1 Apeal87.04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.87 OF 2004 KJ 1 Mohammed Aslam Sahabjan Ansari ) An Adult, presently residing at Azad ) Compound, Bihar chawl, Jagdish Shetty ) Road, Kandivali (W), Mumbai-400 067 ) 2 Abdul Shahajad Khan ) An Adult, presently residing at Azad ) Compound, Bihari Chawl, Jagdish Shetty) Road, Kandivali (W), Mumbai-400 067 ) 3 Ibrar Subhedar Khan ) An Adult, presently residing at Azad ) Compound, Ganesh Nagar, Jagdish ) Shetty Road, Kandiavli(W) ) Mumbai-400 067 ) 4 Subhash Kantaprasad Gupta ) An Adult, presently residing at ) Hindustan Naka, Gandhi Nagar, K.T. ) Compound, Kandivali(W), ) Mumbai-400 067 ) (Presently lodged at Yervada Central ) Prison, Pune.) )..Appellants (Org.Accused Nos. 2, 4, 5 & 6) Vs. The State of Maharashtra )..Respondents ---- 2 Apeal87.04.sxw W I T H CRIMINAL APPEAL NO.169 OF 2004 IN SESSIONS CASE NO.878 OF 1995 Jakir Hussain Asarafali Ansari ) ) Indian, Adult, R/o. Samta Nagar, Welfare ) Society, Gandhi Nagar, Charkop, Kandivali (W)) Mumbai-400 067 ) Yerwada Central Prison, Pune )....Appellant (Org.Accused No.1) Vs. The State of Maharashtra )....Respondents ---- Mr.P.R.Arjunwadkar for appellant no.2. Mr.Amin Solkar for appellant nos.4, 5 & 6. Mr.A.Majeed Memon with Parveez Memon with Subhash Kanse for appellant no.1 in Appeal No.169 of 2004. Mr.J.P.Yagnik APP for the respondent/State. ---- CORAM : NARESH H. PATIL & MRS.MRIDULA BHATKAR,JJ DATE : 17/6/2011. 3 Apeal87.04.sxw JUDGMENT :- ( PER : MRS.MRIDULA BHATKAR,J) 1 These appeals are directed against the judgment and order dated 27.11.2003 passed by the Additional Sessions Judge, Greater Bombay, by which the appellant/accused were convicted for the offences punishable under Sections 302 and 324 read with 149 of IPC. The punishment of life imprisonment is awarded for the offences under Sections 302 read with 149 of IPC. 2 The incident of murder of one Mohammed Yusuf Khan has taken place on 26.2.1995 at around 9.30 A.M at Ekta Nagar, Mumbai. The deceased and accused persons all were residing in the hutment at Ekta Nagar, Kandivali. On 25.2.1995, some huts in Ekta nagar were demolished by the Corporation for development project. The hut of accused no.2 Mohammed Aslam Sahabjan Ansari was demolished in the demolition drive taken up by the Corporation. PW-3 Abdul Halim Mohd. Yusuf is the son of deceased Mohammed Yusuf Khan. Hut of Abdul was adjacent to the demolished hut of accused no.2. After demolition deceased 4 Apeal87.04.sxw and his son wanted to repair their hut and the said action was objected by the accused and his family members as they apprehended encroachment on the part of the deceased. Deceased and PW-3 Abdul did not accept the request to stop the repair works and continued the repair work of the hut on 26.2.1995. This led to the altercations and threats by accused nos.1 & 2 and other accused to PW-3 Abdul and deceased. PW-3 Abdul Halim Mohd. Yusuf along with one Idris Ahmed Ansari i.e PW-4 reported about the said incident of quarrel and threats to the police chowky. When they returned to their locality, they found that accused no.1 was armed with knives and accused nos.3 & 4 were holding iron rods and accused no.6 was armed with bamboo, and they marched towards the hut of the deceased. Deceased Mohammed with the help of the Complainant Mehfusali Lais Mohd. Khan, was repairing his hut. Accused asked him to stop the work. He did not listen to them so accused no.2 instigated all the accused to attack and finish the deceased and PW-3 Abdul Yusuf who had also reached the spot. Accused nos.1 & 2 held hands of the complainant and gave stab blows on the chest and back from front 5 Apeal87.04.sxw side and back side. Accused no.6 Subhash Gupta gave bamboo blow on the frontal portion of PW-3 Abdul Yusuf. PW-3 Abdul Yusuf started running to save his life. Deceased Mohammed somehow, got free and started running but after running some distance, he fell down. All the accused surrounded and started giving blows of bamboo and iron rods. PW-3 and deceased when gave call for help and people in large number started gathering, accused ran away from the spot. Complainant PW-1 Mehfusali Khan and PW-3 took the injured in a rikshaw to Bhagwati hospital. Doctor examined PW-3 and also the deceased and after some time, Mohammed succumbed to injuries and was declared dead. PW-1 Mehfusali Khan immediately rushed to the Borivali police station and lodged FIR on the same day i.e 26.2.1995 at 13.50 hrs. Offence was registered against the accused at C.R.NO. 61 of 1995 at Kandivali police station. On the same day accused nos.1 & 2 were arrested. Police found that along with present appellant/ accused, one more accused Salma Jakir Ansari i.e wife of accused no.1 was also involved and therefore, she was also charge-sheeted. Police recorded the statements of the witnesses on 6 Apeal87.04.sxw the following days. Subsequently remaining accused were also arrested and spot panchanama and inquest panchanama were made. Post mortem of the body of the deceased was performed. Cause of the death of the deceased was “death due to shock and hemorrhage due to multiple injuries”. After completion of the investigation, police filed charge-sheet. The said case was tried by Additional Sessions Judge, Greater Bombay. The trial concluded in conviction against all the appellant/accused. However, Muvintaj @ Salma Jakir Ansari was acquitted. Being aggrieved by the said judgment and order, this appeal is filed. 3 Learned Counsel for the appellant/accused has challenged the judgment of the Additional Sessions Judge as it is based on the inconsistent and weak evidence of the prosecution. It was argued that PW-1 Mehfusali the complainant did not support the case of the prosecution and the prosecution has failed to prove the FIR and so it was a fatal blow to the case of the prosecution. It was further submitted that the presence of remaining eye witnesses i.e. PW-3 Abdul Halim Mohd. Yusuf, PW-4 Idris Ahmed Ansari and 7 Apeal87.04.sxw PW-7 Ashfaq Ahmad Khan is doubtful as the testimonies of these 3 witnesses are found inconsistent. Moreover, there is no specific evidence in respect of the identification of these accused and the role attributed to these accused persons. It was further submitted that the incident of murder and death of Mohammed was unfortunate and that is not challenged by the defence. However, the presence of these accused and their participation in such crime is not proved by the prosecution. Learned Counsel further pointed out that the evidence of test identification parade is to be dis- believed . It is pointed out that when complainant turned hostile then some other evidence in support of FIR ought to have brought on record like EPR (Emergency Police Register) by the prosecution. However, the prosecution did not produce EPR register where there is a first entry and first information given to the police was available to the prosecution and the police person who made entry in that EPR, is also not examined by the prosecution. Learned Counsel relied on the judgment in the case of State of Maharashtra Vs. Ahmed Gulam Nabi Shaikh reported in 1997 CRI.L.J.2377 and in the case of Yeshwant Bhanudas Gaikwad Vs. State of 8 Apeal87.04.sxw Maharashtra reported in 1996(2) ALL MR 364. While asserting evidence of eye witnesses, it is submitted that considering the topography of the hutments and considering the movements of PW-3, PW-4 & PW-7, it is not possible to these witnesses to have a direct view of the assault and therefore, their evidence is not to be believed. The prosecution has failed to unfold how and in what manner the deceased was killed. It was submitted that prosecution put-forth a case that PW-3 Abdul Yusuf was present at the scene of offence and he was injured by a blow. However, the injury sustained to PW-3 Abdul is simple, minor injury. It was argued that from the evidence of PW-3 Abdul Yusuf one gets impression that PW-3 Abdul Yusuf, on receiving blow of bamboo on his head, ran away from the spot to a gully, with a view to save his life, from where it was not possible to see the spot where deceased was assaulted and therefore, evidence of PW-3 Abdul Yusuf is to be dis-carded. Moreover, PW-3 Abdul Yusuf being a son, is an interested witness so his evidence is to be appreciated with pinch of salt. Learned Counsel further submitted that the evidence of PW-7 Ashfaq Khan is not to be believed because he 9 Apeal87.04.sxw happened to be a planted witness as he had no occasion and reason to be present on the spot when the incident has taken place. It was argued that PW-7 has given number of admissions on the point of his close association with PW-3 and his family members which clearly shows that he was interested in the success of the prosecution including guilt of other accused. It is further submitted that though there were 25 to 30 persons gathered at the time of incident from that hutment area, police could not record the statement of any independent witness. Learned Counsel has highlighted that the evidence of discovery is not to be believed as panch witness is not creditworthy and his evidence is doubtful. Learned Counsel has also made submission on the point of applicability of Section 149 of IPC and has submitted that it is not a case of unlawful assembly and learned Judge ought not to have convicted the accused under Section 149 of IPC. 4 Per contra, learned APP for the State, has submitted that this is a case where prosecution has tendered very cogent evidence. It was argued that evidence of the eye witness i.e PW-3 Abdul Yusuf 10 Apeal87.04.sxw gives clear picture about the assault. Prosecution has proved motive through PW-3 Abdul Yusuf & PW-4 Idris Ansari. He submitted that though PW-1 Mehfujali Khan/Complainant did not support the case of the prosecution, prosecution has proved the fact that the complaint was lodged by PW-1. On this point, prosecution relied on the evidence of PW-11 Maruti S. Salunkhe, PSI, who recorded the FIR. PW-11-Salunkhe has stated that he went to Bhagvati hospital as soon as he received information from the hospital and there he recorded the statement of PW-1 Mehfus Ali Khan. He registered offence against accused persons immediately and therefore, it was submitted that though the complainant has turned hostile and contents of the FIR were not proved, the relevant marked portions i.e. A,B.C & D are proved at Exhibit-29 (colly) through PW-11 Maruti Salunkhe. Learned APP further submitted that medical evidence of PW-2 Dr. Jairaj Acharya who examined PW-3 Abdul Yusuf and also deceased, is cogent evidence. PW-5 Dr.Baban Shinde has conducted post mortem on the body of the deceased and opined about the cause of death. Injury nos.5, 6 & 7 were the stab injuries and collectively these 11 Apeal87.04.sxw injuries were fatal to cause death of the deceased. There was a common object and common intention of the accused persons. He further submitted that due weightage is also to be given to C.A reports which are marked at Exhibit-33 (colly). Blood group of the deceased was “A” and blood group of accused no.1 is “B” and accused no.2 is “O” and on the knives which were produced and the clothes of the accused which were also seized under the panchanama Exhibit-37 were found blood stains of group “A” i.e blood group of the deceased and this is an incriminating circumstance. On appreciation of evidence, he relied on the judgment in the case of Dharamveer and Ors Vs. State of Uttar Pradesh reported in (2010) 4 Supreme Court Cases 469 and also in Prithi Vs. State of Haryana reported in (2010) 8 Supreme Court Cases 536. On the basis of these circumstances, prosecution has proved the case beyond the reasonable doubt against the accused and the judgment and order passed by the learned Additional Sessions Judge, Greater Bombay, is to be confirmed. 5 The fact of murder is not disputed. Deceased Mohammed 12 Apeal87.04.sxw was killed on the morning at 9.30 A.M at Ekta nagar and the death was due to shock and hemorrhage due to multiple injuries. A spot panchanama was drawn on 21.2.1995 at Exhibit-24 is proved. The names of the appellant/accused were transpired on the same day and offence was registered against them without delay. Evidence against them is tendered by the prosecution through three eye witnesses i.e PW-3 Abdul Yusuf, PW-4 Idris Ansari and PW-7 Ashfaq Khan. The question before us is short i.e whether appellant/accused have assaulted the deceased on that day ? To be precise, whether evidences of PW-3, PW-4 and PW-7 are to be believed or not ? 6 PW-3 Abdul Yusuf has given the details about the actual incident. He stated that he was injured on the spot. His evidence is corroborated with the medical evidence. Injury certificate Exhibit-13 reveals that it was a contusion and could have caused by bamboo blow. So his presence on the spot is to be believed. He has deposed about the altercations between the deceased and the accused persons in respect of the repairs of the hut. On 26.2.1995 13 Apeal87.04.sxw in the morning prior to about 8.oo O’ clock, accused persons came to the hut of PW-3 Abdul Yusuf and threatened the deceased and PW-3 Abdul Yusuf not to repair their hut. PW-4 Idris Ansari deposed that he had patched up the said quarrel. Thus, the prosecution has tendered sufficient evidence and proved the motive. Evidence of PW-3 Abdul Yusuf corroborated with the evidence of PW-4 Idris Ansari who is also a resident of that same locality and who confirms the previous quarrel on the same day. He also supports PW-3 Abdul Yusuf on actual assault. It was very natural on the part of PW-3 Abdul Yusuf to run away from the spot to save his life as he saw accused no.1 & 2 armed with knives and the others armed with bamboo and iron rods. It is not his case that he ran away to long distance so that the incident was not visible to him. The incident has taken place in day light at 9.30 A.M. He saw accused nos.1 & 2 actually stabbing his father. He described that accused no.2 instigated by saying “finish him” ( “maro sale ko”) and thereafter in response, Aslam & Jakhir stabbed from front side and back side to his father. After these stab injuries, deceased started running. He ran after some 14 Apeal87.04.sxw distance. The accused persons chased him and along with other associates, they assaulted the deceased with iron rods, kicks and bamboo. PW-3 Abdul Yusuf has specifically mentioned the names of accused nos.1 & 2. He has attributed specific overtacts to accused nos.1 & 2. These overtacts are corroborated with the medical evidence of PW-5 Dr.Baban Shinde, who has deposed that stab wounds i.e. 4, 5 & 7 were fatal to the life of the deceased. The place of the wounds are shown as chest, below the nipple and side of the chest and so it can be easily inferred that wound no.7 caused by the knife, was by Jakir and other two wounds were by the Aslam. PW-7 Ashfaq Khan though is a chance witness, he has admitted in his cross-examination that he was friendly with PW-3 Abdul Yusuf and he has seen the incident and therefore, PW-3 Abdul Yusuf asked him to give evidence. He also admitted that a local train ticket was sent to him. Therefore, he has come to give evidence to support the case of the prosecution. The evidence given by PW-7 Ashfaq Khan does not appear doubtful, hence, we do not find it to be dis-believed. 15 Apeal87.04.sxw 7 We find that these 3 witnesses have given cogent and consistent evidence and there is a corroboration from the C.A report and the prosecution has pointed out the blood group of the deceased was of “A” and blood group of Aslam & Jakir were different i.e “O” and “B” and therefore, clothes of these accused persons when they were arrested, were found blood stains. It is to be noted that accused nos.1 & 2 were arrested on the same day. Their clothes were seized under the panchanama which is proved by the evidence of PW-13 Mohammed Ismail Siddiqui. Thus, we are of the opinion that there is sufficient corroboration and sufficient evidence to hold accused nos.1 & 2 guilty of the offences under section 302 read with 34 of IPC. In respect of accused nos. 4, 5 and 6 are concerned, we do not find any evidence on the point of identification. We do not find any evidence against accused nos.4, 5 & 6. PW-3 Abdul Yusuf and PW-4 Idris Ansari have not taken the names though have stated in the examination- in-chief that they knew all the accused. In their substantive evidence, they have not stated that accused nos.4, 5 & 6 to whom they knew, were present. PW-3 Abdul Yusuf has taken the name of 16 Apeal87.04.sxw accused no.6 and he has attributed role to accused no.6 that he gave a blow of bamboo on the frontal portion on his head. However, he did not say that how he knew Subhash and therefore, merely mentioning the name of Subhash and attributing him that he has assaulted him, we do not find that it is safe to believe his evidence and therefore, we conclude that prosecution did not prove ingredients of Section 149 of IPC, that it was an unlawful assembly which saddles constructive criminal liability on each member of the assembly. We have gone through the ruling cited by the learned APP in Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh reported in (1991) 3 Supreme Court Cases 627. However, it is not applicable on facts of the present case. Therefore, for the want of sufficient evidence against accused nos. 4, 5 & 6, judgment and order of conviction dated 27.11.2003 against accused nos.4, 5 & 6 is to be set aside. However, we confirm the sentence of conviction against accused nos.1 & 2 and rest of the accused are acquitted. (MRS.MRIDULA BHATKAR,J) (NARESH H.PATIL,J) 17 Apeal87.04.sxw