Bombay High Court
Shaikh Latif Sk. Nabi And Anr vs The State Of Mah on 23 March, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 675 OF 2012
1. Shaikh Latif s/o. Sk. Nabi .. Appellants
Age. 20 years, Occ. Labourer, [original
R/o. Kranti Nagar, Parbhani, accused]
Dist. Parbhani.
2. Shaikh Anwar @ Anna s/o. Sk. Chand
Age. 22 years, Occ. Labourer,
R/o. As above.
(At present in Jail Custody)
Versus
The State of Maharashtra .. Respondent
Through Police Station Officer,
Kotwali Police Station, Parbhani,
Dist. Parbhani.
Mr. P.S. Paranjape, Advocate for the appellants.
Mr. M.M. Nerlikar, APP for respondent/State.
CORAM : A.V.NIRGUDE &
INDIRA K. JAIN, JJ.
DATED : 23.03.2016
ORAL JUDGMENT: [PER : A.V. NIRGUDE,J.] :-
1. This appeal challenges judgment and order dated
08.11.2012 passed by the learned Sessions Judge,
Parbhani, in Sessions Case No. 172 of 2011 holding the
appellants guilty of offence punishable under section 302
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read with section 34 of the Indian Penal Code. He
sentenced them to suffer life imprisonment and to pay
fine of Rs.2000/- with a default clause. The parties to
the appeal would be referred to as per their original
status before the Trial Court.
2. The prosecution case before the Trial Court in
short can be stated as under :-
. On 15.08.2011 the accused went to the house of
deceased at about 5.30 p.m. to call him for game of
cricket. On cricket ground accused No.1-Sk. Latif
stabbed the deceased, whereas accused no.2-Sk. Anwar held
his hands. Number of persons saw this incident. The
accused left the spot. The injured fell down. He was
immediately taken to the hospital, where he was declared
dead. On the complaint of P.W.1-Sattarkhan, who happened
to be father of the deceased, the offence was registered
on same day at about 7.50 p.m. During the investigation,
the accused were arrested. Their clothes were seized,
which were found to be stained with blood of the
deceased. Accused No.1-Sk. Latif also discovered knife
utilized in the attack.
3. The prosecution case depended on in all 12
witnesses out of which P.W.1-Sattarkhan, P.W.2-Shaikh
Maheboob, P.W.3-Pramod, P.W.5-Tabrejkhan and P.W.6-
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Badrunissa are important. P.W.1-Sattarkhan and P.W.2-
Shaikh Maheboob stated that while they were taking the
deceased to hospital, he disclosed names of the accused
being his assailants. On the other hand P.W.3-Pramod,
P.W.5-Tabrejkhan and P.W.6-Badrunissa asserted that they
saw the incident. P.W.12-Ashok is the Investigating
Officer, who stated that at the instance of accused No.1,
he recovered murder weapon at the instance of accused
No.1-Sk. Latif from a secluded place. This weapon was
found stained with blood of blood group of the deceased.
Even clothes of the accused found stained with blood
group "A" which was of the deceased.
4. Learned Counsel for the appellants asserted that
entire evidence that was brought before the Trial Court
was untrustworthy and should have been discarded. He
pointed out that the prosecution witnesses who stated
that they witnessed the incident are tutored and got up
witnesses. On the other hand, he asserted that having
regard to the nature of injuries sustained by the victim,
he was not in a position to make dying declaration in
presence of P.W.1 and 2.
5. The first question that required to be decided
is - whether testimony of eye witnesses is trustworthy?
In order to appreciate depositions, we must first pay
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attention to deposition of P.W.1-Sattarkhan. He stated
that the accused were friends of his son Juber
(deceased). The accused used to come to his house. Two
months prior to the incident, accused No.1-Sk. Latif had
taken Rs.3000/- from Juber, but did not return the amount
even though Juber demanded it. On this count, prior to
the incident there occurred quarrel between accused No.1
and deceased Juber. One Maheboob pacified the quarrel.
On 15.08.2011 the accused came to his house. They asked
deceased Juber to accompany them for playing cricket.
The accused then took deceased Juber with them to the
playground. This happened at about 5=30 p.m. After half
an hour, Maheboob came to him and told that accused had
assaulted his son Juber by means of knife. So he and
Maheboob went to the playground on motor-cycle. This
ground was situated in front of Sumantai School. There
he saw Juber lying in pool of blood and he and Maheboob
took Juber to hospital on motor-cycle. On their way to
hospital, Juber told him that the accused assaulted him
by means of knife over money dispute. Juber became
unconscious. On reaching to hospital, Doctor declared
him dead. Thereafter, he lodged the complaint.
6. The prosecution also examined Maheboob as P.W.2.
He stated that on 15.08.2011 at about 6.00 p.m. while he
was standing on road in Kranti Nagar area, one Pramod
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came there and told him that Juber was assaulted by means
of knife on playground near Sumantai School. He then
went on motor-cycle to P.W.1-Sattar Khan's house and told
him what he had heard from Pramod. He took P.W.1-
Sattarkhan to a playground near the school, where he saw
Juber lying on the ground and the blood was oozing from
the injury on the chest. They then lifted Juber and took
him to civil hospital on motor-cycle. On the way, Juber
told his father which he heard that the accused had
assaulted him by knife over money dispute. Medical
Officer declared Juber dead.
7. Both P.W.1-Sattarkhan and P.W.2-Maheboob are not
eye witnesses. They have no occasion to go to the
playground to witness the incident.
8. P.W.3 is Pramod. He stated that he is a
businessman and uses his auto-rickshaw for it. Juber was
his friend. On 15.08.2011 at about 5.00 p.m. he and
Juber were standing near one Shahrukh's shop. He asked
Juber to go home. His house was situated close to the
place where they were standing. Thereafter, accused came
to Shahrukh's shop. From there they went to Juber's
house. They and Juber then went towards Sumantai school
playground for playing cricket. He collected money from
Shahrukh and started going towards the playground. He
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saw hot exchange of words taking place between accused
No.1-Sk. Latif and Juber. Accused No.1-Sk. Latif abused
Juber, took out knife from his pant pocket and delivered
stabs on Juber's chest and on both hands. Accused No.2
held Juber's hands while accused No.1 Sk.Latif was
stabbing him Juber sustained bleeding injury and
collapsed. He rushed to Kranti Nagar. He found Maheboob
there. He told Maheboob that accused assaulted Juber.
Maheboob then went P.W.1- Sattarkhan's house on his
motor-cycle. P.W.1-Sattarkhan and P.W.2-Maheboob then
went to the spot where the incident had taken place.
9. This witness is an eye-witness. He also
indicated that he knew the accused since prior to the
incident. Had he been there near Sharukh's shop, he could
have walked up to the playground where the incident took
place. He was thus in a position to see the incident. But
we are not inclined to believe him. We have mentioned
about gist of his deposition, but during cross
examination it was found that the narration about his
standing near the shop of the Sharukh meeting Juber and
accused etc. were statements made by him for the first
time when he came to the Court. All these details were
not disclosed to police at the time of recording of his
statement. He thus exaggerated his version in order to
make it more believable. The only part of his deposition
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which is not exaggerated is that he saw that accused
No.1-Sk. Latif was stabbing and accused No.2-Sk.Anwar was
holding hands of Juber. This part of the deposition
appears to us a tutored version. Assuming that this
witness saw the incident, what ought to have been his
natural reaction? He could have rushed towards victim
Juber either to help him or to stop the accused launching
their assault. He at least could have raised alarm and
he could have rushed to Juber's house which was nearby.
He had auto-rickshaw. He could have utilized this auto-
rickshaw to carry Juber to hospital immediately.
Instead, he said, he went to Kranti Nagar and informed
Maheboob about the incident. This act on his part does
not inspire confidence.
10. P.W.5-Tabrejkhan and P.W.6-Badrunissa are worse
than P.W.3-Pramod. P.W.5-Tabrejkhan at the relevant time
went to the scene of occurrence to call his younger
brother and to escort him home for taking meals. At that
time he saw the incident. Again this witness also
mechanically described the incident that accused No.1 Sk.
Latif stabbed Juber while accused No.2 Sk. Anwar held
his hands. He tried to catch hold of accused No.1-Sk.
Latif while he was running away. He said that accused
No.1-Sk. Latif gave jerk and heft him. While going away
he said accused No.1 threw away the knife. In the
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meantime P.W.1-Sattar Khan and P.W.2-Maheboob reached the
spot and they carried Juber to hospital. This witness
had came there to take away his younger brother who had
probably gone to playground for playing cricket or some
other game. Having seen such ghastly incident, the
natural reaction of this witness was to search his
younger brother and take him home. He did not say that
it happened. As said above he described the incident in
two sentences. He did not state that before the incident
abuses and altercation happened between the accused and
deceased Juber. His version that while running away
accused No.1 threw away his knife on the ground is an
utter lie even by the standard of the prosecution case.
The murder weapon was not found on the playground but
later on the roof of a temple. This witness thus is not
trustworthy and we reject his deposition.
11. P.W.6-Badrunissa is a woman aged about 40 years.
She said that on 15.08.2011 at about 6:00 to 6:15 p.m.
she went to playground of Sumantai School for calling her
son (her son had probably gone to playground for playing
games). She said - again mechanically - that accused
No.2-Sk. Anwar held the hands of deceased Juber and
accused No.1-Sk. Latif stabbed him. She again did not
give further details of the incident. In the cross-
examination she admitted that there were 10 to 15 people
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gathered around the incident. This witness again did not
state as to what happened to her son who had gone to the
playground. The deposition of this witness is
untrustworthy and we reject the same.
12. The eye-witness account of P.W.3-Pramod, P.W.5
Tabrejkhan and P.W.6-Badrunissa according to us is a
tutored version of the incident. The Investigating
Officer and the prosecution could have placed reliance on
the natural witnesses, such as the boys who were playing
on the ground at the relevant time and who could have
described the incident more coherently. This failure on
the part of the prosecution and the Investigating Officer
appears to us fatal to the prosecution case.
13. We are not inclined even to believe deposition
of P.W.1-Sattarkhan and P.W.2-Maheboob when they stated
that deceased Juber made a dying declaration while he was
being taken to hospital on motor-cycle. The Medical
Officer opined that the nature of injury suffered by the
deceased was so severe that he might have died within few
seconds.
14. There are two more circumstances in support of
the prosecution case. First is recovery panchanama
recorded under Section 27 of the Evidence Act about
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accused No.1's discovery of murder weapon. This incident
is also described in a very untrustworthy manner. The
prosecution case indicated that the murder weapon was
concealed on a roof of a temple. Accused No.1-Sk. Latif
indicated this place in presence of panchas. Admittedly
the roof of the temple was so high that accused No.1 Sk.
Latif, Panch and others were required to climb roof of
police vehicle and from there they went to the roof of
temple. The panchanama, however, did not mention this
exercise being undertaken at the time of the panchanama.
We are, therefore, not inclined to give importance to
this piece of evidence.
15. The last circumstance against the accused is
the fact that they admitted that their clothes were
stained with blood which could be that of the deceased.
After arrest, clothes from the persons of the accused
were taken in-charge and were sent for chemical analysis.
As said above the clothes were found stained with blood
but the accused tried to explain this circumstance
against them saying that after the incident they too went
to see Juber and for saving him and at that time their
clothes got stained with blood. The explanation given
by the accused is utterly untrustworthy and we reject it.
We hold that their clothes were found stained with blood.
Bloodstained clothes were recovered from the persons of
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the accused immediately on 16.08.2011. But in our view
this solitary circumstance in absence of other material
is not sufficient for convicting the appellants/ accused.
The appeal should therefore succeed. Hence the Criminal
Appeal is allowed and the following order is passed:-
i. The judgment and order passed in Sessions Trial
No.172 of 2011 on 08.11.2012 by Sessions Judge, Parbhani
is quashed and set aside.
ii. The appellants/accused are acquitted from the
offences with which they were charged.
iii. The appellants be released forthwith, if not
required in any other case.
iv. Fine amount, if paid, be refunded to the
appellants/accused.
[INDIRA K. JAIN,J.] [A.V.NIRGUDE,J.]
snk/2016/MAR16/crap675.12
