Bombay High Court
Samsher Nawazali @ Abbas Niwas Shah vs The State Of Maharashtra on 2 December, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:47931-DB
J-APeal-887-2017.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.887 OF 2017
Samsher Nawazali @ Abbas Niwas Shah ] .. Appellant
vs.
State of Maharashtra ] .. Respondent
Mr.Sandeep Karnik for the Appellant.
Mr.J.P. Yagnik, APP for the State.
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ
RESERVED ON : 22nd AUGUST, 2024
PRONOUNCED ON: 02nd DECEMBER, 2024
JUDGMENT (PER BHARATI DANGRE, J) :
1. Being aggrieved by the Judgment passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No.183/2013 on 16/05/2016, thereby convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code and on being sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/-, in default to undergo imprisonment for six months and being further aggrieved by the conviction under Section 3 and 25 of the Arms Act, the Appellant has filed the present Appeal under Section 374 of the Criminal Procedure Code, 1973.
On the Appeal being filed, it was admitted on 14/11/2017. The Interim Application filed by the Appellant seeking his release on bail was dismissed as withdrawn by this Court on 25/01/2023, Digitally signed by RAJSHREE RAJSHREE KISHOR MORE directing that the Appeal shall be segregated under the caption KISHOR Date:
MORE 2024.12.10
17:22:31
+0530
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"Accused is in jail".
Upon the Record and Proceedings with Paper book having been received on 04/06/2018, the Appeal is heard finally.
2. We have heard Advocate Mr.Sandeep Karnik, for the Appellant and Mr.J.P. Yagnik, APP for the State.
Before we examine the legality and correctness of the finding recorded in the impugned Judgment and the sustainability of the sentence imposed upon the Appellant, we would set out the case of the prosecution in brief :-
i. One Baliram Chavan, posted as Station House Officer on night duty lodged the First Information Report, stating that on 24/10/2010 at around 8.15 p.m., one lady approached him and told him that one injured woman is brought by her in the taxi and when he approached the taxi, he saw a woman in the rear seat in injured condition and he immediately took note of the same in the station diary.
He accompanied the lady, who had brought the injured in the taxi. He was informed that the injured lady is Shamina Khan and her parents were residing in slum area situated near Reay Road Bridge and, therefore, while the taxi was enroute to J.J. Hospital, it was stopped in front of the house of her parents and thereafter, her mother also boarded the taxi and accompanied them.
ii. On being taken to the casualty ward in J.J. Hospital, the Doctor on examination declared her to be dead at 8.45 hours on account of a gun shot injury in her head.
iii. The Appellant Samsher Nawazali alias Abbas Niwas Shah came to be arrested on 03/11/2012 as he was described to be the assailant, by the deceased Shamina Khan to her mother, who had stated that at about 7.30 p.m. near Saibaba Temple, Abbas Bihari had 2/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc shot her in head and thereafter she was dead.
iv. Upon his arrest, the investigation was carried out and the incriminating material collected by the Investigating Officer was compiled in the charge-sheet, which also included the report of the Chemical Analysis as well as the Autopsy Report of the deceased, which had opined the cause of death on account of firearm injury.
v. The accused was charged in Sessions Case No.183/2013 as below :
"Firstly : That you above accused on 14.10.2012, at about 19.30 hours near Saibaba Mandir, plot no.308, Sewree, Mumbai, committed murder intentionally or knowingly causing death of Smt.Shamina Kalim Khan, and thereby committed an offencen punishable under Section 302 of Indian Penal Code within the cognizance of this court.
Secondly : That on the same date, time and place you found in possession of fire arms, in contravention of provision of Arms Act and thereby committed an offence punishable under Section 3 r/w 25 of the Arms Act within the cognizance of this court."
vi. In support of the case, the prosecution led its case before the Sessions Court through 14 witnesses which included the informant being examined as PW 1 Baliram Chavan, whereas, the mother of the deceased being examined as PW 2 Rubina Mulla. The two minor daughters of the deceased were examined as PW 3 and PW 4 respectively, whereas the neighbour Chanda @ Malika Shaikh was examined as PW 5.
The doctor who conducted postmortem on the body of the deceased was examined as PW 6 Dr.Sadanand Bhise. PW 8 Munir Shaikh is the Panch on the disclosure and seizure Panchanama under Section 27 of the Indian Evidence Act, whereas, Ballistic Expert is examined as PW 9 Vasudeo Patil. One Shakil Shaikh, who according to the prosecution had produced empty cartridge from the spot of incident was examined as PW 12 and PW 13 Hanif Shaikh as panch 3/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc witness as regards seizure of the said cartridge. PW 10 PSI Amit Bhosale and PW 11 PI Nandkumar Shirke are the Investigating Officers.
vii. Since the accused pleaded not guilty, the prosecution led its case through its witnesses who were cross-examined by the counsel for the accused.
The evidence brought on record through the prosecution witnesses was put to the accused when his statement under Section 313 of the Cr.P.C. came to be recorded, by giving a clear understanding that he is not bound to make any statement nor bound to answer any questions, that may be put to him by the Court.
He remained completely non-committed on the questions posed to him, but when he was specifically asked whether he wanted to say anything more, he responded by saying that the husband of the deceased was suspecting a love affair between him and the deceased and, therefore, he has been falsely implicated in the case.
viii. On appreciating the evidence brought before the Court through the testimony of the witnesses alongwith the necessary documentary evidence, the Additional Sessions Judge, recorded finding of guilt against him and sentenced him accordingly.
3. The learned counsel Mr. Sandeep Karnik in support of the Appellant has described the impugned Judgment as perverse and unsustainable, since according to him the learned Judge has failed to appreciate the evidence in its proper perspective. Since the case of the prosecution was based on circumstantial evidence, according to Mr. Karnik, it was imperative for the prosecution to establish its case beyond reasonable doubt, may be through the chain of circumstances. By submitting that there is no eye witness to the incident, by referring 4/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc to the testimony of the two child witnesses, he has urged before us that the possibility of tutoring the said witnesses was high, but the learned Judge failed to consider the said aspect. In addition, according to him, the Sessions Judge has grossly erred in not considering the legal position as to Dying Declaration and had chosen to give undue importance to the recovery of the weapon at the instance of the Appellant.
It is the specific contention of Mr. Karnik that the recovery of the gun by executing the Panchanama under Section 27 of the Evidence Act, suffers from gross lacunae as neither the Panch nor the Investigating Officer has deposed about the exact language used by the accused and according to him the disclosure was made only in respect of gun, but what was recovered was a gun and the cartridges and, therefore, it is in clear violation of Section 27 of the Indian Evidence Act.
Apart from this, since there is discrepancy from the actual place from which the gun and cartridges are recovered and there is discrepancy in the actual panchanama and the evidence of the Panch witness, the recovery of weapon and the cartridges cannot be relied upon at all, is the submission of Mr.Karnik.
In addition, according to him, the Ballistic Report is based on the cartridges which have been recovered and since its recovery itself is doubtful, report based on such recovery is not admissible, is his specific submission. In addition, inviting our attention to the evidence as regards recovery of cap at the instance of PW 14, which in any case is alleged to have been recovered from the spot after 15 days, the witness has not supported the case of the prosecution, and, therefore, the Ballistic Expert report according to Mr. Karnik can not be a sole ground for sustaining the conviction as it was unsafe to rely upon the 5/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc said report as recovery itself was doubtful. In addition, it is the submission of Mr.Karnik that the Ballistic Expert Report has failed to mention the exact characteristic which were found to be similar and it do not refer to any specific identification/mark based on the test fired bullet with the bullet recovered from the skull and in absence of the similarities, the evidence could not have been considered by the learned Judge.
Since the case of the prosecution is based on circumstantial evidence and since the prosecution has failed to conclusively establish the guilt of the accused by cogent and reliable evidence by ruling out possibility of anybody else being present with the deceased when she was shot and with the prosecution failing to examine the husband of the deceased, according to Mr.Karnik, the doubt and loopholes created in the prosecution case entitle the Appellant to enjoy its benefit, and, therefore, he seek reversal of the finding of conviction and sentence imposed upon the Appellant.
4. Per contra, the learned APP Mr.Yagnik has supported the impugned Judgment and submitted that the prosecution was successful in establishing the chain of circumstances through the witnesses and in particular the two minor daughters of the deceased, in addition, the recovery of the weapon of offence at the instance of the accused by recording a Panchanama under Section 27 of the Indian Evidence Act, which has also led to the cartridges which were referred to the Ballistic Expert and coupled with the bullet that was seized, according to him, the prosecution has established the chain of circumstances.
The clear evidence from PW 9, to the effect that the Pistol (Exhibit 1) was in working condition and it was used for firing prior to its receipt in the laboratory alongwith the finding that the randomly 6/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc selected 7.65 mm pistol cartridge (Exhibit 2) was successfully test fired through the country-made pistol and one fired empty cartridge (Exhibit 3) with the characteristic features of the firing pin impression on the empty cartridge (Exhibit 3) has clearly lent credence to the case of prosecution. In addition, the opinion of PW 9 about the deformed copperjacketed bullet to the effect that it was fired from the country- made pistol, has also assisted the learned Judge in forming the chain of circumstances, is the specific submission of Mr.Yagnik.
In addition, according to him, the oral Dying Declaration coupled with the last seen theory, coupled with the recovery of the fire arm at the instance of the accused and the opinion of the Ballistic Expert has sealed the fate of the accused and through the aforesaid evidence, the prosecution has duly proved its case that the accused had committed the murder of one helpless lady and in absence of any perversity being found in the said evidence, according to Mr. Yagnik, the scope for interference by this Court is minimal.
5. The Appellant is accused of intentionally or knowingly causing the death of Shamina Khan with the firearm which was found in his possession.
Chanda @ Malika Ali Mohd. Shaikh, examined as PW 5 is the first person who saw Shamina in injured condition, as according to her in the evening time of 24/10/2012, Shamina had worn her chappal to the washroom and she set out in search of Shamina. While she was waiting on the road near her house, younger daughter of Shamina approached her and informed that someone had assaulted her mother and she was lying near the temple.
Chanda accompanied by the residents, reached the place, thinking that some Bengali woman must have assaulted her. She put 7/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc her in the taxi in order to take her to the hospital. She asked the taxi to be driven to the Police Station and on the instructions of the police to take her to J.J. Hospital, while driving to the Hospital, she reached the house of her mother and informed her that some woman had assaulted her daughter. Thereafter, according to PW 5, Shamina's mother (PW 2) took her to J.J. Hospital.
6. The aforesaid version is corroborated by PW 3 Meserza Khan, the elder daughter of Shamina, aged 9 years, studying in 3rd Standard. She deposed before the Court that on the date of the incident, when she returned from the school, Bihari uncle had come to the house at around 6.00 p.m. She identified the person sitting in the dock to be Bihari. According to PW 3, Abbas Bihari called her mother near the bathroom where she went alongwith her younger sister Alimoon.
PW 4 Alim Khan, the younger daughter also identified the accused as Bihari Chacha in the Court and while narrating the incident of 24/10/2012, she stated that when her mother was taking her to bathroom, which is situated near Saibaba Temple, at that time, Bihari Chacha came. According to PW 4 he gave her Rs.50/- note and asked her to bring four square cigarette. At that time, her mother had gone in the bathroom and she was standing outside, and Bihari Chacha was also standing near Saibaba Temple. Thereafter, she brought four square cigarette as told to her and when she returned she saw her mother lying near Saibaba Temple with blood coming out from her head.
PW 4 also deposed that she saw the gun lying there and she called Chanda Khala who came there and shifted her mother to the hospital.
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7. From conjoint reading of the evidence of these three witnesses, PW 3 and PW 4 have spoken about the presence of the accused in the company of the deceased, but when the testimony of these two witnesses is carefully examined, we have noted gross inconsistency.
PW 3, the elder daughter had given her school timing as between 9.00 a.m. to 4.00 p.m. and according to her, she was dropped and picked up from the school by her mother. Even on 24/10/2012, her mother dropped her to the school and brought her back. After she came home and studied, Bihari visited her house at 6.00 p.m and called her mother near the bathroom.
According to PW 4, the younger daughter, Bihari Chacha came when she was being taken by her mother to the bathroom near Saibaba Temple and when her mother went inside the bathroom, he kept waiting outside. When she came back after being sent away by Bihar Chacha to buy four square cigarette, she saw her mother in an injured condition.
The elder daughter i.e. PW 3 has categorically deposed as under :-
" On 24/10/2012, my younger sister Alimoon was told by my aunty Chanda that Abbas had shot my mother. I came to know that said Chanda had taken my mother to the hospital."
When PW 3 was specifically asked as to when her younger sister who was accompanying her mother came back, she answered that she came back at 7.00 p.m. and while crying she told that Abbas had shot her mother.
In the cross-examination, she admit that her mother had worn chappals which are used only in the house indicating that she wore her own chappals. She also admit that when her younger sister came home crying, she did not tell that Abbas had shot her mother, but then she improved her version by saying that she had come to know from 9/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc outside. She denied the specific suggestion that Abbas had not called her mother to come near the bathroom and to save her father, she was deposing against Abbas.
Cross-examination of PW 4 is also relevant where she admit that there are two more bathrooms prior to the bathroom near Saibaba Temple. She admit that Bihari Chacha had come to her house one day prior and on the date of incident, he had not come to her house.
It is categorically stated by her that outside the temple, lot of people sit and children play there, but denied the suggestion that when her mother had gone to toilet there were people around. According to PW 4, on the day of incident, other than Bihari Chacha there was one another person. She was unable to remember the day on which Bihari Chacha met her near Saibaba temple and rather she specifically deposed as below :-
"It is true that on date of incident Bihari Chacha had not met me near Sai Baba temple."
8. From the evidence of these two witnesses, who are the daughters of the deceased, no clear case of the accused being responsible for her death has surfaced on record. PW 4, the younger daughter who had actually accompanied her mother, categorically admitted that on the date of incident, accused had not come to her house, but there was one another person and on the date of incident she had not met him near Saibaba Temple.
Her admissions in the cross-examination, therefore, falsify her claim in the examination-in-chief where she stated that Bihari Chacha gave her money and asked her to bring cigarette and when she came back, she saw her mother in pool of blood alongwith gun lying there.
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9. Coming to the spot of incident, which according to PW 3 and PW 5 was situated in crowded locality, PW 11 who was posted at Sewree Police Station had approached the spot and prepared the Panchanama (Exhibit 18) being drawn on 25/10/2012 at 1.50 to 3.00 a.m. The Panchanama describe the spot to be located on the road in front of BPT at Plot No.308. The Saibaba Temple is situated on the south side, whereas on the eastern side there a compound wall of a company.
PW 5 Chanda @ Malika residing in the neighbourhood, on being informed that Shamina was assaulted, thought that it must be some Bengali woman as every time there used to be quarrel between Shamina and the Benali woman and it sometimes it took the shape of a scuffle.
Though she denied the suggestion that Shamina had not taken her chappal in the evening, she nowhere has stated that the younger daughter of Shamina who had come to her crying had disclosed to her that Abbas had assaulted her mother. On the other hand, according to her, younger daughter of Shamina approached her by informing that somebody had assaulted her mother and she was lying near the temple.
It is only, PW 3, elder daughter of the deceased, who has deposed that when her sister came back, she had told her that Abbas had shot her mother and the statement from her that her sister Alimoon was told by Aunty Chanda that Abbad had shot her mother, is an inconsistency, as Chanda never deposed that at the time when she went to attend the injured Shamina, she had any knowledge about who had assaulted her as she was told by her younger daughter that somebody had assaulted her.
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10. Now, we shall turn our attention as to how the name of Samsher surfaced as an accused, as we have already noted inconsistency in the version of PW 3, 4 and 5, as their version do not establish with clarity that it is Samsher, who was responsible for the injuries to Shamina.
PW 2 is the mother of the deceased, who joined her daughter, when Chanda who carried Shamina in the taxi, reached her doorstep at about 8.45 p.m. As per PW 2 Rubina, the mother of deceased Shamina, her daughter was brought in a taxi at the place where she resided and there was one person in the taxi alongwith the taxi driver. She do not mention about presence of Chanda in the taxi in contrast to the version of Chanda, who had deposed that she took Shamina towards the house of her mother in the taxi and Shamina's mother came near the taxi when she called her.
According to Rubina, when she enquired with her daughter as to what had happened, she said to her that "Abbas Bihari had assaulted/ shot her". PW 2 accompanied Shamina in the taxi to J.J. Hospital, where she was declared dead.
In her extensive cross-examination, she has stated that she used to go to her daughters house everyday and on the date of incident when she was going towards her home, one taxi came and stopped, but denied that her daughter called her from inside the taxi. She had blood stains on her clothes since she sat alongwith her daughter who was injured and lifted her head. She denied the suggestion that when she went near the taxi and sat inside, her daughter did not talk to her. When specifically asked as to whether her daughter had spoken to her in the taxi, she responded by stating that she had only stated that she 12/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc was assaulted by Abbas Bihari, and after that she did not speak anything.
Admittedly, PW 2 did not make any reference to PW 5 Chanda being present in the taxi and according to her when she enquired, her daughter told her that Abbas had assaulted/shot her.
11. In search of corroboration of her version, we have perused the evidence of PW 1 Baliram Chavan who was attached to Sewree Police Station as Station House Officer. According to him, at around 8.15 p.m. he was informed that one injured lady was brought in a taxi and therefore he rushed out from the Police Station and saw one lady on the rear seat of the taxi which was standing on the road. He took a station diary entry and took the injured to the J.J. Hospital in the same taxi.
According to PW 1, on enquiry, the injured lady gave her name as Shamina and the informant's name was Malika Shaikh (PW 5) and Malika informed him that the parents of injured Shamina were residing at Reay Road and therefore, he stopped the taxi on the way when mother of the injured (PW 2) was standing outside her house in the slum and she enquired as to what had happened and Shamina responded that "Abbas Bihari had shot her in the head at about 7.30 p.m. near Sai Mandir.".
According to PW 1, Shamina was taken alongwith her mother to J.J. Hospital and she was declared dead on arrival, cause of death being given as gun shot injury. PW 1, thereafter, commenced necessary procedure by registering ADR and by preparing Inquest Panchanama (Exhibit 14) and Panchanama of attaching the clothes of deceased (Exhibit 15).
13/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::J-APeal-887-2017.doc He recorded the statement of Malika (PW 5) and Rubina (PW 2). Thereafter, he went to the Police Station and lodged the complaint as the mother of the deceased was in shock and was not in a position to lodge the complaint (Exhibit 16).
In the cross-examination, PW 1 has reiterated that the victim had stated that she was shot by Bihari and he was present while the said statement was made. When specifically questioned as to why he did not record the complaint of the informant Malika, he replied that since the informant Malika is residing in slum area and residents are not traceable subsequently and also the fact that Malika was illiterate and was not in a fit condition to lodge the complaint and, therefore, he did not register the complaint in her name. Very categorically he admit as under :-
"I tried to question the victim on the way to the hospital,but she did not respond.
It is correct that the victim was not in a fit condition to make a statement when I tried to make inquiry from her".
12. PW 1, in cross-examination brings a new version when he state that the victim, Malika @ Chanda, Saddam, himself, one constable and one driver went in the taxi to the hospital.
Apart from this, he state that Chanda (PW 5) was sitting on the rear seat with the victim on her lap and PC Rajput was also sitting on the rear seat, but he categorically admit that there were no blood stains on the clothing of Chanda and there was no blood in taxi.
He denied the suggestion that the victim had not made any statement in his presence, and also denied the suggestion that the mother of the deceased had learnt about her death and hence she was standing outside on the road waiting to be picked up.
14/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::J-APeal-887-2017.doc The inconsistencies in the prosecution case becomes more glaring on examining the evidence of PW 1.
13. PW 5 Chanda, in contrast to PW 1 has testified that when she went to police chowkie, police had told her to take Shamina to hospital alone and police had not accompanied her to the hospital and at that time Shamina was not able to speak nor the police enquired anything from Shamina. According to her, police forced her to take Shamina to the Hospital.
In contrast, according to PW 1, he himself alongwith one constable and Saddam went in the taxi to the hospital. PW 1 has attempted to corroborate PW 2 Rubina about who was responsible for the assault, but according to version of pw 2 her daughter only told her that Abbas Bihari had assaulted/shot her and she did not say anything more. But according to PW 1, when Rubina enquired with Shamina what had happened, she had responded by informing that Abbas Bihari had shot her in the head at about 7.30 p.m. near Sai Mandir. The prosecution has not deemed it fit to examine either driver of the taxi or the constable who was present.
Repeatedly, PW 1 had admitted that when he enquired with Shamina, she was not in a fit condition to make a statement. Surprisingly, if the victim was bleeding according to PW 1, there was no blood in the taxi nor there were any blood stains on clothing of Chanda and PW 5 Chanda in her cross-examination admitted that there was no blood stuck on her clothes.
The prosecution case surfacing on record through the five witnesses is, therefore, completely doubtful and not reliable as the testimony of aforesaid prosecution witnesses has failed to conclusively 15/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc establish that it is Samsher i.e. the Appellant, who had fired/ assaulted Shamina.
14. Coming to the another circumstance relied upon by the prosecution in nailing the Appellant for committing the murder of Shamina, is the recovery effected from him under Section 27 of the Indian Evidence Act, 1872.
PW 8 is the Panch who has been examined in support of the recovery and who is signatory to the Panchanama Exhibit 42, which record the recovery of gun alongwith cartridges.
PW 8 Munir Shaikh was called at Sewree Police Station on 07/11/2012 when another Panch viz. Babu was already sitting there. The accused Samsher Nawazal Shah who has been identified to be the same person who was present in the Court, was also present in the Detection Room according to Munir.
The Accused in presence of the Panchas disclosed that he had shot one Shamina in her head on 24/10/2012 and the gun by which he had fired would be produced from where he had concealed it.
As per PW 8, on reading of the Panchanama and its contents being explained to him in Hindi, he signed the Panchanama (Exhibit
42). It is this Panchanama which is relied upon by the prosecution to establish the recovery of the pistol. But, it is to be noted that the Panchanama which record the statement of the accused, refer to the gun, as willingness was shown by the accused to lead the investigating agency to the place where he had concealed it. The recovery panchanama in detail narrate the movement of the investigating team from the Police Sation to the place, where, according to the accused, he had concealed the gun.
16/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::J-APeal-887-2017.doc Accordingly, the Panchas accompanied by the investigating team approached a room in Building No.32 of PMJ colony, Om Shakti Seva Mandal. Upon the door being knocked, one person came out and the accused identified him to be his father.
Upon entering the room, which was about 10x15 in size with a window, it was a room in use as it contained the clothes, utensils etc. The accused pointed out the place where he had concealed the pistol and this led to a television being mounted on the wall with a wooden rack and on the platform created by placing the cement bricks, four tin and reczine suitcase were found. Thereafter, according to the Panchanama, the accused took out a yellow colour plastic carry bag, placed in the gap of the bricks.
On being opened, it was found to be contained following things :
i] a black colour pistol with hammer and magazine with its butt of Ash Grey colour with the words inscribed 'AUTUMATAIC PISTOL MADE IN USA" and on the other hand , the words inscribed 7.6.57 Round No.9000 and on the barrel it was written as "Only Public supply". ii] A white colour bag with red flowers and on its opening it led to four live rounds with the inscription of KF-7.65. When the magazine of the pistol was examined, it was found to be empty. The Panchanama recorded that the pistol and rounds were taken in possession in presence of the panchas and it was sealed under the signature of the Investigating Officer and the Panch.
In the evidence of PW 8, the Panch witness Munir has described the action of the accused, after he entered the room, when he deposed as under :-
"Then we all went inside. The said room was 10x15 feet. There on two bricks one tin briefcase (Pety) was kept. Thereafter, the accused pushed his hand inside the Pety and removed one bag. After opening the said bag (Thaila) he removed one pistol with magazine from it. There was one more bag white colour and it was opened in which four cartridges were found."17/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::
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15. PW 11 the Investigating Officer also spoke about seizure of the gun in the wake of discovery statement made by the accused which was recorded in presence of two panchas (Exhibit 42).
According to his version, the accused produced the revolver and four live cartridges and this was recorded in the Panchanama (Exh.43). The Pistol and cartridges shown to him, are identified by him and marked as Art.2 Collectively.
The Investigating Officer did not furnish any details as to from what place in the house, the pistol and live rounds were recovered. But according to PW 11 the pistol having magazine and four live cartridges and one empty cartridge was sent to Chemical Analyser for examination through forwarding letter dated 08.11.2012 and it was received by the office of CA (Exhibit 38 and 39). He, further, deposed that out of the four live cartridges which were sent to the CA office, it had test fired one cartridge for the purpose of examination and he could identify the same.
PW 11 specifically deny the suggestion given to him that the accused was taken at the spot and from there he recovered the weapon. He also deny the suggestion that the weapon was already planted and he found the same at the time of conducting of spot panchanama.
16. At this juncture, we also deem it appropriate to refer to the evidence from Chemical Analyer's office and PW 9 serving with Chemical Analyser is examined as he had received the forwarding letter in CR No.99/2012 from Sewree Police Station, seeking the opinion on three points :- Whether firing was done from pistol (Article A) 18/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc and the bullet which was recovered by the Medical Officer at the time of conduct of postmortem of the deceased has been fired from the said pistol; 2] Whether the four live cartridges (Article B) are of Article A and whether the bullet recovered at the time of postmortem of the deceased is a part of the same rounds (Article 3) and 3] Does the yellow colour cover of the bullet (Article C) is of the bullet fired from the pistol?
Responding to the said querries, PW 9 also depose that he received another communication from the Inspector of Police (Exhibit
46) , forwarding the copy of the Postmortem notes of Shamina Khan and x-ray plates for further action, in addition to the seized cartridge and firearm which had been already forwarded on 09/11/2012. In addition a sealed bottle containing skin preserved from entry wound in formalin for ballistic examination was also received by him as the postmortem had opined the cause of death to be "Haemorhage and shock due to firearm injury ".
17. PW 9 received the countrymade pistol magazine having crude marking (Exhibit 1), Four 7.65 mm pistol cartridges (Exhibit 2) and one fire arm 7.65 mm pistol empty having identification on the cap (Exhibit 3).
PW 9 deposed that he had performed chemical examination, carried the physical parameter test, test firing and ballistic microscopic comparison and prepared report of analyses where he categorically opined thus :-
1. Exhibit 1- pistol was in working condition, the country made pistol used for firing prior to its receipt on the laboratory.
2. Exhibit 2- random selected one 7.65 mm pistol cartridge. The same was successfully test fired through the country made pistol which is at Exhibit 1.
3. Exhibit 3- One fire empty cartridge at Exhibit 3 is a 7.65 mm pistol cart rages case. The empty cartridge case in exhibit 3 has been fired from country made pistol which is at Exhibit 1.19/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::
J-APeal-887-2017.doc
4. The deformed copper jaacketed bullet received from medical officer of the grant medical college Mumbai, is a fired 7.65 mm bullet. The copper jacaketed bullet has been fired from the country made pistol which is at Exhibit 1."
Accordingly, he prepared the report (Exhibit 50) and furnished it to the Investigating Officer.
The bullet which was received alongwith the sealed plastic bottle was also duly examined by PW 9 and according to him on analysis, he derived at a conclusion that the bullet is a fired 7.65 mm pistol bullet and he furnished a separate report in that regard (Exhibit 51).
In addition, he categorically deposed as under :-
"9. On my examination and on comparison it is found that the bullet in Exhibit 1 of BN-713/12 tallies with bullet test fired from country made pistol Exhibit 1. The pistol is examined now shown to me is the same and I identify it. Art.1 (collly.) Pistol automatic @ label now shown to me is the same, Art.2 (colly.). Four cartridge are the same, out of which one is tested and three are intact, Art.3 is the one empty cartridge case, is the same, which was found on the spot, Art.4 now shown to me is fire copper jacketed bullet in the plastic bottle.
10. All the above articles which have been examined are the same, and I identify them. All the fired bullets have been fire from the pistol Exhibit 1. The pistol now shown to me is the same."
18. Mr. Sandeep Karnik, the learned counsel for the Appellant has invited my attention to the cross-examination, where the ballistic expert admitted that in all cases examined by him before, he had prepared notes, but in the present case alongwith the report, the notes are not furnished nor they are produced before the Court. It is also admitted by PW 9 that normally when a bullet is fired from the country made pistol the riffling mark is unlike in the standard pistol, but he denied the suggestion that comparable to standard pistol there are striation mark on the lead of the cartridge when fired from country made pistol. He also admitted that when bullet is fired, how many marks are found in 20/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc the bullet is not mentioned in his report.
When we turn our attention to Exhibit 50, which is the Examination Report from PW 9, the result of the analysis of the three Articles in form of Exhibit 1- the country made pistol, Exhibit 2 - Four intact KF 7.65 mm pistol cartridges and Exhibit 3 one KF 7.65 mm pistol empty having identification on the cap, and the report of analysis reveals the following :-
RESULTS OF ANALYSIS "Exhibit 1 is a countrymade pistol in working condition. It is capable of chambering and firing7.65 mm pistol cartridges. Residue of fired ammunition
- nitrite was detected in the barrelwashings of the pistol in Exhibit 1, showing that the countrymade pistol Exhibit 1 was used for firing prior to its receipt in the laboratory.
Randomly selected one 7.65 mm pistol cartridge from Exhibit 2 was successfully test fired through the countrymade pistol in Exhibit 1.
The empty in Exhibit 3 is a fired 7.65 mm pistol cartridge case. The Characteristic features of the firing pin impression on the empty in Exhibit 3 examined under comparison microscope tally with that on the cartridge test fired from the countrymade pistol in Exhibit 1. showing that the empty in Exhibit 3 has been fired from the countrymade pistol in Exhibit 1.
The deformed copperjacketed bullet in Exhibit I of BL-713/12 (Received from Medical Officer, Department of Forensic Medicine, Grant Medical College, Mumbai - 08. FM/569/12 Dated 25/10/12) is a fired 7.65 mm pistol bullet. The characteristic lengthwise brushing marks examined under comparison microscope on the bullet in Exhibit 1 of BL- 5713/12 tally with the bullet testfired from the countrymade pistol in Exhibit 1 of present case, showing that the copperjacketed bullet in Exhibit 1 of BL-713/12 has been fired from the countrymade pistol in Exhibit l of present case."
19. The Ballistic Expert report is based on the cartridges which are recovered under memorandum Panchanama (Exhibit 43). and acceptability of the said recovery would be dependent on whether this recovery would be admissible under Section 27 of the Indian Evidnece Act, as it suffers from two deficiencies; the first being whether the recovery of cartridges is to be considered pursuant to statement made by the accused under Section 27 and secondly, there is variation in the 21/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc place from which the recovery was done.
Section 27 of the Indian Evidence Act, reads to the following effect :-
"27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
20. In Mohd. Inayatullah vs. State of Maharashtra,1 the following relevant observation bears great significance :-
"11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
"27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of apolice officer, so much of such information, whether it amounts to a confession or not, as relatex distinctly to the fact thereby discovered, may be proved.
12. The expression provided that together with the phrase 'whether it amounts to a confession or not shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly means "directly", 'indubitably', 'strictly', 'unmistakably. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually 1(1976) 1 SCC 828 22/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression 'fact discovered' in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, Ganu Chandra Kashid v. Emperor). Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced. and the knowledge of the accused as to this (see Pulukuri Kotayya v. King Emperor. Udai Bhan v. State of U.P.)."
In C.Muniappan vs. State of Tamil Nadu 2 the Apex Court observed thus :-
"78 In Aloke Nath Dutta v. State of W.B. ((2007) 12 SCC 230) this Court disapproved the exhibiting and reading of confessional statement of the accused before the police as a whole before the court, as it had not been brought on record in a manner contemplated by law. The Court held as under: (SCC p. 257, para 53) "53 Law does not envisage taking on record the entire confession by marking it as an exhibit incorporating both the admissible and inadmissible part thereof together. We intend to point out that only that part of confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles..... the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court."
While deciding the said case, this Court placed reliance on the judgments in Pulukuri Kotayya v. King-Emperor, State of Maharashtra v. Damir and Anter Singh v. State of Rajasthan.
79. Thus, it is evident from the above that only the admissible part of extra- judicia confessional statement can be exhibited. The statement as a whole, if exhibited an relied upon by the prosecution, leads to the possibility of the court gette prejudiced against the accused. Thus, it has to be avoided.
80. In the instant case, as has rightly been pointed out by Shri Sushil Kumar, lea Senior Counsel that confessional statement of C. Muniappan (A-4) had been exhi in the court in its full text. It was neither required or warranted nor was permis However, in view of the fact that there had been other sufficient material on rec show his involvement in the crime, we are of the opinion that full exhibition statement had not prejudiced the case against him." 2 (2010) 9 SCC 567 23/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc
21. The idea embedded under Section 27 of Indian Evidence Act is the doctrine of confirmation by subsequent events, the doctrine being founded on the principle that if any fact is discovered in search made on the strength of any information obtained from an accused, such a discovery is a guarantee that the information supplied by him is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact,it becomes a reliable information. Section 27 thus permit such information to be used as evidence by restricting the admissible portion to the minimum.
It is by this time well settled that recovery of an object is not discovery of a fact as envisaged in the said Section.
The privy council in Pulukuri Kottaya and Ors. vs. V. Emperor, the most quoted authority interpreting the term "fact discovered"
envisaged that the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. The information permitted to be admitted in evidence is thus confined to that portion of the information which "distinctly relates to the fact thereby discovered", but the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability.
22. In State of Maharashtra vs. Damu s/o Gopinath Shinde 3 recovery of the dead body of the deceased from the canal, which was antecedent to the information which the Investigating Officer received, if nothing more was recovered pursuant and subsequent of obtaining the information from the accused, it was held that there could not have been any discovery of any fact at all. But when broken glass piece 3 (2000) 6 SCC 269 24/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc was recovered from the spot and that piece was found to be part of the tail lamp of the motorcycle of the co-accused on which the body was carried out, it can be safely held that the Investigating Officer discovered the fact that co-accused had carried the dead body on that particular motorcycle upto the spot.
In view of the said discovery of the fact, it was held that the information supplied by accused No.2 Guruji that the dead body of Dipak was carried on the motorcycle upto a particular spot is admissible in evidence and the information, therefore, proves the prosecution case to the above mentioned extent.
23. In terms of the provision in form of Section 27 of the Indian Evidence Act, which is based on a view, that if a fact is actually discovered in consequence of the information given , some guarantee is afforded thereby that the information was true and consequential, the said information can be safely allowed to be given in evidence, because, if such an information is further fortified and confirmed by discovery of articles or the instrument of crime and which lead to a relief that the information about confession was made as to the articles of crime, then it cannot be false.
24. In Golakonda Venkateswara Rao vs. State of AP 4 , where the case was based on circumstantial evidence and the deceased was last seen in the company of the accused alongwith one important circumstance of recovery of articles and skeletal remains of the deceased, pursuant to the discovery of the information furnished by the accused himself, the Sessions Judge considering the evidence on record, had held the case to be established against the Appellant.
4 (2003) 9 SCC 277 25/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc The recovery of the articles at the disclosure statement furnished by the accused as he had categorically stated that the clothes which the victim had worn were digged and closed down in earth and that place he can lead to . Pursuant to the discovery statement the police party led to a place where they found the dilapidated tin roof shed and a well. From inside the well, hair, hairpins, bangles were recovered and police seized the articles, Article 5 being the bones. The accused led the party to a spot behind tin roof shed and dugged out and unearthed the piece of langa.
Dealing with the contention of the Appellant that the disclosure statement and recovery of articles is doubtful and no reliance could be placed on it on the ground that discovery statement does not bear the signature or thumb impression of the Appellant and also the recovery memo does not have his signature or thumb impression. Admitting that it was true that neither the discovery statement nor the recovery memo bear the signature of the accused but it was observed that the fact remains that pursuant to the disclosure statement MOs have been recovered from the well and dugged out from a place which is pointed out by the Appellant, leaves no manner of doubt that recovery of MOs have been made on the basis of voluntary disclosure statement. Recording that the fact that the recovery is in consequence to the information given is fortified and confirmed by the discovery of wearing apparel and skeletal remains of the deceased which led to belief that the information on the statement cannot be false, the Apex Court further recorded as under :-
"The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently, the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by a the discovery of articles or the instrument of crime and which lead s to the belief that information about the confession made as to the articles of crime 26/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc then cannot be false. (See Suresh Chandra Bahri v. State of Bihar, AIR at p. 2448; SCC at p. 119.) As already noticed MO 3, MO 4 and MO 5 were retrieved from the well with the help of swimmers, as there was a water level of 6 1/2 feet. MO 2, MO 6, and MO 8 are the pieces of langa dug out and unearthed at the disclosure of the appellant. These materials were MA found lying on the surface of the ground but they were found inside the will, which had 6 1/2 - feet-deep water, with the help of swimmers and were found after being dug out and unearthed only after the place was pointed out by the appellant. It is not found from a place where the public can have free access. Therefore, there is no reasonable apprehension of the material exhibits being planted to rope in the appellant in the crime. "
25. The statement under Section 27 of the Indian Evidence Act which is drawn at the Police Station in the presence of Panchas so as to lent credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon or any other article used in the commission of offence has been hidden. Once the first part of the panchanama is completed, the police party alongwith the accused and and the two independent witnesses (panch witnesses) would proceed to a particular place, as may be led by the accused. If from that particular place anything, like weapon of offence or blood stained clothes or any other article is discovered, then this process shall form second part of the Panchanama.
It is in this manner, the Investigating Officer shall draw the discovery panchanama as contemplated under Section 27 of the Indian Evidence Act.
Since the the accused while in custody on his own free will and volition make a statement that he would lead to the place where he had hidden the weapon of offence or his blood stained clothes, the Panchanama is prepared in presence of the Investigating Officer and two independent Panchas.
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26. In the present case, the Investigating Officer has not proved the contents of the Panchanama, but the Panchanama (Exh.42) is proved through PW 8, who has reproduced the exact version given to the investigating team alongwith the Panchas about where he had concealed the weapon and the accused himself led to the spot from where not only the gun, but four cartridges were also found.
However, the argument advanced on behalf of the Appellant is in his statement under Section 27 he has only referred to the gun, which he had concealed and he expressed his willingness to lead the team to that place.
After reaching at the place where the accused had indicated that he had concealed the gun, even four live rounds (cartridges) are found. A cartridge a unit of amunition made up of cartridge case, primer powder and bullet, is also called as "round or load" and is often incorrectly referred to as "bullet". When four live cartridges are also recovered alongwith the gun with the words inscribed KF and 7.65 from the same place and this was discovered pursuant to the statement made under Section 27 of the Act by the accused, we do not find the recovery of the live cartridges to be beyond the disclosure statement as gun is normally stored with cartridge and when the accused had made a statement that he would lead to the gun and as a result of which the cartridges are also recovered., according to us the said recovery is said to be made in pursuance of the disclosure statement made under Section 27 and we do not find any loophole in the same.
27. Coming to the another contention of Mr. Karnik as regards the place of recovery of the gun, we find substance in the said contention as the Investigating Officer in his substantive evidence has not 28/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc deposed about the place from which the recovery was effected. PW 8 Panch to the disclosure and seizure panchanama in his substantive evidence has deposed that when they went inside the house on two bricks one tin briefcase (pety) was kept and the accused put his hand inside the pety and removed one bag and on opening the bag, he removed one pistol with magazine and from another white colour bag four cartridges were found.
In contrast if the Panchanam (Exh.43) is perused, it record that the accused had concealed yellow colour carry bag in the gap between two bricks and on opening the bag one pistol and four cartridges were discovered.
28. The substantive evidence of the panch witnesses i.e. P.W-8, however to the effect that the accused put its hand in a tin briefcase and removed one bag (thaila) from it, which contained the pistol with magazine and four cartridges in one more bag. The aforesaid inconsistencies is apparent as the panchnama which is recorded in the presence of panchas speaks of a completely different scenario.
PW-8 has been put to extensive cross-examination and he deposed that the police person had come to call him at Reay Road and he was asked to act as pancha in 302 matter for recovery. He admit that he had not marked on the pistol to identify it but he denied that if this pistol is kept along with other pistol he will be not in a position to identify it and so was also the case of cartridges. He categorically admit that the cartridges were not removed in his presence from the magazine. He admit that he cannot read Marathi and therefore he did not read what was written in the panchanama but it was read over to him in Hindi and the police told him to sign and accordingly he signed.
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29. The evidence of the discovery of the gun with the aforesaid discrepancy when juxtaposed against the evidence of PW-4, the younger daughter of the deceased, who had deposed that she found the gun lying on the spot makes the discovery of the weapon doubtful. PW-1 the Investigating Officer, proceeded towards the spot from where he seized blood mixed soil, one wrist watch with metal belt having embossment as 'S' and pieces of bangles and one cigarette bud however it is not established that the articles belong to the accused. PW-3 the daughter of the deceased was posed a specific question whether there was any band put on the hand of her mother and she described that there was a band on which 'S' was written but this definitely was not the watch, which was recovered from the spot and in any case it has not been put for identification, by her two daughters.
The evidence of recovery from the accused leading to the gun, is therefore, not proved beyond reasonable doubt and leaves a scope of doubt since if the panchanama has recorded that the recovery is from the gap in the two bricks, whereas PW-8, the pancha has deposed in his substantive evidence, that it was from the peti and he do not make reference to the other bags which were referred to in the panchanama. The evidence of recovery is therefore not substantially proved against the appellant.
30. Now coming to another circumstance, which is attempted to be proved from the ballistic expert is about one shell of bullet recovered at the instance of PW-14, as it is the case of the prosecution that, he found one copper bullet shell lying near Sai Baba Temple, on 5/11/2012 and he approached Sewree Police Station along with it and it was seized by Police Officer Shirke. The person producing the cartridge had 30/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc revealed that he found it near Boat Heart road near Sai Baba Temple.
The panchanama of seizure (Exhibit 74) is prepared when Mohammad Suleman (PW-14) deposed that on 5/11/2012 while he was smoking and chit-chatting, he saw one yellow colour metal thing lying and he recollected that one month back, Samina was killed by Abbas by the fire arm and was convinced that this was the bullet which was fired at Samina and therefore he approached the police station and handed over the same.
The panch to Exhibit 74 in cross-examination admit that he had not made any identification marking on the empty cartridge and he was not aware as to who had put the tape on the empty cartridge and written number of it. He was confused with Exhibit-2 and Exhibit-3 and admit that out of the two, he could not clearly distinguish as to which was fired. PW-14, the person who bought the bullet shell and which was seized under panchanama turned hostile, as he denied that after picking up the empty copper bullet, he informed the police. Therefore, in absence of any connection of the bullet (shell) recovered from the spot at the instance of PW-14 do not in any manner offer any assistance to the prosecution.
31. Examination of PW-6, who conducted the postmortem of Shamina referred to the injuries sustained by her and during the postmortem, bullet of metallic in yellow colour was collected. The doctor had given the margins of wound as inverted along with 0.5 cm of blackening with tattooing. He referred to the beveling of skull over inner table of skull and describe the direction of injury as right to left above downward and forward posterior to anterior, whole track of bullet hips hemorrhagic and lacerated. The collected bullet was sent for ballistic examination.
31/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::J-APeal-887-2017.doc The ballistic expert PW-9, had inferred that Article no.3 is one empty cartridge case which was found on the spot whereas article no.4 was the fired copper jacketed bullet in the plastic bottle recovered during the postmortem. In his analysis report (Exhibit 50), though the analysis is drawn that the deformed copper jacketed bullet is fired from 7.65 mm Pistol, an opinion was expressed that the bullet was test fired from the country made pistol showing that the copper jacketed bullet has been fired from Exhibit-1. Referring to the empty cartridge case in exhibit 3, the expert has opined that the characteristic features of the firing pin impression on the empty cartridge (Exhibit 3) examined under comparison microscope tally with that on the cartridge test fire from the country made pistol showing that Exhibit 3 has been fired from country made pistol (Exhibit 1). Neither in the substantive evidence, nor in the result of analysis, the expert has offered any basis for this conclusion except saying that Exhibit 3 could have been fired from Exhibit 1, dependent upon the characteristic features of firing pin. However, he did not take into consideration the autopsy report relating to the actual injury, which was found while conducting the autopsy and on what basis he had derived the conclusion is uncertain as he has not produced his notes forming an opinion, as he has clearly admitted in the cross- examination that merely looking at the weapon and the cartridges no opinion can be formed and all the cases which he had examined the notes were taken, but in this case they were not accompany his report nor they were produced before the Court. In addition, in his cross- examination, he also admit that the medical officer who has sent the copper jacketed bullet in sealed plastic bottle had no seal and stamp of Sewree police station, giving rise to a possibility of it being substituted by any other similar article.
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32. It is trite position of law that the prosecution has to prove its case beyond reasonable doubt and unless it discharge its burden, the presumption of innocence available to an accused cannot be rebutted as accused is presumed to be innocent until proven guilty. The prosecution must therefore, prove the critical facts of the case to the appropriate level of certainty and establish the accused guilt beyond reasonable doubt and this is to the extent that no other explanation can inferred from the evidence that is laid by the prosecution. The legal burden of proof which rest on the prosecution is required to be proved beyond reasonable doubt of each element of the offence, and disprove beyond reasonable doubt of any defence, exception, exemption, excuse, justification or qualification. In absence of the burden being discharged by the prosecution, the accused is entitled for its benefit, as in a criminal trial the burden of proof is at the highest as it revolve around liberty of a person who is the arraigned/charged/tried as an accused. The prosecution is expected to provide evidence that sustains the accused's guilt beyond reasonable doubt and any lacunae in the case of prosecution must ensure to the benefit of the accused.
By marshaling the evidence on record placed before the learned Judge, we find that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt as we have found many loop holes in the case of prosecution and its benefit must definitely yield in favour of the appellant, who has raised the challenge to the finding of conviction and the sentence imposed upon him under the impugned judgment by specifically pleading that the prosecution has failed to discharge the burden cast upon it to prove beyond doubt that it is only the accused, who has committed the offence.
The case of the prosecution being based on the circumstantial 33/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc evidence, in absence of any eye witnesses being available who could have testified about the incident as even accepting the case of the prosecution through the testimony of PW-4, apart from the fact that she is an unreliable witness even accepting her version in the examination in chief, she was not an eye witness to the incident.
In appreciating the case based on circumstantial evidence one circumstance by itself may not unerringly point to the guilt of the accused, but it is cumulative result of all the circumstances gathered by the prosecution, which would be considered by appreciating the evidence. There must be a chain of evidence where no reasonable ground is left for conclusion which is relevant for the innocence of the accused and it must be such as to show that it is all within the human possibility, the act must have been done by the accused and by no one else. One circumstance in disjunct with the other by itself would not establish the guilt of the accused.
33. Since in the present case, we are convinced that the prosecution has failed to prove its case beyond doubt and since its case appears to be doubtful on the basis of the evidence placed before the Sessions Court, we find that the Additional Sessions Judge has erred in drawing the inference of guilt and in convicting the appellant for an offence under Section 302 of IPC and under section 3 and 25 of the Arms Act. The lacunae in the case of prosecution which give rise for benefit of doubt, must be construed in favour of the appellant.
34. As a result of the above discussion, the conviction imposed under the impugned judgment along with the sentence of life 34/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 ::: J-APeal-887-2017.doc imprisonment cannot be sustained and by quashing and setting aside the Judgment dated 16/05/2016 passed by the learned Sessions Judge in Sessions Case No.183/2013, the Appeal is allowed and the Appellant stand acquitted of the charges levelled against him.
If the appellant do not deserve his incarceration in some other case, he is directed to set at liberty forthwith.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) 35/35 ::: Uploaded on - 10/12/2024 ::: Downloaded on - 14/12/2024 06:05:44 :::