1 cri-apeal-978-03 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 978 OF 2003 Mr. Sahadat Hussain Rahimat Hussain @ Kaloo Kanduri .. Appellant (Org.Accd.No.1) Vs. The State of Maharashtra .. Respondent Mr. Ashokkumar Kotangale, Advocate appointed for appellant. Mr. H. J. Dedhia, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. MARCH 17, 2011. ORAL JUDGEMNT (PER B. H. MARLAPALLE,J.): 1. This appeal filed under Section 374(2) of Cr. P. C. is directed against the order of conviction and sentence for the offences punishable under Sections 396, 449 and 324 of IPC passed by the learned Addl. Sessions Judge, Gr. Bombay, in Sessions Case Nos. 504 of 1997 and 579 of 1997. Initially accused no. 4 was absconding and, therefore, the charge- 2 cri-apeal-978-03 sheet was filed only against accused nos.1 to 3 and on committal, Sessions Case No. 504 of 1997 came to be registered. However, accused no. 4 was arrested on 5/2/1997 and a supplementary charge-sheet was filed and thus one more case i.e. Sessions Case No. 579 of 1997, arising from the very same CR No. 2 of 1996 came to be registered. Both the cases have been decided by the impugned common judgment and order and only accused no.1 has been held to be guilty for the offence punishable under Section 302 of IPC. During the trial, accused no.3 died on 6/7/2001 and accused nos.2 and 4 came to be acquitted. We are, therefore, required to examine the challenge to the impugned order of conviction and sentence only qua accused no.1. 2. As per the prosecution case, PW 1 – Shantilal Jain @ Shah has a ready-made garments shop by name “Terror Fashion” at Mazgaon T.T. and his four sons, namely, Ajit (27), Anil (24), Arun (22) and Amit (20) were also helping him to run the said shop which used to remain open between 9 a.m. to 11 p.m. On 6/11/1996, as usual, the shop was opened at 9 O’clock by the eldest son Ajit and PW 1 came to the shop at about 11 a.m. He had gone for lunch between 1.20 p.m. to 2.25 p.m., but when he returned to the shop, after lunch, he saw 6-7 persons standing at the counter 3 cri-apeal-978-03 of the shop and one of them was in a blue jean suit and was wielding a revolver. PW 1 was forcibly dumped in the telephone booth by these 6-7 persons and was confined therein along with his son Ajit. These unknown persons asked about the key of the safe (Tijori) and Ajit informed them that it was in the drawer. The persons, other than the revolver holder, opened the safe drawer and collected Rs. 50,000/-. When PW 1 tried to oppose the fleeing of this party of robbers, the person wielding revolver fired in his thigh and the revolver holder snatched the golden chain from Ajit which he was wearing around his neck. When the robbers started running away, PW 1 and his son Ajit started chasing them and shouted “chor chor”. This attracted the attention of the crowd on the road as well as PW 2 – Vinodkumar Shah and his brother PW 3 – Mahendrakumar Shah who were in the opposite shop by name “Sunderam Jewellers”. PW 2 and PW 3, who are the sons of the brother of PW 1 and cousins of Ajit, also started running behind and Ajit caught hold of the revolver holder - accused no.1. He fired one bullet on Ajit to escape, but it appears Ajit did not release him and, therefore, he fired the second bullet on Ajit, but by then the members of the public had encircled the said accused and he was thrashed. Ajit had collapsed and so also accused no.1. PW 2 Vinodkumar Shah shifted PW 1 as well as Ajit to the J. J. Hospital by taxi and PW 3 Mahendrkumar Shah 4 cri-apeal-978-03 snatched the revolver held by the accused no.1 while he was lying on the ground and encircled by the crowd. In the meanwhile some one alerted the police and within ten minutes the police party reached the spot. Accused No.1 was taken in custody right at the spot in injured condition and PW 3 handed over the revolver to PW 13 – Kedari Pawar in the presence of PW 14 - Suresh Gharge (both PSI). The accused no.1 was also taken to the J.J. Hospital. Ajit was declared dead at J. J. Hospital and PW 1 as well as accused no.1 were treated by PW 10 – Dr. Jeevan Pawade, who was at the casualty in J.J. Hospital. 3. PW 11 – Dr. Shrikant Babulgaonkar conducted the atopsy and signed post mortem notes at Exh. 44. Fired Bullets were recovered from the Mazgaon T.T. chowk as well as from the shop of PW 1 along with the clothes of the deceased, PW 1 and accused no.1 and were sent for chemical analysis. On receipt of the C.A. reports and completion of the investigation, charge-sheet came to be filed on 7/4/1997. Charge was framed on 2/3/2000 at Exh.8. The prosecution examined in all 17 witnesses and claimed that PW 1 – Jayantilal Haraimal Jain @ Shah, PW 2 – Vinodkumar Shah, PW 3 - Mahendrakumar Shah and PW 9 - Balwant Dalwadi (panch witness) were the eye witnesses. One more witness i.e. 5 cri-apeal-978-03 PW 8 – Suresh Rathod was also claimed to be an eye witness, but he turned hostile. PW 13 – Kedari Pawar, PSI, PW 14 – Suresh Gharge, PSI, PW 15 – Pundalik Khandale, PW 16 – Sharadchandra Nemade and PW 17 – Shivaji Khandage were the police officers, in addition to two doctors i.e. PW 10 - Dr. Jeevan Pawade and PW 11 – Dr. Shrikant Babulgaonkar. PW 4 – Gopal Jain, PW 7 – Mahendra Sanghavi were the panch witnesses and PW 5 – Gopal Nair and PW 6 Ketan Sanghavi were the Special Executive Magistrates who had conducted the T.I. Parade on 10/12/1996 and 25/2/1996 respectively. In his statement recorded under Section 313 of Cr.P.C., the accused no.1 denied the charge and stated that he was falsely implicated. The trial court, on appreciation of the evidence adduced by the prosecution, held that accused no.1 was guilty of the offences punishable under Sections 396, 449 and 324 of IPC and he was sentenced to suffer RI for life and to pay fine of Rs.5000/-, in default RI for three months for the offence punishable under Section 396 of IPC. He has been further sentenced to suffer RI for five years and to pay a fine of Rs.3000/-, in default RI for one month for the offence punishable under Section 449 of IPC and he has been also sentenced to suffer RI for two years and to pay a fine of Rs.1000/-, in default RI for one month for the offence punishable under Section 324 of IPC. All the sentences have been directed to run 6 cri-apeal-978-03 concurrently and with the benefit of set off under Section 428 of Cr.P.C. 4. PW 11 – Dr. Babulgaonkar was the Medical Officer, who had conducted the post mortem and signed the post mortem notes at Exh. 44. He stated before the trial court that he was the Medical Officer attached to the J. J. Coroner’s Court in the year 1996 and on 6/11/1996 at about 5.30 p.m. the dead body of Ajitkumar Jayantilal Shah was brought to him for autopsy under ADR No. 204 of 1996. He conducted the autopsy between 6 p.m. to 7 p.m. on the same day and found the following external injuries on the person of Ajitkumar Shah:- a) Fire arm wound guttering on the face just 1.5 cm. above, 3.5 cm. from midline of rt. eyebrow 2.0 cm x 1.0 cm reddish. No singeing and tattooing. b) Fire arm wound guttering on the face of rt. side just below right eye brow 2.0 cm below it and 3.5 cm from midline front size 2.0 cm. x 1.0 cm. reddish. No singeing and tattooing. c) Fire arm wound of entry just 1.0 cm above mid clavicular point and 5.0 cm from the midline on right side size 1.0 cm x 0.8 cm. collar abraded and margins inverted. Tattooing and 7 cri-apeal-978-03 singeing present. d) Fire arm wound of exit just and above manubrium sterni i.e. 1.0 cm and partly in the midline neck front, 1.0 cm x 1.0 cm. size collar abraded margins inverted. Tattooing and singeing present. e) Fire arm wound of entry on left side of chest fron 2.0 cm. medial to memmody gland 3.9 cm. from chest midline front. Abrade collar inverted margins. Tattooing and singeing present, size 1.0 cm. x 0.3 cm. The Doctor had found the following corresponding internal injuries: a) Corresponding with external injuries no.3, perforated skin, subcutaneous tissue, plutysma muscles and strep muscles of neck Perforating laryngeal cartilage of laryngeal destording trachea and coming out through the fire arm wound of ext (4). damaging external carotids venal muscle, nerves. Hemorrhage seen along the passage of bullet. b) Corresponding with external injury No.5, Perforating the 8 cri-apeal-978-03 skin, subcutaneous tissue at 2.0 cm medial to left memmody gland, Fracturing the rib. Bullet pierced skin, sub-cutaneous tissue muscles, Fracturing rib piercing plura. Left sides lung and heart and then right side lung, fracturing obliquely downwards to right side bullet retrieved at the level of 11th rib 8.0 cm. from midline in Thorasic cavity. Blood infiltration through out. Bullet passage. As per the Medical Officer, the cause of death was fire arm injuries. During the autopsy, he had retrieved one piece of bullet embodied in the body and it was sent to a Ballistic expert. C.A. report was received at Exh.45. He denied the suggestion that injury nos.1 and 2 were on account of guttering effect of injury nos.3 and 5. As per him, injury nos.1 and 2 were caused because of brushing of body by the bullet and he admitted that injury nos.3 and 5 were the two entry injuries. He also admitted that the weapon (revolver) allegedly used in the crime was not shown to him till he was in the witness box. From the evidence of this witness, it was clear that the deceased was shot at twice and he died in the same instantaneously. 5. PW 10 – Dr. Jeevan Pawade was the Medical Officer on duty 9 cri-apeal-978-03 at J.J. Hospital on 6/11/1996 and he stated before the trial court that at about 2.40 p.m. PW 1 – Jayantilal Shah was brought to the hospital by police constable – Buckle No.9941 from J.J. Marg Police Station in injured condition. PW 1 was examined by him and following injuries on his person were noticed:- a) Two contused lacerated wounds, - Entry wound size ½ x ½ cm. curricular on lateral aspect of right thigh. Exit wound over the medial aspect of right thigh, size ½ x ½ cm. on medial aspect of rt. thigh. b) C.L.W. 1 cm x ½ mucosa, tear, on the upper lip. Both the injuries were simple in nature and could have been caused within six hours by hard and blunt object. He also admitted that the patient Jayantilal Shah had given the history of bullet injuries at about 2.30 p.m. He was referred to specialty Surgeon in Ward No.4. Medical papers at Exh. 41 along with X-ray copy were placed on record. The doctor further stated that on the same day at about 3.50 p.m. accused no.1 was also brought to the hospital by a police constable for 10 cri-apeal-978-03 medical examination and on such examination, the following injuries were noticed on the person of accused no.1:- a) Two contused lacerated wounds. First one being 5 cm x 2 cm x 1 cm deep over the parietal region of the head. Second one being 2 cm x 5 skin deep over the left parietal region of the head. b) Contusion 2 cm x length red in colour, over the back. Both the injuries were simple in nature and could have been caused by hard and blunt object within six hours. The accused no.1 had given the history of assault by stick over the head and on back by the public on 6/11/1996 at about 2.30 p.m. As per the doctor, the injuries could have been caused by the blow of stick. Medical papers at Exh. 42 were placed on record. The accused no.1 was further referred to specialty Surgeon. He admitted that the injuries caused to PW 1 could have been caused from beyond powder range and the lip injury caused to him could be possible if he had dashed against the wall. He also admitted that injury no.1 sustained by accused no.1 could have been caused during the assault by a stick and the second injury also could have been caused in the same 11 cri-apeal-978-03 manner. He also admitted that PW 1 did not disclose as to which type of fire arm was used when he was fired at. The medical history, as disclosed by the patients, has been recorded in Exhs. 41 and 42 respectively. From the evidence of this doctor, the prosecution proved that PW 1 was an injured witness and suffered injuries on account of a fire arm. It is proved that accused no.1 was beaten up by the public at about 2.30 p.m. with sticks and other similar hard and blunt object and with a revolver in his hand by which he had fired at Ajit. He was brought to the hospital in injured condition. 6. Now coming to the evidence of the eye witnesses about the incident, PW 1 – Jayantilal Hajarimal Jain @ Shah stated before the trial court that when he returned after his lunch to his shop (Terror Fashion) at about 2.25 p.m., he had seen that 5-6 persons were standing at the counter of his shop and one of them was attired in blue jean suit and was wielding a revolver. These persons had forced him into the telephone booth, where they had already confined his son Ajit and the moment he was taken in the telephone booth, they asked him about the safe key and Ajit had told them that the key was in the drawer. The persons who were along with the revolver holder, removed the key from the drawer and collected an amount 12 cri-apeal-978-03 of Rs.40,000/-, consisting of four bundles of Rs.100/- denomination and also Rs.5000/- consisting of bundles of 100 notes with denomination of Rs. 50/-. When PW 1 questioned as to why they were removing the money, the revolver wielding person asked him to keep quiet and to keep facing the wall. He than snatched away the golden chain from his son Ajit. PW 1, therefore, again asked him who he was and why he was doing such acts. The revolver wielding man fired one bullet on his leg (right thigh) and they started running away. PW 1 and his son Ajit went after them. The revolver wielding man ran towards Mhatarpakhadi and Ajit went chasing him, whereas the other persons ran towards Mazgaon T.T. side. Ajit held the revolver wielding person by his collar and he started firing. PW 1 and others shouted “chor chor” which attracted the crowd. Because of the bullet injury Ajit fell down and PW 2 – Vinodkumar Shah took PW 1 and Ajit to the hosptial in a taxi. At that time itself the accused wielding revolver was caught by the public. At the hospital he was removed to Ward No.4 and his son Ajit was declared dead. After some time, the revolver wielding accused was also brought to the hospital because he had sustained injuries. PW 1 told the police at that time itself that he was the same person who had killed his son Ajit. His complaint was recorded by the police in the hospital itself. He had read the said complaint (Exh. 16). He 13 cri-apeal-978-03 also identified the man who was wielding a revolver and who had been brought to the hospital i.e. accused no.1 in the court as well. He further stated that on the very same day the police had handed over to him the golden chain of his son Ajit, after it was identified by him and it was given to him on bond dated 30/1/1997 (Exh. 17 colly.) The golden chain (Art.A) was produced in the court. He stated that the entire incident in his shop lasted for 10 minutes. He also admitted that on 10/12/1996 and 25/2/1996 he was taken to the Arthur Road Jail for T.I. Parade and in the first round he had identified accused no. 2 – Rambhavan and in the second round he had identified accused nos.3 and 4. He pointed out that the gray coloured Khaki full pant was on his person during the incident (Art.C) and there was a bullet mark on the same. He also admitted in the cross-examination that his readymade garment shop was opposite Konkan Bank and he also had a STD Booth, attached to the said shop, which was very near to the Bus stand. His shop had glasses and the readymade garments were put on display. A person inside the shop could see outside, but vice-a-versa was not possible. He was residing in the lane going to Byculla Police Station. His monthly sale was to the extent of Rs.80,000/-. The amount of Rs. 45,000/- was brought by his son Ajit to the shop on the date of the incident. He admitted that he wore bifocal glasses with a number of 2.5 for the last 14 cri-apeal-978-03 six years. He also stated that he had seen the revolver used by accused no. 1, but he could not describe it. In his cross examination, he admitted that after he was taken to the hospital along with his son Ajit, he was not aware as to what was done to accused no1 at the spot of the incident, but he had seen accused no.1 was caught by the public. He was certain that the chain which was handed over to him by the police was worn by Ajit. He also stated that he had seen accused no.1 in the shop for about 5-10 minutes and from a close distance of 2-3 fts. He admitted that he was scared during the incident and he was afraid that the gangsters would fire at him. He also stated that it was accused no.2 who had taken away the money from the drawer. His statement was recorded at about 3.45 p.m., while he was in the hospital. In the searching cross-examination on behalf of the defence, the testimony of this witness on the material circumstances could not be shaken in any manner and he had seen accused no.1 right from the time he was pushed in the telephone booth and till his son collapsed due to the fire arm injuries and the accused no.1 was caught hold by the public in the Mazgaon T.T. Chowk. He stated that PW 2 – Vinodkumar Shah and PW 3 – Mahendra Shah were also following him and his son when they were chasing the 15 cri-apeal-978-03 accused. 7. The recovery of chain from accused no.1 has been proved by the evidence of PW 7 – Mahendra Sanghavi. He stated before the trial court that on 6/11/1996 at about 4 p.m. he was called by the police at J.J. Hospital and in his presence the police had searched the accused person. One driving license and some cash amount was recovered from him along with one gold chain. The panchanama thereafter was drawn at Exh.29 and it was signed by him along with other panchas. He remembered that train ticket was also seized along with the shirt of the accused person. He identified the accused in the court as to be the same as accused no.1 who was present in the police station and from whom the gold chain was seized. The cash amount of Rs.400/- recovered from the accused. Article – A was the same chain and Article – D was the shirt seized in his presence from the accused no.1. In his cross-examination he admitted that when the panchanama Exh.29 had read over to him, he noted that it was recorded as per the events which had occurred in his presence. He also stated that the shirt, Article – D was removed from the person of the accused no.1 by the police but he did not remember whether the said fact has been mentioned in the panchanama at Exh.29. He also admitted that at the relevant time, 16 cri-apeal-978-03 along with the police personnel and the two panchas no one else was present, except the accused in the custody of the police. 8. PWs 2 and 3 are the next set of eye witnesses and their testimony fully corroborates the evidence of PW 1. PW 2 – Vinodkumar Shah stated before the trial court that on 6/11/1996 between 2 to 2.30 p.m. he had seen a man coming out of his uncle’s shop and followed by Ajit as well as PW 1 and they were shouting “chor chor”. Ajit had caught hold of accused no.1 at the nearby Square (chowk) and at that time accused no.1 was holding a revolver in his hand. A scuffle was going on between Ajit and accused no.1 and accused no.1 fired from his revolver on Ajit. In the meantime, he also rushed near them but because of the bullet injuries Ajit fell on the ground. The persons standing nearby caught hold of accused no. 1 and he had taken PW 1 and Ajit to the J. J. Hospital in a taxi. After some time, the police officer reached the hospital along with the accused no.1, as he had also sustained injuries. He also stated that when accused no.1 came out of the uncle’s shop, other 5-6 persons were along with him. He identified accused no.3, accused no.4 and accused no.2 in the court, as the same persons who were also identified by him during the T.I. Parade on 10/12/1996 and 25/2/1997. He also stated that his statement was recorded 17 cri-apeal-978-03 by the police and it was read over to him. He denied the suggestion that accused no.1 took out the revolver only after he was caught hold of by Ajit. He also admitted that he came to know of the bullet injuries sustained by PW 1 only at the hospital. This evidence has been corroborated by PW 3 – Mahendra Shah. He stated before the trial court that he had seen his cousin Ajit was holding one person by his collar and scuffle was going on between the two near the taxi stand at Sant Parab Chowk and in the middle of the road. The person caught hold by Ajit was holding a revolver and was trying to run away. The witness had seen that Ajit was fired at once or twice and in the meantime crowd had gathered. From that crowd someone gave a blow of stick to the accused and he fell on the ground. PW 2 – Vinodkumar Shah had taken PW 1 and Ajit to the hospital by a taxi. The crowd had encircled the accused who was lying on the ground holding a revolver. He had snatched that revolver from the hand of the accused and handed it over to PW 13 – Kedari Pawar when he arrived at the scene along with PW 14 – Suresh Gharge, PSI. Thereafter they rushed to the J.J. Hosptial and came to know that Ajit was declared dead and his uncle was admitted in the hospital ward. The police arrived in the hospital after about 10 minutes along with the accused who had fired at Ajit and the said accused also had sustained injuries at the hands of the crowd. He had 18 cri-apeal-978-03 identified the said person at the