1 APEAL1405.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.1405 OF 2003 Salim Abdul Razak Baig, Age 32 years, R/o. 51/9, Madina Manzil, Hussain Patel Marg, Mazgaon, Mumbai—400 010. : Appellant (Orig. Accused no.1) V/s. State of Maharashtra : Respondent .... Mr.Aabad H.H. Ponda for the appellant. Mr.Y.S.Shinde, Addl. Public Prosecutor for the State. .... CORAM : D.D. SINHA & A.R. JOSHI, JJ. Date of Reserving ) : 31.08.2010 the Judgement. ) Date of Pronouncing ) : 17.09.2010 the Judgement. ) JUDGEMENT (Per D.D.Sinha, J.) Heard the learned counsel for the appellant and the learned Addl. Public Prosecutor for the State. 2. This Criminal Appeal is directed against the judgement and order dated 18.10.2003 passed by the learned Addl. Sessions Judge, Greater 2 APEAL1405.03 Mumbai, in Sessions Case No.846 of 1999 whereby the appellant Salim Abdul Razak Baig was convicted for the offence punishable under section 302 of the Indian Penal Code and was sentenced to suffer R.I. for life and was directed to pay fine of Rs.5,000/-, in default to suffer R.I. for one year. The appellant was also convicted for the offence punishable under section 3 read with section 25(1-B) of the Arms Act and was sentenced to suffer R.I. for one year and to pay a fine of Rs.1,000/-, in default to suffer R.I. for three months. The appellant was also convicted for the offence punishable under section 5 read with 27 of the Arms Act and was sentenced to suffer R.I. for one year and to pay a fine of Rs.1,000/-, in default to suffer R.I. for three months. The other co-accused were acquitted of all the charges and the State has not preferred any appeal against the order. 3. The circumstances which have given rise to the prosecution of the appellant are as follows:- On 16.12.1998, Byculla police station received a telephonic message sent by one Ashraf Mansoor Khan on his mobile that a firing had taken place in hospital lane, D'lima Street, Mazgaon, Mumbai. In response to this telephonic message, PSI Sanjay Natkar reached the spot and noticed that some persons had fired bullets on a person sitting in a 3 APEAL1405.03 taxi by the side of the taxi driver’s seat. There was nobody in the taxi besides the victim. The injured was immediately rushed to the hospital where Doctors declared him dead. The police came to know that the person who was murdered was Sudhakar Kashinath Lone, a right-hand man of Mr.Arun Gavli . The police were informed by the wife of the deceased during the course of initial interrogation that on the date of the incident i.e. on 16.12.1998 the deceased had left the house along with one Abubakar Mehboob Khan (co-accused no.2). During the course of investigation, police initially nabbed accused no.2 Abubakar Mehboob Khan and during the course of interrogation with the said accused, the police came to know that the appellant was also involved in the said crime. On 24.12.1998 the police arrested the appellant. At the time of arrest, the appellant was searched. The police recovered a pistol from the person of the appellant along with live cartridges. 4. On 16.12.1998 Madan Jain (P.W.6), Niraj Pathak, Director (P.W. 8), the deceased, the appellant, Abubakar Mehboob Khan and Nasim alias Neha Fakhruddin Saifee Khan were present in the office of the Director Niraj Pathak at 1.30 p.m. at Andheri. Discussions had taken place for making a film. It was agreed to meet again and, thereafter, all of them disbursed. According to the prosecution, Niraj Pathak then gave lift to all four persons in his car upto Andheri and left them near a taxi stand. From 4 APEAL1405.03 Andheri, the appellant and other co-accused along with the deceased hired a taxi and went towards Mazgaon. The deceased was sitting by the side of the driver whereas others were sitting in the rear seat of the taxi. When the taxi came near Hospital Lane, the taxi driver was asked to take the taxi in Hospital Lane, D’lima Street, Mazgaon. The taxi driver stopped the taxi in the Hospital Lane and at that point of time, the appellant opened fire, four bullets were fired from his pistol from close range. On hearing the sound of firing, the driver of the taxi left the taxi and ran away from the said spot. When he returned to the taxi, he found Sudhakar Lone lying in an injured condition and hence, he reported the said matter to the police, however, in the meanwhile, one of the pedestrians Ashraf Khan had also contacted the police from his mobile and informed about the firing. 5. The police came to the spot of occurrence, shifted the injured to the hospital and panchas were called. Spot panchanama (exh.36) was drawn. From the taxi, three empty cartridges were recovered which were seized. The police arrested the appellant and other three co-accused from different places, recovered not only empty cartridges from the taxi where the incident had taken place but also succeeded in recovering the pistol and the live cartridges. Identification parade was held. Madan Jain (P.W. 6) and Niraj Pathak (P.W.8) identified the appellant to be the person who 5 APEAL1405.03 had been to his office on 16.12.1998 at noon along with the deceased Sudhakar Lone. Empty cartridges and pistol as well as live cartridges were forwarded to the Ballastic Experts. After completion of the investigation, charge-sheet was filed against four accused persons. Charge was framed against all of them, they pleaded not guilty and claimed to be tried. The trial Court convicted the appellant and acquitted the other co-accused of all the charges framed against them. The appellant, being aggrieved by the judgement and order passed by the trial Court, filed the present appeal. 6. The case of the prosecution is based on circumstantial evidence. It is well-settled law that if a case is based on circumstantial evidence, the circumstances must be such that they unerringly point to the guilt of the accused. It is also well-settled that the circumstances from which a conclusion of guilt should be drawn should be fully proved and established and must be consistent with the hypothesis of guilt of the accused and must rule out the element of innocence. The circumstances brought on record should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. There is no quarrel with the law declared by the apex Court in this regard in its decision reported in AIR 1990 S.C. 79 and AIR 1996 SCW 2903 and other decisions cited by the 6 APEAL1405.03 counsel for the appellant. 7. The learned counsel for the appellant has submitted that the prosecution case is based on the following circumstances which the prosecution has claimed to have been proved:- (i) Last seen together. (ii) Recovery of cartridges from the taxi where the dead-body of the deceased Sudhakar Lone was found. (iii) Recovery of a revolver and cartridges allegedly from the appellant on 24.12.1998. 8. The learned counsel for the appellant has submitted that it is the case of the prosecution that the incident was taken place in the night at around 9.00 to 9.30 on 16.12.1998. The deceased was found lying injured in a taxi of Shaikh Mohd. Mumtaz Suleman (P.W.2) and at a later point of time declared dead by the Doctors. Shaikh Mohd. Mumtaz Suleman (P.W.2) has turned hostile. The prosecution has relied upon the evidence of Madan Jain (P.W.6) and Niraj Pathak (P.W.8). It is submitted that Pathak improved his version before the Court where he claimed that after the appellant and others left his office, he followed them and he also left the office and gave them a lift upto the taxi stand and left those persons at Lotus Petrol Pump near Adarsah Nagar. It is contended that the evidence 7 APEAL1405.03 of Niraj Pathak (P.W.8) regarding leaving the office and accompanying the persons till the taxi stand near Lotus Petrol Pump is clearly an omission and contradiction to the effect that this witness never stated so to the police and, on the contrary, stated that the portion marked `A’ which is just converse, viz., that he remained in the office and never left the office. It is contended that all that the prosecution has been able to establish through this witness is that there was some meeting between Madan Jain (P.W.6), this witness Pathak, deceased Lone, the appellant and one lady as well as one More. The said meeting was in respect of the making of a film. The said meeting had taken place in the afternoon on 16.12.1998 and, therefore, there was sufficient time-gap between the parting of these persons from the office of Niraj Pathak (P.W.8) and the murder which took place in the taxi in the Dockyard area of Mumbai. The counsel for the appellant has submitted that if the time-gap is large between the point of time when the accused and the deceased were last seen and if there exists even a small possibility that any other person could have met the deceased, then the circumstance of last seen together loses its significance. In order to substantiate this contention, reliance is placed on various authorities of the apex Court, some of which are reported in AIR 2005 SCW 905, (2006) 10 SCC 172, (2002) 8 SCC 45 and (2008) Cri.L.J. 3502. It is contended that in the instant case, the circumstance of last seen together is not established by the prosecution. It is submitted that 8 APEAL1405.03 Madan Jain (P.W.6) does not even claim that the deceased accompanied them to the meeting where the appellant was supposed to be present, though Niraj Pathak (P.W.8) had said so in his evidence. It is, therefore, contended that there is no corroboration between the evidence of Madan Jain (P.W.6) and Niraj Pathak (P.W.8) relating to the circumstance of last seen together in the afternoon on 16.12.1998. 9. The counsel for the appellant further contended that the panchanama dated 16.12.1998 drawn in the taxi in which it is clearly mentioned that the deceased was found with certain pamphlets and literature relating to Akhil Bhartiya Sena, which is a political party. Therefore, it is clear that the deceased had taken some papers relating to his political party of which he was a leader on that day and obviously had some meeting with Niraj Pathak (P.W.8). It is submitted that the said finding of literature of Akhil Bhartiya Sena assumes significance because the wife of the deceased Suvarna Sudhakar Lone (P.W.1) has clearly admitted in her cross-examination that her husband was at one time with Shiv Sena and when he shifted to Akhil Bhartiya Sena, the workers of Shiv Sena were displeased. Her husband informed her that he was having danger to his life because of his change of political parties. It is, therefore, contended that the possibility of this being the cause of murder cannot be ruled out. The circumstance of last seen together, therefore, in these 9 APEAL1405.03 circumstances has no significance and has not been established by the prosecution. 10. The learned counsel for the appellant further contended that so far as the recovery of cartridges from the taxi on 16.12.1998 in the night at around 9.30 is concerned, it is the case of the prosecution that certain cartridges were recovered from the taxi which were supposed to have been used in the commission of the murder. These cartridges were alleged to have been seized from the spot. It is submitted that a perusal of the panchanama (exh.125) shows that cartridges which were found in the taxi were not seized. They were not even labelled with the signatures of panchas. The entire panchanama does not mention sealing or labelling of these cartridges at all. A perusal of this panchanama clearly indicates that some glass pieces were labelled with panchas’ signatures and there is no mention about sealing in the body of the panchanama. Sealing is different from labelling. It was incumbent on the prosecution to seal the property in order to rule out the possibility of tampering. Affixing labels of panchas signature on the particular article is only to identify the article and it is not for the purposes of ruling out tampering of the said article. It is further contended that from the testimony of panch (P.W.11), it is clear that there was no sealing or labelling on the spot, the police only seized the articles. It is submitted that the prosecution has not examined the 10 APEAL1405.03 second panch deliberately knowing that he would also support the version of the defence. Therefore, the evidence of the prosecution is lacking in this regard which goes to the root of the matter. 11. The learned counsel for the appellant further submitted that the evidence of the Investigating Officer Jalindar Laxman Khandgale (P.W. 16) shows that the packets were sealed with the panchas’ labels only and there was no sealing done independently. Similarly, Tukaram Kuduba Bhalerao (P.W.17) claims that the cartridges were taken charge of not by sealing them but by labelling them with panchas’ signatures. He does not say that they were sealed and separately labelled. The counsel for the appellant has contended that there is no evidence to show that the articles were actually sealed on the spot. To put the panchas’ label and call it sealing is not sealing. It is submitted that if the articles were not sealed, the possibility of tampering was not ruled out and, therefore, the second circumstance of recovering cartridges from the taxi also loses its significance. In order to substantiate his contention, reliance is placed on various decisions which are: (i) 2004 All M.R. (Cri.) 3257; (ii) 1994 Vol. 4 B.C.R. 85; and (iii) (2003) 5 S.C.C. 499. The learned counsel for the appellant has submitted that the entire prosecution case falls to the ground on the bare reading of the panchanama which clearly establishes that the articles found were neither sealed nor labelled and in view of the law 11 APEAL1405.03 declared by the apex Court, the appellant-accused is entitled to get the benefit in this regard. It is contended that the prosecution has to stand on its own legs, not cross-examine the witnesses and the Investigating Officer, in this regard, does not assume any importance as the prosecution cannot rely upon the weakness of the defence and must prove the charge beyond all reasonable doubt. The counsel for the appellant further contended that the prosecution was also duty bound to show that the articles were in a sealed condition from the time they were seized from the spot on 16.12.1998 till they were sent to the Chemical Analyser on 31.12.1998. There is no evidence to show that the articles were sealed or they remained in a sealed condition and/or in whose custody they were during the period from 16.12.1998 to 31.12.1998 and in the absence of the same, it is fatal to the prosecution. In order to substantiate this aspect, reliance is placed on the judgement of this Court reported in 1994 (4) Bom.C.R. (Cri.) 85 and A.I.R. 1980 S.C. 1314. 12. As regards the recovery of revolver allegedly on 24.12.1998, it is contended that the prosecution has relied upon the panchanama (exh.28). The revolver is alleged to have been recovered from the appellant along with some cartridges. It is contended that in the said panchanama also, it is not mentioned that these articles were sealed after their seizure. In the absence of any evidence of sealing on the spot in respect of the articles, 12 APEAL1405.03 no reliance can be placed upon the recovery of the revolver and cartridges even for the purpose of establishing the charge under the Arms Act, though the defence is disputing the fact that anything was seized from the appellant. It is contended that if something was allegedly found from the appellant, then under section 51 of the Cr.P.C., the appellant ought to have been given a receipt of this. Admittedly, it has not been done. Similarly, under section 107 of the Cr.P.C., if during the search of premises, something is found, then a copy of this list has to be given to the person from whose premises it was so found. This is also not done in the present case which creates doubt about the alleged recovery. 13. The counsel for the appellant further contended that it is the case of the prosecution that the revolver and cartridges were kept by the police and brought them. This is the substantive evidence of Manohar Baburao Bhosale (P.W.4) who has not been declared hostile and shows that the police had brought pistols and five to six cartridges and kept them on the table. The evidence of Manohar Baburao Bhosale (P.W.4) is corroborated by the evidence of Ganesh Shankar Tawade (P.W.7) in this regard. The counsel for the appellant further submitted that there is a clear-cut discrepancy in what has allegedly been seized on 24.12.1998 and what was sent to the Chemical Analyser. The following chart will highlight this aspect:- 13 APEAL1405.03 ------------------------------------------------------------------------ Sr.No. Exhibits A B 24.12.98 ------------------------------------------------------------------------ B-Experts Panchanama Opinion 97-98-99 (page 214) 1. A Pistol 31012955 31012955 - 656 II 5016 2. B Magazine 9165 4766 – 2955 3. C Magazine 9963 -4766 93 4. D Bullet 11093 Shells ------------------------------------------------------------------------- 14. The counsel for the appellant further submitted that there is no evidence to show that between 24.12.1998 and 31.12.1998 where the said articles were kept and whether they were in a sealed condition and who took them to the Chemical Analyser. The statement of the carrier was also not recorded nor the carrier was examined. It is contended that all these circumstances create grave doubt about the genuineness of the prosecution case. The chain of circumstances is far from complete. The prosecution has thus miserably failed to prove the charge against the appellant beyond reasonable doubt and, therefore, the finding of 14 APEAL1405.03 conviction is liable to be quashed and set aside and the appellant deserves to be acquitted. 15. Mr.Shinde, the learned Addl. Public Prosecutor for the State, has submitted that in the instant case, the prosecution has examined as many as 17 witnesses. However, the taxi driver Shaikh Mohd. Mumtaz Suleman (P.W.2), Mohd. Rafiq A.H. Kadge (P.W.3), Manohar Baburao Bhosale (P.W.4), Aslam Abdul R. Patni (P.W.5) and panch witness Ganesh Shankar Tawade (P.W.7) have turned hostile. It is contended that the case of the prosecution is based on circumstantial evidence and the prosecution has succeeded in proving that the deceased was last seen together with the accused on the date of the incident, recovery of cartridges from the taxi where the dead-body of the deceased Sudhakar was found as well as the recovery of revolver and cartridges from the appellant on 24.12.1998 at the time of his arrest. 16. The learned Addl. Public Prosecutor has submitted that in order to prove the circumstance of the accused last seen together, the prosecution has examined Madan Jain (P.W.6) and Niraj Pathak (P.W.8). It is the case of the prosecution that on the date of the incident i.e. on 16.12.1998 at about 1.30 p.m., the appellant, Madan Jain, the deceased Sudhakar and one lady went to the office of Niraj Pathak (P.W.8) who is a film writer 15 APEAL1405.03 and Director. All of them were in the office of Niraj Pathak (P.W.8) and discussed the details about the film which was proposed to be made on the life of Mr.Arun Gavli. In the late afternoon, the deceased, the appellant and the other woman left the office of Niraj Pathak (P.W.8). They hired a taxi and went towards Dockyard which is near Mazgaon. At a later point of time, the dead-body of the deceased Lone was found in the said taxi, driven by taxi driver Shaikh Mohd. Mumtaz Suleman (P.W.2). 17. The learned Addl. Public Prosecutor has contended that Madan Jain (P.W.6) and Niraj Pathak (P.W.8) identified the appellant-accused in the identification parade conducted by P.W.9 Pramod Sawant, S.E.O. on 7.1.1999. The learned Addl. Public Prosecutor, therefore, contended that the prosecution successfully proved the circumstance of deceased last seen together with the accused by adducing evidence which is clinching in nature. The learned Addl. Public Prosecutor for the State has further submitted that the other important circumstance i.e. seizure of two empty cartridges from the taxi has been proved by panch witness Mohd. Asif Abdul Kadir Shaikh (P.W.11). The seizure panchanama is at exh.36. The seizure was conducted by Tukaram Bhalerao (P.W.17) in the presence of panch witness Mohd. Asif Abdul Kadir Shaikh (P.W.11). The substantive evidence of panch witness as well as Tukaram Bhalerao (P.W.17) would show that the articles i.e. empty cartridges were seized and kept in a 16 APEAL1405.03 sealed condition. The learned Addl. Public Prosecutor further contended that the appellant was arrested on 24.12.1998 by Police Inspector J.L. Khandagle. One revolver and live cartridges were seized from the person of the appellant. The relevant panchanama is at exh.28. It is submitted that the articles which were seized under exh.28 were kept in a sealed condition. The learned Addl. Public Prosecutor further submitted that all these articles were forwarded to the Ballistic Expert and the Chemical Analyser in order to obtain their report in this regard. It is contended that the recovery of pistol and live cartridges from the person of the accused and the empty cartridges seized from the taxi were matched with each other. As per the opinion of the Ballistic Expert, it was established that empty cartridges were fired from the very same pistol which was seized from the person of the appellant. Panch witness Ganesh Shankar Tawade (P.W.7) proved the seizure panchanama (exh.28). 18. The learned Addl. Public Prosecutor has further submitted that the postmortem examination on the dead-body of the deceased Lone was conducted on 17.12.1998 and external injuries 1, 3, 5 and 7 were caused by bullets. All the injuries mentioned in column no.17 were antemortem and the probable cause of death was haemorrhage and shock due to fire- arm injury. The Addl. Public Prosecutor, therefore, contended that the circumstantial evidence adduced by the prosecution proves all the 17 APEAL1405.03 circumstances which are adequate to complete the chain and to prove the offence charged against the appellant beyond all reasonable doubt. The learned Addl. Public Prosecutor further contended that the prosecution examined P.W.16 Jalindar Laxman Khandgale, the Investigating Officer, who has recorded the statements of the witnesses and has proved the recovery panchanama (exh.28). The articles were sealed by him in the presence of panchas. It is pertinent to note that the defence has not cross- examined this witness on the point of sealing of articles, though much hue and cry was made in this regard while arguing this Appeal by the counsel for the defence. It is contended that the prosecution has examined Tukaram Bhalerao (P.W.17), who has conducted the seizure panchanama (exh.36). No question has been asked by the defence in his cross-examination as to whether the articles seized under the seizure panchanama (exh.36) were sealed. It is submitted that the prosecution has proved its case beyond reasonable doubt and mere recovery report was not handed over to the accused will not adversely affect the prosecution case, recovery of pistol and live cartridges from the person of the accused, recovery of empty cartridges seized from the taxi were matched with the live cartridges, the Ballistic Expert’s and Chemical Analyser’s reports corroborate the prosecution case and, therefore, the appeal suffers from lack of merit and liable to be dismissed. In order to substantiate his contention, reliance is placed on the decision of this Court in Nitin 18 APEAL1405.03 Laxman Pansare v. State of Maharashtra (2009 All M.R. (Cri.) 2858) (evidentiary value of hostile witness) and Rajesh A. Behere v. State of Maharashtra (2009 All M.R. (Cri.) 1612). 19. We have given our anxious thoughts to the various contentions canvassed by the respective counsel,