Bombay High Court
Abdul Mustaq Abdul Rashid + 4 vs The State Of Mah.Thr.P.S.O.Yavatmal on 19 June, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Judgment
apeal624.06 16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.624 OF 2006
1. Abdul Mustaq Abdul Rasid,
Aged about 46 years, Occupation Labour.
2. Sk. Ismail s/o Sk. Munir,
Aged about 48 years, Occupation Labour.
3. Sk. Wazir Sk. Khwaja,
Aged about 48 years, Occupation Labour.
4. Abdul Salim s/o Abdul Sakul,
Aged about 50 years, Occupation Agriculturist.
5. Sk. Kalimoddin s/o Shirajuddin,
Aged about 70 years, Occupation Agriculturist.
All the appellants are resident of
Kalgaon, Taluka Digras, District Yavatmal. ..... Appellants.
:: VERSUS ::
State of Maharashtra, through P.S.O.
Digras, District Yavatmal. ..... Respondent.
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Ms Jyotsana Benjamin, Adv. h/f Shri Firdos Mirza, Counsel for t
he appellants.
Shri I.J. Damle, Addl.P.P. for the respondent/State.
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CORAM : MRS. SWAPNA JOSHI, J.
DATE : JUNE 19, 2018.
ORAL JUDGMENT
1. This appeal has been directed against judgment and order of .....2/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 2 conviction dated 1.11.2006 passed by learned Additional Sessions Judge, Darwha in Sessions Trial No.5/2004 whereby learned Additional Sessions Judge convicted the appellants (hereinafter referred to as, "the accused") for offences punishable under Section 395 read with Section 149 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1000/- by each of them and in default of payment of the fine amount to suffer further simple imprisonment for 1 month. Learned Additional Sessions Judge also convicted them for offence punishable under Section 147 of the Indian Penal Code and accused No.12 Sk. Wazir Sk. Khwaja was convicted for offence punishable under Section 336 of the Indian Penal Code. However, no separate sentence was passed against them.
2. The case of the prosecution in a nut shell is as under:
Complainant Anil Wasantrao Pande (PW1) was running his shop at Kalgaon, Taluka Digras, District Yavatmal. On 8.12.1992, at about 9:00 a.m., he had been to the post office for some work and had asked his neighbour Dilip Dange (not examined) to sit in his shop. At that time, he received an information that a procession of some muslim persons had come to his shop and was insisting to close the shop. He immediately rushed to his shop and noticed the shop was closed. It was the case of the complainant that the mob was insisting to close the shop. The complainant inspected destruction caused to his shop. In .....3/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 3 the mean time, accused persons came near his shop and said the complainant that though his shop was closed, why did he open the shop. He was asked to keep the shop closed for the entire day, otherwise they would destroy the shop. The complainant asked the mob not to threaten him as he had already closed his shop. On this, accused Kalimoddin said the complainant that he acts too smart and considers himself as leader of Hindu persons. The accused abused the complainant and told the mob that he should be finished. The accused started provoking the mob telling them to break open and burn the shop, as a result of the provocation the mob started pelting stones at his shop and the mob destroyed the same. They broke glasses, doors, trespassed, and took out amount of Rs.4000/- in the shop kept in a drawer and set the shop on fire. The complainant then lodged a complaint (Exhibit 173) against the accused persons.
3. At the relevant time, A.S.I. Uttamrao Ramrao Nagargoje (PW7), was attached to Outpost Kalgaon. He recorded the complaint and on the basis of the same, he registered an offence. He recorded spot panchanama (Exhibit
176). The offence came to be registered vide Crime No.177/1992. A.P.I. Shri Sunil Sukhadeorao Bonde (PW8) recorded statement of relevant witnesses and after completion of the investigation, he filed chargesheet in the Court of learned J.M.F.C.. The case was committed to the Court of Sessions.
4. I have heard learned Advocate Ms Jyotsana Benjamin h/f learned .....4/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 4 counsel Shri Firdos Mirza for the accused and learned Additional Public Prosecutor Shri I.J. Damle for the respondent/State. With their able assistance, I have gone through the record and proceedings of the case. The prosecution heavily relied upon testimony of complainant Anil Pande (PW1).
5. The testimony of complainant Anil Pande (PW1) shows that he was running his shop at Kalgaon, Taluka Digras, District Yavatmal. On 8.12.1992, at about 9:00 a.m., he had been to the post office for some work and had asked his neighbour Dilip Dange (not examined) to sit in his shop. At that time, he received an information that a procession of some muslim persons had come to his shop and was insisting to close the shop. He immediately rushed to his shop and noticed the shop was closed. He stated that the mob was insisting to close the shop. Accused No.15 Abdul Rashid Sk. Chand and accused No.34 Kalimoddin came near his shop and instigated the complainant to close the shop for the entire day. PW1-Anil said that his shop is already closed. On this, Kalimoddin said PW1-Anil that PW1-Anil was giving reply to him and was acting very smart. Also, Kalimoddin asked whether PW1-Anil was behaving as a leader of Hindus. PW1-Anil further stated that while mob of 400 to 500 muslim persons came to that place, accused Kalimoddin addressed to the mob that it is a time to kill PW1-Anil, break down, set on fire, and take out articles from his shop. Those persons in the mob started pelting stones at his shop. Accused No.3 Nasiroddi .....5/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 5 and accused No.16 Ajabkhan lifted stones kept on drain and with those stones they broke wooden doors of his shop. Accused No.30 Abdul Salim, accused No.9 Abdul Rashid and accused No.11 Darshana Ismail broke glasses of almirahs and also broke cash box and took amount of Rs.4000/- from the drawer which was kept in his shop.
6. On hearing noise of the mob, Rajaram, Kailas, and Devanand came on road in front of the shop and they tried to pacify the assembly. However, accused No.17 Wahioddin, accused No.28 Jalaluddin, and accused No.12 Sk. Wazir started beating Rajaram. PW1-Anil tried to stop the members of the assembly and requested them not to break his shop and not to take out articles from his shop. However, they did not pay any heed to his request and a bundle of towels from his shop was set on fire. The assembly also caused loss of Rs.7000/- to him. PW1-Anil stated that while the members of the mob were beating Dilip, the police arrived at the place of the incident and dispersed the mob. PW1-Anil then lodged complaint against the accused persons (Exhibit
173).
7. During cross-examination, PW1-Anil admitted that on 6.12.1992 "Babri Masjid" was demolished. However, he stated that he was not knowing that the Congress Party had given call of "Bharat Band" on 8.12.1992. He stated that at the police station, he got an information that some persons came near his .....6/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 6 shop to close the shop. He further stated that when he returned from the post office and came to his shop, Dilip was sitting on the stairs of his shop after closing the shop. From the version of PW1-Anil, it is not clear as to when the shop was closed and as to how the accused persons destroyed the shop and removed cash amount of Rs.4000/- from the shop of PW1-Anil. The improvement was pointed out in the version of PW1-Anil to the effect that accused No.34 Sk. Kalimodin said him as to whether PW1-Anil was acting over- smart and Sk. Kalimodin uttered word "Luto". The said improvement goes to the root of the case and creates a doubt as to whether there were altercations between accused No.34 Sk. Kalimoddin and PW1-Anil and the accused instigated the mob to break open the shop of PW1-Anil. PW1-Anil stated before the police that Wazir Khwaja had also beaten Rajaram. However, the said version does not find place in his complaint (Exhibit 173). It is mentioned in the complaint that the mob started pelting stones at his shop and the mob destroyed the same. They broke glasses, doors, and trespassed into the shop and people from the mob, viz. Tanya Rashid and Salim Abdul, took out amount of Rs.4000/- in the shop kept in a drawer and set the shop on fire. It is noticed that PW1-Anil has not deposed about these persons as the persons who removed the cash amount from his shop. PW1-Anil has stated in his evidence the names of some other persons. Thus, there is a discrepancy in the testimony of PW1-Anil so far as the removal of amount of Rs.4000/- is concerned. It is also noticed that PW1- .....7/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 7 Anil has made an improvement with regard to conversation made between him and accused No.34 Kalimoddin. It is significant to note that the prosecution has failed to examine Dilip who was sitting in the shop of PW1-Anil while PW1-Anil had been to the post office.
8. The testimony of Rajaram Rode (PW3), indicates that on 8.12.1992, at about 8:30 a.m. to 8:45 a.m., he heard noise from the house of Rajaramji Atal. He saw that Anil (PW1) was standing in front of his shop and accused Kalimoddin was talking to him loudly. He also saw many muslim persons assembled there and accused Kalimoddin was addressing the mob and and said them set on fire the shop of Anil (PW1). On this, accused Salim had lifted a stone kept on drain and threw it on the door whereby wooden plank was broken. The persons in the mob started pelting stones on the house of Anil (PW1). PW3-Rajaram stated that the stone pelted by accused No.12 Sk. Wajir struck to his nose and caused injury. Thereafter, he proceeded to the police station. The police were trying to pacify the mob. PW3-Rajaram stated that he saw in the mob accused No.10 Abdul, accused No.11 Sk. Ismail, accused No.12 Sk. Wajir, and accused No.34 Sk. Kalimoddin. PW3-Rajaram denied a suggestion being put to him that since he was elected as a member of Gram Panchayat Election in the year 1995, he was in cross terms with accused No.12 and accused Kalimoddin. The improvement was pointed out in the version of .....8/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 8 PW3-Rajaram that he saw Anil (PW1) standing in front of his shop and accused Salim lifting a stone kept on drain had broken door of the shop. Further improvement was pointed out in his version that accused Kalimoddin and Rashid were quarreling with Anil (PW1).
9. The testimony of Deonand Raut (PW6) indicates that on the day of the incident he saw 400-500 persons on the road. In that mob, Kalimoddin, Isamoddin, Wahaboddin, Jamaloddin, Abdul Latif, Razzak Hotelwala, Dadamiya, Kadar Tailor, Salim Shakur, Tanya Panthelewala, Garshya Ismail and other persons were present. He stated that the said mob had gone to the shop of Anil (PW1) and he followed the same. The mob pelted stones on the cloth shop of Anil (PW1) and wooden door of the shop was broken. Accused Salim set on fire the clothes. He further stated that from the discussion, he came to know that Salim, Tanya, and Garshya have taken amount from cash box of the shop. It appears that though PW6-Deonand followed the mob, he was not present at the place where the actual incident had taken place. In such circumstances, it is doubtful whether PW6 was in a position to see the actual incident and as to what exactly had happened at the time of the incident.
10. On careful scrutiny of the testimony of the prosecution witnesses it is amply clear that owing to the incident of demolishing "Babri Masjid" on 6.12.1992, Bharat Band" on 8.12.1992 was declared. As such, the mob of .....9/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 9 muslim persons tried to close the shops in the village. No doubt true that though the testimony of the prosecution witnesses shows the incident of closing of the shops and breaking open the shop of Anil (PW1) had taken place, the testimony of these witnesses does not inspire confidence with regard to the presence of the accused persons at the place of the incident and their active participation in the said incident. There is a discrepancy in the version of the witnesses with regard to the role of the accused persons as well as alleged conversation between accused Kalimodding and Anil (PW1). There is also a discrepancy with regard to the exact conversation which had taken place between them.
11. Learned Additional Sessions Judge, out of 34 accused persons, has convicted only 5 persons who are before this Court. However, in view of the fact that the prosecution has not proved the presence of the accused persons and their active participation beyond reasonable doubt, they are entitled for acquittal. Learned Judge ought to have considered the evidence of the prosecution witnesses in its right perspectively. In the result, following order is passed.
ORDER
(i) The criminal appeal stands allowed.
(ii) The judgment and order of conviction dated 1.11.2006 passed by learned .....10/-
::: Uploaded on - 27/06/2018 ::: Downloaded on - 28/06/2018 00:21:20 ::: Judgment apeal624.06 16 10 Additional Sessions Judge, Darwha in Sessions Trial No.5/2004 is hereby quashed and set aside insofar as present accused are concerned.
(iii) The accused are acquitted of the offences punishable under Section 395 read with Section 149 and under Sections 147 and 336 of the Indian Penal Code.
(iv) The bail bonds of the appellants stand cancelled.
JUDGE !! BRW !! ...../-
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