Bombay High Court
Mohd. Ashu @ Asif Mohd. Yakub And ... vs The State Of Maharashtra, Thr. ... on 2 March, 2017
Bench: B.R. Gavai
1 apeal245.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.245 OF 2015
1. Mohd. Ashu @ Asif Mohd. Yakub,
Aged about 25 years, r/o.
Al-Kabir Nagar, Near RTO
Office, Nagpur Road,
Yavatmal.
2. Shaikh Fahim Shaikh Gaffar,
Aged about 23 years, r/o.
Al-Kabir Nagar, Near Masjid,
Nagpur Road, Yavatmal.
3. Afsar Ali Chirag Ali,
Aged about 40 years, r/o.
Kumbharpura, Near Kabristhan,
Kalam Chowk, Yavatmal.
4. Shaikh Anwar @ Michmichya
Shaikh Ismail, Aged about
29 years, r/o. Al-Kabir Nagar,
Near RTO Office, Nagpur Road,
Yavatmal.
5. Syed Abrar Syed Rauf,
Aged about 35 years, r/o.
Al-Kabir Nagar, Near Masjid,
Nagpur Road, Yavatmal.
All appellants are presently in Central
Prison, Amravati. .......... APPELLANTS
::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:34:09 :::
2 apeal245.15.odt
// VERSUS //
The State of Maharashtra,
Through Police Station Officer,
Police Station, Yavatmal (City),
District Yavatmal. .......... RESPONDENT
____________________________________________________________
Mr.Suyog Deshpande, Advocate for Appellant No.1.
Mr.P.R.Agrawal, Advocate for Appellant Nos.2 & 5.
Mr.P.W.Mirza, Advocate for Appellant Nos. 3 and 4.
Mr.T.A.Mirza, A.P.P. for the Respondent/State.
____________________________________________________________
CORAM : B.R. GAVAI
AND
KUM.INDIRA JAIN, JJ.
DATE : 2.3.2017.
ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Being aggrieved by the Judgment and Order passed by
the learned Sessions Judge, Yavatmal in Sessions Trial No.48 of
2012, dt.16.5.2015 thereby convicting the appellants for the offences
punishable under Sections 147, 148, 341, 302 r/w. 149, 302 r/w.
120-B of the Indian Penal Code and u/s. 4/25 of the Arms Act and
sentencing them to suffer rigorous imprisonment for one year and to
3 apeal245.15.odt
pay a fine of Rs.500/- each, in default to suffer rigorous
imprisonment for one month for the offence punishable under
Section 147 of the Indian Penal Code; sentencing them to suffer
rigorous imprisonment for two years and to pay a fine of Rs.1,000/-,
in default to suffer rigorous imprisonment for one month for the
offence punishable under Section 148 of the Indian Penal Code;
sentencing them to suffer simple imprisonment for one month and to
pay a fine of Rs.500/- each in default to suffer simple imprisonment
for seven days for the offence punishable under Section 341 r/w. 149
of the Indian Penal Code; sentencing them to suffer rigorous
imprisonment for life and to pay a fine of Rs.5000/- each in default
to suffer rigorous imprisonment for one year for the offence
punishable under Section 302 r/w. 149 of the Indian Penal Code;
sentencing them to suffer rigorous imprisonment for life and to pay a
fine of Rs.5000/- each in default to suffer rigorous imprisonment for
one year for the offence punishable under Section 302 r/w. 120-B of
the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for one year and to pay a fine of Rs.500/- each in
default to suffer rigorous imprisonment for one month for the
offence punishable under Section 4/25 of the Arms Act, the
appellants have approached this Court.
4 apeal245.15.odt
2. The prosecution story, as could be gathered from the
material placed on record is thus :
That, on 4.11.2011, deceased Irfan Khan Rashid Khan
was proceeding by a Scooter in the night between 8.00 and 8.30 p.m.
from his house. The first informant namely Rizwan Khan Irfan Khan
(PW-1) and his friend Jamir Kazi were going to purchase medicine
by Honda Shine motorcycle. When they came near Pobaru Layout
near Aba Saheb Parvekar Vidya Mandir located on Yavatmal-Nagpur
Road, they saw that, in front of said school, all the accused encircled
father of the first informant. Accused nos. 3, 4 and 5 were having
Swords in their hands. Accused no.1 Mohd. Asif Mohd. Yakub was
having a big knife. All the accused were abusing his father. On seeing
the weapons in their hands, Rizwan Khan (PW-1) and his friend
Jamir Kazi got frightened and they hid themselves by the side of the
road. The accused brutally assaulted the deceased. The deceased fell
down from the Scooter. Thereafter, the accused ran away. Rizwan
Khan (PW-1) went near his father. However, he was not in a
condition to talk. Thereafter, the first informant went to his house
and narrated the incident to his relatives. They arrived at the spot.
Thereafter, the first informant went to the Police Station and lodged
5 apeal245.15.odt
report. On the basis of oral report of Rizwan Khan (PW-1) below
Exh.75, the First Information Report came to be lodged below
Exh.76. On the basis of the F.I.R., investigation was set into motion.
At the conclusion of the investigation, the charge sheet came to be
filed in the Court of learned Chief Judicial Magistrate, Yavatmal.
Since the case was exclusively triable by the learned Sessions Judge,
the same came to be committed to the Court of learned Sessions
Judge. The learned trial Judge framed the charges for the offences
punishable under Sections 147, 148, 341, 302 r/w. 149, 302 r/w.
120-B of the Indian Penal Code and under Section 4/25 of the Arms
Act below Exh.43. The accused pleaded not guilty and claimed to be
tried. At the conclusion of the trial, the learned trial Judge passed the
order of conviction and sentence, as aforesaid. Being aggrieved
thereby, the present appeal.
3. Mr.P.W.Mirza, learned Counsel for Appellant Nos. 3 and
4 submits that the learned trial Judge has grossly erred in convicting
the appellants. He submits that perusal of testimonies of Rizwan
Khan (PW-1) and Sofiya Shaheen (PW-2), who are so-called eye
witnesses, would reveal that they have not at all witnessed the
incident and were not speaking the truth. He further submits that
6 apeal245.15.odt
Sofiya Shaheen (PW-2) is a chance witness and her presence at the
spot itself is doubtful. The learned Counsel for the appellants,
therefore, submits that the order of conviction is not sustainable in
law and deserves to be set aside.
4. Mr.T.A.Mirza, learned A.P.P. submits that the
circumstance regarding recovery of the incriminating material under
the memorandum of the accused under Section 27 of the Indian
Evidence Act, which is duly proved by Imtiyazkhan Ayubkhan Pathan
(PW-5), also corroborates the ocular testimonies of Rizwan Khan
(PW-1) and Sofiya Shaheen (PW-2). He submits that the learned trial
Judge has given sound and cogent reasons for recording the order of
conviction which warrants no interference.
5. With the assistance of the learned Counsel for the
appellants and the learned A.P.P., we have scrutinized the entire
evidence on record.
6. The prosecution case mainly rests on the testimonies of
Rizwan Khan Irfan Khan (PW-1) and Sofiya Shaheen w/o. Imran
Khan (PW-2), who is the neighbour of the deceased. Rizwan Khan
7 apeal245.15.odt
(PW-1) states in his deposition that he resides in Tayede Nagar,
Yavatmal along with his grandfather Rashid Khan, grand mother,
father Irfan Khan, mother Nazembi and other relatives. He states
that, on 4.11.2011, he had returned to his house from garage at
around 6.00 to 6.30 in the evening. He and his father took meals and
were sitting. At that time, his father received a phone call that the
pan thela was broken. He and his father hurriedly proceeded. He
stopped at the pan thela at Tayede Nagar and told his uncle that his
father hurriedly had gone while driving scooter and asked him what
is the matter. His friend Jamir Kazi told him that he wanted to
purchase medicene and thus he had gone along with him towards
Kalamb Chowk. They both reached at Pobaru Layout near Aba Saheb
Parvekar Vidya Mandir. At that time, it was around 8.00 to 8.30 p.m.
The accused persons had encircled his father. Out of them, four
persons were having Swords in their hands and one was having a
Knife. Afsar Ali, Sk. Anwar, Syeb Abrar were having Swords and
Ashu @ Asif was having a long Knife like Sword. Fahim was having a
Knife in his hand. They started abusing his father and then they
assaulted his father. He witnessed the incident in the street light on
pole. He and his friend Jamir Kazi were frightened and seeing the
incident, they hid themselves. Then the accused ran away on two
8 apeal245.15.odt
vehicles towards Al-Kabeer Dargah. Accused Afsar Ali left away his
Sword on the spot. Thereafter, this witness and his friend came to
pan thela at Tayede Nagar and narrated the incident to his uncle
Israil. Thereafter, he went to his house and narrated the incident to
his grandfather, grandmother and other family members. They went
to the Police Station to lodge the F.I.R.
7. The statement of Rizwan Khan (PW-1) is also recorded
by the learned Magistrate under Section 164 of the Code of Criminal
Procedure. Perusal of the statement under Section 164 would reveal
that the version given by him in the statement under Section 164 is
totally different than what has been stated by him in the deposition.
In the statement u/s.164, he states that, after receipt of the phone
call that the pan thela was broken, the said witness and the deceased
immediately went to the R.T.O. Office. His father inspected the pan
thela which was found to be alright. He further states that when he
and his father were returning from the Pan thela, 4-5 persons had
encircled his father and assaulted him. It could thus be seen that
though, in his deposition, he states that he was going along with
Jamir, in his statement u/s.164, he states that he was along with his
father. The conduct of the said witness also needs to be noted. He
9 apeal245.15.odt
admits in his deposition that, after seeing his father in injured
condition, first of all he should have thought to take him to the
hospital to save him. He, however, further admits that, without
taking any care to save his father, he went to his house. He further
admits in his cross-examination that when the police took his father
to the hospital, he did not go with police or behind the police to the
hospital. He further states that, in that night, he did not go to the
hospital to meet his father. He further admits that, on going to the
house also, he did not tell names of the assailants to his relatives. He
further admits that, on the spot of incident, neither his uncle, aunt,
grandfather, grandmother and relatives informed anything to the
police. It is further to be noted that the said witness is an interested
witness cannot be a ground to discard his testimony. However, the
evidence of such witness has to be scrutinized with greater caution
and conviction could be rested only if the evidence of such witness is
found to be trustworthy, cogent and reliable. The conduct of Rizwan
Khan (PW-1), who admits that, even after his father was brutally
assaulted, he went home without taking the deceased to hospital and
his further conduct in not informing about the incident to his
relatives cast a serious doubt as to whether he has really witnessed
the incident or not.
10 apeal245.15.odt
8. Sofiya Shaheen w/o. Imran Khan (PW-2) is the
neighbour of the deceased and Rizwan Khan (PW-1). She states that
her marriage with Imran Khan took place on 27.2.2011. Till her
marriage, she was residing at her father's house at Tayede Nagar,
Yavatmal. She had been to Yavatmal with her husband on 2.11.2011
to attend the marriage of daughter of his father's elder brother. She
states that the incident took place on 4.11.2011.On that day, she had
been to the house of Akbar Bano Mehmood Khan, his grandmother
for taking meals along with her husband. They took meals at 7.00
p.m. At 8.00 to 8.15 p.m. she and her husband proceeded on foot
towards Tayede Nagar. She saw that five persons were assaulting to
a Scooter rider with Swords and Knives. She saw that the Scooter
rider fell down and the accused ran away. She went near the Scooter
rider and found that he was known to her. His name was Irfan Khan
Rashid Khan and he was residing near her house. Thereafter, Rizwan
Khan and Zamir Khan came there and they went towards their
house. She further states that the police vehicle came there.
9. In her cross-examination, Sofiya Shaheen (PW-2) clearly
admits that her father was not having elder brother and he was the
eldest amongst them. As such, the very purpose for which she says
11 apeal245.15.odt
that she had come to Yavatmal casts serious doubt. She admits that
she has not handed over the Invitation Card to Police. The following
admissions in her cross-examination would totally shatter her
testimony.
" On 4.11.11 and 5.11.11 police were visiting Tayede
Nagar. I was knowing it because my house is near it. It is
true that in the night of 4.11.11 and 5.11.11 police had
made inquiry with me and I stated to police what I was
knowing and police recorded it. It is true that on 6.11.11
police had come to me in the evening. It is true that at
that time police told me that they require one witness to
depose about the incident before the Court. It is true that
on 6.11.11 I told the police that I am ready to become the
eye witness of the incident. It is true that accordingly my
statement was prepared as eye witness. It is true that as
per the statement dated 6.11.11, I deposed in the court. It
is true that I done my duty as a neighbour. "
10. There is another angle. According to this witness Sofiya
Shaheen (PW-2), out of five accused, three were armed with Swords
and one was armed with a big knife and the fifth appellant was
armed with another knife. Dr.Sachin Janbaji Gadge (PW-3), who was
12 apeal245.15.odt
working as an Assistant Professor, Department of Forensic Medicine,
V.N.G.M.C., Yavatmal on the day of incident, in his evidence below
Exh.80, states that on examination of the deceased, he had found the
following external injuries :
" 1) Stab wound over right side of the back, placed
obliquely downwards towards right side, margins, clean cut
and both angles acute of size 9 cm. X 2 cm. X cavity deep
and on approximation 9.4 cm. In length and fusiform in
shape. Stab wound is 17 cm. from right anterior superior
iliac spin 4 cm. from spine of L4 vertebra and 94 cm. from
right malleolus. "
Tract of the stab wound :
Skin subcutaneous tissue - muscles of the back -
abdominal cavity (retroperitonel) - transecting inferior
venacava and abdominal aorta at the level of L4 vertebra.
Direction of the stab wound - Medially and forwards.
2) Incised wound over left thumb medially of size 3 cm. x
1 cm. x subcutaneous deep. Margins, clean cut, with tailing
upwards on approximation 3.2 cm.
3) Incised wound over left hand dorsally of size 3 cm. X
0.5 cm. x subcutaneous deep. Obliquely downwards
13 apeal245.15.odt
laterally with margins, clean cut and tailing medially on
approximation 3.1 cm.
4) Incised wound over left thenar aspect of hand (palm)
extending to dorsal aspect of thumb of size 12 cm. X 2 cm. x
muscle deep. On approximation 12.5 cm. Margins, clean
cut and tailing both ventrally and dorsally.
All injuries have margins, blood infiltrated. All the
injuries were ante mortem and fresh.
11. If the version of the eye witnesses is to be believed, then
there ought to have been multiple injuries on the person of the
deceased. We find that the ocular testimonies of the so-called eye
witnesses are also falsified by the medical evidence. Apart from that,
the only evidence as against appellant no.3 Afsar Ali Chirag Ali and
appellant no.5 Syed Abrar Syed Rauf is very memorandum under
Section 27 of the Indian Evidence Act and consequent recovery of
weapons and clothes used by the appellants while committing the
crime. It is to be noted that these recoveries are from the houses of
the aforesaid accused which are inhabited by other members of the
house. It is not the case that the said places were distinctly within the
knowledge of the said accused persons alone. Apart from that, the
14 apeal245.15.odt
fact that needs to be noted is that Imtiyazkhan Ayubkhan Pathan
(PW-5) is the panch to almost all the panchanamas including
memorandum u/s.27 and consequent recoveries thereto. He has
clearly admitted in his cross-examination that deceased Irfan was his
real cousin. It is also relevant to refer to paragraph 8 of his cross-
examination, which reads thus :
" I am daily-wages labour. I used to go for my work at about
10 am. and I return back to home at 5 pm. On 9.11.11
policeman had come to me for calling me. Police Station is on
the distance of 2 km. from my house. Police stated me at my
house that documents of seizure panchanamas are prepared
and I have to go to Police Station for putting signatures.
Accordingly, I reached to Police Station and signed the
documents. It is correct to say that I signed the papers during
5.30 to 6.30 on that day. "
12. From the aforesaid admission of Imtiyazkhan Ayubkhan
Pathan (PW-5), it could clearly be seen that the above memorandum
and recoveries are totally farcical in nature.
13. In that view of the matter, we find that the prosecution
has utterly failed to prove the case beyond reasonable doubt. The
15 apeal245.15.odt
appeal, therefore, deserves to be allowed. Hence, the following
order.
// O R D E R //
The Criminal Appeal is allowed.
The Judgment and Order of conviction passed
by the learned Additional Sessions Judge, Yavatmal are
hereby quashed and set aside.
The appellants are acquitted of the offences
punishable under Sections 147, 148, 341, 302 r/w.
Section 149, 302 r/w. Section 120-B of the Indian Penal
Code and under Section 4/25 of the Arms Act.
The appellants shall be set at liberty forthwith,
if not required in any other case.
The amount of fine, if any paid, be refunded to
the appellants.
JUDGE JUDGE
[jaiswal]
16 apeal245.15.odt
