MOHAMMED JUNED RASHID PATHAN vs STATE OF GUJARAT

Aggrieved by the judgement and order dated 13.06.2012 by which the appellant - original accused no. 1 has been convicted for the offences punishable under sections 302, 324, 201 and 379 of the Indian Penal Code and sentenced to undergo life imprisonment thereunder, this appeal is preferred.

The charge framed by the learned Sessions Judge is at Ex. 2. It is the case of the prosecution that on 07.03.2011, between 3 and 3.45 early in the morning, Bharatbhai - the complainant heard some noise while he was sleeping. When he got up, he saw the accused who was trying to steal a bicycle. On being challenged, the accused tried to flee. Ultimately, the complainant along with several others of the neighbourhood caught the accused. While the deceased Bhikhubhai along with the neighbours were taking the accused to the Navsari town police station, the accused Mohammad Junaid attacked the deceased Bhikhubhai, Tarunbhai, Chetanbhai, Maheshbhai, Girishbhai and Chhaganbhai with a knife he was holding in his hands. The accused stabbed Bhikhubhai on the chest. As a result of the injuries so sustained by Bhikhubhai, he succumbed to the same. Tarunbhai, Chetanbhai, Maheshbhai, Girishbhai and Chhaganbhai sustained injuries as a result of being so attacked by the accused Mohammad Junaid. The accused was therefore charged for offences under sections 302, 323 and 326 of the Indian Penal Code. For the theft of the bicycle which belonged to Chhaganbhai Dahyabhai, the accused was charged under section 379 of the Indian Penal Code. Section 201 was also registered against the accused inasmuch as the knife that was used to carry out the act was thrown away.

Bharatbhai Thakorbhai Patel lodged the First Information Report at Ex. 25. He was examined as P.W. 8 at Ex. 24. In his testimony which he confirms with the narrative in the complaint so lodged, he states that on the night of 06.03.2011 and early morning of 07.03.2011, while he was sleeping at his house, he heard some noises on the ground floor. He came down to wake up his brother Navin. He together with his brother Navin and other persons of the neighbourhood namely Bhikhubhai, Tarunbhai, Chhaganbhai, Girishbhai and Ketanbhai caught hold of a person who was trying to remove a bicycle that was belonging to one Chhaganbhai. All the persons of the neighbourhood caught hold of the accused who identified himself to be one Mohammad Junaid. While the accused was in their custody and they were proceeding to the Navsari police station, near the Masjid, the accused brought out a knife and started attacking the persons under whose custody he was namely Tarunbhai, Chetanbhai, Bhikhubhai and Girishbhai. Bhikhubhai sustained injuries on being so attacked by the knife at the hands of the accused. Injuries were also sustained by the other persons. The accused fled the scene. Bhikhubhai and other injured were carried to the hospital. Since Bhikhubhai had sustained serious injuries he was taken to Shivani Surgical hospital whereas the others were taken to the Civil hospital. Bhikhubhai succumbed to the injuries. 3.1 The complainant was cross examined. He denied a suggestion that was put to him that when the people of the neighbourhood shouted, more than 50 people had gathered. He stated that about 15 people had gathered and that nobody found the crowd responsible for carrying out the attack.

The prosecution has examined P.W. 11 - Tarunbai Bhikhubhai Patel at Ex. 30 who also had sustained injuries in the melee that ensued after the attack at the hands of the accused. According to this witness, on 07.03.2011, in the early hours of the morning, he was woken up and went out with his father Bhikhubhai. About 10 to 15 people had gathered outside. All of them ran behind the thief. They caught hold of him. While they were taking him to the police station, the thief brought out a knife and attacked this witness'' father. Chhaganbhai, Girishbhai and Ketanbhai had also sustained injuries as a result of the knife wielded by the accused. His father Bhikhubhai had sustained the injuries on the left side of the chest whereas Chetanbhai and others had sustained injuries on the stomach. His father was carried by Navinbhai to the Civil hospital where he succumbed to the injuries so sustained. The thief''s name was Mohammad Junaid whom he identified in the court. This witness, in his cross examination, makes the same statement as made by the complainant in his cross examination.

Girishbhai Manubhai Bhaskar, P.W. 12 and Chhaganbhai Dahyabhai Champaneri, P.W. 14 are examined at Exs. 31 and 33 respectively. They have also brought out the same version as narrated by the complainant and Tarunbhai - the son of Bhikhubhai. Both of them in their testimonies have stated that Junaid, the accused when accosted and caught, brought out a knife and attacked Bharatbhai and Tarunbhai and that Bhikhubhai who was attacked with a knife and sustained injuries on the left side of the chest succumbed to the same.

Dr. Ajaykumar Jankiprasad Sharma has been examined as P.W. 17 at Ex. 47. He had treated the injured eye witnesses Tarunbhai, Chhaganbhai, Girishbhai and Chetanbhai. The injury certificates have been produced at Exs. 48 and 51. On reading of the medical certificates so produced, it is evident that all these injured witnesses sustained injuries in the nature of stab wounds on the lower part of the body. The doctor in his examination-in-chief opined that all these injuries were caused by a single and the same weapon. He further clarified that all of them had sustained these stab wounds.

P.W. 22 at Ex. 58 was Dr. Randhirkumar Nirala. He was working as a Medical Officer at Navsari Civil hospital. He carried out the postmortem of body of deceased Bhikhubhai. The postmortem report is produced at Ex. 60. The nature of injuries that the deceased Bhikhubhai sustained at the hands of the accused were as under: "(1) Stab wound pver ;eft cjest refer s[ace 4th intercostal space area - 5 cm long x 1 cm wide & deep to Lung &

(2) In internal injury Reptox of lung & reptrox of Ascending Arota.

(3) Collection of 2 bottle of blood in left paral space."

7.1 In the opinion of the doctor, the cause of death was hemorrhagic shock due to stab wound over the chest due to injury of the left lung and ascending aorta.

The prosecution case therefore for implicating the accused under section 302 of the Indian Penal Code rests on the testimony of the complainant who was an eye witness and so were the other eye witnesses namely Tarunbhai - P.W. 11, Girishbhai - P.W. 12, Chhaganbhai - P.W. 14. At the outset, it was the case of the prosecution on the basis of the First Information Report lodged by P.W. 8 - Bharatbhai that Junaid - the accused when caught while stealing a bicycle tried to flee. When the complainant together with these injured witnesses took him into custody and were proceeding towards Navsari town police station, the accused took out a knife and attacked all of them. Tarunbhai, Girishbhai and Chhaganbhai sustained injuries in the stomach as a result of the stab wounds from the knife wielding accused. P.W. 17, Dr. Ajaykumar''s testimony that the medical certificates produced at Exs. 48 to 51 support the case of the prosecution. The said injuries were at the hands of the knife wielded by the accused.

All the three witnesses together with the complainant have been consistent in their testimonies and they have confirmed the narrative as it is stated in the complaint that when Junaid tried to escape from their custody while being taken to Navsari police station he took out a knife and carried out the act in question. Injured eye witnesses have supported the prosecution case. Bhikhubhai was stabbed on his chest and the doctor who carried out the postmortem states in his testimony which is also borne out from the postmortem report at Ex. 56 that Bhikhubhai was stabbed on his vital part of the body i.e. the chest. He succumbed to his injuries as a result of stab wound on the chest. The act of attacking Bhikhubhai with a knife and causing injuries on the vital part of the body which resulted in his death is confirmed by as many as four witnesses to the incident and supported by the medical evidence and the same lend support to the prosecution story that the accused was rightly charged for having committed offence punishable under section 302 of the Indian Penal Code. Further even the injuries that the other witnesses have sustained which is also supported by the medical evidence of Dr. Ajaykumar support the prosecution case that the charge for the offence under section 324 has to be sustained. Consequentially, there can be no fault found with the judgement and order rendered by the Sessions Judge at Navsari.

Accordingly, the appeal is hereby dismissed. The judgement and order dated 13.06.2012 passed by the Sessions Judge, Navsari in Sessions Case No. 34 of 2011 is confirmed. R & P to be transferred to the trial court forthwith.