Bombay High Court
Iqbal Abrar Saifi vs The State Of Maharashtra on 7 September, 2017
Bench: V.K. Tahilramani
RJ APEAL 251 OF 2014.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.251 OF 2014.
Iqbal Abrar Saifi ]
aged: 35 years, ] Appellant
at present lodged at Kolhapur Central Jail ] Original
residing at Saat bangla, Versova, ] Accused
Andheri (W), Mumbai and Khanpur Daya ] No.1
Post Bholipura, ]
Tal. Bahedi, District: Bareli (U.P.) ]
V/s.
The State of Maharashtra ]
Through Versova Police Station ] Respondent
Bombay ]
Ms. Rohini M. Dandekar, appointed advocate
for the Appellant.
Mr. Arfan Sait, A.P.P., for the Respondent-
State.
CORAM : SMT. V. K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
RESERVED ON : 24TH AUGUST, 2017.
PRONOUNCED ON : 07TH SEPTEMBER, 2017.
RJ APEAL 251 OF 2014.doc
JUDGMNET : [Per: Dr. Shalini Phansalkar-Joshi, J.]
1. This appeal is preferred by the original accused No.1,
who has been convicted, in Sessions Case No.767 of 2008, by
the City Civil and Sessions Court, Mumbai, vide its judgment and
order dated 6.8.2013, for the offence punishable under Sections
302 and 201 of Indian Penal Code and sentenced to suffer
imprisonment for life and to pay fine of Rs.5,000/- in default to
suffer S.I. for five months, on the first count; and to suffer
imprisonment of six months and fine of Rs.1,000/- in default to
suffer S.I. for one month, on the second count.
2. Brief facts of the appeal can be stated as follows :-
On the night intervening between 7th and 8th August,
2008, P.W.1 ASI Deshwal was on night patrolling duty alongwith
P.W.11 Ijak Khare, in the Versova Mobile van No.2. At about 11.00
p.m., they received wireless message from the police station that
at Johara Agri "K" Building, one lady was being assaulted. Hence
on the receipt of this information, they immediately went to the
said spot and reached there at about 11.07 p.m. On enquiry with
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the persons gathered there, they came to know that some incident
has happened in Flat No.14 on the third floor of the said building.
Hence, they rushed to that flat. One person who was inside the
flat attempted to open the door. However, as soon as he
witnessed them, the said person tried to shut the door. However,
P.W.1 ASI Deshwal and P.W.11 Khare forced the door open and
entered in that flat. According to prosecution case, the person who
was inside the said flat and who obstructed these witnesses to
enter therein, was appellant herein.
3. It is further case of prosecution that these witnesses
noticed the blood stained clothes on his person and a fresh injury
on his face. On enquiry, appellant disclosed that since last about
three months, he was married with one lady by name Rani.
However, Rani started having affair with Deepak. Therefore, he
got annoyed and hence on that night, when he returned to the
house and found both Rani and Deepak in compromising position
on the bed in the hall, he started assaulting Deepak by fist-blows.
At that time, Rani inflicted blows on his head with wooden stick
(Latani). Therefore, he lifted an axe which was below the bed and
inflicted blow on the head of Deepak. Deepak sustained injuries
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and became unconscious. Seeing it, Rani attempted to run away,
but he assaulted Rani with axe on her head. While doing so, the
handle of the axe became loose, hence he brought knife from the
kitchen and inflicted knife blows on Rani and Deepak. According
to police, Rani was found in injured and unconscious condition in
bed room; whereas Deepak has already succumbed to the injuries
and his dead body was lying in the gallery of the hall. His brain
material had come out and therefore his dead body could not be
carried to the hospital. Inquest panchnama of his dead body was
made on the spot itself; whereas Rani was taken to the Hospital.
4. Meanwhile P.W.5 PSI Gujar, on receipt of this
information came to the spot, after making necessary station diary
entry. He made inquest panchnama of the deceased Deepak,
arrested appellant on the spot vide Exh.61. His personal search
was taken and in the search, some articles like gold ring of wrist
size, mobile phone etc. were found, which came to be seized
under panchnama. The clothes on his person viz. Pant and
banian were also found to be having blood stains thereon. They
were seized under panchnama. Thereafter he was brought to the
police station. At the spot, P.W.7 PSI Gujar noticed pool of blood
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in the gallery and in the bed room. He found huge quantity of
blood spread on the wall, on the bed and on the door planks of
the lavatory. Some documents pertaining to the property were
also found which came to be seized under spot panchnama vide
Exh.42.
5. On the same night, P.W.1 ASI Deshwal lodged
complaint on behalf of the State against the appellant vide
Exh.15. On his complaint C.R.No.226 of 2008 came to be
recorded at Versova Police Station. During the course of further
investigation, all these articles seized from the possession of the
appellant and from the spot of incident were sent to the Chemical
Analyzer alongwith the clothes of the deceased Rani and Deepak.
6. While in the police custody, on 09.08.2008, the
appellant gave disclosing statement, showing his readyness and
willingness to produce the axe and knife used in the commission
of the offence. His statement was reduced to memorandum
panchnama by P.W.8 PSI Shinde, in the presence of P.W.6 panch
witness Mohd. Haq.
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7. Thereafter the appellant guided police and panchas to
the flat where the incident has occurred. From that flat he
produced one knife, which was kept under the Refrigerator. The
said knife was having the blood stains. Thereafter the appellant
guided the police and panchas to the lavatory and from there, he
produced the blade of axe which was lying in the lavatory pot.
They were seized under panchnama vide Exh.44.
8. Further investigation of the case was taken over by
P.W.9 PI - Tarte. In his further investigation, role of original
accused No.2 Abu Bakar was transpired. He came to be arrested
on 11.8.2008. The role of his sister Nasrin Shaikh came to be
revealed and she was arrested on 12.8.2008.
9. P.W.9 PI Tarte, then recorded statement of the landlord
an Estate Agent of the said flat; wherein the incident has occurred
and it was revealed that there was some dispute relating to the
property between Rani and her husband accused No.2 Abu Bakar
with.
10. On 28.8.2008, appellant was produced before the
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Metropolitan Magistrate, as he expressed his desire to give
confessional statement and accordingly his confessional
statement came to be recorded by P.W.13 Metropolitan
Magistrate, Andheri - D.H. Sharma.
11. On the basis of the material collected during the
course of investigation, it was transpired that original accused
No.2 Abu Bakar wanted to eliminate Rani on account of property
dispute between them and hence alongwith his sister accused
No.3 Nasrin, he hatched conspiracy to kill Rani. As Deepak was
found with Rani, he was also eliminated. In view thereof, P.W.9 PI
Tarte filed chargesheet against all the three of them, for the
offences punishable under Sections 120(B), 449, 302 and 201 of
the Indian Penal Code.
12. In due course, case was committed to the Sessions
Court, Mumbai. Accused No.3 Nasrin came to be discharged on
her application. Her discharge was upheld by this Court in
Revision Application No.393 of 2009, by order dated 7 th May,
2012.
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13. As a result charge came to be framed against present
appellant and accused No.2 Abu Bakar vide Exh.36. Both of
them pleaded not guilty and claimed trial, raising the defence of
denial and false implication.
14. In support of its case, prosecution examined in all 13
witnesses. To prove his innocence, appellant also entered witness
box and gave evidence on oath.
15. On appreciation of this entire evidence, learned trial
Court was pleased to acquit the accused No.2 Abu Bakar holding
that there was no sufficient evidence on record to implicate him.
However, the learned trial Court was pleased to convict the
appellant, for the offences punishable under Sections 302 and
201 of Indian Penal Code and acquitting him of the charge of
Criminal Conspiracy under Section 120(B) of Indian Penal Code.
16. In this appeal, we have heard at length learned
counsel for the appellant and the learned APP. We have also
perused the evidence on record and impugned judgment of the
trial Court.
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17. According to learned counsel for appellant, the entire
case of prosecution is based on the circumstantial evidence.
However, the circumstances alleged against the appellant are
neither incriminating nor fully established, nor they are forming a
chain so complete as to lead to no other inference but that of the
guilt of the appellant alone. It is submitted that the evidence
adduced by prosecution does not prove that the appellant has any
motive, enmity or intention to kill deceased Rani or Deepak.
Appellant was totally a stranger, who had come to Mumbai just
few days before the incident. His evidence proves that he was
working as barber in the beauty parlour of Rani and was sleeping
on the platform outside beauty parlour of Rani. On the date of
incident, on the receipt of a phone call that Rani had called him,
he has rushed there and got himself entangled. It is urged that the
evidence on record proves that there was dispute relating to the
property between Rani and her husband original accused No.2
Abu Bakar. Rani has apprehension of danger to her life from
accused No.2. Merely because appellant was found on the spot
as he was called there, he is falsely implicated in the offence. It is
urged that no-one has seen appellant going to Rani's flat with axe
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or knife in his hand. He has given sufficient explanation for his
presence on the spot, by entering into witness box. However, the
trial Court has committed error in not accepting the same. Hence
according to learned counsel for appellant, this is a fit case where
the benefit of doubt needs to be extended to the appellant.
18. Per contra, learned APP has strongly supported the
impugned judgment by submitting that there is strong
incriminating circumstance of appellant being found on the spot
immediately after the incident and he was caught red handed with
blood stained clothes on his person and fresh injury on his
forehead. Moreover, at his instance the weapons of assault viz.
knife and axe were seized. According to learned APP, the
memorandum and seizure of panchnama to that effect is proved
through the evidence of Panch witness and Investigation Officer. It
is otherwise also admitted in the evidence. Moreover, there is no
cross examination of P.W.1 Deshwal and P.W.11 Khare as to the
immediate confession statement made by appellant before them
and on the basis of which F.I.R. was registered wherein it is
categorically stated that appellant has admitted that he has
assaulted Rani and Deepak with axe and knife. Thus, according
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to learned APP, the evidence on record is more than sufficient to
prove the guilt of appellant beyond reasonable doubt and hence
appeal needs to be dismissed.
19. This case is admittedly based on the circumstantial
evidence and totally four incriminating circumstances are alleged
by prosecution against appellant. The first circumstance is of
appellant being caught red handed with blood stained clothes on
his person at the spot. To prove this circumstance, prosecution is
relying on the evidence of P.W.1 Deshwal who was attached to
Versova Police Station and was on patrolling duty on that night.
He was accompanied by P.W.11 Khare. According to their
evidence, on that night at about 11.00 p.m., on the receipt of
wireless message, they rushed to the spot of incident, which was
at flat No.14 on the third floor of Johar-Agari "K" Building. There
they saw that appellant was attempting to open the door, but as
soon as he saw these witnesses, he tried to shut the door. They
pushed the door and entered into the said flat. Appellant started
scuffling with them. Hence, they caught hold of him and tied him.
They noticed blood stains on the clothes on his person and injury
on his face. On enquiry with appellant, he confessed to have
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assaulted the two persons in the said flat, namely Rani and
Deepak. According to him, he was married with Rani. However,
Rani started having affair with Deepak. He got annoyed against
them. On that night when he came to the flat, he noticed Rani and
Deepak in compromising position on the bed in the hall. So he
started hitting Deepak by fist-blows, at that time Rani inflicted blow
of wooden stick on him, so he got annoyed and lifted knife which
was below the bed and inflicted the blows on Deepak. But
thereafter, as Rani started to run away, appellant assaulted axe on
her head, she fell down. While removing the axe, blade of the axe
became loose, so he brought knife and again assaulted Rani. As
per evidence of P.W.1 ASI Deshwal and P.W.11 Khare, appellant
was caught red handed and was taken to the police station. On
the same night, P.W.1 ASI Deshwal lodged complaint against
appellant vide Exh.43. There is also evidence of P.W.3 Sayyed
Aslam in whose presence appellant confessed having assaulted
Rani and Deepak.
20. It is true that as regards this confessional statement of
the appellant made before these three witnesses, it cannot be
admitted in evidence, it being made before police and hence the
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trial Court has also rightly discarded the same. Their evidence,
however, goes to prove the presence of the appellant at the spot
of incident where; the dead bodies of Deepak and injured Rani
were found.
21. As held by the Apex Court in case of A. N. Venkatesh
and anr -vs- State of Karnataka, (2005) 7 SCC 714, relied upon
by the learned APP, presence of the appellant at the spot of
incident, that too with blood stained clothes, is relevant and
admissible in evidence irrespective of the fact whether the
statement made by him contemporaneously to these witnesses
cannot be admissible.
22. The F.I.R. lodged immediately after the incident by
P.W.1 ASI Deshwal on the same night contains all the details,
thereby giving sufficient corroboration, about presence and arrest
of appellant from the spot in blood stained clothes with fresh injury
on his forehead. There is also evidence of P.W.3 Sayyed
Jamiluddin, who was Estate Agent, was informed about the said
incident on phone and has rushed to the spot and found the
appellant being caught hold by P.W.1 ASI Deshwal .
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23. As a matter of fact, appellant is also not disputing that
when P.W.1 ASI Deshwal and P.W.11 Khare came to the spot, he
was very much present in the flat. He is also not disputing that at
that time, there were blood stains on his clothes with injury on his
face and he was taken to the police station immediately where the
complaint was lodged against him. Thus, as regards this
circumstance about presence of appellant with blood stained
clothes on the spot of incident and he being caught red handed
there, has been sufficiently proved on record.
24. The second circumstance is of recovery of weapons of
assault, at the instance of appellant. On this aspect, there is
evidence of P.W.6 panch witness Mod. Haq, P.W. 8 Crime
Detection Officer - PSI Shinde and P.W.9 PI Tarte, that during
police custody on the next day, appellant gave disclosing
statement that he will produce the weapons of assault; his
statement reduced to memorandum panchnama vide Exh.44.
Thereafter the appellant guided the police and panchas to the
spot of incident. From there he produced the knife which was kept
below the fridge in the flat. He further produced the blade of the
axe which was in the lavatory pot. Both these article Nos. 1 and 2
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were seized under panchnama. According to evidence of these
witnesses, both these articles were having blood stains thereat.
Nothing worthwhile is elicited in their cross examination to
disbelieve their evidence in any way.
25. The only contention raised is that at the time of spot
panchnama why these weapons were not found? However, the
evidence on record proves that these weapons were kept in a
concealed place. The knife was kept below the fridge and blade of
the axe was kept in the lavatory pot. It goes without saying that
the place at which these weapons were concealed, was in the
exclusive knowledge of the appellant. Hence, at the time of spot
panchnama, they might not have been found by the police.
26. The evidence on record also proves that the clothes
of the appellant were seized under panchnama at the time of his
arrest vide Exh.61. At that time blood stains were noticed on the
right portion of his pant and rightside of the banian. This fact is
proved through the evidence of P.W.8 Crime Detection Officer PSI
Shinde and panchas. These clothes were sent to Chemical
Analyzer and as per Chemical Analyzer's Report, blood stains
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having blood group of "A" which was of the deceased Deepak,
were found on these clothes.
27. All these three circumstances, in our considered
opinion, are of a clinching nature and no plausible explanation is
offered by the appellant to explain these circumstances. No doubt
appellant has examined himself and deposed that on that night
while he was closing the shop, one call was received on the
landline telephone, informing him that Rani has called him
immediately to her residence. Hence he went there. The door was
open from inside and somebody from inside hit him with hard
blunt object on his forehead, near right eyebrow. He was pushed
inside the flat and door was locked from outside. After a minute
he was able to see Deepak and Rani lying in a pool of blood. After
some time, police came and he narrated the incident to them.
28. However, in our view, there are inherent infirmities in
his explanation. According to him, the door was locked from
outside, however, the evidence of P.W.1 Deshwal and P.W.11
Khare does not support this fact because according to them, the
door was open and after seeing them, appellant tried to close that
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door, they, however, pushed it opened and went inside. Further, if
the appellant found that Deepak and Rani were lying in injured
condition in a pool of blood, there is no explanation as to why he
did not try to raise shouts and/or to inform the police or persons
nearby. Why he remained at the spot despite the door being not
closed from outside? Moreover, as observed by the trial Court,
appellant has not given consistent explanation about the injury on
his forehead. In his statement, recorded under Section 313 of the
Code of Criminal Procedure, he has stated that it was an old
injury; whereas in his evidence, he has stated that someone from
inside assaulted him and therefore, he sustained the injury.
29. Surprisingly, the appellant has also not offered any
explanation about the gold ring of wrist size which was found in
his possession, when the police opened the door and arrested
him.
30. Thus, there are total four circumstances which clearly
go to connect the appellant with the alleged offence. First,
appellant caught red handed on the spot of incident with blood
stained clothes; the second, blood stained clothes were of the
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blood group of the deceased Deepak; the third, recovery of
weapons of assault i.e. knife and and axe at the instance of
appellant from the place which was exclusively within his
knowledge; and the fourth, the recovery of gold ring like bangle,
belonging to Rani from his possession at the time of arrest from
the spot.
31. In our considered opinion, all these four incriminating
circumstances are of more than clinching nature, leaving no
manner of doubt about the guilt of the appellant. The conviction of
the appellant, therefore, as recorded by the trial Court does not
call for any interference. The appeal is, therefore, without merits
and hence stands dismissed.
[DR.SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K.TAHILRAMANI, J.]
