Bombay High Court
Ansari Abdul Kadir Salimullah vs Nazim Abdul Rehman Shaikh on 11 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:3706
Diksha Rane 905. APEAL 5621998.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.562/1998
NAZIM ABDUL REHMAN SHAIKH ..APPELLANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
WITH
CRIMINAL APPLICATION NO.1359/1999
IN
CRIMINAL APPEAL NO.562/1998
ANSARI ABDUL KADIR SALIMULLAH ..APPLICANT
VS.
NAZIM ABDUL REHMAN SHAIKH ..RESPONDENT
------------
Adv. Veerdhawal Deshmukh appointed for the appellant.
Mr. S. H. Yadav, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 11, 2024.
ORAL JUDGMENT :
1. Heard learned counsel for the appellant and learned
APP for the respondent-State.
2. This appeal challenges the judgment and order of
conviction dated 19/10/1996 of learned Additional Sessions
Judge, Greater Mumbai, against the present appellant who is
the accused no.1. The accused who are four in number were
charged by the trial Court for the offence punishable under
Diksha Rane 905. APEAL 5621998.doc
Section 452 read with 34, under Section 394 read with
Section 34, under Section 397 of the Indian Penal Code
(hereafter 'IPC' for short) and Section 3 read with Section 25
of the Indian Arms Act. The trial Court convicted the
appellant and other accused for the offence punishable
under Section 452 read with 34 of the IPC and sentenced
them to suffer rigorous imprisonment for five years and to
pay a fine of Rs.1000/- by each of them, in default to suffer
further rigorous imprisonment for six months. The appellant
was further convicted for the offence charged against him
punishable under Section 25 (1-B) sub-section (a) read with
Section 3 of the Arms Act and sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs.2000/-,
in default to suffer rigorous imprisonment for nine months.
The appellant was acquitted for the offence charged against
him and other accused punishable under Section 394 read
with 34 of the IPC as well as Section 397 of the IPC.
3. The prosecution case in brief is as follows:-
(I) PW-8 Sunil Chandgude, Station House Officer of
Goregaon Police Station received a telephone call from a
member of the public at around 8.45 p.m. informing him
Diksha Rane 905. APEAL 5621998.doc
that a robbery is going on at Jawahar Nagar, Goregaon
(West) in the house of PW-1 Deepak Chavan, who is the
complainant. The police party reached the spot when they
saw two robbers (including the appellant) were detained by
PW-1 and his family members with the assistance of PW-5, a
resident of the building and remaining two robbers
succeeded in running away from the spot. At that time, the
complaint (Exhibit 10) lodged by PW-1 Deepak Chavan was
recorded.
4. PW-1 Deepak Chavan in his evidence stated that the
incident took place on 11/5/1992, at about 10.00 or 10.30
p.m. in his flat. In the said flat, his wife, two children, his
younger brother by name Ajay Chauhan, his wife and his
two daughters and his nephew Rishiraj Chauhan were
residing. PW-1 had come home at around 8.30 p.m. At the
relevant time, PW-1, his younger brother Ajay and PW-2
Rishiraj were present. The other family members had gone
to another flat in the same building. At 9.40 p.m. to 10.00
p.m., two persons entered the main door of PW-1's flat and
came towards the hall. One person was armed with a
revolver and the other one was holding a chopper. The
Diksha Rane 905. APEAL 5621998.doc
appellant (accused no.1) who was holding revolver gave a
blow on backside of the PW-1's head and kicked him on his
abdomen. PW-1 was pushed as a result of which he fell
down. Thereafter, two more persons entered the flat. One of
them was holding a knife. These two persons, who later
entered went in the bedroom and closed the door for
searching the belongings. When the accused were in the
flat, the door bell rang. PW-1's elder brother PW-3 Arvind
Chauhan entered the flat after the main door was opened by
the appellant. PW-3 Arvind hit the appellant as a result of
which the revolver fell down. The appellant ran out of the
flat. On hearing the shouts, the appellant was caught by the
residents of the building. The person holding the chopper,
who was inside the flat, was disarmed by the PW-1 and his
brothers. In the meantime, two accused who were in the
bedroom came out. They snatched a gold chain from the
person of the PW-2 Rishiraj and fled away after creating a
ruckus. PW-5 tried to catch hold the one amongst the two
accused but the accused succeeded in fleeing. PW-1 on
entering the bedroom realized that cash of around
Rs.15,000/- was stolen. On arrival of the police, they took
Diksha Rane 905. APEAL 5621998.doc
charge of two persons who were caught at the spot.
5. The prosecution examined as many as nine witnesses.
PW-1- Deepak Chavan is the complainant and eye witness to
the incident. PW-2 Rishiraj Chouhan is the nephew of PW-1
who was present in the flat at the time of the incident. PW-3
is Arvind Chouhan, brother of the PW-1 who hit the
appellant with his briefcase as a result of which the
appellant tried to run away. PW-4 is Dilip Pandit, a panch
witness in respect of seizure of the weapons i.e. a revolver
and a chopper. PW-5 Nadeem Naqvi is a resident of the
building, who tried to nab one of the accused who made
good his escape with another accused and in the process
sustained injury to his hand. PW-6 Tilakraj Kapoor is a panch
witness of the panchanama regarding recovery of cash and
knife from the co-accused. PW-7 Ramkrishna Samant is the
Special Executive Magistrate who conducted the test
identification parade. PW-8 Sunil Chandgule, Station House
Officer, received information about the incident and
recorded the FIR. PW-9 Ajit Wagh is the investigating officer.
6. The trial Court for the reasons recorded in the
judgment and order convicted the appellant for the offences
Diksha Rane 905. APEAL 5621998.doc
aforestated. With the assistance of learned counsel for the
appellant as well as learned APP I have gone through the
paper-book, the materials on record and perused the
findings recorded by the trial Court.
7. Before I proceed to consider the evidence on record, it
would be profitable to note the observations of the Supreme
Court in Mahendra Singh and others vs. State of
Madhya Pradesh1. Paragraphs 12 and 13 thereof read
thus:-
"12. It will be apposite to refer to the following observations of
this Court in its celebrated judgment in Vadivelu Thevar: (AIR p.
619, paras 11-12)
"11. ....Hence, in our opinion, it is a sound and well-established
rule of law that the court is concerned with the quality and not
with the quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral testimony in this
context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no
difficulty in coming to its conclusion either way - it may convict
or may acquit on the testimony of a single witness, if it is found
to be above reproach or suspicion of interestedness,
incompetence or subornation. In the second category, the court
equally has no difficulty in coming to its conclusion. It is in the
third category of cases, that the court has to be circumspect and
has to look for corroboration in material particulars by reliable
testimony, direct or circumstantial."
1 (2022) 7 SCC 157
Diksha Rane 905. APEAL 5621998.doc
13. It could thus be seen that this Court has found that witnesses
are of three types viz. (a) wholly reliable; (b) wholly unreliable;
and (c) neither wholly reliable nor wholly unreliable. When the
witness is "wholly reliable", the court should not have any
difficulty inasmuch as conviction or acquittal could be based on
the testimony of such single witness. Equally, if the court finds
that the witness is "wholly unreliable", there would be no
difficulty inasmuch as neither conviction nor acquittal can be
based on the testimony of such witness. It is only in the third
category of witnesses that the court has to be circumspect and
has to look for corroboration in material particulars by reliable
testimony. direct or circumstantial."
8. The Supreme Court then in the case of Kali Ram vs.
State of Himachal Pradesh2 has observed that the onus
is upon the prosecution to prove the different ingredients of
the offence and unless it discharges that onus, the
prosecution cannot succeed. Their Lordships in paragraph
25 observed that the golden thread which runs through the
web of the administration of justice in criminal cases is that
if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other
to his innocence, the view which is favourable to the
accused should be adopted. Further, Their Lordships in
paragraph 26 has observed that it has to be re-emphsised
that if a reasonable doubt arises regarding the guilt of the
accused, the benefit of that cannot be withheld from the
accused. The observations in paragraph 28 assume
2 (1973) 2 SCC 808
Diksha Rane 905. APEAL 5621998.doc
significance which reads thus:-
"28. The fact that there has to be clear evidence of the guilt of
the accused and that in the absence of that it is not possible to
record a finding of his guilt was stressed by this Court in the case
of Shivaji Sahabrao as is clear from the following observations:
"Certainly it is a primary principle that the accused must
be and not merely may by guilty before a court convict
and the mental distinction between "may be" and "must
be" is long and divides vague conjectures from sure
conclusions"."
9. Keeping these principles in mind let me now evaluate
the evidence in the present case. PW-1 in his evidence
stated that he came home at 8.30 p.m. He further stated
that at the relevant time, only PW-1, his younger brother
Ajay and nephew Rishiraj were present. It is then stated that
the appellant armed with a revolver and another accused
armed with a chopper entered the flat and two more
persons also entered the flat. PW-1 was hit on his head by
the appellant with blunt side of the revolver. These four
persons are stated to have entered between 9.40 p.m. to
10.00 p.m. In the cross-examination, PW-1 has stated that
on the date of the incident, he came home at around 11.45
p.m. PW-1 stated that it is incorrect to say that on that day,
he reached home at 9.00 p.m. In this context it would be
Diksha Rane 905. APEAL 5621998.doc
significant to notice the evidence of PW-1's nephew Rishiraj.
PW-2 Rishiraj in his evidence stated that at the relevant
time, his aunt, her children and another uncle by name Ajay
and PW-1 were in the house. This version of PW-2 is at
variance with the version of PW-1 who says that only PW-1,
PW-2 and Ajay were present at the time of incident. PW-1
has categorically stated in evidence that the family
members had gone to another flat.
10. So far as PW-3 is concerned, he says that he came
home at 10.30 p.m. PW-3 mentions that due to him
attacking the appellant with the briefcase, the appellant ran
out of the flat. 4 to 5 persons caught hold of the appellant
near the gate of the compound of the building. PW-3 in his
evidence stated that two more persons fled, one armed with
chopper and another one with knife. Thus, PW-3 makes a
reference to only three accused whereas PW-1 and PW-2
refer to four accused. PW-3 has categorically stated that the
person armed with a chopper was caught by younger
brother in the flat itself. The person who had a knife ran
away. PW-1 and PW-2 say that apart from the appellant and
the person who had a chopper, two accused who were in
Diksha Rane 905. APEAL 5621998.doc
the bedroom fled away. There is, thus, variance in the
version of PW-1, PW-2 with that of PW-3 as to the number of
the accused present in the flat at the time of incident when
all of them were present on the spot and claim to have
witnessed the happenings.
11. It is further pertinent to mention that PW-1 has stated
in his deposition that PW-1 was taken to the police station
and the FIR (Exhibit 10) was thereafter recorded by the
police whereas, it is in the evidence of PW-8 Station House
Officer he say that he recorded the complaint lodged by PW-
1 Deepak Chavan was recorded and read over to the
complainant at the spot. It is, thus, seen that even as
regards place of lodging of the FIR there is material variance
in the testimony of PW-1 and PW-8.
12. It is significant to note that though PW-1 says that he
was assaulted by the appellant on backside of his head with
the blunt side of the revolver, there is no medical evidence
on record to corroborate such assault. Another circumstance
which needs to be noticed is PW-8 has stated in his
evidence that when he reached the spot, he noticed that
two robbers were detained by the family members of PW-1
Diksha Rane 905. APEAL 5621998.doc
with the assistance of the resident of the building i.e. PW-5.
However, PW-3 in his evidence has stated that the appellant
was caught near the gate of the compound of the building.
The accused who was armed with a chopper was caught by
P.W.1's younger brother Ajay in the flat itself. PW-5 Nadeem
who is a resident of the same building says that he tried to
catch hold one of the accused who tried to flee when he
sustained cut on his thumb. PW-5 says he rushed towards
the said flat and saw Ajay and PW-3 holding the man with
the chopper. There is, thus, variance in the version of PW-1
and PW-5.
13. PW-5 states that due to the cut injury he went to the
doctor and treated the injury. He states that after coming
back he saw everything had settled down. PW-5 further
stated that by that time police had arrived and the enquiry
was going on. In this context if the evidence of PW-8 is
perused, in his evidence he has stated that two robbers
were detained by PW-1 and his family members with the
assistance of PW-5 and remaining two robbers succeeded in
running away from the spot. There is, thus, variance in the
evidence of PW-5 and PW-8 as well. I am not inclined to
Diksha Rane 905. APEAL 5621998.doc
place any reliance on the evidence of PW-5 as his deposition
does not inspire confidence. It is important to note that
though the prosecution case is that the residents of the
building had caught hold of the appellant, no independent
witnesses have been examined to support this stand. It is
also pertinent to note that PW-1's brother Ajay who was
present at the time of the incident has not been examined.
Though the examination of PW-1's brother Ajay by itself
cannot be fatal to the prosecution, however, in the facts and
circumstances of the present case, the evidence of the eye
witnesses does not inspire confidence to hold the appellant
guilty of the offence he is convicted. The statements of the
independent witnesses are not recorded.
14. I have also perused the reasoning of the trial Court.
The trial Court while rendering the finding of guilt observed
that there is direct evidence of PW-1, PW-2, PW-3 and PW-5
against all the accused. The trial Court observed that the
evidence of PW-1, PW-2, PW-3 and PW-5 corroborates each
other on the fact that the accused persons were present in
the flat. The trial Court though has noted the discrepancies
in the evidence of PW-1, PW-2, PW-3 and PW-5, was of the
Diksha Rane 905. APEAL 5621998.doc
opinion that the said discrepancies do not falsify the story of
the prosecution about the incident having taken place.
According to me, having regard to the discrepancies in the
evidence of PW-1, PW-2, PW-3 and PW-5 which is pointed
out hereinabove and even as noticed by the trial Court, it is
highly unsafe to hold that the prosecution has proved the
case against the appellant. The entirety of the discussion in
the facts and circumstances of the present case, the nature
of the evidence available coupled with the manner of its
consideration, leaves me in no manner of doubt that the
appellant is entitled to an acquittal on the benefit of doubt.
Accordingly, the appellant is ordered to be acquitted. The
impugned order of conviction is set aside.
15. The appellant is on bail. His bail bond shall stand
cancelled and the fine amount be refunded back to the
appellant.
16. The appeal is disposed of. The Criminal Application is
also disposed of.
17. I express my gratitude for the able assistance
rendered by the advocate- Mr. Veerdhawal Deshmukh who
appeared in the matter appointed through legal aid and has
Diksha Rane 905. APEAL 5621998.doc
taken every possible effort to painstakingly argue the
appeal on behalf of the appellant.
(M. S. KARNIK, J.)
Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 24/01/2024 18:42:09
