Naseem Khan @ Laddu S/O Mustakim ... vs The State Of Maharashtra
2016 Latest Caselaw 2760 Bom

                                                                        Appeal545_2014.doc

    Vidya
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                   
                                   CRIMINAL APPEAL NO. 545 OF 2014




                                                           
            Naseem Khan @ Laddu
            s/o. Mustakim Khan                              ... Appellant
                  Vs.
            The State of Maharashtra                        ... Respondent




                                                          
            Dr. Yug Mohit Chaudhary, Advocate for the appellant.
            Mrs. A.S. Pai, APP for the Respondent/State.

                                                CORAM: MRS.V.K. TAHILRAMANI &




                                                   
                                                       MRS.MRIDULA BHATKAR, JJ.

ig DATE: JUNE 13, 2016

ORAL JUDGMENT (Per Mrs. Mridula Bhatkar, J.)

This Appeal is directed against the judgment and order dated 6 th

March, 2013 passed by the learned Additional Sessions Judge, Raigad-

Alibag thereby convicting the accused for the offences punishable under

section 302 of the Indian Penal code.

2. It is the case of the prosecution that one Shabbir Habibulla Khan

was running a business of scrap material in a shop at Govandi. He

removed the appellant/accused Naseem Khan @ Laddu from the work.

The brother of the appellant/accused was working with Shabbir. The

complainant Shamshulla Khan was nephew of deceased Shabbir. On the

night intervening 21st July and 22nd July 2010, Shabbir, accused Naseem,

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Mohammed Rafiq, Bilal Ahamad Fakrulla Khan, Rahim Abdul Ajiz Khan

and Shamshulla Khan were sleeping in the shop. At around 2 a.m. to 4

a.m., complainant Shamshulla found that Shabbir was assaulted by

Naseem and two stones were lying near his cot. The incident of assault

was reported to the police. The police arrived at the spot. Shabbir was

shifted to the hospital but was declared dead. At the instance of

Shamshulla Khan, an offence was registered at C.R. No. 39 of 2010 at

Navasheva Police Station, Navi Mumbai against the appellant/accused

and other accused Bhola alias Mohamad Akalak Khan. The police drew

spot panchnama, inquest panchnama and arrested the accused persons.

Pursuant to the information given by the appellant/accused, the police

drew recovery panchnama on 27th July, 2010. The blood stained clothes

of the accused were seized and after completion of the investigation, the

police filed charge sheet in the Magistrate Court. Thereafter the case was

committed to the Court of Sessions, Raigad Alibag. The learned Sessions

Judge framed charge against the appellant/accused Naseem and accused

Bhola. The prosecution examined 9 witnesses and tendered oral as well

as documentary evidence. After considering the said evidence, the

learned trial Judge acquitted accused no. 1 Bhola from the offences

punishable under sections 302 r/w. 34, 395, 397 and 109 of the Indian

Penal Code. However, the appellant/accused no. 2 though was acquitted

from the offences punishable under sections 395 and 397 but was

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convicted for the murder of Shabbir under section 302 of the Indian Penal

Code and was sentenced to suffer R.I. for life and a fine of Rs.5,000/- was

imposed and in default, to undergo R.I. for one year. Hence, this Appeal.

3. In this Appeal, the prosecution could prove the homicidal death of

Shabbir which has taken place on 22 nd July, 2010 in the shop/hut. On this

point, the prosecution examined first informant PW-3 Shamshulla Khan,

PW-9 Investigating officer Vikram Sadashiv Jagtap. The police drew spot

panchnama on the same day. Spot panchnama is marked "Exhibit 42".

On the point of homicidal death, the evidence of medical officer PW-6 Dr.

Manoj Kisanrao Bhadre is tendered. Dr. Bhadre has conducted

postmortem on the body of Shabbir on 22 nd July, 2010. The doctor has

noted down the injuries external as well as internal in the postmortem

report, which is marked as Exhibit 50. There was 7 to 8 CLW over the

head and face. His parietal bone, cheek bone so also clavical bone were

fractured. Multiple depressed fractures were found on parietal and tempo

parietal bone and the doctor opined that those injuries must have caused

by hard and sharp weapons and may be by sharp edged stone. He has

opined that the cause of death was intracranial haemorrhage due to head

injury.

4. The learned counsel for the appellant has submitted that the

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prosecution could not prove a weapon by which the injuries were caused

to the deceased. He submitted that all the injuries are CLWs, as according

to the doctor, the injuries might have caused due to sharp edged stone.

He submitted that in the evidence of PW-3 Shamsulla Khan, who is an eye

witness, he has stated about one stone and then he made an

improvement of two stones. He submitted that in the FIR (Exhibit 48) he

did not say that the deceased was killed with the stone. Thus, there is

omission of the stone, which is material.

5.

The submissions of learned counsel on the point that the

complainant did not mention the weapon by which the deceased was

killed, cannot be appreciated. Though there is no direct statement that he

saw the appellant assaulting the deceased with stone, there are

statements that he saw appellant/accused mounting with something on the

head of the deceased and there is a separate statement that thereafter he

saw two stones lying near the cot. These statements are sufficient to

convey the meaning that the deceased was assaulted with stone. While

constructing the statements, one has to take into account the context and

then only the omissions can be made out.

6. Though in the present case, the prosecution has established the

cause of death as homicidal death of the deceased, the important question

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that who committed the offence and whether the accused was the

assailant, needed to be answered.

7. On the point of actual assault, the prosecution has relied on the

evidence of PW-3 Shamshulla s/o. Abdul Ajiz Khan. He has stated that

accused and his brother Bhola both were working with deceased Shabbir

and accused was removed from the work by Shabbir two to three days

prior to the date of incident. On the night intervening 21 st July and 22nd

July, 2010, according to him, Mohammed Rafiq Yusuf Khan, Bilal Fakrula

Khan and Rahim Abdul Aziz Khan were present in the shop. After dinner

they all slept. Deceased Shabbir and Naseem slept in the hut. There

were a distance of 15 ft. between the complainant and Shabbir. He heard

shouts of Shabbir at around 2 a.m. to 4 a.m. He saw accused was beating

Shabbir with stone, so he screamed and at that time, appellant Naseem

ran away. He and Mohammed Rafiq also ran away. At around 8 a.m., as

per his evidence, he told Jabbir, brother of Shabbir on phone about the

assault and then they all went to the spot where the police were already

present.

8. The learned APP has fully relied on the evidence of PW-3, who is a

sole eye witness. She submitted that the prosecution has proved that

Shabbir was assaulted with stone by the appellant/accused. She

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supported the judgment of conviction passed by the learned Sessions

Judge.

9. Per contra, the learned defence counsel has rightly submitted that

besides the evidence of PW-3 Shamshulla Khan, there is no other

evidence on the point of incident. The learned defence counsel while

assailing the evidence of PW-3 highlighted the discrepancies in the

evidence of PW-3 and submitted that his evidence is without any

corroboration, hence is not to be believed.

10. On perusal of the evidence of PW-3, some important questions

about the conduct of the witness PW-3 arose in our mind. As per his case,

he saw the incident of assault at around 2 a.m. to 4 a.m. He does not

specify the time of assault but his approximation of the time is spread over

to two hours. Assuming that he saw the accused assaulting the deceased,

then he would not have kept quiet but have shouted. According to him, at

that time in the hut other persons, i.e. Mohamad Rafiq Yusuf Khan, Bilal

Fakrula Khan, Rahim Abdul Aziz Khan were present. If other three

persons were present why he did not woke them up to help Shabbir.

Shabbir was his uncle, yet he did not resist the assailant/appellant though

he was not alone. There was no need for him to run away from the place

because as per his version, before he ran away, appellant/accused himself

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had run away. What was the point in running away from the spot along

with Mohd. Rafiq. As per his case, if Mohd. Rafiq ran with him at 4 a.m.,

then Mohd. Rafiq was a material witness, however, he is not examined by

the prosecution. Assuming that he ran way out of fear but he did not either

go to the police or to the residents in the vicinity for help. In paragraph 5

of the cross-examination of the witness, admissions are sought that village

Sonari was at the distance of 5 minutes walk from the shop, however, he

did not inform anybody about the incident from 4 a.m. to 9 a.m. and Mohd.

Rafiq was throughout with him. He arrived at the spot at 9 a.m. This

conduct of the witness is extremely unnatural. His running away from the

spot and his apprehension look artificial and the witness loses its

credibility. In the criminal trial, conviction can be based on the

uncorroborated evidence of sole witness, if the evidence of the said

witness is found fully truthful, consistent, cogent and reliable. However,

this evidence of PW-3 does not inspire confidence in the mind and it is

difficult to believe that PW-3 was present at the time of incident and had

seen the actual incident. Moreover, his evidence is doubtful on the

background of admissions sought in the cross-examination in paragraph 6

of his evidence. He has admitted that a crime was registered against him

at Uran police station by the accused. He admitted that it was true to say

that Shabbir and Bhola had filed prosecution against him.

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11. PW-4 Bilal Ahmed Fakrulla Khan is examined by the prosecution as

panch who drew a spot panchanma (Exhibit 42) where the body of

Shabbir was lying on the cot. In the cross-examination, this witness has

said that in the morning at 9 a.m. PW-3 Shamshulla Khan came to his

house and informed about the incident. As per the evidence of PW-3

Shamshulla Khan, Bilal Ahmed Fakrulla Khan was one of the persons who

was sleeping in the hut on night between 21 st to 22nd July, 2010. Thus the

evidence of PW-4 and PW-3 is found inconsistent on the point. Evidence

of PW-3 who is the only eye-witness is found doubtful. When the eye-

witnesses are available, why prosecution did not examine them. So also

PW-4 Bilal Fakrula Khan who was in the room did not say a word about

the assault. It only shows that the incident did not take place the manner in

which PW-3 has deposed. The evidence of PW-3 Shamshulla Khan may

not be true.

12. The prosecution has also relied on evidence of panchnama of

clothes of the appellant/accused. PW-7 panch Saraftulla Hajimulla Khan

did not support prosecution on the point of discovery. However, other

witness, i.e., PW-8 Rahimmulla s/o. Saimohammad Khan is a panch on

discovery. He has stated that at the instance of the accused, his clothes

were recovered which were kept in the roof of hut. These clothes, i.e.,

shirt (Article 12) and jeans (Article 13) were found blood stained. These

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clothes were sent to C.A. by Investigating officer. In CA report (Exhibit 63)

it was reported that these two articles were found with few blood stains.

The blood found on these clothes was human but the blood group was

found inconclusive. This recovery and CA report cannot prove any nexus

between the accused and the guilt. Therefore, we are of the view that the

prosecution could not prove a fact that appellant/accused was the

assailant of deceased Shabbir and he only had committed the murder of

Shabbir. For want of credible, cogent, consistent evidence on the point of

assault, we hereby set aside the judgment and order passed by the

learned Sessions Judge and acquit the appellant/accused from the

offences punishable under section 302 of the Indian Penal Code.

13. Appeal is allowed.

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