1 cr-apeal-240-05 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 240 OF 2005 WITH CRI.APPLICATION NO. 1566 OF 2010 Akram @ Raja Ais Mohd. Shaikh ] Aged 22 years, Occ: Service ] Residing at Mudalpha Co.Op. Housing ] Society, 2nd floor, Room No.9, ] New Hall Road, Near Hallaw Pool, ] Kurla, Mumbai-400 070 ] (Presently lodged at Nashik Central ] Prison, Nashik) ]..Appellant/ [Ori. Accused no.1] Versus The State of Maharashtra ]..Respondent .... Ms. Ameeta Kuttikrishnan Adv. for the appellant Mr. Y.S.Shinde A.P.P. for the Respondent-State .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. RESERVED ON : JANUARY 20, 2011 DECLARED ON : FEBRUARY 08, 2011 JUDGMENT: [PER U.D.SALVI,J.] 1 Judgment and order of conviction of the offence punishable under Sections 302 read with Section 34 of I.P.C. passed by the learned 2 cr-apeal-240-05 Additional Sessions Judge, Greater Bombay in Sessions Case No. 853 of 2000 on 6.10.2004 is challenged in the present appeal. 2 Afzal Khan, conductor of Bismilla restaurant, situated at Deonar Road, Govandi was found fatally wounded in the restaurant in the morning of 13.5.2000 by the owner of restaurant Shaikh Jamaluddin and Riyaz, the cook, and others. Jamaluddin and Riyaz removed the injured Afzal in taxi to Shatabdi hospital. According to the prosecution, the injured Afzal on the way to Shatabdi hospital, made a disclosure that the appellant-accused Akram and Sanjiv, both employees working in Bismilla restaurant, had assaulted him. 3 The injured Afzal was admitted to Shatabadi hospital by Dr. Subhash Purohit, who happened to record a medical history as “assaulted by a known person at night with some object ”. The injured was examined and treated at Shatabdi hospital, and later on, as the condition worsened, the injured Afzal was removed to Sion hospital, Mumbai. In the meanwhile, Deonar Police Station was informed about the admission of Afzal in an injured condition to Shatabdi hospital. According to the prosecution, the police recorded the statement of Riyaz and thereupon the crime at C.R. No. 107 of 2000 under Sections 307, 394, 397 and 120-B of I.P.C. 1860 came to be registered against the 3 cr-apeal-240-05 appellant-accused Akram and his accomplice Sanju at Deonar Police Station. 4 Riyaz showed the spot from where the injured was removed to the hospital. Blood stained wooden log, banian, earth scraping from the floor of the said restaurant, were collected by the police. Observations made at the spot were recorded in the presence of the Panchas. Statements of three more persons including Jamaluddin came to be recorded. It is also the case of the prosecution that the injured Afzal before his demise had named the appellant-accused Akram and Sanju as the assailants before one Maullana Afaque Ahmad his brother in law. Injured Afzal succumbed to his injuries at Sion hospital on 20.5.2000. Crime was modified to the offence under Section 302 of I.P.C. 1860. Post mortem examination confirmed the fact of homicidal death of Afzal. 5 The appellant-accused Akram was arrested on 23.5.2000 in the presence of the Panchas. Clothes on his person were duly seized. The appellant-accused, according to the prosecution, made discovery of a blood stained T-shirt from the municipal godown. Forensic investigation done in respect of the seized articles revealed presence of human blood on the articles seized from the scene of offence viz. banian, wooden log and floor scraping as well as on the T-shirt discovered by the appellant- 4 cr-apeal-240-05 accused. Significantly, human blood of `A ’ Group was detected both on the banian of the deceased recovered from the place of offence and the T-shirt discovered by the appellant-accused. The appellant-accused was found to have blood group `O ’. Co-accused Sanju was not found and the charge sheet had to be filed only against the appellant-accused Akram. 6 In the trial that followed on the charge of having committed the offences punishable under Section 302 read with Section 34, 392 read with Section 34 and 397 of I.P.C. 1860 vide charge Exh. 3 framed against the appellant-accused Akram, the prosecution examined P.W. 1 Shaikh Jamalluddin, the owner of Bismilla restaurant, P.W. 2 Mohammed Iqbal Ismile Memon Taxi Driver, P.W. 3 Mohammad Moin Shaikh, Panch, P.W. 4 Maulana Afaque Ahmad brother in law of deceased Afzal, P.W. 5 Dr. Mukesh Ghuge Lecturer in Forensic Medicine, Sion hospital, P.W. 6 Dr. Subhash Purohit Medical Officer, Shatabdi hospital, P.W. 7 Shivaji Nimhan, Investigating Officer and P.W. 8 Dnyandeo Hari Hire, S.H.O. Deonar Police Station. The appellant-accused Akram denied his involvement in the crime and accused the prosecution of his false implication in the present case. None was examined in defence. 7 The learned appointed advocate Ms. Amita Kuttikrishnan 5 cr-apeal-240-05 submitted that the doubtful circumstances and the so called dying declaration not made before the police or any Magistrate, were insufficient to sustain conviction of the appellant-accused of the crime punishable under Section 302 read with Section 34 of I.P.C. 1860, and by recording the conviction, the trial Court fell in error. However, she did not dispute that the deceased died of homicidal injuries. She argued that if the deceased had narrated the cause of the fatal injuries to some of the witnesses, his statement could have been recorded by the police. She pointed out from the testimony of P.W. 6 Dr. Subhash Purohit that medical history recorded by him, was given by the relative of the patient and not by the patient himself. As regards the discovery of the T-shirt, she submitted that the same was made from the open place and therefore, it was of a little assistance to the prosecution. She pointed out that the incident had taken place on 13.5.2000 and the victim died on 20.5.2000, but during this period of one week, at no point of time, the dying declaration of the victim was recorded by the Magistrate. 8 Mr. Shinde, the learned APP for the State submitted that the medical evidence offered an explanation for non recording of dying declaration of the deceased Afzal Khan in the presence of the Magistrate. He pointed out from the medical evidence and the evidence of the Investigating Officer that the deceased Afzal Khan was not in a condition 6 cr-apeal-240-05 to give his statement by the time the Police stepped in the present case. However, he submitted that there exists cogent evidence of the fact that the deceased Afzal Khan was conscious when moved to the hospital and as such there can be no difficulty in believing the version that the deceased Afzal did disclose the names of the assailants before he fell unconscious or died thereafter. He further submitted that the circumstances coming forth from the evidence of PW-1- Shaikh Jamaluddin the owner of Bismilla restaurant and PW-2-Mohd. Iqbal taxi driver and PW-3 Mohd. Moin Shaikh the panch, clearly pointed out the incident of assault on the deceased Afzal Khan within the confines of restaurant and abscondance of the appellant-accused and co-accused Sanjiv working in the restaurant premises from the said place. Subsequent discovery of blood stained shirt at the instance of the appellant-accused Akram, he submitted, confirmed the involvement of the appellant-accused Akram in the crime. 9 Survey of the prosecution evidence discloses the merit of the submissions made on behalf of the prosecution. PW-1- Shaikh Jamaluddin deposed that while he slept on the loft over the said restaurant premises alongwith Riyaz in the night of 13.5.2000, the servants working in the Bismilla restaurant the appellant-accused and Sanjiv remained with the deceased Afzal Khan on the ground floor of the 7 cr-apeal-240-05 said premises of restaurant; and when he came down the loft in response to the call given by bread vendor at about 6.00 a.m. in the morning of 13.5.2000, he heard faint voice of Afzal Khan from the service room and therefore they knocked the shutter of the restaurant. He added that the deceased Afzal Khan soaked in blood lifted the shutter a little bit, by both hand from inside. PW-1- Shaikh Jamaluddin named Riyaz as the person who was with him at that time. 10 Unfortunately, from the evidence of PW-8-Dnyandeo Hire, PSI, it appears that Riyaz Jumman Khan the complainant who figured in the testimony of PW-1- Shaikh Jamaluddin as co-witness, died before the commencement of the trial. PW-8-Dnyandeo Hire, was SHO duty on the material time at Deonar police station. He testified that he had recorded the statement of Riyaz Jumman Khan following his narration of the incident and treated it as F.I.R. The death of the complainant Riyaz Khan was not brought in issue in the present case, and thus it explains why the complainant was not examined by the prosecution. Yet the fact remains that the co-witness PW-1- Shaikh Jamaluddin virtually unfolded the prosecution case. 11 The evidence of PW-3 Mohd. Moin Shaikh, panch to the scene of offence panchnama at Exh.11 offers, credible view of the scene 8 cr-apeal-240-05 of the offence. He deposed that he noticed the blood stain on the tables joined together for sleeping as well as on flooring of the hall in the Bismilla restaurant. He further deposed that one 29 inch wooden piece with blood stains and hair stuck to its edge as well as blood stained banian were found inside the said restaurant. He added that there was one loft with entry which could be approached from outside by means of metal ladder, and there was sleeping gear meant for servant lying therein. He further testified that the blood scraping, blood stained banian and blood stained wooden log were duly seized under Panchanama at Exh.11. In his cross examination, he revealed that the police had recorded the statement of PW-1- Shaikh Jamaluddin at the said restaurant while Panchanama was going on and he was a local resident. There is nothing in the cross examination so as to bring the said testimony under cloud of suspicion. 12 The cross examination of PW-1- Shaikh Jamaluddin likewise fails to discredit the material facts disclosed by him as aforesaid. A fact therefore clearly emerges from the testimony of PW-1- Shaikh Jamaluddin that the deceased Afzal Khan was assaulted when he was sleeping in the said restaurant in the company of the appellant-accused Akram and co-accused Sanjiv and the deceased Afzal Khan despite injury sustained by him remained conscious and could open the shutter of the 9 cr-apeal-240-05 said premises. 13 On this background, it is necessary to examine the prosecution evidence further. The evidence of PW-1- Shaikh Jamaluddin and PW-2- Mohd. Iqbal taxi driver reveals that Afzal Khan was removed to Shatabdi hospital in taxi driven by PW-2 Mohd. Iqbal and when PW-1- Shaikh Jamaluddin and PW-2 Mohd. Iqbal were on the way to the hospital, a query was made to the injured Afzal Khan about the assault made on him. Though, PW-2-Mohd. Iqbal disclosed that he could not hear the names of the assailants uttered by Afzal Khan on the way to the hospital, it can be seen from the testimony of PW-1- Shaikh Jamaluddin that Afzal Khan uttered the names of the appellant-accused Akram and co-accused Sanjiv as assailants. The fact that the injured Afzal Khan was removed to Shatabdi hospital in a taxi is hardly disputed in the cross examination of PW-1- Shaikh Jamaluddin and PW-2 Mohd. Iqbal. On the contrary, the cross examination of PW-2 Mohd. Iqbal lends credence to the fact that Afzal Khan was removed to the hospital in his taxi with the assistance of Riyaz and PW 1 Jamaluddin, and PW-1- Shaikh Jamaluddin and Riyaz Khan returned from the hospital thereafter to the restaurant, where their statements were recorded by the police. Nothing credible emerges from the cross examination of PW-1- Shaikh Jamaluddin and PW-2 Mohd. Iqbal to doubt the fact of disclosure of the names of the accused Akram 10 cr-apeal-240-05 and co-accused Sanjiv as assailants to PW-1- Shaikh Jamaluddin. 14 The evidence of PW-6 Dr. Subhash Purohit, Medical Officer attached to the Shatabdi Hospital reveals that patient Afzal Khan was brought to the hospital at 6.45 a.m. on 13.5.2000 in conscious but little drowsy condition. He deposed that on examination he found that : 1. Blood Pressure was 130/90, 2. no ENT bleeding, 3. pupils-c.c.e reacting to light, 4. Cardio Vascular system normal and 5. Soft abdomen. He described the local injuries noticed then as under: 1. 2 inch vertical bone deep CLW on mid forehead with bleeding; 2. 1 and ½ inch bone deep, CLW left supra auricular scalp region (above left ear); 3. 1 and ½ inch bone deep, CLW on occipital region (rear side of the heard) with bleeding. 15 According to PW-6 Dr. Subhash Purohit he had recorded history in the Medico Legal Case Register at Exh. 18 as “assault by a known person at night with some object.... He named patient Afzal Khan as the person who had given the history. It appears that the controversy arose over this fact, particularly with reference to the medical case papers at Exh.19. Perusal of the extract Ex.18A drawn from the entries from Medico Legal Case Register confirms the fact that Afzal Khan was examined at Casualty are around 6.45 a.m. on 13.5.2000 and at that time he was conscious and the medical history came to be recorded as 11 cr-apeal-240-05 deposed by PW-6 Dr. Subhash Purohit. There is nothing in the cross examination to point out that considering the health parameters of patient recorded at the time of his examination at 6.45 a.m. on 13.5.2000 the patient Afzal Khan ought to have been in unconscious condition. Considering these facts and ordinary course of business in Casualty, it can very well be believed that it was injured Afzal Khan who must have given medical history to PW-6 Dr. Subhash Purohit, Medical Officer, during his examination. 16 The cross examination of PW-6 Dr. Subhash Purohit, merely reveals that patient Afzal Khan was admitted to the ward around 8.15 a.m. and till then he remained in casualty; and around 8.30 a.m the history as recorded in the Case papers Exh. 18 at the time of admission of patient was given by the relatives and not by patient himself. With this evidence, it cannot be reasonably inferred that the history recorded in Medico legal case Register previously was not given by the patient himself. 17 PW-4-Maulana Ahmed deposed that the deceased Afzal Khan remained conscious in Sion Hospital, and at the hospital, the deceased Afzal Khan had named the appellant-accused Akram and Sanju as the assailants. In the cross examination he categorically stated that he did not accompany Afzal Khan to Shatabdi hospital. His cross examination 12 cr-apeal-240-05 further reveals that he had made improvement in his testimony as regards the fact of having seen Afzal lying in pool of blood and he going to the hospital in the morning at about 8.00 O ’clock. Considering this fact as well as the evidence of PW-6 Dr.Subhash Purohit, Medical Officer, at Shatabdi hospital, which revealed that Afzal khan was sinking at 1.00 p.m. on 13.5.2000 and his condition was poor and he was transferred to Sion Hospital at about 2.00 p.m. on the same day, it is difficult to place reliance on the testimony of PW-4-Maulana Ahmed. However, his evidence makes no difference with the testimonies of PW-1- Shaikh Jamaluddin and PW-2 Mohd. Iqbal, particularly as regards disclosures made by the deceased Afzal Khan on way to Shatabdi Hospital. Pertinently, the discovery of blood stained yellow T-shirt (article-6) by the appellant-accused from the municipal godown located in fenced plot of land at Deonar colony in the evening of 24.5.2000 as deposed to in the testimony of PW-7-Shivaji Nimhan, Investigating Officer found no challenge in the cross examination. The CA report at Exh.26 reveals that the yellow shirt-article-6 referred to as Exh.A therein showed number of human blood stains of blood group “A ” ranging from 0.1cms to 5.00 cms in diameter on the front side. These unassailed facts further clinch the issue in favour of the prosecution. 13 cr-apeal-240-05 The evidence of PW-1- Shaikh Jamaluddin and PW-2 Mohd. Iqbal reveals that the accused-appellant Akram had axe to grind with deceased Afzal Khan. Both the witnesses averred that the appellant- accused after stealing cash from the cash counter of the hotel fled away and was brought back and made to work to make good the stolen amount. Whether the appellant-accused worked in the hotel or not was put to question in the cross-examination of PW 1 Jamaluddin with reference to the servant ’s register, which a person running an establishment is expected to maintain. However, it is pertinent to note that Bismilla restaurant hotel was run by the deceased Afzal Khan and not PW-1- Shaikh Jamaluddin in the locality like Deonar municipal colony. PW-7-Shivaji Nimhan, Investigating officer explained in his evidence that he did make inquiry with PW-1- Shaikh Jamaluddin about such register on the spot at Bismillah restaurant only to realize that as it was not maintained by him it could not be taken over. The learned trial court did consider this aspect of the evidence along with the entire prosecution evidence on record in right perspective. Thus, the holistic view of the entire prosecution evidence gives credible picture of the following circumstances:- i) The appellant-accused Akram was with the deceased Afzal Khan in the Bismilla restaurant premises in the night between 14 cr-apeal-240-05 12.5.2000 and 13.5.2000; ii) Afzal Khan was found in mortally injured condition in the morning of 13.5.2000 and the appellant-accused was missing from the said premises since then; iii) Disclosure made by the deceased Afzal Khan to PW-1- Shaikh Jamaluddin regarding the involvement of appellant- accused Akram in the crime; iv) Prompt disclosure of the crime to the police; v) the deceased succumbed to the homicidal injuries on his head caused by weapon, wooden log article-1; vi) discovery of the yellow T-shirt bearing human blood of “A ” group matching with group of the blood found on the clothes of the deceased. 18 The facts and circumstances thus established through the prosecution evidence justify the conviction of appellant-accused Akram @ Raja Ais Mohd. Shaikh for the offence punishable under Section 302 read 15 cr-apeal-240-05 with Section 34 of IPC 1860. 19 The appeal therefore, deserves to be dismissed and same is accordingly dismissed. As such, the Criminal Application No. 1566 of 2010 for bail made therein, stands rejected. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]