Mohd. Sattarul Najrul Mulla vs The State Of Maharashtra
2016 Latest Caselaw 3827 Bom

                                                                           905.Apeal250_2009

vidya

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                      CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL APPEAL NO. 250 OF 2009




                                                           
        Mohd. Sattarul Najrul Mulla
        r/o. Uttar, 24, Pargan,
        Thana Bashirhat, Gam Devak,




                                                          
        West Bengal.
        (Presently lodged in Arthur Road Jail)            ...     Appellant
               vs.
        The State of Maharashtra                          ...     Respondent




                                                     
        Mr. K.M. Sangani, Advocate for the appellant.
                                       
        Mrs. A.S. Pai, APP for the respondent/State.

                                       CORAM: MRS. V.K. TAHILRAMANI &
                                      
                                             MRS. MRIDULA BHATKAR, JJ.

                                              JULY 14, 2016.
             


        JUDGMENT (Per Mrs. Mridula Bhatkar, J.)

This Appeal is directed against the judgment and order dated 10 th

February, 2009 passed by learned Sessions Judge, City Civil & Sessions

Court, Greater Mumbai thereby convicting the appellant/accused for the

offences punishable under section 302 r/w. 34 of the Indian Penal Code and

is sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in

default further to suffer R.I. for 15 days.

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2. The case of the prosecution is as follows:

Complainant Rashid Gazi Ahmed Gazi was resident of Shivajinagar,

Govandi, Mumbai. He was having the business of cloth cover. His

nephew Ayub and his real brother Wahid used to help him in the business.

He had employed two workers, i.e., appellant/accused Mohd. Sattarul and

co-accused Rana Mulla. They all used to sleep in the shop. The incident

of assault has taken place on the night intervening 12 th August, 2007 and

13th August, 2007. On 12th August, 2007, deceased Wahid had collected

money of Rs.4,000/- from the party of which the appellant and other

accused had knowledge. However, on the same night, Wahid handed over

the said amount to his brother, i.e., complainant, which fact was not known

to the accused. On 12th August, 2007, the accused, Wahid and Ayub were

sleeping in the shop. In the morning , when complainant arrived at the

shop, he was surprised to see that the shop was not opened and the door

was not locked from inside, so he shouted but nobody responded. When he

went inside, he found Ayub was sleeping and one person was covered in

bed cover. When he took out the cover, he noticed his brother Wahid had

sustained injury on his neck. He was lying in pool of blood and was dead.

His servants, i.e., appellant/accused and other accused were not in the shop.

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He woke up his nephew, who was not aware what happened on that night

and how Wahid was killed. Thereafter he went to police station and gave

information to the police, pursuant to which FIR was lodged at C.R. No.

272 of 2007 with Shivajinagar Police Station. The police conducted

inquest and spot panchnama. They found axe lying on the spot. The

postmortem was conducted on the body of Wahid. After investigation, the

police arrested the appellant and other accused. At the instance of co-

accused Rana, who was juvenile in conflict with law, a shop from where

the axe was purchased and the said shopkeeper were traced. So also the

other shop where the blade of the axe was sharpened was also traced. The

police drew panchnama to that effect. The clothes of the appellant/accused

were also seized and sent for chemical analysis. The human blood was

found in the clothes and on the blade of the axe. After completion of the

investigation, the police filed charge-sheet in the Magistrate court.

Thereafter the matter was committed to the Sessions Court. The learned

Sessions Judge framed charge. The accused pleaded not guilty, as they

were not present in the room when the incident has taken place and that

they are innocent and not committee any offence. The learned trial Judge

rejected the said defence and after appreciating the evidence of the

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prosecution, convicted accused no. 1 as mentioned above. Accused no. 2,

being juvenile, was not tried before the learned Sessions Judge. Hence,

this Appeal.

3. The case of the prosecution is entirely based on circumstantial

evidence. The prosecution has examined total 12 witnesses. PW-1 Rashid

Gazi Ahmed Gazi is a complainant who gave FIR which is marked as

Exhibit 9. PW-2 Khan Altaf Atta Hussain Pathan, who is panch for the

panchnama of the shop from where the axe was purchased (Exhibit 30) and

also recovery of blood stains clothes (Exhibit 33). PW-3 Munir Abdul

Jabbar Shaikh is a shopkeeper from where the axe was purchased. PW-4

Pawankumar Siyaram Vishwakarma is a shopkeeper from where the blade

of the axe was sharpened. PW-5 Ayofar Gazi, PW-6 Shaikh Mastan Ali

Abdul Sattar is panch of inquest panchnama (Exhibit 18) and spot

panchnama (Exhibit 19), PW-7 Dr. Pravin Sakharam Bagul who carried out

postmortem, PW-8 Madhukar Pralhad Bage, Metropolitan Magistrate, who

recorded statement of juvenile accused Rana @ Samir on 18 th October,

2007 under section 164 of Cr. P.C. PW-9 Santosh Dnyaneshwar Bhandara,

P.I. attached to Shivaji Nagar Police Station, PW-10 David Dadu Alhat,

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P.S.I. who recorded FIR of PW-1, PW-11 Sunil Rajaram Ghosalkar, P.S.I.,

Crime Branch. Thane where panchnama of purchase of axe and sharpening

of blade of axe was drawn and who called panchas. PW-12 Sharad

Nilkanth Shalu is a finger print expert.

4. The learned counsel Mr. Sangani for the appellant took us to the

entire evidence of all the witnesses. He has argued that the evidence of

PW-1 Rashid Gazi and PW-5 Ayofar Gazi are full of inconsistencies. There

are material omissions in the evidence of PW-1 Rashid Gazi, if his

evidence is compared with the evidence of PW-10 David Dadu, P.S.I., who

recorded the FIR. He submitted that the evidence of PW-2 Khan Altaf

Pathan cannot be relied in respect of blood stained clothes on this

appellant/accused, i.e., recovery of lungi and red T-shirt. He submitted that

in the evidence of PW-5 Ayofar Gazi, witness has stated that police had

taken one red T-shirt and lungi from the house , thus there is no such

recovery of the clothes. He further submitted that the said panchnama of

PW-2 Khan Altaf and subsequent witnesses PW-3 Munir Shaikh and PW-4

Pawankumar cannot be relied because none of the two shops were already

known to the shops. He relied on paragraph 9 of the cross-examination of

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PW-9 P.I. Santosh Bhandare. He relied on the admission given by him that

his predecessor had information about the two shops from where the axe

was purchased and from where the blade was sharpened. He further

submitted that as per the case of PW-1 Rashid Gazi, Ayub was sleeping in

the shop, however, he is not examined as a witness. He further submitted

that the evidence of finger expert PW-12 Sharad Shalu is not carried, as the

evidence of alleged chance print of accused no. 1 is false. He further

submitted that the learned trial Judge ought not to have believed the

evidence of these witnesses and hence the judgment of conviction is to be

set aside and the Appeal be allowed.

5. Learned APP opposed this Appeal and supported the judgment of the

learned trial Judge. She relied on the medical report, postmortem and

evidence of doctor that Wahid was murdered on the night of 12 th August,

2007 and from the evidence of PW-1 Rashid Gazi and PW-5 Ayofar Gazi it

is proved that on that night accused was sleeping in the said room.

6. This case stands on the circumstances. Nobody has seen the actual

assault on Wahid. As per the case of the prosecution, on that night four

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persons were sleeping in the said shop. Two accused persons were

absconding from that day and fourth one was Ayub, who is nephew of the

complainant. As per the evidence of PW-1 Rashid had seen all the four

persons at 10.30 p.m. on the night of 12 th August, 2007. On the next

morning at 8 a.m., when he went to shop, he found the door was not

locked, so he pushed it and went inside the shop. He noticed the dead body

of his brother Wahid. Ayub was sleeping but the two accused persons were

not present. When he woke up Ayub, he informed that he knew nothing as

to what happened. However, he being there, his evidence was necessary on

the point whether accused were present till he and Wahid slept. He is not

examined by the prosecution. He should have been examined on the point

that whether accused persons were present till he and Wahid Slept on that

night. The accused were not found in the morning and Wahid was found

injured and dead, this circumstance goes against the accused and it can be

easily guessed that they must have assaulted the deceased and so they left

the premises. However, such inference of a common man is not acceptable

in law, as all the circumstances should be unimpeachable and no room

should be left for doubt that accused might not have committed this crime.

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7. Let us advert to the main evidence of the prosecution, i.e.,

panchnama (Exhibits 30 and 33) and evidence of three main witnesses PW-

2, PW-3 and PW-4. PW-3 deposed that he has acted as panch and he was

called by the police. In his presence, the police asked the juvenile accused,

i.e. Rana from where axe was purchased, at that time, he told that he would

show the shop from where the axe was purchased and then he took panch

and police to the shop of PW-3 Munir Shaikh. Thereafter he also took

them to the shop of PW-4 Pawankumar who sharpened the blade of the

axe. The way the police have investigated this case and the manner in

which the evidence is brought before the Court is in fact inadmissible and

cannot be relied. This is not the voluntary statement of the accused. The

accused showed the shop and the shopkeeper PW-3. However, it is not a

recovery of any article. A shopkeeper cannot be a recovered, thus it is hit

under section 161 of Cr. P.C. or under section 25 of the Evidence Act

which is not admissible in the evidence. PW-3 and PW-4 before the Court

have stated that they have identified accused no. 2 as a person who has

come to their respective shops and purchased the axe and got the blade

sharpened. However, it is to be noted that PW-3 has admitted the fact that

the police often visit his shop for making enquiry regarding stolen articles

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and due to the nature of the business, he is required to keep good relations

with the police. Thus the evidence of these two witnesses are not reliable.

At the time of spot panchnama, axe was found at the spot and it was seized

by the police. It was blood stained but the recovery of red T-shirt and lungi

is found doubtful as PW-5 Ayofar Gazi has stated that police at the time of

spot panchnama took one red T- shirt and lungi and same was shown as

clothes recovered. The report of chemical analyzer discloses that there was

a human blood. The blood group was found inconclusive.

8. PW-12 Sharad Shalu is finger print expert. We do not find it worth to

consider his evidence. As per the case of the Investigating officer a bottle

and glass was found at the time of spot panchnama and one chance finger

print was found on the glass and the finger print expert gave report that it

was finger print of accused no. 1. This is not an incriminating

circumstance against this appellant/accused, as this accused was admittedly

staying in the same room, so finding of his finger print on the articles in the

room was natural.

9. Thus, the circumstantial evidence produced by the prosecution does

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not establish a complete chain of circumstances. There are many loop

holes and we are of the view that prosecution has failed to prove the case

against the accused and hence we set aside the judgment and order of

conviction under section 302 r/w. 34 against the appellant/accused and

allow this Appeal.

(MRS. MRIDULA BHATKAR,J.) ig (MRS. V.K. TAHILRAMANI, J.)

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