-1- MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.327 OF 2006 Ibrar Muios Khan @ Raju ) @ Purva, Age 36 years, residing) at Himmat Nagger, Behind Madasi ) Temple Zopadpatty, Near Vidya ) Lankar Engineering Wada, Bombay ) (Presently undergoing Jail ) Sentence at Arther Road Jail, ) Bombay) )..APPELLANT Versus The State of Maharashtra )..RESPONDENT Mr. Amin Solkar, for the Appellant. Mr. P.S. Hingorani, APP for Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. DATED: 18TH JUNE 2008 DATED: 18TH JUNE 2008 DATED: 18TH JUNE 2008 ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.): -2- . The Appellant was charged for having committed the murder by intentionally or knowingly causing the death of Mehalsingh Darshansingh, driver of motor lorry GJ-3V-7338 by knife on 15th June, 2005 to 16th June, 2005 between 23.30 hrs. to 7.50 a.m. and thereby having committed an offence punishable under Section 302 of the I.P.C. The accused, according to the prosecution was doing the work of mechanic in the same area where a car was parked that night. In support of their case the prosecution has examined 16 witnesses and have also placed on record the C.A."s report. The learned Ad hoc Additional Sessions Judge by judgment dated 24th February, 2006 was of the opinion that the prosecution had proved their case beyond reasonable doubt and consequently convicted the Appellant of the charge under Section 302 of the I.P.C. The Appellant was acquitted on all the other charges. 2. According to the prosecution the deceased Mehelsingh Darshan Singh was working as a driver on Truck No.GJ-3V-7338 owned by one Jayantilal Shah. One Raju Patel was working as cleaner on the said truck. On 14th June, 2005 after unloading the goods from the truck at Bhiwandi, the truck was driven by Darshan Singh came to Mumbai and parked in Danabunder on Pune Street. Some minor repairs were at Guru Garage located at Dana Bunder between 4.00 -3- p.m. to 7.30 p.m. After that the deceased along with the cleaner Raju Patel and two others drivers of other vehicles drank liquor in the body of his truck. Raju Patel the cleaner thereafter brought tiffin from a nearby hotel for them and they all took dinner by sitting in the body of his truck. After taking dinner, all other drivers went to their respective vehicles. The deceased also went to another truck and started talking to the driver. At about 11.00 to 11.30 p.m. the accused who is working as a mechanic in a garage in Danabunder was also present there. When the deceased was talking with other driver, the accused interrupted him and, therefore, the deceased asked the accused not to interrupt their talks. A quarrel ensued between them and in that quarrel the deceased slapped the accused. In turn the accused abused the deceased. Babu watchman who was present nearby came and separated them. The accused then took out a knife and threatened the deceased that he would show him and would not spare him and went away. Raju Patel came there and took the deceased to his truck and asked him to sleep. Accordingly the deceased slept in the body of the truck, while Raju Patel slept in the cabin of the truck. On 16th June, 2005 at about 6.0 a.m. when Raju Patel went to awaken the deceased, the deceased was found lying in a pool of blood with injuries. This was informed by Raju -4- Patel to Jayantilal Shah the owner of the truck by telephone. He then proceeded to inform the police about the incident. 2. We may now consider the evidence available on record. There is admittedly no eye witness to the incident which is purely based on circumstantial evidence. It is in that context that we may consider the evidence of P.W.1, Ambadas Dnyanoba Kakad, A.S.I. attached to Dongri Police Station. According to him on 15th June, 2005 he was on night duty as pillion rider on beat No.1 between 7.00 p.m. to 9.00 a.m. on the next day. On 16th June, 2005 at about 7.45 to 7.50 a.m. when they came to Danabunder Police Choky one person came running who disclosed his name as Raju Patil and stated that when he went to awake his driver in the morning he did not give any response. They immediately went to the place and saw the deceased in a sleeping condition and noticed the wounds on his neck, which were bleeding as also on his stomach. He contacted South Region Division on Walkie-Talkie and asked for help of Dongri-I Mobile van. The mobile van reached that place within 5-7 minutes. In his examination he has stated that there is a slum situated nearby the place where the truck was parked. He further stated that Raju Patel did not tell him that he had heard any shouts. The deceased was of medium built. -5- 3. P.W.2 is Faroque Hadji Maheeda, was a Panch for the recovery of the weapon at the instance of the accused. According to him on 16th June, 2005 he was called at Dongri Police Station at 11.00 a.m. to 12.00 noon. The police made enquiries with the accused in his presence and the accused told them that the knife was kept at his house. He along with others went to the accused’s house at Wadala. He knocked at the house and the mother of the accused opened the door and the police along with the accused entered the said house. He was standing outside. After some time he and Guru, the panch witness entered inside the house. According to this witness the police asked the accused where the knife was. The accused produced the knife which was placed on the table. Similarly, the accused produced shirt and pant from the said house before the Police. Thereafter they returned to the Police Chowky. The knife and the clothes were packed by police at the said house. At the Police Chowky his signature was obtained and he was asked to go after sealing the articles. The witness identified the knife. In the cross examination he stated that he is doing business on footpath and had no license and that police know him due to his business and he was called to the Police Station. According to him the Police Officer make enquiry in his presence and the -6- accused was replying to the queries and that they had not taken personal search of the police before they entered the house with the accused. He denied that the accused did not produce any knife in his presence from the said house and he was giving the evidence under pressure of police and that no identification mark was put on the mudemal article knife. He has not deposed to the fact that his signature being taken on the memorandum at the Police Station when the statement of the accused leading to the discovery of knife was drawn up. . From this evidence what one finds is that in so far as the clothes are concerned, no statement was made by the accused that he would show the clothes leading to their recovery. In so far as the knife is concerned at the time the accused was supposed to have given it to the Police the witness admittedly was outside the house. In other words articles were not recovered in the presence of the Panchas. The incident is of 16th June, 2005 and the accused was already in custody of the police on that day. In so far as sealing is concerned there is nothing on record except that the signature of the Panchas was obtained on the paper in which the article was kept. 4. We then consider the evidence of Laxman -7- Dinanath Rai, P.W.3. He was the watchman at the place where the Truck was parked. According to this witness on 15th June, 2005 he saw the accused and deceased quarrelling between 11.00 to 11.15 p.m. the accused and the deceased were quarrelling with each other after having drinks. He asked them why they were quarrelling and tried to convince them not to quarrel whereupon the accused abused him. He then went to take dinner. After taking dinner nobody was seen there and on the next morning he came to know that Mahender Singh was murdered. In cross examination he stated that vehicles are parked on both sides of the said road. There is also a garage and a Dhaba which functions upto 1.30 a.m. According to the witness the drivers and cleaners working on the vehicles parked there sleep in their respective vehicles. The distance between the vehicles is about 3-4 ft. He denied that there was no quarrel between the accused and the deceased and that he had not heard any shouts in that night after he came on duty after taking dinner. From the evidence of this witness at the highest what can be said is that the prosecution has established that there was a quarrel between the deceased and the accused on the night of 15th June, 2005 between 11.00 to 11.15 p.m. 5. P.W.7 is Sikander Balgovind Singh. -8- According to this witness he knows the accused as Ibrar and he also knows Raju Cleaner. According to this witness Raju had come to his garage which is known as Guru Garage and informed him that the driver had been murdered whereupon he told him to inform Police. According to this witness there was no quarrel between the accused and deceased prior to this incident in his presence. 6. P.W.8 - Guruprasad Jagannath Vishwakarma is another witness for recovery of the knife. According to this witness his signature was obtained by Police on paper in Police Chowky and Faroque’s signature was also obtained when they left Police Chowky. According to him they went to the house of the accused and the police and the accused entered his house and at that time he was standing at the door and the knife was recovered from the cupboard which was taken charge by the police. In cross examination he stated that he does not know due to darkness in the house what has happened in the said house. This witness was purportedly examined to cover the deficiency in the evidence of P.W.2 about drawing up the memorandum of the statement by the accused and he signing on the same. 7. P.W.10 is Raju Mahendersingh Patel, the Cleaner of the truck. According to this witness the -9- quarrel took place between the accused and the driver at 9.00 p.m. After that he went to hotel to bring parcel of dinner at about 10.30 p.m. After he brought the tiffin from the hotel, he, his driver and the two drivers from other vehicles sat in the back portion of truck and had the food and that after taking food the two drivers went to their respective vehicles. After that they went to make phone and returned to the truck. The deceased asked him to bring milk for him and he brought milk for him. The deceased was made to sit in the body of the truck and he offered milk to him and thereafter he went to another vehicle. After he returned the driver asked him to sleep, but after some time the deceased came to him and asked him to awake him at 2.00 a.m. and then he went to Raju Mistry and started talking with other drivers. According to this witness Raju Mistry said to the deceased that he does not pay repairing charges immediately and, therefore, the quarrel arose between them and his driver slapped Raju Mistry in that quarrel and Raju Mistry also abused him. The watchman Laxman who was present nearby came and separated them. According to this witness Raju Mistry had taken out knife and threatened him. He brought the deceased to the truck and asked him to sleep. When he got up at 6.00 a.m. and went to awaken the deceased, but he found him dead and he also found injuries on him. -10- According to this witness in cross examination he stated as under:- "My statement was read over to me by police today outside the court and told me what is my statement. He admitted that he, deceased and two other drivers drank liquor and took food together. He denied that no quarrel had taken place between the deceased and the accused. 8. P.W.11-Ahmedali Mohammad Hassan was declared hostile. Even otherwise there is nothing from his evidence against the accused. 9. P.W.9 is Dr. Bobade Hanmant Ganpati. According to this witness he found all together 33 injuries on the face, neck, thorax and right hand of the deceased. The injuries were incised cuts, stab and lacerated injuries and possible by sharp edged weapon. He had taken blood for blood grouping. He has stated that the injuries were possible with the knife. According to him Dr.K.A. Tawade assisted him in the Post-mortem. In his evidence he has stated that cause of death was hemorrhage and shock due to multiple injuries and the death was unnatural. -11- 10. P.W.14 is Abdul Salim Abdul Gani Shaikh. He was attached to the police station. He had carried the inquest Panchanama. In his cross examination he has set out that A.S.I. Kakad had referred in his F.I.R. to an unknown person as the assailant of the deceased. He admitted that Raju Patel did not state in his statement the name of Laxman Roy, as a person who had come to intervene in the quarrel, which had arisen prior to the incident. 11. P.W.15-Santosh Atmaram Bagve is API attached to Dongri Police Station. He deposed that the accused expressed his willingness to point out the knife and clothes and he had recorded the panchanama. He had also taken out the photographs. According to this witness two neighbours were called at the house of the accused as witnesses. The accused took out knife which was concealed behind T.V. and produced. Similarly the accused produced green coloured full shirt and full pant. The mudemal articles were sealed and labelled under Panchanama. He identified the knife as also in cross examination he has stated that Raju Patel did not tell him on the spot that there was quarrel between the deceased and Raju Ibrahim on the previous night. According to him Panchas had come to the Police Station at 12.45 p.m. He denied that -12- the accused was handcuffed and that the accused did not make any disclosure statement and that the accused was replying to the queries. 12. From the evidence of P.W.9-Dr. Bobade Hanmant Ganpati prosecution has established that the death was homicidal on account of multiple injuries. . The question before us is whether the prosecution has established the chain and also motive which is the requirement in a case of circumstantial evidence. The only motive that has been set out is the quarrel between the deceased and the accused on the previous night. This is supported by the evidence of the cleaner, P.W.10 and the watchman Laxman Dinanath Rai, P.W.3. P.W.7 Sikander Balgovind Singh has stated that there was no quarrel between the accused and the deceased prior to the incident in his presence. The two police officers who conducted the investigation, P.W.14 has clearly set out that Raju Patel did not state in his statement that the name of Laxman Dinanath Rai, Watchman as the person who had come to intervene between the quarrel prior to the incident. P.W.15 in his evidence has set out that "Raju Patel did not tell me on the spot that there was quarrel between deceased and Raju Ibrahim on the previous night. From this evidence what emerges is that the -13- prosecution has not been able to corroborate the statement of the cleaner Raju Patel that the watchman had separated the accused and the deceased. Also from the evidence of P.W.10 the version about timing of incident is different from the version given by the watchman. The evidence, therefore, of quarrel on the previous night between the accused and the deceased has not been established and the entire version becomes doubtful. 14. The other aspect of the evidence is that according to Raju Patel, P.W.10 he and the deceased were awake till 2.00 a.m. Admittedly the accused does not sleep at that place, but his house is at Wadala. The purported recovery of the knife with the clothes would indicate that the accused had gone home that night. The accused was arrested on the next morning when he had gone back to work. Considering these timings, the incident may have taken place after 2.00 a.m. and before 6.00 a.m. In respect of the purported recovery of the knife and the clothes the prosecution ought to have established how the accused could have travelled home with a blood stained knife and with blood stained clothes. The other drivers who were purported to be present when the quarrel took place have also not been examined. It is, therefore, extremely doubtful as to whether any quarrel had -14- taken place between the deceased and the accused. If that is not proved then the motive becomes doubtful. 15. The only other evidence is the purported recovery from the analysis of the evidence firstly we find that P.W.2 has deposed as under:- "The police made inquiry with accused in my presence. On inquiry by police officer the accused told that the knife was kept at his house." Therefore, there is nothing in the evidence of this witness to show that a memorandum was drawn up of the accused making a statement leading to the discovery of the knife. Secondly in the examination in chief there is nothing about the accused making a statement leading to the recovery of the clothes worn by the deceased on the night of the purported incident. The Panchas themselves were not inside the house when the accused is purported to have produced the knife. The signature thereafter was taken at the police station. It is no doubt true that this witness deposes that his signature was taken at two places, but there is nothing in the evidence to support that the Panchanama was drawn at the time when the accused was purported to have made -15- the statement leading to the discovery. The prosecution also examined the other Panch P.W.8 for the recovery of the knife and clothes. According to him, his signature was obtained by police on paper in Police Chowky as also the signature of Faroque, the other witness was also obtained. According to him except for the police, apart from him there was another person by name Faroque, P.W.2 the other Panch. There is nothing from this evidence to state that the accused made any statement which led to the recovery of the knife and the clothes. Further according to this witness due to darkness he does not know what happened inside the house of the accused. The knife is purported to have been recovered from the cupboard. . Once the aspect of the recovery itself becomes doubtful and has to be excluded, there is no other evidence linking the accused to the offence or he having caused the death of the deceased. In so far as discovery evidence is concerned the Supreme Court in Amitsingh Bhikamsing Thakur vs. State of Amitsingh Bhikamsing Thakur vs. State of Amitsingh Bhikamsing Thakur vs. State of Maharashtra 2007 All M.R. (Cri.) 1393 (S.C.) Maharashtra 2007 All M.R. (Cri.) 1393 (S.C.) Maharashtra 2007 All M.R. (Cri.) 1393 (S.C.) has held that discovery evidence is one link in the chain of proof and the other links must be forged in the manner allowed by law. The tests laid down for accepting the evidence under Section 27 were laid down in para.29, which read as under;- -16- "29. The various requirements of the Section can be summed up as as follows:- (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused’s own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence -17- of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 16. We then consider the C.A. Report. The C.A. Report would show that the blood of the deceased was taken for alcohol contents. The results of the analysis show that no alcohol was detected. Similarly, in so far as nail clippings of the accused were concerned no blood is detected. The blood group of the accused as Group B and no ethyl alcohol was found in his blood. The blood on the knife Articles 10, 11 and 12 of the C.A. shows human "O" group. There is no evidence of the blood group of the deceased. . On behalf of the appellant learned Counsel relied upon the judgment of the Supreme Court in Ganesh Bhavan Patel & Anr. v. State of Ganesh Bhavan Patel & Anr. v. State of Ganesh Bhavan Patel & Anr. v. State of Maharashtra, 1979 Cri.L.J.51. Maharashtra, 1979 Cri.L.J.51. Maharashtra, 1979 Cri.L.J.51. In Kansa Behera vs. Kansa Behera vs. Kansa Behera vs. State of Orissa, 1987 Cri.L.J.1857 State of Orissa, 1987 Cri.L.J.1857 State of Orissa, 1987 Cri.L.J.1857 the Supreme Court observed that the evidence about the blood group is only conclusive to connect the blood-stains with the deceased. -18- 17. One other aspect which must be considered is that the evidence of the cleaner Raju Patel that the deceased had consumed alcohol is negatived by the absence of alcohol in his blood. Secondly as per the Doctor there were in all 33 injuries on the face, neck, thorax and right hand of the deceased. It is impossible to accept that the deceased who may have gone to sleep after 2.00 a.m. and on whom so many injuries were inflicted did neither shout nor resisted and/or the incident not being heard by any other person as the evidence on record shows that vehicles were parked on each side of the road within close distance. 18. We may also point out that P.W.10 has stated that his statement was read to him before his evidence was recorded by the police. In these circumstances would his evidence become admissible. We may refer to the judgment in Zahiruddin vs. Zahiruddin vs. Zahiruddin vs. Emperor, A.I.R. (34) 1947 Privy Council 75. Emperor, A.I.R. (34) 1947 Privy Council 75. Emperor, A.I.R. (34) 1947 Privy Council 75. The Privy Council has observed as under:- "The use by a witness while he is giving evidence of a statement made by him to the police raises different considerations. The categorical prohibition of such use would be merely disregarded if reliance were to be -19- placed on the evidence of a witness who had made material use of the statement when he was giving evidence at the trial. When, therefore,the Magistrate or presiding Judge discovers that a witness has made material use of such a statement it is his duty under the section to disregard the evidence of that witness as inadmissible." The judgment was quoted with approval by the Division Bench of the Madhya Pradesh High