Bombay High Court
Bablu @ Abdul Maheboobsab Sayyed vs The State Of Maharashtra on 24 February, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:5205-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 576 OF 2021
Bablu @ Abdul Maheboobsab Sayyed
Age: 34 years, Occu.: Labour,
R/o Malwati Road, Latur,
Tq. & Dist. Latur ..APPELLANT
VERSUS
State of Maharashtra
Through Police Inspector,
Gandhi Chowk Police Station,
Latur, Tq. & Dist. Latur ..RESPONDENT
....
Mr. P.P. More, Advocate for appellant
Mrs. S.D. Ghayal, Addl.P.P. for respondent - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 13th FEBRUARY, 2025
PRONOUNCED ON : 24th FEBRUARY, 2025
JUDGMENT ( PER : R.G. AVACHAT, J. ) :
1. The challenge in this appeal is to the judgment of conviction and
order of consequential sentence dated 21st September, 2021 passed by the
Court of Additional Sessions Judge-2, Latur ('trial Court') in Sessions Case,
No. 65 of 2019. The appellant was the accused in the said case. He has
been convicted for the offence punishable under Section 302 of the Indian
Penal Code ('I.P.C.'), and therefore, sentenced to suffer imprisonment for life
and to pay fine of Rs.10,000/- with default stipulation.
2. The facts in brief, giving rise to the prosecution case, are as
follows :-
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The appellant is the resident of Latur. Lakhan (deceased) was
one of his friends. Lakhan was debaucherous. He had illicit relationship with
the wife of the appellant. In spite of having been reasoned with, Lakhan
continued to keep the relationship. The appellant, therefore, called him to his
workplace by 03:00 p.m. on 12th April, 2019. Lakhan accordingly went to the
appellant's place. The appellant had already brought acidic liquid in one pot
and splashed it on the person of Lakhan. Their two more friends were there.
Drops of the acidic liquid also fell on their person. Lakhan started running
away. The appellant chased him and assaulted on his back and stomach
with the knife blows. The appellant then fled.
3. Lakhan was rushed to Government Hospital, Latur. On the
following day he was shifted to Vivekanand Hospital. He, however breath his
lat. Lakhan's brother, PW 2 - Prashant lodged the First Information Report
('F.I.R.') (Exh.36) with Gandhi Chowk Police Station, Latur.
4. A crime, vide C.R. No. 163 of 2019 was registered. The appellant
was arrested. Crime scene panchanama (Exh.27) was drawn. The container
of acidic liquid and other articles were seized from the crime scene. Inquest
and autopsy were conducted before registration of crime itself. Clothes on
the person of both, the deceased and the appellant, were seized. The CCTV
footage available at the shop in the vicinity of the crime scene were obtained.
Transcript thereof was prepared in the presence of panchas. Pursuant to the
disclosure statement made by the appellant, a knife came to be recovered.
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All the seized articles were submitted to R.F.S.L., Nanded. Statements of
the persons acquainted with the facts and circumstances of the case were
recorded. Upon completion of investigation, the charge-sheet was filed.
5. The trial Court framed the charge (Exh.11). The appellant pleaded
not guilty. His defence was that the deceased was a womaniser. He had
even illicit relationship with the wife of his real brother (Ram). When the
brother realised the same, his wife committed suicide by setting her ablaze.
Therefore, he (Ram) and his associates committed Lakha's murder.
6. To bring home the charge, prosecution examined twelve
witnesses and produced in evidence certain documents. On appreciation of
the evidence in the case, the trial Court passed the impugned judgment and
order. The appellant was acquitted of the offence under Section 326-A of the
I.P.C. There is no appeal against his acquittal.
7. Learned counsel for the appellant would submit that the F.I.R.
(Exh.35) was lodged twenty-four hours after the incident. The same
suggests brother and relations of the deceased thought over the matter and
falsely implicated the appellant. The F.I.R. (Exh.35) lodged by the real
brother of the deceased was hit by hearsay. The informant was not an eye
witness. Statement of PW 3 - Rajendra, so called eye witness, was recorded
10/12 days after the incident. He was maternal uncle of the deceased.
Being a close relative, he allowed himself to be planted as an eye witness.
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His presence at the crime scene has not been made out from the evidence of
other witnesses. Had he really been at the crime scene and rushed Lakhan
to the hospital, clothes on his person would have been stained with the blood
of Lakhan. Nothing of that sort had happened. Even the acidic liquid did not
fall on his person. He even did not know the topography of the city of Latur.
The same is evident from his cross-examination. On the evidence of another
eye witness, PW 4 - Manoj, learned counsel would submit that his statement
was recorded three days after the incident. The police had suspected his
role in the crime. He was, therefore, detained by the police. His statement,
therefore, could not be termed to be voluntarily made. This witness neither
supported the prosecution nor the defence. His evidence is, therefore, not
reliable. There was no other corroborative evidence to rely on the evidence
of this witness. Another witness, PW 5 - Vinod too turned hostile. Although
PW 6 - Bharat testified that the appellant had purchased acidic liquid from
him, the Investigating Officer did not conducted test identification parade.
Although the CCTV footage were collected and transcript thereof was
prepared and referred to in the evidence by the Investigating Officer, it was in
the nature of secondary evidence. Neither Section 65-B certificate has been
proved, nor the CCTV footage was played before the trial Court. The CCTV
footage was not shown to the eye witnesses during the trial for identification
of the culprit. The CCTV footage, therefore, lost its efficacy.
8. On the question of recovery of knife, learned counsel would
submit that the place wherefrom it was seized, was an open and accessible
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to all. The Investigating Officer had related the panchas that the appellant
was going to take out the knife. The alleged disclosure statement and
recovery of knife pursuant thereto, would therefore, not be relevant under
Section 27 of the Evidence Act. The C.A. reports do not further the
prosecution case. Learned counsel, therefore, urged for allowing the appeal.
9. Learned Add.P.P. would, on the other hand, submit that the
appellant had a strong motive to commit the offence in question. He
adverted our attention to the postmortem report (Exh.56). An injury on the
thigh of the deceased was caused by the appellant with a knife few days
before the incident. The said incident had specifically been admitted in other
words by the appellant. The evidence of the informant, thus gets reinforced.
On the question of delay in lodging of the F.I.R., learned Addl.P.P. would
submit that the relations were engaged in securing best of the treatment to
Lakhan. He was shifted to two hospitals. It was only after his demise the
F.I.R. came to be lodged, promptly. PW 3 - Rajendra was an eye witness to
the incident. Although his statement was recorded 10/12 days after the
incident, this witness had gone to his village on the evening of the fateful day.
No questions were put to the Investigating Officer in that regard. As such,
the Investigating Officer lost the opportunity to explain the delay in recording
of his statement. Learned Addl.P.P. then strongly relied on the evidence of
PW 4 - Manoj. Although this witness had faultered in some respect, his
evidence has been corroborated by his own injury certificate (Exh.64) which
indicates that drops of the acidic liquid, splashed by the appellant, fell on his
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person. He suffered burns thereby. Same suggests PW 4 - Manoj was very
much present at the crime scene. The appellant admitted him to have rushed
Lakhan to the hospital. Learned Addl.P.P. then adverted our attention to the
C.A. report regarding the articles seized from the crime scene revealing
absence of the acidic substance thereon. He would further submit that
pursuant to the disclosure statement, a knife came to be seized at the behest
of the appellant. Then he would further submit that the CCTV footage in the
form of its transcript, prepared in the presence of the panchas, was produced
in evidence. Reading thereof indicates the appellant was seen assaulting the
deceased. Learned Addl.P.P., therefore, urged for dismissal of the appellant.
10. Considered the submissions advanced. Perused the judgment
impugned herein and the evidence on record. Let us turn thereto and
appreciate the same.
11. Admittedly, Lakhan died of hemorrhagic shock due to stab
injuries. The postmortem report (Exh.56) proved by the evidence of PW 8 -
Dr. Rishikesh indicates Lakhan to have had suffered ten injuries. Injury No.9
was somewhat old. The fact that Lakhan met with homicidal death was not
in dispute. The question is whether the appellant is the author of the crime.
12. PW 1 - Vijaykumar is a witness to the crime scene panchanama
(Exh.27). The crime spot is in the Scrap Market at Latur. Admittedly, in that
vicinity the appellant had his workplace. Exhibit 30 is the inquest, while
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Exhibit 31 is the panchanama regarding seizure of the clothes of the
deceased.
13. PW 2 - Prashant was the younger brother of deceased - Lakhan.
He testified that Lakhan was a Manager with Maharashtra-Andhra Transport
Company. His office was located at the Scrap Market, at Latur. The
appellant was his friend. Five days prior to the incident, the appellant had
assaulted Lakhan with a sickle. Lakhan thereby had suffered injury to his
thigh. The reason for assault was the appellant suspecting Lakhan to have
extra-marital relationship with his wife. He further testified that a day after
the said incident, he alongwith his mother and other relations held a meeting
with the appellant to reason with him. The appellant had assured that he will
not do Lakhan anything.
14. It was suggested to him in the cross-examination that there was
scuffle between the appellant and the deceased 4-5 days before the incident.
It was further suggested that Lakhan had suffered injury in the said scuffle.
As such, the appellant impliedly admitted the incident of assault by the
appellant on the deceased 4-5 days prior to the incident in question. The
same is reinforced by injury no.9 noted in the postmortem report (Exh.56).
Description of the said injury is "5 stitched healing wound on anterio-lateral
aspect of lower 1/3 of left thigh, horizontally placed, 6 cm in length and is 9
cm above knee joint. Well approximated, no oozing and no gaping, blackish
in colour".
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15. PW 2 - Prashant was not at or around the crime scene. He was
informed by PW 3 - Rajendra. He, therefore, rushed to Government
Hospital, Latur. On the next day i.e. 13 th April, 2019, he shifted Lakhan to
Vivekanand Hospital, Latur. However, he died by 10:45 a.m. that day. He
thereafter lodged the F.I.R. (Exh.36).
16. Since this witness is not an eye witness to the crime, his evidence
only establishes the fact that the appellant and the deceased were friends.
The appellant would suspect the deceased to have extra-marital relationship
with his wife. Over the said issue, quarrel had ensued between the two. The
appellant had even assaulted Lakhan with a knife five days before the
incident. In our view, since both were friends and worked out a consensus in
meeting, no police report of that incident was lodged.
17. PW 3 - Rajendra was the maternal uncle of the deceased. He
claimed to have had come to Latur from Killari on the fateful day and
accompanied the deceased to the place of the appellant. He testified that he
remained by the side of one stationary auto-rickshaw. The appellant
splashed acidic liquid on the person of Lakhan. Sensing danger, Lakhan
started running away. The appellant chased him and stabbed with knife. He
and two others rushed Lakhan to Government Hospital, Latur. He then
informed the matter to PW 2 - Prashant (informant) on cell phone.
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18. Presence of this witness at the crime scene has been seriously
doubted by the defence. Those, who were admittedly there viz. PW 4 -
Manoj and Sameer, did not vouch for the presence of this witness. Lakhan
had suffered grievous bleeding injuries. This witness claimed to have rushed
him to the hospital in a small tempo (NksVk gkFkh). Still clothes on his person did
not get stained with the blood of the deceased. To top it, this witness
returned to his village in the evening without informing the matter to police.
The Investigating Officer recorded his statement 10/12 days after the
incident. We, therefore, do not propose to rely on the evidence of this
witness.
19. The material witness in this case is PW 4 - Manoj. He tried to run
with hare and hunt with the hound. He testified that the incident took place
by 03:00 p.m. on 12th April, 2019 at Scrap Market, Latur. Lakhan had called
him to Royal Garment. Shaikh Sameer was with him besides Gausuddin
Shaikh. There was quarrel between the appellant and Lakhan. The appellant
splashed water like liquid on the person of Lakhan. Lakhan thereby started
running. He was followed by the appellant and Sameer. They crossed the
road. Lakhan suffered injury and he took him to the hospital. He further
testified that drops of the said liquid also fell on his person. He, however
denied that the appellant was armed with a knife.
Learned A.P.P., therefore, cross-examined him. He admitted that
when Lakhan was chased, Bablu (appellant) was armed with a knife. He
himself suffered inflammation due to fall of the liquid on his person. When he
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reached near Rehamat Steel, crowed had gathered. Lakhan was lying in a
pool of blood. He denied that Lakhan to have told him of having assaulted by
the appellant. He admitted to have rushed Lakhan to the hospital in his
vehicle.
20. During cross-examination by the defence advocate, he testified to
have been illiterate. According to him, police had called him to the police
station repeatedly for 2-3 days only for the reason that he had rushed the
injured to the hospital without informing them. He admitted that Lakhan used
to sit in the office as Manager and his (PW 4 - Manoj) job was to deliver
goods. He admitted that on the fateful day he had gone outside in
connection with delivery of goods. In the crowd, Sameer was the known
person. A suggestion admitting him and Sameer to have rushed Lakhan to
the hospital was put to him. He further admitted that police had read over
him the statement while he was to give statement before the Judicial
Magistrate. According to him, the deceased used to watch pornography on
cell phone.
21. In our view, the fate of this case is based on the evidence of this
witness. His presence at the crime scene and then taking the injured to the
hospital has been proved. He also testified that the appellant splashed acidic
liquid on the person of Lakhan. Some drops thereof also fell on his person.
Presence of this witness at the crime scene gets reinforced by his injury
certificate (Exh.64). PW 9 - Dr. Anuradha had examined him and Sammer
on 14th April, 2019. Sameer's injury certificate is at Exhibit 65. These injury
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certificates indicate both of them to have suffered burn injuries /
inflammation. The nature of injuries were simple. The said medical officer
was suggested in his cross-examination that the injuries on the person of
both of them were not totally healed when she examined them. The same
reinforces the case of the prosecution that the burns suffered by them were
of recent past and that too by the time the appellant assaulted Lakhan.
22. True, this witness testified that the appellant had called him to the
police station 2-3 times. No such questions were put to the investigating
officer. This witness was partially won over. The record indicates that his
police statement was recorded immediately on the following day of the
incident, necessarily on the day on which the F.I.R. was lodged.
23. Testimony of this witness proves that a quarrel took place
between the appellant and the deceased. The appellant splashed acidic
liquid on the person of Lakhan. Some drops thereof fell on the person of him
and Sameer. Both, he (PW 4 - Manoj) and Sameer suffered burns thereby.
The appellant was armed with a knife. Admittedly, 4-5 days prior, a scuffle
had occurred between the appellant and the deceased. There is consistent
evidence as regards the appellant to have grudge against the deceased
since he felt the deceased to have extra marital affair with his wife. He was
seen armed with a knife (PW 4 - Manoj). On proof of these facts, an
inescapable conclusion is drawn that the appellant, and none else, assaulted
the deceased with the knife blows and immediately fled.
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24. True, there is delay in lodging of the F.I.R. We, however do not
find the delay to have been misused to implicate the appellant sparing the
real culprit. No sooner PW 2 - Prashant informed of the incident, he rushed
to the hospital. Since Lakhan's condition was critical, he shifted him to
Vivekanand Hospital on the following morning, however Lakhan died by
10:45 a.m. same day. Then postmortem, etc. followed. The case of the
appellant that the real brother (Ram) of the deceased had killed Lakhan is a
far fetched defence. The deceased was said to be debaucherous. It has
come on record that Ram was the real brother of Lakhan. Lakhan had
brought Ram to Latur alongwith his wife. They were staying in one premises.
Ram's wife committed suicide by setting ablaze. There is, however nothing
to indicate that she committed such act after Ram to have seen her in
compromising position with Lakhan. The said alleged incident took place
way back in 2011, however present incident took place eight years
thereafter.
25. So far as CCTV footage is concerned, we discard the same since
it was not played before the trial Court, nor the eye witnesses were called
upon to identify therefrom the appellant to have been seen assaulting
Lakhan. We also do not propose to rely on the evidence of PW 6 - Bharat,
the vendor of the acidic liquid, since no test identification parade was held to
identify the appellant as the person to have been to his shop to buy such
liquid.
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26. No particular number of witnesses are required to prove a fact.
We find the evidence of PW 4 - Manoj to be cogent and reliable, although he
was partially won over. His presence at the crime scene has been proved by
his injury certificate (Exh.64), since the acidic liquid splashed by the appellant
on the person of Lakhan and drops thereof fell on the person of him and
Sameer as well.
27. In view of above, we find the prosecution to have proved the
charge. In the result, appeal fails. Same stands dismissed accordingly.
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
