Bombay High Court
Mr. Mohammad Arshad Haji Shabbir ... vs The State Of Maharashtra on 7 March, 2022
Bench: Prasanna B. Varale, N. R. Borkar
Judgment.Cr.Apeal.470.2000.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 470 OF 2000
Mr. Mohammad Arshad Haji
Shabbir Shaikh,
Age : 30 years,
R/at : Room No. S-1, Plot No. 8, ...Appellant
Baiganwadi, Govandi, (Orig. Accused)
Mumbai - 400 083
(Presently at Arthur Road Central
Prison, Mumbai).
Versus
The State of Maharashtra
(At the instance of Shivajinagar ...Respondent
Police Station, Mumbai)
***
Mr. Ganesh Gole a/w Mr. Bhavin Jain for the Appellant.
Mr. Arfan Sait, APP for Respondent - State.
***
CORAM : PRASANNA B. VARALE &
N. R. BORKAR, JJ.
RESERVED ON : JULY 30, 2021.
PRONOUNCED ON : MARCH 7, 2022.
JUDGMENT (PER PRASANNA B. VARALE, J)
1. Being aggrieved by the judgment and order dated
12.06.2000 passed by the learned Sessions Judge for Gr.
Mumbai in Sessions Case No. 713 of 1999 whereby the
appellant - original accused who was charged for
commission of offences punishable under Section 302 of
the Indian Penal Code (for short 'IPC') convicted and
awarded sentence for life imprisonment along with fine,
filed the present Criminal Appeal.
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Digitally signed
by SHUBHADA
SHUBHADA SHANKAR
SHANKAR KADAM
KADAM Date:
2022.03.08
11:18:08 +0530
Judgment.Cr.Apeal.470.2000.doc
2. The case of prosecution, can be summarized as
follows:
It is the case of prosecution that the accused and
deceased Mohammed Gouse were known to each other and
had business dealings. According to the prosecution in
the premises wherein the accused was running Hotel Umar
Azmi was let out by Mohamed Mushraf Mustafizoraman (PW
4). It is the case of prosecution that a demand for
refund of the deposit amount for said premises was made
by the accused from P.W. 4. The deceased was supporting
the demand made by accused. It is also the case of
prosecution that the premises right in front of Umar
Azmi Hotel was also in possession of the accused. It is
the case of prosecution that on the fateful day i.e.,
15.02.1999, certain people including the deceased came
to the said Umar Azmi Hotel and made demand for refund
of the deposit from P.W. 4. Then P.W. 4 gave promise
that he will refund the said amount at subsequent date.
After some discussion, P.W. 4 went to his house which
was right above the said Umar Azmi Hotel.
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3. After having heard the some commotion near the
above said Hotel premises, Maruti Govind Kamble (P.W.
1) - Complainant found the people running here and
there and saw that a person was lying in injured
condition in the gutter. It is also the case of
prosecution that the said aspect was also seen by P.W.
4 from his premises over the said hotel. As the said
person was seen lying injured in the gutter, P.W. 1 -
Complainant and other persons shifted injured to
Rajwadi Hospital. At the Rajwadi Hotel, injured
declared dead.
4. Then FIR was lodged at the instance of P.W. 1 -
Complainant and on the basis of FIR investigation was
started. The present accused came to be arrested on
20.02.1999. After some investigation a voluntary
statement was made by the accused on 24.02.1999 which
leads to recovery of knife which according to the
prosecution was blood stained. Then blood stained
clothes of accused were seized on 07.03.1999. Then
certain steps were taken in the investigation, such as,
recording the statement of witnesses, recovery of
articles, sending articles for CA, obtaining report
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from CA, then obtaining postmortem notes. On completion
of investigation, charge-sheet came to be filed in the
Court of JMFC. As the offence being exclusively triable
by the Court of Sessions, case was committed to the
Court of Sessions, Mumbai. On appreciation of evidence,
learned Sessions Judge, passed the order of conviction.
Hence, the present Appeal against conviction.
5. The prosecution in support of it's case, examined
as many as 11 witnesses.
6. As the investigation was set in motion on the
lodgment of FIR by Maruti G. Kamble (PW 1). It would be
appropriate to refer to the evidence of this witness
first.
7. Maruti Govind Kamble (PW 1) - Complainant, in
examination-in-chief, stated that he was working as
labourer in 1999. On 15.02.1999, he was on leave. On
that day, at about 06.00 p.m. he left his house for
personal work and on his way out he went to a video
shop of his friend Abdul Salam. That shop is on plot
no. 8 and 9 and is known as 'Amit' Video'. At that
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shop, he was chit-chatting with his friend. Then after
sometime, he saw that the shop owners in that area were
lowering down shutters of their shops and thus he
turned around to find the reason therefor. At that
time, he found the road totally empty. As he came out
on the road, he found a person in a gutter. He went
near him and found him gasping and he was in the gutter
upto his navel or a little above that. Then he called
his friend, and others and all of them numbered about
5-6 persons pulled him out. Then they made him to lie
down on the road and from nearby STD booth called the
police. Then he saw his clothes blood stained and
noticed an injury on his neck. Then the injured person
became unconscious. Then police van came and he was
placed in that van and taken to Rajawadi Hospital. This
witness also accompanied the police. On admission in
the hospital, doctor declared injured dead. The police
found pager, diary and the driving license from the
person of the deceased on the basis of which he was
identified. He came to know that the injured was a
resident of Chita camp.
In the cross-examination, this witness admitted
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that he saw 15-20 people running on the road. The
distance between shop where he was sitting and the
gutter was about 100 feet. The STD booth was about 100-
120 feet away from the place of incident and it was not
closed.
8. Shaikh Mastan Ali Abdul Sattar (PW 2), is the panch
witness. This witness in his examination-in-chief,
stated that on 15.02.1999 at around 11.00 p.m. he was
called by Shivaji Nagar Police Station, for acting as a
panch. He does not remember the hotel today. In the
kitchen of that hotel the police took charge of blood
scrapping from a chair. They also took charge of blood
stained oil from the road between plot nos. 8 and 9.
They took charge of a chappal from the gutter / nala.
Then he saw the gutter personally. Then his presence
the police took measurements of various distances. Then
this witness identified all the articles produced by
police in Court.
In the cross-examination, this witness stated that
the shutter of the hotel was open when the police took
charge of blood scrapping. The said shutter was open
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when he entered in the kitchen of the hotel. He did not
know the policemen who were in the civil dress. The
measurements were taken in the presence of these panch
witnesses. The hotel and the gutter were on the same
side of the road. The recording of the panchnama
commenced immediately at around 11.00 p.m. Then certain
suggestion were given that this witness signed on a
ready made panchnamas at the police station, he was not
the witness to taking charge of the articles and
measurements, theses suggestions were denied.
9. Nasim Ahmed (PW 3), in his examination-in-chief
stated that he was carrying on business of sugarcane
juice in the name and style Afzal Juice Centre. This
witness had given his shop to one Arshad. He did not
know Babulal and Mohamad Gouse.
In the cross-examination, this witness stated that
he was paying the rent to the corporation. It was an
oral understanding between him and the accused, for the
shop. Nothing elicited from the evidence of this
witness.
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10. Mohamad Musharaf Mustafizoramn (PW 4) is the star
witness, as claimed by the prosecution. This witness,
in his examination-in-chief, stated that he knows
Farukh. He had a shop of clothes. On 15.02.1999, this
witness was at his workplace between 11.00 am and 04.00
pm. He met the accused on the ground floor. This
witness came to know that the shop opposite his shop
was also taken over by the accused. Then this witness
was called by the accused at 05.00 pm and he demanded
refund of the deposit for his shop as according to him
his business was running at a loss. At that time, there
were about 4-5 person in that shop and one of them
repeating the statement of the accused and said that he
should refund the deposit after deducting the rent dues
from the accused. Then this witness told to them that
he will try to get the money for refund as early as
possible. Then this witness stated that he went
upstairs. After about one hour, he heard shouts 'mar
dala', 'mar dala' from the said shop. He saw from the
window that people were running here and there. The
shop owners were pulling down shutters of their shops
and saw a person in the gutter. Then this witness came
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down and saw people lifting that man from the gutter.
Then police came and took away that person from the
gutter. This witness further stated that as he was not
able to see properly from his premises he came down and
found the man in the gutter was the same person who had
requested him in the shop to refund the money of
deposit of the accused. He did not know how the man in
the gutter got injured. He did not meet anyone when he
came down. The statement of this witness was recorded
by the police on the same day of incident at night.
This witness had told everything to the police. It was
read over and explained to him. Then permission was
sought to contradict the witness under Section 162 of
Code of Criminal Procedure. Permission was granted.
This witness stated that what is read out to him did
not occur at that time. Then this witness stated that
he cannot explain as to how it is so recorded by
police.
In the cross-examination, this witness stated that
those five people present in the shop were discussing
amongst themselves. This witness did not know anyone of
them. This witness reached there only after the injured
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was removed by the police. Statement of this witness
was recorded on next day at about 04.00-05.00 a.m. The
statement of this witness was partly recorded at spot
and partly at the police station. Then certain
suggestions were given to extent that he was not at
home and he saw nothing, there was no request for the
refund of money deposited, and he was falsely deposing at
the behest of the police, all these suggestions were denied.
11. Nanku Murari Ansari (PW 5) is another panch witness
to seizure panchnama. In examination-in-chief, this
witness stated that on 24.02.1998, he was called by
Shivaji Nagar Police Station, at about 03.30 a.m to act
as panch witness. There was another panch at that time.
A person in custody desired to make a voluntary
statement and to show the place where the weapon was
kept. Then police recorded the same and obtained his
signature thereon. Then the accused led them to a
hotel. He does not remember the name of hotel. The said
hotel was closed. Then he called a person from the
premises on the top of the hotel and that person came
down. Then that person opened the hotel and from a bag
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accused brought knife. The said bag was near the
kitchen room of that hotel. The same was recorded by
the police and his signature was obtained on the
panchnama. The total length of the knife was 12 inches.
In the cross-examination, this witness stated that
he was a tailor and was staying at a distance of about
50 to 100 feet from the police station. He had gone to
bathroom and on return he was called by the police. The
officer was Pawar along with Havildar Sonawane. This
witness stated that those police personnel know him.
Then he was told about the facts of the case and
panchnama is to be drawn of the weapon of offence. This
witness further stated that before recording the
statements the names and addresses of the panchas were
not recorded. He does not know Marathi. His name and
address was recorded by the police. In his presence the
name and address of other person was not recorded.
First his name and address was inquired and thereafter
he signed. This witness signed on the paper on which
his name and address was recorded. The bag was not
taken charge by the police.
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12. Sayadali Jawedali Kazi (PW 6), is another panch
witness to seizure panchnama of clothes. In
examination-in-chief, this witness stated that on
07.03.1999, he was called at 07.30 pm by Shivaji Nagar
Police Station to act as panch. He was called to the
officer's room where as person in custody desired to
show the clothes kept by him. This witness was made to
sign on a written full-scape paper. The said paper was
written about the case of murder. Then accused led them
to Ghatkopar, Deonar Link Road, Dumping ground. In his
presence the accused took out clothes from a pipe. The
same was taken charge by the police and then this
witness came back to police station. This witness was
made to sign on the document at police station.
In the cross-examination, this witness stated that
on taking the clothes in his hand, this witness stated
that the clothes were similar but were red stained at
that time. He signed at both places only at the police
station. This witness stated that he does not know
Marathi. Then this witness admitted that his name is
not Sayadali Jawedali Shaikh. This witness denied that
he was impersonating and deposing in place of Sayadali
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Jawedali Shaikh. This witness further stated that he
has no concern with the police.
13. PSI - Sunil Shankar Bhosale (PW 7), is the
investigating officer. On 15.02.1999, he was attached
to Shivaji Nagar Police Station, as SHO. He was on duty
from 8.00 pm to 8.00 am next morning. Around 8.00 pm he
received phone call from control room informing that an
injured has been shifted to Rajawadi hospital by mobile
in that area. Then he went with the staff to the
hospital and came to know that the said injured was
declared dead before admission. Then this witness
stated about the steps taken by him in investigation
such as, recording the statement of witnesses, drawing
various panchnamas, etc. Thereafter the matter was
transferred to PI-Gire.
In the cross-examination, this witness stated that
the format u/Sec. 154 of Code of Criminal Procedure is
filled by him. The same was filled up after the inquest
panchnama and return to the police station. This
witness was present at the time of search of the
deceased. Then this witness denied the suggestion that
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statement of PW was recorded before the inquest
panchnama. This witness admitted that Ex-8 does not
show sealing. He did not take advise of seniors before
completing 154 format. He went to the scene of offence
at 11.00 p.m.
14. Balkrishna Pandurang Hankare (PW 8), is the Medical
Officer, attached to Addl. Coroner's Court Rajawadi.
This witness stated that a dead body of Mohd. Gous
Abdulla Shaikh was forwarded by PSI-Bhosale of Shivaji
Nagar Police Sttion, which was brought by PC-21877 and
the dead body was identified by his assistant. The body
was received at 01.30 a.m and the PM was completed till
10.30 am and 11.15 am on 16.02.1999. Then this witness
noted the injuries in Col. 17 and internal injuries in
Col. 20(D) as well as Col. 21, which are as follows:
1. Stab injury on right supra clavicular
region horizontally 2x1x8 cm deep in chest,
bleeding (+) double sharp edged gapping
(+).
2. Stab injury in left side epigastric region
obliquely to left side and upward direction
8x2.2xAbdomen (18 cm.) deep, Double sharp
edged with Appeared end. On left side,
gapping present, intestive protruding.
3. Stab bellow Injury No. 3 verticle 2.5x1.5x8
cm deep to the right side (In the skin)
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double sharp edged.
4. Stab injury on lateral side of upper left
thigh verticle 4 cmx1.5 cm. 5 cm deep upto
bone-Double edged.
5. Stab on right side abdomen, bellow costal
margin 5x2x6 cm in the skin thappered end
on left side double sharp edged.
6. Abrassion Horizontal below injury no. 5
2x0.5 cm.
7. Ventricle stab injury along the medical
border of left seapulla at upper region
double sharp edges 2 cmx1.2x3 cm skin deep
only.
Along with diagrammatic representation
other injuries discovered by external
examination or palpations fractures etc.:
No fracture evident.
Then a question asked to this witness that: can you
say definitely that the injuries shown against serial
Nos. 17 and 18 are ante-mortem injuries?: Yes,
Antemortem.
Head-
Injuries under the scalp, their nature:-
NAD,
Skull-Vault and base-discrib e fractures,
their sites, dimentions, directions etc:-
Intact.
Brain - The appearance of its coverings,
size, weigh and general condition of the
origin itself and any abnormality found in
its examination to be carefully notes
(weight M.3 gram F.2.75 grams). :- Pale.
Thorax- Walls, ribs, cartilages.... Pleanura
...... Infact, pale.
Larnyx, Trachea and Bronchi.
Right Lung : Stab injury on apex of right
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lung 2 cm x 3.5 cm deep - Bleeding (+).
Right Haemothorax -1200 ml. Blood present.
Left Lung - Pale.
Pericardium - Heart with weight. Empty,
NAD.
Large vessels.
This witness opined that the cause of death was
hemorrhagic shock due to stab injury. (Injury to the
lung & liver) (Unnatural).
The injuries noted by him are sufficient to cause
death in normal course. Injuries 1 and 2 are themselves
sufficient to cause death in normal course. The weapon
can be long and sharp namely a double-edged weapon. The
injuries noted by him are possible by this instrument.
In the cross-examination, this witness stated that
the injuries 1 to 5 and 7 are possible by double-edged
sharp weapon and therefore, it is so recorded. The
article shown to him can be considered as single-edged
weapon. The other edge is too thin. It is not sharp.
15. Mahejabin Shaikh Mannan (PW 9). This witness
deposed that in 1999, was working in the office of
Babubhai as Estate agent. Babubhai was known as Gous.
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The office timings were 10.00 am to 07.00 pm. This
witness was on duty on 15.02.1999. Then he attended the
duty at 10.30 a.m. His boss was in the office in the
evening. In the evening at about 03.30 pm a phone call
was received from Arshadbhai. The said Arshad came to
his office at 04.30 pm. They had a discussions in the
office and thereafter both of them went out. The said
Babubhai expired on 15.02.1999. His statement was
recorded by police.
In the cross-examination, this witness stated that
he was receiving the phone calls. They left the office
at 05.00 / 05.30 pm. He continued to be in the office.
He cannot say where they went and whether they went
together.
16. Abdulla Abdulsuban Shaikh (PW 10) is the father of
deceased. This witness deposed that on 15.02.1999 at
about 08.45 pm he received a phone call from Rajawadi
Hospital from police that injured by name Mohd. Gous
was admitted and he went to the hospital. He was told
that deceased was assaulted by bottle. Then he went to
the hospital at 09.30 pm. This witness stated that he
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was estate agent. He knew some of his friends. He was
staying at my place and would go to his native place
and come back and stayed at his place. A loan of Rs.
60,000/- was given to the accused for business purpose
but the business went in loss. A further demand of Rs.
20,000/- was made which was not given to him. All this
transpired in December 1997. This witness further
deposed that he was aware that the amount of
Rs. 60,000/- was given by deceased to accused as he
told him not to give Rs. 20,000/- as earlier Rs.
60,000/- was not returned by the accused. The dealings
were in the office or at the residence. His statement
was recorded by the police. The money was taken for
expenses. He was not aware in what business/profession
the accused was involved. This witness came to know
before the death of his son that the accused was
carrying on business of hotel at plot no. 8, Govandi.
The hotel was known as 'Azmi Hotel'.
In the cross-examination, this witness stated that
the business of his son and the office premises was at
Nerul. It takes about 15 to 20 minutes from his place
to Nerul. That business was since about 1995. No one
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else was partner in that business. Then this witness
stated that there was no fight over money between
deceased and Abdul Rehman in January 1999 however,
there were bitter exchange at his place when he
directed deceased not to allow to sit in the office.
The accused used to sit in the office. This witness did
not tell the police about loan of Rs. 60,000/- given to
the accused for business which went into loss. He did
not even tell police about the other loan of Rs.
20,000/- which was not given. This witness accompanied
15 people from his locality to the hospital. PI- Gire
was present at the hospital. He also told this witness
about the incident. Then statement of this witness was
recorded immediately. This witness did not tell about
the financial transactions with the accused to the
police.
17. Bharat Ramchandra Gire (PW 11), is the
investigating officer. This witness stated that on
15.02.1999 he was PI at Shivajinagar Police Station.
The matter was transferred to him on 16.02.1999 by
Sr.P.I. Prior thereto the matter was under
investigation of PSI-Bhosale (PW 7). Then this witness
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told about the steps taken by him in investigation such
as, recording the statement of witnesses, effecting the
arrest of accused, drawing various panchnamas,
collecting CA report and pm notes, etc.
In the cross-examination, this witness stated that
he was aware of the CR right from 15.02.1999. He did
not record the statement of Abdul Rehman. This witness
admitted that they did not seal the hotel premises.
Both the hotels were visited for clue. They were not
able to locate any weapon. The accused was arrested
from outside a masjid at Bhandup-Sonapur. This witness
was with his staff at that time. One person was with
them who was known to the accused. No arrest panchnama
was recorded. This witness stated that he questioned
accused in Marathi and Hindi and accused answered them
in Hindi, after understanding their questions in
Marathi. They were enquiring about Article 4 and 5.
Then accused disclosed only about Article 4 on
24.02.1999 and did not disclose about the clothes. The
panchas enquired from the accused what he has to say.
Then this witness stated that he went to the spot on
16.02.199, and visited thereafter also for four times.
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He did not open that shop on all the four occasions. He
met PW 4 during those visits. There is no difference
between Chaku and Suri. Article 4 can be referred by
both the names. The regzine bag was not taken charge.
He did not feel it necessary to take charge of the bag
as it was not found to be blood stained.
18. The trial court while convicting the accused has
recorded the following findings in paragraph no.45.
"45. Now the question arises as to who
is responsible for the said homicidal death ?
The documents, records, testimony and
arguments that are on record clearly indicate
the presence of the accused and the deceased
in Umar Azmi Hotel at about 5.00/5.30 p.m.
They are seen in the Hotel by P.W.4. The
attack or actual assault is not seen by anyone
and therefore the circumstances which forces
the Court to believe the story of prosecution
are to the effect that they were together,
there was need for refund of deposit for
whatever reasons best known to them and
therefore a demand was made in unison by the
accused and the deceased from P.W. 4 for
refund of the said deposit in relation to the
premises known as Umar Azmi Hotel and
therefore the common interest of both of them
- the accused and the deceased was, refund of
the deposit from P.W. 4. It would therefore
be clear that there was common interest of the
accused and the deceased in getting the refund
of the deposit which may also be inter
connected or inter woven with the factum for
coming together for money and therefore the
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testimony of P.W. 10 comes into picture. It is
on record that a demand for Rs.20,000/- was
made by the accused from P.W. 4 and his son.
All this put together would show clearly
without any doubt that the accused was in need
of funds and as those funds did not
materialise from P.W. 10 or the deceased, the
said premises of Umar Azmi Hotel was sought to
be surrendered and deposit claimed. All this
clearly forms a complete chain of
circumstances leading to one positive
inference that the accused is responsible for
inflicting injuries on the deceased Mohmed
Gous and these injuries led to the death of
the said deceased.
I am therefore more than convinced that the
accused is guilty of the homicidal death of
the deceased.
... ... ...
... ... ..."
(emphasis supplied)
19. According to the prosecution, the incident took
place in the hotel itself. According to PW 4 when he
was called by the accused at about 5.00 p.m. and
demanded the refund of deposit, at that time in
addition to the deceased 4 to 5 persons were there in
the Hotel. Admittedly, there is no direct evidence in
relation to alleged assault.
20. As regards the recovery of weapon, the
Investigating Officer has admitted in his evidence that
the hotel premises was not sealed. After the incident
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they searched both the hotel premises, but were not
able to locate any weapon. PW 8 Balkrishna P. Hankare,
the Medical Officer who conducted postmortem on the
dead body of the deceased has stated that the injuries
were caused by double edged sharp weapon and the knife
which allegedly came to be recovered at the instance of
the accused is single edged weapon. Therefore, no
reliance can be placed on the alleged recovery.
21. As regards the motive, the father of the deceased
PW 10 Abdulla Shaikh has admitted in cross-examination
that he did not disclose to the police about the loan
of Rs.60,000/- given to the accused for business. He
even did not disclose about other loan of Rs.20,000/-
which was demanded by the accused. Therefore, the trial
court ought not to have relied upon the said evidence
of PW 10 as motive to connect the accused with alleged
crime.
22. Considering overall facts and circumstances, the
trial court was not justified in convicting the
appellant/accused for alleged offence. In the result,
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the following order is passed.
O R D E R
A] Criminal Appeal No. 470 of 2000 is allowed.
B] The impugned judgment and order dated
12.06.2000 passed by the Additional Sessions Judge
for Greater Mumbai in Sessions Case No. 713 of 1999
convicting the appellant - original accused Mohammad
Arshad Haji Shabbir Shaikh for the offence
punishable under Section 302 of the IPC is set aside
and he is acquitted of the said offence.
C] His bail bonds shall stand cancelled.
D] The fine, if any, paid by the appellant -
original accused, be refunded to him.
(N. R. BORKAR, J.) (PRASANNA B. VARALE, J.)
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