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TMI Blog1972 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... arted in the town of Bhiwandi it spread to the neighbouring towns and villages. In the Thakurpada of Tansa village there lived one Abdul Khalil aged about 55 years along with his family members. This was the only Muslim family in Thakurpada. He and his wife Sahebi had ten children. Their names and ages in the order of seniority are : Shaukat (son) about 23 years, Sbamsuddin (son, who has appeared as P.W. 1) about 19 years, Kasam (son) about 17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam (son) about 11, Fatma (daughter) about 9, Hamshera (daughter) about 4, Salim (son) about 3 and Nazar (son about 4 or 5 months). Abdul Khalil, Shaukat and Shamsuddin, all three used to work in Navigation Company at Mohilla about 2 1/2 miles away from Tansa. Abdul Khalil was a truck driver and Shaukat, a clearner. As communal trouble spread to other places in the district, some danger to the Muslim families in Tansa village was also apprehended. In that village there were perhaps about 5 or 6 Muslim families. On the outskirts of this village there is the great Tansa lake which supplies water to Bombay city. Mr. Khatkhate, a Hydraulic Engineer is in charge of that lake. He has an office on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down as a result of the injury caused by the arrow about two or three paces away from his father. He was also assaulted by some members of the mob. On seeing her husband and her eldest son being thus assaulted Sahebi raised alarm but she was also attacked by the appellant who shot the third arrow at her. This struck her on the left side above the waist with the result that she also fell down with her infant child in her arms. She died instantaneously. Some of the other members of Khalil's family hid themselves behind the trees or Karvandi bushes round about the spot whereas some of them were still running away to save themselves Jubeda , the young daughter on seeing her father, mother and brother being shot at with arrows, shouted. This apparently annoyed the appellant who picked up a stone and flung it at her, thereby causing an injury on hear head Budhya, one of the accused, also struck a blow at her with an iron bar thereby injuring her right hand. Shamsuddin who was hiding himself behind a tree was noticed by some of the accused persons. Budhya accused ran towards him and assaulted him with the butt end of an axe. Some of the other accused persons also assaulted him with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtem examination. After proceeding to Tansa village the Sub-Inspector arrested the appellant along with eight other persons at about 8 p.m. They were accused nos. 1 to 9 in the trial court. The following morning, that is, May 15, 1970 the P.S.I. recorded the statements of Kasam and Jubeda. Hanif was also called but as he was crying all the time he was not able to make any statement. On May 16, 1970 the appellant made a statement leading to the recovery of a bow and four arrows from a spot in Karvandi shrubs about 85 paces away from his house. The recovered bow and four arrows were exhibited as 11, 11a, 12a, 12c and 12d. These articles were hidden under dry leaves. One of the arrows had blood stains on it but on examination the stains being disintegrated it could not be said if they were of human blood. The statement of Hanif was recorded by Vishwanath, Police Inspector in July, 1970 after he had taken over the investigation. 3. The Additional Sessions Judge, Thana, who tried the case relied on the evidence of Kasam (P.W. 2), Jubeda (P.W. 3) and Hanif (P.W. 5). These witnesses, according to the trial court, had not displayed any tendency to introduce falsehood in their statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... murder reference after taking into consideration the additional evidence received under Section 428, Cr. P.C. The High Court, after appraising the evidence on the record did not see any cogent reason for not accepting the evidence of the three eye witnesses believed by the trial court. That court was also unable to find any reason why these witnesses should falsely implicate the accused persons. From the nature of the occurrence and its surrounding circumstances, in its opinion, there could not be any independent eye witnesses present and in a position to depose about the complicity of the accused persons. The locality where the occurrence had taken place being uninhabited and the only persons present being the assailants and their victims it was not possible normally to expect any independent eye witness. The recovery of a bow and four arrows received at the instance of the appellant were also held to support the prosecution version as these arrows were similar to the one recovered from the scene of the occurrence. The High Court further took into consideration the circumstance that the bow and four arrows were found concealed in a place where they are normally not kept. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t we are unable to find anything in the doctor's testimony which would show that the injuries sustained by the three dead persons could not be caused by the kind of arrows recovered from the scene of occurrence arid from near the appellant's house at his instance. The real argument is founded on the opinion of P.W. 12 where he states that the injuries sustained by Abdul Khalil and injuries sustained by Sahebi could be caused by an arrow with or without a hook and that the removal of arrow with the hook from the injury would be likely to cause more damage to the abdominal wall and also to the internal organs. Both in the case of Sahebi and Abdul Khalil the doctor did not notice any injury to the abdominal wall which could have been caused while pulling out the arrow. Relying on this part of the evidence, according to Shri Dholakia, all the recovered arrows which are alleged to have caused the injuries to the deceased persons having been found out of the dead bodies should have caused severe internal damage expected by the doctor and since no such damage was discovered by him the injuries, as a result of which the deceased persons died, must have been caused by some weapon ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed either in the trial court or in the High Court. Indeed, during the cross-examination of Dr. Deshpande (P.W. 12) even when he was recalled no straight and direct question was put to him, if keeping in view the nature of the injuries on Abdul Khalil and Sahebi and the recovered arrows and assuming that the arrows causing the injury had not been taken out skillfully, he could confidently depose that the injuries in question were not possible to be caused by these arrows. It is also pertinent to point out that from the order dated April 27, 1971, it does not appear that the counsel for the appellant specifically desired to clarify this point from the doctor. The submission now forcefully advanced by Shri Dholakia appears to us to be an afterthought and in any event is clearly not supportable on the medical evidence. We are, therefore, unable to reject the testimony of the eye-witnesses merely on the medical evidence to which our attention has been drawn. 7. In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eyewitnesses on the ground of variance between their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitation in agreeing with the concurrent conclusion of the trial court and the High Court that the appellant was responsible for killing the three deceased persons. 8. The last contention by Shri Dholakia relates to the question of sentence. According to him the present is not a case for extreme penalty. We are unable to agree. The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for, and the magnitude of, the offence and the manner of its commission. In this case the victims of the assault had given no offence to the appellant or his associates. Indeed the unarmed innocent members of this family had to leave their heath and home and were actually at the moment of the offence running in panic, on seeing the mob, to save themselves, when the three senior most members were shot with arrows from behind and killed. One of the victims was a woman with a baby in her arms. The only reason for these murders is the profession of different religious faith by the victims. According to the investigating officer, P.W. 13, Abdul Khalil's residential house had also been set on fire on May 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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