1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.1080 OF 2002 Mohammed Hussain Abdul Wahab Kathewadi ...Appellant Vs. State of Maharashtra (at the instance of D.N.Nagar Police Station, Mumbai) ...Respondent AND CRIMINAL APPEAL NO.1106 OF 2002 1. Shamshad Ali @ Gunnu Lolanali Siddique 2. Tamsen Nawabali Siddique ...Appellants Vs. The State of Maharashtra (at the instance of D.N.Nagar Police Station, Mumbai.) ...Respondent Mr.A.Majeed Memon, Advocate for the Appellant in Appeal No.1105/2002 Ms. Rebecca Gonsolvez, Advocate for the Appellant in Appeal No.1080/2002 Mrs. M.M.Deshmukh, A.P.P for the State in both the Appeals. CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 16TH SEPTEMBER, 2009 2 ORAL JUDGMENT (PER B.H.MARLAPALLE, J.) 1.Both these Appeals arise from the order of conviction and sentence passed in Sessions Case No. 92/1993 by the learned Additional Sessions Judge, Greater Mumbai and by the said order accused Nos.1 to 3 came to be convicted and sentenced for an offence punishable under Section 302 r.w. 34 of the Indian Penal Code. Criminal Appeal No.1080/2002 has been filed by the accused No.1 and Criminal Appeal No.1106/2002 has been filed by accused Nos.2 and 3. Though they were on bail during the trial, on admission of these Appeals their bail applications came to be rejected and, therefore, as of now they are undergoing the life sentence. 2.Criminal Application No.633/2008 was filed in Criminal Appeal No.1106/2002 by accused No.3 contending that on the date of the incident he was a juvenile and therefore, was entitled for protection under the Juvenile Justice (Care and Protection of Children) Act, 2000. The said application came to be rejected. However, on 19 th December, 2008 this Court passed a fresh order on the application received from accused No.3 along with certain documents viz. Photostat copy of the 3 School Certificate and the passing certificate of the Junior High School examination. This Court directed the State authorities to conduct an enquiry as to the genuineness of the said documents and any other related documents and determining the age of the accused No.3 as per rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000. The said enquiry is still pending and we have been assured by the learned A.P.P that it will be concluded as early as possible. 3.The prosecution case could be set out in short as under: The complainant Smt. Kalimumbi Abdul (P.W.5) along with her husband Shri Abdul Nabi was residing at Unisbhai Chawl, Patkar Compound, Sadabahar Mohalla, Dongri, Andheri along with their children. In the night of 9 th August, 1992 and after the family had dinner, Abdul Nabi was invited by the accused No.1 and 2 for the drinks party in the room of the brother of accused No.2. Some time around the midnight P.W.5 heard the shouts of her husband and some of the accused were saying Bhaago Bhaago and therefore, she came out of her house and saw that her husband was lying in a pool of blood with 4 number of injuries. She tried to ask him as to who had assaulted him, but there was no response and she came out of the house and called for help. She went from door to door to ask for help, but none came forward and she returned to her husband and noticed that he was motionless. She went to the D.N.Nagar Police Station, Andheri and recorded the complaint at about 1.25 hours (Exhibit-18). The police arrived at the scene along with the complainant at around 2 a.m and noticed that Abdul Nabi was dead. Spot-cum-inquest panchanama (Exhibit-15) was drawn with P.W.4 Shamim Khan as one of the panch witnesses. Accused No.1 was seen by P.W.6 Jurav Mantero, P.S.I who was on night patrolling duty around 12 midnight and accused No.1 had sustained burn injuries. He was taken to Cooper Hospital and remained hospitalised for 2 days. He was arrested on 12 th August, 1992. Accused Nos.2 and 3 came to be arrested on 14 th August, 1992. On 20 th August, 1992 all the 3 accused were sent to Cooper Hospital and P.W.8 Dr. Ramesh Dyawarkonda had examined accused Nos.2 and 3. The clothes of the accused were seized/recovered after their arrest and P.W.2 Vijay Pande and P.W.3 Anil Shitap were the panch witnesses for these recoveries. On 10 th August, 1992 the dead body of Abudul Nabi was sent for Post Mortem and Dr. Vasant 5 Vanmore (P.W.9) conducted autopsy and submitted Post Mortem Report at Exhibit-27. On 18 th August, 1992 all the 3 accused were taken to the police hospital at Nagpada for medical examination, which was conducted by Dr. Shivaji Daund (P.W.11) and medical certificates about the injuries were also obtained. Dashrath Rathod, Police Constable (P.W. 12) had seized the clothes of the deceased. All the clothes as well as the articles recovered from the spot were sent for chemical analysis and/or about 13 th September, 1992. C.A. Reports were received. The clothes of the accused and deceased were detected to have sulphuric acid marks. The weapons recovered from the spot were seen smeared with blood (axe and razor). On completion of investigation charge-sheet was filed on 6 th November, 1992. As the case was triable by the Sessions Court, it was committed on 6 th January, 1993 and charge was framed on 7 th March, 2002 (Exhibit-2). 4.P.W.13 Khrishna Gawade was the Investigating Officer and in all 13 witnesses came to be examined by the prosecution. P.W.1 Sheikh Yunus Abbas, P.W. 2 Vijay Pande and P.W.7 Fatima Lalsab Sayyed were declared hostile. Statements under Section 313 of the Code of Criminal Procedure of all the 3 accused 6 were recorded, after recording the oral evidence. All the accused denied their involvement and contended that they were falsely implicated in the offence. However, they admitted that they were taken for medical examination to the Nagpada Police Hospital on 18 th August, 1992 and Cooper Hospital on 20 th August, 1992 (accused Nos.2 and 3 only). 5.The learned Sessions Judge held that the prosecution proved the incident that had taken place at or around 1.25 a.m. (mid night) of 9 th August, 1992 leading to 10 th August, 1992, at temporary tin shed situated at Patkar Compound Sadabahar Mohalla, Gaodevi Dongari, Andheri (W), Mumbai causing death of Abdul Nabi Mohammed Issaque by use of weapons like axe and razor and he had sustained acid burn injuries on his face, neck and chest etc. He further held that accused Nos.1,2 and 3 had committed the murder of the said Abdul Nabi Mohammed Issaque in the said incident, therefore, he sentenced them to life imprisonment and fine of Rs.500/- in default to undergo 15 days Rigorous Imprisonment in addition. 6.Ms. Gonsalvez, the learned Counsel for the accused No.1 submitted that even as per the trial Court the case of the prosecution was based on circumstantial 7 evidence, as the trial Court disbelieved P.W.5 as the eye witness and the chain of circumstances could not be completed and in fact it remained broken on account of various lapses, therefore, the conviction of accused No.1 is unsustainable. She also pointed out that even in the last seen theory as alleged by P.W.5, the accused No.3 did not figure except her statement that when she reached the door, she had seen all the 3 accused and one more person running away from the said room/hut. She also pointed out by referring to the oral testimony of P.W.6 that in the absence of the medical record from Cooper hospital regarding the hospitalisation and medical treatment allegedly received by the accused No.1 on 10 th and 11 th August 1992, the testimony of P.W.6 could not be relied upon. As per her the prosecution could not explain as to how accused No.1 came to be arrested on 12 th August, 1992 and there was no evidence to reasonably believe that he had sustained burn injuries in the alleged incident, more so when P.W. 2 Vijay Pande who was the panch witness for the seizure of the under-garments of the accused No.1, had turned hostile. The medical certificate issued by P.W.11 about the alleged burn injuries could not be accepted to establish the link of accused No.1 with the incident causing the murder of the Abdul 8 Nabi. She has relied upon a number of decisions before us in support of her contentions that the prosecution miserably failed to establish its case beyond reasonable doubt and on the basis of the circumstantial evidence regarding the complicity of accused No.1 in the incident. It was also pointed out that the accused No.1 was alleged to have assaulted the deceased with the wooden plank (Article No.1) and as per the opinion of P.W.9 Dr. Vasant Vanmore, the injuries sustained by the deceased on his head and resulted in his death could not have been caused by the said wooden plank and thus the case of the prosecution against the accused No.1 could not be proved even on the basis of the medical evidence. 7.Mr. Memon, the learned Counsel appearing for accused Nos.2 and 3 while adopting the arguments advanced by Ms. Gonsalves submitted that the police had implicated the accused without any basis and in fact the prosecution could not adduce reliable evidence so as to establish the chain of circumstantial evidence unerringly proving to implicate all the accused in the murder of Abdul Nabi in the night of 9 th August, 1992. He submitted that the last seen theory has not been proved because of the self contradictions in the evidence 9 of the concerned witnesses and the injuries allegedly found on the person of the accused could not be, with certainty, linked with the murder of Abdul Nabi and simply because as per the Post Mortem Report the deceased had also received burn injuries. The learned Counsel also submitted that the investigation was lethargic, the alleged recovery of clothes could not be proved, the panch witnesses turned hostile and/or the recovery was from places which were amenable to one and all and at the same time even the C.A.Reports did not show the presence of finger prints of accused on any of the weapon (articles seized and recovered). The medical Certificates by themselves could not be relied upon to support the prosecution unless there is any other corroborative evidence and no such corroborative evidence was adduced by the prosecution. He urged that the benefit of doubt must go in favour of the accused and they ought to be acquitted. 8.P.W.5 Kalimumbi Abdul, the wife of the deceased stated in her complaint (Exhibit-15) that on 9 th August, 1992 at about 22 hours her husband had taken dinner and was standing in front of her room. Accused No.1 who was staying close to her house, requested Abdul Nabi to come to the room of the 10 brother of accused No.2 and they went to the said room where some other persons who were the brothers and relatives of accused No.2 were present. They requested her husband to have drinks, but he declined. They insisted on him to take the drinks and they all started drinking liquor. She was able to listen/hear their talk as there was only a partition between her room and the room where the drinks party was going on and as there were holes in the tin partition, she was able to see what was going on in the next room. While they were consuming liquor they started quarreling and shouting and she heard the voice of accused No.3 saying Maaro re Maaro and Bhaago re Bhaago , she came running out of her room to see what was happening in the neighbouring room, which was attached to her room and when she reached the door she saw all the accused running away and her husband was lying in a pool of blood near the door, but inside the neighbouring room and he was gasping. She asked him, but he could not speak. She shouted for help, but nobody responded. She then went from door to door requesting for help, but no one came forward. She went back to see her husband s condition and noticed that he was dead. 9.In her substantial evidence before the trial Court 11 P.W.5 came out with a different version. She stated the incident had taken place at around 12 midnight while she was present in her house. Her husband had gone along with accused No.2 Shamshad Ali whose hut/room was adjacent to her hut. Both of them went to the said hut. Accused No.1 asked her husband for a party, but her husband replied that he had already taken dinner and, therefore, would not like to have drinks. However her husband went to the hut of accused NO.2 and took some drinks with accused Nos.1 to 3. She also stated that all the accused had taken her husband with them and therefore, she could state that her husband had taken drinks with all the accused. She could see through the zinc sheets what was going on in the next room belonging to the brother of accused No.2. Accused Nos.1 to 3 then assaulted her husband and as per her accused No.2 assaulted him by an axe, accused No.1 Mohammed Hussain assaulted by wooden plank and accused No.3 Tamsen assaulted by knife. All of them had thrown acid on her deceased husband and he had fallen down. The clothes of her husband were burnt because of acid and had sustained injuries on his forhead and cheek. On the issue of motive she had stated in the complaint that accused No.1 was in love with her sister-in-law by name zarina (wife of brother of the deceased) and this 12 was not liked by the deceased and therefore, on that count the relations were strained. 10.The actual assault attributed to each of the accused and as stated in her depositions, did not find place in her complaint lodged to the police. Similarly in the complaint she had stated that it was accused No.1 who invited and took Abdul Nabi to the room of the brother of accused No.2, but in her evidence before the Court she stated that her husband had gone along with accused No.2 and the accused No.1 had asked about the party. In her cross examination she admitted that Ibrahim and Basheer were having enmity with her husband and they were after his life. Basheer is the father of Zarina whereas Ibrahim is her brother. She also stated that accused Nos.1 to 3 were the only persons and there was no one else who had come to call her husband. P.W.13 Khrishna Gawade who recorded the complaint of P.W.5 stated in his evidence that the complaint was recorded as was told by P.W.5. We have noted that in the complaint (Exhibit-15), the complainant had stated that all the accused and the deceased were having liquor party in the adjoining room, after consuming liquor they started quarreling and shouting and she had heard accused No.3 saying Maaro re Maaro and 13 Bhaago re Bhaago . She had also seen all the accused running away from the room where the party was going on. She did not attribute any assault or she did not claim that she had seen any of the accused assaulting her husband when her complaint was recorded at the first instance. However in her substantial evidence before the Court she assigned individual role of assault. 10.A. Circumstances accepted by the trial Court while passing the order of conviction and sentence are as under:- a) The homicidal death of Abdul Nabi in the midnight of 9 th August, 1992. b) Accused last seen by the P.W.5. c) P.W.5 had seen her husband in injured condition as well as dead soon after the incident. d) Spot/inquest panchanama about the seizure of acid bottle and weapons. e) C.A report of bloodstains on the weapons, presence of sulphuric acid on the clothes of the accused as well as the deceased and presence of sulphuric acid in the bottle. f) Recovery of clothes of the accused and acid found on them. 14 g) Presence of the accused at the spot. h) Evidence of P.W.6 stating that the accused No. 1 was seen past midnight with burn injuries on his person and was, therefore, admitted in Cooper hospital. i) Burn injuries on the person of all the accused as well as the deceased, as per the evidence of P.W.8 and P.W.11. j) Medical Certificates issued by Nagpada Police Hospita at Exhibit-43 (colly) as well as the medical certificates issued by the Cooper Hospital in respect of accused Nos.2 and 3 at Exhibit-23 & 25. 11.The P.M.Report at Exhbit-27 was admitted by the defence and it could not be disputed that Abdul Nabi, the husband of the complainant died a homicidal death. As per P.W.9 Dr. Vasant Vanmore the injuries sustained by the deceased and noted by him were mentioned in Clause 17 at serial Nos.1 to 8 in the P.M. Report and those injuries were possible by a sharp edged weapon like chopper, knife, sword and axe etc. He further stated that injury No.9 was possible by throwing acid on the face of the person. As per the said report the death was unnatural due to shock and hemorrhage. He further stated that injury No. 9 recorded in 15 coloumn No.17 of P.M. Report could be possible by articles 4 and 6 axe and knife. He also admitted in his cross examination that injury Nos. 1 to 8 could not have been caused by the wooden plank Article-29. Thus the death of Abdul Nabi was on account of the injuries caused by sharp edged weapon and he had died on the spot. 12.The evidence of P.W. 5, complainant has been considered by the trial Court and has been discarded as an eye witness. We do not find any error in the said finding. Under these circumstances the admissible evidence of P.W.5 went to show that on 9 th August, 1992 after her husband had taken dinner he was invited for drinks party in the neighbourhood and he proceeded towards the room belonging to the brother of accused No.2. After some time she had heard some shouts Maaro re Maaro and Bhaago re Bhaago , therefore she had come out of her room and went to the room where she saw her husband lying in injured condition. She could not get any help despite her call for the same and subsequently, she noticed that her husband is dead. Thus there is no eye witness to the incident as has been rightly held by the trial Court. To examine the circumstances as considered by the trial Court, the evidence of the prosecution 16 starts with P.W.6 Jurav Mantero. He has stated before the Court that he was P.S.I on patrolling duty between 1.00 p.m on 9 th August, 1992 to 8.00 a.m on 10 th August, 1992 and while he was at Gilbert Hill area along with Mobile Van at about 12 midnight, accused No.1 arrived there with burn injuries and on enquiry he stated that he had sustained those injuries in a quarrel that had taken place between him and the deceased. He further stated that the accused No.1 had told him that he as well as Abdul Nabi had sustained injuries in the said quarrel and that he had taken injured Abdul Nabi to Cooper hospital. He had reported the said incident to the Control Room. Though this witness had taken the name of Abdul Nabi as the person taken to Cooper hospital, he pointed out the accused No.1 present in the Court and he stated that he was the same person whom he had taken to the Cooper hospital. It would be therefore, appropriate to clarify that the injured person taken was not Abdul Nabi who was found dead on the spot of offence as per prosecution case. In his cross examination this witness has admitted that there was no panchanama drawn about the accused No.1 coming to the mobile van in an injured condition. 17 13.P.W.13 Khrishna Gawade in his deposition admitted that there was no record with the Control Room about P.W.6 taking the accused No.1 to the Cooper hospital and also the treatment given to the the said accused, while he was admitted in the said hospital for 2 days. No efforts were taken by the prosecution to bring on record and prove any such evidence before the trial Court. Hence, the prosecution case that P.W.6 was the witness to link the accused No.1 with the incident or to show his complicity / participation in the same or his presence at the spot of incident could not be established beyond reasonable doubt. 14.So far as the recovery of the weapons is concerned, the C.A. Report at Exhibit-33 indicates that blood was found only on the axe and there was no blood detected on the knife. The C.A. Report does not state that human blood was detected on the axe. The C.A. Report could not determine the blood group of the deceased though it found that the blood group of accused No.1 was A and that of accused Nos. 2 and 3 was B . Ms. Gonsalvez, the learned Counsel for the accused No.1 rightly pointed out that to connect these weapons with any of the accused, though it was the prosecution case that the accused No.1 had assaulted the deceased 18 with wooden plank, their finger prints ought to have been taken and this was not done. In the absence of the finger prints report, there is no acceptable evidence, which could go to show that these weapons or any other weapons were used either by accused No.2 or 3. As per the evidence of P.W.9 one injury out of injury Nos.1 to 8 was so hard hit that the brain of the deceased was exposed. It was also the prosecution case that the axe was tucked with some human hair, but the C.A. Report has not indicated anything, but only hair. Thus assault by an axe could not be linked to either of the accused. The learned Judge of the trial Court has not considered this aspect. In the case of Shantabai & Ors. Vs. State of Maharashtra, A.I.R. 2008 SC, 1 to 9. Their Lordships of the Supreme Court in paragraph 20 observed, as below:- 20. According to the opinion of the Doctor, the cause of death was because of shock due to cardio respiratory failure caused by injury to brain and brain hemorrhage. The Chemical Analyser s report would reveal that ethyl alcohol was found in the viscera contents of the deceased. We may point out that the Investigating Officer has not cared to collect the finger prints appeared on the stones and axe, the alleged weapons of offence, at the time of seizure of the articles nor he had taken the finger prints of the appellants for comparison with the finger 19 prints, if any, detected on the alleged weapons of offence..... 15.The Supreme Court concluded that the prosecution could not establish beyond reasonable doubt that the accused had used the said weapons for the offence committed. 16.The next circumstance is regarding the recovery of clothes and presence of sulphuric acid on them. The recovery of under-garments of accused No.1 was sought to be proved through the evidence of P.W.2 Vijay Pande and he turned hostile. At the same time even as per the prosecution the alleged recovered under-garments were handed over to the police by the mother of the accused No.1 and it was not recovered from his person while he was in custody. Similarly the alleged recovery of clothes of accused Nos.2 and 3 was based on the evidence of P.W.3 Anil Shitap. This witness has supported the prosecution case and stated before the trial Court that on 15 th August, 1992 he had acted as a witness and in