Mohammad Hanif Ismail Khan Ajmeri ... vs The State Of Maharashtra And Anr
2016 Latest Caselaw 5389 Bom

                                                   Criminal Appeal No.868/2015
                                            1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                          
                                   BENCH AT AURANGABAD




                                                  
                        CRIMINAL APPEAL NO.868 OF 2015




                                                 
     1)       Mohammad Hanif s/o Ismail
              Khan Ajmeri, Age 41 years,
              Occu. Labour, R/o Islampura Khujnair,
              Taluka / District Raigad
              (Madhya Pradesh)




                                         
     2)       Akbarkhan s/o Khudabakshkhan
                             
              Mansuri, Age 48 years, Occu. Labour,
              R/o Islampura Khujnair,
              Taluka / District Raigad
                            
              (Madhya Pradesh)
                                               ...  APPELLANTS
                                               (Original Accused)

              VERSUS
      


     1)       The State of Maharashtra
   



              (Copy to be served on
              the Public Prosecutor,
              High Court of Judicature
              of Bombay, Bench at Aurangabad)





     2)       Prakash s/o Vitthal Sapate,
              Age 47 years, Occu. Hotel,
              R/o Chapdgaon, Tq. Karjat,
              District Ahmednagar
              (No.2 deleted vide order





              dated 26/2/2016, passed
              by Hon'ble Court)
                                                  ...      RESPONDENTS


                       .....
     Shri Sk. Mazhar A. Jahagirdar, Advocate for appellant
     Shri B.A. Shinde, A.P.P. for respondent/ State
                       .....




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                                                                Criminal Appeal No.868/2015
                                                    2


                                      CORAM:            A.I.S. CHEEMA, J.




                                                                                      
                                      DATED:            20th September, 2016.




                                                             
              Date of reserving judgment : 24th August, 2016
              Date of reserving judgment : 20th September, 2016.


     JUDGMENT:

1. This appeal has been filed by original accused No.1

Mohd. Hanif and accused No.2 Akbar Khan Khudabaksh

against their conviction under Section 307 read with Section

34 of The Indian Penal Code, 1860 (IPC in brief). The

judgment was passed by Additional Sessions Judge,

Ahmednagar on 27.10.2005 in Sessions Case No.48/2007.

They have been sentenced to suffer rigorous imprisonment for

5 years and to pay a fine of Rs.5000/- and in default to suffer

simple imprisonment for three months.

2. Being aggrieved, this appeal has been filed. The

case of prosecution in short is as follows :

(a) The complainant P.W.2 Prakash Sapate has a

Dhaba i.e. Highway Hotel, by name "Sonali Dhaba"

at some distance from village Chopadgaon, Taluka

Karjat, District Ahmednagar on Ahmednagar

Criminal Appeal No.868/2015

Solapur Road. In the night between 14.12.2006

and 15.12.2006, he was admitted at about 11.35

p.m. at Gokul Hospital, at Karmala, District

Solapur, which is run by P.W.5 Dr. Anil Motiram.

He was admitted due to stab injury on his

abdomen over epigastric region with also a cut to

the cartilage of left side 9 th rib. He was operated.

His statement was recorded by Police Head

Constable of Karmala Police Station at about 1.00

a.m. and Crime No.0/2006 came to be registered

at Karmala Police Station at about 1.30 a.m. on

15.12.2006 under Section 307 read with Section

34 of the Indian Penal Code. The F.I.R. was

transferred to Karjat Police Station in the

jurisdiction of District Ahmednagar, the area to

which the incident was relating to. At Karjat Police

Station and offence came to be registered at

No.221/2006 at 12.30 noon of 15.12.2006.

(b) In the F.I.R., the complainant informed about

his family and stated that he has land where he

has been running Sonali Dhaba, which functions

day and night. On 14.12.2006 at about 9.30 p.m.,

he was on his Dhaba. Some trucks had stopped at

Criminal Appeal No.868/2015

the Dhaba and the Drivers were having food. His

brothers Subhash and Machindra were also at the

Dhaba as well as servants were there. At that

time, one truck came and stopped there and two

unknown persons in black clothes got down and

from another truck which was standing there, they

started stealing diesel from the tank, at which time

complainant asked them as to why they were

stealing diesel. When he so asked those persons,

from those two persons, one person took out a

knife and gave a stab injury to him between chest

and stomach part of the body and he fell down

giving out a big shout. At that time, those two

persons in the truck, having No.MP-09/KB5656, in

which they had come, ran away in the same truck

towards Karmala. The incident had been seen by

his brothers and employees on the Dhaba.

On the basis of such F.I.R., the offence was

registered as mentioned. It is further the case of

prosecution that, the victim remained in hospital

for some days and after he was discharged, he

again started working on his Dhaba. At such time,

on 11.1.2007, at about 7.00 p.m., when he was on

Criminal Appeal No.868/2015

his Dhaba, he noticed another truck bearing

No.MP-09/KB-6817 proceeding from Ahmednagar

to Karmala side and noticed that the same two

persons who were involved in the incident of

stabbing him on 14.12.2006 were going. He took

along other persons from his Dhaba and with 5-6

persons followed the said truck and managed to

stop the truck near Nisarg Dhaba of Shivaji

Ghanwat (P.W.4) and identified and caught those

persons. On being asked, they gave their names

as (1) Mohd. Hanif Ismail Khan and (2) Akbar

Khan Khudabaksh Khan Mansuri. The complainant

made phone call to police and police came and

caught hold of the two accused and also seized the

truck. From the truck, the police seized interalia

plastic cans smelling of kerosene and diesel as well

as knife. The panchanama (Exh.57) was drawn in

presence of panchas including P.W.7 Kakasaheb

Shivne by P.S.I. Prakash Khandekar (P.W.9). In

the investigation, police recorded statements of

witnesses for both the incidents dated 14.12.2006

as well as 11.1.2007. Spot panchanama had

already been drawn when the F.I.R. was registered

Criminal Appeal No.868/2015

and blood stained clothes of the complainant had

also been seized. Test identification parade was

also held. After investigation, the charge sheet

came to be filed. The charge when framed, the

accused persons have taken defence of denial.

3. The prosecution examined 9 witnesses to prove its

case. The trial Court considered the oral and documentary

evidence and convicted the accused and sentenced them as

mentioned above.

4. I have heard counsel for both sides. The learned

counsel for the appellants - accused referred to the evidence

brought on record and his argument is that, the identity of the

accused persons was not duly established. Referring to the

evidence of witnesses, it is stated that, the witnesses were

confused not only with regard to the manner in which incident

took place but also which accused did what. The witnesses

were giving different stories of the incident. P.W.3 Housrao

did not identify any accused in the test identification parade

which was got held by the police, but identified the accused

persons in the Court. There was even difference of versions

regarding recovery of knife. According to the counsel, the

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trial Court has not recorded reasons on the basis of which the

conviction could be maintained. Trial Court simply referred to

the arguments and without recording its own reasons,

accepted the case of prosecution and convicted the accused.

5. Per contra, the learned A.P.P. supported the

conviction recorded by the trial Court. According to A.P.P.,

there is sufficient evidence to prove that the accused persons

acting in furtherance of common intention, stabbed the

complainant. According to the evidence of the doctor, P.W.5

Anil, the stab injury caused to the complainant was sufficient

in ordinary course of nature to cause death. According to the

A.P.P., in para 20 of its judgment, the trial Court recorded

sufficient reasons to convict the accused and the appeal

should be dismissed.

6. I have gone through the evidence. Before

discussing the evidence regarding the incident, it would be

appropriate to keep in view the spot of incident. Apparently,

the spot is claimed to be near Sonali Dhaba on the

Ahmednagar Solapur Road. The portion is of Highway and the

incident occurred at about 9.30 p.m. The spot panchanama

Exh.41 has been proved by P.W.1 Nagesh Ghanwat. This was

Criminal Appeal No.868/2015

recorded on 15.12.2006 at about 3.00 p.m. The spot

panchanama shows that, Machindra Sapate (P.W.6) showed

the spot to the police and panchas, which was about 1 km.

from Chapadgaon, abutting the Highway. He showed the

place in front of the hotel of Housrao Shelke (P.W.3). The

said hotel was adjoining the Highway having a small open

area sufficient for one or two trucks to stop. It was stated

that, at such place, the truck No.MP-09/KB-5656 (which was

referred in the F.I.R.) had stood in the night and with persons

from such truck, the complainant had a quarrel regarding

theft of diesel. The brother of complainant P.W.6 Machindra

informed that, from such place, the complainant had caught

hold of one person and was taking him along to his own Hotel

Sonali and had reached at about 500 ft. away when that

unknown person by a sharp instrument stabbed the

complainant and ran away. That spot where stabbing took

place, was in front of the Gotha of Mahadeo Kale. The spot

panchanama then recorded what was situated to the East-

West of the spot concerned. Thus, as per the spot

panchanama, the complainant had caught hold of one of the

unknown persons near the truck No.MP-09/KB-5656 standing

in front of the hotel of P.W.3 Hansrao and while he was taking

him away to his own hotel and was at about 500 ft., the

Criminal Appeal No.868/2015

stabbing took place. The cross-examination of P.W.2 the

complainant Prakash shows that, from his sitting counter at

his own Dhaba Sonali, the trucks stand stationary at about

100 ft. In the cross-examination, he stated that, the pan stall

of Sitabai Shelke from his hotel is at about 400 mtrs. It may

be recalled that, the name of P.W.3 is Housrao Shelke. The

cross-examination did not make it clear, but possibly same

pan stall was being referred. Substance is that, the pan shop

of P.W.3 Housrao was at quite a distance. From the Dhaba of

complainant, if one was to keep in view that these are pan

shops and Dhaba on Highway and the concerned time was of

9.30 p.m., it would be dark vicinity. The complainant

admitted in his cross-examination that, his own hotel is at

distance of about 100 ft. from the road. The pan shop of

P.W.3 Housrao was abutting the highway with open space only

for 1-2 trucks. P.W.3 Housrao in his cross-examination stated

that, he was unable to give description of the truck as it was

dark. P.W.3 Hansrao has actually deposed that, at the time of

incident, there was complete darkness. In his evidence

regarding the incident, at one place he deposed that, two

persons, who had jumped from the truck and started coming,

could not be seen by him properly due to truck lights and so

he could not identify the accused before the Court.

Criminal Appeal No.868/2015

7. Keeping the above spot in view, it would be now

appropriate to refer to the evidence regarding the incident. I

have already referred to the contents of the F.I.R. Exh.43,

which in plain terms mentioned that, two unknown persons in

black clothes, had got down and were stealing diesel and

when complainant objected, one of those persons stabbed the

complainant and both of them ran away in the truck No.MP-

09/KB-5656, by which they had come. No role was attributed

to the second person who was amongst the two. The cross-

examination of P.S.I. P.W.9 Prakash shows that, he did not

make any investigation with reference to that truck so as to

establish any link between the truck in which the assailants

and the accused persons had escaped. After keeping in view

the F.I.R., if the evidence of complainant is seen, he deposed

that, there were some trucks stationary near his hotel and

some persons had come to the hotel and out of those persons

some were taking out diesel from another truck and

committing theft including one person by name Hanif. For

this, the complainant pointed out towards one of the accused

in the Court who stated his name to be Akbar (that would be

accused No.2). The complainant deposed that, he went to

catch the culprits and asked them why they were taking out

Criminal Appeal No.868/2015

the diesel and there was hot altercation. Admittedly, the

brothers and other staff of the complainant were at the Dhaba

and if hot altercation took place, it was not a case of sudden

stabbing and running away. The complainant deposed that,

out of the two persons one caught him and the other stabbed

him. In evidence, the complainant then again pointed out

towards accused No.2 Akbar as the person who stabbed him

and again stated that his name was Mohd. Hanif, the accused

No.1. He was not able to tell the name of the other accused

which would actually be Mohd. Hanif. Thus, at two places in

his evidence, he referred to accused No.2 naming him as

Mohd. Hanif, the accused No.1. This confusion in names,

would not be material and can be stated to be natural when

assailants were not known to the complainant and he had

caught them after some days of his discharge from hospital

and the evidence was being recorded after many years in

2015. However, material is whether the prosecution

witnesses are even clear as to who actually stabbed and

whether there is consistency in the evidence of witnesses

regarding what exactly happened.

8. As mentioned, although in the F.I.R., actual role

was attributed to one of the two thieves, in oral evidence,

Criminal Appeal No.868/2015

complainant claimed that, out of the two one held him and the

other stabbed him. Now if evidence of P.W.3 Housrao is

examined, in front of whose Hotel and pan shop the concerned

Truck No.MP-09/KB-5656 was standing, he deposed that, at

the time of incident, one truck came there and a person

alighted from the truck, who was identified by the complainant

and caught by him as a diesel thief. P.W.3 did not claim that

two persons arrived and were stealing diesel when

complainant caught them.

ig He says that, moment a person

alighted from the truck, complainant caught him as a diesel

thief. P.W.3 deposed that, when complainant caught the said

person, the truck in which he had come, left and the

complainant started taking that person towards his hotel and

asked P.W.3 to follow him towing his motorcycle. P.W.3

deposed that, when this was taking place, the truck returned

back and "some persons" jumped down and assaulted the

complainant by knife. This P.W.3 was unable to give the

name of the person who assaulted by the knife but pointed

towards accused No.1 Mohd. Hanif as the person who had

stabbed. He deposed that, two persons came to ask him but

he ran away towards his Vasti and, as mentioned, two

persons, who had jumped from the truck and started coming

towards him, could not be seen by him properly due to the

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truck lights. Thus, if the evidence of P.W.3 is kept in view, he

states about involvement of more than two persons in the

incident.

9. Now if evidence of P.W.6 Machindra is seen, he

claims that, the incident took place in front of his hotel Sonali

Dhaba. He deposed that, some outsiders were taking out

diesel of a tank from the truck and his brother Prakash -

complainant had gone to them. He claims that, he had

followed his brother and saw at that time that one of the

persons who was taking out diesel, assaulted the complainant

by knife and Prakash, the complainant fell down. This P.W.6

referred to the accused persons as the diesel thieves and the

assailant, but did not try to say which of them had stabbed.

Even this P.W.6 has deposed in cross-examination that there

was no light on the spot of incident. Thus, these witnesses

P.W.2 complainant, P.W.3 Housrao and P.W.6 Machindra are

giving different versions of the incident and the number of

persons involved as well as who did what.

10. The complainant claimed that he was admitted in

the hospital for three weeks. Thus, this would be till the first

week of January 2007. However, the medical case papers

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Exh.52 would show that he was discharged on 26.12.2006. I

would not give much emphasis on date when he was

discharged. Material is that, the complainant admitted that

after he was discharged from the hospital, doctor has advised

him to take bed rest for another 15 days. He deposed that,

he was taking rest at the hotel. Complainant then claimed

that, on 11.1.2007, at about 6.00 p.m., he was on his hotel

and at that time, the accused were proceeding by truck going

towards Karmala.

ig He states that, he saw them and he

identified and so he chased them and caught them near Toll

Naka. He states that, he was accompanied by 4-5 persons.

According to him, the accused were traveling in a truck

No.MP-09/KB-6817. He deposed that, there was no hotel at

the spot where the accused were caught. Then he claimed

that, the accused before the Court were same. According to

him, the Karjat Police was informed on phone and they took

both the accused to Karjat Police Station. It appears that,

test identification parade was carried out and he later on

identified the accused. This would be immaterial as the

complainant himself claimed that he had caught the accused

from the Highway. Now if other evidence is seen, P.W.4

Shivaji has deposed that, on 11.1.2007 at about 7.00 - 7.30

p.m., he was on his Nisarg Dhaba and the complainant and 3-

Criminal Appeal No.868/2015

4 other persons had chased a vehicle and intercepted the

same near the Dhaba and caught two persons from the

vehicle. According to him, the two persons were confined in

the room of his Dhaba while the police was called. P.W.7

Kakasaheb also claimed that he was at the Nisarg Dhaba when

the complainant and other persons had caught diesel thieves

in their truck and brought them to Nisarg Dhaba. He also

referred to the truck number No.MP-09/KB-6817. Thus, the

complainant claimed that, he chased the accused and caught

them at the Toll Naka and nearby there was no hotel, but

these two other witnesses claimed that, the complainant had

caught the diesel thieves near Nisarg Dhaba and brought them

there and handed over to police.

The seizure panchanama Exh.57 was prepared. In

addition to the truck, the other articles like plastic cans, pipe

as well as seizure of knife was shown from the truck. Where

exactly the truck of accused was stopped and they were

caught is not very important. Contra evidence is that, the

prosecution showed recovery of knife from the said Truck

No.MP-09/KB-6817 and which knife has been identified in

Court as the instrument of assault. Material is that, P.W.6

Machindra, who had shown the spot to the police, deposed in

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cross-examination (para 7 of his evidence) that he had seen

Article 7 knife, lying on the spot for the first time and that the

said knife was handed over to the police by waiters of the

Dhaba. Thus, if the knife before the Court was the same

instrument by which the assault took place, is also doubtful.

11. In the cross-examination of complainant (who had

written in his F.I.R. registration number of a truck from

Madhya Pradesh) was suggested that he had falsely implicated

the accused persons as they were traveling in vehicle having

Madhya Pradesh R.T.O. passing. The complainant denied the

suggestion. He was further suggested that to take revenge of

culprits of M.P. about earlier incident, he had involved the

present accused. The suggestion was again denied. Although

these suggestions have been denied, fact remains that, if the

F.I.R. is seen, no description of the culprits was given to the

police when the F.I.R. was filed. Neither at the time of F.I.R.

when the victim may have just come out after operation nor

soon thereafter any statement was recorded regarding the

description of the assailants. Admittedly, at the spot of

incident it was dark. There are different versions in evidence

whether immediately when complainant objected to the theft

one of the assailants stabbed or the stabbing took place when

Criminal Appeal No.868/2015

one of the thief was being taken along to the Dhaba of

complainant. If the incident had suddenly occurred, when

theft was objected as was mentioned in the F.I.R., there

would be hardly sufficient time to see the assailants properly

when it was dark in the area and there would be no

opportunity for P.W.3 Housrao or P.W.6 Machindra to seen the

assailants properly. Keeping in view the incident as it

occurred on 14.12.2006, catching of the accused persons on

11.1.2007, in the manner in which complainant claimed, I find

that it was merely on suspicion with M.P. registration of the

vehicle giving encouragement to the complainant to claim that

it was these accused only who were assailants. As discussed

above, the witnesses including the complainant are totally

confused regarding which assailant did what. The complainant

who had caught the accused persons himself and verified their

names from them so as to give supplementary statement to

the police, was unable to even correctly refer to the accused

persons in evidence. It would be difficult to rely on his

identification. He has also given different versions where in

evidence he attributed role to both the accused which was not

what is stated in the F.I.R.

12. The endorsement on the top of F.I.R. Exh.43 has

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some scribbling like Doctor's make in the time of 1.00 a.m. on

15.12.2006. The scribbling has not been proved, but if the

evidence of P.W.5 Dr. Anil is perused, the evidence is that,

the complainant was brought to the hospital at 11.35 p.m.

with stab injury. According to Doctor, there was profuse

bleeding and patient was in shock. Operation was suggested

and carried out. The doctor appears to have operated the

complainant in the night itself. If the medical case papers

Exh.52 proved by this witness are seen, there are anesthesia

notes in the date of 15.12.2006 with time shown as 1.30 a.m.

interalia recording that high risk consent has been taken.

There are notings regarding the pulse and B.P. etc. Then

there are further notings and at 2.30 a.m. the recording is

that, the patient was responding to verbal commands and was

shifted to the Ward. Looking to such endorsement on the

F.I.R. Exh.43 of 1.00 a.m. and then endorsement in the case

papers, it would have been appropriate for the prosecution to

examine Head Constable who had recorded Exh.43 or brought

on record from the evidence of the complainant himself the

necessary details as to how the F.I.R. was recorded. Rather,

the complainant claimed that, police had recorded his

statement in the hospital, but he did not remember. Then he

was shown Exh.43 and he accepted that it was correct. Thus,

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the manner in which the F.I.R. was recorded is also not clear.

13. There is evidence of P.W.8 Prakash Ghanwat that

the clothes of the complainant were seized on 15.12.2006

vide panchanama Exh.60. The complainant in evidence

claimed that, the white shirt which was before the Court, was

the same which he was wearing at the time of incident. The

Court itself noted that, the shirt did not have a corresponding

cut on the shirt.

ig When the Court noted this, the A.P.P.

appears to have brought on record from the mouth of

complainant that he was assaulted from the gap of shirt

button and, therefore, there was no corresponding cut mark

from the said shirt. However, it has further come on record

that, the shirt had blood stains only on the lower side and on

the back side. Even if by co-incidence the knife passed from

the space between the shirt buttons, if it was bleeding injury

between ribs and portion of stomach, the natural conduct

would be to hold on to the injury so that the flow of blood

could be reduced. As mentioned, the evidence of P.W.5 Dr.

Anil shows that, when the complainant was brought to the

hospital, he had profuse bleeding. When this is so, merely by

claiming that the stab went through near the gap of button

would not be enough. When there are no corresponding blood

Criminal Appeal No.868/2015

stains of profuse bleeding on the shirt, it is doubtful if this

was the same shirt which was worn at the time of incident.

Thus, there are some reasons to suspect the manner in which

the investigation has been done.

14. I have gone through the judgment of the trial

Court. The trial Court accepted the ruling cited by the A.P.P.

before the trial Court, which laid down that the evidence of

injured witness ig cannot be brushed aside for minor

discrepancies. Trial Court, on such basis, ignored the

discrepancy being seen in this record claiming that they were

minor. It also ignored the contradictions and omissions on

the basis that the incident was of 2006 and evidence was

being recorded in 2015. I am aware that the evidence of an

injured person has to be given weight and when there is a gap

of many years, minor discrepancy will have to be ignored.

However, my discussion above shows that there are material

variations not only regarding which accused did what, but also

there are reasons to doubt if there was real opportunity to the

complainant and the witnesses to properly see the assailants.

There are discrepancies even regarding the manner in which

the incident occurred. Peripheral details can be ignored, but

these are major discrepancies. Trial Court gave much

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weightage to the recovery of knife from the truck of the

accused without noting the evidence of P.W.6 Machinda who

has deposed that the knife was found on the spot and was

handed over to the police by the staff of the Dhaba. Taking

overall view of the evidence, I am unable to agree with the

trial Court. There are serious doubts if the appellants -

accused were the assailants of the complainant. It would be

risky to convict these appellants.

ORDER

For such reasons, the appeal is allowed. The

conviction of the appellants - original accused Nos.1 and 2

and the sentence as imposed by the trial Court are quashed

and set aside. The appellants - accused are acquitted of the

offence punishable under Section 307 read with Section 34 of

the Indian Penal Code, 1860. The appellants - accused, who

are in jail, shall be released forthwith unless their presence is

required in any other offence. Fine, if paid, be refunded to

them.

(A.I.S. CHEEMA, J.)