: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.188 of 2001. Criminal Appeal No.188 of 2001. Criminal Appeal No.188 of 2001. 1. Jahir Abbas Appasab Bagvan 2. Mubarak Shamsher Ali Khan 3. Bilal Mahommaed Alli Khatib 4. Manvel Fasku D’Souza ..Appellants/ (Original Accused Nos.1 to 4) Versus State of Maharashtra ..Respondent Smt. Varsha Palav for the appellant nos.3 and 4 Smt. Revati Mohite-Dere for Appellant Nos.1 & 2 Dr.F.R.Shaikh, APP for the respondent- State CORAM: S.B.MHASE & CORAM: S.B.MHASE & CORAM: S.B.MHASE & S.R.SATHE, JJ. S.R.SATHE, JJ. S.R.SATHE, JJ. DATE : 28th Sept, 2005 DATE : 28th Sept, 2005 DATE : 28th Sept, 2005 ORAL JUDGMENT (Per S.B.Mhase, J.) ORAL JUDGMENT (Per S.B.Mhase, J.) ORAL JUDGMENT (Per S.B.Mhase, J.) 1. This appeal is directed against the Judgment of conviction and sentence imposed by the Sessions Judge, Sindhudurg, Oras, in Sessions Case No.12 of 2002 decided on 21.1.2001. The Appellants/Original accused were held guilty for the offences punishable under Section 302, 201 r/w. 34 of I.P.C. They were sentenced to suffer imprisonment for life and to pay fine of Rs.200/- each i.d. to suffer R.I. for one year under Section 302 r/w. 34 I.P.C. The accused : 2 : were further sentenced to suffer R.I. for three years and to pay fine of Rs.1000/- each i.d. to suffer R.I. for three months for the offence punishable under Section 201 r/w.34 of I.P.C. The Appellants/accused were charged under Section 395 r/w.397 of Penal Code, however the Sessions Judge has recorded the finding of acquittal under these two sections. 2. The offence is dated 26.10.1999 committed at about 6.45 to 8.30 p.m. in Amboli Ghat, situated between Sawantwadi and Ajra in Kolhapur district. Shri Javed Khanapuri, the deceased, was the resident of Belgaum and he was a wholesale vegetable dealer. He used to supply vegetables to the retail vegetable dealers situated at Banda, Sawantwadi, Malewad, Shiroda, Vengurla by tempo. At the relevant time, there was strike of tempo and therefore the vegetables were sent by S.T.bus. It was the practice of the deceased that on every Tuesday the deceased used to visit the above referred places for recovery of the prices of vegetables supplied, and used to return by 9.00 O’Clock in the night. It was also his practise that at about 4.00 O’Clock in the afternoon the deceased used to telephone at Belgaum and inform his family members to purchase the vegetables. On 26.10.1999, i.e. on the day of the incident the : 3 : deceased had left Belgaum at 6.00 p.m. by S.T.bus and had come to Sawantwadi. Thereafter at 4.30 p.m., the deceased had telephoned to his brother Wahid and told him that he shall purchase the vegetables for the next day and had informed that the recoveries were yet to be completed. Thereafter the deceased is not reported to be alive. According to the Prosecution, the deceased collected the recoveries onwards Sawantwadi by visiting various places and had returned to Sawantwadi again alongwith P.W.7 Mohammed Hudali, who is a betel-nut vendor. Both of them had met each other at Vengurla, and from Vengurla they have returned at about 3.00 to 4.00 O’Clock on 26.10.1999 to Sawantwadi. Thereafter, P.W.7 Mohammed Nisar had gone for his recovery work. The deceased had thereafter visited the shop of accused no.1. P.W.13 states that an amount of Rs.6000/- was paid by accused No.1 and for remaining amount, he asked the deceased to wait. P.W.13 also states that he has paid an amount of Rs.6900/- Thereafter the deceased was seen at about 6.00 p.m. at Gavali Titha by P.W.25 Iqbal and also by P.W.16 Akbarali at 6.30 p.m. in the company of accused No.1. Since the deceased did not return home, his brother on the next day came to Sawantwadi alongwith P.W.7 and others in search of deceased Javed. They went to the house of Bakhtar and made enquiries. While making enquiries it was : 4 : disclosed that Javed was in the company of accused Nos.1 to 4 in Amboli Ghat. Since then deceased was not traced and these four persons were also not found, on 27.10.1992 the cousin brother of the deceased Fazal has lodged his Missing Report. Ilyas alongwith others visited the said spot in Amboli Ghat and they found the dead body of the deceased Javed. Thereafter the First Information Report was lodged by P.W.5 Vahid on the basis of which C.R.No.128 of 1999 was registered by the Sawantwadi Police Station under Section 302, 397 r/w.34 of I.P.C., and the crime was investigated, and the chargesheet was filed as against the accused. 3. So far as the death of Javed is concerned, there is no dispute that the death is homicidal. Even the post mortem report shows that there were as many as 18 injuries on the person of the deceased and the cause of death is acute cardio respiratory arrest due to hypo pneumatic haemorrhage shock due to multiple injuries, and therefore, we conclude that the death of Javed Khanapuri was homicidal death. 4. The next question is as to who is responsible for the death. It requires to be stated in the beginning that there is no direct evidence so far as the incident is concerned. The evidence is by way of : 5 : circumstantial evidence, and the circumstantial evidence is last seen with the deceased, secondly, the subsequent conduct of the accused persons, thirdly, absconding of the accused for a pretty long period, fourthly, the articles collected from the spot and the discoveries effected at the instance of the accused persons alongwith the Chemical Analyser’s Report. 5. The Learned Counsel appearing for the Appelant-accused submitted that there was no motive for committing the offence and that the circumstance on record are not conclusive in nature to the effect that the accused are the culprits. It is further submitted that the evidence of last seen together is not trustworthy to be believed. It is further pointed out that the prosecution has failed to prove the possibility of any other accused being guilty of the offence. The Learned Counsel submitted that the case of the prosecution is based on suspicion and the evidence in respect of discovery and recovery is not reliable to be accepted to pass the conviction. 6. The learned Counsel Shri Shaikh who appears for the State submitted that the prosecution has beyond reasonable doubt established the case that the accused are the only persons who are responsible for the death : 6 : of the deceased Javed. The learned Counsel Shri Shaikh further submitted that the evidence in respect of ‘last seen together’ and the subsequent conduct of the accused persons as also the fact that they were absconding and the discoveries convulsively prove that the accused are the persons who have committed the offence in question and thereby the Sessions Judge has rightly convicted them. In view of these submissions, we desire to scrutinize the evidence of each and every aspect. LAST SEEN TOGETHER LAST SEEN TOGETHER LAST SEEN TOGETHER 7. P.W.5 Vahid Khanapuri, who has lodged the First Information Report has stated that on 26.10.1999 deceased Javed had left for Sawantwadi at 6.00 a.m. and there was a phone call from Sawantwadi from Javed at 4.30 p.m. wherein he had disclosed that some recoveries are effected, but less amount is received of the vegetables supplied by S.T.bus and he would return late. However, till 12.00 in the midnight, the deceased did not return home. On the next day also, he waited for arrival of Javed upto 10.00 O’Clock and thereafter he started to make enquiries. He contacted one Mr. Bakkar at Sawantwadi on telephone. However, the said Bakkar reported that he would enquire about : 7 : Javed in the market and thereafter let him know. He has further stated that thereafter, he alongwith P.W.7 Ilyas and his brother Sadik and Mustak started for Sawantwadi by car and they reached Sawantwadi at 3.00 p.m. On enquiry about Javed, some four to five persons have disclosed that Javed had left on motorcycle with accused Nos.1 to 4. He further stated that thereafter he made search of the four persons, but they were not found, and therefore, he instructed his cousin brother Fazal to inform the police. His evidence further discloses that on 28.10.1999, his brother Sajid and some other persons went to Goa for search of Javed. He and P.W.7 Ilyas were searching the deceased at Sawantwadi. They went to Amboli GHat. At that time, P.W.7 Ilyas told him that on 26.10.1999, when he was proceeding towards Belgaum, he saw four persons in Amboli Ghat on motorcycle. Therefore, they went to the said spot at Amboli Ghat. At that time, they found a chappal/slipper, and when they went little ahead, they found chilli powder in plastic bag and then they found they dead body of deceasedat about 10 to 15 feet. Thereafter P.W.5 has lodged the First Information Report which is at Exhibit 47. The spot was shown to the police by P.W.7 Ilyas and the spot panchanama was prepared which is at Exhibit 48. According to this witness, there was amount of Rs.76,028/- with the : 8 : deceased which he had recovered from the vegetable retailers. It is to be noted that so far as this witness is concerned, this witness is not having any personal knowledge as to who has committed the offence, but on search made by this witness the dead body was recovered and he has lodged the First Information Report. But one circumstance which is to be noted is that he has stated that when he came to Sawantwadi alongwith Ilyas and Sadik, four to five persons had told them that Javed had left on motorcycle with accused Nos.1 to 4. After going through all the evidence on record, we find that prosecution has not made efforts to trace the four to five persons who have given this information to P.W.5 & 7. In fact, the Investigating Officer should have investigated this aspect of the matter and should have traced out the four to five persons who had personal knowledge about seeing the deceased with the accused persons. In the absence of the evidence of this four to five persons, the statement made by P.W.5 that the four to five persons disclosed them that the deceased had left with accused is a hearsay evidence and that cannot be taken into consideration. This witness is not having any other information. 8. It will be seen from the testimony of P.W.6 : 9 : Fazal Abdul Sattar Khanapuri, who is the cousin brother of the deceased that he has lodged a missing report No.23 of 1999 at 23.30 hours on 27.10.1999. That means P.W.6 was alongwith P.W.5 when P.W.5 came to Sawant wadi on 27.10.1999 in search of deceased Javed and he has lodged the report at the instance of P.W.5. What is to be noted is that from the evidence of P.W.5 it is reflected that after his arrival he got the information that the deceased Javed had left alongwith accused Nos.1 to 4. However, this witness, i.e. P.W.6 when filed the missing report, did not disclose this information to the police. Instead of showing any suspicion as against accused Nos.1 to 4, simply a missing report is filed. His evidence does not take us anywhere so as to come to the conclusion that the accused have committed the offence. 9. The evidence of P.W.7 Ilyas shows that he is doing betel-nut business and like deceased Javed, he is supplying betel-nuts to various places in Sindhudurg District. He has deposed that on 26.10.1999 he had been to Sawantwadi. He came by car while deceased Javed came by bus. P.W.7 was also accompanied with Imam Hussein, Iqbal, Ajay, and Chandu driver. He states that he came to Sawantwadi and the car went to Kudal and he went from Sawantwadi to Vengurla by bus : 10 : and collected the amount from vendors at Vengurla. At that time he met the deceased Javed at Vengurla. Then he and the deceased Javed came together from Vengurla to Sawantwadi on motorcycle which was taken by Javed. After arrival at Sawantwadi at 3.00 p.m., Javed went for collection of the amount and he also went for his own collection. He further stated that he completed his recovery and went to Belgaum from Sawantwadi at 7.00 p.m. alongwith Imam Hussein, Iqbal, Ajay and Chandu driver in the car. He states that he saw four persons at a distance of 23 to 24 kms near a water fall at Amboli Ghat in Sawantwadi. There were two motor cycles, one was coming down towards Sawantwadi and the other was going towards Amboli. The person who was proceeding towards Sawantwadi was in a frightened condition and he was to dash their car. They did not wait because it was 7.30 to 8.00 p.m. on 26.10.1999. He has further deposed that on the next day, P.W.5 and his brother made enquiry of Javed and he told them that they were together from Vengurla to Sawantwadi and that he did not know as to where Javed had gone thereafter. Since the whereabouts of Javed were not traced, therefore, he alongwith Sadik, Vahid and Mustak went to Sawantwadi by car. They went to the house of Bakkar, and on inquiry it is again found that the deceased Javed had left alongwith four persons namely, the : 11 : accused nos.1 to 4. He gave the names of accused Nos.1, 3 and 4 and stated that the name of fourth person is not being remembered. He has further given the information to P.W.5 that he had seen the motor cyclist who was about to dash his car and hence they should search said place. He further states that he alongwith four to five persons went to Amboli Ghat where he had seen the motorcyclist. They then found a chappal, packet of chilli powder and thereafter they noticed the dead body of Javed. He stated that accused No.4 was the person who was riding the motorcycle and coming towards Sawantwadi. He has admitted in his cross-examination that there was fog in Amboli Ghat in the month of October and the car had to be driven by taking help of the guard stones, due to the thick fog. He has admitted that nothing was visible beyond two to three feet and there was fog by the side of the road and hence everything was invisible due to fog. He has further admitted that he has not given the description of the four persons before the police and there was no Identification parade held of the said four persons. If these admissions in the cross-examination are taken into consideration, it will have to be concluded that the identification parade of accused no.4, which he has made as the person seen in Amboli Ghat, is of no consequence, and it cannot be accepted. It is : 12 : difficult to believe that when there was fog in Amboli Ghat and even driving was not possible without the help of guard stones, he had seen the said four persons in Amboli Ghat. Therefore, his evidence in that behalf is not acceptable. It is further to be noted that like P.W.5, he has also got information that Javed was in the company of the four accused persons, and so it is a hearsay evidence and is of no consequence. 10. Then the prosecution has examined P.W.16 Akbar Ali. This witness has deposed that on 26.10.1999 at about 6.30 p.m.when he was proceeding from Vengurla stand to the market, he saw all the accused standing at Vengurla Stand. He further deposed that Accused No.1 was proceeding on motorcycle towards market and he asked this witness whether he is proceeding towards market, and when this witness said yes, he gave lift to him to the market. He further deposed that on 27.10.1999, this witness had been to Banda on motor cycle in the morning and while returning from Banda, at about 1.00 p.m., he met accused No.3 near the police line at Sawantwadi. At that time, he saw an injury on the right wrist of the accused. From his cross-examination, it appears that on 27.10.1999, he had accompanied the brother of Javed at Amboli Ghat and was searching Javed as he had not returned home. He : 13 : further states that on 28.10.1999 also he had been to Amboli Ghat with other person and had seen the dead body of Javed. From his testimony, it appears that on 26.10.1999 at 6.30 p.m., all the accused were at Vengurla S.T.Stand and that the accused No.1 and this witness came to the market at about 6.30 p.m. It is pertinent to note that this witness has not deposed that the deceased was in the company of the accused. On the contrary, his testimony takes away accused no.1 to the market, dis-associating accused no.1 from the deceased. 11. The evidence of P.W.13 Numan Usman Aga shows that at 4 to 4.30 p.m., he had been to the weekly bazaar and he paid the amount of Rs.6900/- to Javed. Thus, the presence of the deceased Javed is tried to be established, but his evidence does not lead us any further. 12. Then the prosecution has led the evidence of P.W.15, Sarfaraj Khaja, who is the person in whose house accused No.2 was earlier residing as a tenant, and accused no.3 and accused no.1 are residing in the same wada. He has deposed that on 26.10.1999 at about 7.00 p.m., he was proceeding towards Ajra and when he came to Gavalititha (S.T.Stand), he missed the last bus : 14 : which was of 6.15 p.m., therefore he gave signal to Tata sumo which halted. When he was waiting near the tata sumo he had seen accused No.3 Bilal on the pillion seat of Yamaha Motorcycle which was proceeding towards Amboli Ghat. He further states that while the sumo was passing from Amboli Ghat, he saw two motor cycles in Amboli Ghat which were near the water fall. Accused No.3 Bilal and accused No.1 Abbas were near the water fall and two other fellows were near them, but he does not know the names of those persons. He has further deposed that on the next day ,he returned to Sawantwadi from Ajra. At about 12.30 p.m., Bakkar inquired with this witness about Abbas and Bilal. He stated that he had not seen them on that day, but he had seen them on the previous night at Amboli Ghat. He further states that at about 2.30 to 3.00 p.m., he had been to Sawantwadi bazaar. When he was near the shop of Mane, accused No.3 Bilal called him and enquired as to why he was searching for him. He told Bilal that he was not searching him, but Ramzan and Nasir were searching for him. This witness further states that he enquired with Bilal as to whether he was at Amboli Ghat on the last night. Bilal informed that he had taken liquor. He further states that the motorcycle which was seen by him at Gavali Titha was bearing No.GA-01/6790. From his cross-examination, it is seen that he had been : 15 : fined Rs.75/- for bringing beef to Sawantwadi. He has stated that when he was standing near the Sumo, a motorcycle passed by his side and the speed of the motorcycle was 30-35 k.m.p.h. and that he has seen the rider and the pillion rider of the said motor cycle from their backside while travelling in the sumo. He has also stated that he was sitting at the rear seat of the sumo. He has stated that he has seen the motor cycle at Amboli Ghat just for a second. He has further stated that he has identified the pillion rider on the motorcycle by the shirt on his person. There was no identification parade in respect of the said person. There was no identification parade held at all by the police persons. He has further admitted that he has not stated the make of the motorcycle when he made the statement before the police. From his evidence, it will have to be seen that this witness has seen accused No.3 at 7.00 p.m. at Gavali Titha because he had missed the last bus at 6.15 p.m. However, he does not say that the deceased was in his company at Gawalititha. It is further to be noted that even though he has stated that he knows the four accused persons, he has only identified accused Nos.1 and 3 at Amboli Ghat and he has not identified accused Nos.2 and 4 at Amboli Ghat. He only states that he had seen accused No.3 when he was sitting at Gavali Titha and : 16 : that too from the backside. Taking into consideration his testimony in the examination-in-chief and cross- examination, there is no doubt in our mind that this witness is not reliable witness because he has identified accused No.3 from the backside and that too by the shirt on his person, and hence the same cannot be taken to be proper identification of the accused. He had seen four persons at Amboli Ghat, and out of them he has identified only accused Nos.1 and 3 and has failed to identify accused Nos.2 and 4, is the circumstance against the prosecution because this witness knows all the four accused persons, and therefore he could have identified all the four accused at Amboli Ghat. He could not identify these persons at Amboli Ghat because it has come from the testimony of P.W.7 Ilyas that there was fog in Amboli Ghat and visibility was very poor. Above all even though he has stated that he has seen the four persons in the Amboli Ghat and out of them he identified accused Nos.1 and 3, yet he has not deposed that the deceased was in the company of these four persons. 13. All these witnesses are the witnesses on the point that the deceased was last seen with the accused persons. However, on proper analysis of the evidence of these witnesses it will be revealed that P.W.25 says : 17 : that he had seen the deceased with the accused at 6.00 p.m. at Gavali Titha. However, P.W.25 is not speaking anything about the rest of the accused being present at Gavali Titha. P.W.16, on the other hand, says that at 6.30p.m. he had seen all the four accused at Gavali Titha, but he is not saying anything about the presence of the deceased, and above all, this witness states that accused no.1 has given lift to him upto the market. Considering the evidence in its totality, what we find is that even though at 6.00 p.m. the deceased was in the company of accused no.1, but at 6.30 p.m. to 7 p.m., he was not in the company of the deceased. At 6.30 p.m. even though all the accused were at Gavali Titha, however the deceased was not there, therefore it appears that at about 6.30p.m. the deceased must have left, but the accused remained at Gavali Titha, and out of them P.W.16 and accused No.1. went to market, since accused no.1 gave lift to him. Therefore, we do not find that the prosecution has established the circumstances, namely, that deceased Javed was last seen together with the accused persons at Gavalititha at about 6.00 to 6.30 p.m. or even at Amboli Ghat at any time. SUBSEQUENT CONDUCT OF THE ACCUSED. SUBSEQUENT CONDUCT OF THE ACCUSED. SUBSEQUENT CONDUCT OF THE ACCUSED. : 18 : 14. The prosecution has brought on record evidence of P.W.Nos.8, 11, 12 and 17 to show the abnormal conduct of the accused persons after the commission of the offence. For this purpose, P.W.8