.

10. Mr. Dessai further urged that theplea of private defence though not taken by theAppellants during the trial, it does not preventthe Court to give them the benefit of privatedefence if on proper appraisal of the evidence andother relevant material on record the Courtconcludes that the circumstances in which theaccused found themselves at the relevant time gavethem the right to private defence. In my view,there cannot be any two opinions regarding thelegality of this proposition. Indeed, if suchcircumstances are apparent from the record or couldreasonably be gathered from preponderance of the

facts revealed by the record, then the defencewould be entitled to propagate the theory of rightof private defence though it is not taken at thestage of trial. However, it also cannot beoverlooked that in order to raise the theory ofprivate defence, there must be cogentcircumstantial evidence apparent from the record toprima facie hold that such right is available tothe accused in the present case. It was pointedout, and in fact much ado was made on behalf of theAppellants, of a stray sentence in the course ofcross-examination of P.W.2 to the effect that hereached the spot of incident of assault with ironrod at about 9.00 p.m.. In my considered view, itis not at all an admission that P.W.2 was carryingany weapon at that time. In fact, the so-calledadmission, in my considered view, cannot be read inisolation of other evidence on record. In otherwords, the entire other evidence is sufficient toshow that neither P.W.2 nor other witnesses or thedeceased were armed at the relevant time and place.It was urged on behalf of the Appellants that therewas grave and sudden provocation on the part of thewitnesses and the deceased to the accused personsas a result of which the incident took place andthe Appellants were forced to defend themselvesagainst the assault of the witnesses. In my considered view, the evidence on record neverindicates that there was any sudden or graveprovocation to accused persons from the deceased orthe witnesses so as to enable the accused to act inright of their private defence. In this regard itmust be noted that, as laid down by the SupremeCourt in the case of Sekar alias Raja Sekharan v.State by Inspector of Police, Tamu Nadu (2002 AIRSCW 4315), the plea of right of private defencecannot be based on surmises and speculations.While considering the right of private defence isavailable to the accused, it is not relevantwhether he may have a chance to inflict severe andmortal injury on the aggressor; in order to findwhether the right of private defence is availablean accused, the entire incident must be examinedwith care and viewed in its proper setting.Section 96 of the Indian Penal Code provides thatnothing is an offence which is done in the exerciseof the right of private defence. The Section doesnot define the expression "right of privatedefence". It merely indicates that nothing is anoffence which is done in the exercise of suchright. Whether in a particular set ofcircumstances a person acted in the exercise of theright of private defence, is a question of fact tobe determined on the facts and circumstances of

each case. No test in the abstract for determiningsuch a question can be laid down. In determiningthis question of fact, the Court must consider allthe surrounding circumstances. Therefore, keepingthis principle in view, on perusal of the entireset of facts revealed from the evidence on record,I am more than satisfied that there is no suchcircumstance or evidence revealed on record whichwould be sufficient for the Appellants to basetheir plea of right of private defence. It isalso revealed from the record that the witnessesand the deceased were unarmed at the relevant timeand were not at all an aggressor party. The factthat both the witnesses and the deceased wereproceeding to the house of P.W.2 for dinner atwhich time the house of accused No.1 was on the wayis established. It is also established that thewitnesses and the deceased stopped seeing theaccused persons in order to enable the accused No.2to ask the accused No.1 to return his money atwhich time the accused persons st arted assault onthem with weapons such as iron rod and iron rake.The fact that it is not established that whatweapon the accused No.1 was carrying or whether hewas carrying any weapon or not would not absolvehim of his liability contemplated in Section 34 ofthe Indian Penal Code in commission of the grave offence like under Section 304-I along with Section323 of the Indian Penal Code. Therefore, I have nodoubt whatsoever that the right of private defenceis not available in this case to the Appellantsand, therefore, they cannot be given the benefit ofthe provision of Section 96 of the Indian PenalCode.

11. Once we reach this conclusion, all otherobjections raised on behalf of the Appellantsregarding the prosecution evidence are put atrest. It was urged on behalf of the Appellantsthat the prosecution has suppressed the materialfacts on record because they have not explained theinjuries which were on the persons of the accusedwhich were caused at the time of the incident.However, it must be noted that evidently those werevery simple injuries and there is nothing on recordto show that such injuries were caused due toaggressive assault on the part of the witnesses orthe deceased. However, it is well establishedlegal proposition that the effect ofnon-explanation by the prosecution about theinjuries on the accuse persons would depend on thefacts and circumstances of each case. In thepresent case, we have already seen thatnon-explanation of the injuries on the persons of the accused by the prosecution would not, byitself, make available the right of private defenceto the Appellants and, therefore, it cannot be saidthat the prosecution is guilty of suppression oftruth from the Court.

12. For the reasons recorded above, Ihave no doubt whatsoever that the learned trialJudge has rightly concluded that the Appellants areguilty of the offences punishable under Sections304 (Clause I) and 323 read with Section 34 of theIndian Penal Code. I am also satisfied from therecord that the Appellants have no right of privatedefence available from the evidence on record and,as such, the reasoning adopted and the findingsrecorded by the learned Sessions Judge would brookno interference.

dismissed.

The Appellants are on bail and they shallsurrender to the concerned Police Station within 3(three) weeks from the date of this Order.

P.V. KAKADE,J.