Bombay High Court
Shaikh Latif Sk. Nabi And Anr vs The State Of Mah on 23 March, 2016
Author: A.V. Nirgude
Bench: A.V.Nirgude
(1) crap675.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 675 OF 2012
1. Shaikh Latif s/o. Sk. Nabi .. Appellants
Age. 20 years, Occ. Labourer, [original
R/o. Kranti Nagar, Parbhani, accused]
Dist. Parbhani.
2. Shaikh Anwar @ Anna s/o. Sk. Chand
Age. 22 years, Occ. Labourer,
R/o. As above.
(At present in Jail Custody)
Versus
The State of Maharashtra .. Respondent
Through Police Station Officer,
Kotwali Police Station, Parbhani,
Dist. Parbhani.
Mr. P.S. Paranjape, Advocate for the appellants.
Mr. M.M. Nerlikar, APP for respondent/State.
CORAM : A.V.NIRGUDE &
INDIRA K. JAIN, JJ.
DATED : 23.03.2016
ORAL JUDGMENT: [PER : A.V. NIRGUDE,J.] :-
1. This appeal challenges judgment and order dated 08.11.2012 passed by the learned Sessions Judge, Parbhani, in Sessions Case No. 172 of 2011 holding the appellants guilty of offence punishable under section 302 ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (2) crap675.12 read with section 34 of the Indian Penal Code. He sentenced them to suffer life imprisonment and to pay fine of Rs.2000/- with a default clause. The parties to the appeal would be referred to as per their original status before the Trial Court.
2. The prosecution case before the Trial Court in short can be stated as under :-
. On 15.08.2011 the accused went to the house of deceased at about 5.30 p.m. to call him for game of cricket. On cricket ground accused No.1-Sk. Latif stabbed the deceased, whereas accused no.2-Sk. Anwar held his hands. Number of persons saw this incident. The accused left the spot. The injured fell down. He was immediately taken to the hospital, where he was declared dead. On the complaint of P.W.1-Sattarkhan, who happened to be father of the deceased, the offence was registered on same day at about 7.50 p.m. During the investigation, the accused were arrested. Their clothes were seized, which were found to be stained with blood of the deceased. Accused No.1-Sk. Latif also discovered knife utilized in the attack.
3. The prosecution case depended on in all 12 witnesses out of which P.W.1-Sattarkhan, P.W.2-Shaikh Maheboob, P.W.3-Pramod, P.W.5-Tabrejkhan and P.W.6- ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 :::
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Badrunissa are important. P.W.1-Sattarkhan and P.W.2-
Shaikh Maheboob stated that while they were taking the deceased to hospital, he disclosed names of the accused being his assailants. On the other hand P.W.3-Pramod, P.W.5-Tabrejkhan and P.W.6-Badrunissa asserted that they saw the incident. P.W.12-Ashok is the Investigating Officer, who stated that at the instance of accused No.1, he recovered murder weapon at the instance of accused No.1-Sk. Latif from a secluded place. This weapon was found stained with blood of blood group of the deceased. Even clothes of the accused found stained with blood group "A" which was of the deceased.
4. Learned Counsel for the appellants asserted that entire evidence that was brought before the Trial Court was untrustworthy and should have been discarded. He pointed out that the prosecution witnesses who stated that they witnessed the incident are tutored and got up witnesses. On the other hand, he asserted that having regard to the nature of injuries sustained by the victim, he was not in a position to make dying declaration in presence of P.W.1 and 2.
5. The first question that required to be decided is - whether testimony of eye witnesses is trustworthy? In order to appreciate depositions, we must first pay ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (4) crap675.12 attention to deposition of P.W.1-Sattarkhan. He stated that the accused were friends of his son Juber (deceased). The accused used to come to his house. Two months prior to the incident, accused No.1-Sk. Latif had taken Rs.3000/- from Juber, but did not return the amount even though Juber demanded it. On this count, prior to the incident there occurred quarrel between accused No.1 and deceased Juber. One Maheboob pacified the quarrel.
On 15.08.2011 the accused came to his house. They asked deceased Juber to accompany them for playing cricket. The accused then took deceased Juber with them to the playground. This happened at about 5=30 p.m. After half an hour, Maheboob came to him and told that accused had assaulted his son Juber by means of knife. So he and Maheboob went to the playground on motor-cycle. This ground was situated in front of Sumantai School. There he saw Juber lying in pool of blood and he and Maheboob took Juber to hospital on motor-cycle. On their way to hospital, Juber told him that the accused assaulted him by means of knife over money dispute. Juber became unconscious. On reaching to hospital, Doctor declared him dead. Thereafter, he lodged the complaint.
6. The prosecution also examined Maheboob as P.W.2. He stated that on 15.08.2011 at about 6.00 p.m. while he was standing on road in Kranti Nagar area, one Pramod ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (5) crap675.12 came there and told him that Juber was assaulted by means of knife on playground near Sumantai School. He then went on motor-cycle to P.W.1-Sattar Khan's house and told him what he had heard from Pramod. He took P.W.1- Sattarkhan to a playground near the school, where he saw Juber lying on the ground and the blood was oozing from the injury on the chest. They then lifted Juber and took him to civil hospital on motor-cycle. On the way, Juber told his father which he heard that the accused had assaulted him by knife over money dispute. Medical Officer declared Juber dead.
7. Both P.W.1-Sattarkhan and P.W.2-Maheboob are not eye witnesses. They have no occasion to go to the playground to witness the incident.
8. P.W.3 is Pramod. He stated that he is a businessman and uses his auto-rickshaw for it. Juber was his friend. On 15.08.2011 at about 5.00 p.m. he and Juber were standing near one Shahrukh's shop. He asked Juber to go home. His house was situated close to the place where they were standing. Thereafter, accused came to Shahrukh's shop. From there they went to Juber's house. They and Juber then went towards Sumantai school playground for playing cricket. He collected money from Shahrukh and started going towards the playground. He ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (6) crap675.12 saw hot exchange of words taking place between accused No.1-Sk. Latif and Juber. Accused No.1-Sk. Latif abused Juber, took out knife from his pant pocket and delivered stabs on Juber's chest and on both hands. Accused No.2 held Juber's hands while accused No.1 Sk.Latif was stabbing him Juber sustained bleeding injury and collapsed. He rushed to Kranti Nagar. He found Maheboob there. He told Maheboob that accused assaulted Juber.
Maheboob then went P.W.1- Sattarkhan's house on his motor-cycle. P.W.1-Sattarkhan and P.W.2-Maheboob then went to the spot where the incident had taken place.
9. This witness is an eye-witness. He also indicated that he knew the accused since prior to the incident. Had he been there near Sharukh's shop, he could have walked up to the playground where the incident took place. He was thus in a position to see the incident. But we are not inclined to believe him. We have mentioned about gist of his deposition, but during cross examination it was found that the narration about his standing near the shop of the Sharukh meeting Juber and accused etc. were statements made by him for the first time when he came to the Court. All these details were not disclosed to police at the time of recording of his statement. He thus exaggerated his version in order to make it more believable. The only part of his deposition ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (7) crap675.12 which is not exaggerated is that he saw that accused No.1-Sk. Latif was stabbing and accused No.2-Sk.Anwar was holding hands of Juber. This part of the deposition appears to us a tutored version. Assuming that this witness saw the incident, what ought to have been his natural reaction? He could have rushed towards victim Juber either to help him or to stop the accused launching their assault. He at least could have raised alarm and he could have rushed to Juber's house which was nearby.
He had auto-rickshaw. He could have utilized this auto- rickshaw to carry Juber to hospital immediately.
Instead, he said, he went to Kranti Nagar and informed Maheboob about the incident. This act on his part does not inspire confidence.
10. P.W.5-Tabrejkhan and P.W.6-Badrunissa are worse than P.W.3-Pramod. P.W.5-Tabrejkhan at the relevant time went to the scene of occurrence to call his younger brother and to escort him home for taking meals. At that time he saw the incident. Again this witness also mechanically described the incident that accused No.1 Sk. Latif stabbed Juber while accused No.2 Sk. Anwar held his hands. He tried to catch hold of accused No.1-Sk. Latif while he was running away. He said that accused No.1-Sk. Latif gave jerk and heft him. While going away he said accused No.1 threw away the knife. In the ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (8) crap675.12 meantime P.W.1-Sattar Khan and P.W.2-Maheboob reached the spot and they carried Juber to hospital. This witness had came there to take away his younger brother who had probably gone to playground for playing cricket or some other game. Having seen such ghastly incident, the natural reaction of this witness was to search his younger brother and take him home. He did not say that it happened. As said above he described the incident in two sentences. He did not state that before the incident abuses and altercation happened between the accused and deceased Juber. His version that while running away accused No.1 threw away his knife on the ground is an utter lie even by the standard of the prosecution case. The murder weapon was not found on the playground but later on the roof of a temple. This witness thus is not trustworthy and we reject his deposition.
11. P.W.6-Badrunissa is a woman aged about 40 years.
She said that on 15.08.2011 at about 6:00 to 6:15 p.m. she went to playground of Sumantai School for calling her son (her son had probably gone to playground for playing games). She said - again mechanically - that accused No.2-Sk. Anwar held the hands of deceased Juber and accused No.1-Sk. Latif stabbed him. She again did not give further details of the incident. In the cross- examination she admitted that there were 10 to 15 people ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: (9) crap675.12 gathered around the incident. This witness again did not state as to what happened to her son who had gone to the playground. The deposition of this witness is untrustworthy and we reject the same.
12. The eye-witness account of P.W.3-Pramod, P.W.5 Tabrejkhan and P.W.6-Badrunissa according to us is a tutored version of the incident. The Investigating Officer and the prosecution could have placed reliance on the natural witnesses, such as the boys who were playing on the ground at the relevant time and who could have described the incident more coherently. This failure on the part of the prosecution and the Investigating Officer appears to us fatal to the prosecution case.
13. We are not inclined even to believe deposition of P.W.1-Sattarkhan and P.W.2-Maheboob when they stated that deceased Juber made a dying declaration while he was being taken to hospital on motor-cycle. The Medical Officer opined that the nature of injury suffered by the deceased was so severe that he might have died within few seconds.
14. There are two more circumstances in support of the prosecution case. First is recovery panchanama recorded under Section 27 of the Evidence Act about ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: ( 10 ) crap675.12 accused No.1's discovery of murder weapon. This incident is also described in a very untrustworthy manner. The prosecution case indicated that the murder weapon was concealed on a roof of a temple. Accused No.1-Sk. Latif indicated this place in presence of panchas. Admittedly the roof of the temple was so high that accused No.1 Sk. Latif, Panch and others were required to climb roof of police vehicle and from there they went to the roof of temple. The panchanama, however, did not mention this exercise being undertaken at the time of the panchanama. We are, therefore, not inclined to give importance to this piece of evidence.
15. The last circumstance against the accused is the fact that they admitted that their clothes were stained with blood which could be that of the deceased. After arrest, clothes from the persons of the accused were taken in-charge and were sent for chemical analysis.
As said above the clothes were found stained with blood but the accused tried to explain this circumstance against them saying that after the incident they too went to see Juber and for saving him and at that time their clothes got stained with blood. The explanation given by the accused is utterly untrustworthy and we reject it. We hold that their clothes were found stained with blood. Bloodstained clothes were recovered from the persons of ::: Uploaded on - 31/03/2016 ::: Downloaded on - 31/07/2016 10:09:26 ::: ( 11 ) crap675.12 the accused immediately on 16.08.2011. But in our view this solitary circumstance in absence of other material is not sufficient for convicting the appellants/ accused. The appeal should therefore succeed. Hence the Criminal Appeal is allowed and the following order is passed:-
i. The judgment and order passed in Sessions Trial No.172 of 2011 on 08.11.2012 by Sessions Judge, Parbhani is quashed and set aside.
ii. The appellants/accused are acquitted from the offences with which they were charged.
iii. The appellants be released forthwith, if not required in any other case.
iv. Fine amount, if paid, be refunded to the appellants/accused.
[INDIRA K. JAIN,J.] [A.V.NIRGUDE,J.]
snk/2016/MAR16/crap675.12
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