crapl1269.04(2) -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1269 OF 2004 Sayyad Nazar Abbas @ Kaiffi Hussan Abbas Age 19 years, Indian Inhabitant, Occ. Service, R/o. Room. No.7, Plot No.13, D-Line, Lotus Colony, Govandi, Mumbai- 400 043 (Presently lodged at Nasik Road Central Prison, Nashik, as convicted ...Appellant prisoner) (Ori. Accused No.2) Versus The State of Maharashtra (at the instance of Deonar Police Station Vide their C.R. No. 177 of 1998) ...Respondent ..... Mr. Khan Abdul Wahab, advocate for the appellant Mr. H.J. Dedhia, APP for respondent ..... WITH CRIMINAL APPEAL NO. 508 OF 2005 1 Mamma @ Mamman Ismail Shaikh Age about 25 years, Permanently residing at Lotus Colony, Plot No.17, Room No.1100, Govandi, Mumbai 43 2 Firoz Ismail Shaikh Age about 29 years, Permanently crapl1269.04(2) -2- residing at Lotus Colony, Plot No.17, Room No.1100, Govandi, Mumbai 43 3 Mohammed Shakil Alimuddin, Aged about 25 years, Permanently residing at Shivaji Nagar, Plot No.26, Riyaz Zariwala, R. No.7, Shivaji Nagar, Govandi, Mumbai 43 At present all of them are in ...Appellants Nasik Road Central Prison (Ori. Accused 1, 3 & 4) Versus The State of Maharashtra (at teh instance of Sr. P. I. Deonar Police Station Vide their C.R. No. 177 of 1998) ...Respondent ..... Mr. Nitin Sejpal, advocate for the appellants Mr. H.J. Dedhia, APP for respondent ..... CORAM : B.H. MARLAPALLE AND A.M. THIPSAY, JJ. DATE OF RESERVING THE JUDGMENT : 03.05.2011 DATE OF PRONOUNCING THE JUDGMENT : 2.12.2011 JUDGMENT (PER A.M. THIPSAY, J.) :- 1. Both these appeals can be conveniently disposed of by this common judgment, as the appellants in both these appeals were, all, accused in Sessions Case No. 141 of 1999, decided by the learned Additional Sessions Judge for Greater Bombay. The appellant in crapl1269.04(2) -3- criminal appeal No. 1269 of 2004 was the accused No.2 in the said Sessions Case, while the appellants in criminal appeal No. 508 of 2005 were the accused Nos. 1, 3 and 4 respectively in the said case. For the sake of convenience and clarity, the appellants shall be referred to by the position held by them in the trial court. 2. There were two more accused in the said Sessions Case (i.e. original accused Nos. 5 and 6). The allegation against the accused persons was in respect of offences punishable under Sections 302 of I.P.C. r.w. 34 of I.P.C. The learned Additional Sessions Judge for Greater Bombay, convicted the appellants of the offences punishable under Section 302 of I.P.C. r.w. Section 34 of I.P.C. and sentenced them (each of them) to suffer imprisonment for life and to pay a fine of Rs.3,000/- i/d to suffer S.I. for one year. The learned Additional Sessions Judge held that the charge against the other two accused was not proved, and acquitted them. The appellants-the original accused Nos. 1 to 4-being aggrieved by the said order of conviction and sentence, have approached this Court by filing the aforesaid two separate appeals. 3. The prosecution case before the trial court was, in brief, that one Shakil (the deceased) was a known Gunda in the locality of Govandi, crapl1269.04(2) -4- where the said Shakil and the accused persons resided. That, on 20.11.1998, there was a dinner party in the house of one Mohammed Gaus. Among the persons present in the party, there was Akram Idris Khan (P.W.1), who knew all the accused. Shakil, who was also present there, went to Raj Auto Garage saying that he would come back within five minutes. About five minutes after Shakil had left, one Santosh came running and told to the persons present at the dinner that ‘Lafda Ho Raha Hai’. Akram (P.W.1), Santosh Gupta (P.W.2) and others rushed to the spot, where the ‘Lafda’ was said to be taking place. They noticed that accused Nos. 1 to 4 were holding weapons like sword, chopper and assaulting the said Shakil. That, original accused Nos. 5 and 6 were also armed with weapons and were threatening the people around them not to intervene. The accused Nos. 1 to 4 assaulted said Shakil on his head, stomach, legs and then ran towards highway in the dark. Akram (P.W.1), Santosh Gupta (P.W. 2) and others lifted Shakil, who was badly injured. Shakil was whispering that Firoz (the accused No.3) and his associates had assaulted him. Shakil was taken to Shatabdi Hospital but was declared dead on admission. The police came to the said Hospital and recorded the statement of one Mehtab, which was treated as the first information report and a case in respect of the offences punishable under Sections 302, 143, 147, 148, 149 of I.P.C. was registered. crapl1269.04(2) -5- In the course of investigation, spot panchnama (Exh.53) and inquest panchnama (Exh.52) were drawn. The clothes of the deceased were also seized under a panchnama (Exh.54). The accused Nos. 1 and 2 were arrested on 21.11.1998. The accused Nos. 3 and 4 were arrested on 23.11.1998. The statements of certain persons were recorded in the course of investigation. Certain incriminating articles were also recovered at the instance of the accused persons in the presence of panchas. Notes of post mortem examination, that was carried out on the dead body, were collected. The articles seized in the course of investigation were sent to Chemical Analyzer for examination. On completion of investigation, charge sheet was filed against all accused persons, which as aforesaid, resulted in the conviction of the accused Nos. 1 to 4 and the acquittal of original accused Nos. 5 and 6. 4. The prosecution examined in all 12 witnesses during the trial. Akram Idris Khan (P.W.1) and Santosh Gupta (P.W.2) are said to be the eye witnesses to the incident. Akbar Ahmed (P.W.3) is a witness with respect to an incriminating circumstance against the accused No. 4 Mohd. Shakil. Dnyandeo Sathe (P.W.4) is a panch in respect of recovery of a knife on 27.11.1998, pursuant to the information disclosed by the original accused No.5 and is not relevant for the present appeals. Shahajad Harun Khan, (P.W.5) was supposed to be crapl1269.04(2) -6- an eye witness to the incident but he turned hostile during the trial. He has, however, deposed to certain facts, which advanced the case of the prosecution on certain aspects, and with respect to certain accused. Sanjay Dabade, (P.W.6) is a panch in respect of the arrest of accused No.3 Firoz and accused No.4 Mohd. Shakil and taking of charge of blood stained clothes of these accused by the police. Raju More, (P.W.7) is also a panch in respect of the disclosure statement made by the accused No.2 Kaiffi Hussain Abbas and the recovery of one Khanjir (Article 8) pursuant thereto. He is also a witness in respect of disclosure statement made by the accused No.1 Mamma and the recovery of one Gupti (Article 9) from a room in Shivaji Nagar under a panchnama pursuant to the said disclosure. Shivaji Niman, (P.W.8), Inspector of Police, to whom the investigation was entrusted on 22.11.1998, speaks in respect of steps taken in the investigation including the arrest of the accused persons and the recovery of weapons. According to him, on 23.11.1998, he arrested the accused Nos. 3 Firoz and accused No.4 Mohd. Shakil from their respective houses and on the next day i.e. on 24.11.1998, a sword (Article 10) and a Khanjir (Article 14) were recovered pursuant to the information disclosed by the accused No.3 Firoz and accused No.4 Mohd. Shakil respectively. Walmik Ratan Sardar, (P.W.9) is also an Inspector of police, who was working as S.H.O. on 21.11.1998 and who, on receipt of a message from Shatabdi Hospital at 12.00 p.m. on 20.11.1998, crapl1269.04(2) -7- had gone there and recorded the statement of one Mehtab Abdul Kadar, which, as aforesaid was treated as first information report. This witness registered the crime, prepared inquest panchnama (Exh.52), went to the spot alongwith panchas, seized clothes of deceased under panchnama, (Exh.54). Shasikant Wakode (P.W. 10) is a panch in respect of the disclosure statement allegedly made by the accused No. 3 on 24.11.1998 pursuant to which, the police party went to Gautamnagar and recovered one sword (article 10). Dr. Vijayalaxmi Vajanani (P.W.11) is a witness in respect of bringing Shakil to Shatabdi Hospital on 20.11.1998 at about 9.40 p.m. According to her, on examination, Shakil was found to be dead and that there were multiple stab injuries all over his body, which was sent for post mortem examination after making an entry to that effect in the casualty register. The 12th and the last witness is Dr. Handore, Medical Officer, who performed post mortem examination on the dead body. He noticed that there were 38 injuries all over the body of Shakil. He opined the cause of death of Shakil as ‘shock and hemorrhage due to multiple stab injuries’. He opined the death to be the instantaneous. 5. With the assistance of learned counsel for the accused, we have gone through the entire evidence. We have been taken through the impugned judgment. crapl1269.04(2) -8- 6. The contention of the learned counsel for the accused persons is that the prosecution evidence was unreliable and that the appellants could not have been convicted on the basis of such evidence. According to Mr. Wahab Khan, the learned counsel for the appellants in criminal appeal No. 1269 of 2004 and Mr. Nitin Shejpal, learned counsel for the appellant in criminal appeal No. 508 of 205, the witnesses, projected as eye witnesses, were actually not the eye witnesses at all and that this fact would be clear on consideration and appreciation of their evidence. It was also submitted that, that the person who lodged the first information report i.e. Mehtab Abdul Kadar was not examined, is itself a serious weakness in the prosecution case. It was submitted that the investigation had not been done fairly and honestly and the prosecution case was got supported by false and fabricated evidence. It was also submitted that certain evidence was recorded in the absence of some of the accused and their advocates and that therefore, the entire trial was vitiated. It was also submitted that in case of one of the witnesses, no opportunity was given to the defence to cross examine the witness after he was recalled and examined further in chief. It is therefore, submitted that both the appeals deserve to be allowed. 7. Mr. Dedhia, the learned A.P.P. on the other hand, contended crapl1269.04(2) -9- that there was overwhelming evidence against the accused persons and that the evidence of eye witnesses was sufficient to prove the guilt of the accused persons. According to him, no error has been committed by the trial court in convicting the accused persons and that there is no merit in the present appeals. 8. We have carefully considered the evidence on record and we have also taken into consideration the principles enunciated in the reported judgments of the High Courts and the Apex Court, on which reliance has been placed by the learned counsel in support of their respective contentions. 9. That, Shakil died a homicidal death on 20.11.1998 at about 9.40 p.m. cannot be doubted or disputed. In this regard, a reference may be made to the evidence of Dr. Vijayalaxmi Vajnani (P.W.11) and Dr. Handore (P.W.12). 10. The evidence of Dr. Vijayalaxmi Vajnani (P.W.11) shows that while she was attached to Shatabdi Hospital on 20.11.1998, at about 9.40 p.m., Shakil was brought to the casualty room in an injured condition and that on examination, she found him dead. That, the dead body of Shakil was sent for post mortem examination. crapl1269.04(2) -10- 11. Dr. Bhalchandra Handore (P.W.12) is one, who performed the post mortem examination on the dead body of Shakil. According to him, there were 38 injuries on the dead body of Shakil, as follows:- 1 Verscle IW on left size forehead 5 cm x 0.5 cm x 6 cm. deep gapping prone. 2. Oval IW with elevating of skin on left side of left eye brow 2.5 cm x 2 cm bone deep. 3. IW on left partial region oblique 3 cm x 1.5 cm x outer of bone deep. 4. Semi circular IW below left eye 2.5 cm. x 0.5 cm. 5. Abrasion below right ear 3 cm x 0.5 cm. 6. Stab injury at left inter coastal space of the 2 cm x 1 cm x 6 cm deep, both edges sharp gapping present old, blood and seen. 7. Two stab injuries at right infra axillary region 4 cm from each other oblique both shape with gaping ends on medical size. 1. 2 x 1 cm x 6 cm deep 2. 2 x 1 cm x 6 cm deep 8. IW of right region 3 cm x 1.5 cm. deep. crapl1269.04(2) -11- 9. Stab injury on right sized fuprapubil region 2.5 cm x 1 cm x 10 cm. deep in abdomen and tappering region uware verticle both edges sharp. 10. IW on right thumb bone x 1 cm bone deep. 11. Index midel IW joint 1.5 cm x 0.5 cm. surface. 12. CLW on at finger terminal phague 2.5 x 1.5 cm x muscle deep. 13. IW on right little finger 2 cm x 1 cm bone deep. 14. IW on left side on right shoulder on 4 cm x 1.5 cm x muscle deep. 15. Sharp abrasion on right limn 6 in number 0.5 cm x 1 cm. 1.5 cm x 1 cm. 16. IW on post size right elbow joint x 5 cm. x 0.5 cm. 17. Abrasion on left shoulder joint 5 cm x 0.5 cm. 18. Liner abrasion on left arm and fracture three in number 5 to 7 cm. x 0.4 cm. versicle region. 19. IW on left wrist two in number 1.5 cm x 1.5 cm x 0.5 cm x 1.5 cm x 0.5 cm reddish edges. 20. IW Dorgun on left hand 4 x 1.5 cm x 6 on deep. crapl1269.04(2) -12- 21. Oblique IW on base of left thumb 3 x 1.5 muscle deep. 22. IW on middle finger left 3 cm. x bone deep with abrasion below it. 23. Defence IW terminal of left index of middle finger 1.5 x 1 cm x 0.5 cm. 24. Three abrasion on left thigh 8 cm x 0.5 cm. 25. IW on middle side left knee 3 cm x 1.5 cm. x 0.5 cm. 26. IW below medial size left knee 6 cm. x 1.5 cm x 1 cm deep. 27. IW on left size upper right thigh 5 cm. x 1.5 cm x 1. 28. Shape abrasion on left size right thigh four in numbers reddish. 29. Two small IW on right upper leg below knee 2.5 cm x 1 cm x 0.5 cm 2 cm x 0.3 cm x 0.5 cm. 30. Deep IW below injury no.29 10 cm x 4 cm. x 3 cm. muscle deep. 31. Verside deep IW below injury no. 30 12 cm x 4 cm x 2 cm muscle deep. 32. Stab injury on medical size right leg 2 cm x 1 cm x 6. crapl1269.04(2) -13- 33. Stab injury on right scapule 4 cm x 1 cm x 1 cm bone deep both shape edges. 34. Stab injury on right superficial region 2 cm x 1 cm x 14 cm deep muscle both shape edges. 35. Stab injury on right size inter capuler region 2 cm x 1 cm 14 cm on deep in the chest bleeding. 36. Stab injury right shape region 2 cm x 0.5 cm x 6 cm in muscle. 37. Stab injury in right gluteral region 2.5 cm x 1 cm x bone deep in muscle on medial size both shape edges. 38. Multiple linear abrasion on back total in number 2 to 10 cm x 0.3 cm. The notes of post mortem examination (Exh.63) were tendered in evidence. This witness has opined the cause of death of Shakil as ‘shock and hemorrhage due to multiple stab injuries’. 12. Considering the number and nature of injuries on the dead body of Shakil, it appears that he was subjected to assault by sharp weapons and that, in all probability, the assault was by a number of persons. Thus, that death of Shakil was homicidal - which is, even crapl1269.04(2) -14- otherwise, not challenged or disputed - is clearly established. 13. The question which requires determination, is whether the present appellants are proved to be the assailants 14. Akram (P.W.1), Santosh Gupta, (P.W.2), Shahjad Khan (P.W.5) are supposed to be the eye witnesses to the incident. As such, it would be appropriate to first consider their evidence. 15. According to Akram, (P.W.1), he knew all the accused as also the deceased. That, there was a dinner party at the residence of Mohd. Gaus, which, this witness was attending and that at that time, Shakil (the deceased) was also present, but had gone to Raj Auto Garage saying that he would return back within five minutes. The witness stated that about five minutes after Shakil had left, one Santosh came running saying ‘Lafda Ho Raha Hai’, whereupon, this witness and others left the dinner and rushed to the place of assault. He categorically stated that he saw all the accused had held swords and assaulted Shakil. He categorically stated that all the accused assaulted Shakil on head, back, hand, palm, stomach and legs. According to him, when he and others reached there, the accused persons ran towards the highway alongwith weapons. He also stated that Shakil was then taken to the Hospital and that while he was being crapl1269.04(2) -15- taken, Shakil whispered that ‘Firoz Ismail Shaikh (accused No.3) and his associates had assaulted him’. That, Shakil was declared dead before admission. The witness also stated that he and others were frightened and did not go to their respective houses and kept on moving at different places. His evidence also shows that previously deceased Shakil had quarreled with Mamma @ Mamman (Accused No.1, and that at that time Shakil had beaten the said accused. The witness further stated that he returned back home only after five days from the date of incident when Mehtab Abdul Kadar (first informant) took him to the police station. That, all the accused persons were seen by him at the police station on the day next after his statement was recorded. 16. In the cross examination of this witness by the accused No.1, nothing favourable to the accused could be elicited. It was suggested that he could not go near Shakil, as he was obstructed by two persons, which has been denied by him. In the cross examination of this witness, on behalf the accused No.2, the witness was made to admit that the deceased Shakil was a habitual offender and that many cases were registered against him. The witness stated that the accused No.1 Mamma had assaulted Shakil in the stomach but further admitted that he was unable to state which accused assaulted on which part of the body of Shakil. In our opinion, this is quite natural. Inability of the crapl1269.04(2) -16- witness to specifically state about this aspect is insignificant when several blows were given by a number of persons. Certainly, this does not render his claim of being an eye witness to the incident doubtful, on that count. 17. The witness stated that the deceased was taken to the hospital in a rickshaw. The omission on his part to state before the police that while Shakil was being taken to hospital, he whispered that Firoz (accused No.3) and his persons had assaulted him, is brought on record in the cross examination. We, therefore, find it safer not to rely upon this evidence – i.e. of the dying declaration, allegedly made by Shakil, to this witness. 18. It was got admitted from this witness that the deceased was his close friend. The witness admitted having had discussion with Mehtab Shaikh (first informant), but denied the suggestion that Mehtab Shaikh had told about the incident and that therefore, he was telling accordingly. He also admitted that the police Officer had told the said Mehtab Shaikh to bring him to the police and that he was indeed with Mehtab Shaikh till then. 19. It was suggested to this witness in the cross examination on behalf of the accused No.5 that this witness himself and the first crapl1269.04(2) -17- informant Mehtab Shaikh and others were actually, the assailants, and that accused were being falsely implicated by the witness. Of course, such a suggestion has been denied by this witness. 20. The witness was asked in the cross examination as to whether he had asked the deceased as to who assaulted him, and the witness replied in the affirmative. Interestingly, after this answer, the defence gave up this line of cross examination without asking what Shakil had told this witness at that time. 21. In the cross examination of this witness that took place on 11.8.2003, he gave the following admission;- “It is true to suggest that assailants had already ran away before I reached Shakil.” In view of this admission, the learned Special Public Prosecutor, declared this witness hostile and sought permission to put questions in the nature of cross examination, which was granted. In the further examination of this witness by the learned Special Public Prosecutor, after he was declared hostile, which took place on 18.9.2003, the witness stated that, ‘he had stated the true and correct facts in his examination in chief that had taken place on 7.8.2003’, and that ‘he deposed falsely in the cross examination on the relevant date i.e. on crapl1269.04(2) -18- 11.8.2003’. He stated that ‘he was threatened by the accused persons in the intervening period’ and that day i.e. ‘on 18.9.2003 (when his further examination was taken by the learned Special Public Prosecutor after declaring him hostile), he was not under any fear’. The record of notes of evidence, shows that cross examination of this witness by the accused persons pursuant to this answer elicited by the learned Special Public Prosecutor, was not taken, as the advocates for the accused persons were absent. This has been taken as a ground by the learned counsel for the accused persons for claiming that the evidence of this witness should be discarded. It was contended that looking to the nature of his evidence, the Court ought not to have closed the cross examination. It was submitted that later on an application was made by the accused persons to recall this witness for further cross examination in view of the evidence brought on record by the learned Special Public Prosecutor, on 18.9.2003, (after the cross examination of this witness was done on behalf of the accused persons); but that, the said application was rejected by the learned Additional Sessions Judge. Indeed, factually this contention seems to be correct from the record. The further examination of P.W.1 was taken by the Special Public Prosecutor on 18.9.2003 and on that date itself, the further cross examination, occasioned by the newly adduced evidence was treated as declined by observing that the advocates for the accused were absent till 11.45 a.m.. The record shows that an crapl1269.04(2) -19- application (Exh.17) was made on behalf of the accused No.5 to recall this witness for examining for “correcting Roznama”. This application was rejected by the learned Additional Sessions Judge on 10.10.2003. The prayer for recalling was again canvassed, but that was also rejected by an order dated 1.11.2003, by observing that there was no case for recalling as the accused had failed to avail of the opportunity of cross examining the witness from time to time. The record also shows that even thereafter an application (Exh.21) was made by the accused No.3 for recalling P.W.1 for further cross examination and that, that application was also rejected by the learned Judge on the ground that the same request had been rejected earlier. 22. Though, in our view, the learned Judge ought to have afforded an opportunity to the accused persons