Bombay High Court
Bashir Sheikh @ Shetta Abdul ... vs The State Of Maharashtra on 19 September, 2017
Bench: A.A. Sayed
1 APEAL 94-12 @ APEAL 168-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.94 OF 2012
Bashir Sheikh @ Shetta Abdul Gaffar Sheikh. ]
Age : 39 years, ]
R/o. Motilal Chawl No.5, V. K. K. Nagar, ]
Behind Nokia Bar, Chembur, ]
Mumbai - 400 089. ] ... Appellant /
Orig. Accused No.1.
Versus
The State of Maharashtra ]
(At the instance of Senir Inspector of Police, ]
Tilak Nagar Police Station, vide their ]
C.R.No.10 of 2010) ] ... Respondent
ALONG WITH
CRIMINAL APPEAL NO.168 OF 2012
Mr. Babu @ Kalya Babu Ganthad Rehman ]
Shaikh ]
Age : 20 years, ]
R/o. Garib Janta Chawl, V. K. K. Nagar, ]
P. Y. Thorat Marg, Chembur, ]
Mumbai - 400 089. ] ... Appellant /
Orig. Accused No.2.
Versus
1. State of Maharashtra ]
2. The Senior Inspector of Police, ]
Tilak Nagar Police Station, ]
(C.R.No.10 of 2010) ] ... Respondent
Mrs. Anjali Awasthi for Appellant in Criminal Appeal No.94 of 2012.
Mr. H. K. Prem for Appellant in Criminal Appeal No.168 of 2012.
Mr. Y. M.Nakhwa, APP for State in both Criminal Appeals.
URS 1 of 11
::: Uploaded on - 19/09/2017 ::: Downloaded on - 20/09/2017 04:41:41 :::
2 APEAL 94-12 @ APEAL 168-12.doc
CORAM :- A. A. SAYED &
SARANG V. KOTWAL, JJ.
RESERVED ON :- 13 SEPTEMBER, 2017
PRONOUNCED ON :- 19 SEPTEMBER, 2017
JUDGMENT ( PER : SARANG V. KOTWAL, J.) :-
1. Both these Appeals are preferred by two different accused
challenging the same Judgment and Order dated 10/01/2012 passed
by the learned Extra Joint Adhoc Additional Sessions Judge, Sewree,
Mumbai, in Sessions Case No.285 of 2010 and therefore both these
Appeals are disposed off by this common Judgment. Criminal Appeal
No.94 of 2012 is preferred by the original accused no.1 Bashir Shaikh
@ Shetta Abdul Gaffar Shaikh and Criminal Appeal No.168 of 2012 is
preferred by the original accused no.2 Babu @ Kalya Babu Ganthad
Rehman Shaikh.
2. For the sake of convenience, the Appellants in both the
Appeals are referred to as the accused as per their serial numbers in
the Sessions Case. Both these accused were convicted under Section
302 read with 34 of the IPC and were sentenced to suffer
imprisonment for life and to pay a fine of Rs.10,000/- each and in
default of payment of fine, to suffer R.I. for two years. They were
acquitted from the charges for commission of offence under Section
504 read with 34 of the IPC. There was a third accused by name
Amina Hamja Shaikh who was acquitted of all the charges framed
against her i.e. under Section 302 and 504 read with 34 of the IPC.
URS 2 of 11
3 APEAL 94-12 @ APEAL 168-12.doc
3. The prosecution case pertains to the murder of one Shiva
Khabale. He was murdered outside his house in Krishna Menon
Nagar, Chembur, Mumbai. According to the prosecution case, both
these accused had assaulted Shiva with a knife at around 11.00 p.m.
on 08/01/2010. The FIR in this case was lodged by PW 1 Ujwala
Khabale who was the mother of the deceased. During investigation,
many suspects were arrested but against most of them charge-sheet
was not filed and it was filed only against the aforementioned three
accused. After filing of the charge-sheet, the case was committed to
the Court of Sessions for trial.
4. During trial, the prosecution examined 11 witnesses. PW
1 Ujwala Vilas Khabale was the mother of the deceased who had
lodged the FIR and she was examined as an eye witness to the
incident. PW 2 Dr. Baban Shavkha Tadvi had conducted the post-
mortem examination on the dead body of the deceased and had found
8 injuries on the dead body of the deceased out of which two were
incised wounds on the chest, one was an incised wound over the
abdomen and the rest were abrasions on the leg, shoulder and back.
Thus, the main injuries which had caused death were of the size 6cm
X 2cm and 9cm X 2cm both cavity deep on the chest and the cause of
death was shock due to stab and incised wound (unnatural). PW 3
Kumar Pille was the panch for spot panchanama. There is not much
dispute about the spot of incident. PW 4 Mayuri Vilas Khabale was
the sister of the deceased and was examined as another eye witness to
the incident. PW 5 Suresh Uttam Jadhav and PW 6 Kautik Namdeo
URS 3 of 11
4 APEAL 94-12 @ APEAL 168-12.doc
Sonavane were examined as the panchas in whose presence the
murder weapon i.e. knife and clothes were recovered at the instance
of accused no.1 from his house. The CA report tendered by the
prosecution shows presence of human blood of 'A' group on the knife
and presence of human blood on the clothes. However,the blood
group of the blood on the clothes was inconclusive. PW 7 PSI
Jagannath Bhivaji Kamble was the S.H.O. of Tilak Nagar Police
Station. On 08/01/2010 he had received the information about the
incident. He had gone to Rajawadi Hospital where the deceased was
taken. He had recorded the statement of PW 1 which was treated as
the FIR. The FIR was exhibited at Exh.46. PW 8 PSI Vijay Vishnu
Kadam was another Investigating Officer in whose presence the
recovery of weapon and clothes was effected. PW 9 Afzal @ Guddu
Majid Shaikh and PW 10 Mehmunabi Shaikh Madar Shaikh were
examined as the eye witnesses to the incident but they have not
supported the prosecution case and were declared hostile. PW 11 PI
Vilas Hiraman Shinde was the Investigating Officer who had
completed the investigation and had filed the charge-sheet.
5. Heard Mrs. Anjali Awasthi, learned Counsel for Appellant
in Criminal Appeal No.94 of 2012, Mr. H. K. Prem, learned Counsel
for Appellant in Criminal Appeal No.168 of 2012 and Mr. Y. M.
Nakhwa, learned APP for State in both Criminal Appeals.
6. The prosecution case is based on the evidence of two eye
witnesses i.e. PW 1 Ujwala Khabale and PW 4 Mayuri Khabale. PW 1
URS 4 of 11
5 APEAL 94-12 @ APEAL 168-12.doc
Ujwala had lodged the FIR. She has stated that at about 11.00 p.m.
on 08/01/2010, there was a quarrel between her son Shiva and the
boys from the neighbourhood. The quarrel took a serious turn and
therefore she took her son Shiva inside the house and latched the
door. Thereafter many people gathered outside their house and they
were throwing stones and hurling abuses at them. Getting annoyed,
Shiva went out. PW 1 and PW 4 followed him and they saw that
Shiva had fallen down and he was bleeding. This witness has deposed
that Shiva was assaulted with a knife by Kalya Babu and Amina's
brother. Amina and her daughter-in-law were abusing. This witness
has further deposed that Amina and her brother known as Shetta were
present in the Court. After narration of the incident, she deposed that
the police came with a vehicle and removed Shiva to Rajawadi
Hospital. She herself and her daughter PW 4 went with them. Shiva
was declared dead at the hospital and thereafter police recorded her
statement and treated it as FIR. Significantly, she has described the
assailants as Kalya Babu and one Amina's brother. Though she has
identified Kalya Babu as accused no.2 and Amina's brother whom she
had referred to as Shetta in the Court as accused no.1, in her FIR, she
has not mentioned the name 'Shetta' but she has merely stated that
Amina's brother assaulted. Moreover, she has not stated in her FIR
that Kalya Babu had assaulted by knife. This improvement from her
FIR is brought out on record in the cross-examination. Thus, as far as
the accused no.2 is concerned, there is an important omission in her
police statement in respect of his participation in the incident and
assault with knife on the deceased. As far as the accused no.1 is
URS 5 of 11
6 APEAL 94-12 @ APEAL 168-12.doc
concerned, his identity is seriously in dispute. In the FIR, she has
merely referred to the main assailant as Amina's brother. In the cross-
examination, she has admitted that she was not aware as to how
many brothers Amina had. Therefore in this circumstance, it was
imperative that the police should have conducted a test identification
parade to enable her to fix the identity of accused no.1 as the main
assailant who was described as Amina's brother in the FIR. There is
absolutely no explanation offered on behalf of the prosecution as to
why the identification parade was not held or why it was not possible
or was not felt necessary to hold the identification parade. It is quite
obvious that this witness was not knowing the accused no.1 by name.
No description of the assailants was given in the FIR. Therefore, we
are not inclined to place much reliance on the identification of
accused no.1 in the Court for the first time. It is also important to
note that before the trial Court, there were only three accused out of
whom one was a lady. Therefore, it was not very difficult for this
witness to have identified the accused no.1 sitting in the dock as
Amina's brother. She has also not explained as to how during the
deposition she was saying that Amina's brother known as 'Shetta', was
present in the Court. If she was aware that Amina's brother was
known as Shetta, she would not have failed to mention that Shetta
had assaulted. In her cross-examination, she has admitted that she
travelled to Rajawadi Hospital when her son was removed to the
hospital and at that time, she had not informed the police about the
name of the assailant. In her cross-examination, she has stated that
when she came out of her house, her son was lying in an injured
URS 6 of 11
7 APEAL 94-12 @ APEAL 168-12.doc
condition. In that case, she could not have seen the actual assault on
the deceased. She has further admitted in para 14 of her cross-
examination that she had told the police that the assailant was
unknown. In that view of the matter, is is extremely doubtful whether
she has witnessed the incident. Moreover, as mentioned earlier, the
identity of the accused no.1 as the assailant is not properly established
through her evidence. As mentioned earlier, there is an important
omission in respect of the role played by the accused no.2. Therefore,
the evidence of this witness is not reliable.
7. The next important witness is PW 4 Mayuri who was the
sister of the deceased. She has stated that on08/01/2010, there was a
quarrel between the deceased Shiva and the neighbouring boys and
after that Shiva was taken in the house by PW 1 and PW 4. Then
there was pelting of stones on their door. She heard the voice of the
accused Babu Kalya. Thereafter Shiva opened the door and went out
of the house. Thereafter PW 1 and this witness followed him. She
has further deposed that she knew the accused who were present in
the Court, and they were Amina's brother Shetta, Babu Kalya and
Amina. She has further deposed that the accused assaulted her
brother and that Amina's brother Bashir Shaikh @ Shetta assaulted
her brother by a big knife on his chest and stomach. Shiva fell down
in a pool of blood and then the accused ran away. Thereafter, Shiva
was admitted in the hospital by the police and this witness
accompanied them. From her deposition, it is clear that she has not
ascribed any specific role to the accused no.2 except making general
URS 7 of 11
8 APEAL 94-12 @ APEAL 168-12.doc
allegations that all the accused assaulted her brother. The specific
role is given to the accused no.1 that he assaulted her brother by a big
knife on chest and stomach. However in her cross-examination, she
has admitted in para 12 that she had not stated before the police in
her statement that Amina's brother Bashir Shaikh @ Shetta assaulted
her brother by a big knife on his chest and stomach. This was an
important omission from her police statement which is brought on
record. In fact, she has admitted in her cross-examination that she did
not know Bashir Shaikh (accused no.1) by his name and that she had
taken his name for the first time. She had also not mentioned
description of the unknown person in her statement and that during
recording of her statement by the police, she had not stated the name
'Shetta' to the police. Thus, it is quite obvious that she was not
knowing the accused no.1 at least by name and no identification
parade was held to enable her to identify the accused no.1 as the
assailant. Very significantly, in para 9 of her cross-examination, she
has clearly admitted that after one and half months, for the first time
police recorded her statement about the incident and that after one
and half months for the first time she had stated to the police as to
how and who assaulted her brother. In our opinion, this admission
destroys her evidence and we are not prepared to place reliance on
her evidence because she has not immediately or within a reasonable
time told the police about the assault and the assailants. Thus, she
had clearly implicated the accused as an afterthought. In fact, she has
given peculiar answers in her deposition, because, she has stated that
after they had received the dead body, they had gone to their native
URS 8 of 11
9 APEAL 94-12 @ APEAL 168-12.doc
place for funeral and they did not return to Mumbai till hearing of the
case and that she did not remember as to whether her supplementary
statement was recorded at Mumbai or at her native place. Therefore,
it is extremely doubtful as to whether even after one and half months
her statement was recorded by the police at all. Thus, we can only
conclude that she had not narrated the incident and the identity of the
assailants to the police before her deposition was recorded in the
Court during trial.
8. The other two eye witnesses i.e. PW 9 Afzal Shaikh and
PW 10 Mehmunabi Shaikh, as mentioned earlier, have turned hostile
and they have not supported the prosecution case and therefore we
have not taken their evidence into account.
9. The next circumstance brought on record by the
prosecution was in respect of recovery of clothes and knife which were
recovered at the instance of the accused no.1. This recovery was
effected from the house of the accused no.1 at his instance and as
mentioned earlier, the weapon shows presence of human blood of
group 'A' and the clothes show the presence of human blood. In this
respect, the learned Counsel for accused no.1 rightly submitted that
the two panchas examined by the prosecution to prove the recovery
have turned hostile and they have not supported the prosecution case.
Even if we take into account the evidence of PW 8 PSI Kadam in
respect of such recovery, he has admitted that it is not specifically
mentioned in the panchanama that the clothes and the weapon were
URS 9 of 11
10 APEAL 94-12 @ APEAL 168-12.doc
sealed by him. The panchanama is exhibited at Exh.54. In the said
panchanama, it is mentioned that the clothes and the weapons were
kept in one packet and a label with the signatures of panchas was
pasted on it. When this is seen in juxtaposition with the CA report
Exh24, it is seen that the CA report mentions that the CA had received
two sealed parcels with seals intact. Thus, when the panchanama
shows that there was only one packet and the CA report shows that
there were two sealed packets, the only inference which could be
drawn is that after seizure, there was a possibility of tampering with
the clothes and weapon when they were separated and put in
different packets but not in presence of the panchas. Therefore, we
are not placing much reliance on this recovery and the CA report in
that behalf.
10. With the result, we find that the prosecution has failed to
prove its case beyond reasonable doubt. Hence we pass the following
order :
ORDER
(i) Both the Appeals are allowed.
(ii) The conviction and sentence recorded by the learned Extra
Joint Adhoc Additional Sessions Judge, Sewree, Mumbai,
vide Judgment and Order dated 10/01/2012 passed in
Sessions Case No.285 of 2010, convicting both the
Appellants under Section 302 read with 34 of the IPC and
sentencing them to suffer imprisonment for life and to pay
a fine of Rs.10,000/- each and in default of payment of
URS 10 of 11
11 APEAL 94-12 @ APEAL 168-12.doc
fine, to suffer R.I. for two years, are set aside and the
Appellants are acquitted of the charges levelled against
them.
(iii) The Appellant in Criminal Appeal No.94 of 2012 is in
custody. He shall be released forthwith, if not required in
any other case.
(iv) The Appellant in Criminal Appeal No.168 of 2012 is on
bail. His bail bonds shall stand discharged.
(v) Both the Appeals are disposed off in the aforesaid terms.
(SARANG V. KOTWAL, J.) (A. A. SAYED, J.)
URS 11 of 11
