sat 1 cri.appeal 1281-2004 and 1282-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1281 OF 2004 Ismail @ Sunny @ Badshah Yusuf Shaikh ...Appellant/ Original Accused No.2 vs. The State of Maharashtra ...Respondent AND CRIMINAL APPEAL NO. 1282 OF 2004 Kisan Soma Rathod ...Appellant/ Original Accused No.1 vs. The State of Maharashtra ...Respondent Mr.Abhaykumar Apte, Advocate for the Appellants. Mrs.U.V. Kejriwal, APP for the State. CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. JUDGMENT RESERVED ON : AUGUST 18, 2011 JUDGMENT PRONOUNCED ON : AUGUST 25, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellant Ismail @ Sunny @ Badshah Yusuf Shaikh in Appeal No.1281/2004 and the appellant Kisan Soma sat 2 cri.appeal 1281-2004 and 1282-2004 Rathod in Appeal No.1282/2004 feel aggrieved by the judgment and order dated 31st July, 2003 in Sessions Case Nos.430/1999 along with 820/1999 of Sessions Court, Mumbai. 2 Both the appellants along with original accused no. 3 Khalil Ahmed Gulam Mohd.Khan and original accused no.4 Mohd. Hussain Abdul Aziz Shaikh were prosecuted by Malad Police Station for the offences punishable u/ss. 302 read with 34 of IPC and 25(1-B)(a) read with 3 and 27 of the Arms Act. 3 The original accused no.3 was absconding and his trial was separated. At the end of trial, accused no.4 Mohd. Hussain Abdul Aziz Shaikh was acquitted of all the charges. The appellants have been convicted for the offence punishable u/s.302 read with 34 of IPC and have been sentenced to suffer imprisonment for life and to pay a fine of Rs.3000/- each, in default, to undergo further RI for three months each. They have further been convicted for the offence punishable u/s. 25(1-B) (a) of the Arms Act and sentenced to suffer RI for two years and sat 3 cri.appeal 1281-2004 and 1282-2004 to pay a fine of Rs.1000/- each, in default, to suffer further RI for one month each. The appellants are also convicted for the offence punishable u/s. 27 of the Arms Act and have been sentenced to suffer RI for two years each and to pay fine of Rs. 500/- each, in default, to suffer further RI for 15 days. The learned trial court has granted benefit of set-off and has directed that the substantive sentences shall run concurrently. 4 The appellant Kisan Soma Rathod in Appeal No. 1282/2004 will be referred to as ‘appellant no.1’ and the appellant Ismail @ Sunny @ Badshah Yusuf Shaikh in Appeal No.1281/2004 will be referred to as ‘appellant no.2’ hereinafter. 5 The appellants have been convicted for having committed murder of Ajay Mishra by means of fire arms. The appellants were identified by son and wife of the deceased. The conviction of the appellants is mainly based on the oral testimony of the son and wife of the deceased. The deceased Ajay Mishra had suffered multiple fire arm injuries in the sat 4 cri.appeal 1281-2004 and 1282-2004 incident which took place in front of his house. The Medical Officer had opined that the deceased had died due to haemorrhage and shock due to fire arm injuries. It appears that some deformed cuprojacketed bullets were retrieved from the dead body. 6 The identification parade was also held in which the son and wife of the deceased had identified the appellants. 7 Since both the appeals have been submitted by the appellants from the jail and since there was no Advocate on record on behalf of the appellants, we have appointed Advocate Mr.Abhaykumar Apte to appear on behalf of both the appellants. 8 It is submitted on behalf of the appellants that they have been falsely implicated in this case and that there was no reliable evidence to come to the conclusion that the appellants were holding fire arms without licence and that they had used sat 5 cri.appeal 1281-2004 and 1282-2004 the fire arms unauthorisedly. It was further submitted that the learned trial court has erred in coming to the conclusion that the appellants had been seen by son (PW 1) and wife (PW 2) of the deceased from the kitchen window. Mr.Apte had submitted that in fact, this is an improvement made by both the witnesses during the course of recording of their evidence. The learned Advocate Mr.Apte had also brought to our notice that as far as the evidence of PW 1 and 2 that they had seen the appellants from kitchen window is concerned, their previous statement recorded by the police is silent on this aspect of the case. Mr.Apte submits that it is a material omission in the evidence and goes to the root of the case. 9 Learned APP Mrs.Kejriwal appearing on behalf of the State had submitted that there is sufficient evidence against both the appellants. It was submitted by Mrs.Kejriwal that attention of the witnesses was not drawn to their previous statements when the so called omissions were recorded by the learned trial court. It is her submission that the learned trial sat 6 cri.appeal 1281-2004 and 1282-2004 court could not have considered the said part of their evidence as an omission in their previous statements. 10 Before we consider the submissions made on behalf of the appellants and the State, it will be necessary to state, in brief, the facts of this case leading to prosecution of the appellants for the abovestated offences. 11 The deceased Ajay Mishra, aged about 40 years, was staying at 2/B/2, Manali Evershine Nagar, Malad (West), Mumbai, along with his family members. His son Vishal Mishra (complainant), the other son and the family members were staying with the deceased at the abovestated address. The age of the complainant at the time of the incident was about 15 years and age of his younger brother was about 12 years. 12 The alleged incident in which the deceased had died had occurred on 11th August, 1998. However, before the said incident dated 11th August, 1998, there was an incident of sat 7 cri.appeal 1281-2004 and 1282-2004 firing on 8th June, 1997 at about 12.30 in the afternoon. The complainant has not stated as to where the said incident had occurred. However, he has stated that his father Ajay Mishra had sustained bullet injuries in the said incident. It is not clear from the judgment and record and proceedings as to whether the said incident dated 8th June, 1997 was reported to police and as to whether anybody was prosecuted for the alleged assault. 13 We are mainly concerned with the incident dated 11th August, 1998. Since the whole case of the prosecution is based on the evidence of eye witness, the motive is not very much material in the present case. For this reason also, we are not inclined to go into the details of the incident dated 8th June, 1997. There was one more incident of 8th August, 1998. It is alleged that at about 1.30 p.m., three unknown persons including the appellant no.1 had entered the house of the deceased and had inquired regarding whereabouts of the deceased. Since the deceased was not present, the said three persons had left the message with the family members to inform sat 8 cri.appeal 1281-2004 and 1282-2004 the deceased that Sunny had come to visit him. 14 As stated earlier, the alleged incident of firing had occurred on 11th August, 1998 at about 2.30 p.m. The complainant Vishal and his parents and his uncle were about to occupy the chairs for their lunch when friend of complainant’s father had visited his house. The complainant’s father Ajay Mishra (hereinafter referred to as ‘the deceased’) while talking with his friend Sonu Jalan had proceeded to the main entrance of their house and he continued to talk to Sonu Jalan at their entrance. Sonu Jalan left after sometime. However, three persons who had arrived at the scene of offence started firing at the deceased by means of revolvers. Vishal Mishra had seen his father lying in an injured condition. He had seen the assailants running away from the spot. He had attempted to chase the assailants but could not succeed in nabbing the assailants. The deceased was removed to Evershine Nursing Home. He was declared dead before admission. FIR was registered on the complaint made by Vishal Mishra, the son of the deceased. sat 9 cri.appeal 1281-2004 and 1282-2004 15 The dead body was sent for post mortem examination. During the course of post mortem examination, the Medical Officer had found multiple bullet injuries on the dead body which have been described in detail at column no.17 of post mortem notes. The cause of death was stated to be haemorrhage and shock due to fire arm injuries (unnatural). 16 During the course of investigation, statement of mother of the complainant was recorded. Statement of Sonu Jalan, the friend of the deceased, was also recorded. Statements of watchman and other witnesses were also recorded. The cuprojacketed bullets retrieved from the dead body were preserved for ballistic examination and they were sent to the Forensic Science Laboratory, Mumbai, for examination and opinion of ballistic expert. 17 It appears from the record and proceedings that appellant nos.1 and 2 and accused no. 4 were arrested in sat 10 cri.appeal 1281-2004 and 1282-2004 connection with some other cases for allegedly having found in possession of fire arms without licence. Those fire arms were seized by the police officers by whom the accused were arrested. It also appears from the record and proceedings that after the arrest of the accused in this case and during the course of interrogation, the Investigating Officer revealed that fire arms already been seized from the possession of the accused were used in the present crime. It is also seen from the record and proceedings that those fire arms were sent to the Forensic Science Laboratory for opinion of the ballistic expert by the respective police stations. During the course of investigation in this case, the Investigating Officer had sought opinion of the ballistic expert as to whether bullets and empty cartridge cases forwarded to the Forensic Science Laboratory by the Investigating Officer or Medical Officer were tallying with bullets and cartridges cases test fired from any of the fire arms allegedly seized from the accused by other police stations and already forwarded to the forensic Science Laboratory. It also appears from the record and proceedings that the ballistic expert sat 11 cri.appeal 1281-2004 and 1282-2004 of Forensic Science Laboratory had given his opinion in that regard. 18 As far as arrest of the accused is concerned, the accused no.1 was arrested by Borivali Police Station in connection with some other case. He was taken into custody in this case on 17th December, 1998. The accused no.2 was taken into custody from the DCP, CID, Unit No.1. Accused No.3 was arrested on suspicion on 21st September, 1998 and accused no.4 was taken into custody from Thane prison where he was lodged in connection with some other case. We have already stated that the accused no.1 and 2 are the appellant no.1 and 2 before us. The accused no.3 was absconding and his case was separated by the trial court. Accused no.4 has been acquitted by the trial court. 19 During the course of trial, prosecution had examined in all eight witnesses. PW 1 and 2 are son and wife respectively, of the deceased. PW 3 was one of the panch sat 12 cri.appeal 1281-2004 and 1282-2004 witnesses present at the time of identification parade. PW 6 was another panch witness who was present at the time of second identification parade. PW 4 was working as watchman of the Housing Society where the deceased was staying with his family. PW 5 is the Medical Officer who had examined the dead body. PW 7 is the S.E.O. who had conducted test identification parades and PW 8 is the Investigating Officer. 20 At the outset, we find it necessary to state here that though the bullets retrieved from the dead body and empty cartridge cases seized by the police from the spot were sent to the ballistic expert and though the Investigating Officer had sought opinion of the ballistic expert as to whether bullets and cartridge cases seized during the course of investigation of this case were fired from the fire arms already seized from possession of some of the accused by police officers of some other police stations, the prosecution had not led any evidence in this regard during the course of trial. The prosecution had not examined the police officers who had seized weapons from the sat 13 cri.appeal 1281-2004 and 1282-2004 accused when they were arrested in connection with some other crime. No other evidence was led before the court as to when and how these weapons were sent to Forensic Science Laboratory. The ballistic expert also has not been examined. It appears that no attempt was made by the prosecution to prove that part of evidence collected during the course of investigation. 21 The witness Sonu Jalan has not been examined. It appears from the evidence of the Investigating Officer that Sonu Jalan could not be produced before the court despite all steps to secure his attendance were taken by the police. There were two watchmen. One of them has not been examined. The watchman who has been examined, has not supported the prosecution case. 22 As such, the case of the prosecution mainly depends on the evidence of PW 1 and 2. The learned trial court has believed PW 1 and 2 to the extent that they had seen the appellants firing at the deceased and therefore, both the sat 14 cri.appeal 1281-2004 and 1282-2004 appellants have been convicted. In view of the fact that the evidence with respect to bullets and cartridges seized during investigation had not been produced in the court and further in view of the fact that the learned trial court has based its judgment on the evidence of PW 1 and 2, we will not go into details of other evidence. 23 The learned Advocate appearing on behalf of the appellants has submitted that PW 1 and 2 had not seen the assailants at all and that material portion of their evidence on the basis of which conviction has been arrived at, is missing from their previous statements recorded by the police. Mr.Abhaykumar Apte, learned Advocate appearing on behalf of the appellants has submitted that material omissions in the evidence of both the witnesses had reduced the case of prosecution to trash. 24 It is submitted that both the witnesses claimed to have seen the appellants from kitchen window of their flat. Both sat 15 cri.appeal 1281-2004 and 1282-2004 the witnesses i.e. PW 1 and 2 were together in the kitchen when they had seen the appellants firing at the deceased. This part of their statements before the court is missing from their previous statements. Mr.Apte, therefore, submitted that this is clearly an improvement made later on. 25 We have gone through the evidence of both the witnesses. PW 1, who is son of the deceased, has stated in his evidence that on 11th August, 1998 at about 2.30 p.m., when he along with the other family members was taking meals at his residence, the door bell of their residence had rung. He had opened the main door. He had seen Sonu chacha (Sonu Jalan) who was friend of his father at the door. He was followed by the appellant no.1 and 2 and accused no.3. The appellant no.1 and 2 and accused no.3 were standing at the door and Sonu chacha was talking with the deceased near the entrance door. After sometime Sonu chacha left the place and PW 1 went inside. When he was taking meals, he had heard sound of firing. Therefore, he rushed to the kitchen and saw from the kitchen sat 16 cri.appeal 1281-2004 and 1282-2004 window that the appellant no.1 and 2 and accused no.3 were firing at his father. He had identified the appellant no.1, 2 and accused no.3 in the court during recording of his evidence. He thereafter immediately rushed to the spot where his father was lying. He attempted to chase the appellants but could not catch them. Thereafter, he shifted his father to Evershine Nursing Home where his father was declared dead. When he returned home, the police had already reached there. His statement was recorded. He has identified his signature on the complaint (Exhibit 13). During the course of cross-examination of this witness, this witness had stated that he had told the police at the time of his complaint that he had opened the door after hearing the doorbell. He had also stated before the police that the appellant no.1 and 2 and accused no.3 were standing near the door when Sonu chacha had visited their house. These two statements did not find place in his statement recorded by the police. He was, however, unable to give any reason as to why the police had not recorded this particular part of the statement. The Investigating Officer in his evidence has stated that the PW sat 17 cri.appeal 1281-2004 and 1282-2004 1 had not stated before him that he had opened the door after the doorbell had rung. PW 1 also had not stated that he had opened the door when Sonu chacha had visited their premises. PW 1 also had not stated that the appellant no.1 and 2 and accused no.3 were standing near the door at that time. As such this particular omission has been proved by the defence by cross-examination of the Investigating Officer. 26 At the same time, this witness during the course of his cross-examination has stated that he had stated before the police that he had gone to kitchen immediately after hearing sound of firing and he had seen the appellant no.1 and 2 and accused no.3 from the kitchen window. He was unable to give any reasons as to why this fact does not find place in his statement. The Investigating Officer, however, has stated that the PW 1 had not stated in his police statement/complaint that he had gone to kitchen and he had seen the assailants from the kitchen window. As such this omission is proved by the cross- examination of the Investigating Officer PW 8. sat 18 cri.appeal 1281-2004 and 1282-2004 27 The evidence of PW 2, wife of the deceased, with regard to witnessessing the actual incident of firing is also of the same quality. This witness had stated that on 11th August, 1998, she herself, her two sons, the deceased and her brother- in-law Akhilesh were present in the flat and they were about to set for meals. At that time, the doorbell had rung and PW 1 had gone to open the door. Sonu Jalan, friend of the deceased was on the door. The deceased while talking with his friend had gone out of the premises near the main entrance door. At this point of time three persons, who had earlier visited the house of the deceased on 8th August 1998, had come there. Sonu Jalan left the place and the deceased was standing at the same place. The PW 1 was inside the residential premises as PW 2 was to serve food to PW 1. Suddenly, they heard sound of firing. It is stated by this witness that her son and she looked outside from the kitchen window. The three assailants were seen by her. The PW 2 herself and PW 1 Vishal came out immediately. PW 1 tried to chase the appellants but could not nab any of them. In sat 19 cri.appeal 1281-2004 and 1282-2004 the meantime, watchman Motiram also came there. The deceased was lying in a pool of blood due to multiple fire arm injuries. He was removed to Evershine hospital where he was declared dead. 28 In the cross-examination, this witness has stated that she had told the police that she and her son Vishal had seen the assailants from the kitchen window. Her attention was drawn to her police statement dated 11th August, 1998. This part of her evidence was not their in her police statement. The police officer PW 8 has stated that PW 2 has not stated that she had seen the assailants from the kitchen window. As such this material omission in the earlier statement of PW 2 has been proved. 29 The learned Counsel for the appellants has submitted that the omissions in the previous statement of PW 1 and 2 create reasonable doubt as to whether the PW 1 and 2 were present at home at the time of incident. It is submitted that sat 20 cri.appeal 1281-2004 and 1282-2004 even if it is accepted that they were present at home, it is highly doubtful that they had seen the assailants from the kitchen window. The learned Advocate for the appellant has also submitted that there was no other occasion for the PW 1 and 2 to see the assailants firing at the deceased. As such the material omission with regard to witnessing the actual incident of firing creates a doubt about the credibility of these two witnesses. 30 The learned APP Mrs.Kejriwal has submitted that in the first place, these are not a material omissions. It was her submission that at the most, the omissions could be in respect of the place from where the incident was witnessed by the witnesses. Secondly, the omissions are not duly proved inasmuch as the attention of the witnesses was not drawn to the portions omitted by them in their previous statements. 31 We have gone through the cross-examination of both the witnesses. In fact in the cross-examination of PW 2, it is clearly stated that her attention was drawn to her previous sat 21 cri.appeal 1281-2004 and 1282-2004 statement. As far as P.W.1 is concerned, it is a fact that it was not specifically stated in the cross-examination of PW 1 that his attention was drawn to his previous statement while the omitted portion was being brought to his notice. Though it is not clearly stated in the notes of evidence, the careful reading of notes of evidence would show that this omission was recorded only after the previous statement of the witness was placed before PW 1. We do not agree with the learned APP Mr.Kejriwal that the omissions are not proved in accordance with law. 32 It must be borne in mind that the object behind the provision to bring the attention of the witness to his previous statement sought to be contradicted, is to give an opportunity to the witness to explain the discrepancy or inconsistency to clear the ambiguity, if any. In the present case, from the notes of evidence, it is absolutely clear that more than sufficient opportunity was given to both the witnesses i.e. PW 1 and 2 to explain as to why they had failed to state before the police that they had seen the incident from the kitchen window. Both the sat 22 cri.appeal 1281-2004 and 1282-2004 witnesses have failed to explain satisfactorily. On the contrary, they have stated before the trial court that they could not assign any reason as to why those portions were not recorded by the police officer. If this particular portion in the evidence of both the witnesses is treated to be an improvement, then there is nothing in the whole evidence to show that these two witnesses had any other occasion on 11th August, 1998 to see the appellant no.1 and 2 and the accused no.3 assaulting the deceased. 33 As far as identification parade is concerned, the first ever identification parade was held on 15th October, 1998 in respect of the accused no.3 (absconding) and accused no.4. The identification in respect of the appellant no.1 was held on 19th January, 1999 and in respect of appellant no.2 was held on 25th February, 1999. The appellant no.1 and 2 were arrested on 17th December, 1998 and 19th February, 1999.