drp {1} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.385 OF 2009 Sayyed Amaan Sayed Imam APPELLANT Age-25 years, Occ-Driver R/o Khirdi Road T-Point, Rajiv Gandhi Nagar, Khultabad, Tq-Khultabad Dist-Aurangabad VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.S.Ghanekar, Advocate for the appellant Mrs.R.K.Ladda, APP for respondent State ....... WITH CRIMINAL APPEAL NO.400 OF 2009 Shaikh Hakimoddin Shaikh Minoddin APPELLANT Age-38 years, Occ-Brick Kiln R/o Bada Darwaza, Khultabad, Tq-Khultabad Dist-Aurangabad VERSUS The State of Maharashtra RESPONDENT drp {2} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 ....... Mrs.S.S.Jadhav, Advocate for the appellant Mrs.R.K.Ladda, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 25th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By these appeals, the appellants have questioned the legality and correctness of the judgment dated 16.07.2009 passed by Adhoc Additional Sessions Judge, Aurangabad in Sessions Case No.186/2007 thereby convicting the appellants for an offence punishable u/s 302 r/w 34 of the IPC and u/s 307 r/w 34 of the IPC and sentencing imprisonment for life and to pay a fine of Rs. 5000/- each, in default to suffer SI for one year and RI for 7 years, and to pay a fine of Rs.3000/- each, in default to suffer SI for 6 months, respectively. As both these appeals arise out of one judgment, they are being disposed of by this common judgment. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - a) On 11.05.2007, Khultabad Police Station Police Inspector Namdeo Gite, on receipt of MLC Report No. drp {3} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 49/2007 from Khultabad Primary Health Center, had registered Accident Case No.9/2007. Thereafter, PI Gite, along with Head Constable Jadhav had visited the spot, which is situated in front of Anil Chemical Company on Aurangabad-Khultabad road. It was informed that injured expired in Ghati Hospital. One Tempo, bearing registration No.MH-10 A-4430, loaded with bricks and one Hiro Honda motorcycle bearing Registration No.MH-20 AZ 4892, involved in the accident, were noticed on the spot. Thereafter, spot Panchanama (Exhibit-44) was drawn in presence of Pancha witnesses and blood mixed soil and plain soil was collected and both the vehicles were sent to Khultabad police station. Later on it was learnt that the name of the deceased was Mohammad Shakur. b) At Ghati Hospital, Aurangabad, inquest Panchanama (Exhibit-8) was drawn on the dead body and the body was referred for Postmortem along with Police Report (Exhibit-45). c) Dr.Vinod Bhalerao, PW-5, performed Postmortem on the dead body and prepared Postmortem report (Exhibit-33) and noticed the following injuries- 1. Abrasion size Ex 8 X 6 cm brownish read over it drp {4} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 lumbar region (Back) 2. Abrasion 31 cms Reddish brown ovedorsum of left back. 3. Contusion under scalp, brownish black size 10 X 8 cm over occipital region. 4. Livear fracture over left occipital and it tempal region of shail. 5. Sub dual hemorrhage size 6x4 cm over frontal lobe subarachnid hacmanhage seen meninges intact genedised brain matter-congested. 6. Rib fractuer left 6,7,8,3,4,5 7. Right lung Congested 8. Left lung pierced by ribs over lower lobe confused laceration over sits seen. The Medical Officer has opined that the injuries noticed on the person of the deceased are sufficient to cause death in ordinary course. According to the medical officer the injuries noticed on the person of the deceased are possible by accident, if the motor cycle is dashed from behind. d) PW-8 PI Gite, recorded statement / Complaint (Exhibit-20) of Mohammad Rafiq-son of the deceased in Ghati Hospital, Aurangabad. Thereafter, an offence at Crime No.41/2007 was registered at 10.00 p.m. against the accused drp {5} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 for an offence punishable u/s 302 and 307 r/w 34 of the India Penal Code and the investigation was entrusted to PW-8 PI Gite. e) PW-9 Ghuge, arrested appellant Aman on 11.5.2007. Thereafter, statements of certain witnesses were recorded on 12.05.2007 and 17.05.2007. RTO, Aurangabad was requested to inspect the vehicles involved in the accident, vide letter of request (Exhibit-40). Appellant Hakim came to be arrested on 25.05.2007 and the seized property was forwarded to CA along with covering letter (Exhibit-52) on 06.06.2007. Thereafter, as the Investigating Officer was transferred, the further investigation was carried out by PW-10 Khillari. On receipt of RTO report (Exhibit-41 and 42) and CA report (Exhibit-62) and after completion of the investigation, charge sheet was filed against the accused in the Court of 8th JMFC, Aurangabad, who committed the case to the Court of Sessions, Aurangabad. f) Trial Court framed charge (Exhibit-4) against the appellants for an offence punishable u/s 302 and 307 r/w 34 of the Indian Penal Code. Additionally, charge was also framed for an offence punishable u/s 302, 307 and 304A of the Indian Penal Code against appellant Aman. The appellants abjured their guilt and claimed to be tried. drp {6} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 Prosecution, to substantiate the charges, had examined 10 witnesses. The trial court, on appreciation of the evidence, convicted the appellants for an offence punishable u/s 302 and 307 r/w 34 of the Indian Penal Code, however no separate finding was recorded for the charge u/s 302, 307 and 304A of the Indian Penal Code, framed against appellant Aman. It is held that in view of the fact that charge u/s 302 and 307 r/w 34 is proved against both the appellants, the charge, separately framed against appellant Aman, does not survive. Defence of the appellants was of total denial and that they are falsely implicated in the said offence. 3. Before we embark upon the rival submissions, advanced by learned counsel for respective appellants and learned APP, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. The appellants will be referred by their names in the body of the judgment. 5. It is in the evidence of PW-3 Mohd Rafiq that deceased Shakur was his father and was engaged in the business of bricks. Appellant Hakim was doing the business of brick supply. He and his father used to purchase bricks from appellant Hakim so also from brick suppliers from different places. Appellant Aman was drp {7} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 working as a driver with appellant Hakim. 20 days prior to the incident, they had purchased 2000 bricks from appellant Hakim, however they were faulty and hence, appellant Hakim was asked to refund the amount, however Hakim had threatened of dire consequences. He has further stated that on 06.05.2007, appellant Hakim had quarreled with the deceased for which complaints were also lodged against each other, however the dispute was resolved with the intervention of their relatives. He has also stated that on 11.05.2007, he and his father Shakur (deceased) were proceeding towards Khultabad and at about 9.30 a.m. when they reached at the bus stand of village Kagjipura, they met PW-4 Shaikh Raju and other brick suppliers. Thereafter, they proceeded further on the motor cycle, which was driven by his father, deceased Shakur and he was riding on pillion. After they crossed 3 to 4 km, they saw a tempo bearing registration No.MH-10 A-4430 was coming from opposite direction. He saw appellants Hakim and Aman along with father in law and brother in law of appellant Hakim in the cabin of the said tampo. When they entered Nadirabad village, he saw that the said vehicle took turn and was proceeding to Khultabad in a high speed and gave dash to their motor cycle in front of Anil Chemical Company. Due to the said dash, he and his father felled down and his father had sustained bleeding injuries on head. After sometime, PW-4 Shaikh Raju and others came at the post and shifted them to Primary Health Center, Khultabad from where they were shifted to Ghati Hospital, Aurangabad. His father expired in drp {8} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 Ghati Hospital, Aurangabad while under treatment. He had also sustained injuries on his chest and legs. Police recorded his statement / complaint (Exhibit-20) in Ghati Hospital. He has asserted that the incident was not an accident but the vehicle gave dash to their motorcycle with an intention to commit murder of his father and also attempted to commit his murder. He has stated in his cross examination that Shakil Ahmed did not meet him in Ghati Hospital. The day was Friday. He had noticed the tempo for the first time when it was at the distance of 50/60 feet behind them. His father was riding the motor cycle in a moderate speed. He has further stated that his relatives and acquaintances had met him in the Ghati Hospital, before his complaint was recorded. He has further stated that Advocate Biyabani was not present at the time of recording of his complaint. He has further stated that there was no impact of the dash of the tempo on rear side shock observers of the motor bike. He has admitted that he had not given the case history to the Medical officer at Primary Health Center, Khultabad. He has further admitted that in the complaint he had not mentioned the name of the driver of the vehicle, as he was not knowing his name and therefore, he had only given his description. He has further admitted that after the vehicle was crossed, after some time he turned back and saw the same. He had seen the number of the tempo, before it was crossed. He has also admitted that it is true that there was no number plate to the front side of the tempo. In drp {9} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 his further cross examination he has admitted that he was acquainted with appellant Hakim since last 5 to 6 years, as he was doing business transactions with him. 6. It is in the evidence of PW-2 Shakil Ahmed that he was cable operator in Labour Colony, Aurangabad, and therefore, was acquainted with complainant Rafiq and deceased Shakur. He has stated that on the day of the incident, he and his friend Ibrahim were going to Khultabad to attend a marriage on motorcycle. When they crossed Kagjipura they noticed that one tempo loaded with bricks proceeding to Aurangabad took turn and started proceeding to Khultabad by overtaking their motorcycle and gave dash to one motorcycle, which was ahead of them. The time of incident was about 9.30 a.m. to 9.45 a.m. When they reached near the motor bike, they saw that the complainant and his father were lying on the spot and the motor cycle was lying between the front wheels of the tempo. The injured were then shifted to Primary Health Center Khultabad. The persons in the tempo ran away. He has admitted in the cross examination that he had stated in the statement before police that they had started from Aurangabad around 9.15 a.m. to go to Khultabad. In the night he had received message from one Ayubbhai that Shakur had met with an accident and expired in Ghati Hospital, he went there at 10.00 p.m. however, did not disclose anything to the police as to how the incident had occurred and that he had witnessed the same. Omission is proved in his drp {10} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 cross examination that he had not stated in the statement before police that he and Ibrahim started at 8.30 to 8.45 a.m. (omission is in respect of timing) and when they crossed Kagjipura, they saw a blue colour tempo (Omission is in respect of colour only) and that he had seen that the motor cycle was lying between the front wheels of the tempo. His evidence is conspicuously silent as to who were the inmates of the tempo in question. 7. It is in the evidence of PW-4 Shaikh Raju that he knew appellant Hakim, deceased Shakur and injured Rafiq, as all of them were dealing in brick business. On 11.05.2007 at about 9.30 a.m. Shakur (deceased) and Rafiq had met him on the bus stand of Kagjipura and after some time Shakur and Rafiq had proceeded to Khultabad on their motorcycle and after 5 minutes, he along with one Amir and two unknown persons also proceeded towards Khultabad in an auto. Near Nadirabad, he had noticed that one tempo, loaded with bricks, was ahead of their auto and was proceeding to Khultabad. Thereafter, they heard a loud voice of something dashed against something and they found that the tempo had given dash to the motor cycle, while overtaking another motorcycle. He has further stated that when he and others reached at the spot, they noticed that Shakur (deceased) and the motorcycle were lying between the front wheels of the said tempo. He had also seen 7/8 persons running away from the spot and the appellants were amongst them. He has further stated that drp {11} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 thereafter they shifted the injured to PHC, Khultabad and on medical advice, further shifted them to Ghati Hospital, Aurangabad. Shakur expired in Ghati Hospital. In his cross examination, he has stated that they had reached at the spot within 3/4 minutes, after hearing the sound. He had seen the tempo driver running from the spot. When he was confronted with his statement before police, he denied that he had stated any specific timing. He was in the Ghati Hospital, continuously till 4.30 p.m. He has admitted that he knew appellant Aman since long and also admitted that name of appellant Aman is not mentioned in his statement before police. He has further stated that Rafiq was not unconscious during the incident. His statement was recorded by the police on the third day of the incident. He has admitted that Rafiq had not told him that Aman was driving the tempo and he also did not ask Rafiq as to whether Aman was driving the tempo, at the relevant time. Omissions are proved in his cross examination that he had not stated in the statement before police that he knew the appellants since long, Aman was serving as driver on the tempo of appellant Hakim, colour of the tempo was blue and that the tempo overtook one motorcycle and gave dash to the motorcycle driven by Shakur (deceased). He has also not stated in the statement before police that Shakur (deceased) and the motorcycle were lying in front of the tempo and the tempo and the motorcycle were at the side of the gutter and that he saw 7/8 persons running away from the spot and the appellants were drp {12} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 amongst them. He has admitted that nobody tried to chase the persons who were running away from the spot. 8. In the light of the evidence of material witnesses, which we have discussed above, heard learned counsel for the respective appellants and learned APP. Learned APP vehemently supported the judgment of conviction and urged to dismiss the appeals and confirm the conviction and sentence of the appellants. 9. The appellants have not seriously disputed that Shakur died in the accident of collusion of motorcycle and the tempo. The appellants have also not seriously disputed that complainant Rafiq was also injured in the said incident. The entire endeavor of the learned counsel for the respective appellants was that at the material time the appellants were not in the tempo and that they are falsely implicated in the said offence. 10. In the light of the rival submissions, only point which requires consideration is that whether the incident in question was a mere accident or was an intentional act of the appellants to commit murder of Shakur and attempt to commit murder of Rafiq. 11. Learned counsel for respective appellants draw our attention to the fact that the dash was given by the tempo to the motorcycle from back side. They have also rightly brought to our drp {13} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 notice that the evidence of Shakil Ahmed and Shaikh Raju is contradictory to each other, specifically on the point that the tempo which was proceeding to Aurangabad took turn near village Kagjipura and thereafter gave dash to the motorcycle driven by Shakur (deceased). Evidence of Shakil Ahmed and complainant Rafiq requires to be disbelieved due to the admissions given by Rafiq himself that sometime after the tempo crossed, he looked back and saw that there was no number plate on the tempo, on front side. If there was no number plate on the front side, then what was the occasion for the complainant to note the number, after some time, when he was riding on the pillion seat. Evidence of PW-4 Shaikh Raju is also silent on the point that the tempo, which gave dash to the motorcycle, was initially proceeding to Aurangabad and then took a turn and started proceeding towards Khultabad. Evidence of Shakil Ahmed and Shaikh Raju that during the said incident, the motorcycle was found lying between the front wheels of the tempo, is not supported from the recitals of the Spot Panchanama (Exhibit-44). Spot Panchanama (Exhibit-44), indicates contrary situation that the motorcycle was lying between two wheels of cleaner i.e. left side of the tempo. Both the vehicles were found on the left side of the road. Apart from it evidence of Rafiq is that his father Shakur (deceased) was riding the motorcycle in a moderate speed and as per his evidence so also as per the evidence of other two witnesses, the tempo was proceeding in a very high speed and if it is so, then the tempo, which was in a drp {14} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 high speed, gave dash to the motor cycle from back side then the motor cycle should have jumped and should have thrown at some distance and would not have found at the cleaner side wheels of the tempo. Secondly, had the tempo proceeding in a very high speed and had it dashed against the motorcycle, the motorcycle riders would have jumped and both the vehicles could not have found at the same place. The circumstantial evidence clearly indicates that the incident in question was mere an accident due to the error of judgment of the tempo driver and it was not an intentional dash. 12. Once it is concluded that the incident in question is an accident and not an intentional act, then the next question arise for consideration is as to whether the appellants are responsible for the said accident. 13. It is clear that the evidence of Shakil Ahmed is conspicuously silent as to who were the inmates of the tempo and who was driving the said tempo. It is in the evidence of complainant Rafiq as well as Shaik Raju that Rafiq had not told Shaikh Raju that appellant Aman was driving the said tempo at the material time. Admittedly, Shaikh Raju had not seen as to who was driving the said tempo. It has came in the evidence of both these witnesses that they are acquainted with and knew appellant Aman since long. The complaint nowhere disclose that appellant drp {15} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 Aman was driving the tempo at the relevant time. The complainant asserts that he had given description of the driver in the complaint, that too is a proved omission. Evidence of Shaikh Raju that after the incident 7/8 persons from the tempo ran away and the appellants were amongst them, is also a proved omission. Considering all these aspects that when the complainant Rafiq and witness Shaikh Raju were acquainted with and knew appellant Aman, why they did not disclose his name in the complaint and statement before police, respectively, creates doubt as to whether in reality appellant Aman was driving the tempo at the relevant time. Therefore it can safely be inferred that the appellants cannot be held responsible for the said accident also. 14. When it is concluded that the incident in question was an accident and the appellants are not responsible for the said accident, then the appeals ought to succeed. 15. Criminal Appeal No.385/2009 is allowed and the conviction and sentence of the appellant/accused is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. 16. Criminal Appeal No.400/2009 is allowed and the drp {16} Cri. Appeal No.385/2009 With Cri. Appeal No.400/2009 conviction and sentence of the appellant/accused is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel385-09