Azgar Ali Abdul Khan vs The State Of Maharashtra
2023 Latest Caselaw 894 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION


[1]        CRIMINAL APPEAL NO.538 OF 1995

Azgar Ali Abdul Khan                          ....Appellant

           Versus

The State of Maharashtra                      .... Respondent

                             .....
                            WITH
[2]        CRIMINAL APPEAL NO.252 OF 1997


Ganesh Sakharam Khaire                        ....Appellant

           Versus

The State of Maharashtra                      .... Respondent


                                 -----
Smt. Jai Vishal Kanade, Advocate (appointed) a/w. Rahul
Shirgavkar, for the Appellants in both Appeals.
Mr. S.R. Agarkar, APP, for the Respondent-State in both Appeals.
                                 -----

                             CORAM : SARANG V. KOTWAL, J.

DATE : 27th JANUARY, 2023

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ORAL JUDGMENT :

1. Both these appeals are decided by this common

judgment and order because they arise out of the same Sessions

Case. The appellant Ganesh Khaire in Criminal Appeal

No.252/1997 was the original accused No.1 and the appellant

Azgar Ali Abdul Khan in Criminal Appeal No.538/1995 was the

original accused No.3 in Sessions Case No.22/1991 along with

Sessions Case No.113/1994.

2. Apart from these two accused, there were three more

accused, namely, accused No.2 Vasant Gala, accused No.4 Paul @

Umar Manual and accused No.5 Wasim Qureshi. At the conclusin

of the trial, the learned Judge acquitted accused No.2 Vasant Gala.

Accused No.5 Wasim Qureshi had filed Criminal Appeal

No.48/1995, but, during its pendency he passed away and,

therefore, the appeal filed by him stood abated.

3. At the conclusion of the trial, vide judgment and order

dated 17.8.1995, learned trial Judge convicted both the appellants

as well as accused No.4 and accused No.5 for commission of the

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offence punishable under Section 365 read with 34 of IPC and

they were sentenced to suffer RI for three years. They were

convicted for commission of the offence punishable under Section

347 read with 34 of IPC and were sentenced to suffer RI for three

years. They were convicted for the offence punishable under

Section 339 read with 34 of IPC and were sentenced to suffer SI

for one month. They were convicted for commission of the

offence punishable under Section 395 read with 34 of IPC and

were sentenced to suffer RI for seven years. They were convicted

for commission of the offence punishable under Section 397 of

IPC and were sentenced to suffer RI for seven years. They were

also convicted for the offence punishable under Sections 365, 339,

347, 395 and 397 of IPC read with Section 120B of IPC and were

sentenced to suffer RI for seven years. All the sentences were

directed to run concurrently. They were granted set off under

Section 428 of Cr.P.C.. The original accused No.2 was acquitted.

There was one more accused, namely, Angelo Fernandes. He died

during pendency of the trial and he did not face the trial. One

more accused Vasant Pawar was absconding. He also did not face

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the trial.

4. The prosecution case is that, on 30.11.1989, the

accused No.1 i.e. the appellant Ganesh came to the shop of one

Shahjahan Ali (PW-2), who was the victim in this case; and made

some irrelevant enquiry just to fix the identity of PW-2. On the

next day i.e. on 1.12.1989 when Shahjahan Ali was going back to

his house in Kurla in a taxi with three other passengers, their taxi

was intercepted by a light colored Ambassador Car. Three persons

got down from the car and came towards the taxi. One of them

removed the ignition key. The other two persons, pulled

Shahjahan Ali forcibly from the taxi and made him sit in the

Ambassador car. The other passengers ran away out of fear. The

victim was taken in the Ambassador car. Keys of the taxi were

thrown away. The taxi driver picked up the keys. Other

passengers again sat in the taxi. They went to the police station

and lodged the FIR. In the meantime the victim Shahjahan Ali

was taken to a flat at Nepean Sea Road. He was kept there

overnight. He was assaulted. He was shown a revolver. In the

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morning, he was allowed to go home so that he could give them

money and ornaments. He gave them gold bangles and some

amount. He was told to arrange for more amount. He promised

to pay them more amount. On the next day, the police made

inquiries with him. He told them this story. In the meantime, he

took treatment from a doctor in his house. On 9.12.1989, a trap

was laid and the accused Angelo Fernandes was caught as he had

come to collect more amount from the victim. On his information,

the accused No.1 i.e. the appellant Ganesh was arrested on

1.12.1989. The appellant Azgar Ali i.e. accused No.3 was arrested

on 24.12.1989. Test identification parades were held on different

dates.

5. The appellant Ganesh was identified in the test

identification parade on 11.12.1989 and 15.12.1989 by different

witnesses. Accused No.3 Azgar Ali was identified in the test

identification parade held on 25.12.1989. During investigation,

some amount was recovered at the instance of the accused No.1.

Some ear-rings and watch purchased out of the robbed amount

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was recovered at the instance of accused No.3. The investigation

was carried out and at the conclusion of investigation, the charge-

sheet was filed. All the accused, as mentioned earlier, faced the

trial.

6. During trial the prosecution examined twelve

witnesses including the victim, two eye witnesses for abduction,

panchas for recovery, two S.E.Ms who had conducted different test

identification parades, watchman of the building where the victim

was kept overnight, the doctor who had treated the victim, and

finally the investigating officer. The learned trial Judge mainly

relied on the evidence of identification of the accused in abducting

the appellant. Defence of the accused of total denial was not

accepted. According to the accused No.1 he was arrested from his

house and he had not committed any offence.

7. The victim Shahjahan Ali was examined as PW-2. He

has deposed that he was having his shop at Reay Road. On

30.11.1989 an unknown person came to his shop in the afternoon.

He asked about some person. He verified that PW-2's name was

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Shahjahan Ali. Then he left the place. On 1.12.1989, PW-2 was

there throughout the day in his shop. As usual, he had hired a taxi

of one Habib to go home. He offered lift to Kamrulla and Anis.

Both of them were staying at Kurla. They started going towards

Kurla. They had reached Mesant Road. There was not much

traffic. They had reached near a godown called 'E-Shed'. One

Ambassador car intercepted their taxi. It was white in colour.

There were six persons in that car. Three of them got down. Two

came near them. One person went near the driver and took the

ignition key. Two persons who had come to PW-2, caught him and

pulled him out of the taxi and put him forcibly in the Ambassador

car. He was blindfolded and then he was taken away. He

identified accused No.1 - the appellant Ganesh and accused No.5

Wasim as the persons who had pulled him out of the taxi. The

person who had snatched the ignition key was identified in the

court as accused No.4 Paul. PW-2 further identified accused No.3-

the appellant Azgar Ali as the person who was driving the

Ambassador car. While he was being taken to a different place, a

revolver was pointed at the back of his neck. He was threatened

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that he would be killed if he shouted. Accused No.4 Paul Manual

was holding that revolver. Then he was taken to a building. He

was taken to the second floor. When he had reached the building,

the towel covering his face was removed. He was taken to a flat.

The abductors told him that they wanted money and if they were

paid money he would be released. They demanded Rs.5,00,000/-.

He was taken to the servant's quarter. They removed Rs.2200/-

which he was carrying. Then he was assaulted and kicked. The

abductors were drinking. They offered him food but he could not

eat. In between, one person came there and gave blows to PW-2.

The abductors bargained for settling the amount and agreed to

accept Rs.2,00,000/-. PW-2 told them that he could give them

Rs.25,000 which he had kept in his house and he could also give

them six bangles of his wife. They agreed to take him home by

4:00 a.m. for taking that money and bangles. He was left at his

house at around 4:00 a.m.. PW-2 brought the cash and bangles

and gave those to the abductors. They told him to arrange for

Rs.1,50,000/- more and then threatened him. On the next day, he

was examined by the doctor. Police came to his house and

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recorded his statement. On 8.12.1989, he received a telephone

call in the morning. It was made by the abductors. They inquired

about the money. They agreed to accept Rs.1,00,000/-. They told

him that one person would come next morning to collect the

amount. PW-2 then contacted the police, who arranged to tap his

telephone. On the next day, a person came in a taxi to collect the

amount. The police caught him. That accused was not before the

court. That person was arrested on 9.12.1989. Then he has

deposed about the test identification parades held on 11.12.1989,

13.12.1989, 15.12.1989 and 25.12.1989. As mentioned earlier, he

had identified the appellant Ganesh on 11.12.1989 and the

appellant Azgar Ali on 25.12.1989 in the test identification

parades.

On 16.12.1989 he was taken to the house where he

was confined. He was taken there by the police. He identified the

flat where he was kept.

In the cross examination he could not give the number

of the flat. On 16.12.1989, the flat was opened by accused No.2

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Vasant Gala. He could not explain as to why his statement

mentioned that there were eight persons in the car. In the cross

examination, he has deposed that one person punched him

thereby causing loosening of one of his teeth. He showed that

loose tooth on the right side of the mouth even in the court. One

of the abductors has caused a minor injury with knife on his neck.

That was also shown to the court.

In the cross examination, he was specifically asked as

to whether, when he had reached the police station the Magistrate

was already present. He answered that the Magistrate was present

in the police station and he met him. He has deposed that he had

not seen that Magistrate before 13.12.1989. He further deposed

that more than one Magistrate conducted test identification

parades on different occasions. He further deposed that when he

was abducted he did not shout for help. The money recovered in

the offence was returned to him by the police.

8. PW-1 Mohd. Anis was an eye witness and was the first

informant. On 1.12.1989 he had gone to a shop of one Sikandar

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whose shop was near the shop of PW-2. He knew Kamrulla and

Mohd. Harun. Kamrulla told him that PW-2 Shahjahan was going

to Dharavi and he could give him a lift. Harun was brother-in-law

of PW-2 Shahjahan. After that, PW-2 Shahjahan, Harun,

Kamrulla and this witness PW-1 sat in the taxi. That was around

6.15 p.m.. After traveling for some distance, their taxi was

intercepted by an Ambassador car. Thereafter he has described

the incident in the same manner as is described by PW-2. He

correctly identified both the appellants in the Court. He had also

attended the test identification parades on 11.12.1989 and

25.12.1989 when he had identified accused No.1 the appellant

Ganesh and accused No.3 the appellant Azgar Ali respectively.

In the cross-examination, he explained that though the

incident occurred in a short time, even a glance was sufficient to

enable him to identify the accused. He and his colleagues had

gone to the police station separately for test identification

parades. He has produced the FIR given by him at Exhibit-20. In

the FIR, he has given description of one person.

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9.         PW-4    Kamrullah     Rehemtullah    was      another       eye

witness. He was having a shop near that of PW-2. He knew PW-1

Mohd Anis and Shahjahan Ali's brother-in-law Harun. On

30.11.1989, one person had come to his shop making enquiries

about Shahjahan Ali. On 1.12.1989, he was offered a lift by

Shahjahan and others. Then he has described the incident in the

same manner as is described by PW-1 & PW-2 about abduction of

PW-2 in the Ambassador car. He identified the accused No.1-the

appellant Ganesh as well as the accused No.3 the appellant Azgar

Ali in the Court and he described their roles specifically. He then

deposed about the test identification parades held on 11.12.1989

and 25.12.1989 when he had identified both these appellants in

those parades.

10. PW-3 Dr. Jallaluddin Hawaldar had examined and

treated PW-2 on the next day of the incident i.e. on 2.12.1989. He

has produced the medical certificate issued by him on record. On

his examination, he found that there was a marked tenderness on

the right side of the lower jaw. PW-2 was in pain. One tooth in

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the lower jaw (the lateral incisor) was loose. There was

tenderness on the right side of the neck below his right ear. There

was tenderness on the back above the shoulder. There was

tenderness on the 8th, 9th and 10th ribs on the right side. His blood

pressure had shot up. According to him, those injuries were

possible by fist blows and kick blows.

11. The ballistic report is produced on record in respect of

the country-made revolver recovered at the instance of the

accused Angelo Fernandes who did not face the trial as he was

dead. The spot of abduction was recorded in the panchnama

which is produced on record at Exhibit 26.

12. PW-5 Shendge was a pancha for recovery of bangles at

the instance of Angelo Farnandes, and therefore, his evidence is

not material for these two appellants.

13. PW-6 Muttu was a pancha for recovery of Rs.700/- at

the instance of the appellant Ganesh. That amount of Rs.700/-

was recovered at his instance from his hut. However, recovery of

that cash is not really an incriminating circumstance as it was a

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small amount and it could not be connected with offence, with a

reasonable certainty.

14. PW-7 Annal Malai Harijan was a pancha for recovery

made at the instance of the accused No.3 appellant Asgar Ali. That

recovery was of ear-rings and a wrist watch. It is the prosecution

case that those ear-rings and the watch were purchased by him

out of the robbed amount. They were worth around Rs.4000/-.

Again this recovery cannot be directly connected with the offence.

15. PW-8 Hindurao Kale was a watchman of the building

where the victim was taken by the abductors. He has deposed

that on 1.12.1989, he was on duty from 3.00 p.m. to 11.00 p.m..

In the afternoon, one Ambassador car came to their building. One

Raju, who was working on the second floor told PW-8 to allow the

car to enter the building. The car was parked by the accused No.2

Vasant. Those persons had come to the building around 4.00 p.m.

in the car. He saw that car again at around 7.00 p.m. After that, he

went to the terrace. When he went home at 11.00 p.m., at that

time, he saw that the car was parked in the visitor's parking lot.

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He had not seen PW-2 the victim and he has not identified the

accused or the victim. Therefore, his evidence is of limited value

only to show that the car was parked in the building at around

11.00 p.m.

16. PW-9 Arvind Chaulkar was an S.E.M. who had

conducted the test identification parade in which accused No.5

was identified. Therefore, his evidence is not material for the

present appeals.

17. PW-11 Shaikh Gulam Usman was the S.E.M. who had

conducted the important identification parades in which the

prosecution witnesses had identified both these appellants. In the

first part of his deposition, he has described the procedure which

he followed in conducting the test identification parade. He has

specified the precautions which he took in conducting the test

identification parade. He has deposed how he selected the

dummies to resemble the accused and how he took precaution so

that the identifying witnesses were not in a position to see the

accused. He has deposed about the two important test

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identification parades dated 11.12.1989 and 25.12.1989 when the

above mentioned prosecution witnesses had identified the accused

No.1 and the accused No.3 respectively. He has described the

procedure and has deposed that all the above prosecution

witnesses identified both these accused and described their roles.

The accused No.1 - the appellant Ganesh had come to the car and

had pulled the victim towards the ambassador car. The accused

No.3 Azgar Ali was the driver of that Ambassador car.

Most significantly in the cross-examination itself while

answering a question he had volunteered that when he was called

to the police station, the witnesses were called after him and

hence there was no question that the witnesses could have seen

the suspects and still he asked the witnesses to satisfy his

conscience whether they had seen the suspects. He has produced

the test identification parade memoranda, which he had

conducted, on record from Exhibit-48 upto Exhibit-52. These test

identification parade memos substantially corroborate his

evidence.

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18.          PW-10 API         Panaskar   was the first investigating

officer. He has deposed that the offence was registered at Sewri

police station vide C.R. No.177/1989. He recorded statements of

the witnesses. On 2.12.1989 he was informed that the victim had

returned home. He carried out the panchnama of the spot from

where he was abducted. He got to know that one of the abductors

had made a phone call asking for money. Another phone call was

received on 8.12.1989. On 9.12.1989, a trap was laid and the

accused Angelo Farnandes was arrested. He then gave name of

the accused No.1 Ganesh. He was arrested. During investigation, a

revolver and a knife was recovered at the instance of the accused

Angelo Farnandes. On 14.12.1989 the accused No.2 Vasant

showed the flat where the victim was taken. The revolver and the

cartridge were sent for CA analysis. The ballistic report shows

that it was a live-cartridge and the revolver was in a working

condition. He then deposed about the recovery effected at the

instance of the accused Nos.1 and 3 as mentioned earlier.

19. PW-12 PI Pote was another investigating officer. He

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has deposed about tapping the victim's telephone and then

apprehending Angelo Farnandes. He has also deposed about the

arrest of the other accused including the accused No.3. He then

recorded statements of other witnesses. He had filed the charge-

sheet in this case.

20. Learned counsel for the appellants submitted that

there are two major circumstances in this case against the

appellants; first is of recovery and the other is of identification.

She submitted that the alleged recovery at the instance of accused

Nos.1 & 3 cannot really be connected with the offence. She

submitted that even identification of the accused is not properly

established beyond reasonable doubt. There are too many

discrepancies in the evidence of the victim and the alleged eye

witnesses. Their evidence does not inspire confidence. There is

description of only one accused in the FIR, and therefore, it was

quite surprising that the first informant PW-1 identified the other

accused. The conduct of the eye witnesses is also suspicious. They

did not try to help the victim. At that point of time no weapon was

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involved. These eye witnesses ran away from the spot and

therefore it was not possible for them to have identified the

accused. There was no consistency about color of the Ambassador

car. It was late in the evening and, therefore, it was not possible to

observe features of the accused.

21. She submitted that there was nothing to show that the

revolver was actually used in the commission of the offence and,

therefore, the conviction under section 397 of IPC is not

sustainable.

22. Learned APP opposed these submissions. According to

him, the evidence of recovery and identification is strong enough

to prove the prosecution case beyond reasonable doubt. He

submitted that even the use of revolver is spoken by the victim

himself and, therefore, the offence under section 397 of IPC is

made out.

23. I have considered these submissions. As far as recovery

is concerned, as mentioned earlier, only small amount is recovered

at the instance of accuse No.1 Ganesh. Some ear-rings and wrist

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watch is recovered at the instance of accused No.3 and the

prosecution case is that those articles were purchased from the

amount which was robbed from the victim. However there is no

cogent evidence to link the recovery of these articles with the

amount robbed in the Offence. Those articles were not taken from

the victim and, therefore, it is difficult to connect these articles

with the actual robbery. Therefore, to that extent I am inclined to

agree with the submissions of learned counsel for the appellants

that the recovery evidence in this case is not beyond reasonable

doubt.

24. However I am unable to accept the submission that

identification of the accused is not proved beyond reasonable

doubt. The evidence shows that the accused were arrested almost

immediately . The first test identification parade was held on

11.12.1989 where the prosecution witnesses i.e. PWs-1, 2 & 4 had

identified the accused No.1. This identification was within a

period of ten days from the offence and within two days from the

date of arrest of the accused. Therefore, there was no lacuna or

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lethargy on the part of the investigating agency in arranging for

conducting the test identification parades. Even accused No.3 was

immediately put for test identification parade on his arrest and

that parade was held on 25.12.1989. He was also immediately

identified in the test identification parade.

25. I have considered the evidence of PW-11 Shaikh who

was the S.E.M. who had conducted the test identification parades.

He has described, in detail, regarding the precautions which he

had taken. He has specifically deposed in the cross examination

that he has taken precaution to see that the witnesses had not

seen the suspects before they were actually put in the test

identification parade. He has also mentioned that he was present

in the police station before the witnesses were called.

26. Learned counsel for the appellant relied on the

judgment of a Division Bench of this court in the case of

Ramcharan Bhudiram Gupta Vs. The State of Maharashtra1.

However, the ratio of this judgment will not help the appellants in

this case because in that particular case it was observed that the 1 1995 Cri LJ 4048

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witness was already present in the police station and at the same

time the suspects were in the lockup. In that situation, sufficient

doubt was created about that identification.

However, in the present case the S.E.M. has explained

that he had gone to the police station before the witnesses and he

had taken precautions so that the witnesses could not have seen

the suspects. Thus, I find that the evidence laid by the prosecution

in respect of identification parade of the culprits is cogent and

beyond reasonable doubt. Therefore, on the basis of this evidence

alone the prosecution has proved its case against both the

appellants.

27. The next question would be whether the offence under

section 397 of IPC is made out. In that behalf, the victim PW-2 has

categorically deposed that the revolver was used while abducting

him. It was put on his neck. The appellants are also convicted with

the aid of section 120-B of IPC. Besides this, there was dislocation

of his tooth and hence it was a grievous hurt. Therefore, all the

ingredients of section 397 of IPC are satisfied.

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28. In this view of the matter, I do not find any infirmity in

the reasoning and findings recorded by learned trial Judge. With

the result, I do not find any merit in the appeals and the appeals

are accordingly dismissed. The trial court shall find out how much

sentence is still remained to be served by both these appellants

and shall take steps to secure their presence to serve out the

remaining sentence.

Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE

(SARANG V. KOTWAL, J.) DESHMANE Date:

2023.01.31 15:47:23 +0530

Deshmane (PS)

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