Bombay High Court
Syed Amin Syed Nabi (In Jail) vs The State Of Maharashtra, Through ... on 11 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.409/2014
Syed Amin Syed Nabi,
aged about 33 years, Occ. Truck Driver,
r/o Noor Nagar, Old Area, Badnera,
Tq. Dist. Amravati. (Presently in Central Jail
at Amravati) .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station, Badnera,
Tq. Dist. Amravati. ...RESPONDENT
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Mr. R. M. Mardikar, Advocate for appellant.
Mr. N. B. Jawade, A.P.P. for respondent-State.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JULY 11, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. The appellant has questioned his conviction and
consequent order of sentence in the present appeal, which is imposed
upon him by the learned Additional Sessions Judge, Amravati in
Sessions Trial No.205/2011 dated 23.05.2014 by which the appellant
was sentenced to suffer imprisonment for life and to pay a fine of
Rs.25,000/- and in default to undergo simple imprisonment for one
year for his conviction for the offence punishable under Section 302
of the Indian Penal Code.
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2. The prosecution case as it is disclosed during the course of
trial is as under:
When Sahebrao Jagdale was discharging his duties as
Police Sub Inspector at Police Station, Badnera on 06.07.2011 at
about 11.15 p.m., Mohd. Sharafatullah (PW3) came to the Police
Station and gave his oral report Exh.-36. On the basis of the same,
Sahebrao Jagdale registered a crime bearing Crime No.116/2011.
The printed FIR is at Exh-37. The FIR states that Mohd. Sharafatullah
(PW3) is having two sons. Elder is Najakatullah aged 30 years, the
deceased who was working as truck driver. His friend Mohd. Amin,
the present appellant is also truck driver. Both of them used to work
on the truck of one Syed Harun for about 7-8 months. After
marriage of Najakatullah, he left the driving of Syed Harun and then
started working as driver of Mohd. Jamirulla (PW2), who is also the
brother of the first informant. According to the FIR, the appellant
used to insist that he should work on the truck of Syed Harun else he
will face with the dire consequences.
The FIR further proceeds that on 06.07.2011 at about
7.30 p.m. the deceased Najakatulla left his house for going to
Amravati. At 10 O' clock, he made a phone call to Mohd. Jamirullah
(PW2) and it was informed that he is near railway gate. At the same
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time, the gate-man Allauddin Waliuddin (PW4) informed that one
boy is lying in the pool of blood and, therefore, the first informant
and Jamirullah (PW2) went to the railway gate cabin. That time,
they noticed that Najakatulla drenched with blood, was not able to
speak properly. They noticed that there was a big injury to his neck.
He was unable to speak. He was taken to Irwin Hospital, Amravati in
auto rickshaw where, on his admission, he was declared dead.
On the next day, PSI Jagdale went to the General
Hospital. He conducted inquest over the dead body and prepared the
inquest panchanama Exh.-40 in presence of pancha witnesses.
3. Subsequently, investigation was conducted by Sanjay
Dahake (PW9) and also Prashant Kalputwar (PW8).
Sanjay Dahake (PW9) went to the spot of occurrence and
prepared the spot panchanama Exh.-44. He recorded statement of
Rauf Khan on 28.09.2011.
Prashant Kalputwar (PW8) on 06.07.2011 seized the
clothes of the appellant under seizure memo Exh.42. He also seized
the clothes of Mohd. Jamirullah (PW2) and his mobile phone under
seizure memos Exh.-33 and 34 respectively. He also seized mobile
phone of the appellant under seizure memo Exh.-43.
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On 09.07.2011, when the appellant was in custody, he
made a disclosure statement to Prashant Kalputwar (PW8) in
presence of pancha witnesses and agreed to show the place where
the weapon 'Sattur' is kept. The memorandum statement is at
Exh.-45 and consequent recovery of the said weapon is under seizure
memo Exh.-46.
On 10.07.2011, the appellant gave his disclosure
statement to Prashant in presence of pancha and agreed to show the
place where he has committed murder of the deceased Najakatulla.
Accordingly, the police party, in presence of pancha, went to the
spot. There he recorded the statement and spot which is at Exh.-47.
After completion of the investigation, charge-sheet was filed in the
Court of J.M.F.C. Court No.6, Amravati.
The learned Magistrate found that the case is exclusively
triable by the Court of Sessions and, therefore, he committed the case
to the Court of Sessions. The learned Sessions Judge framed the
charge against the appellant and one Syed Alim Syed Nabi. The
appellant was charged for the offence punishable under Section 302
of the IPC whereas Syed Alim was charged for the offence punishable
under Section 201 and 212 of the IPC.
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By the impugned judgment, the learned Additional
Sessions Judge acquitted the accused no.2-Syed Alim Syed Nabi,
however, convicted the appellant as observed in the opening
paragraph of the judgment.
4. We have heard Mr. R. M. Mardikar, learned counsel for
the appellant and Mr. N. B. Jawade, learned A.P.P. for the State. Both
of them strenuously urged in respect of their respective prayers. They
also took us through the record and proceedings, notes of evidence of
the prosecution witnesses in detail.
5. Dr. Chandrashekhar Patil (PW1) has conducted the post
mortem on the dead body of Najakatulla. He noticed the following
external injuries :
"Lacerated wound of size 4 inches in length x 2 inches in
width x 2 inch deep on middle part of neck anteriorly."
He also noticed,
"Fracture of thyroid glands and oesophagus present."
The injuries were found to be ante mortem. According to
the Doctor, the cause of death is cut throat injury by sharp and hard
object and shock.
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The post mortem report, which is duly proved by
Dr.Chandrashekhar is at Exh.-23. From the evidence of Dr.
Chandrashekhar and in view of the injuries and opinion as
mentioned in the post mortem report, it is clear that Najakatulla's
death was homicidal one.
6. The consequent question that has to be answered is as to
whether the prosecution has proved the charge against the appellant
beyond reasonable doubt.
7. Admittedly, in the present case, there is no eye witness
account. Case of the prosecution is based on oral dying declaration
made by the deceased Najakatulla to his father Sharafatulla (PW3)
and his uncle Jamirulla (PW2). The prosecution also relied on the
evidence of Rauf Khan (PW5) for connecting the appellant to the
effect that the deceased was lastly seen prior to the receiving of
injuries in the company of the appellant. The prosecution also heavily
relied on the recovery of weapon at the instance of the appellant and
noticing human blood (blood group "A") on the clothes of the
appellant.
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In order to appreciate the prosecution case in respect of
the oral dying declaration, firstly, it would be required to see the
evidence of Allauddin (PW4), the railway gate-man. Admittedly,
Mohd. Jamirulla (PW2) and Mohd. Sharafatulla (PW3) reached the
railway gate after receipt of the mobile phone call from Allauddin
(PW4) and thereafter when they reached to the spot, there oral dying
declaration was made to them is the prosecution version.
8.
Allauddin (PW4) is serving as railway gate-man with
Central Railways. Since last 15 years, he was posted at the railway
gate situated in Juni Vasti, Badnera.
The evidence of Allauddin discloses that on the date of the
incident, his duty was from 4.00 p.m. to 12 midnight. There is a
cabin near the railway gate. On the date of the incident, at about
9.55 p.m. he received a message from the Station Master that
Nagpur-Amravati Intercity Express is passing. Therefore, he closed
the railway gate. Within 5 minutes, the said train passed from the
gate. Thereafter, he opened the gate and went inside the cabin and
stayed there.
His evidence further discloses that after some time a boy
came near the cabin. That time his clothes were stained with blood.
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He asked that boy to go away from there. So the said boy went away
at some distance. At that time, the said boy was talking on mobile
phone. Again the boy returned to the cabin and sat on the platform
outside the cabin. The said boy handed over his mobile to him and
with gestures asked him to talk on mobile. That time, the mobile
was on. This prosecution witness took the mobile from the said boy
and started talking on mobile. He heard the voice of a lady to whom
he informed that a young boy stained with blood is there.
Thereafter, he heard huge cry of the said lady on mobile. Thereafter,
the said boy again took mobile from this prosecution witness and
after some time, handed over the mobile again. That time, he heard
the voice of a male person. This prosecution witness informed the
said person to come near the railway gate. Thereafter within 2-3
minutes, initially the uncle of the boy reached to the spot. The said
uncle was known to Allauddin. He informed Allauddin that the
injured boy is his nephew.
According to Mohd. Jamirullah (PW2) and Mohd.
Sharafatulla (PW3) when they reached to the railway cabin that time
they noticed Najakatulla, the deceased was sitting near the platform
and on seeing them, he stood up and told them that the appellant has
assaulted on him by Sattur.
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9. Whether really the oral dying declaration was made to
these two prosecution witnesses as claimed by them?
10. Dr. Chandrashekhar Patil (PW1) who has conducted the
post mortem has stated in his examination in chief as under:
"3. In my opinion, after receiving the injuries which
is shown in the column No.17 of the P.M. Notes Exh.23,
the victim may survive for about half an hour and the
injured may be able to speak."
The said autopsy surgeon when was under cross-
examination of the learned counsel for the defence has stated as
under:
"4. It is true that considering the nature of injuries
mentioned in column 17 & 18 of the post mortem notes
(Exh.-23), the person may not be in a position to talk 5 to
10 minutes of receiving such injuries"
From the aforesaid, it is crystal clear that the Doctor
himself was not sure as to up to what time the injured could be in a
position to talk after receiving such a grievous injuries.
11. The prosecution could not establish the exact time of
assault. Allauddin (PW4) in his evidence has stated that he received
a call from the Station Master that Intercity Express is passing and,
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therefore, he closed the railway gate. After 5 minuses the said
express passed on the gate and thereafter he opened the gate and
stayed inside his cabin and after some time, a boy came near the
window of cabin stained with blood. That shows that the time of
assault may be either prior to 9.55 p.m. or in between 9.55 p.m.
Allauddin (PW4) did not claim in his evidence that he has
seen anybody running away from or near the railway track.
12.
Though the learned A.P.P. tried to support the prosecution
case by making a submission that the evidence of Allauddin shows
that when the boy came near the cabin he was talking on mobile
phone and thus he was in a position to talk. Though, at the first
blush, the said submission appears to be attractive on the closer
scrutiny of the evidence of the prosecution in its entirety, the said
submission needs to be rejected. Now, admittedly, Allauddin was
inside the cabin and the boy was near the window of the cabin. It is
nowhere brought on record through the evidence of Allauddin that at
the relevant time, the window was open. It is brought on record in
the examination in chief of Allauddin itself that he asked the said boy
to leave the place and therefore he went away at some distance and
at that time, according to the prosecution, the deceased was talking
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on phone. Thus, it is clear that at the time of the so called
conversation, the boy was away from Allauddin. Further, it is not
brought on record as to what was the talk of the deceased on the
mobile phone. Even according to this prosecution witness, after
some time, the boy again returned towards his cabin. It would be
useful to reproduce the relevant portion of the evidence of Allauddin
in that behalf, which is as under:
"Again that boy returned towards cabin and he sat on the
platform outside the cabin. The said boy handed over me
his mobile and with gestures asked to talk on mobile. At
that time, the mobile was on. I took the mobile from the
boy and started talking on the mobile. I heard voice of
lady, I informed the said lady that a young boy stained
with blood is there. I heard the hue and cry of the said
lady on mobile. Thereafter, the said boy took the mobile
from my hands and after sometime he handed over the said
mobile to me. At that time, I heard the voice of male
person. I informed the said person to come near the railway
gate of Juni Vasti, Badnera. Within 2 to 3 minutes
initially, the uncle and son of uncle of that boy reached on
the spot."
From the aforesaid, it is crystal clear that the boy was not
in a position to talk. Therefore, he asked Allauddin by gestures to
talk on mobile and then handed over the same to him. His evidence
clearly shows that he was knowing Jamirulla (PW2). Jamirulla has
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stated in his evidence that, "When I reached on the spot, Allauddin
was with Najakatulla". It is clear that when Jamirulla (PW2) and
Sharafatulla (PW3) the uncle and father of the deceased reached on
the spot, Allauddin (PW4) was with Najakatulla, the deceased.
According to the uncle and father, when they reached that time oral
dying declaration was made. In that backdrop, the evidence that, "I
have not heard any conversation between the injured boy with his any
of the relatives", appearing in the examination in chief of Allauddin
assumes importance. The aforesaid evidence clearly destroys the
claim of Jamirulla (PW2) and Sharafatulla (PW3) the uncle and
father respectively that oral dying declaration was made to them by
the deceased.
13. Further, according to Jamirulla (PW2) to whom the
mobile phone was given, in his examination in chief he has stated
that, "On that day about 10.00 - 10.15 p.m. I received a phone call on
mobile.The said phone call was of Najakatulla and he asked me to come
immediately near the railway gate. Immediately thereafter a person
namely Allauddin who is the railway gate-man gave me a phone call.
Thereafter, myself and my son Mohd. Shahjad went towards Railway
gate, my brother Sharafat, father of the deceased also came there."
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The aforesaid evidence shows that Najakatulla only asked
him to come near the railway gate. That time, he did not disclose the
name of the appellant as assailant. Even according to Mohd.
Jamirulla (PW2), the deceased was losing his capacity to talk.
Therefore, the first opportunity to disclose the name of the assailants
would not have been missed by the deceased.
14. The evaluation of the aforesaid prosecution evidence
shows that the evidence of Jamirulla (PW2) and Sharafatulla (PW3)
do not inspire confidence in respect of oral dying declaration. The
false implication at their behest of the appellant is not completely
ruled out for the reasons stated in the FIR.
15. The another circumstance that has been put into service is
the last seen. In that behalf, the prosecution has examined Rauf
Khan Sarfaraz Khan (PW5). This prosecution witness is a property
dealer and broker. He is also the close relative of the deceased
Najakatulla. According to this witness, on 06.07.2011 at about 9.45
p.m. when he was returning to his house from Amravati and when he
was passing Amravati Badnera old bye pass road near the railway
gate in front of Ibrahim Garage, he noticed appellant and Najakatulla
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standing in front of the said garage. On noticing him, pleasantries
were exchanged. According to the evidence of the prosecution
witness, after taking dinner, he came to know that one person is
assaulted near the railway gate and therefore when he reached near
the railway gate he noticed Najakatulla sitting on the platform and
on enquiry, he disclosed that he was assaulted by Syed Amin by
means of Sattur.
The police statement of this prosecution witness was
recorded on 28.08.2011. Though an explanation is sought to be
given by Sanjay Dahake (PW9) about late recording of evidence of
this witness that he was out of the city, it is hardly supportive to the
prosecution because of the following version appearing in the
evidence of this witness:
"मतम ययचच ववरवर कळलयववर मच दववखवनयवर व पपलचस ठवणयवर गगलप. तयववगळच
मच रगलवग कगबबन जवळ गगलप तयववगळच मच नजवकरउललव व आरपपच अमचन हग
इबबरवबहम गगरगज जवळ हपरप हग मच शरवफरउललव व मप. नजचरउललवलव
सवसबगरलग नवहरग."
In view of the aforesaid, it is crystal clear that after death,
this prosecution witness was accompanying to the hospital so also to
the police station. This witness is not a rustic person. He is a
property dealer and broker. Therefore, it would have been but
natural on his part to disclose immediately to the police that he had
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seen the deceased in the company of the appellant near Ibrahim
Garage when he reached near the railway.
In that view of the matter, according to us, this witness is
not trustworthy witness especially when he is a close relative of the
deceased Najakatulla. Therefore, his evidence cannot be considered
at all.
16. Insofar as the recovery of weapon from the place which is
shown to the police where the appellant has committed murder and
Chemical Analyzer's report, in our view cannot be considered at all
for the following reasons.
(a) Memorandum statement by which the appellant
agreed to show the place where he has concealed the Sattur is at
Exh.-45. The said statement is recorded on 09.07.2011. The
recovery panchanama is at Exh.-46. From the said, it is crystal
clear that the weapon is recovered from a place which is open to
sky and everybody has access to the said site. Consequently, the
recovery of weapon from the said place is hardly supportive to
the prosecution.
(b) Insofar as the statement made on memorandum to
show the place by the appellant where he has committed
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murder is also of no value. The said statement is at Exh.-47. In
that behalf, the evidence of Afsar Baig (PW6), the pancha
witness is required to be looked into. The relevant portion in
that behalf is as under:
"4. On 10/07/2011 at about 2.00 p.m. I was
called by the police in Police Station - Badnera. Accused
Amin took me and police to the place, where he assaulted
the deceased. He pointed out the place of actual incident
which was near the third electric pole from railway-gate
and from where earlier weapon Sattur was attached."
From the aforesaid, it is crystal clear that the place
was known to police and, therefore, much importance cannot be
attached to the memorandum statement Exh.-47.
(c) Insofar as the Chemical Analyser's report is
concerned, as per the Chemical Analyzer's report Exh.-68, blood
group of the deceased was "A" and also the blood group of
appellant is "A" (as per report Exh.-69). One of the clothes of
the appellant shows that it is having blood of group "A".
However, this particular incriminating circumstance was not put
to the appellant when his statement under Section 313 Cr. P. C.
was recorded. We cannot forget that the blood group of
deceased and the blood group of appellant is one and the same.
Had this circumstance was put to the appellant, he could have
17 apeal409.14.odt
given the explanation as to why the blood group "A" is
appearing on his clothes.
In that view of the matter, the said evidence, which is in
the nature of corroborative piece of evidence, is also not useful to the
prosecution.
17. On reapprecaition and reevaluation of the prosecution
case, we are of the view that the prosecution has utterly failed to
bring home the guilt of the appellant beyond reasonable doubt.
Hence, we pass the following order.
The criminal appeal is allowed.
The appellant/accused is acquitted of the charges charged
with.
The accused is directed to be set at liberty if not required
in any other crime.
(V. M. Deshpande) (B. R. Gavai)
kahale
