Bombay High Court
Shaikh Mohamed Salim Karimullah & ... vs State Of Maharashtra on 28 January, 1998
Equivalent citations: 1998(5)BOMCR750, 1998CRILJ3170
Author: S.S. Parkar
Bench: A.P. Shah, S.S. Parkar
ORDER S.S. Parkar, J.
1. The five appellants convicted by the Additional Sessions Judge, Bombay under section 302 read with section 149 of the Indian Penal Code ("I.P.C." for short) and sentenced to life imprisonment and also to pay a fine of Rs. 500/- in default in suffer R.I. for one month, and also convicted under sections 143, 144, 147 and 148 of the I.P.C. and sentenced to suffer R.I. for one year on each count with direction that all the sentences shall run concurrently, have filed this appeal challenging the order of convictions and sentences passed against them.
2. The prosecution case, briefly stated, is as follows:
The appellant-original accused No. 4 Ramesh Awala and the deceased Fakir Mohammed Sharif Khan Pathan @ Lala Pathan were on inimical terms due to dispute over a plot of land situated at Malad where the deceased had constructed a hut. The said plot of land was bearing Plot No. 33 and known as Colaba plot situate at Malvani, Malad. On 25th March, 1994 at about 4.45 p.m. P.W.-1 to 3 who are nieces and nephew of the deceased were going to purchase bread from Yasmin bakery in Malvani area. At that time P.W.-10 Mrs. Yasmin Khan came running and told them that the deceased was being assaulted near the timber mart owned by Abdulla and Kallu Mamu. P.Ws. 1 to 3 then went to the spot where they saw the deceased lying in pool of blood with injuries all over his body. They also saw the accused persons armed with gupiis, choppers, bamboos and iron bars and on seeing the prosecution witnesses they ran away. They took Fakir Mohammed to Bhagwati Hospital at Borivli in an autorickshaw. On the way the deceased told P.W.s-1 to 3 that accused Nos. 1 to 6 had assaulted him with chopper,+, iron bars and bamboos. Thereafter he became unconscious. When the deceased was taken to Bhagwati Hospital, he was declared dead. At about the same time, appellant Nos. 1 and 2 went to Malvani Police station and reported the matter. They were at that time holding weapons in their hands. On their report crime was registered being C.R. No. 69 of 1994 at the said police station. Investigation was commenced by Police Inspector Mali who was on duty at that time. Initially on the say of appellant Nos. 1 and 2 an offence under section 307, I.P.C. was registered but when P.I. Mali went to Bhagwati Police station and learnt about the death of Fakir Mohammed, the offence was converted under section 302, I.P.C. I.O. P.I. Mali is examined as P.W. 14. He drew inquest panchanama of the dead body at Bhagwati Hospital. He interrogated P.W.s-1 to 3 in the hospital and took the names of the assailants from them. He also drew spot panchanama which was shown to him by the said witnesses. On their arrest the appellants produced blood stained chopper and gupti in the presence of panchas which were seized under panchanama. Statements of witnesses were recorded by the I.O. and the clothes of the accused were also attached under panchanama. The blood stained clothes of the deceased as well as that of the appellants were sent to chemical analyser, so also the weapons being chopper and gupti. Identification parade was held by S.E.M. After completion of the investigation, charge-sheet was filed in the Court of Metropolitan Magistrate who committed the same to the Court of Sessions. Charges were framed against all the accused under sections 143, 144, 147, 148 and 302 read with section 149, I.P.C. and so also under section 37(i)(b) read with section 135 of the Bombay Police Act. The accused pleaded not guilty.
3. On behalf of the prosecution, 14 witnesses were examined including P.W.-1, 2 and 3, the nieces and nephew of the deceased who had taken the deceased to the hospital. The other witnesses examined are P.W. 4 Mohammed Sartaj Shaikh, who is an eyewitness; P.W. 5 Mrs. Akhtari Mohammed Hanif, P.W. 10 Mrs. Yasmin Khan, P.W. 6 Ankleshkumar Gupta and P.W. 7 Abdul Wahab who are panch witnesses and in whose presence chopper and gupti were produced by appellant Nos. 1 and 2. P. W. 9 Mohammed Gafoor is another panch witness for the recovery of bamboo by original accused No. 4 and blood stained shirt and pant. P. W. 10 is another panch in whose presence clothes of appellant Nos. 1 and 2 were attached. P.W. 8 Sitaram Jadhav is the S.E.M. who had held the test identification parade. P.W. 12 P.I. Krishna Chavan and P.W. 14 Mali are the police officers who carried out the investigation and P.W. 13 is Dr. Marathe who had performed the post-mortem-examination on the dead body. The defence of the accused was of total denial.
4. After considering the evidence of the prosecution witnesses, original accused No. 4 was acquitted of all the charges by judgment and order dated 24th December, 1996 delivered by the Additional Sessions Judge, Bombay. The appellants, who are original accused Nos. 1, 2, 3, 5, and 6 were acquitted by the said judgment and order of the offence punishable under section 37(i)(a) read with section 135 of the Bombay Police Act. They were however convicted under section 302 read with section 149, I.P.C. and also under sections 143, 144, 147 and 148, I.P.C. and sentenced to suffer imprisonment as stated above. It is this order of conviction which is under challenge in this appeal filed on behalf of the appellants-accused. For the sake of narration of facts it may be mentioned that there was one more accused being accused No. 7 called Pappu, who was absconding and therefore no trial had taken place as against him.
5. Mr. Raja Bhonsale, learned Counsel appearing on behalf of the appellants firstly contended that there is absolutely no evidence as against appellant Nos. 3 to 5 i.e. original accused Nos. 3, 5 and 6. According to the learned Counsel, their case is on par with original accused No. 4 who was acquitted by the trial Court. According to him there is no evidence of either eyewitness or circumstantial evidence in the form of recovery of blood stained weapons orattach-ment of Wood stained clothes from their bodies to connect the said appellants with the offence with which they were charged. Mr. Bhonsale has taken us through the evidence of the main witnesses i.e., P.Ws. 1 to 4 and P.W. 5 and also the reasoning given by the trial Court and pointed out that there is not an iota of evidence as regards appellant Nos. 3 to 5 except that they were named by P.Ws. 1 to 3 who are young relations of the deceased, two even minors and whose evidence is full of improvements made at the trial. The only evidence against them is that these witnesses say that they had seen these accused persons at the place of offence immediately after the incident and seeing the witnesses they ran away.
6. So far as evidence of P.Ws. 1 to 3 is concerned, according to them, they saw the accused running away and when they were taking the deceased to the hospital, the deceased told them that the appellants had assaulted him. Those accused were identified by the witnesses at the time of trial. From the judgment of the trial Court we find that after considering and believing the evidence against appellant Nos. 1 and 2, the learned Judge proceeded to convict all the appellants by observing that: the circumstances were strong against the appellants, as brought forth through the evidence of P.Ws. 1 to 3. Excepting the said observation, no separate reasoning is given by the learned Judge so far as appellant Nos. 3 to 5 are concerned. We find that except referring to the appellants 3 to 5 by the aforesaid prosecution witnesses, there is no other circumstance which connects the appellants with the offence with which they were charged. We feel that it would be hazardous to confirm the conviction of appellant Nos. 3 to 5 as recorded by the trial Court.
7. So far as appellant Nos. 1 and 2 are concerned, the trial Court has discussed following material against them. They had gone to the police station immediately alter the incident with blood stained weapons in their hands. It was upon their information that the crime was registered at the Malvani Police Station. They told the Police Officer that because the deceased was harassing them oft and on, that they had assaulted him. As this information was given before the deceased was removed to the hospital where he was declared dead, the offence was initially registered under section 307, I.P.C. against them. The evidence led by the prosecution as against appellant Nos. 1 and 2 is as follows:
8. Firstly, there is occular evidence of PWs. 1 to 3, who are nieces and nephew of the deceased. P.W.1 and 2 are aged 19 and 15 years respectively. P.W. 3 Sajid is 15 years old who is the nephew of the deceased. All these three witnesses had been told by P.W. 10 Yasmin that the deceased was being assaulted and therefore they went to the place of offence where they saw the appellants armed with weapons, who on seeing the witnesses, started running away. At the test identification parade none of these witnesses could identify appellant Nos. 1 and 2 though they identified them in the Court at the trial. The second piece of evidence against those appellants is the dying declaration made to these witnesses by the deceased when they were taking the deceased in an autorickshaw to Bhagwati Hospital. In our opinion, the said piece of evidence cannot be relied upon because, according to the Medical Officer Dr. Marathe P.W. 13, who examined the deceased at the hospital and declared him dead, the deceased must have died instantaneously. Thirdly, Mr. Bhonsale has pointed out to us that no question regarding the said oral dying declaration was put to the accused in their statement under section 313, Cr. P.C. The object of putting the prosecution case to the accused in their section 313 examination is to afford an opportunity to the accused to explain all material circumstances which can be used against the accused. The said circumstances not having been put to the accused cannot be used against them. The fourth circumstance used against the appellants is the production of chopper and gupti by them which were blood stained and as per the C.A. report were stained with same blood group 'A' which was found on the clothes of the deceased. So far as this circumstance is concerned, the production of those weapons was not strictly a discovery under section 27 of the Evidence Act. Fifthly, though the production of blood stained chopper and gupti by appellant Nos. 1 and 2 is a relevant circumstance under section 8 of the Evidence Act as canvassed by Mr. Borulkar, learned Additional P.P. on behalf of the State, in view of the judgment of the Supreme Court in the case of Prakash Chand v. State, the said circumstances cannot be made the basis of conviction as against appellant Nos. 1 and 2. Moreover, the report of the C.A. to the effect that the blood on the chopper and gupti was of blood group 'A' was not put to the accused in their explanation under section 313 of the Cr. P.C.The sixth circumstances used against the appellants is that the clothes of appellant Nos. 1 and 2 attached under panchanama were found to be blood stained with blood group 'A'. The said circumstance was also not put to the accused while examining them under section 313 of Cr. P.C. and, therefore, will have to be excluded from consideration against the accused in view of the settled law as discussed below.
9. It is well established that report about the crime by the accused to the police and their confession for having committed the offence is not admissible in evidence, as hit by section 25 of the Evidence Act. After perusal of the entire evidence on record led by the prosecution, we find the following two circumstances i.e production of blood stained weapons by appellant Nos. 1 and 2 bearing Wood group 'A' which is that of the deceased and attachment of the blood stained clothes from their persons having blood group 'A' which is that of the deceased are the strong circumstances which connect appellant Nos. 1 and 2 with the crime in this case that is the murder of deceased Fakir Mohammed. However, these circumstances not having been put to appellant Nos. 1 and 2 in their examination under section 313, Cr. P.C., the same cannot be relied on to base conviction of the appellants. Reference may be made in this behalf to the decision of the Supreme Court in the case of Sharad v. State of Maharashtra, . In para 142 of the judgment, the Supreme Court relying on its earlier decisions observed as follows:
"As these circumstances were not put to the appellant in his statement under section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them..... there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under section 342 or section 313 of the Criminal Procedure Code, the same cannot be used against him."
Similar view was taken by the Supreme Court in the case of Harijan Megha Jesha v. State of Gujarat, . In that case a 'chadi' was found on the personal search of the appellant which was blood stained and according to the report it contained human blood, which circumstance was not put to the accused during his examination under section 342, Cr. P.C. In that context, in para 2 of the judgment the Supreme Court observed as follows:
"unfortunately, as this circumstance (a blood stained chadi found on the person of the accused) was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant, particularly after he had been acquitted by the trial Court."
The said view has been followed by the Apex Court in the recent decision in the case of Ghulam Din Buch v. State of J. & K, . After reproducing in para 52 of the judgment the questions put to the accused and the answers given by him during his examination under section 313 of the Cr. P.C., Supreme Court observed in para 53 as follows:
"The aforesaid does show that Hafeezullah was not asked, in any form, about his having entered into conspiracy with anybody. He was not even asked that the rates at which poles were carried by him were unreasonable or high. As these allegations/circumstances are the crux of the prosecution case insofar as he is concerned, the non-providing of opportunity to him to explain the same has rendered his conviction unsustainable. We, therefore, accept his appeal and order for his acquittal."
In this case it cannot be gainsaid that production of blood stained weapons by appellant Nos. 1 and 2 and the attachment of blood stained clothes from their persons containing, as per the report of the C.A., same blood group as that of the deceased i.e. blood group 'A' are vital circumstances which would connect appellant Nos. 1 and 2 with the murder of Fakir Mohammed. These circumstances having not been put to these appellants in their examination under section 313 shall have to be excluded from consideration against appellant Nos. 1 and 2.
10. Mr. Borulkar, learned Additional. P.P. relied on question No. 20 put to the accused with regard to the production of weapons by the appellants under the panchnama Ex. 15 and contended that the accused could have explained about the production of the weapons which were referred to in the said panchnama. The said question was as follows:
"Q. 20 It has come in the evidence of P.W. 7 Abdul Wahab that he was called to Malvani Police Station as a panch on 25-3-94 and in his presence you produced along with other accd. Malik 2 choppers before the police and they were seized by the police under panchnama vide Ex. 15, after following due procedure, what have you to say about it?"
Firstly, the said question does not even refer to the fact that the weapons produced by the accused were blood stained. Secondly, even panchnama Ex. 15 does not refer to the blood group which was ultimately found on those weapons as per the C.A. report. In our view, the said question cannot be said to have afforded an opportunity to the accused to explain the vital circumstances which would otherwise connect them w the offence of murder. So far as the attachment of the blood stained clothes from person of the accused are concerned, there is absolutely no reference to it in the examination under section 313 of Cr.P.C.
11. Mr. Borulkar thereafter relying on the judgments of the Supreme Court contended that unless the accused show that prejudice was caused to them by not putting the aforesaid circumstances in their examination under section 313, the omission to put such questions would not vitiate the trial nor those circumstances could be excluded from consideration against the accused. He relied on the decision of the Supreme Court in the case of Rama Shankar v. State of West Bengal, . In paragraph 14 of the said judgment the Supreme Court relying on its earlier judgment in Ajmer Singh v. State of Punjab, observed that unless prejudice has been caused or was likely to have been caused to the accused by omitting to put the question to the accused during his examination under section 342, Cr. P.C. would not vitiate the trial. In fact in that case the Supreme Court found that the accused had not been prejudiced because of the failure to examine the accused strictly in compliance with the terms of section 342, Cr.P.C. especially when the plea was not raised in the High Court by their Counsel. However, the observations made by the Supreme Court in paragraph 14 of the judgment with regard to the object of examination of the accused under section 342, Cr. P.C. are relevant:
"The object of the section is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. Questions must be so framed as to give to the accused clear notice of the circumstances relied upon by the prosecution, and must give him an opportunity to render such explanation as he can of that circumstance. Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires to make of the evidence against him. Examination of the accused under section 342 is not intended to be in an idle formality, it has to be carried out in the interest of justice and fairplay to the accused; by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence."
12. Mr. Borulkar then relied on the observations of the Supreme Court in the case of Mathew v. T.C. State, . In para 10 the Supreme Court observed that the petition for appeal does not set out the questions which, according to the accused, should have been asked nor does it indicate the answers that would have been given if they had been asked. However, in that case the Supreme Court further observed that in certain cases, prejudice, or a reasonable likelihood of prejudice, may be so patent on the face of the facts that nothing more is needed.
13. In this case the two circumstances pointed out above are very vital circumstances which would connect appellant Nos. 1 and 2 with the offence alleged to have been committed by them. After excluding the other evidence as discussed above, these are the only two circumstances which would connect appellant Nos. 1 and 2 with the crime in question. These circumstances not having been put at all in any form to the accused, the prejudice is apparent on the face of it, and therefore, the said circumstances will have to be excluded from consideration against appellant Nos. 1 and 2. The appellants cannot be asked to give explanation at this stage, as suggested. The said question was squarely dealt with by the Apex Court in the case of Machander v. Hyderabad State, . While dealing with similar contention the Supreme Court observed in para 20 as follows :
"We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice; limits must be placed on the lengths to which they may go."
14. In the aforesaid circumstances, the conviction of appellant Nos. 1 and 2 also cannot be sustained.
15. We, therefore, allow this appeal and set aside the order of conviction and sentence recorded by the trial against the appellants vide its judgment and order dated 24th December, 1996 in Sessions Case No 879 of 1994.
16. Appeal allowed.