1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL NO. 364 OF 2003 NASIRKHAN SAHEBKHAN ) R/o 2628 Madrasa Goursia ) Kokanipura, Nashik. ) At present confined at Nasik Road) Central Prison, Nasik 422 101 ) .. APPELLANT (Orig. Accused No. 1) Versus THE STATE OF MAHARASHTRA ) .. RESPONDENT Ms. Rohini M. Dandekar. Advocate appointed from Legal Aid Counsel for the appellant Mr. H. J. Dedhia, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 18TH MARCH, 2010. 2 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:-26TH MARCH 2010 JUDGMENT: (Smt. Ranjana Desai, J.) The appellant was tried with one other in Sessions Case No. 168 of 2001 for offences punishable under Sections 302, 397, 201 read with Section 34 of the Indian Penal Code (“IPC” for short) by the 1st Adhoc Sessions Judge, Nashik. In the said case the appellant was arraigned as accused 1. One Javed Khan Jamir Khan was arraigned as accused 2. One Majid Shaikh Fakir Qureshi was arraigned as accused 3. However, he turned approver. By judgment and order dated 23/8/2002 learned Sessions Judge acquitted accused 2. He convicted the appellant under Section 302 of the I.P.C. and sentenced him to suffer life imprisonment. The appellant was convicted of offence punishable under Section 397 of the IPC and sentenced to suffer RI for five years and to pay a fine of Rs. 5000/-. He was convicted of offence punishable under Section 201 of the IPC but no separate sentence was awarded for the said offence. Substantive sentences were ordered to run concurrently. For the sake of convenience we shall refer to the accused as per their description in the trial court except accused 3 whom, we shall refer to as the approver. Being aggrieved by the judgment and order 3 dated 23/8/02 accused 1 has filed this appeal. 2. It is necessary to begin with the facts of the case; a) Deceased Tanaji Eknath Jadhav was working as Truck Driver in Telephone Department at Nashik. He was residing along with his wife and two sons in the Telephone Colony at Sahyadri Nagar, near Pathardi Fata in Cidco area. b) On 1/6/01 the deceased left his house at about 9 a.m., in the morning to join his duty. He contacted his wife on telephone and told her that he would be coming late in the night. On that day the deceased and his colleagues from the Telephone Department including PW 9 Subhash More had arranged a party in the honour of their friend Mr. Kapare, who was promoted. This party was to be held at Matori Telephone Exchange at Makhmalabad Road. On the way while proceeding towards the venue of the party, the deceased and others purchased eatables and liquor. The party went on upto 8-30 to 9 p.m. After the celebration got over they started from Matori via Makhmalabad Road and by old Agra Road. They were proceeding towards CBs. PW 9 Subhash More, the deceased and 4 one Dhamane were together while others went via N.G. Road to their residence at Ganjmal area, Nasik. PW 9 Subhash More left the deceased at CBs and he along with another colleague went to his residence. c) On that day the approver had been to a Dargah by about 8-30 to 9 p.m. in the night. He had prasad at the Dargah. Accused 2 had also come there to have prasad. After they finished eating they went to Phule Market and were sitting on the ota in front of a kirana shop by the side of Sabri Hotel. Accused 1, who was friend of accused 2 was passing by the road in his rickshaw. On seeing accused 2 he stopped the rickshaw in front of the kirana shop and invited accused 2 for taking round in his rickshaw. Since the approver was accompanying accused 2, he was also taken in the rickshaw by accused 1. All of them went to Phule Market and from Phule Market they went to Ganjmal area. At that time accused 1 saw a drunkard passing by the road so he stopped his rickshaw and kicked the drunkard. The drunkard fell down. Accused 1 took out an amount of Rs.45/- from his pocket. All of them proceeded to the petrol pump near Dwarka square. Accused 1 purchased petrol for Rs.45/-. Accused 1 then took the rickshaw along with accused 2 and the 5 approver to the old Agra Road. Accused 2 and the approver went to ease themselves by the side of the road and came back to the rickshaw. They found one passenger going by the road. He was the deceased. Accused 1 asked the deceased as to where he was going. The deceased told him that he wanted to go to Pathardi Fata. Accused 1 quoted Rs.10/- as rickshaw charges. The deceased was not agreeable to that amount. He stated that he shall pay Rs.6/- as rickshaw fare. The deceased started walking ahead. Accused 1 along with accused 2 and the approver took the rickshaw near the deceased and told him that he was prepared to charge only Rs.6/-. The deceased decided to board the rickshaw. Accused 1 left the driver’s seat and asked the approver to take the driver’s seat for driving the rickshaw on the pretext that there was pain in his arm. The approver started the rickshaw. After he proceeded some distance, he felt a jerk. He looked back and noticed that accused 1 was pressing the neck of the deceased. Accused 2 started raising cries. Accused 1 dealt a fist blow to him and asked him to keep quiet. He also slapped the approver and directed him to take the rickshaw to a lonely dark place. The approver then took the rickshaw near Rangrej-Mala. Accused 1 dragged the deceased out of the rickshaw by holding his legs and threw his body on the barren land, 6 after removing wrist watch and gold ring from his hands. He also took away a wad of currency notes from the pant pocket of the deceased. d) Accused 1 then started driving the rickshaw. Accused 2 and the approver sat on the passengers’ seat. Accused 1 took the rickshaw at Bagwanpura area. It was past midnight. The said rickshaw in fact belonged to PW 7 Abdul Hamid Shaikh Hussain. It bore registration No. MH-15-B-4230. The rickshaw was standing in the name of one Kulkarni, though PW 7 was its owner. PW 7 was running the rickshaw on the permit of the said Kulkarni. PW 7 had employed accused 1 as the driver of the said rickshaw. Accused 1 had not paid the hire charges to PW 7. He had not seen PW 7 for about 20 days. On the midnight of 1/6/01 PW 7 had come to a paan shop in Bagwanpura. He saw accused 1 pass by the road in his rickshaw. He called out to him and asked him why he had not paid his charges and why he had not returned the rickshaw. Accused 1 paid Rs.800/- to PW 7 and also left the rickshaw with PW 7 and went away. e) On 2/6/01 one B. J. Sharma resident of Rangrej-Mala 7 contacted Bhadrakali Police Station and informed that a dead body of a male was lying in the barren area near Rangrej-Mala. On getting this information H C Suryawanshi registered AD No. 34 of 2001 and made over the investigation to PW 14 API Patil. PW 14 API Patil then proceeded to the spot. A spot panchnama was drawn. The dead body was handed over to Constable Mirza for taking it for postmortem. Postmortem was conducted by PW 4 Dr. More who found 11 external injuries on the dead body. Dr. More gave cause of death as ‘Asphyxia due to smothering’. PM notes are at Exhibit 38. f) PW 6 Kalpana wife of the deceased was informed by the husband of the sister of the deceased that her presence was required near Rangrej Mala for the identification of the dead body. She went with the relatives to the said place from where the dead body was being transferred to the civil hospital. She identified the dead body as that of her husband. She informed PW 14 API Patil that the dead body was that of her husband. PW 14 had described the dead body as that of an unknown person in the inquest panchnama Exhibit 11. When he got to know from PW 6 that the dead body was that of her husband he gave a separate report to the medical officer informing that it was the dead body of Tanaji Eknath 8 Jadhav. Father and younger brother of the deceased who were informed that the deceased was serious went to the house of the deceased. PW 6 was at home. She told them that the deceased was dead. PW 5 Uttam the brother of the deceased went to civil hospital. He made inquiries with PW 4 Dr. More and came to know that the deceased had died on account of strangulation and/or smothering and it was not an accidental death. On getting this information PW 5 approached Bhadrakali Police Station on 2/6/01 and lodged FIR which is at Exhibit 41 at 9-15 p.m. Investigation was set into motion. g) It appears that the approver Majid Shaikh went home after the incident. He and accused 2 were upset over the incident of murder and, therefore, four days after the incident i.e. on 6/6/01 they went to Bhadrakali Police Station and reported the matter to the police. They were immediately arrested. On the basis of the information received from them, the police tried to arrest accused 1 but could not arrest him because he had gone to Igatpuri. Accused 1 was arrested on 6/6/01 under panchnama Exh. 15. On 6/6/01 PW 7 the owner of the rickshaw produced the rickshaw. It was seized under panchnama Exhibit-14. On 4/7/01 the prosecution filed an application Exhibit-73 9 before the Chief Judicial Magistrate, Nasik, inter alia stating that one of the participants of the crime, Majid Fakir Qureshi, i.e. the approver was prepared to make a confessional statement. It was stated that he may be given pardon and his evidence may be recorded as evidence of the approver. The approver was then produced before learned Magistrate on 10/7/01. Preliminary questions were asked by learned Magistrate to him. He was given necessary time for reflection on two occasions. After confirming that he was prepared to make true disclosure, learned Magistrate passed a detailed order recorded his statement on 20/7/01 which is at Exhibit 57. Pardon was tendered to him and he was made prosecution witness. 3. After completion of the investigation accused 1 and 2 were charged as aforesaid. Defence of accused 1 and 2 was of total denial. According to them they were falsely implicated by creating evidence of the approver by the police. After perusing the evidence on record learned Sessions Judge acquitted accused 2 and convicted accused 1 as aforesaid and hence this appeal by accused 1. 4. We have heard Ms. Dandekar, learned counsel for the 10 appellant-accused 1 at some length. We have also heard learned APP Mr. Dedhia. With the assistance of learned counsel, we have gone through the record of the case. 5. Learned counsel for the appellant-accused 1 submitted that evidence of the approver is not free from doubt. He has tried to save himself by adducing false evidence. His evidence is not corroborated by other evidence on record. The recovery of watch and gold ring at the instance of accused 1 is doubtful. It does not inspire confidence. There is, therefore, no evidence on record to establish the complicity of accused 1 in the offence of murder and hence accused 1 deserves to be acquitted. 6. Learned APP on the other hand submitted that approver’s evidence inspires confidence. It is corroborated by the evidence of other prosecution witnesses. Learned APP submitted that the evidence on record clearly establishes that at the instance of accused 1, ring and wrist watch were recovered. PW 7 the rickshaw owner has categorically stated that he had given his rickshaw to accused 1 on hire. Learned APP submitted that the clinching evidence of the approver and other circumstances on record clearly 11 establish the guilt of accused 1. He urged that, therefore, this court should confirm the impugned judgment and order. 7. The prosecution case depends largely on the evidence of the approver. What weightage should be given to the approver's evidence and in what manner it should be appreciated has been stated by the Supreme Court in several judgments. 8. In The State of Andhra Pradesh v. Cheemalapati Ganeswaras Rao & Anr. v. AIR 1963 SC 1850, the Supreme Court observed that whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to, the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely self exculpatory and so on and so fourth. The court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests the evidence of the approver should be acted upon. We may also usefully refer to he judgment of the Supreme Court in Narayan 12 Chaudhary v. State of Maharashtra, (2000) 8 SCC 457. In that case, the Supreme Court has stated that there is no distinction between an accomplice who is or is not an approver. As both have been treated alike, the rule of corroboration applies to both. Accomplice’s evidence is taken on record as a matter of necessity in cases where it is impossible to get sufficient evidence of a heinous crime unless one of the participators in the crime is disposed to disclose the circumstances within his knowledge on account of tender of pardon. 9. In K. Hashim v. State of Tamil Nadu, (2005) 1 SCC 237, the Supreme Court laid down the following principles: “It is not necessary that there should be independent confirmation of every material circumstance. All that is required is that there must be additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. 13 The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particulars the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence. Again all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those who committed the offence. The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances, a conviction so based would not be illegal. 14 The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with crime.” 10. The present case needs to be examined in the light of the above principles. We shall find out whether there is corroboration in the form of independent evidence making the approver’s evidence safe to act upon. We must note that, we have not found any procedural irregularity in recording of the approver’s statement. He was given sufficient time to reflect on his decision. PW 13 Sanjay Deshpande, who recorded the approver’s statement has detailed the procedure followed by him. He has been subjected to winding aimless cross-examination which has not made any dent in his evidence. We have no hesitation in recording that PW 1 Majid Shaikh the approver has voluntarily made statement Exh. 57. 11. Dead body of the deceased was found lying in the barren area near Rangrej Mala in the morning of 2/6/01. On receiving this information from one B. J. Sharma, HC Suryavanshi registered AD No. 34 of 2001. The dead body was identified by PW 6 Kalpana, 15 wife of the deceased. Postmortem was conducted on the deceased by PW 4 Dr. More. Dr. More found 11 injuries on the deceased. The cause of death was given by Dr. More as ‘Asphyxia due to strangulation’. From the suspicious circumstances under which the dead body was recovered from a barren land and from postmortem notes it is evident that the death was homicidal. 12. PW 6 Kalpana, wife of the deceased stated in her evidence that on 1/6/01 the deceased left for his duty at about 9 a.m. At about 3 p.m. he contacted her on phone and informed her that he would return home by about 9/9-30 p.m. in the night. PW 9 Subhash More, who was working as draftsman in the telephone office at Nashik in his evidence stated that on 1/6/01 a party was arranged at Matori on Makhmalabad Road to felicitate Shri Khapare who was promoted. He confirmed that he along with deceased Tanaji, Khapare and Dhamane and other employees had gone there and after taking meals they started by about 8-30 p.m. in the evening for going to their respective houses. He along with the deceased and Suryavanshi came upto CBS. From CBS he and Suryawanshi went to their respective houses at about 9 to 9-45 p.m. 16 13. PW 4 Dr. More did postmortem on 2/6/01 from 1/30 p.m. to 2 p.m. Dr. More stated that the death must have been caused 2/3 hours after the last meal. According to PW 9 Subhash More the party was over at about 8-30 p.m. and he left the deceased at CBS at about 9 to 9-45 p.m. Therefore, the death must have occurred after the deceased started proceeding on the road alone from CBs. This fits in with the approver’s evidence as, we shall soon see. 14. We must now turn to the evidence of the approver PW 1 Majid Shaikh. The gist of his evidence is as under: On 1/6/01 the approver had been to the Dargah. At about 8/8-30 p.m. he was having prasad. His friend Javed, accused 2 came there. They had prasad. They went to Phule Market and sat on the ota in front of kirana shop. Accused 1 came there and asked accused 2 to accompany him for taking round by his rickshaw. The approver also sat in the rickshaw. On the way, they came across a drunkard. Accused 1 kicked him on his leg and took Rs.45/- from him. Accused 1 filled petrol in his rickshaw. He took the rickshaw near Bombay Naka and halted it there. The approver and accused 2 went to ease themselves. They came back to the rickshaw. One 17 passenger was walking on the road. Accused 1 asked him as to where he wanted to go. That passenger was the deceased. He told accused 1 that he wanted to go to Pathardi village. There was some haggling over the fare and ultimately, accused 1 agreed to take the deceased to his destination. The deceased got into the rickshaw. Accused 1 asked the approver to drive the rickshaw on the pretext that there was pain in his arm. The deceased, accused 1 and accused 2 sat on the rear seat. The approver drove the rickshaw. The approver felt jerks. He turned round and saw accused 1 throttling the deceased. Accused 2 raised cries. Accused 1 dealt a blow to him and asked him to keep quiet. He slapped the approver on his cheek and asked him to take the rickshaw to a lonely place. The approver followed the command, took the rickshaw to a lonely place and stopped it there. Accused 1 dragged the deceased out. He took charge of the ring and watch worn by the deceased. He took out currency notes from the pocket of the deceased. He then directed the approver and accused 2 to sit in the rickshaw. He drove the rickshaw to Bagwanpura. As the rickshaw was proceeding towards Bagwanpura owner of the rickshaw who was having tea at Bismillah Hotel called out to accused 1. He asked accused 1 as to why he had not paid his charges and where was he for the last 20 18 days. It was about 12-30 midnight. The owner of the rickshaw then took the rickshaw in his custody. Accused 1 paid his charges. Because of this, the approver could not sleep on that night. Accused 2 was also very upset. Therefore, on 6/6/2001 they went to Bhadrakali Police Station and made clean breast of everything. The approver showed willingness to make a confessional statement. The police arrested both of them. On 6/6/2001 accused 1 was arrested. The approver’s confessional statement came to be recorded. 15. The approver has been cross-examined. But in the cross- examination, he has not deviated from his version in the examination -in-chief. We find his evidence to be reliable. It is, however, necessary to see whether there is corroboration to the basic story narrated by the approver so that it can be safely relied upon. 16. PW 14 API Patil has stated in his evidence that on 7/6/01 accused 1 expressed willingness to discover a watch and a ring. He recorded his statement which is at Exh. 33. Pursuant to the statement a watch and a ring were recovered. We must state here that PW 2 Abdul Rehman who acted as a pancha to this panchnama has turned hostile. But PW 14 API Patil’s evidence is supported by 19 other evidence on record to which, we shall now refer. 17. PW-6 Kalpana, wife of the deceased identified wrist watch [Article 4] and wring [Article 5] when shown to her in the court as the articles worn by her husband when he left the house on 1/6/2001. She stated that she has receipts to show that the said articles were purchased by her. She handed over the receipts to the police. 18. PW-11 Govind Mandlik is a goldsmith. He owns a jewelery shop in Deolali camp. He stated that on 20/8/2001 the police came to his shop and showed him receipt [Ex-52]. He confirmed that the said receipt was issued by him to the deceased when he came to purchase the ring from his shop on 20/2/2001. When the ring [Article 5] was shown to him, he confirmed that it is the same ring. Receipt [Ex-52] shows the weight of the ring [Article 5] as 3.800 grams. Its sale price is shown as Rs.1,800/-. This witness has stood firm in cross-examination. 19. PW-10 is Ramesh Thakur. He owns a shop in the name and style of Pandharinath Ganesh Thakur & Sons. He stated in his evidence that on 2/6/2001, one Muslim lady approached him at his 20 shop and sold a ring to him. He paid her Rs.1,435/- and obtained a receipt from her. PW-10 produced xerox copy of the said receipt. It is at Ex-50. It bears the name of Rehana Shaikh Aziz, sister of accused 1. The sale price of the ring is shown as Rs.1,435/-. When ring [Article 5] was shown to PW-10, he confirmed that it is the same ring which he had purchased. It appears from the cross-examination of this witness that at some stage, he tried to turn hostile. He stated that Article 5 is the ring, which he had made in