Mujahid S/O. Maqeed Qureshi vs The State Of Maharashtra
2022 Latest Caselaw 12929 Bom

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                                                         criappeal332.17.odt

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 332 OF 2017

Mujahid s/o Maqeed Qureshi
age 27 years, occ. Labour
R/o Murtuza Colony, Pathri,
Tq. Pathri, Dist. Parbhani.                                    Appellant

       Versus

The State of Maharashtra                                       Respondent

Mr. S. J. Salunke, Advocate for the appellant.
Mr. R. B. Bagul, APP for the respondent/State.


                                 CORAM : R. G. AVACHAT &
                                         R. M. JOSHI, JJ.

RESERVED ON : 8th DECEMBER, 2022.

PRONOUNCED ON :13th DECEMBER, 2022.

JUDGMENT : ( PER R. M. JOSHI, J. )

1. Appellant is sentenced to suffer life imprisonment by

Additional Sessions Judge, Parbhani in Sessions Case No. 151/2015

and against the said conviction, he has preferred present appeal

under Section 374 of the Code of Criminal Procedure.

2. In short, case of the prosecution is as under :-

On 31st July, 2015, at about 6.00 pm, Mujahid/appellant,

came to the house of Vishwanath/informant and took Kisan, son of

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the informant, with him. At about 7.00 pm, Balu Satpute, nephew of

the informant, came home stating that Kisan is found in injured

condition behind bus stand near cinema hall. They went to the spot

and found that Kisan was already removed to Onkar Multi Speciality

Hospital, Pathri, for treatment by Bharat, Bandu and Vishal. From

there, he was taken to Government Hospital, Parbhani. Informant

further stated about Kisan and appellant being friends and appellant

being addicted to liquor. According to him, there used to occur

quarrels between Kisan and appellant for last 2 to 3 months as Kisan

was refusing to accompany appellant for committing theft. This

report came to be recorded at 10.00 pm on 1 st August, 2015 and

pursuant thereto, at 11.35 pm, offence came to be registered vide

C.R. No. 134/2015.

3. During the course of investigation, police visited the spot

and spot panchanama (Exhibit 24) was drawn and inquest of the

body was done under panchanama (Exhibit 22). The dead body was

referred for post mortem and post mortem notes (Exhibit 34) were

included in the investigation papers. Statements of witnesses were

recorded. There was seizure of clothes of deceased and accused.

Seized muddemal was sent for forensic examination. On conclusion

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of examination, charge-sheet was fled and case was committed to the

Sessions Court for trial. Since appellant abjured the charge, he was

put on trial.

4. Prosecution examined in all twelve witnesses in order to

bring home guilt of the appellant. Amongst these witnesses,

Vishwanath Rode (PW 1) is informant, who set law in motion, Krishna

Pitale (PW 2) is the one who had seen deceased for the frst time in

injured condition lying on the spot. Dr. Kazi (PW 5) conducted post

mortem and gave his opinion about cause of death being interracial

hemorrhage due to head injury. Police Head Constable Radkar

(PW 4) was examined for the purpose of proving the fact about

recording of statement of informant at 10.00 pm on 1 st August, 2015

in the hospital. Inquest panchanama (Exhibit 22), spot panchanama

(Exhibit 24) and panchanamas of seizure of clothes of deceased and

accused (Exhibit 25 and 26) were admitted by the defence.

5. According to learned advocate for the appellant, there is

delay in lodging report to the police and in the facts and

circumstances, when there is a reason for the informant to lodge

false report against the appellant, such delay becomes fatal to the

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case of the prosecution. He also submitted that there is absolutely

no evidence on record except statement of the informant about last

seen of appellant with the deceased to connect him with the crime as

seized clothes of the deceased do not show any blood stains nor there

is recovery of any weapon. It is also argued that the fact of homicidal

death is not conclusively established nor the manner in which the

alleged assault is caused is proved by the prosecution beyond doubt

and from the cross-examination of the Medical Offcer, the possibility

of accidental injury is not ruled out. In support of his contention, he

has placed reliance on following judgments :-

i)         Chandrapal vs. State of Chhattisgarh,
           AIR 2022 Supreme Court 2542

ii)        Kanhaiya Lal vs. State of Rajasthan,
           reported in (2014) 4 Supreme Court Cases 715.

6. All the aforesaid submissions are vehemently opposed by

learned APP by placing reliance on the evidence of informant, which

according to him, indicates that there used to occur quarrels between

deceased and appellant for refusal of the deceased to accompany

appellant for committing theft and, considering the fact that within

less than an hour of deceased being taken with him by the appellant,

he was found in injured condition and, in the absence of any

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explanation from the appellant, it needs to be held that he is the

author of the injuries caused to the deceased. By referring to the

other evidence on record, prosecution has sought for dismissal of the

appeal. In support of his submissions, he placed reliance on the

judgment in the matter of Surajdeo Mahto and another vs. State of

Bihar, reported in 2021(4) Bom.C.R. (Cri.) 343.

7. The incident in question has occurred on 31 st July, 2015

between 6.00 to 7.00 pm whereas the statement of informant for the

frst time came to be recorded at 10.00 pm on 1 st August, 2015, as

admitted by informant himself as well as deposed by Police Head

Constable Radkar ( PW 4). It is further appearing from evidence of

this police personnel that he attempted to record statement of the

injured but since the injured was not in a position to make statement

due to his unft physical condition, no statement was recorded and

fnally, statement of informant was recorded at 10.00 pm on the next

day of incident.

8. From the testimony of Vishwanath (PW 1), it is clear that

there was history of quarrels between appellant and deceased Kisan,

son of the informant, for the reason that Kisan was refusing to

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accompany appellant for committing theft. It has further come in his

evidence that due to fear of appellant, deceased was not going for

work since one month and on the day of the incident in the

afternoon, the deceased was beaten by the appellant. In such

circumstances, it is diffcult to accept that the informant did not

suspect causing of injuries to his son at the hands of appellant.

When it is a specifc case of the informant that on the day of the

incident at about 6.00 pm, appellant took Kisan with him and

thereafter at 7.00 pm, Kisan was found in injured condition, the

normal conduct of any person would be that of reporting such

incident to the police immediately. Even accepting the fact that the

injured was taken to the hospital and preference was given to his

treatment, evidence on record suggests that the injured was not

taken to the hospital by the informant but by other persons who

found him in injured condition at the spot. Apart from this, there is

other evidence to indicate that the informant has three other sons

than the deceased and one of them is also duly examined before the

Court. Thus, it stands to no reason as to why immediate First

Information Report was not lodged by indicating the fact of appellant

having taken the deceased with him.

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9. Delay caused in lodging First Information Report is not

explained by informant or Investigating Offcer. Accepting the

circumstances appearing on record as it is, they are not enough for

condonation thereof. More particularly when there is evidence

showing informant having grudge against the appellant owing to the

instances of assault/beating by the appellant to the deceased prior to

occurrence of last incident. Thus, informant had every reason to

lodge report against the appellant. Non-explanation of delay becomes

fatal in such circumstances.

10. Though it is sought to be argued that there was only one

hour time gap between deceased having gone with appellant and he

found in injured condition, the evidence of informant about Balu

coming to him at 7.00 pm does not get support from the evidence of

Pandhari (PW 8), brother of the deceased. This witness claims that

at about 8.00 pm, Balu came and informed about Kisan lying in the

injured condition behind cinema talkies. Thus, the time gap between

alleged last seen and discovery of incident of assault is not that small

as sought to be projected. Similarly, the conduct of informant as well

as brother of deceased of even not informing to any other person who

had seen deceased in injured condition about the deceased having

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gone along with appellant gives further support to theory of false

implication. Moreover, it also does not stand to any sort of

justifcation as to why deceased would go along with the appellant if

he was beaten on the very same day in the afternoon. In such

circumstances, we do not fnd any reason to place reliance upon the

sole belated statement of informant about appellant having taken

deceased with him and thereafter in short period of time he was

found in injured condition. Since his testimony is not wholly reliable

unless there is corroboration on material particulars, it would be

unsafe to consider the same for the purpose of conviction of the

appellant.

11. Since it is a case of circumstantial evidence, all the

circumstances must unerringly lead to the sole conclusion of

involvement of appellant in this crime excluding any other possibility.

Prosecution, therefore, at the frst place must prove that the death of

deceased is homicidal. In this regard, it would be material to refer to

the testimony of Dr. Kazi (PW 5) who has noted external injuries and

corresponding internal injuries found on the dead body. He has

opined about cause of death as interracial hemorrhage due to head

injury. In the cross-examination, however, he has accepted that

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causing of haematoma may be by accident or assault or even

otherwise. It is thus clear that there is no candid opinion of Medical

Offcer which leads to the conclusion that the death of the deceased

is homicidal. On the basis of such evidence, it can not be held that

prosecution has proved beyond doubt that deceased died homicidal

death.

12. According to the Investigating Offcer, appellant was

arrested from his house and seizure of his clothes did not indicate

any blood stains thereon. There is no recovery of any weapon and in

fact no evidence is adduced by the prosecution in order to show as to

how the injuries were probably caused to the deceased. In the

circumstances, except for the belated statement of informant that

deceased went along with appellant at 6.00 pm on 31 st July, 2015,

there is absolutely no evidence on record to connect the appellant

with this crime.

13. In the facts and circumstances of the case, delayed

statement of informant against appellant creates serious doubt about

its veracity and, in the absence of any other evidence connecting

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appellant with this crime, we are not inclined to uphold the judgment

of conviction. Hence the order :

ORDER

(i) Appeal is allowed.

(ii) Impugned judgment and order dated 6th July, 2017 in Sessions case No. 151/2015 is set aside. Appellant Mujahid s/o Maqeed Qureshi is acquitted of the offence punishable under Section 302 of the Indian Penal Code.

(iii) Appellant Mujahid s/o Maqeed Qureshi be released forthwith, if not required in any other crime.

           (iv)     Fine amount be refunded, if paid.




( R. M. JOSHI)                                          ( R. G. AVACHAT)
     Judge                                                     Judge

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