Bombay High Court
Gafar Illiyas Sayyed And Anr vs The State Of Maharashtra on 8 April, 2021
Bench: S.S. Jadhav, N. R. Borkar
j-apeal-440-14 & 1158-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 440 OF 2014
Sajid Shabbir Ahmed Shaikh ... Appellant.
(Org. Accused No.3)
V/s.
The State of Maharashtra ... Respondent.
WITH
APPEAL NO. 1158 OF 2019
1. Gafar Illiyas Sayyad
2. Abdul Rahim Abdul Latif Khan ... Appellants.
(Org. Accused Nos.1
and 2)
V/s.
The State of Maharashtra ... Respondent.
----------------
Mr. S.G. Kudle for the Appellant/Applicant in Appeal No. 440 of
2014.
Ms Snehal S. Chaudhary a/w. Mr. Shashikant Chaudhary,
Appointed Counsel for the Appellants in Appeal No. 1158 of
2019.
Ms P.P. Shinde, APP for the Respondent - State in both Appeals
----------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 04.02.2021.
PRONOUNCED ON : 08.04.2021.
COMMON JUDGMENT (PER N.R. BORKAR, J.)
1] Both these appeals are fled against one and same
judgment and order dated 21.01.2014 passed by the
Additional Sessions Judge, Greater Bombay in Sessions Case
No. 568 of 2012. Both these appeals were therefore, heard
together and are being disposed of by this common
judgment.
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j-apeal-440-14 & 1158-19.doc
2] By the impugned judgement and order, the appellants
in Criminal Appeal No. 1158 of 2019 (original accused Nos.1
and 2) and the appellant in Criminal Appeal No. 440 of 2014
(original accused No.3) have been convicted for the ofence
punishable under section 302 read with 34 of the Indian Penal
Code (for short "IPC") and sentenced to sufer Rigorous
Imprisonment for life and to pay fne of Rs.10,000/- each, in
default of payment of fne to sufer further Rigorous
Imprisonment for one year.
3] It is the case of the prosecution that on 01.05.2012, PW-
1 Kakasaheb M. Ghadge, who was attached to Shivaji Nagar
Police Station as Assistant Sub-Inspector, was on night
patrolling duty alongwith other police staf. On 02.05.2012, at
about 2.20 a.m., he was asked to reach at Kamlabai
Zopadpatti, near Jane Rehman Masjid, Baingawadi, Govandi
as one person was lying there in injured condition.
Accordingly, PW-1 came there and saw that one person was
lying there in injured condition. The injured was then taken to
the Sion hospital and was admitted in I.C.U. The complaint
was then lodged by PW-1.
4] On the basis of the complaint lodged by PW-1, Crime
No.140 of 2012 for the ofence punishable under section 307
of IPC was registered against the unknown persons. The
investigation of the crime was handed over to PW-9 PI Bharat
Pardeshi. It transpired during the investigation that the
injured was Javed Islam Khan @ Munna. It further transpired
during the investigation that accused Nos.1 to 3 along with
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one juvenile ofender assaulted the injured Javed Khan by
stone.
5] On 18.5.2012, the injured succumbed to his injuries.
Section 307 of the IPC was thus converted to 302 of the IPC.
On completion of investigation, the charge-sheet was fled
against the accused.
6] The accused were charged and tried for the ofence
punishable under section 302 read with 34 of the IPC. The
trial court, as stated earlier, convicted the accused persons
for the said ofence by the impugned judgement and order.
7] We have heard Mr. S.G. Kudle, the learned counsel for
the appellant/org. accused No.3 in Appeal No. 440 of 2014
and Ms Snehal S. Chaudhary a/w. Mr. Shashikant Chaudhary,
Appointed counsel for the appellants/accused Nos.1 & 2 in
Appeal No. 1158 of 2019 and Ms P.P. Shinde, the learned APP
for the respondent - State in both the appeals.
8] The trial court has found the accused persons guilty on
the basis of the evidence of the following eye-witnesses:
(i) PW-2 Mohammed Kayum Naeem Shah; &
(ii) PW-3 Raziabanu Kalim Shaikh.
9] Both the learned counsel for the appellants have
submitted that PW-2 cannot be relied upon, as he was picked
up as a suspect. It is submitted that even otherwise the
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j-apeal-440-14 & 1158-19.doc
conduct of PW-2 is not natural. It is submitted that the
evidence on record will show that enquiry was made by the
police in relation to the incident with the people who had
gathered at the place of incident, however, at that time
neither PW-2 nor PW-3 had disclosed to the police that they
had witnessed the incident. It is submitted that ultimately, the
report was lodged against unknown persons. It is submitted
that according to PW-3, at the time of incident, she was at the
house of one Afroz. It is submitted that there is no evidence
on record to show that PW-3 at the time of incident was at the
house of Afroz. It is submitted that on the contrary PW-9, the
investigating ofcer, has admitted that it did not transpire
during the investigation that at the time of incident, PW-3 was
at the house of Afroz. It is submitted that even the evidence
on record will show that the statement of PW-3 came to be
recorded after fve days of the incident. It is submitted that
PW-2 and PW-3, therefore, appear to be got up witnesses.
10] On the other hand, learned APP for the respondent -
State has supported the judgment and order passed by the
trial court.
11] PW-2 Mohammed Kayum has stated in his evidence that
on the day of incident, he was sleeping on the mezzanine
floor of an under construction building near the place of
incident. At about 1.30 a.m., he heard cries " Bachav,
Bachav". He, then, saw that the accused were assaulting one
unknown person. In the cross-examination, PW-2 has
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admitted that the police enquired with him on the next day at
about 12.00 p.m. He has further admitted that he did not
disclose about the incident to anybody else, till his statement
was recorded. He has further admitted that he was taken by
the police as suspect in the present crime.
12] PW-3 Razia Shaikh has stated in her evidence that at the
relevant time, she was residing in Room No.9, Road No.12,
Bainganwadi, Gowandi, Mumbai. PW-3 stated that on the day
of incident, she was at Afroz's house. She further stated that
at about 1.00 a.m., she woke up to answer nature's call. At
that time, she heard the sound of scufing. She therefore,
peeped through the hole to the door and saw that the
accused were assaulting the deceased. She further stated
that accused No.1 Gafar and juvenile ofender picked up a
stone and assaulted the deceased on his head. Thereafter,
accused No.2 Abdul Rahim and accused No.3 Sajid picked up
the same stone and assaulted the deceased again on his
head. She has further stated that the accused then fled from
the place of incident.
13] In the cross-examination, PW-3 has admitted that Afroz
has four daughters and one son and all the children of Afroz
were at home on that day. PW-3 has further admitted that she
is a divorcee and stays with her mother. She has further
admitted that there is no male members in her family. She
has further admitted that the police came at the place of
incident at about 2.00 to 2.30 a.m and she was there at that
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time. She has further admitted that enquiry in relation to the
incident was made with the people, who were there at the
place of incident.
14] It is apparent from the evidence of PW-3 that the
enquiry was made from the people who were present at the
place of incident about the deceased and the assailants.
However, it appears that PW-3 has not disclosed anything to
the police at that time, though she was present there at the
place of incident. It further appears that her statement came
to be recorded after fve days of the incident. Apart from it,
there is no evidence on record to show that on the day of
incident, PW-3 was at the house of Aforz. On the contrary, PW-
9, the investigating ofcer, has admitted that, it did not
transpire during the course of the investigation that, PW-3
was at the house of Afroz on the day of incident.
15] As regards PW-2, he was picked up by the police as
suspect. He too did not disclose to the police what he had
witnessed till next day. Considering these facts and
circumstances, it would not be safe to rely upon the evidence
of PW-2 and PW-3. The trial Court was, therefore, not justifed
in convicting the appellants/accused on the basis of evidence
of PW-2 and PW-3. In the result, the following order is passed.
ORDER
1] Criminal Appeal No. 440 of 2014 and Criminal
Appeal No. 1158 of 2019 are allowed.
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j-apeal-440-14 & 1158-19.doc
2] The impugned judgment and order dated
21.01.2014 passed by the Additional Sessions Judge,
Greater Bombay in Sessions Case No. 568 of 2012
convicting the appellants/original accused Nos.1 to 3 for
the ofence punishable under section 302 read with 34 of
the IPC is set aside and they are acquitted of the said
ofence.
3] The appellants/accused Nos.1 to 3 are in jail. They
be released forthwith, if not required in any other crime.
4] In view of disposal of criminal appeals, pending
Applications, if any, do not survive and they stand
disposed of.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
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