IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1216 OF 2004 Mohd.Zamir Adil Shah .. Appellant Versus The State of Maharashtra .. Respondent Mr.Murtaza Najmi for the appellant. Mr.Y.S.Shinde, A.P.P for the respondent. WITH CRIMINAL APPEAL NO.358 OF 2003 Rashid Shabbir Alvi .. Appellant Versus The State of Maharashtra .. Respondent Mr.A.G.Toraskar for the appellant. Mr.Y.S.Shinde, A.P.P for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 12th February 2009. : 12th February 2009. : 12th February 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . Criminal Appeal No.1216 of 2004 has been preferred by the accused No.1 and Criminal Appeal No.358 of 2003 has been preferred by the accused No.2. There were five other accused. The 3rd accused was discharged and as 4th to 7th accused were absconding, their trial was separated. In both the appeals advocates have been (2) appointed to espouse the cause of the appellants. This is an unfortunate case where the appellants in both the appeals have already undergone entire sentence. However, the learned advocates appointed to espouse the cause of the appellants have vehemently argued that considering the evidence on record, the stigma cannot be allowed to remain and therefore, the order of conviction deserves to be set aside. Therefore, I have considered the submissions on merits. 2. Briefly stated the case of the prosecution is that the complainant Mr.Anil Thadani is in the business of film distribution in Bombay. In the year 1999 he had received threats from the absconding accused No.4 Abu Salem. On 14th December 1999 at about 7.30 p.m the complainant had been to a cinema complex by the name Gaiety-Galaxy at Bandra, Bombay. He parked his car in the compound of theatre and went inside the theatre complex. After half an hour he came out and proceeded towards his car. He noticed that one person was standing near the door of the driver’s seat of the car. He asked that person to move away and took the driver’s seat. When he was about to start the car he noticed that the person standing near the door of the car had pointed a pistol aiming at his head. He pulled of the (3) trigger but bullet was not fired. The complainant noticed that the person pulled out a revolver from his pocket. When he noticed that he turned around and kicked the said person. As a result, the said person lost his balance and fell down. The complainant started running towards the entrance of the theatre complex. When he looked back he noticed that the said person was chasing him. By the time the complainant reached the entrance of the theatre complex he saw there was a scooter near the gate of the compound of the trial Court and the said man was sitting on the pillion seat of the scooter and the other person was seating on the driver seat. The complainant stated that when he started running from the car he started screaming for help. He stated that after taking seat on the scooter the said person immediately left the theatre complex The complainant’s case is that he was nervous and therefore he proceeded towards his residence. He did not complain to the poice. He stated that said incident had occurred at around 7.30 p.m. On the next date between 3.00 and 3.30 p.m the police came to his house and informed him that they had caught two persons at the S.V.Road who were the offenders. The accused nos.1 and 2 were prosecuted under section 120-B of the Indian Penal Code. They were also charged separately under section 307 read (4) with section 120-B of the Indian Penal Code and also under section 307 read with section 34 of the Indian Penal Code. By the impugned judgment and order, the learned Additional Sessions Judge acquitted the accused for offence punishable under section 120-B as well as offence punishable under section 307 read with section 120-B of the Indian Penal Code. However, they were convicted for the offence punishable under section 307 read with section 34 of the Indian Penal Code. They were directed to undergo rigorous imprisonment for two months. It must be noted that the appellants were arrested on 14th December 1999 and they were not enlarged on bail during the pendency of the trial. That is how they have already undergone entire substantive sentence as the 1st accused was not granted bail and 2nd accused could not avail of the bail. 3. It will be necessary to refer to the evidence of the prosecution witnesses. The first witness is the complainant himself. He deposed that he entered the theatre complex of Gaiety-Galaxy around 7.00 p.m on 14th December 1999 and his work got over around 7.30 p.m. He parked his car in the compound of the theatre complex. What happened thereafter has been described by him in his examination in chief which reads thus: (5) "... I started walking towards my car. On that day I myself was driving the car. I noticed one person leaning against the driver seat door. I requested him to move as I wanted to get in the car. He moved from the car. I opened the driver’s seat door and sat on the seat keeping that door open. As I was about to shut the door of my car, I saw that person standing in front of me and was aiming the revolver at me. It was pointed towards my head. He clicked the trigger. However, it was not fired. He was clicking the trigger which I could hear and see. But bullet did not come out. He put the revolver inside the pocket and he took out another revolver from the pocket. As I realised what was happening, I turned around and kicked him with my leg. He lost his balance and fell down. 3. I quickly got out of the car and started running towards the entrance of the building of the theatre. I looked back and I noticed that person was also running after me. When I reached at the gate of the theatre, I again (6) looked back. At that time, I saw the said man sitting on the pillion seat of the scooter and the other persons was sitting on the driver’s seat. When I was running from the car to the gate of the theatre, I was screaming for the help immediately they went away on the scooter. 4. At that time, I was very nervous. I did not understand what was happening. I went home. On the next day at around 3.00 to 3.30 p.m. Police came to my house. The police informed me that they had caught two persons at S.V.Road and they were my assailants. Thereafter they recorded my complaint. ...." He further stated that on 08th January 2000 he was called for the identification parade at Arthur Road prison and he identified accused nos.1 and 2 in the parade. In the examination in chief he was shown a weapon which was allegedly pointed at him. He stated that he was not sure whether it was the same weapon which was allegedly pointed out at him. Even the second weapon allegedly pointed out at him was shown during the examination in chief. He stated that he was unable to (7) identify whether it was the same weapon. He was cross examined at length by the advocate for the accused. The second witness examined by the prosecution is one Sajid Ali Mohd.Kasim Ali Sayyed who was working as a Manager of hotel Repon Palace at Bombay. He was examined to prove that the accused had stayed in the said hotel during the relevant period. He produced and proved various documents in his evidence to substantiate that the accused persons were residing in the said hotel. P.W.No.3 is one Akbar Abdul Kader Khan. At the relevant time he was employed as a door-keeper in Gaity-Galaxy Cinema Hall. He was knowing the complainant as he used to frequently visit the theatre complex. He stated that the complainant arrived at 7.00 p.m to the theatre complex by his car on 14th December 1999. He parked his car in the compound and entered the theatre complex. After half an hour he came back. Further incident described by the witness reads thus: ".... Within half an hour, he came out of the Cinema Hall and he went towards his Car. I saw there was one person standing near the door of his car. There were few members of the public in the compound of the theatre. So, at that movement I did not pay much attention. I (8) noticed immediately that person went inside the car and immediately he came back. Mr.Thadani was sitting on the driver’s seat. I also noticed a pistol in the hand of that person. I saw Mr.Thadani running towards me and he was screaming as "Save Save" (Bachao Bachao). I did not hear any sound of pistol. There was a distance of 25 to 30 ft between me and the car of Mr.Thadani. I saw the man pulling the trigger of the pistol. I also saw that man aiming the pistol towards Mr.Thadani. Mr.Thadani entered the door of the theatre. That person chased Mr.Thadani for few feet and then turned back and ran towards one motorcycle which was parked near compound wall. I clarify that I saw that person running outside the compound wall. Thereafter I saw him immediately going away on motorcycle. ....." He further stated that on the same day at about 9.30 p.m he saw one motorcycle outside the compound wall which was proceeding towards the railway station. He saw that there was a noise and the motorcycle skidded on the road. The two persons riding the motorcycle fell down. What is stated by the witness is important which reads (9) thus: ..... The two persons who were on the motorcycle also fell with the motorcycle. I saw police jeep arriving after the motorcycle. Police corded the motorcycle and those persons. Nothing was visible to me due to the police and public. So, I went out of the gate and saw the same person who had aimed at Mr.Thadani with pistol on that evening was on the motorcycle and was lying there. Police apprehended that person and the other person and went away. 4. When I went near the police and the motorcycle I also noticed that the said person i.e the assailant of Mr.Thadani was holding one pistol and one mobile phone. I have seen the other person also. The person who had tried to shoot Thadani and who was holding pistol and mobile phone at night is today present in the Court. (Witness identified accused No.2 sitting in the dock) the person who was seen alongwith accused No.2 on that night lying near the motorcycle is today present in the Court hall. I have seen him on the road whom police (10) apprehended him (Witness identified accused no.1 sitting in the dock)." The said witness was also cross examined by the advocate for accused. The said witness stated that on 08th January 2000 he went to Arthur Road jail for the Test Identification Parade. He stated that person sitting there had asked him to identify the accused and he had identified the accused nos.1 and 2. He stated that on 09th January 2000 he was called to Bandra police station and was asked to sign one document in Marathi which he could not read. 4. P.W.No.4 is one Mukesh Jain who was the owner of the motorcycle which was allegedly used in the offence. He deposed that the said motorcycle parked in front of his house was stolen and he had filed a police complaint. P.W.No.5 Rammurat Dubey is a panch witness to the seizure panchnama of two pistols, 4 to 5 bullets and 3 to 4 empty magazines. P.W.No.6 Deepak Gujar was attached to Bandra police station as a Police Sub Inspector at the relevant time. He deposed as to how combing operation and nakabandi was made in Gaiety-Galaxy area on the relevant date. He described as to how two persons on the motor cycle were followed (11) by the police party and though signal was given to the motorcyclist to stop he did not stop the vehicle. He stated that in front of the entrance gate of Gaiety-Galaxy theatre the motorcyclist lost his balance and both the motorcyclists i.e the accused fell down and they were apprehended. P.W.No.7 is one Anant Chavan who was at the relevant time attached to Bandra police station as a constable. He participated in the combing operation and nakabandi near the Gaiety-Galaxy cinema on the relevant date. He stated that though he signed the panchanama the same was not at all held. P.W.No.9 is one Ratnakar Shetty who was having a pan shop in front of the entrance gate of Gaity-Galaxy theatre complex. He stated that he knew the complainant as he used to run theatre in the complex. He stated that around 7.00 p.m on 14th December 1999 the complainant arrived in the theatre complex and after parking the car he entered the theatre complex. He stated that merely half an hour thereafter the complainant came out. He further proceeded to state thus: " .... At that time, I noticed that one person was standing near the door of his car. I noticed Mr.Thadani opened the door of his car and so that person had to move little away from (12) the car. Anil Thadani tried to sit in the car. At that time, the person who was standing there who was tall and stout took out revolver (he used word ‘Ghoda’). However, that person could not operate the revolver. That person therefore, kept that revolver in his pant pocket and he took out another revolver. Meanwhile, Anil Thadani pushed that person and he ran towards the theatre. That person also followed Anil Thadani to some spaces, but he returned back. There was one motorcycle standing outside the compound. One short person was already sitting on the driver seat of that motorcycle. The tall and stout person who was initially standing near the car and took out the revolver also sat on the pillion seat of the motorcycle and both of them went away on that motorcycle. After some time, Anil Thadani sat in the car and went away. 3. On the same day, at around 9.30 p.m. I noticed a motorcycle and the same two persons were sitting on the motorcycle came from S.V.Road towards Gaity-Galaxy theatre. It was followed by a police jeep. The said motorcycle (13) slipped in front of the entrance door of the Gaity-Galaxy. Police from the jeep surrounded those two motorcyclists and apprehended. I further noticed police taking person search of two motorcyclists on the spot. One mobile was dropped on the road, it was taken charge by police. ..." He deposed that in January 2000 he was called by the police at Arthur Road jail for the purpose of Test Identification Parade. He identified the accused standing in the dock. He stated that during the Test Identification Parade he identified the persons on the motorcycle. The short person was driving the motorcycle and the stout person was the one who pointed the revolver at the complainant. P.W.No.10 Deepak Sawant was the Special Executive Officer who held Test Identification Parade on 08th January 2000. P.W.No.11 Balu Daundkar is a ballistic expert who examined the revolvers with cartridges and gave his opinion. P.W.No.12 is one Dattatraya Bhargude who was attached to Bandra police station as Assistant Police Inspector. He was a member of the police party which chased the motorcycle. (14) 5. The learned counsel appearing for the appellant in Criminal Appeal No.1216 of 2004 has taken me through notes of evidence and other documents. He submitted that the complainant had no opportunity to look at the face of the person who was plying the motorcycle. He pointed out that it is apparent from the cross examination of the complainant. He pointed out that P.W.No.3 admitted that he had not seen face of the person plying the scooter or motorcycle. He submitted that P.W.No.3 identified the accused No.1 as a person who was riding the motorcycle at 9.30 p.m on that day and one who fell down on the road as a result of skidding. He has not identified the accused No.1 as the person who was plying motorcycle of which pillion seat was taken by the accused who was actually involved in the incident in the theatre complex. He submitted that the evidence of P.W.No.1, P.W.No.3 and P.W.No.9 is totally inconsistent and cannot be believed. He submitted that as far as the case against the appellants under the Arms Act and the case of the theft of the motorcycle are concerned, they have been acquitted. He pointed out that the trial Court has recorded a finding that the doctrine of issue of estoppel applicable and therefore entire evidence relating to recovery of (15) revolvers and cartridges as well as recovery of the motorcycle/scooter will have to be completely discarded. He submitted that in the circumstances even the revolvers which were allegedly recovered at the instance of the 2nd accused could not have been shown to the complainant in his examination in chief. He submitted that the Special Executive Officer who conducted Test Identification Parade admitted that he did not follow the guidelines laid down by this Court for holding an identification parade. He submitted that the identity of the 1st accused is doubtful and involvement of the 2nd accused becomes doubtful as the evidence of recovery has to be discarded and as both the revolvers allegedly used at the time of offence could not be identified by the complainant P.W.No.1. He submitted that assuming that case of the prosecution is true, the offence under section 307 cannot be established unless it is shown that bullets could have been fired from the revolver at the relevant time. He submitted that even the evidence of the ballistic expert will have to be rejected in the light of the finding recorded by the learned trial Judge on the basis of doctrine of issue of estoppel. He submitted that taking the prosecution case as it is the offence of section 307 of the said Code was not established by any stretch of imagination. He submitted (16) that prosecution has not proved that the alleged revolvers used by the accused were revolvers from which bullet could have been fired. He submitted that if the entire evidence was appreciated, it is impossible to say that the guilt of both the accused is established beyond a reasonable doubt. 6. The learned A.P.P submitted that atleast two eye witnesses P.W.Nos.3 and 9 have deposed that the 2nd accused had put a revolver on the head of the complainant and their version is not shaken in the cross examination which completely corroborates the testimony of the complainant. He submitted that the appellants belong to gang of Abu Salem and there are not entitled to any leniency. 7. I have carefully considered the submissions. In order to bring home the guilt of the accused, the prosecution has examined the complainant, a door keeper working in the theatre complex who claims to be an eye witness and the owner of pan shop opposite the gate of Gaity-Galaxy cinema complex who also claims to be eye witness. Witnesses have been examined to prove the recovery of the revolvers, bullets and empty cartridges. There is an opinion of ballistic expert on the revolvers (17) and the bullets found. There is also evidence of the owner of the motorcycle used by the accused Nos.1 and 2 at the time of offence. 8. At the outset one very important aspect needs to be noted. As regards the theft of the motorcycle by the accused Nos.1 and 2 separate F.I.R was registered and a separate case was tried before the learned Metropolitan Magistrate. The accused Nos.1 and 2 have been acquitted in the said case. There were two separate cases for prosecuting the accused for the offences under section 25 of the Arms Act and section 27(a) read with section 135 of the Bombay Police Act. Even those prosecutions resulted in acquittal. After considering the law governing issue of estoppel, in paragraph 13, the learned Additional Sessions Judge held thus: "13. It is expressly made clear that this portion of some of the prosecution evidence i.e. on the point of recovery of the weapons, so also theft of the motorcycle is not admissible and hence not at all considered by this Court. Similarly, evidence of Ballistic Expert P.W.11 Balu Daundkar also cannot be given any weightage as the recovery itself is out of consideration." (18) Thus, what has been held by the learned Additional Sessions Judge is that the evidence on the point of recovery of the weapons and the theft of the motorcycle was not admissible and the said evidence cannot be given any weightage. Thus, the finding recorded by the learned Additional Sessions Judge is that the evidence of recovery of revolvers and evidence of the ballistic expert has to be discarded. The evidence of the owner of the motorcycle regarding theft of the motorcycle has also been discarded. Considering these findings recorded by the learned Additional Sessions Judge now the evidence on record will have to be considered to ascertain whether the guilt of the accused is brought home by the prosecution. 9. Evidence of P.W.No.1 complainant is already referred to above. According to his version after aiming the revolver at his head, the accused No.2 pulled the trigger. However, bullet did not fire. Thereafter the accused No.2 took out another revolver from his pocket. Thereafter the P.W.No.1 turned around and kicked the accused No.2 as a result the accused No.2 fell down. He stated that after he started running towards entrance of the Gaiety-Galaxy complex, the said (19) accused followed him for some time and thereafter he noticed that the said man was sitting on the pillion seat of a scooter outside the gate of the theatre complex and another person was on driver’s seat. Thus, even according to the complainant trigger was pulled only once by the accused No.2. Even after he took out the 2nd revolver he made no attempt to open fire at the complainant. In fact the witness stated that for some time the 2nd accused followed him while he was running towards the theatre complex. Even at that time it appears that the accused No.2 did not open fire by using other revolver. 10. As held earlier, in view of principle of issue of estoppel, the evidence of recovery of the weapons as well as empty cartridges cannot be even referred to. In fact the report and opinion of the ballistic expert as reflected in his evidence will have to be also completely ignored. On this background the failure of the complainant to identify the revolvers as a weapons used by the accused No.2 becomes very relevant. Secondly, it must be remembered that the incident occurred at 7.30 p.m in December and therefore judicial note can be taken of the fact that there was darkness at that time. There is another aspect of the matter. The (20) incident occurred at 7.30 p.m. The complainant did not complain. The police arrived at his residence at 3.30 p.m on next day and stated that his assailants have been caught. Only thereafter F.I.R was registered. Thus, the complainant never complained in the police and he waited till the police arrived. P.W.No.1 did not disclose that he could see the face of the person plying the motorcycle. 11. In the evidence of P.W.No.3 he purported to depose about the incident. He stated that at about 9.30 p.m he heard a noise and when he came out he saw a motorcycle had