NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 877 OF 2011

Mukhtyar Jabbar Tadvi ..Appellant

            Versus

State of Maharashtra ..Respondent

       J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

The  judgment dated 18.11.2009 passed by the High Court  of

Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No.

509 of 2007 is called in question in this appeal.   By the impugned

judgment, the High Court has confirmed the judgment dated

18.09.2007 passed by the Additional Sessions Judge, Jalgaon in

Sessions Case No. 150 of 2006 convicting the appellant herein for the

offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay a fine of

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Rs.5,000/­, and in  default to suffer rigorous imprisonment for six

months.

2. The case of the prosecution in brief is that the deceased Munir

and his wife Madina (PW8) were residing on the backside of the house

of the informant  Qutuboddin Sandu Tadvi (PW7); the informant is

none other than the father of the deceased; the informant and his wife

Shahnoorbi, another son Nawab and Nawab’s wife Afsana were staying

jointly in one house, which was in front of the house of the accused.

Both houses are near each other.  On 16.12.2005, the informant and

his wife Shahnoorbi were in the house.   His son Nawab and his wife

Afsana were not present. Deceased Munir came to the house of the

informant in the evening and informed him that he was going to see a

movie.  At about 11:00 or 11:15 p.m., the  informant heard shouts

from his  son Munir,  saying  “Oh mother,  save  me –  Mukhtyar  had

assaulted me by knife in my stomach”.  On hearing the shouts of

Munir, the informant and his wife woke up and opened the door of the

house.   Immediately, the injured  Munir entered the house of the

informant, at which point of time the accused Mukhtyar was standing

behind Munir, holding a blood­stained knife in his hand.  Madina, the

wife of Munir also reached the spot, by which time Munir fell down

with bleeding injuries on his stomach.  His intestines had come out of

the abdomen.  The injured became unconscious.   Accused Mukhtyar

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ran away from the spot. In his haste, he left his chappal near the door

of the house of the informant.   The informant went to Dr. Shantilal

Teli and requested him to come to the spot of the incident and

examine the victim, who accordingly came and after examination

declared him dead. Immediately thereafter, the first information came

to be lodged by the father of the deceased.

As  mentioned supra, both the courts convicted the accused

under Section 302 of the Indian Penal Code and sentenced him to life

imprisonment.

3. The defence does not dispute that it is a case of homicidal death.

However, it is argued on behalf of the accused that the circumstances

relied upon by the prosecution are not proved and hence the accused

may be given the benefit of doubt.

Per contra, Shri Nishant Ramakantrao Katneshwarkar, learned

counsel appearing on behalf  of  the State of  Maharashtra argued in

support of the impugned judgments.

4. The case rests on circumstantial evidence.   Neither the

informant nor the wife of the deceased had seen the assault by the

accused on the victim Munir.   It is by now well established that in

cases of such nature, all circumstances relied upon by the prosecution

must be established by cogent, succinct and reliable evidence, all the

proved circumstances must provide a complete chain, inasmuch as no

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link in the chain of circumstances should be missing, and such chain

of circumstances should unequivocally point to the guilt of the

accused and exclude any hypothesis consistent with his innocence.

5. In order to establish the guilt of the accused, the prosecution

has relied upon the following circumstances:

a) the  informant  (PW7) and the wife  of  the deceased  (PW8)

noticed the conduct of the victim and the accused immediately

after the incident.   They heard the cries of the victim and saw

him with bleeding injuries, at which point of time the accused

was  just  behind  the victim and was  holding a  blood­stained

knife;

b) the oral dying declaration of the deceased before his father;

c) the accused was seen in the accompany of the deceased

just prior to the incident;

d) recovery of the weapon at the instance of the accused;

e) abscondence of the accused; and

f) raising of false defence by the accused.

6. Both the Courts below, more particularly the trial Court, have

gone into the evidence meticulously and concluded that the

prosecution has proved all the circumstances relied upon by it, which

form a complete chain.  On going through the material on record, we

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are of the clear opinion that the Courts below have rightly concluded

so.

7. The deceased, while leaving his house in the evening on the date

of the incident, had informed his father that he was going to see a

movie. The incident happened after he returned from the movie.   The

victim/deceased immediately sustained injuries near his house, crying

out ‘Oh mother save me, Mukhtyar had assaulted me in the stomach

by  knife’.  After  hearing the  cries  of  his  son, the informant (PW7)

opened the door and saw his injured son.   He also saw the accused

with a blood­stained knife in  his hand. Immediately thereafter, the

accused ran  away and  the injured fell  down on  the  person of the

informant.  At that point of time, the deceased told his father that the

accused Mukhtyar had assaulted him with a knife.  The intestines had

also come out of the abdomen of the victim.  As mentioned supra, the

doctor who came to the spot at the request of the informant declared

the  victim dead.  The  accused  Mukhtyar  was the  neighbour  of the

victim.

8. Dr. Shantilal Teli (PW10) has also deposed before the Court that

he came to the spot at the request of  the father of  the victim and

declared the victim dead.  Exhibit 24 discloses that  Dr. Shantilal Teli

was  informed by the informant that his son had sustained injuries

due to assault by knife on the stomach, and that his neighbour had

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assaulted him.   The incident had occurred at about 11:30 p.m. and

the information was lodged before the police station promptly at 1:00

a.m., i.e., within one and a half hours of the incident.

9. The evidence of the informant is fully corroborated by the

evidence of his daughter­in­law Madina (PW8), the wife of the

deceased.  She has also deposed that on the date of the incident, her

husband (deceased) had told her that he was going to see a movie,

after which she had gone to sleep. At about 11:00 or 11:15 p.m., she

heard the shouts of her husband saying “Oh mother save me,

Mukhtyar had assaulted me by knife in my stomach”.  She also came

out and found the victim with injuries on the stomach and the

accused with a blood­stained knife near the door of her father­in­law.

At that point of  time, there was sufficient moonlight to identify the

accused.

10. The evidence of the aforementioned two witnesses, namely, PWs

7 and 8 is fully corroborated by the post mortem report, Exhibit 22.

The  doctor  has  noticed  an incised  wound  on the  upper  abdomen,

forming a cavity through which loops of the intestine were coming out.

There was also an incised wound on the right lower lobe of the liver

and blood had accumulated in the abdominal cavity.  The doctor has

opined that all the injuries were ante mortem in nature.

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11. As mentioned supra, prior to the arrival of the doctor at the spot

of the incident, the injured had stated before the informant and the

wife of the deceased that Mukhtyar had stabbed him with a knife and

also asked to be saved. It is an oral dying declaration by the deceased

just prior to  his death.  We  do  not find any reason to doubt the

evidence of PWs 7 and 8, who are natural witnesses on the scene of

the offence, inasmuch as one is the father of the victim and the other

is the wife of the victim, for whom it was natural to be at home at that

late hour.

12. In addition to the above, the evidence of PW2 Nisar Tadvi (Gate

Keeper of Cinema/Theatre) discloses that there was an English movie

at Suhas Talkies.  The accused and deceased Munir had been to the

theatre  for a second show,  and the same was over  by 10:15 p.m.,

inasmuch as the movie was only for one and half hours.   Both the

accused and the deceased left the cinema hall together.   PW2 knew

both the deceased and the accused. The evidence of PW2 corroborates

the evidence of PWs 7 and 8 to the effect that the deceased had gone

to see a movie before the occurrence of the incident, and that both the

accused and the deceased were seen together immediately prior to the

incident.

13. The panch witness Satish Gimar (PW1) went to the spot of the

incident along  with the police and found signs of a scuffle. One

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chappal of white colour was lying there.   There were stains of blood

over the said chappal.  He  learnt that the said chappal was of the

deceased. One muffler of white colour and another chappal of  blue

colour with blood stains were also lying there.  The said chappal was

of the left foot, and the same was of the accused.   There were blood

stains in the house of the deceased as well as on the wall, near where

the deceased was lying. Thus, the Courts below have rightly concluded

that the offence had taken place just outside the house of the

deceased and the deceased fell inside his house immediately after the

incident in a pool of blood.

14. PW4 Deelip Lahore is the black smith.  He has deposed that the

accused Mukhtyar had been to  him on 21.11.2005 with one spear

without a handle and had requested PW4 to sharpen the said spear

and also to fix a handle to it.  Accordingly, PW4 sharpened the weapon

and fixed a handle by accepting Rs.50/­ from the accused.  The said

witness is well acquainted with the accused and the deceased.   He

identified the spear which was seized by the police as the one which

the accused  had got sharpened from  him,  which  means that the

accused had made prior preparation with an intent to commit murder.

15. Immediately after the incident, the accused absconded from the

spot with the knife.   He was not found for a long time.   News was

published  and circulated to various  police stations  along  with the

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photograph of the  accused.  Ultimately, the  accused was found at

Nashik after a  long gap of  time.  This  factor  is  also proved by the

prosecution by producing the records as well as the evidence of the

police personnel.   Different police stations were employed to find the

absconding accused.  Ultimately the police  were  able to  arrest the

accused on 3.5.2006, though the incident had taken place on

16.12.2005.  The arrest memo is Exhibit 34. Thus, it is clear that the

accused absconded for more than seven months.

16. Based on the voluntary statement of the accused, the police and

panchas took the  accused to the  bushes  near the railway station

about 100 ft. from the spot of the incident, to recover the knife which

was used in the crime. The accused took out the knife from the bush

and produced the same.  The same was seized by the police.  The said

weapon was blood­stained and it was sent to the laboratory. The C.A.

Report, Exhibit 31, also pointed towards the guilt of the accused.

17. The accused took the false plea of alibi in his statement u/s 313

CrPC, which remained not proved. Having regard to the

aforementioned material on record, in our considered opinion, the trial

Court and the High Court were justified in convicting the accused by

concluding that all the circumstances are proved by the prosecution,

and form a complete chain.  Even on reconsidering the material, we do

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not find  any  reason  to interfere  with the judgments  and orders  of

conviction.  The appeal accordingly fails and is hereby dismissed.    

………………………………J. [N.V. RAMANA]

NEW DELHI;         ……………………………….J. OCTOBER 31, 2018.           [MOHAN M. SHANTANAGOUDAR]

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