1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 164 OF 2008 Mohammad Ejaj s/o Mohammad Rashid, age 28 years, occ. Mechanic, r/o Kaisar Colony, Kumbharwada, Aurangabad, Dist. Aurangabad. ...Appellant VERSUS The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav, advocate for the appellant Shri S.D.Kaldate, A.P.P. for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 17.2. 2010. ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The challenge in this appeal is to the judgment and order, rendered by the Adhoc Additional Sessions Judge-3, Aurangabad, in Sessions Case No. 99 of 2007 on 26.3.2008, convicting the appellant (original accused) for the offence punishable under Section 302 of the Indian Penal Code and also 2 for the offence punishable under Sections 3 r/w 25 of the Arms Act, 1959 and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/- with default condition for non- payment of fine to suffer further R.I. for two months for the offence punishable under Section 302 of the Indian Penal Code, and also sentencing him to suffer R.I. for one year and to pay a fine of Rs.1,000/- with default condition for non-payment of fine further to suffer R.I. for one month for the offence punishable under Sections 3 r/w 25 of the Arms Act, 1959, directing both the substantive sentences to run concurrently. 2 The prosecution case in nut shell can be summarised as under :- Complainant PW6 Mohd. Sirajoddin got three sons, namely (1) Mohd. Hasanoddin, (2) Mohd. Salahoddin, and (3) Mohd. Salim and one daughter namely Samina. The deceased Mohd. Hasanoddin had passed M.B.A. and was serving in I.C.I.C.I. Bank as Relation Manager and it is alleged that he had obtained hand loan of Rs. 35,000/- from the accused and accused was insisting upon him to repay back the same and on that count he used to harass the victim. It is also alleged that the incident occurred on 4.1.2007 at about 10.00 a.m. to 10.15 a.m. and 3 before that at about 9.00 a.m., the accused allegedly gave message to deceased on mobile and thereafter deceased left his house for duty at about 9.30 a.m. on motor cycle. At about 11.30 a.m., the complainant PW6 Mohd. Sirajoddin was at his house and received message from City Chowk police station when he was called there, and accordingly, he immediately went to the City Chowk police station where he came to know from police that his son Mohd. Hasanoddin was murdered in open space situated near Priya hotel at Chelipura, Aurangabad and his dead body was lying in Ghati hospital. Hence, PW6 Mohd. Sirajoddin went to Ghati hospital and saw the dead body of his son Mohd. Hasanoddin and found that he had sustained severe injuries on his head, neck, stomach and hands and he came to know there that accused committed the murder of his son. Accordingly, he went to the City Chowk police station and gave his complaint, which was recorded by PW17 API Subhash Nikam, who was attached to the City Chowk police station on 4.1.2007 and offence was registered under C.R.No. 2 of 2007 at 12.10 p.m. on 4.1.2007 under Section 302 of the Indian Penal Code (Exh. 45) and criminal law was set into motion accordingly. 3 Thereafter further investigation was taken over by PW19 PI James Ambildhage and he gave necessary directions to 4 search the absconding accused and made inquiry on the spot of the incident and thereafter received a message from Ghati hospital that injured Mohd. Hasanoddin is expired, therefore, he went went to Ghati hospital and prepared the inquest panchanama of the dead body of deceased in presence of panch witnesses (Exh.12). Thereafter he forwarded the dead body to the Medical Officer for postmortem. Accordingly, PW5 Dr. Kailash Zine conducted the autopsy over the dead body and issued postmortem notes which are marked as Exh. 17. PW17 PI Nikam arrested the accused under the arrest panchanama Exh. 56. Thereafter PW19 PI Ambildhage proceeded to the spot and prepared the spot panchanama in presence of panch witness PW1 Ravi Bhujgad, which is marked as Exh.7 and one boot, one pair of chappal, cover of sword and piece of finger were seized under said spot panchanama, as well as the blood stained soil and plain soil from the spot were also seized thereunder after sealing and labelling thereof. 4 It is also the case of the prosecution that accused herein expressed his willingness to show the place where he concealed the sword and said disclosure statement was recorded under memorandum panchanama Exh. 21 in presence of panch PW7 Fayyaz Khan, and thereafter the accused led the panchas 5 and police personnel to the area of Kiradpura and further led them to his house situated just near the medical shop and produced sword and his clothes i.e. one pant and shirt bearing blood stains thereon from the said house, which were seized under memorandum Exh. 22. Moreover, search of the accused was conducted and one cement bag containing sickle, Jambia and knives were found under the cot in his bed room and said articles were seized under the said panchanama after sealing and labelling thereof. 5 Moreover, on 4.1.2007 PW19 PI Ambildhage referred the accused to the Ghati hospital for medical examination and his blood sample was taken under panchanama Exh. 60. So also, the clothes and articles of the deceased were seized under panchanama Exh. 23. PW19 PI Ambildhage also collected the provisional postmortem report from Ghati hospital as well as recorded statements of 12 witnesses on the said date. Thereafter on 5.1.2007, PW19 PI Ambildhage recorded the statements of five witnesses and forwarded the attached property to the Chemical Analyser's office along with requisition letter dated 6.1.2007 (Exh. 61). Moreover, he also forwarded viscera of deceased preserved to Chemical Analyser's office (Exh.62). He also recorded statements of witnesses on the said date. Moreover, he sought 6 the permission from the Judicial Magistrate, First Class for adding the offence punishable under Sections 3 r/w 25 of the Arms Act against the accused by issuing letter (Exh.63) and added the offences against the accused accordingly. He also issued letter to the Manager, I.C.I.C.I. Bank and called information about the service of the deceased in the said Bank (Exh.64) and pursuant to the said letter, the Manager, I.C.I.C.I. Bank supplied the information by letter which is marked as Exh.65. 6 Moreover, PW19 PI Ambildhage also issued letters to the Deputy Commissioner, Aurangabad, requesting him to call the information from the office of Airtel regarding mobile of accused and deceased, which are marked as Exhs. 66 and 67 respectively. Moreover, he issued letter to the Special Judicial Magistrate, Aurangabad for recording statements of witnesses under Section 164 of the Code of Criminal Procedure, which is marked as Exh. 68 and accordingly, the Special Judicial Magistrate recorded statements of witnesses, namely Anwar Khan Omar Khan and Mohd. Ehateshamoddin on 21.3.2007. PW19 PI Ambildhage also issued letter to the Special Judicial Magistrate Ghule on 20.3.2007 for taking the identification parade of the accused (Exh.42) and accordingly he arranged identification parade and forwarded his report thereof. Besides, PW19 PI 7 Ambildhage forwarded blood sample of accused for ascertaining his blood group. The Chemical Analyser's reports of the articles and viscera were received which are marked as Exhs. 69 to 73 respectively. 5 After completion of investigation, PW19 PI Ambildhage forwarded the charge sheet to the learned Judicial Magistrate, First Class, Aurangabad on 3.4.2007. However, since the offence involved thereunder was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Aurangabad committed the said case to the Court of Sessions, Aurangabad on 24.4.2007. Thereafter, learned Adhoc Additional Sessions Judge-3, Aurangabad framed the charge against the appellant at Exh.3 for the accusation that the appellant herein on 4.1.2007 at about 10.00 to 10.15 a.m. in the open space situated at the vicinity of hotel Priya situated in the area of Chelipura, Aurangabad committed murder of one Mohd. Hasanoddin by assaulting him on his head, stomach, leg, and hand by means of sword and thereby committed offence punishable under Section 302 of the Indian Penal Code and was also found in possession of deadly weapon like sword, sickle and four knives in contravention of provisions of Section 3 of the Indian Arms Act and thereby committed an offence punishable under Section 3 r/w 25 of the 8 Indian Arms Act, 1959. 6 To substantiate the charges levelled against the appellant herein, the prosecution has examined 19 witnesses as mentioned herein below :- PW1 Ravi Sanduji Bhujgad, panch witness to spot panchanama (Exh.7). PW2 Sk. Altaf Sk. Bashir, eye witness, turned hostile. PW3 Mohd. Nadeem Mohd. Saleem, eye witness, turned hostile. PW4 Anwar Khan Omar Khan, eye witness, turned hostile. PW5 Dr. Kailas Ukhardaji Zine, who performed autopsy on the dead body of deceased and produced postmortem notes at Exh.17. PW6 Mohd. Sirajoddin s/o Mohd. Hasanoddin, father of the victim, complainant, who lodged the first information report Exh. 45, turned hostile. PW7 Fayyaz Khan s/o Kabir Khan, panch witness to memorandum panchanama Exhs. 21 and 22, recovery of sword article 11 and seizure panchanama of clothes of accused articles 12 to 14 and seizure panchanama of clothes of victim Exh. 23 and seizure panchanama of motor cycle Exh.24. PW8 Amol Dattatraya Gaikwad, before whom victim allegedly gave dying declaration. 9 PW9 Vishnu Chate, P.C., before whom allegedly victim gave oral dying declaration. PW10 Anjum Ara w/o Mohd. Sirajoddin, mother of victim. PW11 Sajed Khan Hamid Khan, eye witness, turned hostile. PW12 Mohd. Tabrej s/o Mohd. Hafizoddin, friend of deceased and maternal cousin of victim. PW13 Syed Ajmat s/o Syed Hussain, turned hostile. PW14 Mohd. Ehateshamoddin s/o Mohd. Abdul Baki, eye witness and maternal uncle of victim. PW15 Alam Khan s/o Kalandar Khan, panch to memorandum of T.I. Parade Exh. 39. PW16 Pralhad Bhaurao Ghule, Special Judicial Magistrate, who conducted the T.I. Parade and produced the memorandum of T.I.parade. PW17 Subhash Appasaheb Nikam, A.P.I., who recorded the F.I.R. Exh. 45. PW18 Vijay Eknath Shinde, Nodal Officer of Airtel Company. PW19 P.I. James Ambildhage, investigating officer. 7 The defence of the accused was of total denial and the accused stated in his statement recorded under Section 313 of the Code of Criminal Procedure that he along with his family 10 members was residing in the area of Kaisar Colony, Aurangabad and he was doing the work of mechanic in the garage of one Ajij Bhai. He also stated that he was not knowing deceased Mohd. Hasanoddin and prior to the incident he never came in contact with the said victim and he never gave any amount of loan to him. According to him, he has been implicated in this case falsely. 8 After scrutinizing, assessing and appreciating the evidence, learned Trial Judge convicted and sentenced the appellant/accused as afore stated. Being aggrieved and dissatisfied by the said judgment and order dated 26.3.2008, the appellant has preferred the present appeal praying for quashment thereof. 9 Before adverting to the submissions advanced by the learned counsel for the appellant and also the learned A.P.P. for the respondent, we feel it necessary to consider the material evidence adduced by the prosecution and in the said context, coming to the deposition of PW14 Mohd. Ehateshamoddin, who is maternal uncle of the deceased and claims to be eye witness to the occurrence of the incident, has stated that the incident took place on 4.1.2007 at about 10.00 a.m. He was proceeding towards Ajanta Milk Dairy for bringing milk which was situated 11 near Priya Hotel and when he reached near the hotel, he heard the noise of shouting from open space, and therefore, he immediately went towards the said open space and found that accused was assaulting deceased Hasanoddin by sword and the accused assaulted the victim Hasanoddin by sword on his head, hand, chest and stomach. He also stated that when he proceeded towards them to save deceased Hasanoddin, 4 to 5 persons standing on the spot caught hold of him and did not allow him to go there, but he rescued himself from them and went there. He further stated that after seeing him the accused Ejaj ran away from the spot by leaving his foot wear there. Hence, he stated that he immediately gave information to PW19 PSI Ambildhage. Accordingly police personnel came on the spot within 15 minutes and removed the injured Hasanoddin to the hospital. He further stated that due to assault deceased Hasanoddin sustained grievous injuries on his head, chest, stomach, hand and legs. He further stated that he went to the Ghati hospital where where he came to know that Mohd. Hasanoddin was declared dead. He also identified the accused present before the court as well as identified the sword article 13. He further stated that his statement was recorded by the Special Judicial Magistrate on 26.3.2007 as per his version. 12 10 During cross-examination, he stated that two criminal cases under Section 420 of the Indian Penal Code are pending against him in criminal court and in one Criminal Case his name was shown as Mohd. Abdul Mustafa Mohd. Abdul Baki. He also stated that in his school register his name was shown as Muzaffar. Hence, suggestion was given to him that he is not Ahteshamoddin and he was giving false evidence, but same was denied by him. He further stated that the place of incident is not at the back side of Priya hotel. However, he did state in his statement recorded by the Special Judicial Magistrate that there is open space at the back side of hotel Priya, which is incorrect. He further stated that on the date of incident, he visited house of deceased at about 2.00 p.m. And about five minutes require to approach his house from the City Chowk police station and he met the informant there and he talked to him and after taking the injured to Ghati hospital by police he also immediately went there. Omission was elicited in his cross-examination in respect of the event that after seeing him the accused Ejaj ran away from the spot leaving his foot wear there and he also denied that after the incident he gave telephonic message to PW19 PI Ambildhage. Suggestion was given to him that he did not see the incident personally and gave false evidence as deceased was his close relative, but same was denied by him. 13 11 That takes us to the deposition of PW5 Dr. Kailash Zine, who stated that on 4.1.2007, he was attached to Ghati Hospital and PW19 PI Ambildhage produced dead body of one Mohd. Hasanoddin s/o Mohd. Sirajoddin for postmortem and accordingly he himself and Dr. A.B.Mugadalimath conducted autopsy over the said dead body between 5.00 p.m. to 7.00 p.m. and thereafter he issued the postmortem notes which are produced at Exh. 17. He also stated that during autopsy he noticed the following injuries on the said dead body :- “ Injuries on Head 1) Chop wound on left side of forehead 7 cm x 1 cm skin deep edges clean cut contused. 2) Cut injury on vertex piece of scalp oval shape missing 6 cm x 3 cm bone deep, edges clean cut. 3) Chop wound on right tempero parietal area 8 cm x 1 cm x bone deep. 4) Chop wound on right temporal area 8 cm x 2 cm x bone deep gaping present. 5) Chop wound on right ear pinna cut 3 cm x .5 cm x bone deep. 6) chop wound just below right ear 8 cm x 3 cm x bone deep. 14 All chop wound showed clean cut edges, slightly contused infiltration staining present. Piece of scalp lying separately matches to injury No.2 of head. Injuries on Neck 1 Two incised wounds on neck on right side middle part horizontal measuring 5 cm x 0.2 cm skin deep and 9 cm x .2 cm separated by 1 cm. 2 Stab injury on right side of neck in lower part anteriorly 3 cm from mid line, 1 cm above clavicle measuring 2.8 cm x 0.4 cm x 9.5 cm by probe directed forwards inward and medially. 3 Contusion to left ear 3 cm reddish. Injuries on Trunk 1 Stab wound on right shoulder lateral aspect measuring 2 cm x 2.5 cm situated 3 cm lateral to acromin process. 2 Contusion to right supra curricular region 8 x 5 cm reddish. 3 Contusion to left supra curricular region 8 x 3 cm reddish. 4 Stab wound on back in middle part at T 11 level on left side 3 cm from mid line measuring 2 cm x ½ cm x 3 cm one angle acute other angle blunt. 5 Stab wound on right side of chest anteriorly 15 in lower parties 4 cm from mid line, 7 cm from Xiphisternum measuring 2 cm x 1 cm cavity deep directed upwards and laterally in 6th inter coastal space. Injuries on Abdomen 1 Stab injury in epigastrium on right side just to mid line 8 cm from Xiphisternum measuring 3 cm x 1 cm x cavity deep angles acute directed inwards laterally towards left. 2 Stab injury 9 cm below injury No. 1 of abdomen measuring 2 cm x 1 cm x 7 cm (cavity deep) angles one acute one rounded directed upwards, inwards and to left. Injury No 3 : 1 Stab injury on left side of abdomen 2 cm below coastal arch 12 cm from mid line measuring 1.1 cm x 1 cm cavity deep, both angles acute directed inwards and medially. Injuries on right upper Limb 1 Chop wound on right wrist oblique 9.5 cm x 2.5 cm cut bone seen. 2 Chop wound on right thumb 10 cm x 3 cm bone deep thumb divided clean cut in two parts. 3 Chop wound on right hand near lateral border oblique 6 cm x 2 cm x bone deep. 4 Chop wound to right little finger complete separation, brought 16 separately matches with the hand. 5 Chop wound to right finger on middle pharynx 2.5 cm x 1 cm x bone deep. 6 Incised wound present on dorsum of right hand 5 cm x 1 cm muscle deep, Tailing present towards index finger. Injuries on left upper Limb 1 Percolating stab wound to left elbow measuring 3 cm x 1.6 cm x 12 cm both angles - one acute other rounded directed anterior or posterior. 2 Chop wound to left thumb 4 cm x ½ cm x muscle deep. 3 Chop wound to left palm 11 cm x 2 cm x bone deep. 4 Chop wound to left palm adjacent to injury No. 3 measuring 7 cm x 1 cm bone deep. Stab wound to right thigh on medial aspect in middle part measuring 6 cm x 3 cm x 10 cm both angles acute. On internal examination in head there were hemorrhages corresponding to chop wounds and there was defused sub arachnoid hemorrhage present on both sides of hemispheres. “ 12 PW5 Dr. Kailash Zine also stated that all the afore said injuries were ante mortem in nature and caused within half an 17 hour. According to him, the cause of death was due to haemorrhagic shock due to multiple stab injuries. He further stated that viscera was preserved for chemical analysis and after seeing the Chemical Analyser’s report thereof, he stated that cause of death was due to haemorrhagic shock due to multiple stab injuries. Thus, considering the testimony of PW5 Dr. Zine and postmortem notes Exh. 17 as well as inquest panchanama, there is no dispute that the victim Mohd. Hasanoddin met with homicidal death and the learned Trial Judge has given appropriate finding to that effect. 13 Coming to the deposition of PW19 PI James Ambildhage, investigating officer, he stated that on 4.1.2007 he was attached to City Chowk police station, Aurangabad and at about 10.00 a.m. when he was proceeding towards the police station, he received a message on his mobile phone that one Mohd. Ehateshamoddin s/o Mohd. Rashid has assaulted one Mohd. Hasanoddin s/o Mohd. Sirajoddin by sword near Priya Hotel situated in the area of Chelipura and he has been injured and requested him to send the police personnel on the said spot. He also stated that accordingly after receiving said message, he immediately gave information to the police station on phone to A.S.I. Anwar who was on duty. He directed him to send police staff on the spot and informed him 18 that he would proceed to the spot directly. He further stated that after giving the said message, he proceeded on the spot and when he reached there, he found that P.S.I. Gaikwad and police constable Chate were present, as well as many persons had gathered on the spot and Mohd. Hasanoddin was found lying on the ground in injured condition. Hence, he directed P.S.I. Gaikwad to take the injured to the hospital for medical treatment. Accordingly, injured was taken to the Ghati hospital through police van. After half an hour, he received a message from Ghati hospital that Mohd. Hasanoddin has been died and A.P.I. Nikam recorded the complaint of his father namely Mohd. Sirajoddin, which is marked at Exh. 45 and offence was registered under C.R. No. 2 of 2007 under Section 302 of the Indian Penal Code. He carried out the further investigation in the matter and filed the charge sheet before the leaned Judicial Magistrate, First Class, Aurangabad, after completion thereof. 14 Learned counsel for the appellant invited our attention to the fact that no station diary entry was made by PW19 PI Ambildhage in respect of receipt of telephonic message on his mobile from Mohd. Ehateshamoddin and no such station diary entry has been produced on record and the contention of PW19 PI Ambildhage has not been supported by cogent documentary 19 evidence. It is also pointed out by learned counsel for the appellant that althogh PW19 PI Ambildhage stated that after reaching to the spot, he found PSI Gaikwad and PC Chate present there and also many persons had gathered on the said spot where injured Mohd. Hasanoddin was lying, but the testimony of PW19 PI Ambildhage is silent in respect of presence of PW14 Mohd. Ehateshamoddin from whom he allegedly received the telephonic call on his mobile and who claims to be the eye witness to the occurrence of the incident, and therefore, learned counsel submitted that PW14 Mohd. Ehateshamoddin is not the eye witness to the occurrence of the incident and since he is maternal uncle of the victim, he has deposed falsely to implicate the appellant herein. 15 Learned counsel for the appellant further canvassed that the other eye witnesses i.e. PW2 Sk. Altaf and even father of victim namely PW6 Mohd. Sirajoddin, who lodged the first information report Exh. 45, as well as another eye witness PW11 Sajed Khan and PW13 Syed Ajmat Ali have not supported the case of the prosecution and have turned hostile and although the learned A.P.P. conducted their cross-examination, the said testimonies are not useful to the case of the prosecution. It is also submitted by the learned counsel for the appellant that Test 20 Identification parade conducted by PW16 Pralhad Ghule, Special Judicial Magistrate was disbelieved by the learned Trial Court and the first information report was lodged at 12.10 p.m. on 4.1.2007 after visiting Ghati hospital and it is further pointed out that although the incident occurred right opposite the Chelipura police station, no police personnel from Chelipura police station noticed the same, but the police personnel from City Chowk police station recorded the first information report, that too after visiting Ghati hospital as afore stated, which itself diminishes the credibility of the prosecution case, and therefore, the prosecution case does not inspire confidence, and hence, the appellant is not entitled for benefit of doubt. 16 Learned A.P.P. countered the