Rashid Ahmed Abdul Bashar Shaikh vs The State Of Maharashtra
2021 Latest Caselaw 15024 Bom

                                      APPEAL-61-2013-APPEAL-292-2014-J.doc




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

             CRIMINAL APPELLATE JURISDICTION


              CRIMINAL APPEAL NO.61 OF 2013


RASHID AHMED ABDUL BASHAR SHAIKH               )
Aged 21 years, Occupation : Service,           )
Residing at Diamond Garden, Opp. K Star,       )
Unnati Mandal, Road No.5, Plot No.301,         )
Chembur, Mumbai - 400043.                      )...APPELLANT

      V/s.

THE STATE OF MAHARASHTRA                       )
At the instance of Chembur Police Station      )
Vide C.R.No.532/2010                           )...RESPONDENT


                             WITH

              CRIMINAL APPEAL NO.292 OF 2014


NAUSHAD BADRUDDIN SHAIKH                       )
Age 20 years, Indian Inhabitant,               )
Residing at Kena Market Zopadpatti,            )
Tata Nagar Haji Beef Shop, Govandi,            )
Mumbai - 400043.                               )...APPELLANT

      V/s.

THE STATE OF MAHARASHTRA                       )
At the instance of Chembur Police Station      )
Vide C.R.No.532/2010                           )...RESPONDENT


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                                       APPEAL-61-2013-APPEAL-292-2014-J.doc




Mr.Daulat Khamkar, Advocate, for the Appellant in Appeal No.61
of 2013.
Dr.Yug Choudhary, Advocate for the Appellant in Appeal No.292
of 2014.
Smt.S.V.Sonawane, APP for the Respondent - State.


                CORAM : S. S. SHINDE &
                        V. G. BISHT, JJ.

DATE : RESERVED ON : 4th OCTOBER 2021 PRONOUNCED ON : 14th OCTOBER 2021

JUDGMENT : ( PER : V. G. BISHT, J.)

1 The present appeals have been preferred against the

judgment and order of conviction and sentence dated 30 th

November, 2012 passed by the learned Additional Sessions Judge

at Sewree, Mumbai, in Sessions Case No.318 of 2011, wherein

the learned trial Court was pleased to convict the appellants

under Section 302 read with 34 of the Indian Penal Code (IPC),

Section 324 read with 34 of the IPC and Section 506 (II) read

with 34 of the IPC and sentenced them to suffer life

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imprisonment and to pay fine of Rs.10,000/- each, in default to

suffer simple imprisonment for 6 months for the offence

punishable under Section 302 read with 34 of IPC, sentenced

them to suffer imprisonment for 1 year and to pay fine of

Rs.1,000/- each, in default to suffer simple imprisonment for 1

month for the offence punishable under Section 324 read with 34

of IPC and also sentenced to suffer imprisonment for 6 months

and to pay fine of Rs.1,000/- each, in default to suffer simple

imprisonment for 15 days for the offence punishable under

Section 502 (II) read with 34 of IPC. The substantive sentences,

however, are directed to run concurrently.

2 The prosecution was initiated on the basis of a

complaint filed by Smt.Shamshad Maqsood Khan (informant).

Appellant Rashid Ahmed Abdul Bashir Shaikh (A-2) is a

neighbour of informant. On 20th November 2010 at about 6.30

a.m. Nasreenbanu, sister-in-law of informant, visited latter's

house and informed that the tin sheets of her house are missing

and expressed doubts that A-2 might have taken it. According to

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the prosecution, the informant and said Nasreenbanu visited the

house of A-2 but he was not there. They met A-2's sister and

brother and enquired about the tin sheets. At that time, a heated

exchange of words took place and the siblings of A-2 asked

informant and her sister-in-law that they should ascertain it from

A-2.

3 The prosecution next contends that at about 11.00

p.m. somebody knocked the door of the house of the informant.

The informant opened the door and saw A-2 standing there along

with a person who was wearing green coloured half-shirt and

black jeans. The prosecution alleges that A-2 then asked the

informant to send her husband namely Maqbool (since deceased)

outside as he wanted to have words with him. The deceased got

up to tell A-2 from inside the house that he will have a word with

him on the next morning. It is alleged that A-2 caught hold of the

hand of deceased and dragged him outside. At the relevant time,

the informant's daughter namely Kausar was also standing near

the door. It is further alleged that all of a sudden A-2 took out a

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chopper which was concealed around his waist and gave a blow

of the same on the neck and shoulder of the deceased. The

unknown person, who was wearing green half shirt, also gave a

blow of chopper on the head of the deceased. When informant's

sister-in-law namely Nasreenbanu came running, she was also

assaulted by the person wearing green half shirt by means of

chopper on her left hand. The informant and family members

then raised commotion as a result of which the neighbours woke

up and tried to apprehend A-2 and other unknown persons.

However, all of them brandished their weapons at neighbours

and threatened that whosoever comes near would be killed and

then fled away in an autorickshaw. However, the person wearing

green half shirt was apprehended on the spot and the people

from the locality gave him a beating. The deceased was then

rushed first to Shatabdi hospital and then to Sion hospital. It

appears that during the course of treatment the deceased

succumbed to the injuries.

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4 The informant, later on, lodged the First Information

Report (FIR) with Police Station Chembur on the basis of which

Crime No.532 of 2010 for offences punishable under Section

302, 307, 324, 506(2) and 34 of Indian Penal Code, Section 4

and 25 of Arms Act as well as Section 37(1)(a) and 135 of the

Bombay Police Act came to be registered. The investigation was,

firstly, taken up by PW8 Sunil Kadam who arrested the A-1,

namely, Naushad Badruddin Shaikh and was brought in the

Police Station itself. He also seized clothes viz. green shirt and

black jeans of A-1 and a chopper which was concealed in the

pant. He also recorded supplementary statement of the

informant after the death of the deceased and drew Inquest

Panchnama. He further visited the spot of occurrence and

prepared Spot Panchnama, seized clothes of deceased and later

on handed over the investigation to Police Inspector Kasar

(PW10).

5 PW10 Investigating Officer on his part recorded the

Disclosure Statement of accused Rashid Ahmed Abdul Bashar

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Shaikh (A-2) under Section 27 of the Indian Evidence Act and

seized his clothes and weapon used in the offence at his instance.

He also forwarded all the seized articles to the Forensic Science

Laboratory and after completion of investigation forwarded the

charge-sheet against all the accused under Section 302, 307, 324,

506(2) and 34 of Indian Penal Code, Section 4 and 25 of Arms

Act as well as Section 37(1)(a) and 135 of the Bombay Police Act

and the case was committee to the Court of Sessions, Sewree,

Mumbai.

6 To substantiate the Charges against the appellants

and other accused, the prosecution examined as many as ten

witnesses and exhibited number of documents. The present

appellants were questioned under Section 313 of the Code of

Criminal Procedure (Cr.P.C.) about the incriminating evidence

and circumstances and the appellants-accused denied all of them

as false and also expressed ignorance. A-2 expressed his desire to

examine defence witness in support of his defence and

accordingly has examined two defence witnesses in support of his

case.

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7 Dr.Yug Chowdhary, learned Counsel for appellant-A-1,

has submitted written submissions in support of the appeal.

Perused. The learned Counsel also advanced oral submissions

which are nothing but reiteration of the written submissions. The

learned Counsel also placed reliance on Kanan vs. State of

Kerala1, Ramesh vs. State of Karnataka2, Hari Nath vs. State of

Uttar Pradesh3, Raja Ram vs. State of Rajasthan4 and Assoo vs.

State of Madhya Pradesh5. We would be considering the

submissions of the learned counsel and the reliance placed on the

various decisions as and when required and at an appropriate

stage.

8 Mr.Khamkar, learned Counsel for the appellant-A-2,

submits that the alleged incident took place in a thickly

populated area. There were witnesses as claimed by the

prosecution but despite that not a single independent witness is

examined by the prosecution. The whole evidence adduced by

1 (979) 3 SCC 319 2 (2009) 15 SCC 35 3 (1988) 1 SCC 14 4 (2005) 5 SCC 272 5 (2011) 14 SCC 448

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the prosecution is quite shaky and does not inspire confidence.

The learned Counsel during the course of argument invited our

attention to various portions of the cross-examination of material

witnesses, namely, PW1 and PW2 and termed them highly

interested and got up witnesses. The learned Counsel forcefully

submitted that the defence of plea of "alibi" taken by the accused

is duly proved by examining defence witnesses. In such

circumtances, according to the learned Counsel, the benefit or

doubt should be extended in favour of appellant- A-2.

9 Ms.Sonawane, learned APP, on the other hand,

vehemently opposed submissions of the learned Counsel for the

appellants-accused. According to the learned APP, PW1 to PW3

are natural eye witnesses and therefore, they cannot be termed

as interested witnesses. Moreover, except there being very minor

contradictions, which are bound to occur after such a long time,

there has been consistency throughout amongst the versions of

witnesses. Moreover, according to the learned APP, all the

injuries as noted in the postmortem notes correspond to the

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ocular evidence and as also Injury Certificates issued by the

concerned Medical Officer. There being no infirmity in the

impugned judgment and order of conviction, the same should not

be interfered with by this Court, argued learned APP.

10 Before looking into the evidence of material

witnesses, we propose to refer to the postmortem report prepared

by PW11 Dr.Rajesh Chandrakant Dere (Exh. 44).

11 PW11 testifies in his evidence that on 21 st November

2010 he performed an autopsy over the dead body of Maksud

Makbul Khan (deceased) in between 12.55 p.m. to 2.30 p.m.

According to him, the deceased had sustained following external

injuries :

"1. Vertical chop injury present over forehead and frontal area on right side of size 10 cm x 1 cm, bone deep with cutting of outer table of underlying bone, with bevelling on left side, red in colour.

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2. Chop injury present over right parietal and temporal area, 9 cm below injury no.1, of size 8 cm x 1 cm, bone deep with cutting of outer table of underlying bone, with bevelling on upper side, red in colour.

3. Chop injury present over right parietal area, 10 cm left to injury no.1 of size 7 cm x 3 cm, bone deep with cutting of outer table of underlying bone, with bevelling on upper side, red in colour.

4. Vertical incise injury present over antero-superior aspect of shoulder on right side of size 10 cm, 0.8 cm, muscle deep with downward tailing of injury, red in colour.

5. Incise injury present over shoulder at the base of neck 5 cm medial and parallel to injury no.4, of size 4 cm x 0.8 cm, muscle deep, with tailing of injury on anterior aspect, red in colour.

6. Chop injury present over poster-superior aspect of shoulder on right side, of size 8 cm x 2 cm, muscle deep with bevelling on right side, with tailing of injury on anterior aspect, red in colour.

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7. Incise injury present over the base of neck on left side, of size 14 cm x 2.5 cm, muscle deep, with tailing of injury on anterior aspect of injury, red in colour.

8. Chop injury present over postero-superior aspect of shoulder on left side, 2 cm medical and posterior to injury no.7, of size 15 cm x 2 cm muscle deep with bevelling on right side, red in colour.

9. Incise injury present over shoulder on left side, 2 cm lateral to injury no.7 of size 17 cm x 1.5 cm subcutaneous deep, with tailing of injury on anterior aspect, red in colour.

10. Oblique incise injury present over shoulder on left side of size 7 cm x 0.8 cm., subcutaneous deep, middle part merging into injury no.9 with tailing on lower end, red in colour.

11. Chop injury present over anterior aspect of left shoulder joint, of size 9 cm x 2 cm, muscle deep, with bevelling of injury on left side, red in colour.

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12. Chop injury over chest on left side, 3 cm above and lateral to left nipple, of size 8 cm x 4 cm, muscle deep, with bevelling on inferior aspect of injury, red in colour.

13. Vertical incise injury present over anterior aspect of middle part of left arm, of size 10 cm x 5.5 cm. muscle deep with tailing of injury on inferior aspect, red in colour.

14. Oblique chop injury over postero medial aspect left forearm, of size 9 cm x 7 cm, muscle deep with bevelling of injury on inferior aspect, and tailing on right side, red in colour.

15. Vertical incise injury present over back on left in upper 1/3rd part, of size 27 cm x 1.5 cm, muscle deep, with tailing of injury on superior aspect, red in colour.

16. Incise injury over dorsal aspect of left middle finger, 1 cm x 0.2 cm, muscle deep, red in colour.

17. Incise injury over antero-medial aspect of left ring finger, of size 2.5 cm x 1 cm, bone deep with cutting of underlying bone, red in colour.

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18. Abrasion over posterior aspect of right elbow joint, 2 cm x 2 cm, red in colour."

It is his further evidence that all injuries were ante-mortem.

Except injury no.18, rest of the injuries were possible by either

butcher's knife (Article F) or dagger (Article C). According to

him, the cause of death was "hemorrhagic shock due to multiple

chop injuries." He then proved postmortem report at Exh. 45.

12 Although this witness was cross-examined by the A-2

and other accused but nothing material could be extracted in the

cross-examination. There is also no dispute as to the homicidal

death of the deceased. Having regard to the evidence in respect

of injuries found on the dead body of the deceased by means of

weapons, as is deposed by Autopsy Surgeon, we do not entertain

any doubt in our mind that the deceased met a homicidal death.

13 We have carefully gone through the prosecution

evidence with the help of the learned counsel and the learned

APP. Eye witnesses to the incident in question are admittedly

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only family members of informant including herself. There are

three eye witnesses, whom the learned counsel for defence have

termed as highly related and interested witnesses. How far their

respective testimonies are to be believed or not will be looked

into closely, cautiously and guardedly and whether in the facts

and circumstances of the case they really can be termed as highly

interested witnesses. We, therefore, propose to quote their

testimonies chronologically followed by appreciation.

14 PW1 Smt.Shamshad Maqsood Khan, informant, states

in her evidence (Exh. 18) that she knows Rashid Ahmed Abdul

Bashar Shaikh (appellant - A-2) who is her neighbour. On 20 th

November 2010, at about 6.30 p.m., her sister-in-law i.e. Nasreen

Maqbool Noor Mohd. Banu (PW2) had been to her house and

enquired about her teens which were allegedly kept by her. The

informant pleaded ignorance and suggested her to ask about the

same to appellant - A-2 as prior to two months, he had taken her

teens from her mother-in-law for his house and thought in a like

way he might have taken the teens. PW2 then went to the house

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of appellant - A-2 along with informant. They enquired with

Rahim and Shaheen who were present in the house of appellant

- A-2. However, Shaheen started quarreling with PW2 and asked

her to enquire with her brother i.e. appellant - A-2.

15 It is her further evidence that at about 8.00 p.m. her

husband (deceased), who was sleeping, woke up. She apprised

him about the aforesaid incident. Her husband thereafter went to

the house of Nasreen Maqbool Noor Mohd. Banu i.e. PW2. She

also accompanied her husband. Both of them asked Nasreen

Maqbool Noor Mohd. Banu to keep mum and not to quarrel.

16 The informant's evidence then shows that at about

11.00 p.m. somebody knocked the door. She opened the door

and noticed appellant - A-2. Appellant - A-2 told her that he

wanted to talk to her husband i.e. deceased. She asked him to

come in the morning but he insisted to send her husband for two

minutes. One person wearing green coloured half shirt i.e.

appellant - A-1 was also with him and he also insisted to send

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her husband out. Her husband accordingly woke up and went

near the door and asked appellant - A-2 to come in the morning.

The informant alleges in her evidence that appellant - A-2 then

caught the hand of the deceased and pulled him outside the

house. Appellant - A-2 thereafter removed a chopper which was

hidden by him and gave blows on the shoulder as well as throat.

The person wearing green shirt then removed a dagger and

assaulted the deceased with the same on the head. According to

the informant she and her daughter (PW3) who were standing at

the door started raising hue and cry. There were two other

persons with appellant - A-2 and that persons were wearing half

green shirt. They were in all four and started giving continuous

blows with the chopper and knife on the person of the deceased.

17 It is her further evidence that her sister-in-law (PW2)

after hearing her cries came running. The person wearing half

green shirt (appellant - A-1) then assaulted her sister-in-law

(PW2) with chopper on the left hand. The neighbours had

gathered. The assailants then started running and also gave

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threats with the weapons they had by saying that nobody should

interfere, otherwise they would commit murder. The persons

from the area chased those assailants. One rickshaw was

standing on the road. Three persons boarded the said rickshaw

and fled. However, the person wearing half green shirt (i.e.

appellant - A-1) was caught by the persons from the locality and

was assaulted.

18 Her evidence then shows that they took her husband

to Shatabdi hospital but on advise of doctors, shifted him to Sion

hospital. Thereafter, she and her sister-in-law (PW2) went to the

Police chowky and they saw that person wearing green coloured

half shirt was sitting there. She then apprised the police that the

said person had assaulted her husband on his head. The police

then revealed his name as Naushad i.e. appellant - A-1. She also

gave the description of other two assailants and accordingly

lodged the report. She then proved her report at Exh. 19.

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19 PW2 Nasreen Maqbool Noor Mohd. Banu, sister-in-

law of the informant, in her evidence (Exh. 20) has supported

the evidence of PW1 informant. She has deposed all about her

visits to the house of informant and the enquiry made by her in

respect of teens followed by her and the informant visiting to the

house of appellant - A-2. Her evidence further corroborates the

evidence of the informant to the effect that at about 11.00 p.m.

while she was watching television, she heard hue and cry of

informant who was saying "bachav bachav". When she went

there she noticed appellant-A-2 and three others were

indiscriminately assaulting her brother with chopper and knife.

When she tried to intervene, the person wearing green half shirt

(i.e. appellant - A-1) tried to assault her on her neck and in order

to protect her, she raised hand due to which she sustained injury

on the left hand. The appellant - A-1 was having a knife in his

handd and with that knife he wanted to give blow on her neck.

20 The rest of her evidence is in consonance with the

evidence of the informant regarding conduct of the appellants

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and other accused, shifting of the deceased to Sion hospital and

then their visit to the police station wherein she also found

appellant - A-1 sitting in the police station. Her evidence also

shows that they then apprised the police that it was the appellant

- A-1 who also had assaulted the deceased.

21 The last witness, namely, Kumari Kausar Maqsood

Khan, a child witness and daughter of the informant, states in her

evidence (Exh. 21) that on 20th November 2010 she was sleeping

in the house. She heard knocking of the door. When she woke up

she noticed that her mother was opening the door. She also

noticed appellant - A-2 with one person wearing green coloured

half shirt. They were outside the door. According to her,

appellant - A-2 asked her mother to send her father as he wanted

to have a word with him. When her father went near the door,

the person wearing green shirt had caught the hand of her father

and pulled him. She followed her father in the lane and noticed

that there were two other boys as well in the lane. It is her

further evidence that appellant - A-2 then gave a blow with a

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chopper on the head of her father. She raised hue and cry and

called her mother. Her mother came there. She also noticed that

the appellant - A-2 and the person wearing green shirt were

assaulting her father with the chopper which is always used for

cutting beef. She then identified both the accused before the

Court.

22 Reading of evidence of witnesses particularly PW1

and PW2 as a whole, we are more than satisfied that their

substantive evidence is in consonance with the contents of the

FIR. We have also carefully gone through the cross-examination

of PW1 and we note here that there is no specific and precise

denial as to the version of the informant that the appellant-A-1

along with appellant-A-2 had been to her house and had

assaulted deceased by means of chopper and dagger. The only

suggestion given in the cross-examination by the learned counsel

for the appellant- A-1 is that, which is termed as incorrect, she

has deposed falsely that appellant - A-1 had assaulted her

husband.

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23 Similarly, a suggestion was given by the learned

counsel for the appellant-A-2 that neither appellant-A-2 was

present on the spot nor he had assaulted her husband by any

weapon which is again stoutly denied by the informant. From

this line of suggestion it is apparent that the appellant-A-2 has

taken a plea of "alibi". Interestingly, we may note here that while

the incriminating circumstances appearing in the evidence of

prosecution witnesses against him were put to him, surprisingly

no such plea of alibi is taken by the appellant-A-2. On the

contrary, Question Nos.9, 10, 11, 12 and 13 pointing out not only

his presence on the spot but his act of assaulting the deceased by

means of a chopper and then fleeing from the spot in a rickshaw

are termed as false. While answering these questions, the

appellant-A-2 had ample opportunity to clarify that since he was

not present on the spot, as is claimed by him through the line of

cross-examination, there could not have been any occasion to

visit the house of the informant and indulge in murderous

assault, as is alleged by the prosecution. Therefore, this becomes

an incriminating circumstance against the appellant-A-2.

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24 Similarly, the appellant-A-1 was posed two questions

in his statement recorded under Section 313 of the Code of

Criminal Procedure. Question No.7 is to the effect that one

person wearing green coloured half shirt who was with

appellant-A-2 was none else than he and then he was asked to

respond to that circumstance. The appellant-A-1 replied that he

does not know as he had consumed alcohol. Question No.8 was

to the effect that in the evidence of the informant it has come

that he assaulted her husband with a dagger on head to which he

replied that he does not know. Thus, there was no specific denial

not only as to his very presence and as also the assault by a

dagger on the head of the deceased by him. Even otherwise, we

have already pointed out that there is no specific denial to the

version of the informant that the appellant-A-1 along with

appellant-A-2 had been to the house of the informant and had

launched a murderous assault on the person of the deceased.

25 The evidence of PW2 i.e. sister-in-law of the

informant also shows that when she tried to intervene, she was

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also assaulted by the appellant-A-1 by means of a chopper.

Infact, according to her, appellant-A-1 wanted to give a blow of

chopper on her neck but as she raised her hand in her defence,

she sustained injury on her left hand. PW9 Dr.Sanjaykumar

Dattatray Punde in his evidence (Exh. 37) was asked in the cross-

examination to which he admitted it to be correct by saying that

on 20th November 2010, he had examined Nasreen Maqbool Noor

Mohd. Banu who had sustained superficial incise cut injury on

left hand and accordingly issued Medical Certficate (Exh. 41).

This is apparent from the Medical Certificate at Exh. 41 and thus

the evidence of PW9 corroborates the version of PW2 in respect

of the injury sustained by her because of the assault at the hands

of appellant-A-1.

26 We have already pointed out from the evidence of

PW9 Medical Officer who carried out the autopsy over the dead

body of the deceased, the number of injuries found on his person

and which in our opinion correspond to the evidence of PW1 and

PW2.

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27 The learned counsel for the appellant-A-1 has

vigorously assailed the approach of the Investigating Officer by

contending that appellant-A-1 was identified in the police

station. Though there is evidence to that effect but the same

cannot be accepted for the simple reason that no Test

Identification Parade was conducted in as much as and

admittedly the appellant-A-1 was unknown to PW1 and PW2.

Moreover, since appellant-A-1 was not apprehended on the very

spot of the offence in front of the eye witnesses, a Test

Identification Parade was very much necessary and since

appellant-A-1 was shown to PW1 and PW2 in the police station,

the police committed a major illegality which has severally

prejudiced the appellant-A-1 by depriving him, of his right for a

Test Identification Parade. Similarly, it is not clear from where

the appellant-A-1 was apprehended and the time of his

apprehension was not known. In this regard, the learned counsel

placed reliance in Kanan vs. State of Kerala (supra), Ramesh vs.

State of Karnataka (supra) and Hari Nath vs. State of Uttar

Pradesh (supra).

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28 In Kanan vs. State of Kerala (supra) the Hon'ble Apex

Court held as under :

"1......It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous TI Parade to test his powers of observation. The idea of holding TI Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no TI Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court."

29 Similarly, in the case of Hari Nath vs. State of Uttar

Pradesh (supra) the Hon'ble Apex Court held as under :

"The conduct of an identification parade belongs to the realm and is part of the investigation. The evidence of test identification is admissible under S. 9. But the value of the test identification, apart

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altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test."

30 Similarly, in the case Ramesh vs. State of Karnataka

(supra) the Hon'ble Apex Court held that the identification of A-3

by PW3 in the Court cannot be held to be trustworthy. In a case

of this nature, the Test Identification Parade would have been

meaningless as A-3 was shown to PW3 in the police station.

31 With respect, we are in agreement with the above

quoted observations propounded by the Hon'ble Apex Court.

However, with respect, we do not find the applicability of ratio

laid down in those cases supra to the case in hand, for the

reasons to follow.

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32 In the case in hand it is not the case of the

prosecution that the incident took place in a dark night. It must

be kept in mind that the appellant-A-2 is the neighbour of the

informant. Admittedly, appellant-A-1 was not known to the

witnesses as claimed hereinabove. However, the informant and

the PW2 had amply opportunity to see the appellant-A-1. As

already pointed out, it is not the case that the incident occurred

in a pitch-black night. The incident occurred over a period of

time wherein these appellants participated and indulged in

assaulting the deceased. Therefore, in our considered view, the

identity of miscreants i.e. appellant-A-1 was fully imprinted in

their memories. More so, when they visited the police station for

lodging the report, appellant-A-1 had already been there. If we

go by the contents of the FIR and the evidence of these two

witnesses, the appellant-A-1 was apprehended on the spot and

thus, as a necessary corollary, he found his way to the police

station. When PW1 and PW2 visited the police station they

found the appellant-A-1 sitting there and in a fraction of second

or without losing any time, both of them identified the appellant

AVK 28/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

-A-1 as the assailant then and there only with all promptitude

and informed the police that it was he who had also assaulted

the deceased. It is not the case or rather the evidence that the

police had shown them appellant-A-1 as an accused arrested by

them as a sequel to the incident in question. This being so, in

our studied view, there was no necessity of conduction of Test

Identification Parade and this being so, it would be far-fetched to

say that non-conduction of the Test Identification Parade has

severally prejudiced the appellant-A-1. We outrightly reject the

submission of the learned counsel.

33 Coming to the testimony of PW3 - child witness, we

at the very outset may note that there is a slight deviation

appearing in her evidence in as much as her evidence shows that

it was appellant-A-1 who had pulled the deceased from the

house to the outside, whereas according to prosecution and as

also the evidence of PW1 and PW2, it was appellant-A-2 who

had pulled the deceased out from the house. Be that as it may, it

may not be that fatal in as much as the fact remains that the

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presence of both the accused is duly established from the

evidence of PW1 and PW2 and as also their roles in the incident.

34 The child witness also says that she saw both of them

assaulting her father. The only troubling question here is as to

the identification of the appellant-A-1 by this witness for the first

time in the Court. On the day of her deposition on 17 th January

2012 she was aged 12 years and was studying in Class 7 th

Standard, whereas the incident took place on 20 th November

2010. That is to say, she identified the appellant-A-1 in the

Court after 14 months of the incident which may not have been

possible for her, having regard to her age at the time of the

incident. Even if we keep aside the evidence of this child

witness, we are more than satisfied with the evidence of the PW1

and PW2 that their testimonies have been quite convincing and

inspiring. There is no reason to discard their evidence.

35 The submissions of the learned counsel for the

appellants that since PW1 and PW2 are in close relations with the

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deceased person, they should not be believed for want of

evidence of any independent witness, deserves to be rejected. A

survey of the judicial pronouncements of the Hon'ble Apex Court

on this point leads to the inescapable conclusion that the

evidence of closely related witnesses needs to be closely

scrutinized and appreciated before any conclusion is made to rest

upon it, regarding the convict / accused in a given case. Thus,

the evidence cannot be disbelieved merely on the ground that the

witnesses are related to each other or to the deceased.

36 We may usefully refer the law laid down by the

Hon'ble Apex Court in Dalbir Kaur and Others vs. State of

Punjab6 and Harbans Kaur and Another vs. State of Haryana7

which lays down following proposition :

"There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."

6 (1976) 4 SCC 158 : AIR 1977 SC 472 7 (2005) 9 SCC 195 : AIR 2005 SC 2989

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37 In Namdeo vs. State of Maharashtra8 the Hon'ble

Apex Court further held as under :

"38.......it is clear that a close relative cannot be characterised as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy,conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."

38 We have also elaborately discussed the evidence of

PW1 and PW2 who are none other than the wife and sister of the

deceased. We have found that their evidences have a ring of

truth, is cogent, credible and trustworthy. There is, thus, no

reason for us to discard their evidence and rather certainly

8 (2007) 14 SCC 150 : AIR 2007 SC (SUPP) 100, PARA 42

AVK 32/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

should be relied upon. We follow and apply the above noted well

settled principle of law in rejecting the submissions of the learned

counsel for the appellants.

39 The learned counsel for the appellant-A-1

strenuously submits that there is material discrepancy between

the evidence of the informant and the place of occurrence.

According to the learned counsel, the examination-in-chief of the

informant shows that the incident took place at or near the door

step of the house whereas the spot panchnama shows place of

occurrence at a distance of 23 feet. Both these facts are beyond

reconciliation and therefore the testimony of the informant need

not be relied upon.

40 We have gone through the evidence of PW7 Abrar

Ahmed Ali Sayyed (Exh. 29) who acted as a witness on the spot

panchnama and drew the spot panchnama at Exh. 30. We have

also gone through the evidence of PW8 Investigating Officer

(Exh. 31). According to PW8 Investigating Officer, he had been

AVK 33/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

to the spot which was identified by the informant and

accordingly he drew the Spot Panchnama in the presence of

panchas. None of these witnesses say as to at how much distance

from the door of the house of the informant the incident took

place and what is more interesting is that in the cross-

examination the defence did not bother to confront these two

material witnesses as to the exact location / distance of the place

of occurrence from the door of the house of the informant.

41 After analysing evidence off the PW1 informant and

PW2 sister-in-law of the informant, we are of the view that the

presence of appellants either near the door or at a few distance

away like 23 feet, as claimed in the Spot Panchanama, from the

informant's house, is nowhere contested by the defence.

Whether it was near or at the door or at a certain distance like 23

feet as mentioned in the Spot panchnama, by itself cannot be a

ground to discard the entire inspiring evidence of PW1 and PW2.

AVK 34/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

42 We, therefore, do not wish to attach any significance

to that discrepancy as pointed out by the learned counsel for the

appellant-A-1. Consequently, the argument so advanced by the

learned counsel for the appellant-A-1 merits no attention.

43 The learned counsel for the appellant-A-1 also invited

our attention to the statement of PW4 recorded under Section

161 of the Cr.P.C. pointing out that in the said statement PW4

stated that the four persons who had come in his rickshaw

returned back from the lane and he dropped them off at Panjar

Pole junction. If it is so, which the statement shows, then it

clearly destroys the prosecution's claim that appellant-A-1 was

apprehended while he was fleeing from the lane while the other

three assailants escaped in the rickshaw driven by PW4.

44 The learned counsel invited our attention to

paragraph 9 of the evidence of PW4 and paragraphs 6 and 10

from the evidence of PW10 Investigating Officer.

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45 To test the above submission, we would like to go

through the evidence of PW4 Ahmed Ali Makbool Ahmed Shaikh

(Exh. 23), rickshaw driver. His examination-in-chief clearly shows

that he had dropped three accused except appellant-A-1 near

Panjar Pole signal. Now, if his cross-examination and more

particularly paragraph 9 which is pointed out by the learned

counsel during the course of argument is read carefully, then it

would be seen that it is his specific case that he had not said

before the police that he had left four boys at Panjar Pole

junction. Since it was so appearing (that he had left four boys at

Panjar Pole junction) he could not assign any reason as to why it

is so appearing in his statement and therefore, that particular

portion was marked as "A". Now this portion marked "A" has

been proved by PW10 Investigating Officer in his cross-

examination at paragraph 10. The Investigating Officer

unequivocally and very clearly stated in his cross-examination

that PW4 had not informed or stated before him that he had left

four boys at Panjar Pole junction. Further, he volunteered that

portion marked "A" i.e. (Exh. 43) was a typing mistake and that is

AVK 36/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

the reason as to why figure four is appearing instead of three in

Exh. 43. In our considered opinion this very much clearly clears

the doubt dwelling in the mind of the learned counsel for the

appellant-A-1. This aspect need not detain us any more.

46 This brings us to discovery and recovery of weapons

and clothes of the appellants. PW5 Smt.Tahira Abdul Salam

states in her evidence (Exh. 24) that on 21 st November 2010 she

was called at Chembur Police Station at about 2.30 p.m.

Accused Rashid Shaikh (appellant-A-2) was present there. He

volunteered to discover the clothes, chopper and dagger where

those were thrown. Accordingly, Memorandum Panchnama was

prepared. She then proved the Memorandum Panchnama at Exh.

25.

47 It is her further evidence that accused Rashid Shaikh

then took her and the Police Officer to the spot. He took them to

Chembur. He asked them to stop the vehicle near the railway

station and then started walking. After crossing two tracks there

AVK 37/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

was a heap of dunghill. He then removed one shirt, one pant

and a dagger from there. The pant was black in colour. There

were blood stains on the shirt and pant and dagger. All these

articles came to be seized under Seizure panchnama. He then

proved the Seizure panchnama at Exh. 26. The version of this

witness is duly supported by PW10 Investigating Officer.

48 Nothing has been elicited in the cross-examination to

discard evidence of this material witness. From the Chemical

Analyzer's report (Exh. 47) it may be seen that the clothes and

the dagger (chaku) which were seized at the instance of

appellant-A-2 were having human blood, even though no group

was detected.

49 The next witness in line on the above said aspect is

PW6 Sayyad Mohd. Sayyad Umar. His evidence (Exh. 27) shows

that he was called in Chembur Police Station at about 1.00 or

1.15 noon. Appellant-A-1 namely Naushad Shaikh was present in

the police station. The police took search of that boy. During

AVK 38/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

search one dagger was found kept in the pant. He was wearing

black coloured jeans and green coloured shirt. There were blood

stains on the shirt as well as on pant and the pocket was torn.

He was required to remove the clothes. He had sustained injuries

on the chest as well as back on the wrist, on the finger as well as

on toe, ankle. All the articles were seized under Seizure

Panchnama. He then proved the Seizure Panchnama at Exh. 28.

He then identified the butcher knife (Article 5) which was seized

from his possession.

50 The learned counsel for the appellant-A-1 has

assailed the evidence of this witness on the ground that the

version of this witness is quite contradictory vis-a-vis the

panchnama. While the panchnama claims that the arrest, search

and seizure occurred at 1.40 a.m. of 21st November 2010 this

witness gives quite different version and says that these events

occurred in the afternoon of 21st November 2010 at about 1.00

p.m. or 1.15 p.m. i.e. about 12 hours late. According to the

learned counsel, this witness ought to have been declared hostile

AVK 39/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

by the prosecution but has not been contradicted in any manner.

Therefore, his evidence is binding on the prosecution. In support

of his submission, the learned counsel also relied on Raja Ram vs.

State of Rajasthan (supra) and Assoo vs. State of Madhya

Pradesh (supra).

51 A plain reading of the evidence of PW6 would show

that he was called in the police station at about 1.00 p.m. or 1.15

p.m. on 21st November 2010 and then thereafter the clothes and

knife came to be seized from the possession of the appellant-A-1.

The learned counsel is quite right when he says that there is

inconsistency between version of this witness and the contents of

panchnama at Exh. 28 in as much as the panchnama shows that

seizure occurred at 1.40 a.m. on 21 st November 2010. However,

we may point out that there is evidence of PW8 Investigating

Officer as well in this regard.

52 PW8 Investigating Officer states in his evidence (Exh.

31) that after the arrest of the appellant-A-1 his personal search

AVK 40/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

was taken. The clothes on his person i.e. green shirt and black

jeans pant came to be seized along with chopper which was

concealed in the pant under the Seizure Panchnama at Exh. 28.

Interestingly, this specific version of PW8 Investigating Officer is

nowhere specifically assailed or challenged in the cross-

examination. In our considered opinion, even if it may be that

the evidence of PW6 panch witness regarding the seizure of

clothes and chopper from the possession of appellant-A-1 is not

satisfactory, then also we cannot overlook the evidence of PW8

Investigating Officer.

53 The Chemical Analyzer's report (Exh. 48) clearly

shows that the clothes and the chopper found from the

possession of the appellant-A-1 were containing human blood

even though no group was detected.

54 In the case of Raja Ram vs. State of Rajasthan (supra)

it has been held by the Hon'ble Apex Court that though the

evidence of PW was not supporting the prosecution case, yet the

AVK 41/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

said witness was not declared hostile. In such circumstances,

defence can rely upon the evidence of such witness and it would

be binding on the prosecution. Similar observations were made

in the case of Assoo vs. State of Madhya Pradesh (supra). Even if

we assume for the sake of argument that the evidence of PW8 is

binding on the prosecution then it will be applicable to the extent

of seizure of clothes and weapon found in possession of the

appellant-A-1. We have already pointed out the overwhelming

ocular evidence in the form of PW1 and PW2 and therefore,

having regard to the totality of the prosecution case and as also

the substantive evidence discussed so far, we have no hesitation

in our mind to say that the said judgments, with due respect, will

not in any manner come to the rescue of the appellant-A-1.

55 We are, now, on the last leg of the argument of the

learned counsel for the appellant-A-2. A-2 has taken the plea of

"alibi".

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56 It is settled law that while raising a plea of "alibi" the

burden squarely lies upon the accused person to establish the

plea by leading cogent and convincing evidence. At the same

time, we are also mindful of the fact that while weighing the plea

of "alibi", the same has to be weighed against the positive

evidence led by the prosecution i.e. not only the substantive

evidence of PW1 and PW2 but also against the scientific evidence

viz. Chemical Analyzer's Report.

57 Two defence witnesses are examined by the

appellant-A-2, namely, DW1 Anand Vallabh Sharma and DW2

Javed Abdul Kayyum Deshmukh.

58 DW1 Anand Vallabh Sharma states in his evidence

(Exh. 62) that he is running a business by name "Shri Ganesh

Enterprises" which deals in hotel and catering business. He also

provides manpower to needy persons and accordingly is

providing persons to Taj and other hotels. It is his evidence that

AVK 43/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

he knows Rashid Shaikh i.e. appellant-A-2 as appellant-A-2 is

employed by him and he provides his services to the hotel.

59 It is his further evidence that no record was brought

by him during the course of recording of his evidence but

according to him he had given the xerox copy of the register to

the uncle of the appellant-A-2. The duty hours of appellant-A-2

were from 3.00 p.m. to 12.00 a.m. It is his further evidence that

on 20th November 2010 appellant-A-2 was on duty at Taj Mahal

hotel at Colaba. It appears that this witness produced the xerox

copy of the record in the evidence which was suggestive of the

fact that the boys were sent to the hotel on 20 th November 2010.

The xerox copy was marked as Article E.

60 From the evidence of this witness it appears that

appellant-A-2 was employed by him as it was the business of the

DW1 to supply manpower to the hotels. It also appears from his

evidence that on 20th November 2010 he had sent appellant-A-2

to Taj Mahal hotel for services and he attended the duty from

AVK 44/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

3.00 p.m. to 12.00 a.m. in the night. The xerox copy at Article E

later on came to be exhibited as Exh. 64 through DW2 as the

original document was brought by DW2, who at the relevant

time was a Manager in Taj Mahal Palace at Colaba.

61 On going through that Article E i.e. Exh. 64,

admittedly, it nowhere shows the duty hours of the appellant-A-2

although his name appears at serial no.12. Moreover, even if the

evidence of DW1 is taken into consideration, then at the most it

can be held that he had provided the services of appellant-A-2 to

hotel Taj Mahal on 20th November 2010. Whether, infact,

appellant-A-2 attended his duties at hotel Taj Mahal from 3.00

p.m. to 12.00 a.m. in the night will have to be ascertained from

the evidence of DW2 i.e. Manager of the Taj Mahal Palace,

Colaba. Before that, we may note certain material pieces of

evidence appearing in the cross-examination of DW1.

62 DW1 states in his cross-examination that he had no

document with him to show that Rashid Shaikh (A-2) had been

AVK 45/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

to his office at 1.00 p.m. on 20th November 2010 and was then

taken to hotel Taj Mahal. His cross-examination further shows

that till the date of recording of his evidence, he had not been to

the police station to apprise the police that Rashid Shaikh (A-2)

was working with him on the date of the incident. In our

considered opinion, these material pieces of evidence are in the

form of admission and go against the prosecution. Be that as it

may, it is time to go through the evidence of DW2.

63 DW2 Javed Abdul Kayyum Deshmukh states in his

evidence (Exh. 71) that the document at Exh. 64 which is infact

an outdoor list issued by Shri Ganesh Enterprises i.e. DW1

showing the evening shift of its employees wherein the name of

appellant-A-2 appears at serial no.12. We have already put a

comment regarding the nature of this document while discussing

the evidence of DW1. This witness i.e. DW2 also states that the

said document is in respect of evening shift of the staff members

of dated 20th November 2010. The timing was 3.00 p.m. to

11.00 p.m. This document is prepared and maintained to show

AVK 46/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

attendance of staff members so that the contractor could get the

labours contract money. Again, although this witness states that

the document was in respect of evening shift of staff members

and the timing was 3.00 p.m. to 11.00 p.m. but no such timings

are mentioned in the said document.

64 Moreover, what is pertinent to note from his evidence

is that this witness has nowhere stated in his evidence that

appellant-A-2 infact attended his duties in the hotel from 3 p.m.

to 11 p.m. and during that period he never left the hotel

premises. In the cross-examination he states that he does not

remember in which room the duty was given to appellant-A-2

and which party was attended by him but appellant-A-2 reported

the duty at 3 p.m. Even if it is taken for the sake of argument

that appellant-A-2 attended the duty at 3 p.m. but then there is

no clear, cogent and categorical evidence of this witness that

appellant-A-2 continued to perform his duties in the hotel

premises till his duty hours i.e. upto 11 p.m. and had not left the

hotel premises in between the duty hours even for a minute.

AVK 47/48 APPEAL-61-2013-APPEAL-292-2014-J.doc

Thus, we are constrained to observe that the evidence of this

witness is also not up to the mark and it cannot be gainfully read

so as to upheld the plea of "alibi" as canvassed by learned

counsel.

65 Considering the nature of evidence of "alibi" led by

the appellant-A-2 against the positive evidence of the prosecution

including the evidence of Chemical Analyzer's Report, we hold

that the appellant-A-2 has miserably failed to discharge his

burden with precision qua his plea of "alibi".

66 Having regard to the above discussion, we, therefore,

find no infirmity or illegality in the impugned judgment.

Accordingly, we uphold the conviction of the appellants. Hence

the following order :

ORDER

Appeals are dismissed.

                            (V. G. BISHT, J.)                    (S. S. SHINDE, J.)

                      AVK                                                                   48/48
ARTI
VILAS
KHATATE
Digitally signed by
ARTI VILAS
KHATATE
Date: 2021.10.14
15:46:29 +0530