Bombay High Court
Gazi Saduddin @ Pappu vs The State Of Maharashtra on 23 October, 2012
Bench: Shrihari P. Davare
(1) Cri. Appeal No. 66 / 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Appeal No. 66 of 2005
1. Gazi Saduddin @ Pappu s/o. Gazi Zaheer,
Age : 26 years,
Occupation : Social Worker,
R/o. H.No. 3-8-52, Manzurpura,
Aurangabad.
2. Syed Ishtiyaq @ Baba s/o. Syed Jamal,
Age : 28 years, in private service,
R/o. Murgi Nalah, Manzurpura,
Aurangabad.
3. Hussain Chaus s/o. Munna Chaus,
Age : 23 years, .. Appellants
R/o. Manzurpura, (Original accused
Aurangabad. nos.1, 2 & 3)
versus
The State of Maharashtra. .. Respondent.
.......................
Mr. H.F. Pawar, Advocate, holding for
Mr. A.H. Kapadia, Advocate, for the appellants.
Mr. D.V. Tele, Additional Public Prosecutor, for
the respondent.
........................
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(2) Cri. Appeal No. 66 / 2005
CORAM : SHRIHARI P. DAVARE, J.
Date of reserving the
judgment : 16th October 2012.
Date of pronouncing the
judgment : 23rd October 2012.
JUDGMENT :
1. Heard Adv. Mr. H.F. Pawar, holding for Adv. Mr. A.H.
Kapadia, for the appellants, and learned APP Mr. D.V. Tele for the
respondent.
2. Challenge in this appeal is to the conviction and sentence
imposed upon the appellants i.e. original accused nos.1 to 3 (hereinafter
referred to as per their original status i.e. 'accused'). It appears that the
accused nos.1 to 3 faced the trial along with other co-accused in Sessions
Case No. 12/2004. However, learned IVth Ad hoc Additional Sessions
Judge, Aurangabad, convicted accused nos.1 to 3 i.e. appellants herein, for
the offence punishable under Section 148 of Indian Penal Code, and
sentenced them to suffer rigorous imprisonment for one year each, and to
pay fine of Rs. 500/- each, in default of payment of fine, to suffer further
rigorous imprisonment for three months, and they were also convicted for
offence punishable under Section 307 read with Section 149 of IPC, and
each of them was sentenced to suffer rigorous imprisonment for a term of
five years, and to pay fine of Rs. 2000/- each, in default of payment of
fine, to suffer further rigorous imprisonment for one year, and they were
also convicted for the offence punishable under Section 326 read with
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Section 149 of IPC, and each of them was sentenced to suffer rigorous
imprisonment for a term of three years, and to pay fine of Rs. 1000/-, in
default of payment of fine, to suffer further rigorous imprisonment for six
months, as well as, they were convicted for the offence punishable under
Section 427 read with Section 149 of IPC, and each of them was sentenced
to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-
each, in default of payment of fine, to suffer further rigorous imprisonment
for three months, and substantive sentences were directed to run
concurrently, whereas other co-accused i.e. accused nos.4 to 6 were
acquitted of all the charges levelled against them, by judgment and order
dated 20th January 2005, rendered by the learned IVth Ad hoc Additional
Sessions Judge, Aurangabad. Being aggrieved, accused nos.1 to 3 i.e.
appellants have challenged aforesaid convictions and sentences in the
present appeal.
3. The brief facts which gave rise to the appeal can be
summarized as under :-
(a) Accused no.1, namely, Gazi Saduddin @ Pappu s/o. Gazi Zaheer
was Municipal Corporator at the relevant time, and the injured
complainant is PW 1, namely, Khawaja Iqbaluddin s/o. Khawaja
Shamimuddin. It is alleged that one Muzafaroddin i.e. younger brother of
the complainant Khawaja Iqbaluddin deals in scrap business and in order
to secure tender for the purchase of electrical scrap from Municipal
Corporation, he had sought help of accused no.1. It is also alleged that in
the said context, he had allegedly paid Rs. 25,000/- to accused no.1.
However, the tender could not be materialized in favour of the
(4) Cri. Appeal No. 66 / 2005
complainant's brother. Hence, complainant asked accused no.1 to get back
the said amount. The incident, in question, occurred in the midnight
between 17th February and 18th February 2001 (at about 12.30 a.m.). At
that time, complainant was returning to his house on motorbike from his
friend's house from Lota Karanja, Aurangabad, it struck to him that on the
way, he would contact accused no.1 and ask him to return of Rs. 25,000/-.
Hence, the complainant went to Chelipura and he found accused and some
other persons near Charminar Bakery standing there. Hence, the
complainant asked accused no.1 to return the amount, on which, verbal
altercation took place between them, which resulted into threats and
thereafter turned into assault on the complainant Khawaja Iqbaluddin. It is
alleged that all the accused in prosecution of their common object,
assaulted the complainant by means of sword, iron bar and sticks.
Accused no.1 is alleged to have given sword blow on the head of the
complainant, whereas accused no.2 is alleged to have given another sword
blow on the right knee of the complainant, whereas accused nos.5 and 6
have given sword blow on the back of the complainant. Moreover,
complainant's motorcycle 'Yamaha' was badly damaged and he was
relieved of cash of Rs. 2,200/- and wrist watch which was possessed by
him. The complainant was badly injured and collapsed. It is also alleged
that the said incident was witnesses by PW 3 Mohd. Abdul Khaled, and
PW 4 Syed Wasef. Thereafter, the complainant rushed to the Government
Medical College and Hospital, Aurangabad.
(b) PW 5 Dr. Sureshchandra Chavan was working as Casualty Medical
Officer at the aforesaid hospital at the relevant time and at about 1.30 a.m.
complainant was brought in the said hospital by his relative. PW 5 Dr.
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Sureshchandra Chavan examined him and found that the said patient had
sustained fractures. Accordingly, he noted the injuries and registered the
MLC (Exhibit 31). The Police personnel were informed and Head
Constable Rajput recorded the FIR and registered the offence against the
accused persons under CR No. 36/2001 and investigation was entrusted to
PW 6 API Shankar Kale, who was on duty at City Chowk Police Station,
Aurangabad, at the relevant time, and he received phone call from duty
officer on 18-2-2001 about the incident which occurred on the earlier
night. Accused nos.1 to 3 were brought to the said Police Station by
Police and PW 6 API Kale arrested them. Thereafter, he went to the spot
and prepared the spot panchanama Exhibit 19. During the investigation,
accused no.4 Zubair Khan made voluntary statement and memorandum
under panchanama Exhibit 20 was prepared and one sword, iron bar and
wooden plank were recovered and the same were seized under recovery
panchanama Exhibit 21 at his instance from Charminar Bakery. He also
recorded statements of some witnesses. On 20-2-2001, blood stained
clothes were seized from the complainant in Ghati Hospital in the presence
of panchas under panchanama Exhibit 22, as well as blood stained clothes
worn by accused were also seized under panchanama Exhibit 23. PW 6
API Kale further recorded statements of witnesses. Accused no.1 came to
be arrested on 23rd February 2001. Moreover, blood samples of accused
nos.1 to 4 were collected, as well as blood sample of the complainant was
collected.
(c) PW 7 P.I. Vikram Karkod was attached to City Chowk Police
Station at the relevant time and he took out the further investigation of the
aforesaid CR on 8-3-2001. He sent Muddemal articles to Chemical
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Analyser along with forwarding letter Exhibit 41. On 17-4-2001, he
arrested accused no.6, namely, Hussain Amudi Chaus. The Chemical
Analyser's report of the seized articles were received which are produced
at Exhibits 42 to 48. He also collected injury certificates from Medical
Officer, Ghati Hospital, Aurangabad.
4. Accordingly, after completion of investigation, charge sheet
was filed before learned 7th Judicial Magistrate (F.C.), Aurangabad.
However, since the charges levelled against the accused were exclusively
triable by the Court of Sessions, learned Judicial Magistrate (F.C.)
committed the said case to the Court of Sessions, Aurangabad.
5. Accordingly, learned IVth Ad hoc Assistant Sessions Judge,
Aurangabad, framed the charge against the accused persons on 20-8-2004
(Exhibit 4). However, the accused pleaded not guilty to the said charges
and claimed to be tried. To substantiate the charges levelled against the
accused, prosecution examined as many as eight witnesses as mentioned
below :
PW 1 Khawaja Iqbaluddin s/o. Complainant and injured
Khawaja Shamimuddin
PW 2 Muniroddin s/o. Sk. Panch to the spot panchanama and
Aminuddin recovery of cloth panchanamas
PW 3 Mohd. Abdul Khaled s/o. Alleged eye witness
Md. Abdul Khaliq
PW 4 Syed Wasef s/o. Syed Alleged eye witness
Ahmed
(7) Cri. Appeal No. 66 / 2005
PW 5 Dr. Sureshchandra Casualty Medical Officer at
Gambhirrao Chavan Government Medical College &
Hospital, Aurangabad, who
examined the complainant / injured.
PW 6 Shankar Bhausaheb Kale, Investigating Officer - 1
A.P.I.
PW 7 Vikram s/o. Narayan Investigating Officer - 2
Karkod, P.I.
PW 8 Dr. Anil s/o. Baburao Medical Officer in Govt. Medical
Dhule. College & Hospital, Aurangabad,
who also examined and attended the
ig injured complainant in the ward in
the hospital, and proved X-ray
plates and discharge card.
6. The defence of the accused is of total denial. It was suggested
that uncle of the complainant was Ex-Corporator and he was on cross terms
with accused no.1, which is one of the reasons why accused were involved.
Another line of defence is that at the relevant time, work of digging and
construction of drainage line was in progress near Charminar Bakery, and
on the day in question, the complainant stated to be under the influence of
liquor and was alleged to have fallen in the ditch with his speedy
motorcycle, and thereby he sustained injuries and his motorcycle was
damaged and since he had fallen near the house of accused no.1, all the
accused were implicated. The defence examined one defence witness in
that context, namely, DW 1 Babulal s/o. Kachruji Gaikwad, who was
serving as Zonal / Junior Engineer in Zone-I of Aurangabad Municipal
Corporation, to substantiate the said defence.
(8) Cri. Appeal No. 66 / 2005
7. After considering the ocular and documentary evidence on
record, learned trial court convicted and sentenced accused nos.1 to 3 for
the offences mentioned herein above, whereas acquitted accused nos.4 to 6.
Being aggrieved and dissatisfied by the said convictions and sentences,
accused nos.1 to 3 i.e. appellants herein have preferred present appeal
challenging the said convictions and sentences, and prayed for quashment
thereof, and consequently, prayed for their acquittal for the offences with
which they were charged and convicted.
8.
On the aforesaid background, Adv. Mr. H.F. Pawar, holding for
Adv. Mr. A.H. Kapadia, for the appellants / accused, canvassed that the
prosecution case is mainly dependent upon the testimonies of three
witnesses i.e. complainant PW 1 Khawaja Iqbaluddin and the alleged eye
witnesses, namely, PW 3 Mohd. Abdul Khaled and PW 4 Syed Wasef, and
as regards medical evidence, it is dependent upon the testimonies of PW 5
Dr. Sureshchandra Chavan and PW 8 Dr. Anil Dhule, and in so far as
recovery of articles is concerned, it is dependent upon the deposition of PW
2 Muniroddin i.e. Panch witness. He submitted that although there is direct
evidence of the testimonies of complainant and two other alleged eye
witnesses, motive is pivotal in the present case considering peculiar facts of
this case, but the prosecution failed to prove the motive behind occurrence
of the incident since there was no reason to PW 1 Khawaja Iqbaluddin,
complainant, to go in front of house of the accused i.e. the place of incident
to demand Rs. 25,000/- at the wee hours i.e. at about 12.30 a.m. on
18-2-2001, that too, after consuming liquor, and the said conduct of PW 1
Khawaja Iqbaluddin, complainant, appears to be unnatural. He further
(9) Cri. Appeal No. 66 / 2005
submitted that the testimonies of alleged eye witnesses i.e. PW 3 Mohd.
Abdul Khaled and PW 4 Syed Wasef are also inconsistent with each other,
as well as, inconsistent with the testimony of PW 1 Khawaja Iqbaluddin,
complainant, and pertinently there was no disclosure of the incident by PW
3 Mohd. Abdul Khaled and PW 4 Syed Wasef to Chelipura Police Station
which was situated very nearby to the place of occurrence of the incident, as
relvealed in the evidence. Even they crossed over the said Police Station, as
surfaced in the evidence, but still they did not inform occurrence of the
incident to the Police personnel immediately. Moreover, he further
canvassed that it is also material to note that PW 3 Mohd. Abdul Khaled and
PW 4 Syed Wasef did not make any hue and cry after allegedly witnessing
the said incident and even they did not come forward to help the victim, and
also they did not try to take the victim to the hospital, as well as, they did
not report about occurrence of the incident to the family members of the
victim PW 1 Khawaja Iqbaluddin, though they were well acquainted with
him. In fact, it has come in the evidence that PW 3 Mohd. Abdul Khaled
and PW 4 Syed Wasef fled away from the place of incident, and accordingly
he submitted that the conduct of PW 3 Mohd. Abdul Khaled and PW 4 Syed
Wasef is improbable, inconsistent and unnatural, and therefore, their
testimonies cannot be construed as reliable and trustworthy to connect the
appellants / accused with the alleged crime.
9. In so far as recovery of articles is concerned, he submitted that
the prosecution relied upon the testimony of PW 2 Muniroddin, who was
the person used by the prosecution for all the Panchanamas including spot
Panchanama, and Panchanamas of recovery of clothes and other articles,
and also discovery of sword at the instance of accused no.4 Zubair Khan,
(10) Cri. Appeal No. 66 / 2005
and it reveals from his testimony that he is a habitual Panch having criminal
antecedents, and even the learned trial court has not believed the said
recovery of articles and observed that the articles were produced by
Investigating Officer who has not identified accused no.4 Zubair Khan from
whom allegedly recovery of sword was made. Thus, the said recovery of
articles in the presence of Panch witness PW 2 Muniroddin is doubtful and
since it has not been believed by the learned trial court, that cannot be
construed as incriminating evidence against the accused. Accordingly,
learned Advocate for the appellants / accused relied upon the judicial
pronouncement of Apex Court in the case of Salveraj Vs. The State of
Tamilnadu, reported at AIR 1976 SC 1970, wherein it is held that in murder
trial, while appreciating the evidence, when there are improbabilities in
story put forward by alleged eye witnesses and even their testimonies also
have not been corroborated, and further evidence regarding recovery of
knife from the accused also found to be unreliable, the conviction against
the accused was not sustainable as prosecution evidence was wholly
unsatisfactory.
10. Learned Advocate for the appellants / accused also invited my
attention to the fact that the names of two accused i.e. accused no.3 was
Hussain Chaus and accused no.6 was Hussain Amudi Chaus i.e. identical
name and they were unknown to the witnesses, still investigating agency
has not conducted test identification parade in respect of said two accused
persons to connect them with the alleged crime, and the said inaction on the
part of the investigating agency hampers case of the prosecution, more
particularly, to connect accused no.3 Hussain Chaus i.e. convicted accused
in the alleged crime. Moreover, it is also submitted that no specific role has
(11) Cri. Appeal No. 66 / 2005
been attributed to accused no.3 Hussain Chaus during occurrence of the
incident, and further there are general and omnibus allegations which do not
connect accused no.3 Hussain Chaus with the alleged crime. In so far as
accused no.2 Syed Ishtiyaq @ Baba is concerned, it is submitted that his
name differs from driving license, but still no test identification parade has
been conducted in respect of said accused no.2 Syed Ishtiyaq @ Baba to
connect him with the alleged crime. Accordingly, he submitted that there is
ambiguity in the name of accused no.2 Syed Ishtiyaq and identity of
accused no.2 is doubtful.
11.
In so far as medical evidence is concerned, learned Advocate
for the appellants / accused submitted that the injury certificate of PW 1
Khawaja Iqbaluddin i.e. complainant is silent regarding injuries on the head
of the complainant and even PW 8 Dr. Anil Dhule stated in his deposition
that he never examined the victim, and accordingly, the injuries sustained by
the victim PW 1 Khawaja Iqbaluddin, complainant, allegedly attributed to
accused no.1 Gazi Saduddin are not in tune with each other. Pertinently,
PW 5 Dr. Sureshchandra Chavan stated in his deposition that the injuries
sustained by PW 1 Khawaja Iqbaluddin i.e. victim are possible due to fall in
ditch from motorcycle in high speed. Learned Advocate for the appellants /
accused further submitted that the MLC number pertaining to the victim
differs since injury certificate Exhibit 31 discloses MLC No. as
'1834/2000', whereas PW 5 Dr. Sureshchandra Chavan has stated that he
noted injuries at MLC No. '1833', dated 18-2-2001, and said MLC number
was referred as '833' by PW 8 Dr. Anil Dhule, and accordingly, there are
discrepancies in the said medical evidence. Thus, it is submitted that the
medical evidence is not in consonance with ocular evidence.
(12) Cri. Appeal No. 66 / 2005
12. Besides, according to the learned Advocate for the appellants /
accused there is delay in lodging the FIR since the alleged incident occurred
at about 12.30 a.m., but the FIR came to be lodged at about 6.00 a.m., and
the prosecution has not explained the said delay of about six hours
convincingly. Moreover, it is canvassed that the Head Constable Rajput,
who allegedly recorded the FIR, has not been examined by the prosecution
for the reasons best known to the prosecution, and the said inaction on the
part of prosecution sustains fatal blow to the case of the prosecution.
Moreover, it is submitted that it has nowhere come in the evidence that how
the investigating agency got knowledge about occurrence of the incident,
and there is no clarification in that respect in the prosecution evidence.
Apart from that, it is submitted that the defence witness, namely, Babulal
Gaikwad, examined by the accused, who was working as Junior Engineer
on the site of occurrence of incident, has strengthened the defence of the
accused and his testimony has not been demolished in the cross
examination. Accordingly, learned Advocate for the appellants / accused
argued that considering the inconsistencies, deformities and discrepancies in
the prosecution case, the appellants / accused deserve benefit of doubt, and
hence, urged that the present appeal be allowed, and they be acquitted for
the offences with which they are convicted and sentenced by the learned
trial court.
13. Per contra, learned APP Mr. D.V. Tele for the respondent
countered the said arguments and opposed the present appeal vehemently,
and submitted that there is direct evidence of PW 1 Khawaja Iqbaluddin,
complainant, and eye witnesses, namely, PW 3 Mohd. Abdul Khaled and
(13) Cri. Appeal No. 66 / 2005
PW 4 Syed Wasef, against the accused and their testimonies implicitly
connects the accused with the crime. Moreover, he also submitted that the
ocular evidence and the medical evidence are in consonance with each other
and although recovery of articles has not been believed by the learned trial
court, direct evidence of prosecution witnesses i.e. PW 1 Khawaja
Iqbaluddin, complainant, and PW 3 Mohd. Abdul Khaled and PW 4 Syed
Wasef, eye witnesses, along with the medical evidence, establishes the
nexus between accused and the crime. He further submitted that the learned
trial court has scrutinized and analyzed the evidence in proper perspective
and thereafter convicted and sentenced the accused rightly, and there is no
glaring mistake in the impugned judgment and order rendered by the
learned trial court, and hence, no interference therein is called for in the
present appeal. Accordingly, learned APP urged that the present appeal
bears no substance and the same is devoid of any merits, and therefore,
same be dismissed.
14. In order to deal with the rival submissions advanced by the
learned Counsel for the parties, it is necessary to advert to the material
evidence adduced / produced by the prosecution, and in the said context,
coming to the deposition of the complainant PW 1 Khawaja Iqbaluddin, he
has stated that Khawaja Muzafaruddin was his brother who used to deal in
the business of scrap, and he also stted that the incident took place in the
night between 17th and 18th February 2001, when he had gone to
Lotakaranja area from his house to see his friend. While he started
returning to his home at about 12.30 a.m., he was passing through
Chelipura, and at that time, he remembered that his brother Khawaja
Muzafaruddin had paid Rs. 25,000/- to accused no.1 as speed money for the
(14) Cri. Appeal No. 66 / 2005
sanction of tender of scrap, as accused no.1 was Corporator, but the tender
could not be materialized, and he saw accused nos. 1, 2, 5 and 6 with their
friends standing near a bakery at Chelipura, and therefore, he went near
them and demanded back amount of Rs. 25,000/- from accused no.1 which
his brother had paid to him. Thereupon, accused no.1 said to him, that
before that he had asked him about money on 2 - 3 occasions, and therefore,
he uttered that "Abhi Tujhe Dekhna Padega". Accordingly, accused no.1
gave abuses to him, and accused no.2 brought a sword from the bakery and
delivered its blow near his right knee. Moreover, accused no.1 took another
sword and dealt a blow on his head. So also, accused nos.5 and 6 were
holding swords and they dealt blows thereof on his back. Besides, friends
of accused dealt blows of sticks and iron bar to him, and although he does
not know their names, he stated that he could identify them, and pointed out
towards accused nos.3 and 4 (i.e. acquitted accused). He further stated that
because of the said assault, he sustained fractures on his hands and legs and
his head was spinning. According to him, PW 3 Mohd. Abdul Khaled and
PW 4 Syed Wasef witnessed occurrence of the said incident since they were
present there. Moreover, he stated that he had gone there on his motorcycle
and the same was also damaged and its head light, indicators and petrol tank
were also damaged. Moreover, his wrist watch and cash of Rs. 2,200/- were
also removed by the accused during the said incident. Thereafter, PW 1
Khawaja Iqbaluddin was taken to Ghati Hospital and was admitted there
and Police personnel recorded his statement Exhibit 17. He identified the
swords, iron bar and sticks which were used in the said assault and also
identified the accused.
15. During cross examination, he admitted that he does not possess
(15) Cri. Appeal No. 66 / 2005
any written proof of payment of Rs. 25,000/- to accused no.1 and that
amount was not paid in his presence. He stated that the incident lasted for
about 15 - 20 minutes. Moreover, according to him, Chelipura Police
Chowki is situated at about 200 to 250 feet from the bakery. The bakery
was open even in the night and there are shops opposite to the bakery, as
well as there are houses of people behind the bakery. He further stated that
he shouted when he was assaulted but no one gathered there. He could not
give any specific identification mark on the Muddemal articles shown to
him. He admitted that Khawaja Naseruddin is his maternal uncle who is a
former Corporator. The accused put their defence to him, that because of
the political rivalry, his maternal uncle and accused no.1, he has filed the
present case falsely on the say of said maternal uncle, but the same was
denied by him.
16. He has further stated in his cross examination that he knows
Illiyasuddin s/o. Jalaluddin, but does not know Syed Ishtiyakh s/o. Syed
Jamal styled as accused no.2. He has further stated that he referred to one
person, namely, Husain, in his Police statement, but there are two accused
by name, Husain. Moreover, neither he was knowing them nor heard their
names before the incident. However, on the date of incident he was
knowing name of one of them. Moreover, at the time incident, he did not
know name of his father or from where he was hailing, and he only know
his name. Moreover, before the incident, he had no occasion to meet either
of two Husain i.e. accused nos.3 and 6. He further stated that Police have
not held any identification parade about accused Husain. Even today also,
he is not aware about names of fathers of accused nos.3 and 6. Further he
admitted that there was no special reason why he decided to meet accused
(16) Cri. Appeal No. 66 / 2005
no.1 at such odd hours in the night although he met him two days before the
incident. As regards occurrence of the incident, he stated that after parking
the motorcycle, he went near accused no.1 and talked to him for about 2 - 3
minutes and there were total four swords and he was assaulted by all of
them. Besides that, 10 - 12 other persons also assaulted him by sticks and
iron bars for about 10 - 15 minutes, and he was given blows of swords on
the elbow joint and back, and he sustained 8 - 10 injuries by sword, as well
as, he sustained injuries due to blows of iron bar and stick and he was
bleeding because of the sword injuries on head, back and limbs. He has
categorically stated that he had sustained head injury which was bandaged
by the Doctor. During assault, he was shouting. The accused put their
defence to him, that construction work of drainage in front of bakery was in
progress and he was driving motorcycle under the influence of liquor with
great speed and fell down because of loss of balance and sustained injuries,
but the same was denied by him. It was also suggested to him that he was a
worker of the candidate contesting election against accused no.1, and
therefore, he has been implicated in this case falsely. As regards his
antecedents, he admitted that he was prosecuted in a matrimonial matter he
was in jail for 7 - 8 days in that matter at the instance of CR registered in
Ambad Police Station. Besides, he stated that a case about quarrel was filed
filed against him, but was not aware whether he was co-accused therein. As
regards removal of his cash and wrist watch, he stated before Police that the
accused had removed his cash of Rs. 2,200/- and wrist watch.
17. The substance of the testimony of the complainant PW 1
Khawaja Iqbaluddin is that the incident occurred during the intervening
night between 17th and 18th February 2001, and while returning back from
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his friend's house at about 12.30 a.m. on motorcycle, he remembered that
his brother had given amount of Rs. 25,000/- to accused no.1 as speedy
money for the grant of tender, but which could not be materialized, and he
saw accused nos.1, 2, 5 and 6 with their friends standing near bakery at
Chelipura, and therefore, he went there and demanded amount of Rs.
25,000/- from accused no.1 which his brother had paid to him, and
thereupon the aforesaid incident occurred, and accused no.2 brought sword
from bakery and accused nos.1, 2, 5 and 6 assaulted him by blows of
swords, and their friends assaulted him by sticks and iron bars which
continued for about 15 to 20 minutes and due to said assault, he sustained
bleeding injuries on his head and other limbs of the body and fractures and
his head was spinning, and his clothes were also having blood stains and
even his cash of Rs. 2,200/- and wrist watch was removed and somebody
removed him to Ghati Hospital for medical treatment. Police personnel
recorded his statement i.e. FIR Exhibit 17. However, he does not possess
any proof of payment of Rs. 25,000/- to accused no.1. Moreover, although
the bakery at Chelipura was open and although there were houses and shops
and although he shouted due to assault upon him, nobody gathered there.
Moreover, it is pertinent to note that although PW 3 Mohd. Abdul Khaled
and PW 4 Syed Wasef were present there and witnessed occurrence of the
incident, they also did not intervene and did not make any hue and cry and
did not alarm the nearby people, which creates suspicion about the case put
forth by the prosecution. Moreover, there was no reason for PW 1 Khawaja
Iqbaluddin to go to accused no.1 at the wee hours i.e. at 12.30 a.m. for
demanding amount of Rs. 25,000/- which were allegedly given by his
brother to accused no.1, although he had met accused no.1 only about two
days prior to the incident, and there is no convincing explanation in the
(18) Cri. Appeal No. 66 / 2005
testimony of PW 1 Khawaja Iqbaluddin in that respect. Moreover, PW 1
Khawaja Iqbaluddin could not give any specific identification marks on the
aforesaid Muddemal articles i.e. swords, sticks and iron bars. Besides, as
regards accused nos.3 and 6, thir names are Husain and he has categorically
stated that he did not know their names or even he did not know them prior
to occurrence of the incident, as well as, he did not know their father's
names, but still prosecution has not conducted any test identification parade
for identification of those accused, more particularly, accused no.3, which
creates suspicion about identification of accused no.3. Moreover, according
to PW 1 Khawaja Iqbaluddin, the incident lasted for about 10 - 15 minutes,
and he was given blows of swords on various parts of the body including
head, as well as, he was given blows of iron bars and sticks on various parts
of the body, such as, elbows, legs, back, etc., and sustained bleeding injuries
on head, back and other limbs of the body, but the medical evidence
adduced through PW 5 Dr. Sureshchandra Chavan and PW 8 Dr. Anil Dhule
is not in consonance with the said allegations, since PW 5 Dr.
Sureshchandra Chavan has categorically stated that PW 1 Khawaja
Iqbaluddin sustained merely three contusions i.e. contusion on both hands,
contusion on both legs and contusion on both sides of lumber area and there
was a spine injury and not beyond that, and pertinently there was no head
injury at all, and hence, the incident narrated by PW 1 Khaja Iqbaluddin
comes under the cloud of suspicion, and consequently, defence put forth by
the accused appears to be probable.
18. That takes me to the deposition of PW 3, namely, Mohd. Abdul
Khaled, i.e. alleged eye witness, who stated that he runs a fabrication unit at
Baijipura, and he knows the complainant Iqbaluddin i.e. PW 1, and also
(19) Cri. Appeal No. 66 / 2005
knows the accused. He stated that at about 12.15 a.m. in the night of
incident, he proceeded towards home after completing the work from
Baijipura and came near Chaminar Bakery and saw about 10 - 12 persons in
front of said Bakery and a motorcycle 'Yamaha' was lying on the road.
Accused nos.1, 2 and 6 were holding swords, but he did not know names of
the others who were holding iron bars and sticks. He witnessed that
accused no.1 dealt a blow of sword on the head of PW 1 Khawaja
Iqbaluddin i.e. complainant, whereas accused no.2 delivered a blow of
sword on his right leg. Moreover, accused no.1 stated that "Aaj to isko jan
se khatam kardenge". Accordingly, accused nos.5 and 6 dealt blows on the
back of PW 1 Khawaja Iqbaluddin. Accused no.1 asserted others saying
"Aaj isko jan se mardo". Thereupon, others assaulted PW 1 Khawaja
Iqbaluddin on his hand, legs and back. Thereupon, he was bleeding
profusely and fell on the ground. He identified the Muddemal articles 1 to 3
before the court. In cross examination omission was taken out in respect of
lying of motorcycle on the road, as well as, there is omission in respect of
utterances made by accused no.1 on two occasions, stating others to funish
PW 1 Khawaja Iqbaluddin, and also omission in respect of profused
bleeding by PW 1 Khawaja Iqbaluddin and his collapse on the ground, and
the same are omissions in his Police statement and improvement in his
testimony. He also stated that the fight was going before he reached
Charminar Bakery and it went for about 10 - 12 minutes after he went there.
There are shops and residential houses in front of Charminar Bakery.
Chelipura Police Chowki is near from there. Moreover, there is rickshaw
stand near Chelipura Chowki. He stated that he is not aware whether there
is a Pan shop and Bhelpuri shop near the Bakery. However, he admitted
that bakery was open in the night, but was not aware about number of
(20) Cri. Appeal No. 66 / 2005
workers in the bakery. He categorically stated that PW 1 Khawaja
Iqbaluddin shouted loudly. As regards acquaintance with PW 1 Khawaja
Iqbaluddin, he stated that he used to reside in Lotakaranja area earlier and
he knows him since then. He denied the suggestion that he had thick
relations with him and also denied that he gave false evidence because of
the thick relations, and further denied that no such incident took place.
However, he admitted that he knows PW 1 Khawaja Iqbaluddin since last
10 - 12 years, and they were co-accused in one case. As regards occurrence
of the incident, he stated that he witnessed the said incident from a distance
of about 12 feet. However, he did not go to the rescue of PW 1 Khawaja
Iqbaluddin and reason given therefor is that he was afraid. He also stated
that he did not proceed on his bicycle but stayed there. Thereafter, he went
home directly but did not inform the Police about the incident while going
to the house, nor he went to the house of PW 1 Khawaja Iqbaluddin to
inform the family members about the incident. He further stated that PW 1
Khawaja Iqbaluddin was shouting for about 10 - 15 minutes but no
Policeman came there from Police Chowki although Chelipura Police
Chowki is situated nearby. He further stated that he knows accused no.1
residing opposite Charminar Bakery. He also stated that he had gone to
Ghati Hospital but he did not give intimation to the Police Chowki in Ghati
Hospital, nor he provided description of Muddemal weapons to the Police.
According to him, he had not seen Muddemal weapons before the incident
and he saw the weapons after the incident for the first time, nor he was able
to give specific mark of identification of the said weapons. However, he
stated that sword was about 3 feet in length. He further stated that he did
not shout when the incident was going on.
(21) Cri. Appeal No. 66 / 2005
19. The testimony of PW 3 Mohd. Abdul Khaled is important in
respect of respective roles attributed to accused nos.1 and 2 during
occurrence of the incident, and he alleged that accused no1 gave a blow of
sword on PW 1 Khawaja Iqbaluddin, whereas accused no.2 delivered a
blow of sword on his right leg and accused no.1 made provoking utterances
to the other accused which were allegedly acted upon by the other accused.
Pertinently, he stated that weapons which were used in the said assault could
be identified by him, if they are shown to him, but he stated in the cross
examination that he had not seen Muddemal weapons before the incident
and he saw the said weapons for the first time after the incident, and the said
very admission goes to the root of the matter and creates suspicion whether
he really witnessed accused nos.1 and 2 assaulting PW 1 Khawaja
Iqbaluddin by swords since he was unable to identify the same. Moreover,
the alleged utterances made by accused no.1 provoking others have come
into omission in his Police statement and amounting to improvement in his
testimony, and therefore, no credence can be given to the said utterances
allegedly made by accused no.1. Moreover, there is omission in respect of
profused bleeding sustained by PW 1 Khawaja Iqbaluddin, which also
cannot be ignored. Pertinently, although stated by him, fight was going for
about 10 - 12 minutes, and although there are shops and residential houses
situated in front of said Charminar Bakery nearby place of the incident, and
although Police Chowki was situated nearby, as well as, rickshaw stand was
situated near Chelipura Police Chowki, no independent witness turned to the
spot of the incident. Pertinently, it has come in the evidence that the Bakery
was open during night, but nobody turned up towards the place of
occurrence of the incident, which is not digestible. In the natural course of
events, when there were shops and residential houses and even the Bakery
(22) Cri. Appeal No. 66 / 2005
was open during night time, as well as, since there was auto-rickshaw stand,
if the incident had occurred on the scale, as alleged, nearby persons from the
Bakery, rickshaw stand, shops and houses would have assembled there and
there would have been independent witnesses to the occurrence of the
incident, but so is not the position in the instant case, and hence, the theory
put forth by the prosecution does not appear to be conceivable and
consistent. Besides, it has come in the evidence, that PW 3 Mohd. Abdul
Khaled knew PW 1 Khawaja Iqbaluddin since last 10 - 12 years and even
they were co-accused in one case, and therefore, it is apparent that PW 1
Khawaja Iqbaluddin i.e. injured victim and PW 3 Mohd. Abdul Khaled are
having close relations with each other, and therefore, possibility cannot be
ruled out that he he has come forward to depose in favour of PW 1 Khawaja
Iqbaluddin, the victim. Moreover, he stated that he was witnessing the
incident from a distance of about 12 feet, but still he did not go to rescue
PW 1 Khawaja Iqbaluddin and reason given therefor by him is that he was
afraid. The question arises, when PW 3 Mohd. Abdul Khaled witnessed the
incident from a distance of about 12 feet, as alleged by him, why he did not
raise alarm and why he did not make hue and cry, and did not make alert to
nearby residents and persons present on the rickshaw stand, and even he
admitted that he did not come to rescue PW 1 Khawaja Iqbaluddin, and if he
had frightened, he could have called the nearby residents, but so did not
happen and the conduct of PW 3 Mohd. Abdul Khaled appears to be
inconsistent and improbable. The said proposition is strengthened by the
further evidence of PW 3 Mohd. Abdul Khaled wherein he stated that
although he was shouting for 10 - 15 minutes, no Policeman came from
Chelipura Police Chowki. Moreover, although he had gone to Ghati
Hospital, he did not give information to Police Chowki in Ghati Hospital,
(23) Cri. Appeal No. 66 / 2005
nor he gave description of Muddemal weapons to Police and the said
inaction on the part of PW 3 Mohd. Abdul Khaled also creates suspicion
about his conduct. Moreover, it is material to note that PW 3 Mohd. Abdul
Khaled has not attributed any specific role to accused nos.2 and 3 during
occurrence of the incident, and although specific role has been attributed to
accused no.1 during occurrence of the incident, pertinently, it comes under
the omission, and therefore, no credence can be given to it. Thus,
considering totality of the evidence of PW 3 Mohd. Abdul Khaled, alleged
eye witness, it does not appear to be testimony of eye witness and same
cannot be construed as reliable and trustworthy testimony to connect the
accused with the alleged crime.
20. Coming to the deposition of PW 4 Syed Wasef, another alleged
eye witness, wherein he stated that he knows the accused and also knows
PW 1 Khawaja Iqbaluddin. On 18-2-2001 at about 12.30 in the midnight,
he was proceeding to Rohila Galli via Chelipura by Luna and accused no.1
met him near Charminar Bakery, with whom he was talking, but at that
time, PW 1 Khawaja Iqbaluddin came there on 'Yamaha' motorcycle and
asked accused no.1 about money in respect of the tender of the scrap given
by his brother and demanded back that amount. Thereupon, accused no.1
asked him about which money he was talking about. Thereupon, quarrel
took place between them and accused nos. 2, 3, 4, 5 and 6 were there along
with accused no.1 and they started assaulting PW 1 Khawaja Iqbaluddin.
Accused no.1 was armed with sword and he delivered its blow on the head
of PW 1 Khawaja Iqbaluddin, whereas accused no.2 dealt blow of sword on
the hand of PW 1 Khawaja Iqbaluddin and other accused also assaulted PW
1 Khawaja Iqbaluddin. He further stated that accused no.1 uttered the
(24) Cri. Appeal No. 66 / 2005
provocative sentence that "Maro esko khatam kardenge". PW 1 Khawaja
Iqbaluddin also sustained bleeding injury. He asserted that he would
identify the weapons if they are shown to him, and therefore, Muddemal
articles 1 to 3 were shown to him and he identified the same as the weapons
which were used by the accused at the time incident.
21. In cross examination, he stated that he met accused no.1 at
about 12.30 a.m. and had talk with him for about 10 minutes. At that time,
accused no.2 and accused no.4 were also present there. He also stated that
while he was talking with accused no.1, he was not armed with sword and it
was lying on the road by his side. At that time, there was only one sword.
The incident of assault upon PW 1 Khawaja Iqbaluddin lasted for about 2 to
4 minutes. PW 1 Khawaja Iqbaluddin shouted and during the said shouting,
the accused, he himself, and one Khaled and one Majed were present there.
However, the name of Majed has not been referred anywhere by others.
Charminar Bakery was open but he did not see the employees. He further
stated that he did not see anyone from the nearby locality of the spot when
the incident was going on. He admitted that Chelipura Police Chowki is
nearby to Charminar Bakery. He further stated that he knows PW 1
Khawaja Iqbaluddin from childhood and both were residing in the same
locality during childhood. He admitted that even today also, he had cordial
relations with him. He further stated that PW 1 Khawaja Iqbaluddin is his
bosom friend from childhood. Even he stated that on the day of the
incident, he had no personal work with accused no.1. He also stated that
there were about 2 to 5 houses near Charminar Bakery and road in front of
the said Bakery is having 40 feet width. The defence put suggestion to him
that at that time, construction of drainage by the side of the road was in
(25) Cri. Appeal No. 66 / 2005
progress and there was to and fro movement of people at the time of
incident, but the same was denied by him. He also admitted that he felt that
he should go to the house of PW 1 Khawaja Iqbaluddin and report the
incident, but he did not do so. As regards injuries sustained by PW 1
Khawaja Iqbaluddin, single blow was delivered on the head of PW 1
Khawaja Iqbaluddin and blood was flowing from the wounds on head and
hands of injured PW 1 Khawaja Iqbaluddin. He admitted that he did not
shout for help after seeing the incident. He further stated that Police had not
called him for any identification parade. He further admitted that he has not
tried to save either PW 1 Khawaja Iqbaluddin or remove weapon held by
the accused. According to him, he did not know the person, namely,
Illyasuddin s/o. Syed Jalloddin i.e. accused no.2.
22. At the outset, it is the matter of record that although the
incident occurred during the intervening night of 17th and 18th February
2001, the statement of PW 4 Syed Wasef was recorded on 22nd February
2001 i.e. almost after four days, and prosecution has not given any
convincing explanation in that respect. Keeping in mind the said aspect and
assessing testimony of PW 4 Syed Wasef, he has stated that while
proceeding to Rohila Galli via Chelipura at 12.30 a.m. on 18-2-2001, he met
accused no.1 near Charminar Bakery and talked to him and injured PW 1
Khawaja Iqbaluddin arrived there by Yamaha motorcycle at that time, and
asked accused no.1 about money in respect of the tender and demanded
back the said amount. Thereupon, accused no.1 asked him what money he
was talking about and thereupon quarrel took place between them. Accused
nos.2, 3, 4, 5 and 6 were also present there with accused no.1, who was
armed with sword and gave blow thereof on the head of injured Khawaja
(26) Cri. Appeal No. 66 / 2005
Iqbaluddin, while accused no.2 gave a blow of sword on the hand of said
injured PW 1 Khawaja Iqbaluddin, and other accused also assaulted him,
and accused no.1 instigated the other accused and PW 1 Khawaja
Iqbaluddin sustained bleeding injuries. He further stated that at that time,
PW 3 Mohd. Abdul Khaled was also present there. Pertinently, although
PW 1 Khawaja Iqbaluddin stated in his deposition that sword was taken by
accused no.2 from nearby Bakery, but PW 4 Syed Wasef stated that while he
was talking with accused no.1, he was not holding sword and it was lying
on the road by his side, and both the versions of PW 1 Khawaja Iqbaluddin
and PW 4 Syed Wasef are different in that respect. Moreover, PW 2
Muniroddin stated in his deposition that the incident lasted for about 10 - 15
minutes, whereas PW 4 Syed Wasef has stated that it lasted for about 2 - 4
minutes only, and accordingly, there is discrepancy in respect of span of
time of the incident. Significantly, PW 3 Mohd. Abdul Khaled, alleged eye
witness, has stated in his deposition that there were 10 - 12 persons present
at the time incident, whereas PW 4 Syed Wasef, another alleged eye
witness, stated that he did not see anyone from the nearby locality at the
spot when the incident was going on. Moreover, PW 4 Syed Wasef referred
to one Majed who also was present at the time of occurrence of the incident,
but alleged eye witness PW 3 Mohd. Abdul Khaled and other witness i.e.
injured PW 1 Khawaja Iqbaluddin also did not refer the presence of said
Majed at the time of occurrence of the incident. PW 4 Syed Wasef further
stated that Chelipura Police Chowki was situated near Charminar Bakery,
but still he did not intimate about occurrence of the incident to the Police
personnel at the said Police Chowki. He further stated that he returned to
Yunus Colony from Charminar Bakery area and for that, he was required to
cross over the Police Chowki and one has to cross over Charminar Bakery
(27) Cri. Appeal No. 66 / 2005
and Chelipura Police Chowki on way to Yunus Colony, but still he did not
lodge any report about occurrence of the incident in the said Police Chowki,
and the said conduct appears to be unnatural. Besides, he stated that he
knew PW 1 Khawaja Iqbaluddin from his childhood and they were residing
in the same locality during childhood, and even today, he has cordial terms
with him. Thus, it is apparent that PW 4 Syed Wasef, alleged eye witness,
and injured PW 1 Khawaja Iqbaluddin are close to each other since their
childhood and even presently they are having cordial relations, and
therefore, possibility of supporting PW 1 Khawaja Iqbaluddin by PW 4
Syed Wasef, to implicate the accused in the present case falsely cannot be
ruled out. It is also material to note that PW 4 Syed Wasef neither shouted
for help after seeing the incident, nor he made hue and cry to make alert the
nearby residents, nor he tried to save PW 1 Khawaja Iqbaluddin, nor made
any attempt to disarm the accused but fled away, and the said conduct of
PW 4 Syed Wasef appears to be unnatural and improbable. In the natural
course of events, when PW 4 Syed Wasef was acquainted with PW 1
Khawaja Iqbaluddin and when PW 1 Khawaja Iqbaluddin was allegedly
assaulted by accused persons, one would raise alarm and raise hue and cry
to call nearby residents, and even one would come forward to rescue the
said victim, but so did not happen, and therefore, conduct of PW 4 Syed
Wasef appears to be inconsistent and unnatural.
23. That takes me to the medical evidence of PW 5 Dr.
Sureshchandra Chavan, who stated that he was working as Casualty
Medical Officer at Government College & Hospital, Aurangabad, on
18-2-2001, and at about 1.30 a.m. one Khawaja Iqbaluddin i.e. PW 1 was
brought by his relative, and he examined him. The patient gave history of
(28) Cri. Appeal No. 66 / 2005
assault and informed that he was assaulted in the same night at 1 a.m. On
examination, he found following injuries on the person of PW 1 Khawaja
Iqbaluddin :
1. Contusion over both the hands, left and right,
having fracture of both sides of the bones.
2. Contusion over both legs, right and left, with
fracture of right tibia and fracture of both patella.
3. Contusion over both sides of lumber area.
That was a spine injury.
All the three injuries were found of grievous nature. According to him, they
were caused within six hours by hard and blunt object. The said patient was
treated as indoor patient. He stated that he mentioned major injuries in his
certificate. He also noted these injuries in MLC register vide MLC No.
1833, dated 18-2-2001 (Exhibit 31). He further stated that injuries
mentioned at Exhibit 31 are possible with wooden plank, stick, iron bar and
blunt side of the sword, from the Muddemal articles shown to him. In cross
examination, he stated that he found three major injuries mentioned in
Exhibit 31, but he has no explanation why on 21-2-2001, he did not mention
other injuries in the certificate. He also stated that if a person riding
motorcycle in high speed falls forcefully in a deep ditch, he may sustain
such injuries as are shown in Exhibit 31. He further stated that Exhibit 31
bears MLC No. 1834. However, he volunteered that it was wrongly
mentioned. He also stated that in the MLC register, it is written at the
bottom that the patient was smelling of alcohol, however, his blood sample
was not collected. He further stated that he would not hesitate to mention
additional injuries in Exhibit 31, if they were found in case papers. He also
(29) Cri. Appeal No. 66 / 2005
stated that injuries are described as grievous because of fractures. He also
stated that he did not see any head injury and even patient did not tell him
about such injury, as well as, he did not find any head injury on the patient
from his case papers at the time issuance of certificate. He further stated
that if a person while walking falls in a Nala, above injuries are not
possible. He did not find any cut injuries on the person of patient.
24. According to PW 5 Dr. Sureshchandra Chavan, he found only
three major injuries on the person of the victim PW 1 Khawaja Iqbaluddin
which are in the form of contusions with fractures of hands and legs which
were noted in MLC No. 1833 on 18-2-2001, but he referred the said MLC
as 1834, but volunteered that it was mentioned wrongly. However, the
injuries disclosed in Exhibit 31, as stated by PW 5 Dr. Sureshchandra
Chavan indicate only three major injuries on the person of victim PW 1
Khawaja Iqbaluddin, but the ocular evidence of PW 1 Khawaja Iqbaluddin
and other alleged eye witnesses PW 3 Mohd. Abdul Khaled and PW 4 Syed
Wasef discloses that the injured was attacked by the accused persons by
swords, iron bars and sticks, and the incident of assault allegedly continued
for about 10 - 15 minutes, which indicates that the victim must have
sustained multiple injuries and even ocular evidence indicates that he
sustained bleeding injuries, but the medical evidence of PW 5 Dr.
Sureshchandra Chavan and injuries mentioned by him after examination did
not co-relate and correspond with each other. Moreover, there is specific
allegation in the ocular evidence of witnesses that PW 1 Khawaja
Iqbaluddin sustained head injury, but PW 5 Dr. Sureshchandra Chavan has
categorically stated that PW 1 Khawaja Iqbaluddin did not see any head
injury and even patient did not tell him about any such injury and even he
(30) Cri. Appeal No. 66 / 2005
did not find from case papers any head injury on the person of patient at the
time of issuance of certificate, and accordingly, medical evidence does not
support the ocular evidence, and more particularly, about the assault by
accused no.1 on the head of the victim by sword even by blunt side thereof
since there was no head injury sustained by PW 1 Khawaja Iqbaluddin.
There is discrepancy in the MLC number since he stated number as 1833 in
his examination in chief, but referred the said number as 1834 in the cross
examination, but volunteered that it was wrongly mentioned. However,
pertinently, PW 8 Dr. Anil Dhule referred to MLC No. as 833 only and the
said discrepancy also has not been explained by the prosecution
convincingly.
Moreover, PW 5 Dr. Sureshchandra Chavan also
probabalised the defence of the accused stating that if a person riding
motorcycle in high speed falls forcefully in deep ditch, he may sustain such
injuries as are shown in Exhibit 31.
25. Coming to the testimony of PW 8 Dr. Anil Dhule, who was
attached to Ghati Hospital on 18-2-2001, stated that on that day, PW 1
Khawaja Iqbaluddin was admitted in Ghati Hospital and he examined him
and his X-rays were taken and it was found that left ulna was fractured.
Besides, he found a contused lacerated would on his scalp and another CLW
on right knee. He produced his case papers and reports. However, he
admitted in the cross examination that identification mark of the patient
examined is not mentioned either in discharge card or case papers.
Moreover, there is no mention of CLW on scalp. He further stated that at
the top of Exhibit 53 i.e. medical case papers, page 1, the MLC number
given is 833. He categorically stated that the said case papers and discharge
card have no concern with MLC No. 1834, and discharge card Exhibit 52 is
(31) Cri. Appeal No. 66 / 2005
in respect of MLC No. 1833, whereas X-ray plate Exhibit 54 is in respect of
MLC No. 833. In cross examination, he stated that fracture was not
compound in the present case. He further stated that he does not agree with
the Modi's proposition that a fracture is not dangerous unless it is compound
in nature. He further stated that such fractures can be caused by fall on hard
and projected surface. He further disagreed with Modi's view that presence
of a bruise distinguishes a fracture suffered in an accident and by an assault
and in the assault there is a bruise.
26. It is apparent from his testimony that there are discrepancies in
respect of MLC numbers as '1833', '833' and '1834' in the discharge card,
medical case papers, and X-ray plates of PW 1 Khawaja Iqbaluddin, and
pertinently, there is no mention of CLW on scalp in the medical case papers
i.e. Exhibit 53. He was confronted with Modi's view at two places, but he
disagreed with it, as mentioned herein above. Thus, the testimony of PW 8
Dr. Anil Dhule, instead of taking the prosecution case further ahead in
constructive manner to connect the accused with the crime, creates
discrepancies and infirmities in the medical evidence.
27. Turning to the deposition of PW 2 Muniroddin i.e. panch
witness to the spot panchanama and recovery panchanamas, pertinently, the
prosecution has only used one and the same Panch for the spot panchanama
and also discovery / recovery panchanamas, in respect of recovery of sword
at the instance of accused no.4, and also for the seizure of clothes of the
patient i.e. PW 1 Khawaja Iqbaluddin, as well as, clothes of accused no.1,
and prosecution has not given any explanation for using one and the same
Panch for all aforesaid panchanamas. It also appears from his testimony
(32) Cri. Appeal No. 66 / 2005
that he is a regular Panch of City Chowk Police Station, and even he has
stated in his deposition that he has personally not read over contents of all
the four panchanamas and he had signed on the said panchanamas at the
instance of P.S.I. Kale. He further stated that Police personnel wrote the
contents of panchanama and he signed at the instance of P.S.I. Kale thereon.
Moreover, it also appears that there are criminal antecedents against him
and even he was detained under MISA, and even he asked the Police
personnel why he was repeatedly called as Panch, but Police stated that they
needed him as Panch. Hence, learned trial court rightly disbelieved the
recovery of articles at the instance of such Panch, who is a tainted Panch
and such recovery certainly will not connect the accused with the crime, and
hence, Chemical Analyser's reports in respect of the said seized articles will
be of no consequence to establish nexus between accused and crime.
28. Apart from that, accused examined DW 1 Babulal Gaikwad,
Zonal / Junior Engineer in Zone-I of Aurangabad Municipal Corporation,
and he categorically stated that in the year 2001, the work of uprooting the
old pipeline and replacing it with new one was going on, which lasted from
15-1-2001 to 15-3-2001. He also stated that from Chelipura to Buddilane
Road, the excavation work was 15 feet to the opposite side of Charminar
Bakery. Moreover, the said work was for laying of pipeline of drainage and
such work is not done on the road, but by the side of the road. He supported
said version by documents which are produced at Exhibit 68. His testimony
has not been shaken in the cross examination, and hence, he probabalised
the defence put forth by the accused.
29. Moreover, it is also important to note that name of convicted
(33) Cri. Appeal No. 66 / 2005
accused no.3 is Hussain Chaus s/o. Munna Chaus, whereas name of
acquitted accused no.6 is Hussain amudi Chaus s/o. Syed Amudi Chaus, and
apparently, both the said names appear to be identical, and admittedly, they
were unknown to the witnesses, but still investigating agency has not
conducted test identification parade in respect of said two accused persons,
to connect the convicted accused no.3 with the alleged crime and the said
inaction on the part of the investigating agency hampers case of the
prosecution. So also, no specific role has been attributed to accused no.3
Hussain Chaus s/o. Munna Chaus during occurrence of the incident, and
apparently, there are general and omnibus allegations against him, and
therefore, he is entitled for the benefit of doubt. In so far as accused no.2 is
concerned, his name differs from driving license, but still no test
identification parade has been conducted in respect of said convicted
accused no.2 to connect him with the alleged crime. Thus, there is
ambiguity in the name of accused no.2 Syed Ishtiyaq @ Baba, and
therefore, apparently, identity of accused no.2 is doubtful, and hence, he is
also entitled for the benefit of doubt.
30. Besides, it is also material to note that the alleged incident
occurred at about 12.30 a.m., but FIR came to be lodged at about 06.00 a.m.
i.e. almost after six hours, and prosecution has not explained the said delay
convincingly. Moreover, Head Constable Mr. Rajput, who allegedly
recorded the FIR, has not been examined by the prosecution and no
plausible explanation has been given for non-examination of the said
material witness, and the said inaction on the part of the prosecution,
apparently, sustains fatal blow to the case of the prosecution. It is also
material to note that nowhere it has come in the evidence that how the
(34) Cri. Appeal No. 66 / 2005
investigating agency got knowledge about occurrence of the incident and
there is no clarification in that respect in the prosecution evidence. Hence,
having comprehensive view of the matter and inconsistencies in the
prosecution case, I am inclined to accept the submissions made by the
learned Counsel for the appellants / accused, and the accused deserve
benefit of doubt, and hence, present appeal is required to be allowed.
31. In the circumstances, since there are discrepancies, deformities
and inconsistencies in the ocular evidence of PW 1 injured Khawaja
Iqbaluddin and alleged eye witnesses PW 3 Mohd. Abdul Khaled and PW 4
Syed Wasef, and since the said ocular evidence and medical evidence of PW
5 Dr. Sureshchandra Chavan and PW 8 Dr. Anil Dhule are not in
consonance with each other, and since the testimony of PW 2, Panch
witness to the recovery of articles, was not believed by the learned trial
court, rightly so, and since defence has probabalised its defence through
DW 1 Babulal Gaikwad, I am of the view that the occurrence of incident, as
put forth by the prosecution, comes under doldrums and the accused nos.1
to 3 deserve the benefit of doubt, and the conviction and sentence imposed
upon the said accused i.e. appellants herein is erroneous and unsustainable,
and therefore, present appeal is required to be allowed by quashing and
setting aside the same, and accused deserve to be acquitted for the offences
with which they were charged and convicted.
32. In the result, present Appeal is allowed, and conviction and
sentence imposed upon the appellants i.e. original accused nos.1 to 3, by
judgment and order dated 20th January 2005, stands quashed and set
aside, and they are acquitted for the offences with which they were
(35) Cri. Appeal No. 66 / 2005
charged and convicted. Fine amount, if any, deposited by them, be
refunded to them. Their bail bonds stand cancelled. Appeal is disposed
of accordingly.
(SHRIHARI P. DAVARE)
JUDGE
.........................
bgp/criapp66
