Bombay High Court
Abdul Riyaz @ Painter S/O Abdul Taj (In ... vs The State Of Maharashtra, Through ... on 22 February, 2016
Author: V. M. Deshpande
Bench: B. P. Dharmadhikari, V. M. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 465 of 2013
Appellant : Abdul Riyaz @ Painter son of Abdul Taj,
aged about 24 years, resident of Last Bus
Stop, Hasanbagh, Shesh Nagar, Nagpur
(presently in Central Prison at Nagpur)
versus
Respondent : The State of Maharashtra, through Police
Station Officer, Nandanwan Police Station,
Nagpur
Shri R. K. Tiwari, Advocate for appellant
Shri R. S. Nayak, Addl. Public Prosecutor for respondent-State
Coram : B. P. Dharmadhikari And
V. M. Deshpande, JJ
Dated : 22nd February 2016
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Judgment (Per V. M. Deshpande, J)
1. In the present appeal, exception is taken to the judgment and
order of conviction passed by the learned Ad-hoc Additional Sessions Judge-4,
Nagpur dated 29.4.2013 by which the appellant stands convicted for the
offence punishable under Section 302 of the Indian Penal Code and is directed
to suffer imprisonment for life and to pay a fine of Rs. 2000/- and in default of
payment of fine, to suffer rigorous imprisonment for three months. The
appellant is also convicted for the offence punishable under Section 397 of the
Indian Penal Code and on this count, he is directed to suffer rigorous
imprisonment for seven years. Both the sentences were directed to run
concurrently.
2. The facts which give rise to the present appeal are stated
hereunder:-
Police Sub-Inspector Sagar Tikekar (PW 12) was a Day Officer at
Police Station, Nandanwan, Nagpur on 24.9.2011. His duty hours were from
10.00 am to 10.00 pm. At about 08.35 pm, a telephonic message was received
in the Police Station that on Kharbi Road, a jeweller Sudhir Khobragade is
attacked and his ornaments have been forcibly snatched away and he is in an
injured condition.
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On getting such information, Sagar Tikekar, with other police
staff, reached to the spot to notice that the injured was already shifted to the
hospital and, therefore, they went to the Government Medical Hospital and
after obtaining the necessary permission from the doctor, they went to him.
That time, doctor declared him dead.
Sagar Tikekar, the Police Sub-Inspector with his police staff,
returned to the spot of incident and in presence of panchas, spot panchanama
was drawn (exhibit 36). Thereafter, Sunil Khobragade (PW 1), the brother of
deceased Sudhir lodged report (exhibit 28). On the basis of the said, Tikekar
registered the offences vide Crime No. 241/2011 punishable under Sections
302 and 397 of the Indian Penal Code.
3. The oral report of Sunil Khobragade discloses that he is owner of a
jewellery shop by name "Kalash Jewellers" whereas his deceased brother was
owner of a jewellery shop by name "Kamal Jewellers" and the said shop is
situated in the house of one Bankar at Kharbi Road. According to the report,
the distance between the two shops is 500 meters. As per the practice,
deceased used to do his work at his shop and in the evening at the time of
pulling down the shutters of the shop, he used to take all the golden as well
silver ornaments with him to the house.
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The First Information Report further states that on the date of
incident, at about 08.30 pm, when the first informant was closing the shutters
of his shop, Devendra Bankar, the friend of Sudhir came to him running and
disclosed that "lqf/kj HkkÅyk pkdw ekjyk vkgs-" Therefore, the first informant
immediately rushed towards the shop of Sudhir. There, he noticed that persons
gathered there were shifting the injured to the hospital in auto-rickshaw and,
therefore, the first-informant accompanied them and went to Choudhari
Hospital and from there, Sudhir was taken to the Government Medical
Hospital. During the journey to the Government Medical College Hospital in
the auto-rickshaw, Vijay Lute (PW 3) disclosed to him that when Sudhir, after
closing his shop, was proceeding to his house, that time one person wearing
cream-colour shirt gave a knife blow and snatched away the belongings
containing the ornaments.
4. The investigation of crime was entrusted to Shri Sunil Jaiswal (PW
13), Police Inspector. On suspicion, the appellant was arrested from his shop
since the appellant was not found present in his house. The personal search of
the appellant was taken. That time, the police officials found a plastic white-
colour packet which was containing the ornaments of yellow-colour metal. The
seizure and search panchanama was drawn and it is at exhibit 55. Also, a
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separate seizure memo was drawn as per exhibit 56. The police officer noticed
blood stains on the shirt and also noticed that two buttons of the said shirt
were missing. The clothes on the person of the appellant were seized under
seizure panchanama (exhibit 57). The police officer also arrested co-accused
Soheb Khan and one gupti was seized from his possession.
On 27.9.2011, the appellant made a disclosure statement (exhibit
64). Consequent to the same, one knife was seized from his shop under seizure
memo (exhibit 65). The Investigating Officer also seized the clothes of the
deceased. All the seized articles were sent to the Chemical Analyzer under
requisition (exhibit 71). After completion of the entire investigation, charge-
sheet was presented in the Court of Law against the appellant and the co-
accused Soheb Khan.
5. A charge was framed against the accused persons in Sessions Trial
No. 609 of 2011 vide exhibit 18 for the offences punishable under Sections
302, 392 read with Section 397 and Section 34 of the Indian Penal Code. After
a full-dress trial, the learned Judge of the Court below acquitted the co-accused
Soheb Khan, however, convicted the appellant, as observed in the opening
paragraph of this judgment.
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6. We have heard Shri R. K. Tiwari, learned counsel for the appellant
and Shri R. S. Nayak, learned Additional Public Prosecutor for the respondent-
State. With their able assistance, we have gone through the record and
proceedings.
7. Dr Jaydeo Borkar (PW 10) is the autopsy surgeon. He performed
the post-mortem on the dead body of Sudhir. He found following two external
injuries :
"(1) Stab wound 2.9 cm x 2.5 cm x cavity deep present on left side
of chest at intercostal space of midclavicle or line with redish blood
oozing present with both angle acute and both margins clean cut
directing medially upwards.
(2) Stab injury 2.5 cm x 0.5 cm x muscle deep, both angle acute
both margin clean cut directing medially present on lateral aspect of
left arm upper 1/3rd"
He also proved the post-mortem report (exhibit 45). According to the doctor,
the cause of death is shock and haemorrhage as a result of injury to vital organ
heart.
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In view of the evidence of Dr Borkar and the post-mortem report, it
is established that deceased met with homicidal death.
8. The question that falls for consideration before this Court is as to
whether the prosecution is successful in bringing home the guilt of appellant in
respect of the homicidal death of Sudhir beyond reasonable doubt ?
9. During trial, the prosecution has examined in all thirteen
witnesses. It is the submission of the learned Additional Public Prosecutor that
though PW 3 Vijay Lute and PW 4 Komal Shinde who were examined by the
prosecution as witnesses had turned hostile and had not suppoerted the case of
the prosecution at all, however, in view of the following circumstances, it is
clear that the appellant can be held to be responsible for the death of Sudhir
Khobragade:-
(i) After incident, the appellant was found running away from the
spot and that was seen by PW 6 Pravin Ramgoniwar and PW 11 Narendra
Hazare.
(ii) The another circumstances that is pressed into service is that the
appellant was caught at 03.00 am i.e. within eight hours of the incident from
his shop and during his search, stolen ornaments were seized which were
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identified by PW 1 Sunil that those belonged to the deceased.
(iii) At the time of arrest, two buttons of the shirt on the person of the
appellant were found to be missing and one button was found on the spot and
as per Chemical Analyzer's report (exhibit 94), it tallied with the other button
on the shirt of the appellant.
(iv) The seizure of knife at the behest of the appellant on his memorandum
statement.
He, therefore, submits that the appellant was rightly convicted by
the Court below.
10. Admittedly, the first-informant Sunil is not an eye witness. He
received information about the attack on his brother from Devendra Bankar. He
is examined by the prosecution as prosecution witness no. 2. This witness has
proved inquest panchanama (exhibit 31). Devendra Bankar is also not an eye
witness. He received a phone call from Vijay Lute (PW 3) who informed him
about the incident. Therefore, he immediately went to first-informant and
narrated the factum of assault. Vijay Lute (PW 3) who is a photographer, has
turned hostile though he was examined as a eye witness to the incident. He
has also not corroborated Devendra that he made a phone call to him. The
other eye witness Komal Shinde has also turned hospital. She has also not
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supported the prosecution case in any way.
11. The learned counsel for the appellant Shri R. K. Tiwari has
vehemently attacked the prosecution theory in respect of the circumstances. He
submitted that when the case of the prosecution is based on the circumstantial
evidence, the chain must be complete, leaving no room of doubt. He further
submits that each circumstance has to be proved independently by the
prosecution.
12. Let us scrutinize as to whether the circumstances as are pressed
into service can be the basis for upholding the conviction of the appellant.
13. Insofar as the first circumstance is concerned, that the appellant
was seen running away from the spot, is sought to be proved by the
prosecution through the evidence of PW 6 Pravin and PW 11 Narendra. The
incident in question is dated 24.9.2011. As per the claim of these prosecution
witnesses, on 24.9.2011 they were standing in front of the house of Narendra
Hazare (PW 11) below the street-light. That time, the clock was showing time
of 08.30 pm. Their evidence discloses that two persons came running from
Kharbi Road and that time Narendra (PW 11) asked those persons "isaVj D;k gqvk"
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According to PW 6 Pravin, those two persons ran away. Thereafter he asked
Narendra (PW 11) as to who were those persons. Thereupon, Narendra
disclosed to him that he is a painter and he is a notorious goonda. According to
Pravin, one of them was having cream-colour shirt on his person. Pravin (PW
6) identified the appellant from the dock.
Though the incident is dated 24.9.2011, police statement of this
witness Pravin was recorded on 26.9.2011 and there is no explanation
whatsoever for recording the statement after the lapse of two days.
14. Learned counsel for the appellant has submitted that no test
identification parade was conducted during the course of investigation and,
therefore, much importance cannot be attached to the identification in the
court hall.
15. It is well-settled that identification in the Court is a substantive
piece of evidence whereas the test identification parade simply corroborates the
same. The Honourable Apex Court in Dana Yadav alias Dahu and ors v.
State of Bihar reported in (2002) 7 SCC 295 has ruled that purpose of test
identification parade is to test the observation, grasp, memory, capacity to
recapitulate what a witness has seen earlier, strength or trustworthiness of the
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evidence of identification of an accused and to ascertain if it can be used as
reliable corroborative evidence of the witness identifying the accused at his trial
in court. If a witness identifies the accused in court for the first time, the
probative value of such uncorroborated evidence becomes minimal so much so
that it becomes, as a rule of prudence and not law, unsafe to rely on such a
piece of evidence.
16. Further, in his evidence, Pravin (PW 6) as admitted as under :-
"Due to dark of night, I had no personal attention properly towards
their fact."
The evidence of this prosecution witness was recorded on 18.2.2013, after one
and half years. Further, it is clear that the appellant was unknown to the
prosecution witness Pravin and when he has admitted in his evidence that he
has not given any personal attention towards their face, it would rather risky to
accept identification for the first time in the Court after one and half years.
17. Insofar as evidence of PW 11 Narendra is concerned, in our view,
the learned counsel for the appellant is right in making the submission that the
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evidence of this witness has to be excluded from consideration since before
entering into the witness box, his previous police statement was read over to
him outside the Court. He placed reliance on the reported decision of this
court in Suresh Purushottam Ashtankar v. The State of Maharashtra & anr
reported in 2015 ALL MR (Cri) 4243 to which one of us (V. M. Deshpande, J)
is a party.
The relevant portion from the evidence of PW 11 Narendra Hazare
reads as under :
"Police informed me on telephone to appear in the Court for
evidence today. I have no summons to appear on today specifically.
Police shown me the Court hall today. It is correct that police stated
me that date of incident is 24.9.2011 and date of my statement is
26.9.2011. It is true to say that prior to commencement of my
evidence, my statement has been read over to me outside the
Court."
The submission of the learned counsel for the appellant that this witness
Narendra is a got-up witness, appears to have some force. The police statement
of this witness is recorded after two days. There was no reason for this witness
to keep mum for good two days to state about the fact that he had seen the
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appellant running away from the spot.
18. In view of the aforesaid evidence and on the touchstone of law laid
down by this Court, we have no option but to discard the evidence of this
prosecution witness since he has stealthily refreshed his memory. In that
behalf, it would be useful for us to reproduce hereinbelow the observations of
the learned single Judge of this Court in Criminal Appeal No. 157 of 2002
dated 17th September 2012 (Hon'ble Shri P. V. Hardas, J ) :
"In the present case, what we find is that in the midst of the
recording of the examination-in-chief of the witness P. W. 2 Baban
had requested the Special Judge to handover his 161 Statement to
him and after reading the same had deposed further. We find this
procedure of the Trial Court to be in complete departure to the well
known procedure of the recording of the evidence. The Trial Judge
should not have permitted PW 2 Baban to refresh his memory on
the bqasis of 161 Statement. What was deposed by PW 2 Baban
subsequent to reading of 161 Statement was not his recollection of
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the incident as occurred in front of him but was on the basis of
what was stated in his 162 Statement. The evidence of PW 2
Baban, therefore, has to be lebelled as that of a tutored witness
who was turored while his examination-in-chief was being
recorded. The evidence of PW 2 Baban, therefore, will have to be
left out of consideration while assessing the evidence of the
prosecution in respect of demand and acceptance of the tainted
currency notes by the appellant."
In view of the aforesaid discussion, it is clear the first circumstance
cannot be used against the appellant.
19. Insofar as second circumstance is concerned, the First Information
Report is lodged by PW 1 Sunil on 24.9.2011. The FIR is registered on
24.9.2011 at 23.15 hours.
As per the evidence of Investigating Officer PI Sunil Jaiswal, they
were having suspicion over the appellant and, therefore, firstly, they made a
visit to his house. Since he was not found there, the police party went to his
scrap shop and that time, he was found there and he was arrested and at the
time of arrest, from his person various gold ornaments were seized. The arrest
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and personal seizure panchanama is at exhibit 55. It shows that it was started
at 03.00 hours and it ended at 03.30 hours of 25.9.2011. In that context,
following portion from the evidence of first-informant Sunil raises serious
doubt about the truthfulness :-
"When I was lodging the report before police, police had brought
accused Riyza alongwith a box of ornaments. I know him before
Court he is present. I had stated the list of ornaments before police
and I had identified the ornaments of the shop of my brother before
police."
Thus, there is a material discrepancy in the evidence of the
prosecution since, according to the First Information Report, it was lodged at
23.15 hours. The First Information Report shows that it was lodged against the
unknown person. Exhibit 55 shows that the appellant was arrested in the wee
hours of 25.9.2011. However, if the evidence of witness Sunil is to be believed,
the police officer presented the appellant before him at the time of lodging of
the report.
20. Further, though PW 1 Sunil has stated that he had identified the
ornaments of his brother's shop before police, no such document is placed on
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record by the Investigating Officer in that behalf. Further, the seizure
panchanama (exhibit 56) in respect of the ornaments is completely silent about
the box being sealed nor there is any other evidence in that behalf. In view of
such quality of evidence in that behalf, in our view, the said circumstance also
is not helpful to the prosecution.
21.
Insofar as third circumstance is concerned, we have the spot
panchanama (exhibit 36). The said panchanama is duly proved by PW 5
Madan Zalpure. The spot panchanama, though shows the presence of one shirt
button, it would not be possible for us to place reliance on the evidence of PW
5 Madan in view of his admission given in his evidence to the following effect:-
"(a) Prior to commencement of my evidence APP had stated me about the
shirt buttons."
"(b) I had not read the contents of panchanama. Police had also not
explained me the contents."
"(c) The crime details form was a blank form and I put my signature on it."
"(d) Due to dark night I had not specifically paid attention towards the
articles collected by police on the spot."
"(e) It is true to say that I came to know later on about the incident therefore
in order to help police I signed panchanama."
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22. The learned Additional Public Prosecutor was unable to meet the
submission of learned counsel for the appellant that this incriminating
circumstance was not put to the appellant when he was examined under
Sect8ion 313 of the Code of Criminal Procedure and, therefore, in our view, the
learned counsel for appellant is right in making submission that the said
circumstance cannot be used against him.
23 Insofar as the recovery of weapon at the instance of the appellant
is concerned, the said was seized from a place which, according to the
prosecution, was the hut of the appellant. The said panchanama is dated
27.9.2011. Further, the appellant was arrested on 25.9.2011 from the said hut.
That time, a panchanama (exhibit 55) was prepared. What is to be noted is
that the place was already known to the police and further, at the time of
seizure of the weapon, it was not in the control of the appellant and it was
already burnt by somebody. Further, Chemical Analyzer's Report (exhibit 91)
is also in the negative. Exhibit 91 Chemical Analyzer's Report also shows that
no blood stains were found on the clothes of the appellant which were seized at
the time of his arrest.
24. Suspicion, however, strong may be, cannot take the place of proof.
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The learned Judge of the Court below, in our view, has not evaluated the
evidence in its true perspective, resulting into miscarriage of justice. That
warrants us to pass the following order :-
ORDER
(i) Appeal is allowed.
(ii)
Judgment dated 29.4.2013 delivered by the Ad-hoc Additional sessions Judge-4, Nagpur in Sessions Trial No. 609 of 2011 is quashed and set aside.
(iii) Appellant Abdul Riyza @ Painter s/o Abdul Taj be set free if his custody is not required by the State in any other matter.
(iv) The seized ornaments, if not already released to the legal heirs of deceased, be returned in their favour, after appeal period is over.
(v) Remaining articles being worthless, be destroyed, after appeal period is over.
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