Abu Rahbar Hasan Khan vs The State Of Maharashtra
2021 Latest Caselaw 15618 Bom

                                                      Criminal Appeal No.269.2017.doc


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.269 OF 2017
                                  IN
                       SESSION CASE NO.607 OF 2012

Abu Rahbar Hasan Khan                        }
Age-30 years Occu : Nil                      }
R/at : Near K.J.N. Chicken Center,           }
90 Feet Road, Sakinaka, Mumbai               }
Present in in Kolhapur Central Prison        }....Appellant/Ori.Accused

      Versus

The State of Maharashtra                     }
At the instance of Sakinaka Police           }
Station, Vide C.R.No.146 of 2012             }
Mumbai.                                      }....Respondent
                                     ***
Mr. Aniket Vagal, Advocate for the Appellant.
Ms. G.P. Mulekar, APP for the Respondent-State.
                                     ***

                                CORAM : S.S. SHINDE &
                                        SURENDRA P. TAVADE, JJ.


                          RESERVED ON : 14th OCTOBER, 2021


                   PRONOUNCED ON : 29th OCTOBER, 2021

JUDGMENT (PER SURENDRA P. TAVADE, J.) :

1. The Appellant/original Accused has preferred this appeal against

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the Judgment and Order dated 09.03.2017 passed by the Additional

Sessions Judge, Sessions Court, Greater Mumbai in Sessions Case

No.607/2012 whereby he was convicted for ofence punishable under

Section 302 of Indian Penal Code (for short "IPC"), and under Section

25(1B)(a) r/w 3 of the Arms Act, 1959 vide Section 235(2) of the Code

of Criminal Procedure, 1973 and sentenced to sufer imprisonment for

life and to pay fne of Rs.2,000/-, in default, to sufer further simple

imprisonment for a period of one month. He is also convicted for the

ofence punishable under Section 25(1B)(a) r/w.3 of the Arms Act and

sentenced to sufer rigorous imprisonment for one year and to pay fne of

Rs.500/-, in default, to sufer simple imprisonment for a period of 15

days.

2. The case of prosecution, in brief, can be summarized as under:

The Informant, Mohd. Sagir Mohd. Idris Khan (PW-1) is resident

of Rajavapur, Kandela Tah - Tulsipur Maharaj Ganj Dist Baslapur, U.P.

He was doing cleaning work, giving Azan and collecting donation for

religious purpose in Masjid. In the month of April 2012 he came to

Mumbai for raising funds for construction of Masjid in his native place.

He was residing in Lallubhai Compound, near Masjid, Govandi. He

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used to visit diferent places in Mumbai for collection of funds for

construction of Masjid at his native place.

3. On 01.05.2012 Informant had been to Hotel Khadi, Sakinaka to

collect funds. On that day at about 2.00 p.m. he called on mobile of

Abdul Sabur Shaikh (deceased), who was resident of his village. He

asked deceased to meet him, accordingly, at about 4.30 p.m. deceased

came to Hotel Khadi alongwith 3-4 residents of his village. At about

5.30 p.m. on that day the Informant introduced Appellant to deceased at

Sahanawaz Hotel. Thereafter, the Appellant, Informant and deceased

went out for collection of donations. Then at about 10.45 p.m. both

Appellant and deceased returned to Arman Hotel. Appellant asked

Informant to visit Jarimari, Sakinaka, accordingly, the Informant,

deceased and accused went to Jarimari, Sakinaka on motorcycle of the

Informant. They reached Cafe Shahanawaz, Jarimari. Deceased asked

the Informant to wait for a couple of minutes and told hold him that he

and accused would return within two minutes. However, both of them

did not return for an hour. Then, the Informant started their search and

meantime at about 12.10 a.m. he saw people gathered near Rafi Hill,

hence, he went ahead and saw that Abdul Sabur Shaikh (deceased) was

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lying in injured condition having bleeding injury on his head. The

Informant and others took the deceased to the Rajawadi Hospital. The

information of the incident was given to the relatives of the deceased by

the Informant. The incident was also reported to Sakinaka Police

Station.

4. PSI Sunil Bhat (PW20) attached to Sakinaka Police Station

rushed to the hospital. Abdul Sabur Shaikh (deceased) was not in a

position to speak and unconscious, hence, he recorded statement of the

Informant, which was subseiuently treated as FIR. On the basis of

report of the Informant, Crime No.146/2012 came to be registered

u/s.307 of IPC and u/s.25 of Arms Act. The clothes of deceased have

been seized under panchnama. PSI Sunil Bhat also visited the scene of

ofence and prepared panchnama in presence of panch and also seized a

tiles having blood stains. On 05.05.2012 deceased shifted to KEM

Hospital for further treatment, however, on 06.05.2012 he succumbed

to the injuries. PSI Sakpal prepared iniuest panchnama and dead body

was sent to autopsy. PSI Sunil Bhat collected bullets extracted from

body of the deceased.

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5. The investigation was handed over to PI Sawant, who recorded

the statements of witnesses. DCB CID Unit X was also carrying out

parallel investigation of the crime. API Abdul Shaikh (PW7) was

attached to DCB CID Unit X. He received secrete information that

Appellant had been to Kamshet, Pune. Accordingly, API Mr. Shaikh led

a trap and apprehended Appellant on 03.05.2012. In personal search of

the Appellant, API Mr.Shaikh seized pistol, cartridges, mobile phone

having two sim cards, his driving license under panchnama. Thereafter,

the Appellant and the seized articles were handed over to PI Mr. Sawant

for further investigation.

6. During the course of investigation, PI Sawant seized clothes of

Appellant under panchnama and he collected blood samples of the

deceased and the Appellant. He sent blood samples, pistol and

cartridges to forensic laboratory. PI Sawant also recorded statement of

witnesses. Further, PI Sawant in pursuance of statement of the

Appellant recorded on 05.05.2012 visited the spot of occurrence as led

by the Appellant and accordingly, prepared a panchnama. PI Sawant has

also obtained CDR of mobile numbers of the Appellant and thus he also

obtained sanction for prosecution of the Appellant under the Arms Act,

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1959. After completion of investigation, charge-sheet came to be fled

before the Ld. Metropolitan Magistrate, 66 th Court, Andheri, Mumbai.

7. As the ofence punishable u/s.302 of the IPC was triable by the

Court of session, hence, the Ld. Magistrate has committed the case to

the Court of Session Greater Mumbai. On the appearance of the

Appellant, charge came to be framed against him u/s.302 of IPC and

u/s.25(1B) & 28(3) of Arms Act. He pleaded not guilty and claimed to

be tried. The defence of the Appellant is of total denial.

8. To prove the charge against the Appellant, the prosecution has

examined 23 witnesses. The Appellant did not lead oral evidence. On

going through the evidence on record, the Trial Court convicted the

Appellant for the ofence punishable u/s.302 of IPC and u/s.25(1B) &

27(3) of Arms Act. The said judgment and order is impugned in this

appeal.

9. Heard learned Counsel for the Appellant and the learned APP

for the State.

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10. Learned counsel for the Appellant submitted that the case of

prosecution rests on the circumstantial evidence. Learned Counsel for

the Appellant submitted that the death of deceased is homicidal, but the

prosecution has failed to prove that the Appellant last seen with the

deceased. On the point of last seen theory, the Informant and other

witnesses have not supported the case of prosecution. He further

submitted that the Appellant was arrested by the DCB CID. He

submitted that the Trial Court has not appreciated the evidence on the

point of recovery of weapon at the instance of the Appellant properly.

The weapon and other articles were not properly seized by the

Investigating Ofcer at the spot. The panch witnesses were not present

at the time of handing over the seized articles at Sakinaka Police Station.

It is submitted that the evidence of Ballistic Expert (PW18) is not

properly considered by the Trial Court. It is submitted that the Ballistic

Expert has admitted that the seized cartridges can be fred from the

another country made revolver. Therefore, it was not established that

the seized weapon was infact used in the crime. It is submitted that the

Investigating Ofcer PI Sawant is not examined, therefore, the omissions

and contradictions are not proved by the prosecution. It is contended

that the seized mobile phones and sim cards were not registered in the

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name of Appellant, therefore, the alleged CDR are not helpful to the

prosecution to prove the alleged location of the Appellant at the time of

incident. It is contended that the Trial Court has not considered the

evidence in proper perspective and came to the wrong conclusion,

therefore, the Appellant be convicted.

11. On the other hand, learned APP submitted that the Appellant

was arrested by DCB CID at Kamshet, Pune. In the personal search of

the Appellant, the ofcer of DCB CID has seized pistol, live cartridges,

mobile phone, his driving license. It is contended that the pistol was

referred to the ballistic expert for his opinion. It is opined that the pistol

was recently used and cartridges extracted from the body of the deceased

and the seized cartridges are similar in nature. The seized live cartridges

were fred from the seized weapon and those were successfully fred

from the seized weapon. She also submitted that the blood stains found

on the clothes of the Appellant were of a blood group of the deceased.

The Appellant has not explained the said facts. She also submitted that

the brother of the deceased has proved the motive of the Appellant to

cause death of the deceased. Learned APP further submitted that the

Trial Court has rightly appreciated the evidence on record and there is

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no need to interfere in the judgment and order passed by the Trial

Court.

12. Before a case against an accused vesting on circumstantial

evidence can be said to be fully established the following conditions must

be fulflled as laid down in Hanumat v. State of M.P. (1953) SCR 1091.

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved;

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These fve golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence."

13. In view of the above tests laid down by the Apex Court, we have

to scrutinize the evidence on record. In this case also the entire case

rests on the following circumstantial evidence :-

(I) Homicidal death of deceased Abdul Sabur Shaikh. (II) The Appellant found last seen with the deceased. (III) Motive for the crime.

(IV) Seizure of weapon, pistol, cartridges and report of Ballistic

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Expert.

(V) Seizure of blood stains clothes of the Appellant and report of DNA.

(VI) Seizure of mobile phone and CDR Report.

14. (I) Homicidal death of deceased Abdul Sabur Shaikh :-

To prove the homicidal death of the deceased, the prosecution

has relied on the evidence of three medical ofcers, namely, (i) Dr.

Sachin Patil (PW2), (ii) Dr. Swati Eknath Pachpinde and (iii) Dr. Soham

Ashok Doshi.

15. Dr. Swati Pachpinde (PW3) examined the deceased on

02.05.2012 at about 12.30 a.m. and found following injuries :-

1. CLW on Occipital bone 0.5 Cm. X 0.5 cm.

2. CLW on Ocipital bone 0.5 Cm X 0.5 cm. With haemotoma vertex.

3. CLW vertex 1.5 cm. X 2.00 cm. X 2.5 cm.

4. Blunt trauma left maxinna, mandible with swelling.

5. No external injury seen on any other part of body.

16. She made entry in the medico legal register and produced the

same at Exh.25. She deposed that the injuries were grievous in nature

and at the time of admission the condition of deceased was poor and he

was unconscious.

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17. Dr. Soham Doshi (PW4) has deposed that he treated the

deceased. He has given initial treatment to the patient and accordingly

made entries in the treatment papers. The medical papers of deceased

were produced on record (Exh.27 colly.). He further deposed that the

deceased was discharged against the medical advise. He was taken to

KEM Hospital.

18. Dr. Sachin Patil (PW2) performed autopsy on the dead-body of

deceased Abdul Sabar Shaikh. He opined that the cause of death was

Cranio-Cerebral injuries as a result of gunshot wound to the head of the

deceased. It has also come in the evidence of PW2 that he extracted two

bullets from the body of the deceased.

19. It is come in the evidence of Dr. Sachin Patil (PW2) that the

deceased had sustained following four external injuries :-

Injury No.1 - Oval frearm wound of entry present over anterior 1/3rd of left parietal region of the head, size 1.2 c.m. X 1.4 c.m. X cavity deep, 2 c.m. from midine and 15 c.m. above the tragus of left ear with inverted margins, not associated with any lackening, tattoing or singeing.

Track of wound was above downwards and left to right passing through scalp, left parietal bone and penetrating parenchyma of the brain from the left to right parietal lobe, upto right temporal lob,e from where a bullet was retrieved. The whole tack was lacerated and haemorrhagic at places.

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Injury No.2 :- Circular frearm wound of entry present over posetrior 1/3rd of right prietal eregion of head of size 1.2. c.m. X 1.2. c.m. X cavity deep, 2 c.m. from midline, 19 c.m. above the tragus of right ear and 8 c.m. behind the injury No.1 with inverted margins, not associated with any blackening, tattoing and singeing. Track of wound directing above the onwards, right to left side and from posterior to the anterior aspect, passing through the scalp, right parietal bone and penetrating to parenchyma of right parietal lobe, ventricles and through the posterior cranial fossa near left hypoglossal canal, 0.2 c.m. postero-laterally and terminating in a communited fracture of left ramus of mandible. Bullet was retrieved from the surrounding tissues and bony fragments of ramus of left mandible. The whole track was lacerated and haemorrhagic with bony fragmentation at places.

Injury No.3 :- Circular lacerated wound present over right occipital region of the head, 1.3 c.m. X 1.3. c.m. X muscle deep, 1.5 c.m. from midline and 5 c.m. below the injury No.2 and 20 c.m. from the tragus of right ear. Evidence of marginal healing present. Injury No.4 :- Irregular abrasion with contused margins present over inner aspect of right side of upper lip, extending upto midline of size 2.5. c.m. X 0.5 c.m. in maximum dimensions, horizontally placed with brownish black scab present.

All external injuries are ante-mortem.

20. Dr. Sachin Patil (PW2) also found following two internal

injuries :-

Injury No.1 : - Irregular underscalp haematoma present over left fronto parietal region extending outwards from the midline of maximum diamensions of 15 c.m. X 12 c.m. dark reddish in colour.

Injury No.2 :- Irregular underscalp haematoma present over right parieto occipital region of maximum dimensions of 10 c.m. X 12 c.m. dark reddish in colour.

Skull - Vault and base :-

1) Oval penetrating bony defect (Bullet fracture) of left parietal bone, size 1.2. c.m. X 1.4. c.m., corresponding to the injury No.1 of Column

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No.17. Inward bevelling present over inner table of Skull Vault ; (2) Circular penetrating bony defect (Bullet Fracture) present over right parietal bone, posterior 1/3rd part, 1.4. cm. From midline, 1.2 c.m. in diameter, corresponding to injury No.2 of coloumn No.17. Inward bevelling of the bone present over the inner table of skull Vault. (3) Circular penetrating bony defect (Bullet Fracture) over posterior cranial fossa near left hypoglossal canal, 0.2 c.m. posterior laterally 1.2. c.m. in diameter, corresponding to injury No.2 of coloumn No.17. Brain - (1) The dura mater - Lacerated in two places corresponding to injury Nos.1 & 2 of column No.17, 1.3. c.m. X 1.5 c.m. and 1.4 c.m. X 1.4 c.m. respectively, brain matter oozing out of both. (2) Subdrural daemotoma present over the left fronto parieto temporal region of size 15 c.m. X 12 c.m. X 0.2 c.m., dark red in colour. (3) Subdural haemotoma present over the right parieto occipital region, of size 10 c.m. X 8 c.m. X 0.2 c.m. dark red in colour. (4) Sub arachnoid haemorrhage present all over the brain surface as thin red flm.

(5) Brain lacerated in location corresponding to injuries Nos.1 & 2 of column No.17 with areas of contusion in the right parieto-frontal lobe and left parietal lobe of size 6 c.m. X 4 c.m. and 4 c.m. X 4 c.m. respectively surrounding the injuries Nos.1 & 2 in column No.17. Evidence of intracerebral haemorrhage present corresponding to the track of injuries Nos.1 & 2 of column No.17.

About 40 ml. Blood and blood clots present in both the ventricles and dark red.

Bullet (Missile) retrieved from the right temporal lobe. Additional information regarding the bullets :-

1) Bullet (Missile) retrieved from the right temporal lobe of brain - Apparently made of brass, approximately 0.9 c.m. in length and 0.7 in diameter, 2.5 c.m. in circumference. The nose is blunt and iuadrilateral in shape.

2) Bullet (Missile) retrieved from ramus of left mandible -Apparently made of copper, approximately 1.2 c.m. in length, and base size approximately 1.c.m. X 0.5 c.m., oval in shape and fattened towards the base on one side. Circumference approximately 2.8 c.m. Nose end is conical in shape.

Both the bullets packed, labelled, sealed and handed over to PC on duty which to be forwarded to forensic science laboratory for ballistic examination.

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21. Upon postmortem, Dr. Sachin Patil (PW2) prepared PM

(Exh.18). The cause of death of the deceased was Cranio-Cerebral

injuries as a result of gunshot wound to the head (Unnatural). On the

basis of medical evidence, learned counsel for the Appellant submits that

the Appellant is not disputing the homicidal death of the deceased.

Considering the evidence of medical ofcers, it is proved that the death

of the deceased is homicidal.

22. (II) The Appellant found last seen with the deceased :-

The prosecution has also relied on the evidence of Ravindra

Mane (PW8). According to him, he resides at Jarimari, Andheri Kurla

Road, Sakinaka. He works in Ration Shop at Siddhiiui S. Khan, Vijay

Nagar, Jarimari, Andheri. According to him, his duty hours start from

9.30 a.m. to 10.30 p.m. On 01.05.2012 he opened his shop at 9.30 a.m.

and closed it on 10.30 p.m. After closing the shop, he saw the crowd and

one person was lying there and he was injured. The blood was oozing

from his mouth. One mobile was lying nearby him. PW8 further

deposed that he took the mobile and called last dialed number of the said

mobile. He informed the person who received the call that the owner of

mobile is lying in injured condition. Thereafter, one person came on

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bike and he took him on his bike. The evidence of this witness is not

helpful to the prosecution to prove the presence of the Appellant on the

spot immediately prior to the incident or after the incident.

23. Admittedly, there is no eye-witness to the incident. The

Informant had called the deceased, accordingly, deceased met the

Informant on the day of incident i.e. on 01.05.2012. According to the

Informant (PW-1), he had called the deceased at Arman Hotel. The

deceased came there, thereafter he alongwith Fakruddin Ansari and two

other persons went to Jarimari. The deceased met one boy and went to

his employer for collecting money. He also deposed that he alongwith

deceased and one boy met the employer of the deceased. Thereafter,

they were dropped by Fakruddin Ansari on the way. He further deposed

that he got down at Sahanawaz Hotel. Deceased asked him to wait at

Sahanawaz Hotel and he went to see his employer. It has also come in

the evidence of the Informant that he waited there for 30-35 minutes.

Meantime, he received call from the unknown person saying that

deceased was lying on the road in injured condition. He immediately

rushed to the Kurla Police Station. Thereafter, he went to hospital

where he met the brother of the deceased. Police made eniuiry with him

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and recorded his statement. He has categorically denied the presence of

the Appellant at that time of the incident dated 01.05.2012. His

evidence is not helpful to prove the theory of last seen. Informant was

only witness who saw Appellant with the deceased. Thus the last seen

theory is not at all proved by the prosecution.

24. (III) Motive for the crime :- To prove the motive, the

prosecution has relied on the evidence of Abdul Rahim Chimunali

Shaikh (PW5). According to PW5, deceased was his younger brother.

Deceased was residing at Lallubhai Compound at Mankhurd. He was

running Chicken Center. On 01.05.2012 he received call from the

mobile of his deceased brother that the deceased was taken to Rajawadi

hospital. Accordingly, he rushed to Rajawadi hospital. He found that

his brother was in unconscious condition. The Doctor asked him to take

the deceased for C.T. scan. He was also informed by the medical ofcer

that deceased had sustained two bullets injuries in his brain. Mohammed

Akram, Abdul Karim and Jamal were present there in the hospital.

Doctor asked him to shift the patient to other hospital. Accordingly, he

took deceased to New Life Hospital by the Ambulance. His brother was

in the hospital for four days, then he succumbed to the injuries. He also

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deposed that one Saboor Sagir Baba (Informant) came to the hospital

and told him that Abu Rehbar took deceased at Jarimari are and said Abu

Rehbar killed his brother. He also deposed that police took Sagir Baba,

Sahid and Fakruddin into custody. He deposed that the Appellant killed

Abdul Saboor (deceased) by gunshot nearby Airport wall, Jarimari. He

identifed the Appellant in the Court.

25. The above evidence is brought on record as an omission. PW5

Abdul Rahim Chimunali Shaikh has admitted that he has stated above

facts before the police while recording the statement, but he cannot

assign any reason why the above facts were not mentioned in the

statement. Therefore, it can be said that the said evidence is reiuired to

be ignored, so it appears from his evidence of Abdul Rahim (PW5) that

on receipt of information, he rushed to the hospital to see his brother

deceased (Abdul Saboor). Thereafter, he shifted deceased to the New

Life Hospital where the deceased succumbed to the injuries.

26. It has also come in the evidence of PW5 that the Appellant is a

resident of Uttar Pradesh. His brother (deceased) had given information

about the Appellant to the police and he was arrested. He was

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prosecuted and convicted for two years. After his release, the Appellant

came to Mumbai. The Appellant had given threats to his brother

(deceased). The above evidence is not denied by the defence in the

cross examination of the witness. It is simply suggested to witness that

he was having suspicious in his mind that his brother had given

information about the Appellant to police. Accordingly, the Appellant

was arrested by the police in U.P. Therefore, the Appellant might have

killed his brother. The said suggestion is accepted by the witness, so it

can be said that the witness PW5 had a knowledge that his brother

(deceased) had lodged complaint against the Appellant. On the basis of

said complaint, the Appellant was prosecuted and convicted. Thus,

Abdul Rahim (PW5) had suspicion that his brother was killed Appellant

as he had lodged report against him. On the basis of Abdul Rahim (PW-

5) the prosecution has proved the motive for the crime.

27. (IV) Seizure of weapon, pistol, cartridges and report of Ballistic

Expert: - It is the case of prosecution that the DCB CID Unit X was also

carrying parallel investigation alongwith the PI of Sakinaka police

station. According to the prosecution, DCB CID received secrete

information about the Appellant. Hence, API - Abdul Rauf Gani Shaikh

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(PW7) led a trap with the permission of Senior Ofcer Jahagirdar. It is

deposed by PW-7 that on 03.05.2012 he received the information from

the informer that the wanted accused was hiding himself at Kamshet,

Pune. He called the staf and the panch witnesses and he informed the

panch witnesses about the panchnama. He further deposed that at about

11.30 a.m. he reached to Kamshet. He formed two teams in front of

Lucky Furniture Shop at Kamshet. After some time, the informer

showed the wanted accused and he went away. PW7 deposed that when

they tried to catch the said person, he tried to run away. They caught

him by using force and thereafter they showed him I-card. On eniuiry,

he told his name as Abdul Rehbar Khan (Appellant) and gave address as

a resident of 90 Feet Road Footpath, Sakinaka. He further deposed that

at that time the Appellant was wearing cream colour full shirt and grey

colour pant. In presence of two panch witnesses they took the physical

search of the Appellant. During his physical search, one pistol was

found at left side of his waist. One China made mobile of Blue Tel

Company having two sim cards was also found. The Appellant was also

found in possession of two live cartridges of 7.65 KF. The said articles

were seized under panchnama. The Appellant was also found in

possession of six currency of Rs.100/- denomination and driving license.

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The said articles were also seized and sealed under seizure panchnama

(Exh.30). In cross examination, he admitted that no ofcers from

Sakinaka were present during the raid. He did not give any intimation

about the raid to Sakinaka police station. He also admitted that on the

information of the informer, he arrested the Appellant. He also

admitted that panchnama was prepared as per the event occurred, but

there is no specifc mention in the panchnama about which part of the

panchnama was written on the spot and which part is written in the

police station. On going through the evidence of PW7, it appears that he

was working as API attached to DCB CID. The said agency carries on

investigation independently. The witness has categorically admitted

that the information received by him about the Appellant was not

disclosed to the Sakinaka police station. He carried out raid without

giving intimation to Sakinaka police station, but at the same time, he has

deposed that after the apprehension of the Appellant, he produced the

Appellant and Muddemal articles before the Sakinaka police station.

Therefore, noting worth has come on record to discard the evidence of

said witness on the point of apprehension of the Appellant at Kamshet

and seizure of pistol, cartridges, mobile phone phone and driving license.

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28. The evidence of witness (PW7) was corroborated by panch

witness Abdul Hamid Abdul Father Shaikh (PW6). According to PW6,

on 03.05.2012 at about 8.45 a.m. he was standing near Zunka Bhakar

Kendra, Andheri. One police constable came there and he asked him to

act as a panch witness. He gave his consent to it. Thereafter, he took

him to Crime Branch, Unit-X, MIDC, Andheri. Police ofcers Mr.

Shaikh and Mr. Joshi were present there. The police told him that he

was reiuired to go to Pune with the police to arrest one accused Abu

Rehbar Khan. He gave his consent to it. Another panch witness Mr.

Hanif Naik was present there. Informer was also present there. They

boarded police jeep. There were 7 persons in the Scorpio jeep. All of

them went to Kamshet, Pune. He further deposed that they reached

Kamshet at 11.30 a.m. The informer told that the Appellant would visit

at Lucky Furniture Shop. They divided into two teams, one was of PI

Mr. Joshi and other was of API Mr. Shaikh. He was in the team of API

Shaikh.

29. He further deposed that the Appellant came there and informer

told that he is the wanted person and he went away. The said person

was apprehended by the police i.e. Appellant. The police introduced all

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of them to the Appellant. PI Mr. Joshi took the search of the Appellant

in his presence. During the search of the Appellant, one pistol was

found at the left side in the pant. Two live cartridges were there in the

pistol. The Appellant was having 6 Govt. currency notes of Rs.100/-,

one mobile have two sim cards, one sim card was of Airtel and another

was of Uninor and one driving license. The police took IMA numbers of

the said sim cards. The police wrapped, sealed and seized all the articles

in his presence and obtained his signatures. The police also prepared the

panchnama (Exh.30). The contents of the panchnama were explained to

him in Hindi and he signed the same and another panch witness also

signed on it. He identifed the Appellant in the Court.

30. In the cross-examination, he admitted that he is in business of

interior designing. His ofce is at Marol in his house. He never acted as

panch witness for MIDC police station before said panchnama. MIDC

police station is situated 100 steps away from where he was standing.

Crime unit is at diferent place. It is not in MIDC police station. He

further admitted that he cannot say the buckle number or the name of

the constable who called him. He further deposed that before meeting

the informer, the constable informed him that he was reiuired to go to

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Pune. He also deposed that he does not know whether the statement of

informer was recorded by the police. He further admitted that he saw

the Appellant frst time when the informer had shown him and police.

He had not seen the photograph of the Appellant before proceeding to

Pune. He also admitted that the police arrested the person which was

shown by the informer. The police did not took him at local police

station. He identifed seized articles produced in the Court.

31. Witness further admitted that the complaint was lodged against

him by his father-in-law and he was in Arthur Road jail. It is suggested

to witness that he was arrested by the API Abdul Rauf (PW7), but the

said suggestion is denied by the witness. It is also suggested that his

passport was verifed by the API Abdul Rauf (PW7) but the said

suggestion is also refuted by the witness. It is tried to bring it on record

that the witness and API were having aciuaintance prior to the

panchnama. But the suggestions to that efect were refuted by the

witness. Therefore, it can be said that the witness is an independent

witness who proved the contents of the panchnama. Nothing is brought

on record to brush aside his ocular evidence.

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32. On going through the evidence of Abdul Rauf Gani Shaikh PW7

and Abdul Hamid Abdul Shaikh PW6, it is established that on receipt of

secrete information API Abdul Rauf (PW7) led a trap and visited the

village Kamshet, Pune and apprehended the Appellant. Articles,

namely, pistol, two live cartridges, mobile phone having two sim cards,

driving license and six currency notes of 100 denomination came to be

sized from the possession of the Appellant under panchnama. The

pistol and two live cartridges were sent to ballistic expert for

examination.

33. In order to prove the nexus between seized pistol and live

cartridges recovered from the Appellant and the crime, the prosecution

has examined Ballastic expert Gautam Ghadge (PW18). According to

Gautam Ghadge (PW18) on 05.05.2012 he received a letter from Sr. PI

Sakinaka Police Station in connection with C.R.No.146/12. He received

one country made pistol with magazine having crude number and

markings No.71111, Automatic pistol 7.65, 7 round, made in USA in

sealed condition. He observed that the said pistol was in working

condition and recently fred, capable of chambering and fring 7.65 mm

pistol cartridges. Two 7.65 mm pistol cartridges were successfully test

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fred from the said pistol. He further deposed that he also received the

bullets which were found in the body of the deceased. He received said

bullets alongwith forwarding letter. He also received two diferent

forwarding letters of bullet and skin. Bullets were received by him.

Three forwarding letters received by him are at Exh.75 Colly.

34. He further deposed that two bullets (Exhibit 1 and 2) are the

fred copper jacketed 7.65 mm pistol bullets having superfcial

lengthwise brushing marks. He further opined that the copper jacketed

7.65 mm pistol bullets in Exhibit 1 and 2 of MLC No.BL-301/12

(received from Assistant Professor, FMD, Mumbai G.S. Medical

College, Mumbai), tallies among themselves and with those on the test

fred bullets from country made pistol Exhibit 1.

35. On going through the evidence of PW18, learned counsel for the

Appellant submits that the evidence of ballistic expert is not conclusive

to say that the seized bullets were fred from the seized pistol. It is also

submitted that during the cross-examination, the witness admitted that

similar diameter to 7.65 mm diameter cartridge can be used in pistol

recovered from the Appellant and the characteristics of the cartridges

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will be same. It is further brought on record that the country made

pistols are diferent in size and there is possibility of fring of bullets of

similar diameter from the another country made pistol. Moreover, it is

testifed by PW18 Gautam Ghadage that he cannot state the time of

fring of seized bullets and that mark of the pistol are the same if it is

fred either on human body or other object. Learned counsel for the

Appellant by referring this evidence tried to convince that the evidence

of ballistic expert is not sufcient to conclude that the pistol which was

recovered from the Appellant was the intact used to kill the deceased

Abdul Sabur Shaikh. Moreover, it is submitted that no shells are

recovered.

36. On this point, the scene of ofence panchnama is very crucial. It

is mentioned therein that there was mud and waste material lying on the

spot. There is no evidence on record to fnd out the exact distance from

which the bullets were fred on the deceased. On consideration of PM

report, it can be further seen that there are no such blacken marks near

the injury. The Analysis Report of skin shows that it was not suitable for

ballistic examination being decomposed. Therefore, it cannot said that

the bullet was fred within a very short distance and therefore non-

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availability of the shell on the spot cannot falsify that the bullet fred is

not from the country made pistol recovered from the Appellant. The

evidence of ballistic expert has concluded that the seized bullets tally

among themselves and with those on the test fred bullets, thus bullets

fred were from the weapon-pistol seized from the accused.

37. (V) Seizure of blood stains clothes of the Appellant and report of

DNA :- The prosecution has also relied on the panchnama and seizure of

clothes of the Appellant (Exh.45). To prove the said panchnama, the

prosecution has relied on the evidence of Mohammed Rafi Siddiiui

(PW9). He deposed that on 4.5.2012 he was not called by the police to

act as panch witness. The police asked him to sign the papers and he

signed on it. He did not support the case of the prosecution. He was

cross examined by the APP, but nothing worth has come on record. We

must mention here that panchnama (Exh.45) was admitted by the

defence. The said panchnama was drawn by PI Sawant, but PI Sawant

was not in a position to depose in the Court as he was harboring under

mental disorder. The said panchnama was proved by the PI Sunil Bhat.

It is mentioned in the panchnama (Exh.45) that on 04.05.2021 the panch

witness Abdul Hamid Abdul Father Shaikh and Mohammed Rafi

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Siddiiui were called. In presence of said panch witnesses, the clothes of

the Appellant were seized under seizure panchnama (Exh.30) in police

station. The description of clothes are given in the panchnama, namely,

one cream colour having faint pink checks and forescent green colour

designed shirt having blood stains. One blackish pant having blood

stains near the chain. The word "Re-max" was written on right back

pocket. It is submitted on behalf of the Appellant that the said seizure

panchnama is of no use because the contents are not proved either

through panch witnesses or Investigating Ofcer. It is true that panch

witness has not supported the case of the prosecution and police ofcer

who had drawn the panchnama was not available for giving evidence due

to his mental illness, but at the same time, we must mention here that

the contents of panchnama have been admitted at the instance of the

defence. Therefore, the defence cannot take disadvantage of non-

examination of investigating ofcer. In fact the contents are admitted by

the defence. Therefore, it is established that the Investigating Ofcer

Sawant has seized the clothes of the Appellant having blood stains.

38. The clothes of the Appellant were sent to chemical analysis

alongwith the clothes of deceased and one tile having blood stains.

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Witness Anil Mhamunkar (PW12) is examined to prove the sending of

seized articles to chemical analysis. According to him, he was Store

Incharge. As a Store Incharge his duty was to take Muddemal in the

custody and to send it to Kalina. He took clothes of the injured, the

clothes of Appellant, weapons and the blood samples of the Appellant

and the injured, in the custody. PI Sawant gave all these articles to him.

He took all these articles to CA on 05.12.2012 and 07.12.2012

respectively, but the said dates are wrongly typed. It should have been

05.05.2012 and 07.05.2012. The correct dates are mentioned in the

letter addressed to CA. The said letters are at Exh.52 colly. wherein the

dates of dispatchment of seized articles are 05.05.2012 and 07.05.2012.

By the letter dated 05.05.2012 the articles found on the spot namely the

plain earth, the earth mixed with blood and one piece of tile having blood

stains, clothes of the Appellant, clothes of the deceased, country made

pistol, two live cartridges were sent to CA. By the letter dated 7.5.2012

the nail clipping of the Appellant were sent to CA. CA ofce received

the articles on 05.05.2012 and 07.05.2012 respectively.

39. The prosecution has produced on record the CA report

(Exh.100) wherein it is opined that the clothes of deceased namely half

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bush shirt, one full pant and one underwear were having blood stains of

'B' Group. Similarly, one full bush shirt and one full pant, earth mixed

with blood found blood group of 'B'. The blood stains found on the tiles

were of 'B' Group.

40. The Investigating Ofcer had sent sample of blood of deceased

for CA alongwith the letter dated 5.5.2012. On chemical analysis it was

opined that the blood group of deceased cannot be determined. The

blood group of the Appellant is 'B'. Thus, it is submitted on behalf of

the Appellant that CA report of the clothes of Appellant cannot be

treated as incriminating circumstance against the Appellant.

41. In view of the inconclusive report of blood of the deceased, the

prosecution has also sent the clothes of the deceased and the Appellant,

piece of tile and earth mixed with blood for DNA test. It was reported

that the DNA extracted from blood detected on Ex.2 half bush shirt,

Ex.3 full pant, Ex4.underwear (clothes of deceased), Ex.5 full bush shirt,

Ex.6 full pant (cloths of the Appellant), Ex.9 tile piece was typed at 15

STR LOCI and No interpretable DNA profle is obtained from Ex.7

earth. The DNA profle of blood detected on half shirt, full pant,

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underwear, full bush shirt, full pant and tile piece are identical and from

one and same source of male origin. DNA profles match with the

maternal and paternal articles in the source of blood. In the report, the

analyst had given a chart of each article wherein it appears that the blood

samples on each articles were matched with each other and it was having

same male origin. The blood stains found on the clothes of the deceased

was of blood group 'B' and blood stains found on the clothes of deceased

as of blood group 'B'. DNA report says that blood stains on the clothes

of the deceased and the Appellant are of blood group 'B'. So it was

incumbent upon the Appellant to explain the said circumstance. But

the defence has not explained as to how the blood stains of 'B' Group

was found on the seized clothes of the Appellant. The said circumstance

goes to the root of the matter to establish the presence of the Appellant

on the spot.

42. (VI) Seizure of mobile phone and CDR Report :- The

prosecution has also tried to establish the presence of the Appellant on

the spot at the time of incident with the help of CDR. It is established

on record that when the Appellant was apprehended, he was having cell

phone having two sim cards, one was of Airtel and other was of Uninor.

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The Investigating Ofcer had reiuested the DCP of Zone X MIDC to

obtain the hard copy of CDR and copies of CAFF. Accordingly, the

DCP wrote a letter to the Noddle Ofcer, IDEA Cellular Ltd.(Exh.83),

Noddle Ofcer, Unitech Wireless (Tamilnadu) Pvt. Ltd. (Exh.90) and

Vodafone Easser Pvt. Ltd. (Exh.104). In pursuance of the letter written

by DCP Zone X, MIDC, IDEA Cellular has issued call details of Mobile

No.86521238. The said sim card was in the name of Saleem Abdul

Rashid Mohammed resident of Jogeshwari (E), Mumbai. But it was

found in possession of the Appellant. The call details are produced on

record by Vijay Shinde (Exh.19). The call details of Cell No.8421871450

have been produced by Noddle Ofcer Anil (Exh.21). The said sim card

was issued to Islam Rahman, resident of Bhiwandi, Thane. But the said

sim card was found in the seized mobile of the Appellant. Witness Vilas

Phulkar, Noddle Ofcer of Vodafone produced the call details of Mobile

No.98330606423. The said sim card was issued to Ravindra Mane.

43. It is come in the evidence of Vijay Shinde (PW19) that the

Mobile No.8652521238 was standing in the name of deceased Abdul

Shaikh whereas it is come from the evidence of Amit Karkera (PW21)

that Mobile No.8421874150 was standing in the name of Ismail whereas

it is come in the evidence of Vilas Phulkar (PW22) that Mobile

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No.9833066423 was standing in the name of Ravindra Mane. It is also

come in the evidence of Informant that deceased Abdul Sagir -

Informant was having Mobile No.9930246462. Moreover, Nokia

Mobile phone was seized under panchnama dated 2.5.2012 wherein

there was sim card having Mobile No.9930246462 and the said

panchnama is proved by the prosecution. It is also come in the evidence

of Ravindra Mane that he had called the Informant from the cell phone

found on the spot and informed that deceased was lying on the spot.

44. The prosecution has relied on the evidence of Vijay Shinde

(PW19), Noddle Ofcer of Idea Cell, Amit Karkera (PW21), Noddle

Ofcer of Unitech Wireless, Vilas Phulkar (PW22) alternate Noddle

Ofcer of Vodafone have produced on record subscription form, CDR

and the site location of Mobile No.8652521238 (of the Appellant) for the

period between 1.5.2012 and 3.5.2012. He deposed that the location of

Mobile No.8652521238 on 1.5.2012 at about 10.24 p.m. was at Netaji

Nagar, whereas location of said Mobile No.8652521238 on 1.5.2012 at

about 10.32 p.m. was at Jarimari, Andheri.

45. It is come in the evidence of Amit Karkera that in pursuance of

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letter of DCP Zone X, he supplied CDR of Mobile No.8421871450 for

the period between 1.5.2012 and 3.5.2012 alongwith CAFF. He further

deposed that the said cell phone was standing in the name of Ismail. But

found in possession of the Appellant. He further deposed that the

location of Mobile No.8421871450 at 1.5.2012 at about 4.38 p.m. and on

01.05.2012 at about 10.22 p.m. was at Bihari Building Andheri.

46. It is come in the evidence of Vikas Phulkar (PW22) that he

furnished CDR and CAFF of Mobile No.98330665423 for the period

between 1.5.2012 and 3.5.2012 and supplied location address of Mobile

No.9932246462 and 9833066423. It is deposed by Vilas Phulkar that

Mobile No.9833066423 was standing in the name of Ravindra Mane. On

1.5.2012 at about 9.32 p.m. the location of said mobile number was at

behind Jarimari Road, Andheri Kurla Road. He further deposed that the

location of mobile No.9930246462 at 11.00 p.m. was at Sathi D'Souza

90 Feet Road, Andheri (E). It is also come in his evidence that on

1.5.2012 at about 5.53 p.m. call was given from 8652521238 to Mobile

No.9930246462. He also deposed that the location of mobile

No.9930246462 on 01.05.2012 at about 11.32 p.m. was on International

Airport Sahar and at 10.20 p.m. on 01.05.2012 location was at Netaji

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Nagar, Near Sakinaka, Mumbai.

47. From the above evidence of Vijay Shinde, Anil Karkera and Vilas

Phulakr, it is established that on 01.05.2012 at about 10.30 p.m. the

location of Mobile No.9930246462 was at Jarimari, Samsuddin Nagar,

Andheri. It is also established that Ravindra Mane had given call from

the cell phone of deceased to the Informant namely on 9930246462. The

CDR established that at the time of incident, the Appellant was in the

vicinity of scene of ofence.

48. The prosecution has also examined Anil Pawar (PW17) who

deposed that in May 2012 he was attached to Sakinaka police station. On

8.5.2012 PI Suryakant Sawant gave him viscera to send it to CA. He

took the viscera and delivered it to C.F.S.L. Kalina. The letter

alongwith acknowledgment of CA was handed over to senior PI

(Exh.63). The said evidence is not denied. Nothing abnormal was

found in the viscera of deceased. Therefore, the prosecution has simply

concluded the formality of sending viscera to C.F.S.L. Kalina.

49. It is the case of prosecution that after arrest of the Appellant, he

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pointed out the scene of ofence to the Investigating Ofcer in presence

of panch witnesses. Accordingly, memorandum statement was prepared

(Exh.54). It is also the case of prosecution that the Appellant pointed

out scene of ofence to the I.O. and panch witnesses, but nothing was

seized from the spot. To prove the memorandum spot panchnama, the

prosecution has relied on the evidence of Abdul Latif Shah. He deposed

that he was called at Sakinaka police station. One person was present

there. The police told him that they arrested the said person. The

police shown documents to him. Further he deposed that he went

alongwith the police and accused to Jarimari near Airport. All of them

got down. They walked for 5 minutes. The arrested persons took the

police and panch witnesses to Airport wall. There was some hilly area

and the police took search, but nothing was found in the said place.

Thereafter, police prepared panchnama (Exh.54A).

50. We must mentioned here that after the incident, PI Sunil Bhat

rushed to the spot and prepared scene of ofence panchnama (Exh.32).

The said panchnama was prepared in the morning of 2.5.2012. So it can

be said that the police knew the place of incident, therefore, the

memorandum of spot panchnama (Exh.55 & 55A) has no legal

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conseiuences because nothing was discovered in pursuance of the

statement of the Appellant and the scene of ofence was known to the

police. Therefore, the said panchnama is not helpful to the prosecution.

51. The prosecution has also produced on record the photographs of

the scene of ofence and the said photographs were taken by Dilip

Shinde (PW14) in the morning of 2.5.2012. The said photographs were

developed by photographs Dinesh Sangoie (Exh.15). Witness Dilip

Shinde has produced on record four photographs (Article 5 Colly.). The

evidence of photographs was not denied by the defence. The said

photographs simply shown the situation on the spot.

52. On going through the evidence of witnesses and consideration of

ratio laid down in the case of Hanumat v. State of M.P. (1953) SCR 1091

and above discussion, we are of the opinion that the prosecution has

proved the homicidal death of the deceased Abdul Shaikh. The

prosecution has also proved that motive for the crime namely the

complaint lodged by the deceased against the Appellant in U.P. whereby

the Appellant was convicted. The prosecution has also established in

the personal search panchnama, pistol, two live cartridges, cell phone,

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driving licence, two sim cards, six currency of 100 denomination was

seized.

53. It is proved through the evidence of ballistic expert that the

seized pistol was used in the crime. Similarly, two live cartridges were of

a similar nature to that which were extracted from the body of the

deceased. Two live cartridges as well as bullets found in the body of the

deceased were of 7.65 KF. It is also established that the clothes of the

Appellant were seized by the I.O. The clothes of deceased and the

Appellant were sent to Forensic Analysis. It was reported that the blood

found on the cloths of the deceased was of 'B' group. The DNA report

also established that the blood stains found on the clothes of the

deceased and the Appellant were of same male origin. It is also

established on record that the location of mobile phone of the Appellant

at the time of incident, was at nearby location of the scene of ofence,

whereby the prosecution has proved the presence of the Appellant

nearby the vicinity of the scene of ofence.

54. In the result, we hold that the prosecution has proved the

circumstances except the Appellant found last seen with the deceased.

Therefore, the prosecution was rightly proved the charge u/s.302 of the

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IPC against the Appellant.

55. As far as the charge u/s.25(1B)(a) r/w 27(3) of the Arms Act,

1959 is concerned, it is established that the Appellant was found in the

possession of seized pistol. It is established that the said pistol was used

in the crime. The Appellant did not produce any license for the

possession of pistol. It was incumbent upon the prosecution to prove

the sanction for the prosecution of the Appellant under the Arms Act,

1959. To prove the said sanction, the prosecution has relied on the

evidence of Sharda Raut (PW23). It is deposed by her that since

18.06.2012 she was attached to headiuarter-1, Mumbai as DCP HQ-I.

She was looking after matters related to licenses of Arms and

Ammunition. According to her, she received a report from Sr.PI of

police station Sakinaka dated 27.12.2012 alongwith copy of FIR,

panchnama of personal search of the accused, ballistic experts report.

On perusal of the said record, she was satisfed that there was a prima

facie case of contravention of provision of Section 3. She accorded

sanction to prosecute Appellant Abu Rahabar Abu Hasan Khan @ Nimra

in CR No.146/2012 u/s.302 of IPC and u/s.3, 25, 27 of Arms Act.

(Exh.124).

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56. The Appellant is facing charge u/s.25(1B)(a) r/w. Section 27(3)

of the Arms Act, 1959. The prosecution has led evidence to establish

the possession of pistol and live cartridges with the Appellant. It is

established from the evidence of panch witnesses and PI Mr. Shaikh that

the Appellant was apprehended on 03.05.2012 at Kamshet, Pune. On

his personal search he was found in possession of pistol and two live

cartridges, which was seized under panchnama, so it can be said that the

prosecution has established the possession of fre arm with the

Appellant. On the basis of above evidence, learned counsel for the

Appellant submits that there is no proper sanction to prosecute the

Appellant for the charge punishable u/s.25(1B)(a) of the Arms Act,

1959. In order to appreciate his submission, it is necessary to consider

Section 39 of the Arms Act, 1959, which reads as under :-

"No prosecution shall be initiated in respect of any person under Section 3 with the previous sanction of the District Magistrate"

57. The prosecution has examined DCP (HQ-I), namely, Sharada

Pandurang Raut (PW23). It is come in her evidence that on 27.12.2012

she received a copy of FIR, panchnama of personal search of accused,

Ballistics Experts Report from Sr.PI of police station Sakinaka to accord

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the sanction to the prosecution of the Appellant. She further deposed

that on perusal of papers, she was satisfed that there was prima facie

case of contravention of provision of Section 3 punishable u/s.25(1B)(a)

of the Arms Act. Hence, she accorded sanction (Exh.124) to prosecute

the Appellant. It is an admitted fact that the chargesheet came to be

fled against the Appellant on 30.07.2012 whereas witness Sharada Raut

(PW23) received papers for sanction on 27.12.2012, on the same day she

accorded the sanction; so it can be said that the sanction was accorded

after fling of the chargesheet. In view of Section 39 of the Arms Act,

1959, it was expected from the Investigating Ofcer to seek previous

sanction of the District Magistrate to institute prosecution against the

Appellant, but no prior sanction was obtained by the Investigating

Ofcer before fling chargesheet. Therefore, charge u/s.25(1B)(a) is not

maintainable. The Trial Court has held that though the sanction is

defective, the whole proceeding cannot be vitiated. It is true that the

entire prosecution cannot be vitiated for want of sanction, only charge u/

s.25(1B)(a) r/w. Section 27(3) can be vitiated. Though the prosecution

is proved the possession of pistol and cartridges with the Appellant, but

for want of sanction, the Appellant cannot be convicted for the said

ofence.

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58. Hence, the fnding of the Trial Court in respect of the charge

u/s.25(1B)(a) r/w. Section 27(3) of the Arms Act, 1959 is reiuired to be

set aside.

59. In view of the above discussion, we hold that the Appeal is

reiuired to be partly allowed. Hence, we pass the following order.

ORDER

1. Appeal is partly allowed.

2. The Judgment and Order dated 09.03.2017 passed by the Additional Sessions Judge, Sessions Court, Greater Mumbai in Sessions Case No.607/2012 against the Appellant for the ofence punishable u/s.302 of the Indian Penal Code is hereby maintained subject to Clause (3) herein below.

3. The sentence awarded to the Appellant for the ofence punishable u/s.25(1B)(a) r/w. Section 27(3) of the Arms Act, 1959 is hereby set aside.

4. Accordingly an Appeal stands disposed of.

[SURENDRA P. TAVADE, J.]                                [ S.S. SHINDE, J.]




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