Mahammad Kabir Sha vs State of Gujarat

R.P. Dholaria, J.—The appellant, by way of preferring present appeal, has challenged the judgment and order of conviction and sentence dated 03.06.2009 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Valsad (hereinafter referred to as the ''learned Judge'') in Sessions Case No. 2 of 2008, whereby the appellant-original accused has been held guilty of the offence punishable u/s 302 of the Indian Penal Code (hereinafter referred to as the ''IPC for short) and Section 324 of IPC read with Section 504 of IPC as well as Section 135 of Bombay Police Act (hereinafter referred to as the ''B.P. Act'' for short). The learned Judge awarded sentence of life imprisonment for the offence punishable u/s 302 and also imposed fine of Rs. 5,000/- and in default of payment of fine the appellant-original accused has been ordered to undergo 2 years'' Rigorous Imprisonment (hereinafter referred to as the ''R.I.'' for the sake of brevity). The learned Judge has also awarded sentence of 1 year R.I. for the offence punishable u/s 324 of IPC read with Section 504 of IPC as well as Section 135 of B.P. Act and also imposed fine of Rs. 1,000/-, and in default, the appellant-original accused has been ordered to undergo two months'' R.I. All the sentences have been ordered to run concurrently. Filtering out unnecessary details, brief facts of the case may be stated as under:

1.1. That the deceased Abdul Mamud Mohmad Jalil Sheikh was working as a broker in car dealing and having his office on the first floor of Paradise Hotel at Vapi in the name and style as Classic Auto Consulting. The accused came there for buying one car on bank loan. In July 2007, one Chevrolet Spark car belonging to one Naimbhai of Dhanori was sold away to the accused for a price of Rs. 65,000/-. Out of Rs. 65,000/-, the accused paid Rs. 45,000/- in cash and Rs. 20,000/- was outstanding. Thereafter, somehow, the accused could not manage for the bank loan. In the result, the finance company repossessed the aforesaid car. Thereafter, the accused was frequently demanding the aforesaid amount of Rs. 45,000/-. Some attempts were also made to settle the issue. However, on 2nd October 2007, the accused made a phone call to the deceased and informed him to come at Sanjan Railway Station. In response, the deceased and his wife Yasmin had gone to Sanjan Railway Station. On their arrival at station, the accused asked for payment of aforesaid amount of Rs. 45,000/-. The deceased promised to repay it on 21st October, 2007. At that time the accused got excited and started abusing the deceased and suddenly took out a knife from his waist and gave successive blows upon the deceased. At that time, the wife of the deceased tried to intervene and save the deceased and also shouted for help. The accused also assaulted the wife of the deceased and gave one knife blow on her left hand. At that time her husband fell down at the place of incident. The incident took place at Sanjan Railway Station and there were many people around but none came forward to rescue the deceased. Thereafter, the wife of the deceased went to Sanjan Police Station. However, she did not find any police personnel there and therefore she went to her home and informed her children. The wife of the deceased was also injured and therefore she had taken treatment at Government Hospital and lodged the complaint before the railway police station.

After recording the First Information Report the police carried out detailed investigation; recorded the statements of various witnesses; carried out various panchnamas including discovery of weapon used in the commission of the crime. The police had also obtained inquest panchnama as well as P.M. report. Various articles which were found at the place of incident were seized and sent for analysis to FSL. After conclusion of investigation, the charge-sheet was filed before the Court of concerned learned Magistrate. The case was thereafter committed for sessions trial. The charge was framed. The learned Judge, Valsad rendered his judgment of conviction and sentence dated 03.06.2009 in Sessions Case No. 2 of 2008 inter alia convicting the appellant herein and sentencing him to undergo life imprisonment and other sentences as narrated above with fine.

Being aggrieved by the aforesaid judgment and order of conviction, the appellant has preferred present appeal inter alia contending that the judgment and order of the learned Judge is contrary to the provisions of law and evidence on record; that the appellant is innocent and he has been wrongly implicated in the crime; that the learned Judge has not properly appreciated the facts, evidence and circumstances of the case and has failed to appreciate the evidence on record in its proper perspective; that the learned Judge failed to consider the unnatural conduct of the complainant and wrongly believed the evidence of the complainant; that the learned Judge failed to appreciate the evidence on record and wrongly recorded the conviction which is liable to be set aside.

The learned Additional Sessions Judge framed the charge against the present appellant vide Exh. 4 inter-alia alleging that the deceased Abdul Mamud had arranged for a car for the accused and the accused had given Rs. 45,000/- for the said transaction and Rs. 20,000/- was outstanding and it was agreed to pay the said amount through bank loan. However, as the loan was not sanctioned, the company had taken the possession of the car back. Consequently, the accused frequently demanded refund of Rs. 45,000/- which he paid to the deceased. At about 9:15 in the morning on 02.10.2007, the accused made a phone call to the deceased and intimated him to come to Sanjan Railway Station. Accordingly, as the complainant as well as victim both had to go to Vapi for some work, they both met the accused behind the canteen on platform No. 1 of Sanjan Railway Station. As the accused had demanded for refund of the amount in question, the deceased assured to repay it on 21.10.2007. Thereupon, the accused abused the deceased and picked up a knife from his waist and inflicted knife blows upon the deceased. The complainant thus tried to intervene and save her husband but the accused also assaulted her with knife and fell her down and inflicted successive knife blows on the body of the deceased and thereby committed the murder of the deceased. Thus, the charge for the commission of offence u/s 302, 324, 504 of IPC as well as u/s 135 of B.P. Act came to be framed against the accused.

In order to prove the aforesaid charge against the present appellant, the prosecution has examined following witnesses:

The prosecution has also produced the following documentary evidence:

Heard Mr. Gajendra P. Baghel, learned advocate for the appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the respondent-State.

Mr. Baghel, learned advocate for the appellant has argued that the complainant is the wife of the deceased and she is not an independent witness. The counsel also argued that the conduct of the complainant is not natural as she left the place of incident thrice when the dead body of her husband was lying at the scene of occurrence. The counsel also argued that though the prosecution had examined Arshad as an eyewitness, in the FIR, his name has not been mentioned as an eyewitness and therefore he cannot be said to be a natural witness and his testimony should be discarded. The counsel also argued that as the accused was demanding refund of the amount of Rs. 45,000/- which he had paid to the deceased as the price of the car, therefore, he has been wrongly implicated in the crime.

Per contra, Shri Jani, learned Additional Public Prosecutor has argued that this is a clear case of preplanned murder. The accused who was having lethal weapon like knife with him had made a phone call and called the deceased at the place of incident is indicative of an intention to commit the murder of the deceased if he did not refund the money and within a spur of moment the accused had caused as many as 16 successive injuries upon almost entire body of the deceased. The learned APP further argued that the evidence of eyewitnesses-wife of the deceased as well as Arshad are quite natural and their presence at the relevant time is also corroborated by other evidence and therefore this Court should rely upon the evidence of these eyewitnesses. He also argued that the discovery of the weapon was made at the instance of the accused and proved in accordance with law of course no blood was found on the weapon but the ownership of the weapon is established which corroborates the eyewitnesses accounts. The learned APP also argued that the appeal is merit-less and therefore the appeal deserves to be dismissed.

In order to decide the present appeal in proper perspective, it is necessary to narrate the brief evidence on record.

In order to prove that the death of the deceased was homicidal, the prosecution has examined Dr. Manoj kumar Kapileshwarprasad Yadav as P.W. 1 vide Exh. 10. This witness had carried out the autopsy of the deceased. He has deposed that while he was on duty as a Medical Officer in the Primary Health Centre at Bhilad, one dead body of Abdul Mamud was received for autopsy on 02.10.2007 at 4:00 O''clock through the railway police, Valsad. The witness along with panel Doctor Prabhat Ranjan had carried out the postmortem. The Doctor has admitted that the injuries are possible with the sharp edge knife. He produced the postmortem report at Exh. 11. In the postmortem report he had noticed following injuries.

impotnt liner abramor over Rt. Shoulder obliquely placed 4cm x 0.25cm brown in colour.

CLW of 7cm x 3cm up to bone cruciale shaped taloring just below end calture of effect both joint obliquely placed.

Just 1 cm below the 2nd injury obliquely placed of size 6x2 cm subcutaneous deep at hand.

Lacerated wound of 6cm x 1 cm skin deep on sdorsal of Lt hand below Lcm below the wrist.

2cm x 1/2 cm incised injury on Rt thigh latually 15 cm below the waist line transversely placed

7 cm X 3 cm skin deep placed 7 cm below and latnal to the injury No. 5 from injury 6th the finger Insunate and came out from 5th injury.

3cm x 2cm c-depth 5 cm at Lt. thigh at metial aspect 1/cm below the waist line cruciate shaped.

CLW of semicircular size 7 cm length 1 cm breadth 2 cm deep on front of thigh, 12 cm above the Lt knee joint.

7cm x 3cm and subcutaneous deep at lateral aspect of Lt thigh 12 cm above the Lt knee joint.

3cm x 1cm skin deep in front of Lt thigh 7 cm below the waist line.

7cm x 3cm horizontally slightly obliquely on posterior aspect of thigh just 7 cm posterior to the injury no. 9

6cm x 15cm Subcutaneous deep at Lt thigh posterior aspect just 1 cm medial to the injury No. 11.

12cm x 7cm just below the Lt nipple area at Lt hypochondria region incised injury from which intestinal part c mesentry came out from abdominal cavity.

Incised injury cruciate type 8 cm in length and 2 cm in breadth wound injury at Rt hypochondria region deep to abdominal cavity.

Cut injury of Lt pinna 1 cm length.

pourchment of skin at neck anteriorly on opening blood come out black colour, broken of the hyoid bone.

11.1. The Doctor also opined that the aforesaid injuries were ante-mortem. The Doctor has also opined that the aforesaid injuries could have been caused by muddamal article No. 15 and the injuries were sufficient for causing death. Ultimately, the panel has opined that the cause of death is "hemorrhagic shock due to multiple stab injury."

11.2. Nothing worthy has come out from the cross-examination of this witness.

The opinion rendered by the Doctor in light of the aforesaid 16 injuries over the body of deceased clearly indicative of homicidal death of deceased as opined by Dr. Manojkumar K. Yadav who had performed the postmortem of the deceased. Consequently, the death of the deceased as homicidal is established.

It is the case of the prosecution that the appellant accused committed murder of deceased by inflicting successive knife blows upon the deceased. To prove the aforesaid accusation, it is necessary to refer to the evidence of the following eye-witnesses.

P.W. 2-Yasmin Abdul mamud Mahammad Jalil Shaikh was examined at Exh. 14. In her examination-in-chief she has deposed that she had married with deceased in 1980 and her husband was working as a broker in car dealing. Mahammad Kabir Sha (accused) used to come to her husband since last 6 years. Therefore, he was known to the family. Her husband was a middle man in a transaction for purchase of Chevrolet Spark car from one Naimbhai of Dhanori. The price of car was fixed at Rs. 65,000/- out of which the accused paid Rs. 45,000/- to the said Naimbhai and Rs. 20,000/- was outstanding. The accused failed to make the payment of loan amount. In the result, the finance company took the possession of the aforesaid car from the accused. Thereafter, the accused was frequently demanding refund of the aforesaid amount of Rs. 45,000/-from the deceased. The accused was threatening the deceased for return of aforesaid amount otherwise he would finish him. On 2nd October 2007 at about 9 O''clock in the morning her husband received a phone call from the accused to come to Sanjan railway station. On receiving said call, the complainant along with deceased went to the Sanjan Railway Station. When they reached at the Railway Station, the accused started shouting upon the deceased and demanded the money. She deposed that her husband assured to pay the aforesaid amount on 21.10.2007. Even though the accused became angry and started abusing the deceased and suddenly took out a knife from his waist and gave successive blows upon the deceased. At that time, she tried to rescue her husband. In the result, the accused also assaulted her and gave one knife blow on the left hand of the complainant and she fell down. She shouted for help. Though many peoples were present in the railway station none came to rescue them. Thereafter, she went to Police Station. However, she did not find any police personnel at the police station. She also deposed that her husband was died on the spot. The complainant had identified muddamal article No. 15-knife as well as accused before the Court. She had also identified the clothes worn by her husband as well as her own clothes before the Court.

14.1. In the cross-examination, she admitted that she went to inform her children and also to the police station for help. Surprisingly, I in the cross-examination it is also established that while the accused was giving successive knife blows upon the husband of the complainant, she shouted for help but none came to save them. In the result, she went to the police station. At that time also the assault was going on. She also admitted that when she returned along with her son and daughter, so many persons were gathered at the place of incident and she narrated the details of the incident to them but she did not know who were they. She also admitted that after the incident she went to inform her children and also for her own medical treatment at Government Hospital where she had spent nearly half an hour. She admitted that she had lodged the FIR on the day of incident at 2:15 in the noon before the railway police station. Thereafter also she stayed about one and half hours at the railway station. She also deposed that she did not know whose blood was there on her clothes. Regarding identification of knife, however, she gave the details of knife having yellow colour sign on it and having wooden handle.

P.W. 8-Arshad Majid Sheikh was examined at Exh. 26. He deposed that he is resident of Dhanoli and he is carrying on business of grass. He knew Mahammad Kabir Sha as well as deceased Abdul Mamud as he is doing business at Bhilad. On the day of incident, he came to Sanjan for selling grass. He was standing under a railway bridge at Sanjan railway station nearby a tea stall, at that time, the deceased came along with his wife and he also noticed presence of accused nearby the tea stall. Initially, they were talking and thereafter quarrel took place between them. During the quarrel, the accused had taken out a knife and inflicted successive knife blows upon the deceased on his abdomen as well as various parts of his body. The wife of the deceased was standing nearby him and she was shouting for help. At that time he desired to save them but as the assailant had a knife with him, he did not do so. At that time many peoples were there at the place of incident. Thereafter the accused ran away with his knife. The wife of the deceased also sustained injuries. He deposed that from the public none came to rescue the deceased. Thereafter, the wife of the deceased went to the police station and after some time she came along with her children. He had also identified the knife as well as accused before the Court. His statement was recorded on the day of incident.

15.1. In the cross-examination he admitted that on the day of incident he was at the railway station from 9:30 a.m. to 11:00 a.m. He also admitted that at the time of recording of his statement the complainant Yasminbanu as well as Abdul Rauf were present. He also deposed that he had gone to railway station for searching labourers and he was waiting for the train after obtaining tickets. He stayed there up to 11:00 O''clock because he could not find his labour Manubhai.

P.W. 5-Abdul Rab Abdul Mamud alias Mohmad Topi was examined at Exh. 20. He deposed that the name of his father is Abdul Mamud alias Mohmad Topi Sheikh. The complainant Yasmin is his mother. He deposed that on 2nd October 2007, at about 9:30 hours, his parents left the resident for Vapi. Within 15 minutes he heard some noise. He noticed that his mother was screaming. He and his sister thereupon came down and his mother informed them regarding the incident. He further deposed that his mother told him that accused Mohammad Kabir Sha killed the deceased (her husband) for Rs. 45,000/-. Thereafter they went to the railway station and saw the body of his father lying behind the canteen in a pool of blood and he noticed several injuries upon the body of his father. He requested the Station Master to inform the police. His mother also received injury on her left hand. She was taken to the hospital. He had shown the place of incident, while drawing panchnama of scene of occurrence.

16.1. In the cross-examination of this witness, nothing worthy has come out.

P.W. 9-Maheshbhai Dayaljibhai Patel was examined at Exh. 27. He deposed that since last 20 years he is serving in Fire Brigade at Sarigam. He deposed that on 06.10.2007, Police Inspector Shri Pathan called him at the office of Sarigam Fire Brigade. He was called for searching out a knife which was used in the commission of offence of murder and thrown in the Sanjan Creek. He further deposed that the person who had committed the murder was present. He did not know his name but he knew him by face and today he is present in the Court. He was accompanied by other staff members of Fire Brigade and railway police. He also deposed that they had taken a search for about two hours in water. He further deposed that during the search the Constable Chandubhai searched out a knife having wooden handle and except that nothing else has been found out. He identified the muddamal article No. 15-a knife before the Court.

17.1. In his cross-examination, the witness deposed that the Fire Brigade department at Sarigam had only one vehicle (truck) and for that they used to make entry in logbook. He also deposed that he also made entry in the logbook. Police Inspector Shri Pathan had given him a Yadi in writing in which he was informed that help is needed to search out a weapon which has been thrown in Sanjan Creek after commission of offence of murder.

17.2. In his cross-examination he deposed that the creek was 300 feet wide. The accused had shown the place where he had thrown the knife and not by Police Inspector Pathan. They had taken out search for about two hours with police personnel''s. Except knife nothing else has been found out. The depth of water level of the creek was about three feet. He did not know the kind of knife from beginning. He also did not know the description of the knife. The knife was not searched out by the Fire Brigade personnel''s. He admitted that when the knife was searched out by Chandubhai he was away from said Chandubhai. The witness denied the suggestion by the defence that it was not true that the knife had not been searched out in his presence.

P.W. 10-Chandubhai Bhalabhai was examined at Exh. 28. He deposed that on 02.10.2007 he was working as A.S.I. in the Railway Police Station, Valsad and he received a telephonic vardhi that one Mohmad Kabir Sha ran away after committing murder of one Abdul Mamud behind the tea stall at platform No. 1 of Sanjan railway station. After having received such massage he made entry and rushed to the place of incident along with senior Police Sub Inspector at where the senior PSI had taken the complaint of complainant.

He also deposed that on 4th October 2007 the accused was apprehended and he was remanded to police custody. During the period of remand, on 06.10.2007, as the accused informed that he had thrown the weapon used in the commission of offence as well as the clothes worn by him in Bakeria creek, they along with panchas as well as swimmers went there and carried out an extensive search of weapon and clothes. He was also a member of searching team and in his presence the muddamal article No. 15 was searched out at the instance of accused and he also identified the aforesaid muddamal before the Court.

18.1. In the cross-examination, the witness admitted that the aforesaid vardhi-information was given at about 10:00 O''clock by the Sanjan Out Post and he made entry in the station diary. In his cross-examination it is also established that the exact place of the Bakeria creek was shown by the accused and they reached there at about 4:00 O''clock and stayed there for about 3 hours. He deposed that in all 8 to 10 persons were there in the squad which contained four persons from Fire Brigade, members of police as well as Panchas.

Mustakkhan Habibkhan Pathan-P.W. 11 was examined at Exh. 29. He deposed that on 02.10.2007 he was serving as a Senior Police Sub Inspector at Valsad Railway Police Station. He received information from Sanjan Out Post through Head Constable Bhaskarbhai with regard to the incident that one person had been murdered at platform No. 1 at Sanjan railway station. Upon receipt of the aforesaid information he went to Sanjan railway station and he reached there at about 11:50 O''clock where he found one dead body at platform no. 1 behind the canteen and so many persons were gathered at the place of incident. At the place of incident, one lady i.e. Yasmin, wife of the deceased was present and she lodged her complaint which he produced at Exh. 15. Thereafter, he sent the First Information Report for registration before the Valsad Railway Police Station and carried out the inquest panchnama at the place of incident and thereafter the dead body was sent for postmortem examination. The panchnama of scene of offence is also carried out in presence of two panchas. At the scene of offence he found a pair of chappals as well as shoes and shocks which were blood stained. They were recovered and they were identified. The chappals were belonging to the complainant and shoes and shocks were belonging to the deceased. They were sealed and sent for FSL examination. Thereafter, he recorded the statements of witnesses; obtained P.M. report as well as clothes of the deceased which were sent for analysis to FSL. He also deposed that on 4th October, 2007, the accused was apprehended from village Dehli by carrying out necessary panchnama in presence of panchas. The arrest panchnama was produced at Exh. 31. During the interrogation with accused, accused shown willingness to find out the weapon used for the commission of the offence as well as clothes which he worn at the time of incident. Therefore he managed for a team of swimmers as well as Fire Brigade personnel''s for searching out the weapon used in the commission of offence as well as clothes of the accused from the place of Bakeria creek. He along with the team went at the place of Bakeria creek which was shown by the accused. The Police Constable Chandubhai, after extensive search, found out a knife from the flowing water of the creek. A detailed panchnama was carried out in presence of the panchas as well as fire brigade personnel''s and swimmers, which he produced at Exh. 32. The weapon searched was seized as article No. 15. He also identified the aforesaid article No. 15 before the Court.

19.1. In the cross-examination he admitted that he did not mention any time of recording the First Information Report. In the cross-examination he admitted that he had inquired as to whether any other person is involved in the incident or not. But in his investigation, except present accused, none else was found to be involved. He admitted that in the FIR the complainant had not shown any person as an eyewitness to the incident. The defence has established that during the course of recording statement of Arshad Majid Sheikh it was revealed that he was an eyewitness to the incident and his statement was recorded on the day of incident itself. It is also established that the said Arshad came at Sanjan railway station for boarding the Surat-Bhilad shuttle. He admitted that soon after the incident complainant Yasmin visited Sanjan Out Post. He also admitted that in the telephone vardhi the name of the assailant was not revealed. He admitted that he had recorded the statements of Home Guard personnel''s who were present when the Yasmin visited the said police station.

In light of the aforesaid evidence on record as well as rival submissions made, we have scrutinized the evidence on record. In our scrutiny, the genesis of the incident is clearly established as there was subsisting dispute regarding refund of Rs. 45,000/-paid by the accused for the price of car. The accused called the deceased at the place of incident by making phone call. On arrival of deceased along with his wife at the place of incident, the accused started quarreling and demanded refund of the amount and suddenly picked out a knife from his waist and gave successive blows on almost all vital parts of the body of the deceased.

The accused gave successive knife blows upon the deceased is clearly established from the accounts of the eyewitnesses-Yasmin as well as Arshad. Neither any contradiction nor any improvements so far as the version of eyewitness account is established. On the contrary, in the cross-examination of complainant, who is an eyewitness, it is established that the accused started giving knife blows upon the deceased and she shouted for help but none came forward to rescue them. Similar account is also forthcoming from the evidence of another eyewitness Arshad. In the cross-examination of said witness the defence has also established his presence up to 11:00 O''clock at the place of incident.

The conduct of complainant Yasminbanu is criticized by the learned counsel for the appellant-as unnatural by contending that though the dead body of the husband of the complainant was lying at the place of incident she left the place of incident.

To rest the said contention, we have noticed that the evidence on the record clearly discloses that the incident occurred at about 9:30 in the morning and the complainant was screaming and shouting for help. At that time, even though so many persons were present at the place of incident, none came forward to save her as well as her deceased husband. The injuries were so severe and serious that the deceased might have succumbed to the injuries within few moments. Consequently, there is no reason to disbelieve or discard the evidence which has come on record during the course of cross-examination of Yasminbanu herself that as she did not find any help from the people who were present at the place of incident, she had to leave the place of incident to go to the police station for seeking help and informing the police about the incident and as she could not find any police personnel she had to go to her home to inform her children and thirdly she had to leave the place of incident for her own treatment from the Government Hospital after the death of her husband.

In our opinion, the aforesaid three visits of Yasminbanu leaving the dead body lying at the place of incident appear to be quite natural. In our scrutiny of evidence, as none of the person came forward to help the complainant and her deceased husband, the complainant was compelled to visit police station as well as her family members. The complainant was compelled to go to the hospital for her own treatment as she herself had received injuries during the scuffle. We have noticed that the presence of complainant at the place of incidence up to 4:00 p.m. is established by the defence itself. Thus, the evidence on record clearly establishes that the dead body was not taken to the hospital as the deceased was succumbed to the injuries on the spot and the inquest panchnama was carried out at the place of incident. The FIR was also recorded at the place of incident itself. Under the circumstances, we do not find any substance in the submission of the learned advocate for the appellant.

24.1. The counsel for the appellant contended that the accused has been wrongly implicated as he was demanding for refund of Rs. 45,000/- from the deceased. This contention is not tenable for the simple logic, as no person, for such a small amount would allow to escape the real culprit and implicate wrong person. The complicity of the accused is also established through the testimony of independent witnesses as well as discovery of murder weapon at his instance. Even otherwise also his argument is not at all tenable in view of the overwhelming aforesaid direct evidence which clearly established the complicity of present accused.

Similar is the evidence of another eyewitness Arshad. The defence itself has established his presence at the place of incident at the time of commission of offence. Even otherwise also it reveals from his evidence that he had to come to railway station in search of his labourer and he was waiting for his labourer to come. In the meantime he witnessed the aforesaid unforeseen incident. In the result, we do not find any improvement or contradiction so far as the fact of his viewing the incident is concerned and we find the testimony of this witness trustworthy.

Over and above the aforesaid direct evidence on record, we have also noticed corroborative piece of evidence in the nature of evidence given by the son of the deceased i.e. Abdul Rab Abdul Mamud alias Mohmad Topi-P.W. 5. The incriminating muddamal article such as ''chappals'' of complainant recovered at the place of incident clearly establishes the presence of complainant at the place of incident.

The prosecution also brought on record the discovery of knife which was used in the commission of offence at the instance of accused. Of course, one of the panchas of the discovery panchnama had turned hostile. However, he has admitted his signature on the said panchnama. The other personnel''s who were accompanied from Fire Brigade and swimmers have supported discovery of knife at the instance of accused. We may note at this stage that the recitals of the panchnama were proved by the investigating officer.

In the case of Ramesh Harijan Vs. State of U.P., , the Hon''ble Apex Court has observed that it would be open for the prosecution to rely on the contents of the Panchnama when the Panchas have admitted their signatures on the panchnama and recitals of the panchnama were proved through the investigating officer.

It also reveals that almost entire material investigation was carried out within 24 hours from the time of occurrence of the incident.

From perusal of the aforesaid evidence of complainant as well as another eyewitness, it can be seen that their evidence regarding motive of the incident, genesis of the incident and the accused Mahammad Kabir Sha inflicted successive knife blow on almost all vital part of the body of deceased is coherent, consistent and identical. In our scrutiny of the aforesaid evidence of the eyewitnesses, we find it trustworthy and reliable for recording the conviction of the accused Mahammad Kabir Sha.

Over and above the aforesaid direct evidence in the nature of eyewitnesses, we have also appreciated the other corroborative evidence in the nature of various panchnamas, discovery and recovery of muddamal articles connecting the guilt of the accused. On the strength of the aforesaid evidence also we are convinced that the accused Mahammad Kabir Sha had inflicted successive knife blows upon the deceased due to which he succumbed to said injury.

We have also perused the judgment of the learned Additional Sessions Judge who has properly dealt with all the contentions and issues involved in the present case in a proper perspective and rightly recorded the finding, holding that the appellant had committed the murder of deceased.

In view of the aforesaid clear position of evidence on record this is a pure and simple case wherein it is/proved that there was a subsisting dispute of refund of Rs. 45,000/- between the accused Mahammad Kabir Sha and deceased. The evidence on record does not indicate any sort of sudden provocation from the side of the deceased. The injuries were very severe due to which the deceased died within a few moments that itself would satisfy all the requirement of commission of offence of murder as defined u/s 300 of the Indian Penal Code.

In above facts and circumstances of the case, the case of the accused neither falls in any exception to Section 300 of the Indian Penal Code nor falls within the purview of Section 304 of the Indian Penal Code.

In our overall re-appreciation of evidence, we are satisfied that the learned Additional Sessions Judge has not committed any error in convicting the appellant accused and awarding the sentence of life imprisonment for the offence punishable u/s 302 of the Indian Penal Code for which he has been charged. The appeal of the appellant is totally devoid of any merits and deserves to be dismissed. The judgment and order of conviction and sentence dated 03.06.2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Valsad in Sessions Case No. 2 of 2008 is confirmed. The appeal is dismissed.

R & P be sent to the trial Court.