1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.205 OF 2008 Faizal Mohammed s/o Abdulla Banaim, Age : 29 years, Occupation : business, R/o Arab Galli, Nanded, District Nanded ..APPELLANT (Ori. Accused No.1) VERSUS The State of Maharashtra ..RESPONDENT Mr Shirish Gupte, Senior Advocate with Smt. S.S. Jadhav, Advocate for the appellant; Mr K.S. Patil, A.P.P. for the respondent. WITH CRIMINAL APPEAL NO.296 OF 2008 1. Sk. Altaf s/o Sk. Bashir Ali, Age : 23 years, occupation : business, R/o Killa Road, Nanded 2. Amer Chaoosh s/o Mohammed Chaoosh, Age : 24 years, occupation : Carpenter, R/o Fateh Burj, Nanded ..APPELLANTS (Orig. Accused Nos.3 & 4) VERSUS State of Maharashtra ..RESPONDENT 2 Mr Joydeep Chatterji and Mr Vijay Sharma, Advocates for the appellants; Mr K.S. Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 10th February, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) These two appeals have been filed by the appellants/original accused nos.1, 3 & 4, who stand convicted for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code on two counts and sentenced to imprisonment for life and to each pay fine of Rs. 2,000/- on each count with a direction that the substantive sentence of imprisonment shall run concurrently, by the Additional Sessions Judge-4, Nanded, by judgment dated 17.4.2008, in Sessions Case No.73 of 2007, by these appeals question the correctness of their conviction and sentence. Since the appellants in both the appeals have been convicted by the same judgment, these appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- 3 P.W.43 P.I. Dharmaraj Vaijale, who was attached to Shivajinagar police station as Police Inspector on 28.8.2006, received a telephonic message from a petrol pump at about 5.25 p.m. about some incident. The P.S.O. attached to the police station disclosed the information to P.W. 43 P.I. Vaijale and he accordingly directed A.P.I. Shelke and other police staff to proceed to the scene of the offence. Thereafter within ten minutes of the police staff leaving for the scene of the offence, P.W.43 P.I. Vaijale rushed to the scene of the offence and reached the scene of the offence at about 5.45 p.m. On reaching the scene of the offence he noticed a crowd gathered in front of the petrol pump and also noticed blood stains and one cap. Thereafter at about 7.45 p.m. he reached the Government Hospital at Nanded. He met A.P.I. Shelke and one Guddu. One Head Constable Kedar produced the report which was recorded as the first information report. P.W.41 P.S.I. Puri who was also attached to Shivajinagar police station on 28.8.2006 recorded the complaint of P.W. 11 Syed Najid at Exh.61. On the basis of the said complaint P.W.41 P.S.I. Puri registered an offence vide Crime No.133 of 2006 for an offence punishable under section 302, 307, 147, 148, 149, 323 of the Indian Penal Code, 4/25 of the Arms Act and 135 of the Bombay Police Act at about 7.30 p.m. vide station diary entry no.36. The first information report of P.W.11 Syed Najid is at Exh.61. P.W.43 P. I. Vaijale accompanied by Guddu proceeded to the scene of the offence and reached at about 8.00 p.m. In the presence of panch witnesses the 4 scene of the offence panchnama at Exh.42 was drawn and from the scene of the offence sample of blood on the ground was collected. Similarly, mud and cement pieces mixed with blood were collected as well as sample of ordinary mud was drawn. The sketch of the scene of the offence was also drawn. According to P.I. Vaijale the articles were seized and sealed in the presence of the panchas. He thereafter proceeded to the Shivajinagar police station and seized the blood stained clothes of Guddu under panchnama at Exh.45 in the presence of panch witnesses. Statements of the employees working in the petrol pump were recorded. He thereafter returned to the Government Hospital at Nanded and A.S.P. Patil had produced the clothes of of deceased Najis which came to be seized in the presence of panchas under panchnama at Exh.56. Thereafter P.W.43 P.I. Vaijale returned to the Shivajinagar police station and sent message to the nearest police station for effecting arrest of the accused. In the night at about 01.15 a.m., accused Sarhan and Faizal came to be arrested and were produced before P.I. Vaijale. The arrest panchnama of the accused was drawn at Exh.173 and 174, respectively in the presence of the panch witnesses. On the next day i.e. on 29.8.2006 at about 8.30 a.m. police personnel of Itwara police station produced accused Amer Chaoosh and accused Sk.Altaf, who came to be arrested by P.W.43 P.I. Vaijale under arrest panchnamas at Exhs.175 and 176 respectively. Thereafter statements of Naim, Shakeel and other employees of the petrol pump came to be recorded. On the same day i.e. on 29.8.2006 a letter was issued to the Special Judicial Magistrate, 5 Nanded for recording the statement of injured Arafat. Within five minutes of issuance of the said letter, P.W.43 P.I. Vaijale and the Judicial Magistrate First Class P.W.38 Chandrapal Balwani reached the Civil Hospital at Nanded. The Medical Officer, who at that time was in the operation theater was called and requested to examine if Arafat was in a fit condition to record his statement. On such certificate, P.W.38 Balwani commenced the recording of the statement by asking the persons present in the ward to leave the ward. After conclusion of the statement of Arafat, recorded by P.W.38 Balwani, P.W.43 P.I. Vaijale escorted escorted P.W. 38 Balwani to Court and returned back to the hospital. He thereafter recorded the statement of Arafat on a paper which was bearing the endorsement of the Medical Officer and obtained the thumb impression. The statement of Arafat recorded by P.W.43 P.I. Vaijale is at Exh.177. 3. The clothes of the arrested persons, who were four in number, came to be seized in the presence of panchas under seizure memos at Exhs.178 to 181. Thereafter supplementary statement of informant Guddu came to be recorded. One mobile phone belonging to accused Amer Chaoosh came to be seized from his house in the presence of panchas under seizure memo at Exh.51. On 30.8.2006 accused Zuber, who was produced by the Itwara police station came to be arrested by P.W.43 P.I. Vaijale under an arrest panchnama at Exh.182 in the presence of panch witnesses. The clothes of accused Zuber came to be seized under a seizure memo at Exh.153 and similarly the mobile hand-set of 6 accused Zuber also came to be seized under a seizure memo at Exh. 152. On 31.8.2006 one mobile hand-set belonging to accused Masood came to be seized from his father under seizure memo at Exh. 90. On 2.9.2006, during custodial interrogation, accused Amer Chaoosh expressed his willingness to point out the place where a knife was hidden in his house. The aforesaid memorandum of accused Amer Chaoosh came to be recorded in the presence of panchas at Exh.184. Accused Amer thereafter took the police and the panch to his house and produced a knife which was concealed below the cot from his house. The knife on being examined was found to be stained with blood and which came to be seized under panchnama at Exh.185. On 3.9.2006, during custodial interrogation, accused Zuber expressed his willingness to point out the place where a Dagger was hidden and accordingly his memorandum came to be recorded in the presence of panchas at Exh.48. Thereafter the accused led the police and the panch to an area known as Khoja colony and from behind the Veterinary Hospital produced a Dagger, which was stained with blood and which came to be seized under panchnama at Exh.49. Incidentally, it may be stated that accused Zuber has been acquitted by the Trial Court and the Trial Court has disbelieved the seizure of the Dagger at the instance of accused Zuber. The prosecution has not filed any appeal questioning the acquittal of accused Zuber. 7 4. Injured Arafat, who had been admitted in the hospital at Hyderabad succumbed to his injuries on 31.8.2006. Thereafter statements of Irshad and others came to be recorded. A request was made to the Medical Officer for collection of the blood samples of accused at Exh.186. Statement of one Muniroddin came to be recorded and a request was made to the Chief Judicial Magistrate, Nanded for addition of section 120- B of the Indian Penal Code in the crime registered against the accused. The seized property came to be referred to the Chemical Analyser on 11.9.2006 through P.W.42 Police Head Constable Arvind Pathak vide requisition at Exh.177. 5. Post mortem on the dead body of deceased Syed Najis came to be performed by P.W.2 Dr. Balaji Manurkar. P.W.2 Dr. Manurkar noticed the following external injuries on the dead body of deceased Syed Najis:- 1. Stab wound on left side of back in mid scapular line below last rib, 4.3 cm. x 3 cm. penetrating deep, obliquely upward and medially transverse elliptical shaped with clean margin; 2. Stab wound on left hip upper part transverse, 4 x 1/2 x 1 cm. margins clean, elliptical shaped. 8 He opined that both the injuries were ante mortem in nature. On internal examination he noticed the following injuries :- 1. Abdomen wall muscles were cut, cutting of peritoneum and left iliac artery; 2. Puncturing artery about 1 cm. in size leading to massive haemorrhages in abdominal cavity. He, therefore, opined that the probable cause of death was haemorrhagic shock due to injury to large abdominal vessels. He also opined that the said injuries were sufficient in ordinary course of nature to cause death. The post mortem report is at Exh.38. The inquest panchnama of Syed Najis is at Exh.36. Post mortem on the dead body of deceased Arafat came to be performed by P.W.36 Dr. Abhijit Subhedar. P.W.36 Dr. Subhedar noticed the following external injuries :- 1. Sutured injury of 1 cm. in length with one black suture intact present over the bridge of nose; 2. Sutured injury of 4 cm. in length with four intact sutured present over the anterior aspect of left forearm, in its lower 1/3rd, horizontally placed. 9 3. Sutured injury of 5 cm. in length with five intact sutured present over left temporal area of scalp, obliquely placed and on reflection of scalp corresponding contusion seen dark red in colour; 4. Sutured injury of 3 cm. in length with three intact sutured present over the upper and lateral aspect of left side of chest horizontally placed and on opening the chest it pears skin sub-cutaneous tissues and muscles to enter left lung through second intercostal space (intercostal drainage site); 5. Sutured injury of 1 cm. in length with one intact suture present over the lower part and lateral aspect of left side of abdomen, placed horizontally and on opening of the abdomen it enter the peritoneum cavity (drainage site); 6. Another sutured injury of 2 cm. in length with 2 intact sutured put over the upper part and lateral aspect of right side of the lung, horizontally placed and on reflection of chest entered lung through second intercostal space, pears in skin subcutaneous tissues and muscle (Intercostal drainage site); 7. Another sutured injury of 3 cm. in length with 2 intact sutures present over the lower part of the chest and the right side upper part of the abdomen, 10 cm. below right nipple placed horizontal 10 and on opening the abdomen it pears skin subcutaneous tissues muscle, fracturing 5th rib in mid clavicular line to enter the anterior surface of the liver, it was sutured, through and through, to exit posterior surface of liver which was sutured and to enter greater curvature of stomach in its lower part, which was sutured with black thread. 8. Another sutured injury 2 cm. in length, with two intact sutures present over the front of the abdomen 8 cm. below the above injury, obliquely placed and on opening the abdomen sutured injury with 2 intact sutures were seen over muscle; 9. Sutured injury 14 cm. in length with 12 intact sutures present over centre of abdomen on front, 2 cm. below xiphoto end , 1 cm below umbilicus with corrugated tube in situ (drainage tube); 10. Sutured injury 1 cm. in length with one intact suture present over right elbow back side horizontally placed. He, therefore, opined that the cause of death was due to multiple injuries. The post mortem report is at Exh.141. He also opined that the injuries were sufficient in ordinary course of nature to cause death. He expressed an opinion that as the injuries were sutured, the original size, shape could not be noticed by him and was, therefore, not in a position to 11 opine if the injuries were possible by the weapons which were shown to him, namely Articles 26 and 27. 6. Further to the completion of investigation a charge-sheet against the accused came to be filed. On committal of the case to Court of Sessions, charge vide Exh.5 came to be framed against the accused for offence punishable under sections 147, 148, 302 read with sec. 149, 120- B of the Indian Penal Code, 4/25 of the Arms Act and 135 of the Bombay Police Act. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 44 witnesses. The Trial Court upon consideration of the evidence discarded the dying declaration at Exh.177 recorded by P.W.43 P.I. Vaijale and relied upon the dying declaration at Exh.158 recorded by Judicial Magistrate First Class Balwani (P.W.38). The Trial Court also discarded the evidence of P.W.9 Mohd. Rabbani whose motorcycle had been borrowed by accused no.3 Altaf. The Trial Court also rejected the evidence of P.W.11 Syed Najid and the other eye-witnesses, namely P.W.12 Irshad Khan, P.W.4 Abdul Naim, P.W.15 Dnyaneshwar Bhange, P.W.16 Kamalkishore Pophale and P.W.29 Shakeel Ahmed Khan. Out of the eye-witnesses on whom reliance was not placed by the Trial Court, namely P.W.15 Dnyaneshwar Bhange and P.W.16 Kamalkishore Pophale did not support the prosecution and were declared hostile and cross-examined by the prosecution . The Trial Court also chose not to place any reliance upon the test identification parade conducted on 20.12.2006 by P.W.13 Vaibhav 12 Navalkar. The conviction thus rests upon the dying declaration recorded by Judicial Magistrate First Class P.W.38 Balwani at Exh.158 and the other circumstantial evidence. However, during the course of argument the learned A.P.P. has drawn our attention to the evidence of those eye- witnesses on whom reliance was not placed by the Trial Court and, therefore, in this judgment we propose to allude to the evidence of those witnesses who were referred to by the learned A.P.P. in his argument. 7. In order to better appreciate and effectively deal with the submissions advanced before us by Shri Shirish Gupte, learned Senior Counsel; Smt. Sadhana Jadhav, Shri Joydeep Chatterji and Shri Vijay Sharma, learned Counsel appearing for the appellants and the learned A.P.P., it would be useful to refer to the evidence of the prosecution witnesses. P.W.11 Syed Najid, brother of deceased Najis and the first informant who had lodged the first information at Exh.61 states that his brother deceased Najis was his youngest brother and was affectionately referred to as Pappu. Deceased Arafat was the friend of deceased Pappu. He states that on 28.8.2006 at about 4.45 p.m. he along with his brother Pappu and Arafat were proceeding towards the Hingoli Gate from his house in order to ascertain the condition of one Pulser motorcycle. They were proceeding by motorcycle bearing registration No.MH-26- 13 P-7682. On account of inadequate petrol in the petrol tank they went to Gundegaonkar petrol pump and Pappu and Arafat alighted from the motorcycle after they had reached the petrol pump. He pushed the motorcycle towards the petrol pump. At that time accused Amer Chaoosh (accused no.4), Altaf (accused no.3), Zuber (accused no.5), Masood (accused no.7), Faizal (accused no.1), Sarhan (accused no.2), Ahmed Balkhashar (accused no.8), Mahesan (accused no.7), Mohd. Chaus (accused no.9) and Akbar (accused no.6) came in the petrol pump near them. Accused Amer, Altaf and Zuber assaulted Pappu with dagger and knife on his waist and hip. Accused Faizal, Masood, Sarhan, Amer Chaoosh and Mohammad Chaoosh assaulted Arafat by dagger and knife on his chest, forehead, stomach and hands. Blood started oozing from the injuries of both the injured. P.W.11 Syed Najid tried to intervene but the assaulted assaulted P.W.11 Syed Najid also. P.W.11 Syed Najid was assaulted by accused Sarhan, Mahesan, Akbar by fist blows. Najid fell on the ground and thereafter all the accused fled from the scene of the offence. Najid further states that he took both the injured by an auto- rickshaw and the Medical Officer commenced treatment on Pappu and Arafat but thereafter declared Pappu as dead. Thereafter the police from Shivajinagar police station arrived there and took him to the Shivajinagar police station where his report Exh.61 was scribed. He states that after scribing of the report he returned back to the Civil Hospital at Nanded where the inquest panchnama of the dead body of Pappu was drawn and then police took him to the scene of the offence where scene of the 14 offence panchnama was also drawn. He states that thereafter his clothes came to be seized. He states that Pappu and Arafat were friends of one Majid and accused were stating as to why Pappu and Arafat were accompanying Majid. The time given by him about the incident is 5.00 p.m. He further states that one Naim and Shakeel had also witnessed the incident. 8. During cross-examination he has admitted that he could not assign any reason as to why the names of the eye-witnesses, namely Naim and Shakeel were not mentioned in the first information report at Exh.61. He has denied the suggestion that the incident occurred between 4.30 to 4.45 p.m. He was confronted with the recitals in his affidavit which had been filed by him while opposing the bail application of the accused that he had stated the time of the occurrence between 4.30 to 4.45 p.m. He has admitted that the contents of the affidavit in that behalf were false. Similarly he was confronted with portion mark "B" in his affidavit that the dying declaration of Arafat was recorded by the Medical Officer. He stated that portion mark "B" in his affidavit was false. He has admitted that he learnt that the Personal Assistant of Shri D.B. Patil, Member of Parliament had reported the incident to Bhagyanagar police station but could not say if the said incident had been reported at 4.45 p.m. He has admitted that the name of accused Mahesan was not mentioned in the first information report at Exh.61. He has denied the suggestion that when the assailants assaulted deceased Pappu he had gone to the 15 "Mens Room" for answering the call of nature. He has denied the suggestion that Pappu had succumbed to his injuries before reaching the hospital. He has admitted that the Medical Officer recorded the history of injured Arafat. He has denied the suggestion that the Medical Officer inquired with Arafat and Arafat had disclosed the incident to the Medical Officer. He further admits that the Doctor had inquired with him at that time. Omission has been duly proved that he had not stated in his report that deceased Najis had fallen in front of the petrol pump near the road. He could not assign any reason as to why names of accused Masood, Ahmed, Balkhasher. Mahesan Ali, Zuber and Akbar are not referred in his report. Omission has been duly proved that he had not stated that accused Zuber had assaulted deceased Najis. Similarly, omission has been duly proved that he had not stated in his report that accused Sarhan and Amer Chaoosh had assaulted Arafat. Similarly, omission has been duly proved that he had not stated in his report that accused Akbar and Mahesan had assaulted him. He states that he does not know whether accused Faizal (accused no.1) had lodged report against Majid, Firoz, Riyaz and Aslam at 4.30 p.m. on 28.8.2006 at Bhagyanagar police station about attempt to kidnap accused no.1 near the Rajeshwari Hotel. He states he does not know whether accused Majid and others had assaulted accused Faizal and accused Faizal had sustained injuries in that incident. He states that he does not know whether an offence punishable under section 365 and 324 of the Indian Penal Code was registered against Majid and others. 16 9. In cross-examination on behalf of accused no.2 he admitted that friend of one Masood had assaulted him. He states that he does not know exactly at what time relatives of Arafat had arrived at Civil Hospital. He admits that he did not inform the relatives of Arafat about the incident. He states that he was present in the Civil Hospital till 7.30 p.m. and relatives of the injured had arrived at the hospital. He has admitted that he did not disclose this incident to any one at the Civil Hospital, Nanded. He has also denied that when three persons had arrived at the petrol pump to assault Pappu he had been to the "Mens Room" for answering call of nature. He has stated that during the incident he had not gone for answering call of nature. He has stated that his supplementary statement came to be recorded on 29.8.2006 but denied that he had disclosed about the death of Arafat. He could not explain the contents at portion mark "A" in his statement to that effect. He has denied the suggestion that his statement was recorded after death of Arafat. He has admitted that after the incident about 100 to 150 persons had gathered at the scene of the offence but no one assisted him. Omission has been duly proved that he had not stated that Pappu intended to purchase a motorcycle. He has admitted that the motorcycle was lying on the ground and the injured were assaulted near the motorcycle. He has admitted that the police did not question him nor asked him to produce documents about the motorcycle. He has stated that he had been orally referred to the Medical Officer by the police as he 17 had sustained some injuries. He has stated he does not remember whether the Medical Officer had examined him. He states that no certificate was issued to him regarding the injuries. 10. Mr Shirish Gupte, learned Senior Counsel for the appellant has referred to the various findings recorded by the Trial Court in respect of this witness. From paragraph 75 onwards the Trial Court has dealt with the evidence of P.W.11 Syed Najid . At paragraph 79 of the judgment the Trial Court records a finding that the first informant had not referred to the names of accused Zuber, Ahmed Balkhashar, Akbar, Mahesan and Mohd. Ali in his first information report at Exh.61. From paragraph 81 onwards the Trial Court has given reasons for not relying upon the evidence of P.W.11 Syed Najid. The Trial Court states that P.W.11 Najid has embellished his version by ascribing overt act to accused no.5 Zuber for the first time in his evidence. He also then names one Masood and Mohd. Chaoosh as the assailants who are not accused facing the trial. Similarly, he states for the first time that Masood and Sarhan had also assaulted Arafat. He states for the first time about injuries being caused on the forehead of deceased Arafat. He claims to have been assaulted by accused Sarhan, Mahesan and Akbar by fist blows and also claims that he had fallen on the ground and sustained injuries. Names of accused Mahesan and Akbar are not reflected in the first information report.