Aadil Rafique Shaikh vs The State Of Maharashtra
2022 Latest Caselaw 2466 Bom

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                                                          7.CRI-APPEAL-1192-2012.odt




                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO.1192 OF 2012

Aadil Rafique Shaikh                                         ... Appellant
           Versus
The State of Maharashtra                                     ... Respondent
                                  ....
Ms. Farhana Shah, Advocate for the Appellant.
Ms. M.M. Deshmukh, APP, for Respondent No.1-State.
                                  ....

                               CORAM : SMT. SADHANA S. JADHAV &
                                       SARANG V. KOTWAL, JJ.

RESERVED ON : 28th FEBRUARY, 2022

PRONOUNCED ON : 11th MARCH, 2022

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 The Appellant faced Sessions Case No.2/2011 on the file

of the Court of Sessions at Dindoshi, Mumbai as the sole accused.

He was facing the charge for the offence punishable under Sections

302 and 323 of IPC as well as under Section 135 of the

Maharashtra Police Act.

2 At the conclusion of the trial, the learned Judge vide his

judgment and order dated 5.9.2012 convicted the Appellant for

commission of the offence punishable under Section 302 of IPC;

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and sentenced him to suffer imprisonment for life and to pay a fine

of Rs.2,000/-; and in default to suffer RI for two years. He was

acquitted of the other two charges.

3 Heard Ms. Farhana Shah, learned counsel for the

Appellant and Ms. M.M. Deshmukh, learned APP for the State.

4 The prosecution case was that the deceased Darshana

was a common friend of the Appellant and another girl. They were

all studying together. The Appellant and that girl were having love

affair. However, that girl broke-up with the Appellant. The

Appellant was suspecting that Darshana had poisoned that girl's

mind against the Appellant. Therefore, getting angry the Appellant

committed Darshana's murder on 26.8.2010 at about 8.15 p.m. at

the spot within the jurisdiction of Bangur Nagar police station.

From the record, this motive is not sufficiently proved by the

prosecution. However, there is direct evidence of two eye

witnesses and other circumstantial evidence against the Appellant,

as discussed hereafter.

5 The prosecution case heavily relies on the evidence of

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two eye witnesses. PW-1 Gopal Mandal was one of them, who had

lodged this FIR. Thus, he is also the first informant. PW-2 Siraj

Shah was another eye witness. Both of them had actually seen the

incident and had apprehended the Appellant on the spot. They

handed him over to the police. Therefore, their evidence is

important.

6 The other important witnesses, in this case, are PW-9

Head Constable Mangesh Jadhav attached to Bangur Nagar police

station, who had gone to the spot along with other officers on

receiving information from the beat marshal. PW-10 Police Naik

Arvind Dhuri was the beat marshal along with Vijay Kadam and

they were taking round in that area. Both of them had reached the

spot on hearing the commotion. This witness had informed the

control room about the incident.

7 PW-11 ASI Shivaji Kasarkar had gone to the spot and,

along with others, had taken the deceased to Bhagwati hospital.

PW-13 Dr. Pradnya Malgundkar had examined PW-1 and PW-2 as

well as the Appellant for the injuries sustained by them. PW-14 Dr.

Rahul Kabra had conducted the postmortem examination.

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8 PW-15 API Deepak Kirkire and PW-16 PI Anil Walzade

had conducted the investigation at different stages.

9 Apart from these main witnesses, there were other

witnesses, whose evidence is not as important. They are:

PW-3 Naresh Dave, who was a pancha for arrest

panchnama. PW-4 Ghosalkar was a pancha who was present

when the knife was allegedly identified by mother of the

Appellant. PW-5 Arjun Dave, who was a pancha in whose presence

the Appellant produced his bag full of books, but, this piece of

evidence is not really material. PW-6 Akhila Mantri was a pancha

for inquest panchnama. PW-7 Akbar Shaikh had sold his

motorcycle to the Appellant. PW-8 was the girl with whom the

Appellant had an affair. This witness has turned hostile and,

therefore, has not helped the prosecution case.

10 The defence of the Appellant was of total denial.

According to him, he was not at the spot and he is falsely

implicated at the instance of the police.

11 Learned counsel for the Appellant submitted that the

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evidence of PW-1 and PW-2 is not trustworthy. Admittedly there

was no light on the road where the incident had taken place and,

therefore, both these witnesses could not have been in a position to

see the incident clearly. The prosecution has failed to bring on

record the motive. There is doubt created about recovery of the

knife. PW-1 was a tutored witness because his FIR was read-over

to him by the police before his deposition.

12 Learned APP, on the other hand, relied on the depositions

of PW-1 and PW-2 as well as the medical evidence and recovery of

knife.

13 We have considered these submission. We have

scrutinized the evidence of all the witnesses. As is contended by

both the sides, the depositions of PW-1 and PW-2 are important.

14 PW-1 Gopal Mandal has stated that during the day time

he was working as a sweeper and in the night time he worked as a

watchman in Raheja Interface, Dumping Road, Malad (West),

Mumbai. The incident has taken place on this road. The BMC

vehicles carrying the waste-materials are parked at that place.

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PW-1 used to keep watch on these vehicles. On 26.8.2010 when he

was on duty, at about 8.15 p.m. to 8.30 p.m., he saw PW-2

repairing a vehicle. At a short distance, one motor-cycle was

parked. He heard shouts from one girl. She was shouting for help.

The informant rushed there. He saw that a boy was giving blows

of knife to that girl on her neck and face. PW-2 Siraj also rushed

there. On seeing both of them, the boy pushed the girl away and

started going away on his motor-cycle. There was some scuffle

between that boy on one hand and both these witnesses on the

other. But that boy was over-powered. In the meantime, a duty

constable came there on motor-cycle. He made enquiries. He

called the police. A police vehicle came there. The girl was taken

to the hospital. This witness was taken to police station where his

complaint was recorded. The prosecution produced his complaint

at Exhibit-15 in this case. This witness has identified the contents

of the complaint and admitted them to be true.

In the cross-examination, he deposed that, at the time of

recording of his complaint he himself, PW-2 and police officer were

present in the police station in one room. He left the police station

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at 4.00 a.m. He did not have any identity proof to show that he

was employed as a watchman. The supervisor was not found by

the police at that time. He stated that he had given description of

the accused to the police making enquiry. There were some minor

contradictions in his deposition and in his FIR regarding the girl

trying to hold PW-2 for support.

He was cross-examined regarding the scuffle between

himself and the Appellant. He has admitted in the cross-

examination that he had reached the hospital between 9.30 p.m. to

10.00 p.m.. In the hospital he had given information of assault

caused to the witness himself to the doctor. According to him the

police constable had read over the complaint to him to refresh his

memory but he has not given evidence on the directions of the

police. He denied the suggestion that the Appellant was not

present on the spot at the relevant time; and that he had not seen

the incident.

15 PW-2 Siraj Shah has substantially supported the evidence

of PW-1. He was knowing PW-1. This witness was doing some

repair work on a car. One of the head-lights of that car was

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working and the other one was not working. On hearing noise, he

also reached to the spot as did PW-1. This witness actually saw the

Appellant giving blows with knife on that girl's neck. The boy was

trying to run away from the spot, but, this witness chased and

caught him. Thereafter the police came there. The police van was

called. This witness had accompanied the police to Bhagwati

Hospital. He had also sustained injury in the scuffle with the

assailant. PW-1 had also gone to the hospital for his injury. He

identified the assailant as the Appellant who was present in the

Court when his evidence was recorded. His statement was

recorded at hospital between 10.00 p.m. to 10.30 p.m. From the

hospital he went to the police station and then he left the police

station at 6.00 a.m. on the next day. There again the police made

enquiries with him. He had seen the police making enquiries with

PW-1.

In the cross-examination, he has stated that he has not

noted down number of the vehicle in which he went to the

hospital. He had not seen name of the officers who were taking

him and PW-1 to hospital. According to him, he was present when

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PW-1's statement was recorded. In his police statement, it was not

mentioned that he was repairing a vehicle at the time of incident

and that one head-light was working out of the two. He could not

assign any reason why this fact was not recorded in the statement.

There were other minor contradictions in his deposition and in his

police statement regarding throwing away key of the motor-cycle,

about the assailant standing near the motor-cycle and this witness

chasing him. He could not explain why there were these

contradictions.

16 The evidence of these two witnesses, in our opinion,

proves the prosecution case. There is absolutely no reason as to

why their evidence should be disbelived. The most clinching

evidence which emerges from their deposition is that the Appellant

was caught at the spot. The police arrived within a short time.

Both these witnesses had in the meantime caught the Appellant

and handed him over to the police when they came.

17 PW-13 Dr. Pradnya Malgundkar had examined PW-1,

PW-2 as well as the Appellant. PW-1 had suffered C.L.W. of the size

2 x 2 x 1 cm. PW-2 had suffered blunt trauma on his right hand;

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and the appellant had suffered C.L.W. on his left forearm of the size

3 x 2 x 1 cm. This evidence corroborates the deposition of PW-1

and PW-2 though there are suggestions given to this doctor that the

Appellant's injury was possible by falling on uneven surface. It is

sufficiently proved that the Appellant and both these witnesses

were taken to the hospital immediately after the incident and,

therefore, this evidence lends support to the depositions of PW-1

and PW-2.

18 PW-15 API Deepak Kirkire went to the spot after the beat

marshal informed the control room. When he went there, he saw

that the beat marshal had detained the Appellant. PW-1 and PW-2

were also present there. He had supervised the preparation of

inquest panchnama and had informed the victim's family. His

evidence shows presence of PW-1, PW-2 and the Appellant at the

spot. It also supports the case that the Appellant was caught at the

spot and was given in the custody of the beat marshal. PW-1 and

PW-2 were sent to the hospital. This witness had also conducted

the spot panchnama and during this panchnama the murder

weapon i.e. the knife was recovered from the spot. The spot

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panchnama is brought on record at Exhibit-54. Apart from that,

the motor-cycle was also seen at the spot. The registration number

of the motor-cycle is mentioned in the spot panchnama. PW-7 had

stated that the same motor-cycle was sold by him to the Appellant.

19 The postmortem notes show that the deceased had

suffered as many as eighteen injuries on the head, face, chest, arms

etc.. The cause of death was mentioned as "hemorrhage and shock

due to incised stab wound (unnatural)". There are incised wounds

on the chest as well as on the neck, as mentioned by PW-1.

Therefore, this medical evidence also supports the direct evidence

of eye witnesses. The C.A. report at Exhibit-71 shows that the

blood group of the deceased was "AB-group". Human blood was

found on the knife. These are the additional circumstances against

the Appellant.

20 PW-10 Police Naik Arvind Dhuri was a beat marshal and

he had immediately reached the spot. He had seen that two

persons had caught the Appellant and the girl was found lying in a

pool of blood. He himself had then informed the control room.

PW-9 Head Constable Mangesh Jadhav and PW-11 ASI Shivaji

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Kesarkar had gone to the spot on receiving message at the control

room. They have sufficiently corroborated the evidence of beat

marshal Arvind Dhuri.

21 Thus, the story of the prosecution is quite consistent as

deposed by these witnesses. The Appellant was caught at the spot

immediately after commission of the offence. PW-1 and PW-2 have

seen the incident. There is no reason to discard their evidence.

Therefore, we are satisfied that the prosecution has proved its case

beyond reasonable doubt. There is no reason to interfere with the

impugned judgment and order. The Appeal is, therefore,

dismissed.

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)

22 At this stage, learned counsel for the Appellant submitted

that as on today, he is on parole. She submitted that sufficient time

be granted to the Appellant to surrender. Considering her request,

four weeks' time to surrender is granted to the Appellant.

(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

Deshmane (PS) 2022.03.11 13:21:14 +0530

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