- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMIINAL APPEALS NOS.567/2008 & 636/2008 CRIMINAL APPEAL NO.567/2008 1] Syed Khaled s/o Syed Riyasat, age 30 yrs., occu.Contractor, r/o Balepeer, Amrai, Beed. Tq. & Dist.Beed. 2] Miskinkhan s/o Karimkhan Pathan, age 27 yrs., occu.Auto Rickshaw Driver, r/o Balepeer, Amrai, Beed. Tq. & Dist.Beed. ...Appellants.. (Org.accused nos.1 & 2) Versus The State of Maharashtra. ...Respondent... ..... Smt.Sadhana S. Jadhav, Advocate for appellants. Shri B.V. Wagh, APP for respondent. Shri G.K. Thigale, Advocate to assist APP. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= - 2 - CRIMINAL APPEAL NO.636/2008 Sk.Bilal s/o Sk.Abdul Rajjak, age 24 yrs., occu.service, r/o Balepeer-Aamrai, Beed. Tq. & Dist.Beed. ...Appellant.. (Org.accused no.3) Versus The State of Maharashtra. ...Respondent.. ..... Smt.Sadhana S. Jadhav, Advocate for appellant. Shri B.V. Wagh, APP for respondent. Shri G.K. Thigale, Advocate to assist APP. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: P.V. HARDAS & A.V. POTDAR, JJ. RESERVED FOR JUDGMENT ON 06.10.2010 JUDGMENT PRONOUNCED ON 11.10.2010 JUDGMENT (Per P.V. Hardas, J.) : 1] The appellants – original accused nos.1 to 3, who stand convicted for offence punishable u/ss.120-B and 302 of the Indian Penal Code and sentenced to - 3 - imprisonment for life and each to pay fine of Rs.1,000/- with a default sentence of undergoing further simple imprisonment for one month with no separate sentence being awarded for offence punishable u/s 120-B of the Indian Penal Code, by the Additional Sessions Judge-II, Beed, by judgment dated 2.8.2008, in Sessions Case No.175/2007, by these appeals question the correctness of their conviction and sentence. 2] Facts in brief as are necessary for the decision of these appeals may briefly be stated thus: PW 28 Tukaram Borade, Police Sub Inspector, was attached to Beed City Police Station, on night patrolling duty on 23.5.2007. As a part of patrolling duty, he, along with other police personnel in a jeep, was patrolling the entire Beed city and visiting Police Stations Pimpalner, Station Peth and Beed (Rural). They commenced their duty at 12-05 hours and while the jeep, in which PW 28 PSI Borade was travelling, was passing by Nagar road towards Charatha road, they noticed a black colored motorcycle and a person lying on the road in front of the Collector office. They accordingly took a ‘U’ turn and went to that place. It was about 00-25 hours. A person, who was watchman at Champavati Krida Mandal, disclosed on inquiry that one white colored car had given dash to the rear side of the motorcycle and then the car had escaped. Thereafter, two persons came on the motorcycle, out of them one was the brother of the deceased, who disclosed his name as Naderkhan, who is examined as PW 9. One mobile phone was found near the dead body, which was handed over to Naderkhan. The dead body was of - 4 - one Nayyarkhan and on examination, it was found that Nayyarkhan had sustained injury on the right side neck and the intestines had protruded out. Since the injury to the neck was caused by a sharp weapon, PW 28 PSI Borade came to the conclusion that it was a homicidal death. Naderkhan arranged for a small tempo for carrying the dead body to the hospital and accordingly the dead body was shifted to Beed hospital. Police personnel were asked to keep guard at the spot. A crowd of about 8,000 to 10,000 people had gathered at the hospital and the crowd commenced pelting stones. Security was arranged for and law and order was restored. PW 28 PSI Borade in the mean time learnt that three accused had surrendered in Beed City Police Station and this message was received at about 2-00 a.m. In Balepeer locality, there were instances of burning houses of the accused. He was, therefore, deputed for maintaining law and order at Balepeer. He returned to the scene of the offence at about 5-00 a.m. and had noticed a country-made pistol and, therefore, lodged a complaint under the Arms Act against the deceased. PW 29 PSI Sonawane, who was attached to Beed City Police Station, received a message at 2-00 a.m. on 23.5.2007 about the murder of Nayyarkhan. He was asked to go to Balepeer locality and he stayed at Balepeer locality till 3-30 a.m. There were instances of stone pelting and burning of the houses of the accused. He restored law and order and in the mean time had received message about similar instances going on in the campus of the Civil Hospital at Beed. He, therefore, rushed there. At about 4-30 a.m., PW 32 PI Avale asked him to record the complaint of PW 9 Naderkhan. He, therefore, took Naderkhan to Beed City - 5 - Police Station and recorded the complaint of Naderkhan at Exhibit 55. On the basis of the complaint of PW 9 Naderkhan, offence came to be registered. The printed FIR is at Exhibit 56. PW 32 PI Avale, who was attached to Beed City Police Station, was also on zonal patrolling duty. At about 00-45 hours, he received a call on his wireless from PSI Borade about finding of the dead body in front of the office of the Collector. Within five minutes, he reached the scene of the offence and noticed the dead body of Nayyarkhan lying in front of the gate of the collectorate. Besides the dead body, a motorcycle was also seen lying on the road. He also found the brother of the deceased present at the scene of the offence and noticed incised wounds on the dead body of Nayyarkhan. Nayyarkhan was shifted to the Civil Hospital at Beed where the Medical Officer declared him dead. A crowd had gathered in the campus of the Civil Hospital as well as in Balepeer locality and the crowd was of about 5,000 to 6,000 people. Instances of stone pelting started on the police van in the campus of the Civil Hospital and accordingly he had arranged for the police staff to maintain law and order. He also received information that three accused had surrendered in Beed City Police Station and, therefore, he asked them not to initiate any action, but to detain the accused in the Police Station till his arrival as he was in-charge of the Police Station. He apprehended that the mob, which was present in the Civil Hospital, may rush to the Police Station on learning that the accused had surrendered and, therefore, he requested the staff in the hospital to be ready to face any eventuality. Exhibit 120 is the extract of the register maintained with the Muddemal Clerk regarding handing over of the rifles. He had directed that the - 6 - rifles be handed over to the Constables so that proper precaution could be taken. He further directed PW 29 PSI Sonawane to record the complaint of PW 9 Naderkhan. Post mortem on the dead body of deceased Nayyarkhan came to be performed by PW 21 Dr.Arun Ghuge. He noticed following external injuries : [1] Incised wound over lateral aspect of right side of neck of size 6 cm. vertically, 4 cm. in breadth and 6 cm. in deep. On opening of such wound, there is total cut of major vessels and cut open trachea on right lateral side which is sharp cut along with external carotid vessel cut into two pieces. [2] Incised wound over medial aspect of lower 1/3rd of left thigh above knee joint with bleeding edges of size 8 cm. in length x 3 cm. in deep. It was vertical one. [3] Incised wound over middle 1/3rd of left thigh anterior surface of size 1.5 cm. in length x 0.5 cm. in width x 05 cm in deep. [4] Abrasion over lateral aspect of left thigh upper end 10 cm. below the left iliac crest of size 4 cm. laterally 4 cm. vertically with fresh color, with irregular margins probable due to hard and blunt object like stone. [5] Abrasion over pateliar aspect of lateral aspect of knee left 5 x 3 cm. fresh, red, with irregular margins probably due to hard and blunt object. [6] Abrasion on lateral aspect of left shoulder 9 cm. vertically x 6 cm. horizontally, with irregular margins with fresh red color, probably due to hard and blunt object. [7] Abrasion over left hand dorsum at the base of thumb and index finger 8 cm. x 6 cm. fresh and irregular, margins, probably due to hard and blunt object. [8] C.L.W. over lateral angle of left eye over maxillary prominence 2 x 2 cm. x bone deep due to hard and blunt object. [9] Left eye ecchymosis both lids, eye ball intact. - 7 - [10] Abrasion over right hand over base of the right thumb dorsally 3 x 2 cm. irregular margins, red fresh. [11] Incised wound over right hypogestrium oblique running from epigastrium towards right along the bordes of left rib of size 8 cm. in length, 3 cm. in depth and 6 cm. in deep and intestinal loops protruding probably due to sharp and pointed object. [12] Incised wound below the wound no.11, which was oblique extending from 3 cm. lateral to umbilicus to right lateral border of abdomen (lumber area) which was parallel to injury no.11 with sharp margins of 9 cm. in length, 6 cm. in width and intestinal loop protruding through this injury. On opening of the abdomen (injury no.12), multiple injury (4) in mesentry with large haematoma and blood in peritoneal cavity with cutting of mesentric vessels small intestine (jejunum) transversely cut into two pieces. There was cut injury over greater curvature of stomach of size 5 cm. in length and 4 cm. in width with identifiable food particles approx. 250 m.l. present in stomach, injuries could be probably caused by sharp and pointed object. [13] Abrasion over left foot dorsally at the base of little toe of size 2 x 2 cm. with fresh red with irregular margins, probably caused by hard and blunt object. [14] Abrasion over right medial mallets 1 cm. x 1 cm. fresh red color, fresh red with irregular margins, hard and blunt object. [15] Abrasion over base of right great toe dorsally 1 cm. x 1 cm. fresh red with irregular margins, caused by hard and blunt object. He further noticed haematoma in the left temporal area of size 6 cm. x 5 cm. with no evidence of fracture. According to him, all the injuries were ante mortem and injuries nos.1, 11 and 12 were sufficient to cause death in the ordinary course of nature. According to him, death must have been instantaneous. He, therefore, opined that cause of death was haemorrhagic shock due to multiple deep injuries. The post mortem report is at Exhibit 75. According to him, injuries nos.1 to 3, 11 and 12 could be caused by Article no.18 – dagger, Article no.19 – knife and Article - 8 - no.17 – Kukri. In the mean time, PW 32 PI Avale reached Beed City Police Station at about 5-30 a.m. and arrested the three accused, who had surrendered and accordingly arrest panchanamas were drawn at Exhibit 121 in respect of accused Syed Khaled, Exhibit 122 in respect of Miskinkhan and Exhibit 123 in respect of accused Bilal. Investigation of the said crime came to be entrusted to him. The inquest panchanama on the dead body of deceased Nayyarkhan was drawn by PW 27-A Police Head Constable Pathan at Exhibit 28. The scene of the offence – panchanama also came to be drawn in the presence of PW 1 Sk.Aref at Exhibit 26. From the scene of the offence, chappals belonging to the victim, broken pieces of the tail lamp of the motorcycle and sample of the blood stains and three pieces of the broken number plate o the car came to be seized. A country-made revolver was also found about a foot from the dead body with one live cartridge in the revolver. Mean while, instances of stone pelting on the buses of the M.S.R.T.C. continued between 8-30 to 11-00 a.m. in the areas of Balepeer and Ankush Nagar. Offences came to be registered for pelting of stones and burning of the houses of the accused. The crime numbers are 168, 169, 170 and 171 and the extracts are at Exhibits 124 to 127. Mean while, he returned to Beed City Police Station at about 9-40 or 10 a.m. and seized the clothes, which were on the person of the accused, in the presence of panch witnesses under seizure memos at Exhibits 39, 40 and 41. The said clothes were found stained with blood. Nearly 10,000 to 15,000 people attended the funeral of Nayyarkhan. On that day, he had - 9 - recorded statements of four witnesses. He had also recorded the statement of Kundlik Suskar, a watchman near the scene of the incident. However, he could not be examined as he expired during the pendency of the trial. The arrested accused were produced before the Magistrate after the funeral was over. On 24.5.2007, statements of 11 witnesses came to be recorded. During custodial interrogation, accused Syed Khaled had expressed his willingness to point out the place where the car was parked. Accordingly, a memorandum came to be recorded in the presence of witnesses at Exhibit 36. Accused Khaled took the police and the panch to Islampura locality and pointed out the car, which was parked there. On inspection, it was noticed that the number plate towards the rear side was intact and the registration number of the vehicle was MH-10-E-3222. The front bumper and the bonnet and the mud-guard of the car were found damaged and the front number plate was found half broken. The vehicle was inspected and the registration book was found in the vehicle and the name of the owner i.e. Sk.Rahim Sk.Khaja transpired during the inspection. The said vehicle i.e. car was seized and brought to the Police Station vide seizure memo at Exhibit 132. The registration book of the Fiat car is at Exhibit 129. On the same day i.e. 24.5.2007, the other accused viz. Miskinkhan also expressed his willingness to point out the place where the motorcycle was kept and accordingly memorandum at Exhibit 37 came to be recorded in the presence of panch witnesses. Accused Miskinkhan took the police and the panch to his house and pointed out the motorcycle, which was kept behind his house. The registration number of the said motorcycle was MH-20-AM-1735. The motorcycle came to be seized as per the - 10 - seizure memo at Exhibit 37. The motorcycle belonging to the deceased was inspected and it was noticed that the paint of the car had adhered to the portion of the motorcycle, which was accordingly removed and the half broken number plate of the car was also removed and seized. The panchanama is at Exhibit 37. Since the mobile phone belonging to the deceased Nayyarkhan had been handed over to PW 9 Naderkhan, the said mobile came to be seized vide seizure memo at Exhibit 48. Accused Sadeq came to be arrested from Parali and was produced in the Police Station on 25.5.2007 at 3-30 a.m. His mobile phone of ‘Samsung’ make came to be seized vide seizure memo at Exhibit 45. His clothes came to be seized vide seizure memo at Exhibit 42. Statement of the car owner Sk.Rahim Sk.Khaja came to be recorded. On 26.5.2007, accused Syed Khaled expressed his willingness to point out where his mobile phone of ‘Samsung’ make was kept by him. Accordingly, his memorandum at Exhibit 32 came to be recorded in the presence of panchas. The accused led the police and the panch to an electric transformer and produced the mobile, which had been hidden. The said mobile came to be seized vide seizure memo at Exhibit 32. On the same day, accused Miskinkhan also expressed his willingness to point out where he had hidden his mobile phone and accordingly memorandum at Exhibit 33 came to be recorded in the presence of the panchas. Accused Miskinkhan led the police and the panch to the electric transformer and at a site, which was 50 ft. from the Police Station, produced the mobile phone, which came to be seized vide seizure memo at Exhibit 33. On 27.5.2007, accused Syed Khaled expressed his willingness in the - 11 - presence of panchas to point out the place where the weapons had been thrown in the water of ‘Bindusara’ river. Accordingly, his memorandum at Exhibit 53 came to be recorded. Memorandum of accused Miskinkhan to that effect also came to be recorded at Exhibit 51. Accused Shaikh Bilal had also expressed his willingness in the presence of two panchas to point out where he had thrown Kukri. His memorandum at Exhibit 52 came to be recorded. The three accused led the police and the panch and pointed out respective places where the weapons had been thrown by them. Officials from the Sanitary Department of Beed Municipal Council were called and were asked to find out if they could find weapons in the water. A big knife came to be discovered and thereafter Kukri was found and then Rampuri knife. The aforesaid weapons came to be seized and the said weapons are Article Nos.17, 18 and 19. On 1.6.2007, correspondence was made with the mobile companies in respect of the calls made and received from the mobiles of the accused. The call statement was received. On 7.6.2007, the seized articles were sent to the Chemical Analyser through PW 27 Police Constable Chaure. The reports of the Chemical Analyser are at Exhibits 130 to 135. On 13.6.2007, accused Afsarkhan was arrested and during his search, a mobile of ‘Samsung’ company was found with a “Reliance” SIM card. The said mobile came to be seized at Exhibit 46. On 11.8.2007, the Tahsildar was requested to draw the sketch map of the scene of the incident and thereafter a charge-sheet against the accused came to be filed. The two accused viz. Faisal Chouse and Mirza Asif Baig were absconding at the time of filing of the charge-sheet. - 12 - 3] On committal of the case to Court of Sessions, charge vide Exhibit 3 came to be framed against the accused for offence punishable u/s 120-B, 147, 148, 149, 302 r/w 149 of the Indian Penal Code and u/s 25 of the Arms Act. The accused pleaded their innocence and claimed to be tried. The trial Court, upon appreciation of the evidence, convicted original accused no.1 Syed Khaled, accused no.2 Miskinkhan and accused no.3 Shaikh Bilal for the offences, as stated above, and acquitted original accused nos.4 and 5. 4] In order to appreciate and effectively deal with the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 5] PW 9 Naderkhan, brother of deceased Nayyarkhan, states that he runs a hotel in the new Bhaji Mandi at Beed and resides in Balepeer locality. He states that deceased Nayyarkhan was his youngest brother. Nayyarkhan after obtaining the qualification of D.Ed., began the business of selling plots. Accused Sadeq was his partner. At the time of his death, deceased Nayyarkhan was an elected member of Beed Municipal Council and had been elected about 8 to 9 months prior to his death. He states that he knows all the accused as they reside in his lane. He further states that accused Ayub and the absconding accused Asif had also contested the Municipal election from the same ward from which Nayyarkhan had contested. He alleges that accused Ayub and Miskinkhan had attempted to - 13 - break the election voting machines at the polling booths and there was also some controversy between Nayyarkhan and accused Khaled because the ticket from Rashtrawadi party was refused to accused Khaled. He states that after the elections, the relations between the accused and Nayyarkhan were strained. In respect of the incident, he states that on 22.5.2007, he was in his hotel and at about 12-30 in the night, while he was about to take his dinner, one Hamid Mistri informed him that his brother was lying in front of the Collector office in a pool of blood. He, therefore, went on his motorcycle along with Hamid to the scene of the incident and noticed the police present there. He states that he had seen injuries caused by knife on the neck and stomach of his brother. He further states that the dead body was shifted to the hospital where the Medical Officer pronounced him dead. He states that one Khaja came to the hospital at about 2-00 a.m. and informed him that the accused had assaulted his brother. He states that he learnt in the hospital that accused Bilal, Miskinkhan and Khaled had surrendered in Beed City Police Station. He states that he had gone and lodged his complaint at Exhibit 55. He states about handing over of the mobile belonging to Nayyarkhan. He states that the funeral of his brother had been performed on the next day of the incident. In cross examination, he has admitted that accused Mirza Asif Baig had also contested the election against deceased Nayyarkhan. He has admitted that one Mohd.Chouse, who was father of the absconding accused, was leader of their community and was a member for about 10 years before the election of deceased Nayyarkhan. He has also admitted as correct that ticket from Rashtrawadi Congress party was claimed by accused Khaled as well as deceased Nayyarkhan. - 14 - He has also admitted as true that Sadeq and Miskinkhan had worked for Afsar in the election. He has denied the suggestion that about 9 cases u/s 12-A of the Bombay Prevention of Gambling Act had been registered by Beed City Police Station against him. He has also denied the suggestion that an offence punishable u/s 394 of the IPC had been registered against him at Beed City Police Station. He has pleaded ignorance about any offences registered against his deceased brother. Omission has been duly proved that he had not stated about deceased Nayyarkhan and accused Sadeq doing business of selling plots in partnership and that certain amount being outstanding against Sadeq. Omission has been duly proved that he had not stated about accused Ayub attempting to break the voting machines and about deceased Nayyarkhan having sustained injuries by knife on his neck and stomach. Omission has been duly proved that he had not stated that one Khaja had come to the hospital at 2-00 a.m. and had disclosed that the accused had assaulted deceased Nayyarkhan. Omission has been proved that he had not stated that he had learnt in the hospital about the surrender of accused Khaled, Bilal and Miskinkhan in the Police Station. He has also admitted in cross examination that prior to the incident, there were no written complaints by the accused against deceased Nayyarkhan and vice versa. He has admitted that the motorcycle, which was being driven by deceased Nayyarkhan was registered in his name. He has denied portions marked ‘A’ and ‘B’ from his report. He has admitted that while lifting his brother and placing him in the tempo, his clothes were stained with blood, but were not seized by the police. - 15 - 6] From the evidence of this witness, it clearly emerges that on receipt of the information, he had gone to the scene of the offence and had noticed his brother deceased Nayyarkhan with injuries and had shifted him to the hospital. Subsequently, he lodged his complaint at Exhibit 55. In the light of the fact that the prosecution has examined an eye witness, the omissions in respect of the relations between the deceased and the accused being strained, according to us, pale into insignificance. The report of the Chemical Analyser demonstrates that the pieces of broken number plate of the Fiat car found at the scene of the offence matched with the half broken front number plate, which was affixed to