AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.522 OF 2009 IN CRIMINAL APPEAL NO.429 OF 2009 1. Kamru @ Javed Haniflala Khan, Occupation Business, resident of Room No.28, 4/3, Chhotubhai Chawl, Opp. Municipal Corporation, Parksite, Vikhroli, Mumbai – 400 079. ) ) ) ) ) ) 2. Salim Gous Mohammed Shaikh, Occupation Business, resident of Aminabai Chawl, Room No. 03, Pankeshababa Darga, Ghatkopar (West), Mumbai. ) ) ) ) ) 3. Juber Ahmed Bashir Ahmed, Occupation Business, resident of Simla Nagar, B.M.C. Colony, Behind Building No.1, Parksite, Vikhroli (West), Mumbai – 400 079. ) ) ) ) ) ) 4. Anwar Sayyed Basumiya @ Annu, Occupation Tailor, resident of Sindhu Society, Road No.1, Room No.139, Opposite Shivsena Office, Vikhroli (W), Mumbai – 400 079. ) ) ) ) ) ) ) ... Applicants Versus AJN 2 The State of Maharashtra (Through Parksite Police Station, Vikhroli, Mumbai) (C.R. No.170 of 2007). ) ) ) ) ... Respondent Mr. S.R. Chitnis, senior counsel i/b Mr. S.V. Kotwal for the applicants. Ms. V.R. Bhonsale, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & R.G. KETKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 1ST JULY, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 8TH JULY, 2009. P.C. :- 1. The applicants are original accused 1 to 4 respectively in Session Case No.745 of 2007 which was tried by Third Ad-hoc Additional Sessions Judge, Mumbai. All the applicants were tried for commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, “the IPC”) and under Section 4 read with Section 27 of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act. By AJN 3 judgment and order dated 31/3/2009, learned Sessions Judge acquitted the applicants of the allegation of commission of offences under the Arms Act as well as the Bombay Police Act. However, all of them have been convicted under Section 302 read with Section 34 of the IPC. The applicants have been sentenced to suffer life imprisonment. They have been directed to pay fine of Rs. 1,000/- and, in default, to suffer R.I. for three months each. The appeal preferred by the applicants challenging the said judgment and order has been admitted. This is their application for bail. 2. The case of the prosecution is that some years back, one Haniflala was murdered. In that case, Rafiq Shaikh (for short, “the deceased”) was one of the accused. He was convicted of the offence of murder. Due to that, there was enmity between the deceased and Haniflala’s son Javed, who is applicant 1 herein. 3. According to the prosecution, on 12/6/2007, at about AJN 4 5.00 p.m., the complainant Farida had gone to Goodluck Hair Cutting Saloon for the haircut of her niece Heena aged about 9 years. Goodluck Hair Cutting Saloon is situated at Sagar Road of the said locality. PW-1 Farida was standing outside the Saloon. At that time, she noticed the deceased going by his motorcycle from his house. When the deceased came in front of Sakhi Beauty Parlour, four assailants holding knives came from the front side of the deceased. Thereafter, all of them stabbed the deceased with knives. The deceased fell down from the motorcycle. Blood was oozing from his person. All the four assailants ran away through the lane of Sakhi Beauty Parlour. Thereafter, PW-1 Farida went near the deceased and asked him as to who had assaulted him. The deceased replied that he was assaulted by Javed, Salim, Anwar and Juber with knives. They are the applicants herein. 4. According to the prosecution, PW-1 Farida rushed to call PW-2 Neha, the wife of the deceased. Thereafter, AJN 5 PW-2 Neha, her brother Rohit and his relatives came running towards the deceased. The deceased was immediately taken to Sonagra Hospital, Ghatkopar, for treatment. The doctor on duty did not admit him. He advised them that the deceased should be taken to Rajawadi Hospital, Ghatkopar. According to the prosecution, the deceased was taken to Rajawadi Hospital. The doctor on duty in Rajawadi Hospital examined the deceased and declared him dead before admission. The information about this incident was given to the Parksite Police Station. The police came on the scene. PW- Farida lodged her complaint in which, she narrated the incident and stated that when she went to the deceased and asked him as to who assaulted him, he told her that the applicants had assaulted him with knives. 5. On the basis of this complaint, investigation was started. The applicants came to be arrested, charged, tried and sentenced as aforesaid. AJN 6 6. We have heard, at some length, Mr. Chitnis, learned senior counsel appearing for the applicants. Mr. Chitnis submitted that PW-1 Farida is totally an unreliable witness. He drew our attention to the evidence of PW-14 Dr. Pravin Bagur, who had done the postmortem of the deceased. Mr. Chitnis pointed out that the deceased had received serious injuries. There were 23 external injuries on the deceased. There were several deep injuries on the chest. Mr. Chitnis pointed out that there were corresponding internal injuries. Mr. Chitnis pointed out that the doctor has said that the injuries had caused extensive damage to the vital organs. The doctor has said that the large vessels like aorta were cut. Mr. Chitnis further pointed out that the doctor has also stated that there was huge blood loss and that due to grievous injuries to the lungs, there may be some difficulty in breathing. Mr. Chitnis submitted that in view of the serious injuries suffered by the deceased, it is inconceivable that the deceased would make a statement AJN 7 to PW-1 Farida. Mr. Chitnis pointed out that when the deceased was taken to the Rajawadi Hospital, Ghatkopar, he was declared dead before admission. According to Mr. Chitnis, therefore, PW-1 Farida’s version that the deceased named the applicants as his assailants, must be rejected. 7. Mr. Chitnis submitted that whereas PW-1 Farida has stated that she had gone to call PW-2 Neha, the wife of the deceased after the assailants ran away and that PW-2 Neha and her brother came running thereafter, PW-2 Neha in her evidence has given a version, which is not consistent with PW-1 Farida’s version. PW-2 Neha has stated that she heard her husband’s cries and she started going towards the place from where the cries were coming with Manpreet and when they were proceeding towards the spot, she noticed that the applicants were holding knives and were shouting and running towards the Sakhi Beauty Parlour’s lane. AJN 8 8. Mr. Chitnis pointed out that if PW-1 Farida’s evidence is accepted, PW-2 Neha must have come on the scene after the applicants ran away. PW-2 Neha could not have therefore seen the applicants running towards Sakhi Beauty Parlour’s lane with knives in their hands. Mr. Chitnis submitted that PW-2 Neha’s statement is recorded after 4 days from the date of incident. He pointed out that PW-16 API Shaikh has stated that PW-2 Neha was present in the hospital but she did not say anything incriminating about the incident and since he was busy, he did not record her statement. Mr. Chitnis submitted that this explanation is totally unacceptable and delay in recording PW-2 Neha’s statement makes her testimony suspect. 9. Mr. Chitnis submitted that the identification parade was held 42 days after the arrest of the applicants. Hence, the identification of the applicants by PW-1 Farida in the identification parade cannot be relied upon. AJN 9 10. Mr. Chitnis submitted that learned Sessions Judge has ignored the defence of the applicants. He pointed out that according to applicant 2 – Salim, the name of the elder brother of applicant 1 - Javed is Salim. PW-1 Farida and PW-2 Neha wanted to implicate that Salim but the prosecution has falsely implicated him in this case. The defence of applicant 3 - Juber is that the name of the younger brother of applicant 1 - Javed is Juber. PW-1 Farida and PW-2 Neha wanted to implicate that Juber but the prosecution has falsely implicated him in this case. Mr. Chitnis submitted that the defence of mistaken identity ought to have been accepted by the trial court. Mr. Chitnis submitted that the prosecution has failed to establish its case beyond reasonable doubt and, therefore, the applicants may be released on bail. 11. We are not impressed by the submissions of Mr. Chitnis. It is true that the deceased received serious injuries. It is true that because of the injuries mentioned in the postmortem notes, the injured might have difficulty AJN 10 in breathing as stated by PW-14 Dr. Bagur. However, Dr. Bagur has denied the suggestion that because of the blood accumulated in thoracic cavity, the injured will start gasping and will not be able to speak. At this stage, therefore, we cannot conclude that the deceased was not in a position to name the applicants. It is well settled that when there is eye-witness account, it overrides the medical evidence. 12. PW-1 Farida was standing outside the Goodluck Hair Cutting Saloon. She stated that she saw four persons assaulting the deceased with knives and the deceased named them. Prima facie, we find that her evidence is reliable. There are no material omissions in her cross- examination. She has clearly stated that she was not knowing the accused by names. She was knowing them by face and when she had gone to the deceased, the deceased had told her the names of the accused. PW-1 Farida identified the applicants in the identification parade. Mr. Chitnis contended that there is one and half AJN 11 month’s delay in holding the identification parade. As to what effect the delay in holding the identification parade would have on the case of the prosecution could be appreciated at the time of final hearing of the appeal. At this stage, evidence of PW-1 Farida appears to us to be cogent. It is not possible for us to discard her evidence as untrustworthy, particularly when it is supported by other evidence on record and attendant circumstances. 13. So far as PW-2 Neha is concerned, she has stated that when she was going towards the place from where the cries of the deceased were coming, she noticed the applicants running towards Sakhi Beauty Parlour’s lane with knives in their hands. PW-2 Neha does not claim to have witnessed the assault. It is pertinent to note that she has stated that when she was proceeding towards the spot, she noticed PW-1 Farida crying and coming from the spot of the incident towards her. Therefore, prima facie, we find no inconsistency between the evidence of PW-1 Farida and PW-2 Neha. Her evidence lends support to AJN 12 PW-1 Farida’s case that she went to call PW-2 Neha. Since PW-2 Neha came on the scene shortly after the assault, her seeing the applicants running away with knives in their hands cannot be called improbable. The delay in recording her statement prima facie will not have any adverse effect on the investigation because she is not an eye-witness. Besides, PW-17 PI Thorat has stated that he could not record PW-2 Neha’s statement because her mental condition was not proper. 14. The argument that there is mistaken identity also does not impress us. It is a far fetched argument. The evidence adduced by the prosecution prima facie appears to be so clinching that the argument that there is mistaken identity must be rejected. Looking to the number of injuries sustained by the deceased, it must be concluded that the deceased is assaulted by more than one person. The applicants have been named in the FIR and have been seen and identified in the identification parade by PW-1 Farida. In such circumstances, the AJN 13 applicants cannot be released on bail. In our prima faice opinion, the prosecution has proved its case beyond reasonable doubt against the applicants. Hence, the application for bail is rejected. [SMT. RANJANA DESAI, J.] [R.G. KETKAR, J.]