Bombay High Court
Subhan Usman Shaikh vs The State Of Maharashtra on 11 March, 2022
Bench: S.S. Shinde, N. R. Borkar
Digitally signed
LAXMIKANT by LAXMIKANT
GOPAL
GOPAL CHANDAN
CHANDAN Date: 2022.03.11
11:24:11 +0530 apeal-1286.19-with-IAs.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1286 OF 2019
WITH
INTERIM APPLICATION NO.1507 OF 2021
AND
INTERIM APPLICATION NO.1508 OF 2021
IN
CRIMINAL APPEAL NO.1286 OF 2019
Subhan Usman Shaikh ]
Age - 33, Adult, occ - Rikshaw Driver ]
Indian Inhabitant, Presently in Jail, C-11682 ]
Nashik Road Central Prison, Nashik ]
AND ]
Anandwadi, Kate Manivali, ]..... Appellant/Applicant.
Near Bhavar Kirana Store, Kalyan (E), Thane ](Orig. Accused)
Versus
The State of Maharashtra, ]
Through Sr. Inspector of Police ].... Respondent
Kolsewadi Police Station, Kalyan (East) ] (Orig. Complainant)
Ms. Payoshi Roy I/by Dr. Yug Mohit Chaudhry for the Appellant/Applicant.
Mr. S S Hulke, APP for the Respondent/State.
CORAM : S. S. SHINDE,
N. R. BORKAR, JJ
Reserved on : 01st March 2022
Pronounced on : 11th March 2022
JUDGMENT : (PER S. S. SHINDE, J)
1 The Appellant - Accused No.1 has preferred this appeal against
the judgment and order dated 26/04/2018 passed by the learned Additional
Sessions Judge, Kalyan, thereby convicting the Appellant-original Accused No.1
for the offence punishable under Section 302 of the Indian Penal Code, 1860
(for short 'IPC') in Sessions Case No.161 of 2009 and sentenced to suffer
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imprisonment for life and to pay a fine of Rs.10,000/- and in default to suffer
further imprisonment for two years.
2 The prosecution story in nutshell can be summarized as under-
The Appellant herein, who is original Accused No.1, and other
Accused Nos. 2 to 6 have been charged by the trial court for the offence
punishable under Sections 147, 148, Section 302 r/w Section 149 and in the
alternative under Section 302 r/w 34 of the Indian Penal Code. There is one
trust viz Kadariya Chistiya Madrasa and a Masjid/Mosque of said Trust is at
Anandwadi, Kalyan (East). Due to non-satisfactory work of earlier Trustees,
the Board of Trustees of said Trust was changed and the new members were
introduced as trustees in that Trust. One of the trustees was Iqbal Ayub
Siddiqui. He and his colleagues were handling the state of affairs of the said
trust in proper manner. The Appellant - accused No.1 along with other original
Accused Nos.2 to 6 were the supporters of earlier trustees and some of them
were the trustees in earlier board of the trustees. Due to this change in the
trustees, the Appellant - accused No.1 and other accused Nos.2 to 6 had
grudge in the mind against the new trustees and especially against Iqbal Ayub
Siddiqui - the Managing Trustee of the said Trust.
On 01/03/2009 in between 6 pm and 7 pm a quarrel took place
between Appellant - Accused No.1 and the said Iqbal Siddiqui in front of or
near the Masjid at Anandwadi. It is alleged that the Appellant - Accused No.1
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came from behind of Iqbal Siddiqui and gave axe blow on the head of the said
Iqbal Siddiqui. Iqbal Siddiqui fell down. Even thereafter Appellant - Accused
No.1 gave axe blow on the neck and on the head of Iqbal Siddiqui. At that
time other accused persons were also present there with deadly weapons in
their hands and they were insisting Appellant - Accused No.1 to kill Iqbal
Siddiqui. At the same time they were creating terror amongst the people
gathered there saying them not to intervene, otherwise they would also be
treated like Iqbal. It is further alleged that in the said incident initially Iqbal
Siddiqui sustained grievous injuries. He was taken to Rukhminibai Hospital
and then he was shifted to Shridevi Hospital Kalyan. At about 9.00 pm Iqbal
Siddiqui succumbed to the injuries.
3 It is further the case of the prosecution that, complainant
Mukaddar Daulat Sayyad, who is the resident of the same locality, was fetching
water from water tap in front of the Mosque/Masjid at the relevant time. At
that time he heard loud noise as "Ya Allah", therefore, he turned to see what
had happened. He saw Iqbal Siddiqui was lying near Masjid, in front of the
house of Ismail Shaikh on road. There was injury on the head of Iqbal Siddiqui
and blood was oozing. He went near to Iqbal Siddiqui. At that time, Accused
No.1 Subhan Shaikh again came to Iqbal Siddiqui with an axe in his hand and
gave axe blows on the neck and on the head of Iqbal Siddiqui and thereafter
Accused No.1 ran away. Thereafter complainant Mukkadar Sayyed lodged a
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complaint against the accused persons in Kolsewadi police station on the same
day at about 10.35 pm.
4 On the basis of the complaint lodged by the complainant, crime
was registered. Senior Police Inspector of Kolsewadi Police Station Mr. D D
Gavare carried out the investigation in the said crime. He visited the spot of
incident and prepared spot panchanama. He collected blood accumulated on
the spot of offence as well as simple soil and blood mixed soil. He also
prepared rough sketch of the spot of offence. On 02/03/2009 the accused
persons were arrested. On the same day Appellant - Accused No.1 Subhan
gave his memorandum admitting to produce weapon. The Investigating
Officer recorded memorandum of Accused No.1 and recovered one axe at his
instance. On 03/03/2009 the Investigating Officer recorded the memorandum
of Accused No.1 wherein he has shown his willingness to produce his clothes
worn by him at the time of incident, and accordingly he produced the clothes,
which were seized by the Investigating Officer under a panchanama. During
the course of investigation, the IO recorded the statement of witnesses and also
recorded supplementary statements of the witnesses. The muddemal seized
during the course of investigation was sent to FSL Kalina Mumbai for chemical
analysis. The IO also prepared panchanama of damaged rickshaw in presence
of panch witnesses. After completion of investigation, the IO submitted the
charge-sheet.
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5 The trial Court framed charge under Sections 147, 148, Section
302 r/w Section 149 and in the alternative under Section 302 r/w 34 of the
Indian Penal Code against all accused at Exhibit-47. The charge was read over
and explained to the accused persons in vernacular. The accused pleaded not
guilty and claimed to be tried. Their defence is of total denial. After a full
fledged trial, the trial Court convicted the Appellant - Accused No.1 under
Section 302 of the Indian Penal Code, and acquitted the Accused Nos. 2 to 6 of
the offences punishabe under Sections 147, 148, 302 r/w Section 149 in the
alternative Section 302 r/w Section 34 of the Indian Penal Code. Hence this
Appeal is filed by the Appellant - Accused No.1 Subhan Usman Shaikh against
his conviction.
6 To bring home the guilt of the accused, during the trial the
prosecution has examined in all thirteen witnesses in support of its case. The
Trial Court has recorded statements of accused under Section 313 of the
Criminal procedure Code. No evidence is adduced by the accused persons in
their defence. The learned Additional Sessions Judge, after considering the
entire oral and documentary evidence available on record, came to a
conclusion that the prosecution has succeeded to prove the guilt of accused
No.1 Subhan Shaikh under section 302 of the Indian Penal Code, and the
prosecution evidence does not inspire confidence regarding alleged
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participation of accused Nos.2 to 6 in the crime or the offence, therefore it
cannot be said that the prosecution has succeeded to prove the offence u/sec.
147 or 148 or 302 r/w 149 or sec. 302 r/w sec. 34 of IPC against accused
Nos.2 to 6.
7 We have heard the learned counsel appearing for the Appellant -
Accused No.1 and the learned APP appearing for the Respondent-State. With
their able assistance perused the grounds taken in the Appeal Memo, the entire
notes of evidence, the documents produced on record, and the findings
recorded by the learned Additional Sessions Judge in the impugned judgment.
8 The learned counsel appearing for the Appellant - Accused No.1
submits that the prosecution has miserably failed to establish the guilt of the
Appellant beyond reasonable doubt. She submits that the medical evidence
does not support the prosecution case as according to the Medical Officer the
injuries could not have been caused by axe. It is further submitted that the
medical evidence of PW-12 falsifies the evidence of eye witnesses in so far as
assault by axe is concerned, and therefore, the trial Court ought not to have
convicted the appellant for the alleged offence of murder of Iqbal. There is a
delay in recording the statements of material witnesses and, none of the
witnesses or even the IO is able to give explanation for the said delay. She
submits that so far as PW-7, PW-8 and PW-9 are concerned, they did not
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support the prosecution and therefore they were declared hostile. None of the
prosecution witnesses discloses the name of the Appellant in their statements
recorded under Section 161 of the Cr.PC. There are omissions and
improvements in the testimonies of the prosecution witnesses. It is submitted
that there is 5 hours delay in lodging the FIR, which according to her, is fatal to
the prosecution case. The evidence of eye witnesses is not believable that the
Appellant - Accused No.1 is the author of the injuries to the deceased. It is
submitted that the evidence on record is not enough to convict the Appellant
under Section 302 of the IPC. It is further submitted that the trial Court did
not appreciate the evidence in proper manner. There is absolutely no evidence
to connect the Appellant with the alleged incident as also there is no evidence
sufficient to show the involvement of the Appellant in the alleged offence.
Though as many as 13 witnesses have been examined by the prosecution, none
of them has deposed against the Appellant in respect of the commission of
offence, and therefore, trial court is not justified in convicting the Appellant
under Section 302 of IPC. She further submitted that there was previous
enmity between the accused and the deceased, and therefore, the Appellant-
Accused No.1 is falsely implicated in the crime. The learned counsel appearing
for the Appellant invited our attention to the Post-Mortem Notes, and the
deposition of Medical Officer (PW-12) and submitted that the medical evidence
completely falsifies the ocular evidence. In support of her aforesaid
submissions, the learned counsel appearing for the Appellant placed reliance
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on the following judgments :-
1] Balakrushna Swain v. State of Orissa 1 2] Ganesh Bhavan Patel v. State of
Maharashtra2 3] Raja Sharnappa Zinge v. State of Maharashtra 3 4] Vijaybhai
Patel v. Navnitbai Patel4 5] State of Orissa v. Bhraman Nanda 5 6] Alil Mollah
and anr v. State of WB6 7] Kantilal v. State of Gujarat 7 8] D D Suvarna v. State
of Maharashtra8 9] Abdul Sayeed v. State of MP 9 10] Mahavir Singh v. State of
Madhya Pradesh10 11] Mahadeo Kundalik Vaidya v. State of Maharashtra11 12]
Ganga Prasad v. State of UP 12 13] Balaka Singh and others v. The State of
Punjab13. Therefore, the learned counsel appearing for the Appellant - Accused
No.1 submitted that this Appeal may be allowed.
9 On the other hand, learned APP appearing for Respondent-State
invited our attention to the findings recorded by the trial Court and submitted
that the findings recorded by the trial Court are in consonance with the
evidence brought on record and there is no perversity as such. There are eye
witnesses to the incident who deposed against the Accused. It is submitted that
the axe used in the commission of offence was recovered at the instance of
1 AIR 1971 SC 804
2 AIR 1979 SC 135
3 1996 (2) Crimes 314
4 2004 ALL MR (Cri) 2822 SC
5 1976 SCC (Cri) 596
6 (1996) 5 SCC 369
7 (2002) 10 SCC 39
8 1994(4) Bom. CR 85
9 (2010) 10 SCC 259
10 (2016) 10 SCC 220
11 2001 Cr. L. J. 4308
12 (1987) 2 SCC 232
13 1975 SCC (Cri) 601
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Appellant - Accused No.1 so also his blood stained clothes were recovered at
his instance. All these factors show the involvement of the Appellant-Accused
No.1 in the crime. It is submitted that deceased Iqbal Ayub Siddiqui being the
new Managing Trustee of the said Trust and, the Appellant - accused No.1 and
other accused Nos.2 to 6, being the supports of earlier trustees, had grudge in
the mind against the new trustees and, there is sufficient evidence on record to
show the motive of the Appellant-Accused behind the murder of Iqbal Siddiqui.
The act of Accused in committing the murder in public place at 5.00 pm
created terror in the mind of people and has serious impact upon the society,
and therefore, there is a delay in recording the statement of witnesses and
lodging the complaint. Though PW-7, PW-8 and 9 did not support the case and
declared hostile, there is other corroborative evidence in the form of PW-3, 5, 6
and 11 from which it is proved that the assault is from the sharp side of axe
and the Appellant - Accused No.1 is the author of the injuries to the deceased.
The statement of PW-3 was recorded immediately after the incident. Therefore,
relying upon the documents as also the notes of evidence, learned APP submits
that the appeal may be dismissed.
10 As stated herein above, in order to prove its case, the prosecution
has examined as many as 13 witnesses. Firstly we will deal with the medical
evidence. The prosecution has examined Dr. Pradnya Purshottam Tike as PW-
12, who conducted autopsy on the dead body of Iqbal Siddiqui. She stated that
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on 2/3/2009 she was attached to Rukhminibai Hospital, Kalyan as Medical
Officer. On that day, a dead body of one Iqbal Hasan Ayub Siddiki was brought
to hospital by Kolsewadi police station. She conducted autopsy on the said
dead body, and found following injuries on the dead body.
i stab injury on back right side lumber region 2 cm x 1 cm x 1 inch
deep.
ii 4 linear superficial abrasions on back 12, 7, 8 & 8 cm. Long
iii C.L.W. below right ear 20 cm long 5 cm. Deep and 2.5 cm wide
This injury was already sutured at Shridevi Hospital. 17 stitches
were there. Internal jugular vein and muscle was cut. This injury
was also sutured. Haemotoma was found near the injury.
iv C.L.W. above left ear 12 cm. Long. It was sutured would having
13 stitches.
v Multiple skull fractures, mid-line skull fracture from left frontal to
right parietal region. There was C.L.W. of same dimensions over
this fracture.
vi Left parietal and temporal fracture with C.L.W. and laceration.
vii Irregular superficial abrasion above right eye brow.
During autopsy, the Doctor found the following head injuries :-
i CLW on right parietal region 13 cm. Mid-line skull 1 cm. And left
parietal region 10 cm.
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ii multiple skull fractures
a left frontal to right parietal region
b mid-line skull fractures
c right parietal fracture.
Subdural haemotoma right 10 cm.
According to Dr. Pradnya Tike (PW-12), the cause of death was
neurohaemorrhagic shock due to multiple skull fracture in a case of
polytrauma. She further stated that, all injuries were ante-mortem and caused
by sharp and hard object. According to PW-12, the death was unnatural or
homicidal. She stated that the injuries found on the dead body are possible if
assaulted by axe, like an axe in the muddemal. She further stated that the
injuries mentioned in the column nos. 17 & 19 as mentioned in her P.M. report
are sufficient to cause the death. The post mortem report (Exhibit-172) is
proved through PW-12 .
The Dr. Pradnya (PW-12) was cross examined by the advocate for
Accused No.1. In her cross examination she stated that, rigor mortis was
present on some part of the body, however, she has not specifically mentioned
those parts in the P.M. report. PW-12 stated that rigor mortis starts
immediately after death, it completes within 12 hours, it remains for 12 hours,
thereafter it starts disappearing and disappearance completes within further 12
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hours. She noticed some semi digested food in the stomach of the dead body,
and the death might have been caused within 4 hours of his last meal. Last
food might have been taken by the deceased at around 5 to 5.30 p.m.
According to PW-12 the C.L.W. can be caused by sharp and hard object and
stab injury can be caused by sharp object, however, she stated that stab injury
is not possible by an axe. According to her, irregular abrasions can be caused
due to fall on hard object and even by stone and, C.L.W. can also be possible if
assaulted by rear side of an axe. PW-12 admitted that before starting post-
mortem she had gone through inquest panchanama, and found injuries
mentioned in the inquest panchanama on the dead body. She also admitted
that, if the medical officer found any discrepancies in the injuries mentioned in
the inquest panchanama and appearing on the body, medical officer can insist
for another inquest. According to her, the injuries mentioned in column No.19
are corresponding to injury No.5 & 6 in column No.17 of P.M. report. Width
and depth of injury no.5 & 6 in column no.17 is not mentioned. The injury
no.5 & 6 in column no.17 is caused by hard and heavy object.
It appears that the investigating officer (PW-13) stated in his
evidence that he had shown the seized axe to the medical officer and sought
her opinion, whether the injuries on the person of deceased are possible by the
axe shown to him, however, the Medical Officer did not reply his query.
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11 The prosecution examined Shri Mukaddar Daulat Sayed as PW-3,
who is an eye witness. He deposed that at the relevant time he was serving in
Maruti Paints at Vithalwadi and his office hours were from 10 am to 10 pm.
There is a Mosque near his house. One Iqbal Ayub Siddiqui was managing the
said Mosque. He knows the said Iqbal Siddiqui as he was working in the said
Mosque and was the trustee of the said Mosque. The name of Mosque was
Kadariya Chistiya Madrasa. Iqbal Siddqui (herein after referred to as the
deceased) was managing the day-today affairs of the Mosque. He was utilizing
the money collected or received to the Mosque.
He further deposed that the alleged incident took place on
01/03/2019 in between 6 pm to 7 pm. He was fetching water infront of the
said Mosque and he heard noise as "Ya Allah". Then he saw behind him. The
Accused No.1 Subhan Shaikh was assaulting by an axe to Iqbal Siddiqui.
Accused No.1 Subhan Shaikh was slitting Iqbal Siddiqui like wood slitting.
Iqbal Siddiqui was lying on the road. Accused No.4 Abbas Shaikh was armed
with gupti and he was assaulting with gupti to Iqbal Siddiqui. Accused No.2
Ismail Shaikh was assaulting the deceased with sword. The accused No.3 Firoz
Shaikh was assaulting the deceased with chopper having zigzag shape.
Accused No.5 Jamir Shaikh and Accused No.6 Yusuf Shaikh were threatening
by saying that if somebody comes in between, they would be cut. Due to fear,
this witness (PW-3) then went to his home.
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PW-3 further deposed that the injured Iqbal Siddiqui was then
taken to the hospital in auto rickshaw by someone. On the very same day, PW-
3 narrated the incident to the police. The said contents which were narrated
by him were recorded by the police and the same were treated as FIR (Exhibit
124). He further deposed that he does not recollect whether his supplementary
statement was recorded thereafter by the police or not. Iqbal Siddiqui is no
more and he died. PW-3 knows all the accused who assaulted the injured Iqbal
Siddiqui as they are residing in Anandwadi.
He further deposed that even on the date of recording of his
evidence before the Court, he was in fear of assault by the accused persons.
However, he stated that after the incident till the date of recording of his
evidence, no incident had occurred. He stated that he is illiterate. He had
seen those weapons at the time of incident. He identified the Accused Nos.1,
3, 4 and 6 who were present before the Court. The accused No.2 was absent
and Accused No.5 has claimed exemption on account of his illness. PW-3
identified the axe (Article A) which was used by accused No.1 Subhan Shaikh
in the commission of offence.
In his cross examination by the learned advocate for Accused No.1,
he stated that nobody was ready to lodge FIR in respect of the incident. He
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accepted the suggestion of the defence that police had come to his residence
and took him to the police station. He denied the suggestion of defence that
Arshad was present when he had gone to lodge the FIR. However, in the 2 nd
breath he stated that Arshad was present in police station who was saying to
the police that they should not record his (PW-3) FIR as he (PW-3) is telling lie.
PW-3 further stated that police did not make any enquiry with him about the
incident prior to lodging the FIR. He admitted that he did say in the FIR that,
the incident occurred in between 6.30 pm to 7 pm. He did not recollect about
the injured Iqbal was taken to Rukminibai Hospital in auto rickshaw, and then
to Shridevi Hospital. After the death of Iqbal Siddiqui, he lodged the FIR. He
did state to the concerned police officer that the incident occurred in between
6.00 pm to 7 pm. However, he cannot assign reason as to why police did not
mention the said fact in the FIR. He admitted the suggestion of the defence
that he never stated in the FIR that the injured Iqbal Siddiqui was assaulted by
more than one assailant. He did state in the FIR that injured was assaulted by
gupti, sword and chopper also. However, he cannot assign the reason as to why
the police did not mention the said fact in the FIR.
It appears that the contents of the FIR were read over to him and
he stated that portion marked "A" in the FIR is incorrect. He stated that it is
true that the blood was oozing from the head of injured when he was lying on
the ground. He further stated that it is not true that when he had heard "Ya
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Allah", at that time the injured Siddiqui was lying on the road and blood was
oozing from his head, therefore, he went there and then accused No.1 Subhan
arrived there with an axe. When portion marked "B" was read over to him, he
stated that the said portion is false and he cannot assign the reason as to why
the police did not mention the said fact in the FIR. He denied the suggestion
that accused No.1 Subhan dealt blow of an axe on the neck and head of the
injured Iqbal Siddiqui. He was read over the portion marked "C" from the FIR
and he stated that the same was incorrect and he cannot assign the reason as
to why the police did not mention the said fact in the FIR. He stated that it is
not true that the deceased Iqbal Siddiqui was initially attacked with an axe. He
had witnessed while assaulting the deceased by an axe. Prior to that he did
not see any axe. An axe blow was dealt from the side of its sharpness. PW-3
had seen two blows of an axe dealt on the deceased. Both the axe blows were
given on the head of the deceased. The incident was over within 10 to 15
minutes. Thereafter PW-13 returned to his home, and he was at his home till
he was called by the police. Except police he did not disclose anything about
the incident to anyone.
PW-3 deposed that the deceased Iqbal Siddiqui was lying at a
distance of 10-15 paces from the water tap from which PW-3 was fetching
water. Madrasa was at a distance of 10-20 paces from the place where
deceased Iqbal Siddiqui was lying. He further deposed that on the day of
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incident itself the police had taken him to the police station. He was in the
police station for about 30 to 45 minutes. He denied the suggestion that
accused No.1 Subhan never assaulted Iqbal Siddiqui by an axe. He also denied
the suggestion that police made him to give complaint forcibly in this case.
PW-3 was also cross examined by the defence counsel for the
Accused Nos.2, 4, 5 & 6. He accepted the suggestion that after the incident he
did not go to police station but the police had come to his house, and then he
was taken to the police station by them. Whatever he had seen about the
incident was disclosed to the police and after recording his version, FIR was
registered. The FIR was registered on 01/03/2009 and thereafter police did
not enquire with him again about the said incident nor his statement was
recorded. He stated that while narrating the incident, he stated that accused
No.2 Ismail and accused No.3 Firoz had assaulted the deceased with sword and
chopper respectively and accused Nos. 5 & 6 had also assaulted the deceased.
Further he cannot assign any reason as to why these facts are not mentioned in
the FIR by the police. He also stated before police that accused No.5 Jamir
and accused No.6 Yusuf had threatened him by saying "Beech me ayenge to
kaat dalenge". Further he cannot assign any reason as to why these facts are
not mentioned in the FIR by the police. PW-3 denied the suggestion that he
named the accused Nos. 2 to 6 under the influence of other persons.
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It appears that PW-3 was cross examined by the advocate for
accused No.3. He accepted that Anandwadi Police Chowki is at a distance of
two minutes walk from the spot of the incident on the southern side. He also
accepted that on the western side of Anandwadi Police Chowki, there was
Kolsewadi Police Station at a distance of three minutes walk. He deposed that
he had stated before the police that accused No.3 Firoz had assaulted deceased
Iqbal Siddiqui by chopper having shape of saw. However, he cannot assign
any reason as to why the police did not mention the said fact in the FIR. He
denied the suggestion that accused No.3 Firoz never assaulted by chopper on
the deceased.
We have elaborately discussed the evidence of PW-3 in the
foregoing paragraphs. PW-3 stated that he himself did not go to police station
to lodge the FIR but the police had come to his residence and then he went to
police station and narrated about the incident, and accordingly the police
registered the FIR. He admitted that while recording the FIR, Arshad was
present in the police station. He also admitted that the contents of the FIR
were read over to him and he has signed the said FIR. In his deposition PW-3
stated about the involvement of accused No.1 and also the other accused Nos.2
to 6. However, the Investigating Officer (PW-13) deposed that, the allegations
in the FIR only mention the role of Accused No.1 and the injuries sustained by
the injured, and nothing is mentioned about Accused Nos.2 to 6.
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It is argued by the learned counsel appearing for the Appellant
that if the contents of the FIR are carefully perused, and if the evidence of PW-
13 i.e. the Investigating officer is carefully perused, it is abundantly clear that
PW-3 stated in the FIR about the presence of accused No.1 and the manner in
which the accused No.1 assaulted the deceased Iqbal Siddiqui. However, PW-3
did not utter a single word about the accused Nos.2 to 6 in the FIR as it is
evident from the evidence of PW-13 - IO.
It appears that PW-3 stated that Accused No.1 Subhan Shaikh was
assaulting deceased with sharp side of an axe, and was slitting Iqbal Siddiqui
as if one was slitting the wood. However, the autopsy surgeon ( PW-12) stated
that the fatal blow injury suffered by the deceased was a stab injury which
could not have been caused by the axe. The autopsy surgeon (PW-12) further
stated that the other contusion lacerated wounds (CLWs) suffered by the
deceased could not have been caused by sharp side of axe but only by blunt
side and, could be possible if assaulted by rear side of an axe. It is therefore
evident that the injuries suffered by the deceased were not caused by the sharp
side of an axe. Therefore the medical evidence on record completely falsifies
the evidence of PW-3.
12 At this juncture, it would apt to refer to the evidence of PW-13 -
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Dnyandeo Dhondiram Gavare, who was the Investigating officer in Crime
No.46 of 2009 registered against the Appellant and other co-accused Nos. 2 to
6. In his evidence before Court, PW-13 stated that on 01/03/2009 he was
attached to Kolsewadi Police Station as Incharge Officer, and then he registered
the aforesaid FIR upon narrating the details about the incident by PW-3. He
stated that he read over the contents of the said FIR to PW-3, and thereafter he
begun the investigation and arrested the accused and carried out further
investigation. He also stated about the incriminating articles recovered at the
instance of accused No.1.
During his cross examination, PW-13 stated that he cannot state
whether first information regarding the incident was given by wife of deceased
Iqbal. However, there is station diary entry to that effect. The extract of the
said station diary entry was produced in the charge-sheet at Exhibit 183. It
appears that at about 8.30 pm on 01/03/2009 PW-13 came to know that Iqbal
Siddiqui is injured and admitted in the hospital, and accordingly he deputed
PSI Tadvi to the hospital.
It appears that before PW-3 was taken to the police station, PW-13
received information from the wife of Iqbal Siddiqui that Iqbal Siddiqui was
injured in the said incident. As already mentioned herein above, Arshad was
present during recording the FIR. It has come on record that Arshad who, was
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present in the police station while recording the FIR, was telling to the
concerned police officer not to register the FIR as PW-3 is telling lies and not
stating about the manner in which the incident had happened. At the later
stage while discussing the evidence of said witness, we will make the reference
to the relevance of interruption by the said Arshad while recording the FIR at
the instance of PW-3.
PW-13 further stated in his evidence that he had shown the seized
axe to the medical officer and sought her opinion, whether the injuries on the
person of deceased are possible by the axe shown to him. He stated that it is
true that initial allegation was of assault by axe only.
So it is clear from the evidence of PW-13 that initial allegation was
assault by axe only. The said initial allegation would relate to the contents of
the FIR which was recorded/registered upon the narration of the incident
given by PW-3. PW-13 admits that even though the first information about the
offence was given by the wife of the deceased, the same was not registered as
the FIR.
Coming back to the evidence of PW-3 and in particular to his cross
examination wherein he has admitted that, "he never stated in the FIR that the
injured Iqbal Siddiqui was assaulted by more than one assailant". As already
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observed, the said FIR has been signed by PW-3, and even the contents of the
FIR, which were read over by PW-13 to PW-3, would make it clear that all the
allegations in the FIR are confined to the role of accused No.1 and not to any
other accused. It appears that for the first time before the court PW-3 stated
that deceased Iqbal Siddiqui was assaulted with Gupti, Sword and Chopper by
other accused. When the Investigating Officer (PW-13) stated in his deposition
that the contents of the FIR were read over to PW-3 and thereafter only PW-3
has signed the same, and those allegations as stated by PW-3 in his deposition
were confined to the role of accused No.1 and assault of two blows given by
him on the head of the deceased, then the question of accepting the evidence
which was given first time before the Court thereby attributing the overacts to
other accused would not arise.
Keeping in view the aforesaid discussion, whether to believe the
PW-3 or not, and in our opinion, the PW-3, who has exaggerated and assigned
role to accused Nos.2 to 6 for the first time before the Court, cannot be
considered as trustworthy witness and consequently no implicit reliance can be
placed on his testimony. He (PW-3) did not voluntarily come forward to give
FIR but it was after the police had come to his residence and he was taken to
the police station and, then he had narrated the incident to the police which
was recorded/registered as FIR, though Arshad - the brother of deceased, who
was present at that time in the police station, objected for registering the FIR at
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the instance of PW-3, saying that PW-3 is telling lies and not telling the names
of all the culprits. It is important to note that PW-3 and also other prosecution
witnesses deposed before the Trial Court that Accused Nos. 2 to 6 were
involved in the alleged offence of murder of Iqbal Siddiqui, nevertheless the
Trial Court has acquitted the Accused Nos. 2 to 6. We, therefore, find
considerable force in the submission of the learned counsel appearing for the
Appellant that, it is highly probable that statement of PW-3 naming the accused
No.1 was an afterthought only with a view to implicate the accused. In these
circumstances, PW-3 is not a trustworthy witness and no reliance can be placed
on his testimony.
13 The next witness examined by the prosecution is PW-5 Sharif Arif
Shaikh. He deposed that deceased Iqubal Siddiqui was his uncle. On
1/3/2009, it was holiday i.e. Sunday. He was at his home. At 5.30 p.m. he
had gone to offer Namaj in Mosque. Deceased Iqubalbhai was coming towards
Masjid. The accused No.1 Subhan dealt blow of an axe from his (deceased)
backside. Accused No.1 Subhan dealt blows more than four times on his head.
One Abbas Shaikh (accused No.4) was also present there who was armed with
sword. Accused No.3 Firoz Shaikh was also present there who was armed with
sword. The accused No.2 Ismail Shaikh who was present there was armed
with a weapon like chopper having saw on its sharp side.
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PW-5 further deposed that the accused No.1 Subhan rushed
towards him and threatened by saying that, "if he comes in the way, he would
be done like Iqbal Siddiqui. One auto rickshaw was parked on which the
accused No.1 Subhan hit by an axe and damaged the said auto rickshaw. The
accused No.1 was shouting that nobody should come in his way or else he will
do the same thing. After some time father of PW-5 arrived there who then
removed the injured Iqubal in an auto rickshaw and went away. The injured
was initially removed to Rukminibai Hospital and then PW-5 came to know
that the injured has been shifted to Shridevi Hospital. Then injured died in
between 9.20 to .9.30 p.m. PW-5 identified the accused No.3 Firoz and
accused No.4 Abbas present before the Court, and also identified accused No.5
Jamir and accused No.6 Yusuf who were before the Court. PW-5 knows the
accused No.1 Subhan.
PW-5 has been cross examined by the advocate for the Accused
No.1. He stated that the incident occurred on 1/3/2009 in which his uncle was
killed. The incident occurred in between 5 p.m. to 6 p.m. He had no occasion
to go to Rukminibai Hospital after some time when the injured was removed to
the said hospital. He admitted that his statement was recorded after two
months after the incident by the police. He stated that he was read over the
portion marked 'A' in his statement recorded by the police under Section 161 of
the Cr.PC. showing that after some time he had gone to see his uncle in
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Rukminibai Hospital is false. He stated that he did not go to Rukmini Hospital
but went to Shridevi Hospital, after the injured Iqbal was shifted to that
hospital. It appears that the portion marked 'B" in his statement recorded by
police under Section 161 of the Cr.PC. was read over to him. He stated that
the portion marked "B" is incorrect. He further deposed that the police were
present in Shridevi Hospital, and he did state to the police that he had seen the
actual incident in Shridevi Hospital. Police did not ask him (PW-5) to lodge
the FIR. PW-5 did state to his family members that he had witnessed the actual
incident. He further deposed that he had gone to the police station on his own
after two days of the incident and it might be on 5 th or 6th March, 2009. Police
did not record his statement on that day.
PW-5 further deposed that on 24/5/2009, he had gone to the
police station as police had come to him. At 5.30 p.m. on the day of incident
the offering of Namaj was to begin. He denied the suggestion that at 5.30 p.m.
his Namaj was over in which he himself and his uncle offered the Namaj. It
appears that the portion marked 'C' in his statement recorded by the police
under section 161 of the Cr.PC was read over to him. He stated that said
portion is incorrect. He further deposed that the first attempt on his uncle took
place when he was at a distance of 50-60 ft. His uncle did not run away. After
hitting with an axe he (uncle) fell down by uttering as "Allah" and took a circle
around him. His uncle fell down facing to the earth. There were many people
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near the injured when he was attacked. The incident lasted for 5 to 7
minutes. None of his uncle was present near the deceased uncle.
PW-5 further stated about how many family members are there in
the family of Iqbal Siddiqui. PW-5 denied the suggestion that PW. 3 Mukaddar
Sayyad was not present on the spot of incident. He stated that he did not see
Shahid chacha alongwith PW 3 Mukaddar Sayyad and his father who removed
the injured to the hospital in auto rickshaw. However, he admitted that he had
seen his father and PW 3 Mukaddar Sayyad who removed the injured in an
auto rickshaw to the hospital. He also admitted that police had come on the
spot after the incident on the very same day. It appears that a suggestion was
given to him, whether on the very same day in the morning time the father of
accused No.1 Subhan was attacked. He admitted that he himself and one
Ajmatulla Rahematulla Khan were made an accused for the said incident. He
further admitted that there was dispute in between him and his uncle's family
with the accused No.1 and his family regarding the trust of Kadriya Chistiya
Madrasa Trust.
He stated that in his police statement, he mentioned that accused
No.1 Subhan had come towards him with an axe and threatened that if
somebody comes in his way he would do the same thing. However, PW-5
cannot assign any reason as to why the said fact has not been mentioned in his
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police statement. He denied the suggestion that the accused No.1 Subhan had
not come to him with an axe. PW-5 also denied the suggestion that the
accused No.1 Subhan did not damage the auto rickshaw by an axe.
PW-5 was also cross examined by the learned advocate for
Accused Nos.2, 4, 5 and 6. He denied the suggestion that accused No.2 Ismail
and accused No.4 Abbas were not present at the time of incident. He also
denied the suggestion that accused No.4 was not armed with sword and
accused No.2 was not armed with chopper, and accused No.5 Jamir and
accused No.6 Yusuf were not present at the time of incident.
PW-5 was further cross examined by the learned advocate for
Accused No.3. He stated that he did not know accused No.3 Firoz was the
member of the trust prior to the incident. He stated that Kolsewadi Police
Station was at a distance of 10 minutes walk from the spot of incident. He
admitted that on 24/5/2009 his statement was recorded by the police. A
suggestion was given to PW-5 that whether there was dispute in between
deceased Iqubal and accused No.3 Firoz on account of the trust management,
prior to the incident. He denied the suggestion that the first blow of weapon
was given on the neck of the injured Iqubal by accused No.1 Subhan. He
admitted that he stated in his police statement that accused No.1 Subhan dealt
blow of an axe on the neck of the Iqubal.
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14 We have carefully perused the evidence of this witness (PW-5).
When he was present in Shridevi Hospital where police were present, he told
to the police that he had seen the actual incident, however, the police neither
registered the FIR nor asked him (PW-5) to register the FIR. Even this witness
had told to his family members that he had witnessed the actual incident. It
appears that, if PW-5 had ample opportunity to disclose the incident to the
police when he met the police in the hospital immediately after the incident,
and when he had gone to the police station 3-4 times after the offence, he did
not disclose about having witnessed the incident but named Accused No.1 for
the first time after two months when his statement was recorded by the police
on 24/05/2009. Therefore, statement of PW-5 recorded by the police belatedly
after a period of two months would certainly create doubts in the mind that
the said statement is after-thought and to suit the prosecution story for the
purpose of implicating the Accused. It is important to note that when PW-5 in
his evidence stated that Accused No.1 assaulted the deceased with an axe,
however, the autopsy surgeon (PW-12) deposed before the Court that the fatal
blow injury suffered by the deceased was a stab injury which could not have
been caused by the axe, and other CLWs suffered by the deceased could not
have been caused by the sharp side of an axe but only by the blunt side. It
appears that the evidence of PW-5 is falsified by the medical evidence on
record. PW-3 in his deposition stated that two blows of axe were given on the
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head of deceased, however, this witness (PW-5) stated in his deposition that
four blows of axe were given on head and neck of the deceased. So there is a
significant variance in the version of PW-3 and PW-5 in respect of how many
blows were given and on which part of the body of deceased the said blows
were given.
At this juncture it would be apt to refer to the evidence of PW-13
Investigating Officer who stated that he recorded the statement of Sharif Arif
Shaikh (Pw-5). Portion marked by letter 'A' in his statement was read over to
PW-13. He stated that Portion marked "A" is correct and recorded as per his
say. Similarly the portion marked by letter 'B' is read over to PW-13. He stated
that portion marked "B" is correct and recorded as per his say. The portion
marked by letter 'C' is read over to PW-13. He stated that portion marked "C"
is correct and recorded as per his say. PW-13 in his deposition further stated
that for the first time he recorded the statement of Sharif Arif Shaikh on
25/5/2009, and Witness Sharif has not stated to him (PW-13) that, accused
No.1 rushed to him with an axe saying that he will do same thing if anybody
comes in his way. It is abundantly clear that, portions marked A, B, and C in
the statement of PW-5 Sharif Shaikh recorded under Section 161 of the Cr. PC.
by the Investigating Officer (PW-13) are as narrated by PW-5. It is brought on
record through the testimony of Investigating Officer (PW-13) that, the
statement of PW-5 Sharif was recorded on 25/05/2009 and that, PW-5 did not
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state to him that the Accused No.1 rushed to him with an axe saying that he
will do same thing if anybody comes in his way. Therefore, admittedly, the
statement of PW-5 Sharif was recorded on 25/05/2009 and the portions
marked "A., B, C" from his statement were stated by him (PW-5) and further he
did not state before the IO that accused rushed to him with an axe saying that
he will do same thing if anybody comes in his way. Importantly, the
prosecution has not explained the delay of 55 days in recording the statement
of PW-5 Sharif. In view of inordinate delay in recording the statement of PW-5
and that, at the earliest opportunity if he was ready to give statement and even
ready to register the FIR when he was in Shridevi Hospital where injured was
admitted, the police did not give response to him for recording his statement.
Therefore, the evidence of this witness (PW-5) cannot be considered as reliable
and trustworthy. It is also important to note that all the accused have been
acquitted of the offence punishable under Section 149 of the Indian Penal
Code.
15 The next witness examined by the prosecution is PW-11 Arif Ayyub
Shaikh. He stated that he knows all the accused. Deceased Iqbal was his
brother. On 01/03/2009 when he was sitting on scooter outside his house, he
heard commotion from some distance. He went there and saw accused No.1
assaulting Iqbal by axe. In the mob there was Noor Alam. He was instigating
accused No.1 to kill Iqbal. Other accused persons were present in the mob.
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Accused Abbas was having a big knife in his hand. Accused Ajeem was holding
a pipe. Iqbal was lying on ground. PW-11 asked his younger brother to bring
rickshaw. They put Iqbal in rickshaw and took him to Rukminibai Hospital
Kalyan. The doctor advised them to take Iqbal to Bombay. As Iqbal was
seriously injured, he was admitted in Shridevi Hospital, Kalyan where Iqbal
took his last breath. PW-11 identified the accused Nos. 2 to 6 present in the
Court.
In his cross examination, PW-11 stated that, he came to know that
on the same, there was beating to father of accused No.1 and his (PW-11) son
is accused in that case. He further stated that, he saw accused No.1 giving axe
blows on the head of Iqbal. He gave blow of axe by its sharp edged side. Some
treatment was given to Iqbal in Rukminibai Hospital. Police did not go to
Rukminibai Hospital. Till 7.45 pm they were in Rukminibai Hospital. By
ambulance they went to Shridevi Hospital. PW-11 stated that he did not feel to
go to police station. He told the incident to police on 25 th March 2009. He does
not know whether police had been to their area during that night. The Police
had been to his house for recording his statement. He does not remember,
whether his second statement was recorded on 27 th June 2009. He had not
stated to police during second statement that accused persons were holding
sword chopper, gupti
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PW-11 was further cross examined by the learned advocate for the
Accused Nos.2, 4, 5 and 6. He denied the suggestion that Accused Nos.2, 4, 5
and 6 were not present on the spot of offence. He also denied suggestion that
accused Nos. 2, 4, 5 and 6 were not holding any weapon in their hands.
It appears that as per the evidence of PW-11, the Accused No.1
assaulted the deceased Iqbal with sharp edged side of an axe. However,
autopsy surgeon (PW-12) stated that the fatal blow injury suffered by the
deceased was a stab injury which could not have been caused by the axe, and
other CLWs suffered by the deceased could not have been caused by the sharp
side of an axe but only by the blunt side. Therefore it is evident that the
injuries suffered by the deceased were not caused by the sharp side of an axe.
It is important to note that the statement of PW-11 was recorded 25 days after
the offence, and therefore, such a belated disclosure casts a cloud of suspicion
over the evidence of PW-11, who was the brother of the deceased having every
reason to disclose the said incident to the police immediately, even though he
met the police in the hospital. One more important aspect is that, in his
deposition, PW-11 admits that his son was arraigned as an accused in the
offence of assaulting the father of accused No.1. This fact proves that PW-11
was an inimical witness and his testimony cannot be relied on without any
corroboration. Therefore, PW-11 is also not a trustworthy and reliable witness.
It is also important to note that Accused Nos.2 to 6 have been acquitted by the
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trial Court, though section 149 of the Indian Penal Code was invoked by the
prosecution. One more aspect which falsifies the testimony of PW-11 is that
when PW-11 in his evidence stated that Noor Alam was instigating accused
No.1 to kill Iqbal and accused Abbas was having a big knife in his hand and
accused Ajeem was holding a pipe, the other prosecution witnesses i.e. PW-3 or
PW-5 did not depose about the said fact in their evidence.
At this juncture, it would be apt to refer to the testimony of
investigating officer, who has stated that, he recorded the statement of PW-11
first on 25/03/2009 and second on 27/06/2009. PW-11 in his supplementary
statement stated to IO (PW-13) about the weapons used by the accused
persons such as gupti, chopper and sword. PW-13 stated in his cross that
witness (PW-11) is the real brother of the deceased. It appears that PW-11 in
his evidence stated about holding of big knife by accused Abbas and holding of
pipe by accused Ajeem, however, in his supplementary statement recorded by
IO (PW-13) he stated about the weapons used by the accused persons such as
gupti, chopper and sword. Therefore there is complete variance in the version
of the PW-11 when he made supplementary statement and before the Court
about which types of weapons were used by the accused persons while
committing offence. Therefore the evidence of PW-11 is not trustworthy.
16 The prosecution has also examined Shri Ajmatulla Rahematulla
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Khan as PW-6. He stated that, at Anandwadi there is Kadriya Chistiya Madrasa
Trust, and in the said new trust the deceased Iqbal was also one of the trustees.
He further stated that the old trustees were having inimical terms with the
deceased Iqbal Siddiqui. He was managing the affairs of the said trust
properly. The accused No.1 Subhan, accused No.2 Ismail, accused No.4 Abbas
were the persons who used to abuse Iqubal.
He further stated that, on 24/1/2009, he came late from his job.
At 10 p.m. the accused No.5 Jamir was extorting money from the hawkers.
Therefore, he went there to give proper understanding to accused No.5,
however, accused No.5 slapped PW-6. Then PW.6 lodged the complaint against
accused No.5. On the next day when PW-6 had gone to offer Namaj and
thereafter came out of the Mosque, at that time accused were abusing him.
PW-6 further deposed that the incident took place on 01/03/2009, in between
5.30 p.m. to 7 p.m. At that time he was at his home. He heard the shouts of
the people. Therefore, he rushed to the spot. He came to know that accused
Nos. 1, 2 & 4 attacking Iqbal. He saw blood and weapons lying on the spot.
When PW-6 reached near Marwadi shop, at that time he noticed that accused
No.1 Subhan was assaulting deceased Iqbal with an axe and other accused
were standing armed with weapons. Then Iqbal fell down. Blood was lying on
the spot. The injured was removed in the hospital, therefore, PW-6 returned to
his home. Then PW-6 has stated further details that he spoke to Arif Shaikh.
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Arif Shaikh then informed him that they are in Shridevi Hospital. PW-6 stated
that while returning his home, the accused No.1 Subhan had come near the
entrance of his residence who was armed with sword and damaged the
rickshaw with sword. He threatened PW-6. He then went to the hospital on his
two wheeler where he noticed that the condition of the Iqbal was critical. After
9.30 p.m. he came to know that Iqubal died.
In his cross examination PW-6 admitted that, no case of
misappropriation against the accused persons, when working as trustee, was
lodged. He also admitted that, deceased Iqubal was the trustee of the said trust
from 6-7 years prior to his death. He stated that his statement was recorded by
police on 09/05/2009 and his supplementary statement was recorded on
27/6/2009. In his both the statements under Section 161 of IPC before Police,
he stated that he had witnessed the actual incident of assault by the accused
No.1 Subhan with an axe on Iqbal. However, he cannot assign any reason as to
why the police did not mention the said fact in his both the statements though
he had stated so. He further stated that police explained him the contents of
his statement in Hindi though recorded in Marathi. He admitted that he had
demanded and collected the copies of his statements from the police. He had
made complaint to Deputy Commissioner of Police (for short DCP) about non
recording of his statement properly. PW-6 admitted that the name of accused
No.3 Firoz is not mentioned in his statement dated 09/05/2009.
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It appears PW-6 noticed that, accused No.1 Subhan was assaulting
deceased Iqbal with an axe and other accused were standing armed with
weapons. However, he did not speak about how an assault was taken place
though, according to him, he had actually seen the incident. The Medical
Officer (PW-12) stated that the fatal blow injury suffered by the deceased was
a stab injury which could not have been caused by the axe, and other CLWs
suffered by the deceased could not have been caused by the sharp side of an
axe but only by the blunt side. Therefore, it is evident from the evidence of
Medical Officer that the injuries suffered by the deceased were not caused by
the sharp side of an axe. It is important to note that the statement of PW-6 was
recorded by the police on 09/05/2009 i.e. after a period of two months of the
incident and, after 7 years PW-6 named the accused No.1 for the first time in
the court while recording his evidence. This also creates doubt about the
truthfulness of the evidence of PW-6. Therefore, testimony of PW-6 is not
reliable as the same appears to be concocted and after thought.
At this juncture it would be apt to refer to the testimony of
investigating officer (PW-13), who has stated that he has recorded the
statement of PW-6 on 09/05/2009 and 27/06/2009. PW-13 further stated
that, PW-6 never stated before him that PW-6 is the eye witness of the incident.
Now coming to the testimony of PW-6 wherein he deposed that his statement
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and supplementary statement were recorded on 09/05/2009 and 27/06/2009
respectively, and he did state in his both statements that he had witnessed the
actual incident of assault by the accused No.1 Subhan with an axe on Iqbal.
However, he cannot assign any reason as to why the police did not mention the
said fact in his statements. PW-13 in his cross examination stated that witness
Ajmattula Rehmattulla (PW-6) has not stated anything to him about the
accused persons except accused No.5, and has not uttered anything about
accused Nos.2 to 3. In view of these material contradictions and omissions, it
would be difficult to believe the testimony of this witness (PW-6).
17 The prosecution has examined Shamir Kamal Shaikh as PW-7.
However, the evidence of the said witness was not believed by the Trial Court.
It appears that PW-7 stated in his deposition that on 01-03-2009 at 5.00 pm he
had gone to offer Namaj in the said Madarasa by his own auto rickshaw and
when he came out the madarasa after offering Namaj, Iqbal Siddiqui also came
out from the Madarasa and told PW-7 that, he (Iqbal) want to attend the
marriage and could go in his rickshaw. Iqbal Siddiqui told PW-7 that, he would
go to his home and would come back and Iqbal went to his house. He
admitted that his first statement was recorded on 03/03/2009. However, he
had given an application to the superior police officer that his statement was
not properly recorded on 03/03/2009. In so far as this witness (PW-7) is
concerned, the investigating officer (PW-13) in his deposition stated that, he
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(PW-13) recorded the statement of Shamir Kamal Shaikh (PW-7) on
03/03/2009, however, he (PW-7) filed complaint that PW-13 recorded his false
statement. PW-7 was declared hostile. Perhaps this witness (PW-7) has stated
altogether different story than other witnesses, and therefore, the Trial Court
has disbelieved his evidence.
18 The prosecution has also examined Gulam Gaus Abdul Gani
Shaikh as PW-8. In his evidence he stated that on 03/03/2009 he parked his
tempo near Nitin Raj Hotel in between 5.30 pm to 6.00 pm. Then he went to
mosque of Kadriya Chistiya Madrasa, Anandwadi. Accused No.1 Subhan
Shaikh assaulted Iqbal Siddiqui at that time. He went near Iqbal Siddiqui. The
Accused No.1 Subhan Shaikh ran away. PW-8 stated that Accused No.1
Subhan Shaikh had assaulted Iqbal Siddiqui with an axe and then ran away. He
lifted Iqbal Siddiqui. His statement was recorded by police on 03/03/2009. He
stated that he saw only accused No.1 Subhan Shaikh at the time of incident.
It appears that, PW-8 was declared hostile and leading questions
were put by the learned APP to him. He stated that he had not given his
statement to the police on 14/05/2009. He also denied the suggestion given by
learned APP that his statement was recorded by police on that day.
It appears from the perusal of testimony of investigating officer
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(PW-13) that, he recorded the statement of witness Gulam Gaus Abdul Gani
twice. PW-13 further stated, it did not happen that immediately after the
incident Gaus had come to him and had narrated the incident to him.
19 The next witness is Sushila Rajaram Pawar (PW-9). She stated that
on 01/03/2009 at 6.30 pm to 7.00 pm she was sleeping in her home as she
was ailing. She further stated that it did not happen that in front of the room of
Vaishali Dhotre one Iqbal Siddiqui had fallen down and accused No.1 Subhan
Shaikh was assaulting him with an axe.
It appears that PW-9 was declared hostile and leading questions
were put to PW-9 by the learned APP appearing for the State. She stated that,
she does not know whether the injured is expired or not. When the portion
marked "A" in her statement was read over to her, she stated it is incorrect. She
further stated that her supplementary statement was not recorded by the
police. It appears that the Trial Court disbelieved the evidence of this witness
(PW-9).
However, the investigating officer (PW-13) in his cross
examination denied the suggestion that witness Sushila had not stated portion
marked by letter "A" before him.
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20 If evidence of all these prosecution witnesses is considered in its
entirety, it suffers from omissions, improvements and exaggeration, and makes
it impossible to place reliance upon such shaky evidence to uphold the
conviction of Appellant-Accused No.1 Subhan Shaikh who is in jail form last 13
years. All prosecution witnesses have stated that accused No.1 Subhan Shaikh
assaulted the deceased Iqbal Siddiqui by sharp edged side of axe on the head
of deceased Iqbal. However, there is variance in the evidence of the PW-3 and
PW-5 inasmuch as PW-3 stated that, two blows were given on the head of Iqbal
Siddiqui from the back side by sharp side of axe, whereas PW-5 stated that four
blows were given on the head and neck of Iqbal Siddiqui. Though the
witnesses have stated about the presence of other accused and some of them
have attributed overt acts qua the Accused Nos.2 to 6, nevertheless the Trial
Court has disbelieved the evidence of all these witnesses and acquitted them,
however, the Trial Court placed reliance on the oral testimonies of the said
witnesses to convict the accused No.1 Subhan Shaikh.
21 In our opinion, the evidence of all these eye witnesses of the
prosecution ought to have been totally believed or disbelieved by the Trial
Court. Keeping in view, the evidence on record of the said eye witnesses, the
Trial Court was not correct in partly believing these witnesses while convicting
the accused No.1, and acquitting the accused Nos. 2 to 6. It has come in the
evidence of Medical Officer (PW-12) that, not only there were injuries on head,
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but there are injuries on the back right side lumber region and linear
superficial abrasions on back of the deceased Iqbal Siddiqui. If the accused
No.1 was only aggressor and he assaulted on head and neck of the deceased
Iqbal, then how there were other injuries on the other parts of the body of
deceased Iqbal.
22 It has come on record that the axe recovered at the instance of
accused No.1 was recovered from the house of third person Mangesh Bukane,
who has not been examined. Therefore, it cannot be said that the accused No.1
had either exclusive knowledge or exclusive possession of the axe. As per the
panchanama, the axe recovered was not sealed. In the absence of sealing of
the axe, the possibility of tampering with it cannot be ruled out. In so far as
results of CA report regarding blood found on the axe is concerned, it was
inconclusive. Same is the results regarding the blood stains found on the
clothes recovered at the instance of Accused No.1.
23 It has come on record that the police have recorded the statement
under Section 161 of the Cr.PC. of PW-5 and PW-11 after a gap of 2 months
and 25 days respectively and therefore, there is inordinate delay in recording
the statement of these eye witnesses of prosecution. The prosecution has not
explained the said inordinate delay in recording the statement of the said
witnesses, and therefore, no reliance can be placed on the evidence of such
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witnesses. Hence non-explanation of inordinate delay in recording the
statements under Section 161 of the Cr.PC. of the eye witnesses casts serious
shadow of doubt about truthfulness of their deposition.
24 As already stated herein above, that according to the Medical
Officer (PW-12), the fatal blow injury suffered by the deceased was a stab
injury which could not have been caused by the axe, and other CLWs suffered
by the deceased could not have been caused by the sharp side of an axe but
only by the blunt side. Therefore it is evident from the evidence of Medical
Officer that the injuries suffered by the deceased were not caused by the sharp
side of an axe. One more thing, the injury caused by an axe with a sharp edge
would be the incised wounds or cut wounds, but the injury that would be
caused by axe with a sharp edge would not be contused lacerated wounds
(CLW) because the contused lacerated woulds are caused by a hard and blunt
object. It is well known that an axe with a sharp edge causes incised wounds
and cut wounds, and cannot cause contused lacerated wounds, and, according
to PW-12 the CLWs are caused by a hard and blunt object. Therefore as rightly
argued by the learned counsel for the Appellant that, where the medical
evidence completely rules out all possibility of the ocular evidence being true,
the ocular evidence must be disbelieved.
25 From the evidence of PW-11, it has come on record that his son
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was arraigned as an accused in the offence of assaulting the father of accused
No.1. Therefore PW-11 was an inimical witness and his testimony cannot be
relied on without any corroboration. So also PW-6 admitted that, the old
trustees (i.e. accused side) were having inimical terms with the deceased Iqbal
Siddiqui. We, therefore, find considerable force in the arguments of the learned
counsel appearing for the Appellant that, there was previous enmity between
the Appellant and the deceased, and therefore, possibility that, he might have
been falsely implicated in the crime cannot be ruled out. It is relevant to
mention that the eye witnesses have implicated other accused Nos. 2 to 6 in
the crime stating that, they were standing on the spot of incident armed with
weapons. Some of the alleged eye witnesses have attributed specific role to
Accused Nos.2 to 6. As already observed, the Medical Officer (PW-12) noticed
the injuries not only on the head, but also on the other part of the body of
deceased Iqbal Siddiqui. However, the Trial Court acquitted Accused Nos. 2 to
6. It is also important to note that all the accused have been acquitted of the
offence punishable under Section 149 of the Indian Penal Code.
26 So far as enmity between the deceased and accused persons is
concerned, though PW-5 deposed that he did not know whether on the very
same day in the morning time the father of accused No.1 Subhan was attacked,
however, in the next breath PW-5 admitted that, he himself and Ajmatulla
Rahematulla Khan (PW-6) were made an accused for the said incident. PW-11
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Arif Shaikh corroborated this fact by stating in his cross examination that, he
(PW-11) came to know that on the same day there was beating to father of
accused No.1 and his son was involved in that case. Even PW-6 Ajmatull Khan
stated in his deposition that the old trustees were having inimical terms with
the deceased Iqbal Siddiqui. PW-6 had lodged a complaint against accused
No.5 when accused No.5 slapped him. From the testimonies of these
witnesses, it is crystal clear that there were inimical terms between these
witnesses and the accused persons. In the statements of the Accused recorded
under Section 313 of the Criminal Procedure Code, the accused have also
stated that they have been falsely implicated in the crime. Considering the
deposition of aforesaid witnesses regarding the inimical terms between them
and accused persons, possibility of falsely implicating the Appellant in the
crime cannot be ruled out.
27 During the course of arguments, the learned counsel appearing for
the Appellant informed the Court that, the Appellant (Original Accused No.1)
has undergone actual imprisonment of more than 13 years and with remission
more than 15 years. The said statement of the learned counsel appearing for
the Appellant is not disputed by the learned APP appearing for the
Respondent/State. The Appellant - Accused No.1 is in custody since his arrest
in March 2009. Importantly, nothing is brought to the notice of this Court
showing that, Respondent-State did file Appeal against an order of acquittal of
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Accused Nos.2 to 6.
28 Now coming to the judgments cited by the learned counsel
appearing for the Appellant in support of her contention that except complaint
filed by PW-3 on the very same day of an alleged incident, admittedly the
statements of other eye witnesses under section 161 of Cr.PC.were recorded by
the police belatedly.
In so far as effect of delay in recording the statements of the
prosecution witnesses under Section 161 of the Code of Criminal Procedure is
concerned, it would be apt to refer to the judgment of the Supreme Court in
Balakrushna Swain's case (supra). The Supreme Court in the said case has
observed as under:-
"Much reliance cannot be placed on the evidence of a
witness when for no justifiable reason he was not
examined by the investigating officer for a number of
days particularly when the witness is found to be telling
falsehood on material aspects of the case and tries to
conform to the evidence of other witnesses."
In the present case, admittedly there was delay of 55 days and 25 days in
recording the statement of PW-5 and PW-11 respectively, and for that
inordinate delay, the prosecution has not given any plausible explanation.
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For the same aforesaid proposition i.e. unjustified and unexplained
delay in recording the statement will render the evidence unreliable, the
learned counsel appearing for the Appellant has relied upon the judgments, in
the case of Ganesh Bhavan Patel v. State of Maharashtra, Raja Sharnappa Zinge
v. State of Maharashtra, Vijaybhai Patel v. Navnitbai Patel, State of Orissa v.
Bhraman Nanda, Alil Mollah and anr v. State of WB, Kantilal v. State of Gujarat
and D D Suvarna v. State of Maharashtra.
In so far as when medical evidence would prevail over the ocular
evidence is concerned, the learned counsel appearing for the Appellant relied
upon the judgment of the Supreme Court in Abdul Sayeed's case. She invited
our attention to paragraph 39 of the said judgment wherein the Supreme Court
has held as under :-
"39 Thus, the position of law in cases where there is
contradiction between medical evidnece and ocular
evidence can be crystallized to the effect that though the
ocular testimony of a witness has greater evidentiary
value vis-a-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of
evidence. However, where the medical evidence goes so
far that it completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be
disbelieved."
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As already observed herein above, in the present case, the autopsy surgeon
( PW-12) stated that the fatal blow injury suffered by the deceased was a stab
injury which could not have been caused by the axe and the other contusion
lacerated wounds (CLWs) suffered by the deceased could not have been caused
by sharp side of axe but only by blunt side. It is therefore evident that the
injuries suffered by the deceased were not caused by the sharp side of an axe.
Therefore the medical evidence on record completely rules out all possibility of
ocular evidence being true.
For the same aforesaid proposition i.e. the medical evidence
completely rules out all possibility of the ocular evidence being true and
therefore ocular evidence may be disbelieved, the learned counsel appearing
for the Appellant has also relied upon the other judgments in the case of
Mahavir Singh v. State of Madhya Pradesh, Mahadeo Kundalik Vaidya v. State
of Maharashtra and Ganga Prasad v. State of UP.
29 We have already noted that, the Trial Court on the basis of the
evidence and material on record convicted the Appellant-Accused No.1 under
section 302 of the Indian Penal Code and acquitted all the accused of the
offence punishable under Section 149 of Indian Penal Code. In the said
context it is required to be noted that there are multiple injuries not only on
the head but also on the other parts of the body of deceased Iqbal Siddiqui.
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Some of the prosecution witnesses have attributed the role to Accused No.1
that he has assaulted on the head and neck of deceased Iqbal Siddiqui. We
therefore find considerable force in the submission of the learned counsel
appearing for the Appellant - Accused No.1 that, if the charge framed against
original Accused No.1, and other Accused Nos. 2 to 6 is for the offence
punishable under Sections 147, 148, Section 302 r/w Section 149 and in the
alternative under Section 302 r/w 34 of the Indian Penal Code, and if the trial
Court acquitted the Accused Nos. 2 to 6, then the charge against Appellant -
Accused No.1 shall fail. The learned counsel for the Appellant sought to rely
upon the judgment of the Supreme Court in Balaka Singh's case. In paragraph
8 of the said case, the Supreme Court has observed as under :-
"If the case against the four accused fails, then the entire
prosecution will have to be discarded and it will not be
possible for this Court to make out a new case to convict
the appellants as has been done by the High Court."
30 In the light of discussion in foregoing paragraphs, we are of the
considered view that the impugned judgment and order passed by the trial
Court cannot legally sustain, and therefore, inevitable conclusion is that the
appellants/accused No.1 is entitled for benefit of doubt. Hence, we pass the
following order-
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ORDER
a] Criminal Appeal No.1286 of 2019 is allowed.
b] The impugned judgment and order dated 26/04/2018
passed by the Additional Sessions Judge, Kalyan in
Sessions Case No.161 of 2009 is quashed and set
aside.
c] Appellant - Subhan Usman Shaikh is acquitted of the
offences punishable under Section 302 of the Indian
Penal Code, 1860.
d] The Appellant is in jail. He shall be released forthwith,
if not required in any other case.
e] The Appellant shall, within one month furnish a bail
in terms of Section 437-A of Code of Criminal
Procedure, 1973 in the sum of Rs. 25,000/- (Rupees
Twenty Five Thousand) with one surety in the like
amount before the concerned Trial Court.
f] The Appeal stands disposed of.
g] In view of disposal of Appeal, the Interim Application
No.1507 Of 2021 And Interim Application No.1508 Of
2021 do not survive and the same to accordingly
stand disposed of as such
h] A copy of this judgment shall be sent forthwith to
Appellant - Subhan Usman Shaikh.
[N. R. BORKAR, J] [S. S. SHINDE , J]
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