Bombay High Court
Sayad Ismile Sayad Miya And Anr vs The State Of Mah on 11 August, 2016
Bench: A.V. Nirgude
sgp 1 APEAL683.2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 683 OF 2012
1. Sayad Ismile Sayad Miya,
Age : 66 years, Occu. Nil,
R/o. Sabangalli,
Ambajogai, Tq. Ambajogai,
Dist. Beed.
2. Rajiyabegum Aslamkhan Pathan,
Age : 26 years, Occu. Household,
R/o. Moin Nisar Chal, House No. 5,
Kasaiwada, Kurla, Mumbai,
Now at Ambajogai, Tq. Ambajogai,
Dist. Beed. .. Appellants
(Orig. Accused)
Versus
The State of Maharashtra .. Respondent
..............
Mr V. D. Gunale, Advocate for the appellants
Mr P. N. Kutti, APP for respondent/State
..............
::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:45:14 :::
sgp 2 APEAL683.2012
CORAM : A.V.NIRGUDE &
V.L. ACHLIYA, JJ.
DATE OF RESERVING THE JUDGMENT : 08.06.2016.
DATE OF PRONOUNCING THE JUDGMENT : 11.08.2016.
JUDGMENT (PER V. L. ACHLIYA, J.) :-
1. This appeal is directed against the Judgment and Order
dt.23.11.2012 passed in Sessions Case No. 25/2011 by Additional
Sessions Judge, Ambajogai, Dist. Beed thereby convicting the appellants
No. 1 and 2 under Sections 302 read with 34 and 109 of the Indian Penal
Code and sentenced them to suffer imprisonment for life and to pay
fine of Rs. 500/- each. In default of payment of fine, to undergo rigorous
imprisonment for one month. The appellant No. 2 is also held guilty of
offence punishable under Section 324 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for one year and to pay fine
of Rs. 200/-. In default of payment of fine, to suffer rigorous
imprisonment for 15 days.
sgp 3 APEAL683.2012
2. In brief, the facts leading to filing of the present appeal are
summarized as under: -
The appellants were charge-sheeted and prosecuted to face
charge u/s 302 r/w 34 of the Indian Penal Code (in short "IPC") and
appellant No. 2 was also prosecuted for committing offence punishable
u/s 324 of IPC. In nutshell, the prosecution has approached with a case
that, on 15.4.2010 at about 9:00 p.m., Sk. Mustaq (hereinafter referred
to as "deceased") was standing in open courtyard outside the house of
Sk. Raisoddin, uncle of the deceased. He was chit-chatting with his
paternal uncle Nafisoddin. At that time, the appellants No. 1 and 2
came there. They had dispute with the family of the deceased on
account of premises in their possession. The appellant No. 1 assaulted
deceased with knife over his abdomen. Since the deceased sustained
first blow on abdomen, he raised the shouts as "Mara Re Bap Muze Mar
Dala". Hearing the scream of Sk. Mustaq, the father of deceased
namely; Sk. Hafijoddin (PW1) and Sk. Irfan (PW4) who were taking
dinner in the adjoining house of Sk. Alim came out of the house. They
saw accused No. 1 assaulting Sk. Mustaq by means of knife. The second
blow of knife was dealt in their presence. After receiving the second
blow over the abdomen, Sk. Mustaq fell down on the ground. When Sk.
sgp 4 APEAL683.2012
Irfan (PW4) was trying to lift Sk. Mustaq, appellant No. 2 took the knife
from appellant No. 1 and assaulted Sk. Irfan (PW4) who too sustained
injury over his left hand. Sk. Mustaq was initially taken to Police
Station Ambajogai. Station House Officer asked the relatives of the
deceased to take him to S.R.T.R.M.C. Hospital. He also gave requisition
in the name of Medical Officer of S.R.T.R.M.C. Hospital to treat Sk.
Mustaq. Thereafter Sk. Mustaq was admitted in S.R.T.R.M.C. Hospital,
Ambajogai, where he was operated. He succumbed to the injuries on
19.4.2010. After his death, the father of the deceased i.e. Sk. Hafijoddin
(PW1) lodged the complaint against the accused alleging therein that
they had assaulted his son Sk. Mustaq. On the basis of the complaint
lodged by Sk. Hafijoddin (PW1) and A.S.I.-Mahadeo Bajirao Terkar
(PW-6) recorded the complaint and registered the offence against the
accused. The dead body of the deceased was referred for post-mortem.
Dr. Sunil Dasre (PW-8) conducted the post-mortem and opined that the
deceased died on account of Hemorrhagic shock. The appellant No. 1
was arrested on 21.10.2010. Appellant No. 2 appeared before the Police
Officer on 26.04.2010 and she was arrested in the crime registered
against her. At her instance, one knife alleged to be used in commission
of offence was seized. One shirt of appellant No. 1 was also seized
sgp 5 APEAL683.2012
during the course of investigation. The statement of witnesses were
recorded. On completion of investigation, the charge-sheet was filed
against both the appellants by Investigating Officer Shri. U. S. Pawar
(PW9). The charge as stated above was framed against the appellants.
They pleaded not guilty and claimed to be tried. Hence, the trial
proceeded against the accused. They have taken defence of total denial
and false implication at the instance of family members of the
deceased. On conclusion of trial, appellant Nos. 1 and 2 held guilty u/s
302 r/w 34 of IPC and sentenced to undergo imprisonment for life.
Appellant No. 2 also held guilty of offence u/s 324 of the IPC and
sentenced as stated above. Being aggrieved by the judgment and order
passed by the ld. Addl. Sessions Judge, the appellants have preferred
this appeal on the various grounds as set out in the appeal.
3. In order to prove its case, the prosecution has examined in
all 10 witnesses. Prosecution has examined Sk. Hafijoddin Sk. Papamiya
(PW-1) and Sk. Irfan Sayad Nafijoddin (PW-4) as eye-witnesses to the
incident. Shaikh Ahmed Shaikh Mohmad (PW-3) was examined as a
witness to the spot panchanama (Exh. 48/C). (PW-5) Shaikh Shafi
Shaikh Chand though examined as witness to recovery of knife/Sura at
sgp 6 APEAL683.2012
the instance of the accused No. 2, he has not supported the prosecution.
A.S.I.-Mahadeo Bajirao Terkar (PW-6) was examined to prove the
complaint filed by PW-1 and Inquest Panchanama (Exh. 46). The
prosecution has examined Nilesh Diwani as PW-7 to prove the seizure
of white colour shirt at the police station. Prosecution has examined
Dr. Sunil Dasre as PW-8, the Autopsy Surgeon who conducted the post-
mortem and issued post-mortem report (Exh. 69).
ig Prosecution has
further examined Uttam Shankarrao Pawar (PW-9) Retired Dy.S.P., the
Investigating Officer, who conducted the investigation and filed the
charge-sheet against the accused. Lastly, the prosecution has examined
Dr. Shaikh Ashma Tanvir PW-10, the Medical Officer attached to
S.R.T.R.M.C. Hospital, Ambajogai, Dist. Beed, who examined Sk. Irfan
i.e. PW-4 and issued injury certificate (Exh. 81). The accused have
taken defence of total denial and false implication at the instance of the
close relatives of the deceased.
4. On conclusion of the trial, the learned Additional Sessions
Judge has reached to the conclusion that the prosecution has proved
that the deceased died on account of homicidal death. Relying upon the
testimony of PW1 & PW4, and other evidence such as recovery of knife
sgp 7 APEAL683.2012
and seizure of clothes of accused, the learned Additional Sessions Judge
has reached to the conclusion that the prosecution has proved its case
beyond reasonable doubt and held accused Nos. 1 and 2 guilty of
offence punishable u/s 302 r/w 34 of the IPC. Besides, holding the
accused Nos. 1 and 2 guilty of the offence punishable u/s 302 of the IPC,
the learned Additional Sessions Judge has convicted accused No. 2 for
the offence under Section 324 of the Indian Penal Code and sentenced
her to suffer rigorous imprisonment for one year and pay fine of Rs.
200/-. Being aggrieved by the said Judgment and Order dt. 23.11.2012,
the appellants have preferred this appeal.
5. We have heard Mr Gunale, learned counsel appearing on
behalf of the appellants and learned APP for respondent and carefully
perused the evidence.
6. Mr. Gunale, the learned counsel for appellants/accused has
strenuously contented that, there was inordinate delay of more than
four days in registering the offence. It is pointed out that, the offence
was committed on 15.04.2010 at about 9.00 p.m. However the offence
was registered on 19.04.2010. As per the case of the prosecution, the
sgp 8 APEAL683.2012
injured was immediately removed from the spot on 15/4/2010 and
initially taken to Police Station. Thereafter, police referred the injured
to S.R.T.R.M.C. Hospital, Ambajogai, Dist. Beed, still no offence was
registered on 15.04.2010. He was admitted in said hospital on 15.4.2010
& treated till 19.4.2010. The deceased succumbed to injuries and died
on 19.04.2010. After his death, the FIR was lodged on 19.04.2010 at the
instance of Sk. Hafijoddin PW-1, father of the deceased who claims to be
eye-witness to the incident dt. 15.4.2010. He has first time disclosed in
his complaint (Exh. 41) lodged on 19.4.2010 that the deceased was
assaulted by accused No. 1 by knife. By referring the evidence on
record, the learned counsel has submitted that there is no satisfactory
explanation put forth by the prosecution to explain the delay of more
than four days in registering the offence. By referring the Medico Legal
Case Papers recording the admission & treatment given to deceased, the
learned counsel has pointed out that while admitting the injured Sk.
Mustaq, the history was disclosed as assault by unknown person.
Similarly the eye-witness Sk. Ifan (PW4) who was also admitted and
examined in hospital disclosed the assault by unknown persons. In the
light of this evidence on record, the learned counsel has strenuously
contended that, there is strong possibility of accused being framed in
sgp 9 APEAL683.2012
the case at the instance of relatives of the deceased on account of old
enmity cannot be ruled out. The possibility that the FIR was registered
after due deliberation by father of deceased to falsely implicate the
accused on account of dispute cannot be ruled out. He has therefore
submitted that, in the facts and circumstances of the case the trial Court
should not have placed reliance on the testimony of PW1 and PW4 who
are closely related with the deceased, & highly interested to see the
accused being convicted. It is further pointed out that, the prosecution
has not examined any independent witness to prove its case. He has
further submitted that, if testimony of PW-1 and PW-4 is discarded then
there remains no evidence to sustain the conviction. He has urged that
in absence of cogent, convincing evidence to establish the complicity of
accused, the trial Court ought to have acquitted the accused.
7. On the other hand, the learned APP has supported the
judgment and order passed by the trial Court. He has submitted that
the prosecution has sufficiently explained the delay in registering the
offence. He has further submitted that, the testimony of PW-1 and PW-4
inspires full confidence. Their testimony can not be rejected only for
the reason that they are related with deceased. According to learned
sgp 10 APEAL683.2012
APP, the prosecution has amply proved that, the deceased died a
homicidal death due to assault by accused Nos. 1 and 2.
8. In order to appreciate the submissions advanced, we have
carefully scrutinized the evidence on record in the light of reasons &
findings recorded by the trial Court to hold the accused guilty of
offences charged against them. If we consider the over all evidence on
record then fact is not in dispute that the deceased has died a homicidal
death. The prosecution has examined Dr. Sunil Dasre, the Autopsy
Surgeon whose testimony is at Exh. 47. He has categorically deposed
that, at the time of conducting post-mortem he found following injuries
on the person of deceased.
[i] One drainage belt over hypochondria region.
[ii] stitch over surgical wounds 31 number from gepisterium.
[iii] pelvic region 41 cm in length.
[iv] Incised wound over right hypochondria region 15 cm. In
length, 3 cm. Depth and 5 cm.
[v] drainage over right stab wound hypochondria region.
[vi] Stitches over right hypochondria region 7 in number 15 cm.
Length.
9. PW-8 specifically deposed that, injury Nos. [iii] and [iv] as
referred above, are stabbed wounds and possible by weapon like article
sgp 11 APEAL683.2012
2 i.e. Knife/Sura. He has further deposed that, the deceased died due to
"Hemorrhagic Shock" and the injuries were sufficient in ordinary
course to cause the death of any person. Thus, there is clinching
evidence on record to establish the fact that the deceased died on
account of homicidal death.
10.
Having reached to the conclusion that the deceased has died
a homicidal death, the next question which falls for our consideration is
whether the prosecution has proved its case beyond reasonable doubt
to establish that the accused have caused the homicidal death of the
deceased.
11. On perusing the reasons and findings recorded by the trial
Court, it appears that the trial Court has held accused guilty of
commission of offence on the basis of testimony of two eye-witnesses
i.e. Shaikh Hafijoddin s/o. Sk. Papamiya (PW-1), the father of the
deceased and Sk. Irfan (PW4), cousin of deceased. Besides the
testimony of said two eye-witnesses, the learned Additional Sessions
Judge has relied upon the testimony of Dr. Sunil Dasre (PW8), who
conducted the post-mortem and seizure of Sura/Knife (Article No. 2)
sgp 12 APEAL683.2012
alleged to be used in the commission of offence at the instance of
accused No. 2 and seizure of one white shirt stained with blood.
12. It is admitted fact that, the incident in question was
occurred on 15.04.2010 at 09.00 p.m. in front of house of PW-1. The fact
is also not in dispute that, on same day, the deceased was taken to
S.R.T.R.M.C. Hospital at Ambajogai, in an injured condition, where he
was operated and remained admitted till 19.04.2010. He died on
19.04.2010 at about 12:30 p.m. The fact is also not in dispute that, no
complaint was lodged from 15.04.2010 onwards till the death of the
deceased. Admittedly, the complaint/FIR Exh. 41 was lodged on
19.04.2010 i.e. after the death of deceased. There is ample evidence on
record which shows that, immediately after the incident the deceased
was taken to police station at Ambajogai. The Station House Officer
referred the injured to S.R.T.R.M.C. Hospital, Ambajogai along with
written Requisition i.e. Letter Exh. 83 dt. 15.04.2010 addressed to
Medical Officer, S.R.T.R.M.C. Hospital, Ambajogai which is undisputedly
signed and issued by Station House Officer on duty. The fact is also not
in dispute that, till the death of the deceased, both the eye-witnesses
sgp 13 APEAL683.2012
have not disclosed to police the names of accused as assailants. While
admitting Sk. Mustaq (deceased) on 15.04.2010, the history was
recorded as "assault by someone today at 9.00 p.m". Similarly, Sk. Irfan
(PW-4) when admitted in the Hospital as injured, he too disclosed the
history as "assault by someone today at 9:00 p.m." Disclosure of the
incident in question and the names of the accused as assailants was
first time made by PW1 & PW4 on 19.04.2010 that too after Sk. Mustaq
(deceased) succumbed to the injuries. Therefore, the entire evidence
needs to be scrutinized in the light of 'inordinate delay of about 4-5 days
in lodging FIR and disclosing the names of accused as assailants'. Since
it is case of prosecution that the incident was occurred due to dispute
on account of house in possession of the accused, delay assumes great
significance while appreciating the testimony of PW1 & PW4.
Therefore, though the case is based upon the testimony of two eye-
witnesses i.e. PW1 & PW4, in the facts & circumstances of the case their
testimony needs to be scrutinized and needs to be accepted with due
caution. They are the relatives of the deceased. They were on cross-
terms with the accused, therefore the possibility of they being deposing
falsely against accused to implicate the accused cannot be ruled out. In
the facts of the case, the delay of more than 4 days in lodging the
sgp 14 APEAL683.2012
complaint and disclosing the names of accused as assailants is of vital
importance.
13. It appears that, the ld. Addl. Sessions Judge while
appreciating the evidence has not seriously considered this vital aspect
of the matter. It has been cursorily observed that, the delay in lodging
the FIR was explained by Sk. Hafizoddin (PW-1) and treated as a
mistake on the part of the Investigating Agency.
14. In our view, the delay in registering the offence and
disclosure of the names of the accused after 4 days by PW1 & PW4 is a
significant factor and same needs serious consideration. Sk. Hafizoddin
(PW-1) has testified before the Court vide Exh. 40/C. He has deposed
that, on 15.04.2010 he was invited by his nephew Alim for dinner
(Kanduri). While he was proceeding towards the house of Alim, which
is adjacent to the house of PW-1, he saw his son Sk. Mustaq, nephew Sk.
Irfan and his brother Sk. Nafijoddin standing in front of his house and
they were chit-chatting. He further deposed that, when he was taking
dinner, he heard scream of his son Sk. Mustaq "Mara Re Bap Muze
Mara". He therefore came out of the house. At that time, he witnessed
sgp 15 APEAL683.2012
the accused Nos. 1 and 2 and heard accused No. 2 telling her father
"Abba Jagahka Hisab Kardo". He further deposed that, he saw Sk.
Ismail i.e. accused No. 1 inflicting blows by means of knife over the
abdomen of his son Sk. Mustaq and further saw his son Mustaq falling
down on the ground and Sk. Irfan rushing to rescue him. He further
deposed that, accused No. 2 inflicted a knife blow on left hand of Sk.
Irfan. He deposed that, when his son Mustaq was taken in an Auto
Rickshow to police station, the police personnel asked them to take
Sk. Mustaq to S.R.T.R.M.C. Hospital and also gave a cheat (letter) to get
Sk. Mustaq admitted in Hospital, where he was admitted & operated.
He died on 19.04.2010 at about 12:30 p.m. He further deposed that,
tthroughout the period of hospitalization, Sk. Mustaq was unconscious.
He has further deposed that, the incident took place due to dispute of
land where the accused No. 1 was residing. He tried to offer an
explanation as to delay in lodging the report. He has stated that, the
police have told him that they have to record statement of his son after
he regained consciousness therefore he has not lodged the complaint.
He has further deposed that as his mental condition was not good, he
could not lodge complaint immediately after the incident. PW-1 was
cross-examined at length.
sgp 16 APEAL683.2012
15. In the cross-examination, PW-1 has admitted that Mustaq
was not his son but he had adopted him from his brother Raisoddin. He
has admitted that, Sk. Ahmed Sk. Mohammed (PW-3) and Sk. Irfan
Sayad Nafijoddin (PW-4) & other persons the witnesses cited &
examined by the prosecution as witnesses are his relatives. He
admitted that, there are about 50 houses in Sabungalli where the
incident was occurred. He further admitted that there are no relatives
of accused No. 1 in the Sabungalli locality. He further deposed that,
when he came out of the house of Alim, already there was injury over
the abdomen of his son (Sk. Mustaq) and accused No. 1 was standing
with knife in his right hand. He further deposed that, his brother
Nafijoddin & nephew Sk. Irfan were standing at a distance of 5 to 6 ft
away from Sk. Mustaq. He further deposed that, the incident has taken
place within a half to one minute. He further deposed that, he did not
see as to what extent the accused No. 1 dealt the blow of knife over the
abdomen of his son Sk. Mustaq. He further deposed that, he cannot tell
as to which side of the abdomen the accused No. 1 dealt the blow of
knife. He further deposed that, he witnessed accused No. 2 inflicting
injury by means of knife on the left forearm of PW-4. Later on, he
sgp 17 APEAL683.2012
changed his version and stated that, Sk. Ismail inflicted injury over the
hand of Sk. Irfan. He admitted that after hearing the shouts, 7-8
persons from the lane reached on the spot. He further deposed that,
due to stab injury blood was oozing, but clothes of accused No. 1 and 2
as well as Sk. Irfan were not stained with blood. He further deposed
that, the blood stained clothes of Sk. Mustaq (deceased) collected but
there was no blood on the floor where the incident was occurred. He
expressed his inability to tell as to how many persons were present at
the police station when Sk. Mustaq was taken to police station,
Ambajogai. In further cross-examination, he has deposed that, two-
three times they were told by the police that they would record the
statement of Mustaq after he regains consciousness. He further
deposed that, he has disclosed about the incident of assault by accused
to number of persons residing in the locality and the news about the
incident also published in the newspaper. He has further deposed that,
in the Hospital he has disclosed the incident of assault by accused to
persons who visited hospital to see his son Mustaq. He has disclosed to
all of them that his son was stabbed with knife by Sk. Ismail (accused
No. 1). However, he has not disclosed said fact to the police as he was
not in proper mental condition. He further deposed that, he did not
sgp 18 APEAL683.2012
disclose to Doctors treating his son that Sk. Ismail (accused No.1)
stabbed his son with knife. He further admitted that, Sk. Irfan (PW4)
also not lodged complaint about the incident as he too was not in good
mental condition. He has also deposed that, Sk. Irfan and his other
relatives were daily visiting him while deceased was lying admitted in
hospital.
16.
If we consider the over all evidence of PW-1, then it is highly
unsafe to place reliance on testimony of such witness closely related to
deceased. He cannot be treated as witness to fall in the category of
wholly reliable witness. In the normal circumstances, the expected
conduct of the person as that of PW-1, the father of deceased who
claims to have witnessed the incident, knowing the names of assailants,
ought to have reported the incident to police. It is difficult to believe
that, he did not lodge the complaint for four days and disclose about the
fact to the police as he was not in proper mental state of mind. He has
admitted in his cross-examination that, he had not disclosed to police
that his son was assaulted by accused though repeatedly met with
police. The complaint disclosing the names of accused as assailants was
lodged first time on 19.04.2010 i.e. after four days that too after the
sgp 19 APEAL683.2012
deceased succumbed to the injuries. He has admitted that, in his
presence the police have instructed to take Sk. Mustaq to Hospital. He
has admitted in cross-examination that he met the police officials in the
hospital 2-3 times. He has deposed that, he has disclosed the incident
and names of accused as assailants to all the visitors who were visiting
him in Hospital except the police personnel. This conduct of PW-1
raises a serious doubt as to over all credibility of this witness and facts
deposed by him.
17. The explanation put forth that the complaint was lodged
after the death of deceased as the police were telling him that they
would record the statement of his son after he regain consciousness
and he was not in proper state of mind appears to be by way of
afterthought & unacceptable. He has deposed that he had disclosed the
incident to all the visitors who visited him in the hospital during the
period 15.4.2010 to 19.4.2010 except the police personnel, which itself
makes his explanation as 'unacceptable'. When he had made such
disclosure to so many persons, then he was not prevented to make such
disclosure to the police. We are, therefore, not inclined to accept the
explanation put forth by PW-1 that the delay in lodging the complaint
sgp 20 APEAL683.2012
was due to the reason that he was not in proper state of mind and
police have told them that he should wait till his son regains
consciousness.
18. Inordinate delay of more than 4 days in lodging the
complaint under the facts of the case raises a serious doubt as to over
all credibility of PW1. There is no corroborative evidence of a nature to
corroborate the testimony of PW-1. On the knife recovered, no human
blood nor any stains of blood were found. The recovery of knife was
made at the instance of accused No. 2 on 26.4.2010. No blood as that of
the blood group of the deceased was found on the clothes of the
accused. It has come on record that, the testimony of Uttam Pawar
(PW-9) Investigating Officer that he had arrested accused Syed Ismail
on 21.4.2010 and accused No. 2 on 26.4.2010. No blood was found on
the spot of the incident as described by the eye-witnesses. The accused
No. 1 was arrested from his house. Accused No. 2 was arrested on
26.4.2010 who herself visited the police station. This conduct of the
accused shows that they were very much present in the city and
ordinary place of residence from 15.4.2010 onwards till their arrest and
not made any attempt to abscond. The arrest of accused No. 1 from his
sgp 21 APEAL683.2012
house on 21.4.2010 and his conduct itself operates as a circumstance to
establish his innocence. In light of the case of the prosecution that the
accused were on cross-terms with the family of prosecution witness
Nos. 1 and 4, it is highly unsafe to place reliance as the testimony of
such closely related witnesses.
19. The prosecution has further relied upon the testimony of Sk.
Irfan (PW-4) as another eye-witness to incident. He too closely related
with the deceased as cousin. He too narrated the incident on same lines
as deposed by PW1. He deposed that, on 15.4.2010 at 9:00 p.m., his
father Sk. Nafijoddin and his cousin were chit-chatting in front of their
house. At about 9:15 p.m., he heard screams of Sk. Mustaq and also
heard screams of his father. He, therefore, left the dinner and came out
of the house. When he came out of the house, he saw accused No. 1
stabbed by means of knife in the abdomen of Sk. Mustaq and further
witnessed accused No. 2 telling her father "Abba Aaj Inko Jagahka
Hisab Kar Dalo". He has further deposed that, he has seen accused No.
1 - Sk. Ismail giving another blow of knife in the abdomen of Sk. Mustaq
and saw blood oozing from his abdomen. He further deposed that, he
too assaulted by accused No. 2 with knife & sustained injury in the
sgp 22 APEAL683.2012
incident. He further deposed that, Sk. Mustaq was admitted in the
hospital where he died on 19.4.2010. He further deposed that, accused
caused murder of deceased on account of dispute over the land in
possession of accused & which the family of deceased insisting to
vacate. He further deposed that, though the accused were to vacate the
land, they have not vacated the same and therefore there was dispute
between them.
20. In cross-examination he deposed that besides him, PW-1
and Alim were present for the Kanduri (dinner) inside the house of
Alim. He has further deposed that, while they were taking dinner they
heard scream of Sk. Mustaq. He further deposed that, he was followed
by his uncle Hafijoddin (PW-1) and Alim. He admitted in cross-
examination that, he had not seen the first attack on Sk. Mustaq and he
had seen only the second attack. He further deposed that, accused No. 1
dealt first blow on the middle of abdomen above the naval and the
second blow was also given at same place. Clothes of Sk. Mustaq got
stained with blood. He further deposed that, police have not seized his
clothes though they were stained with blood.
sgp 23 APEAL683.2012
21. If we consider the over all testimony of PW-1 & PW-4, then
there are number of inconsistencies. According to PW-1, when he was
going to house of Alim for dinner, PW-4 was standing outside the house
and chitchatting with Mustaq and Sk. Nafijoddin. According to him,
besides him, Alim was only present in the house for dinner. Whereas;
PW-4 has deposed that he too present inside the house of Alim and
taking dinner. He followed PW-1 after hearing the screams of Sk.
Mustaq. PW-1 has deposed that, he has witnessed only one blow dealt
by accused No. 1 over the abdomen of Sk. Mustaq. Whereas; PW-4 in
his examination-in-chief has deposed that, he had seen the accused
giving two knife blows over the abdomen of deceased that too at same
place. However, in the cross-examination, PW-4 has admitted that he
had not seen the accused giving first blow over abdomen of deceased.
The conduct of PW1 & PW-4 not to disclose about the incident to the
police as well as Doctor for a period of more than four days raises a
serious doubt as to their testimony. Injury report at Exh. 83 depicts that
the injury sustained by PW-4 was found to be simple in nature. As per
testimony of Dr. Sk. Ashma Tanvir (PW10), on 15.04.2010 while she was
posted in S.R.T.R.M.C. Hospital, Ambajogai as Medical Officer, at 10:30
p.m., injured Sk. Irfan was brought to her. He had incised wound on
sgp 24 APEAL683.2012
left arm. She examined Sk. Irfan and found the injury was simple. She
had issued the certificate at Exh. 80. In the cross-examination, PW10
has deposed that at the time of medical examination, Sk. Irfan (PW4)
has narrated the history that injury was caused by some unknown
person and she has noted the same in medical papers. The noting
recorded in respect of Sk. Irfan in the MLC papers is at Exh. 81 which
establishes the fact that, on 15.04.2010 at 10:30 p.m. when PW-4 was
brought to Hospital, he has not disclosed that he was assaulted by
known person and particularly accused persons that too when he was
knowing the accused and they were residing in same locality. The fact
regarding assault by accused was disclosed first time after the death of
deceased Sk. Mustaq on 19.04.2010. No explanation has been put forth
by him as to why he has not disclosed the fact regarding assault by
accused Nos. 1 and 2 immediately after the incident dt. 15.04.2010. It
has come on record, though the testimony of PW-1 that Sk. Irfan was
regularly visiting the Hospital, this raises a serious doubt as to over all
credence and reliability of PW-4's testimony. In view of the evidence
on record that there was dispute between the accused with family of
deceased, the possibility of they being roped in a false case cannot be
ruled out, in the light of conduct of PW1 & PW4 and delay of four days
sgp 25 APEAL683.2012
in lodging complaint and disclosing the names of accused as assailants.
It is highly improbable that PW1 & PW4 though witnessed the incident
and knowing the names of assailants, still takes four days to lodge
complaint and disclose the names of assailants. Therefore, the
possibility of complaint being lodged after due deliberation and
consultation with the relatives of the deceased cannot be ruled out
under the facts and circumstances and more particularly, the dispute
with accused.
22. Although the evidence as regards recovery of knife has been
relied as corroborative evidence to support testimony of PW-1 and PW-
4, in our view, same is of no relevance. The recovery is shown to be
made at the instance of accused No. 2 that too after 5-6 days after her
arrest. As per C.A. Report, no blood was detected on the knife. The
another circumstance relied against the accused that, a blood stain was
detected on the shirt of accused No. 1 is also of no consequence. As per
C.A. report at Exh. 72, shirt of the accused No. 1 was found with stains
of human blood of group 'AB'. As per CA report at Exh. 72, blood group
of accused No. 1 itself found to be of blood group 'AB'. No blood was
sgp 26 APEAL683.2012
detected on the Sura. There is no report showing the blood group of
deceased as of group 'AB' so as to connect the accused No. 1 in
commission of offence.
23. In the light of the discussion made in the foregoing paras,
we are of considered opinion that the reasons and findings recorded by
the trial Court are not sustainable in law. Learned Addl. Sessions Judge
has not properly appreciated the evidence adduced in the matter. The
important aspect of the matter that there was a delay of more than four
days in lodging the FIR was not seriously considered by the trial Court.
So also the fact that PW-1 and PW-4 have not disclosed the incident to
police till the death of deceased though they had an opportunity to
make complaint to police also not taken into consideration by trial
Court. The fact that PW-1 and PW-4 have not disclosed the incident to
the police till the death of deceased and while admitting the injured Sk.
Mustaq in the hospital the history which was disclosed as 'assault by
unknown person' was also not considered by the trial Court. There is
no cogent, convincing & reliable evidence on record to sustain the
conviction of accused. The reasons and findings recorded by trial Court
sgp 27 APEAL683.2012
are based upon improper appreciation of evidence on record. In our
view, the reasons and findings recorded by trial Court are perverse and
not sustainable in law.
24. In this view of the matter, the reasons and findings recorded
by the trial Court are not sustainable in law. We are therefore of the
view that, judgment and order dt. 23.11.2012 passed in Sessions Case
No. 25/2011 by Additional Sessions Judge, Ambajogai, Dist. Beed
deserves to be set aside. In the light of evidence on record the
appellants are entitled to be given benefit of doubt. We, therefore,
allow the appeal and pass the following order.
ORDER
(I) Criminal Appeal No. 683 of 2012 is allowed.
(II) The Judgment and Order dt.23.11.2012 passed in Sessions
Case No. 25/2011 by Additional Sessions Judge, Ambajogai,
Dist. Beed, is hereby set aside.
(III) The appellants/accused Nos. 1 and 2 stand acquitted. They
be released forthwith, if not required in any other
proceeding.
sgp 28 APEAL683.2012
(IV) Fine amount, if any paid, be refunded to the
appellants/accused forthwith.
[ V. L. ACHLIYA ] [ A. V. NIRGUDE ]
JUDGE JUDGE
