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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.245 OF 2015
1. Mohd. Ashu @ Asif Mohd. Yakub,
Aged about 25 years, r/o.
Al-Kabir Nagar, Near RTO
Office, Nagpur Road,
Yavatmal.
2. Shaikh Fahim Shaikh Gaffar,
Aged about 23 years, r/o.
Al-Kabir Nagar, Near Masjid,
Nagpur Road, Yavatmal.
3. Afsar Ali Chirag Ali,
Aged about 40 years, r/o.
Kumbharpura, Near Kabristhan,
Kalam Chowk, Yavatmal.
4. Shaikh Anwar @ Michmichya
Shaikh Ismail, Aged about
29 years, r/o. Al-Kabir Nagar,
Near RTO Office, Nagpur Road,
Yavatmal.
5. Syed Abrar Syed Rauf,
Aged about 35 years, r/o.
Al-Kabir Nagar, Near Masjid,
Nagpur Road, Yavatmal.
All appellants are presently in Central
Prison, Amravati. .......... APPELLANTS
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// VERSUS //
The State of Maharashtra,
Through Police Station Officer,
Police Station, Yavatmal (City),
District Yavatmal. .......... RESPONDENT
____________________________________________________________
Mr.Suyog Deshpande, Advocate for Appellant No.1.
Mr.P.R.Agrawal, Advocate for Appellant Nos.2 & 5.
Mr.P.W.Mirza, Advocate for Appellant Nos. 3 and 4.
Mr.T.A.Mirza, A.P.P. for the Respondent/State.
____________________________________________________________
CORAM : B.R. GAVAI
AND
KUM.INDIRA JAIN, JJ.
DATE : 2.3.2017.
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Being aggrieved by the Judgment and Order passed by the learned Sessions Judge, Yavatmal in Sessions Trial No.48 of 2012, dt.16.5.2015 thereby convicting the appellants for the offences punishable under Sections 147, 148, 341, 302 r/w. 149, 302 r/w. 120-B of the Indian Penal Code and u/s. 4/25 of the Arms Act and sentencing them to suffer rigorous imprisonment for one year and to ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 3 apeal245.15.odt pay a fine of Rs.500/- each, in default to suffer rigorous imprisonment for one month for the offence punishable under Section 147 of the Indian Penal Code; sentencing them to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for one month for the offence punishable under Section 148 of the Indian Penal Code; sentencing them to suffer simple imprisonment for one month and to pay a fine of Rs.500/- each in default to suffer simple imprisonment for seven days for the offence punishable under Section 341 r/w. 149 of the Indian Penal Code; sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/- each in default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 r/w. 149 of the Indian Penal Code; sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/- each in default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 r/w. 120-B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- each in default to suffer rigorous imprisonment for one month for the offence punishable under Section 4/25 of the Arms Act, the appellants have approached this Court.
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2. The prosecution story, as could be gathered from the material placed on record is thus :
That, on 4.11.2011, deceased Irfan Khan Rashid Khan was proceeding by a Scooter in the night between 8.00 and 8.30 p.m. from his house. The first informant namely Rizwan Khan Irfan Khan (PW-1) and his friend Jamir Kazi were going to purchase medicine by Honda Shine motorcycle. When they came near Pobaru Layout near Aba Saheb Parvekar Vidya Mandir located on Yavatmal-Nagpur Road, they saw that, in front of said school, all the accused encircled father of the first informant. Accused nos. 3, 4 and 5 were having Swords in their hands. Accused no.1 Mohd. Asif Mohd. Yakub was having a big knife. All the accused were abusing his father. On seeing the weapons in their hands, Rizwan Khan (PW-1) and his friend Jamir Kazi got frightened and they hid themselves by the side of the road. The accused brutally assaulted the deceased. The deceased fell down from the Scooter. Thereafter, the accused ran away. Rizwan Khan (PW-1) went near his father. However, he was not in a condition to talk. Thereafter, the first informant went to his house and narrated the incident to his relatives. They arrived at the spot. Thereafter, the first informant went to the Police Station and lodged ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 5 apeal245.15.odt report. On the basis of oral report of Rizwan Khan (PW-1) below Exh.75, the First Information Report came to be lodged below Exh.76. On the basis of the F.I.R., investigation was set into motion. At the conclusion of the investigation, the charge sheet came to be filed in the Court of learned Chief Judicial Magistrate, Yavatmal. Since the case was exclusively triable by the learned Sessions Judge, the same came to be committed to the Court of learned Sessions Judge. The learned trial Judge framed the charges for the offences punishable under Sections 147, 148, 341, 302 r/w. 149, 302 r/w. 120-B of the Indian Penal Code and under Section 4/25 of the Arms Act below Exh.43. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction and sentence, as aforesaid. Being aggrieved thereby, the present appeal.
3. Mr.P.W.Mirza, learned Counsel for Appellant Nos. 3 and 4 submits that the learned trial Judge has grossly erred in convicting the appellants. He submits that perusal of testimonies of Rizwan Khan (PW-1) and Sofiya Shaheen (PW-2), who are so-called eye witnesses, would reveal that they have not at all witnessed the incident and were not speaking the truth. He further submits that ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 6 apeal245.15.odt Sofiya Shaheen (PW-2) is a chance witness and her presence at the spot itself is doubtful. The learned Counsel for the appellants, therefore, submits that the order of conviction is not sustainable in law and deserves to be set aside.
4. Mr.T.A.Mirza, learned A.P.P. submits that the circumstance regarding recovery of the incriminating material under the memorandum of the accused under Section 27 of the Indian Evidence Act, which is duly proved by Imtiyazkhan Ayubkhan Pathan (PW-5), also corroborates the ocular testimonies of Rizwan Khan (PW-1) and Sofiya Shaheen (PW-2). He submits that the learned trial Judge has given sound and cogent reasons for recording the order of conviction which warrants no interference.
5. With the assistance of the learned Counsel for the appellants and the learned A.P.P., we have scrutinized the entire evidence on record.
6. The prosecution case mainly rests on the testimonies of Rizwan Khan Irfan Khan (PW-1) and Sofiya Shaheen w/o. Imran Khan (PW-2), who is the neighbour of the deceased. Rizwan Khan ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 7 apeal245.15.odt (PW-1) states in his deposition that he resides in Tayede Nagar, Yavatmal along with his grandfather Rashid Khan, grand mother, father Irfan Khan, mother Nazembi and other relatives. He states that, on 4.11.2011, he had returned to his house from garage at around 6.00 to 6.30 in the evening. He and his father took meals and were sitting. At that time, his father received a phone call that the pan thela was broken. He and his father hurriedly proceeded. He stopped at the pan thela at Tayede Nagar and told his uncle that his father hurriedly had gone while driving scooter and asked him what is the matter. His friend Jamir Kazi told him that he wanted to purchase medicene and thus he had gone along with him towards Kalamb Chowk. They both reached at Pobaru Layout near Aba Saheb Parvekar Vidya Mandir. At that time, it was around 8.00 to 8.30 p.m. The accused persons had encircled his father. Out of them, four persons were having Swords in their hands and one was having a Knife. Afsar Ali, Sk. Anwar, Syeb Abrar were having Swords and Ashu @ Asif was having a long Knife like Sword. Fahim was having a Knife in his hand. They started abusing his father and then they assaulted his father. He witnessed the incident in the street light on pole. He and his friend Jamir Kazi were frightened and seeing the incident, they hid themselves. Then the accused ran away on two ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 8 apeal245.15.odt vehicles towards Al-Kabeer Dargah. Accused Afsar Ali left away his Sword on the spot. Thereafter, this witness and his friend came to pan thela at Tayede Nagar and narrated the incident to his uncle Israil. Thereafter, he went to his house and narrated the incident to his grandfather, grandmother and other family members. They went to the Police Station to lodge the F.I.R.
7. The statement of Rizwan Khan (PW-1) is also recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure. Perusal of the statement under Section 164 would reveal that the version given by him in the statement under Section 164 is totally different than what has been stated by him in the deposition. In the statement u/s.164, he states that, after receipt of the phone call that the pan thela was broken, the said witness and the deceased immediately went to the R.T.O. Office. His father inspected the pan thela which was found to be alright. He further states that when he and his father were returning from the Pan thela, 4-5 persons had encircled his father and assaulted him. It could thus be seen that though, in his deposition, he states that he was going along with Jamir, in his statement u/s.164, he states that he was along with his father. The conduct of the said witness also needs to be noted. He ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 9 apeal245.15.odt admits in his deposition that, after seeing his father in injured condition, first of all he should have thought to take him to the hospital to save him. He, however, further admits that, without taking any care to save his father, he went to his house. He further admits in his cross-examination that when the police took his father to the hospital, he did not go with police or behind the police to the hospital. He further states that, in that night, he did not go to the hospital to meet his father. He further admits that, on going to the house also, he did not tell names of the assailants to his relatives. He further admits that, on the spot of incident, neither his uncle, aunt, grandfather, grandmother and relatives informed anything to the police. It is further to be noted that the said witness is an interested witness cannot be a ground to discard his testimony. However, the evidence of such witness has to be scrutinized with greater caution and conviction could be rested only if the evidence of such witness is found to be trustworthy, cogent and reliable. The conduct of Rizwan Khan (PW-1), who admits that, even after his father was brutally assaulted, he went home without taking the deceased to hospital and his further conduct in not informing about the incident to his relatives cast a serious doubt as to whether he has really witnessed the incident or not.
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8. Sofiya Shaheen w/o. Imran Khan (PW-2) is the neighbour of the deceased and Rizwan Khan (PW-1). She states that her marriage with Imran Khan took place on 27.2.2011. Till her marriage, she was residing at her father's house at Tayede Nagar, Yavatmal. She had been to Yavatmal with her husband on 2.11.2011 to attend the marriage of daughter of his father's elder brother. She states that the incident took place on 4.11.2011.On that day, she had been to the house of Akbar Bano Mehmood Khan, his grandmother for taking meals along with her husband. They took meals at 7.00 p.m. At 8.00 to 8.15 p.m. she and her husband proceeded on foot towards Tayede Nagar. She saw that five persons were assaulting to a Scooter rider with Swords and Knives. She saw that the Scooter rider fell down and the accused ran away. She went near the Scooter rider and found that he was known to her. His name was Irfan Khan Rashid Khan and he was residing near her house. Thereafter, Rizwan Khan and Zamir Khan came there and they went towards their house. She further states that the police vehicle came there.
9. In her cross-examination, Sofiya Shaheen (PW-2) clearly admits that her father was not having elder brother and he was the eldest amongst them. As such, the very purpose for which she says ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 11 apeal245.15.odt that she had come to Yavatmal casts serious doubt. She admits that she has not handed over the Invitation Card to Police. The following admissions in her cross-examination would totally shatter her testimony.
" On 4.11.11 and 5.11.11 police were visiting Tayede Nagar. I was knowing it because my house is near it. It is true that in the night of 4.11.11 and 5.11.11 police had made inquiry with me and I stated to police what I was knowing and police recorded it. It is true that on 6.11.11 police had come to me in the evening. It is true that at that time police told me that they require one witness to depose about the incident before the Court. It is true that on 6.11.11 I told the police that I am ready to become the eye witness of the incident. It is true that accordingly my statement was prepared as eye witness. It is true that as per the statement dated 6.11.11, I deposed in the court. It is true that I done my duty as a neighbour. "
10. There is another angle. According to this witness Sofiya Shaheen (PW-2), out of five accused, three were armed with Swords and one was armed with a big knife and the fifth appellant was armed with another knife. Dr.Sachin Janbaji Gadge (PW-3), who was ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 12 apeal245.15.odt working as an Assistant Professor, Department of Forensic Medicine, V.N.G.M.C., Yavatmal on the day of incident, in his evidence below Exh.80, states that on examination of the deceased, he had found the following external injuries :
" 1) Stab wound over right side of the back, placed obliquely downwards towards right side, margins, clean cut and both angles acute of size 9 cm. X 2 cm. X cavity deep and on approximation 9.4 cm. In length and fusiform in shape. Stab wound is 17 cm. from right anterior superior iliac spin 4 cm. from spine of L4 vertebra and 94 cm. from right malleolus. "
Tract of the stab wound :
Skin subcutaneous tissue - muscles of the back - abdominal cavity (retroperitonel) - transecting inferior venacava and abdominal aorta at the level of L4 vertebra. Direction of the stab wound - Medially and forwards.
2) Incised wound over left thumb medially of size 3 cm. x 1 cm. x subcutaneous deep. Margins, clean cut, with tailing upwards on approximation 3.2 cm.
3) Incised wound over left hand dorsally of size 3 cm. X 0.5 cm. x subcutaneous deep. Obliquely downwards ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 13 apeal245.15.odt laterally with margins, clean cut and tailing medially on approximation 3.1 cm.
4) Incised wound over left thenar aspect of hand (palm) extending to dorsal aspect of thumb of size 12 cm. X 2 cm. x muscle deep. On approximation 12.5 cm. Margins, clean cut and tailing both ventrally and dorsally.
All injuries have margins, blood infiltrated. All the injuries were ante mortem and fresh.
11. If the version of the eye witnesses is to be believed, then there ought to have been multiple injuries on the person of the deceased. We find that the ocular testimonies of the so-called eye witnesses are also falsified by the medical evidence. Apart from that, the only evidence as against appellant no.3 Afsar Ali Chirag Ali and appellant no.5 Syed Abrar Syed Rauf is very memorandum under Section 27 of the Indian Evidence Act and consequent recovery of weapons and clothes used by the appellants while committing the crime. It is to be noted that these recoveries are from the houses of the aforesaid accused which are inhabited by other members of the house. It is not the case that the said places were distinctly within the knowledge of the said accused persons alone. Apart from that, the ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 14 apeal245.15.odt fact that needs to be noted is that Imtiyazkhan Ayubkhan Pathan (PW-5) is the panch to almost all the panchanamas including memorandum u/s.27 and consequent recoveries thereto. He has clearly admitted in his cross-examination that deceased Irfan was his real cousin. It is also relevant to refer to paragraph 8 of his cross- examination, which reads thus :
" I am daily-wages labour. I used to go for my work at about 10 am. and I return back to home at 5 pm. On 9.11.11 policeman had come to me for calling me. Police Station is on the distance of 2 km. from my house. Police stated me at my house that documents of seizure panchanamas are prepared and I have to go to Police Station for putting signatures. Accordingly, I reached to Police Station and signed the documents. It is correct to say that I signed the papers during 5.30 to 6.30 on that day. "
12. From the aforesaid admission of Imtiyazkhan Ayubkhan Pathan (PW-5), it could clearly be seen that the above memorandum and recoveries are totally farcical in nature.
13. In that view of the matter, we find that the prosecution has utterly failed to prove the case beyond reasonable doubt. The ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 ::: 15 apeal245.15.odt appeal, therefore, deserves to be allowed. Hence, the following order.
// O R D E R // The Criminal Appeal is allowed.
The Judgment and Order of conviction passed by the learned Additional Sessions Judge, Yavatmal are hereby quashed and set aside.
The appellants are acquitted of the offences punishable under Sections 147, 148, 341, 302 r/w. Section 149, 302 r/w. Section 120-B of the Indian Penal Code and under Section 4/25 of the Arms Act.
The appellants shall be set at liberty forthwith, if not required in any other case.
The amount of fine, if any paid, be refunded to the appellants.
JUDGE JUDGE
[jaiswal]
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