Bombay High Court
Ahmad Alias Ahmad Chakri And Others vs The State Of Maharashtra on 28 July, 1993
Equivalent citations: 1994CRILJ274
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Saldanha, J.
1. This appeal concerns a very gruesome incident of murder that took place at about 8-40 p.m. on 16-9-1990 in front of National Electronic Shop situated at Station Road, which is, in fact, referred to a Nasjid Galli, at Andheri West, Bombay. One Yusuf Siddiq, who is alleged to have been conducting Matka business, was assaulted with deadly weapons by a group of four persons. Two of them were armed with swords and the other two with guptis. The post-mortem notes alone indicate that the assault was so savage that the deceased Yusuf Siddiq was virtually hacked to pieces, he having sustained as many as 29 injuries. The area is a very crowded one as the record indicates in so far as it is not only the proximity of the railway station but the number of shops in the area that account for a large number of persons passing by and visiting that place. It appears that the matka business in question was being carried out in a small structure situated within the railway compound, which is in the immediate proximity and there is some suggestion to the effect that this business was originally being run by Accused No. 1 and that it had changed hands and the deceased Yusuf Siddiq had taken over the same. It, however, appears that having regard to the nature of that trade, that even after handing over the main business to the deceased Yusuf Siddiq, Accused No. 1 is alleged to have been continuing with the same along with his associates, possibly as a rival, in the immediate proximity. As a result of this, it is contended by the prosecution that some bitter hostility had developed and there is a suggestion that not only the Accused but the deceased Yusuf Siddiq belonged to a class of persons who are all on the wrong side of the law and were also given to involvements in incidents of violence. It is in this background that the incident is question took place.
2. Siddiq Abdul Kadar Bagwan (PW 3), who is a Police Constable, claims that he was present in the area when the incident took place and that he, along with two other Police Constables, tried to nab the assailants, but that the four persons ran away. One of them is supposed to have dropped a gupti so close to Bagwan that the weapon, in fact, injured his toe. After the Accused made for their escape, Bagwan and one of the other Police Constables took the injured Yusuf Siddiq in a rickshaw to the hospital, but he was declared dead on admission. Bagwan thereafter went to the Police Station and lodged his First Information Report, in which he has given the name of one of the assailants as Ahmed Chakri and three others. He stated that the Accused is a known mawali and, furthermore, that there were three other assailants. According to him, on seeing Bagwan and the other Police Constables approaching, Accused No. 1 Ahmed Chakri recognised the Police and shouted out "Police, Police", whereupon the assailants stopped their assault of Yusuf Siddiq and ran away from that place. The Police commenced investigations and arrested Accused No. 1 on 18-9-1989. Accused No. 2 was arrested a day or two thereafter and Accused No. 3 and Accused No. 4 were arrested on 21-9-1989. In the meanwhile, the Police completed the other formalities, such as the various Panchanamas, etc.
3. It is alleged by the prosecution that in the course of investigation in the following few days, Accused Nos. 1, 2 and 3 made certain statements in the course of which they led the Police Party to their respective residences from where the Police recovered two swords and one gupti and blood-stained clothes. These garments, along with the weapons, were sent to the Chemical Analyser, and the investigation report indicates that there were traces of blood of group "AB" on all these clothes and on the weapons. It is relevant to mention that the blood group of the deceased Yusuf Siddiq was also found to be "AB". As far as the four Accused are concerned, it is rather a coincidence that the blood samples taken from them, on analysis, indicted that all four of them bolonged to the "B" blood group. It is, therefore, quite clear that the presence of "AB" blood group on the clothes recovered at their instance and the weapons recovered at their instance would, normally, suggest that the prosecution has established that the blood of the same group to which the deceased Yusuf Siddiq belonged was traced on all these articles. No identification parade was conducted in this case. On completion of the investigations, the four Accused were placed on trial before the learned Additional Sessions Judge, Greater Bombay, who accepted the prosecution evidence and convicted them for the offence punishable under section 302 read with Section 34 of the Indian Penal Code and awarded to each of them a sentence of imprisonment for life. The present appeal is directed against this set of conviction and sentence.
4. We need to observe at the very outset that the record in this case is rather voluminous. That is because the witnesses, though not very many, have been cross-examined at considerable length. Apart from this, the learned trial Judge has taken the precaution of putting virtually every piece of evidence to each of the accused when their statements under S. 313 of the Code of Criminal Procedure, 1973 were recorded and has also proceeded to analyse all the evidence produced before him in great detail in the judgment. Shri Mundargi, learned counsel appearing on behalf of the appellants-accused, has taken us through the record and we have heard him both on points of fact and on points of law, we have also heard Shri Nalawade, the learned A.P.P., who has supported the conviction.
5. Shri Mundargi has confined his submissions to attacking the evidence of identification because the principal plank of his arguments is that there is no dispute about the fact that the deceased Yusuf Siddiq was, in fact, assaulted by certain persons on that night and that the evidence conclusively establishes that he met with a homicidal death. Shri Mundargi has also not seriously questioned the detailed evidence led by the prosecution with regard to the alleged involvement of both accused No. 1 and the deceased Yusuf Siddiq in the rather flourishing business that was obviously the main cause of that subsequently transpired. He pointed out to us that accused Nos. 2 and 3 are the sons of accused No. 1 and that accused No. 4 is the nephew. The prosecution alleges that accused No. 1 had involved his relatives as also several other employees as persons to assist in his business. Shri Mundargi has laid some emphasis on the fact that the are in question is an extremely crowded one, and secondly, that the incident has taken place in a part of the busy crowded place and the crowd would probably have been at its maximum. He emphasised this fact in support of his contention that when a horrifying incident of the present type has taken place where four persons have virtually cut to pieces an adult human being, the police should certainly have got better evidence then what they have produced before the Court. Those could include persons such as the shop-keepers, etc. from the area, even if by standards have run away and totally disclaimed knowledge of what had happened. Shri Nalawade seeks to answer to this head of criticism by pointing out the background of both the parties who are, undoubtedly, violence-prone anti-social elements, the nature of the incident and the fact that in these circumstances persons who have very small business in the area would never risk their lives by even so much as admitting that they had seen anything. It could be sufficient cover for them to state that the are was so crowded that they were busy with their work and, therefore, did not notice who the assailants were. That issue, however, is secondary. Shri Mundargi has concentrated his attack on the evidence of Mohammed Rafiq Siddiq (P.W. 2), who is the real brother of the deceased Yusuf Siddiq. He has admitted his close associations with the deceased Yusuf Siddiq and, according to him, he is the eyewitness to the incident. He states in no uncertain terms that the accused persons are known to him and that he had seen them assaulting his brother. According to him, the assault was so savage that out of the motive of self-preservation he moved away from that place across the railway line and took a circuitous turn before he reached the residence of the deceased and informed his wife of what had happened. He claims to have identified all the assailants. He gives no plausible reason in not having intervened in the incident and he thereafter proceeded to state that he went home and slept there quietly. This witness has been cross-examined at considerable length and what has been brought out is essentially the fact that of one were to believe the sequence of events as narrated by him that it would be rather difficult to accept that he had, in fact, seen the incident. This was not an isolated place, but, on the contrary, it was an extremely crowded area. If Mohammed Rafiq Siddiq (P.W. 2) was in the immediate proximity when his brother was set upon by four armed assailants, it is too much to accept that he would have left his brother there is that condition and would have fled from that place. He admitted that they were on good terms, that they used to work together and under these circumstances had he been on the scene, not only would he have raised an alarm but he would have mobilised some support in order to save his brother. It is impossible for us to accept his story that merely out of a sense of fear that he ran away from that place. We have only his version and further we find that even assuming that he was so much of a coward as to get frightened, which we find extremely difficult to believe having regard to the nature of the trade that he and his brother were involved in, that he would have still rushed for assistance from the police. His conduct at the time of the alleged incident and his subsequent are two tests that need to be applied while assessing his evidence. We have gone through the evidence virtually with a fine foot-comb and Shri Mundargi has essentially pointed out to us that if one takes the 47-pages of deposition as a whole that the material is so weak and so doubtful that one cannot place any degree of absolute reliability on it. It is true that the learned A.P.P. has pointed out to us that both parties belong to a category of persons who, when they were armed with deadly weapons, did not react lightly and, under these circumstances, that the witness must have been so completely shattered and frightened that he virtually fled away from the spot and remained away right upto the next morning. In our considered view, the learned A.P.P. has been very charitable to the witness, but it would still be stretching creditability to extreme lengths to accept this position. Had Mohammed Rafiq (P.W. 2), the real brother and associate of the deceased Yusuf Siddiq, been a stranger, perhaps, what the learned A.P.P. points out could have been accepted, but having regard to the close-relationship, we find it difficult to uphold this explanation. The inevitable result of this state of affairs would be that the identification evidence of all the four accused persons, which is the crucial nexus that establishes the commission of the offence, would be shattered in so far as we are unable to place reliance on the evidence of Mohammed Rafiq Siddiq (P.W. 2).
6. Shri Mundargi has thereafter proceeded to point out to us that, undoubtedly, Siddiq Abdul Kadar Bagwan (P.W. 3) is a police constable. he has stated in his evidence that he knew accused No. 1, that he even had occasion to arrest him some three or four years earlier on an assault charge and, furthermore, that he had gone there after his duty hours in order to purchase vegetables. It is Shri Mundargi's contention that having regard to the fact that the First Information Report has been lodged by Siddiq Abdul Kadar Bagwan (P.W. 3) very shortly after the incident that it would be absurd to argue that he was nowhere on the scene or that he is a got-up witness. The main trust of Shri Mundargi's argument is concentrated on the fact that even if, according to him, Siddiq Abdul Kadar Bagwan was present somewhere in the vicinity that he could not have, in fact, seen the actual incident, nor could he have identified the accused persons. On a direct question from us as to how and under what circumstances in that case within barely half an hour Siddiq Abdul Kadar Bagwan (P.W. 3) could have disclosed the name of accused No. 1, Shri Mundargi volunteers the explanation that the moment the incident took place that there were as many as three police constables present there, they must have asked for particulars from the members of the public or from whosoever was around the place and that they must have gleaned from that as to who the assailants were. It is, undoubtedly, a plausible explanation, but we need to take a serious note of it because the question would also arise as to even if Siddiq Abdul Kadar Bagwan (P.W. 3) did not see the incident, if it was disclosed to him at the earliest point of time that accused No. 1 was the main assailant, whether this material would be sufficient along with the best of the circumstantial evidence to convict accused No. 1.
7. The main ground of criticism as far as Siddiq Abdul Kadar Bagwan is concerned emanates from the fact that he claims to be the person who virtually carried the injured Yusuf Siddiq into an autorickshow and that he took him to the hospital. The name of Siddiq Abdul Kadar Bagwan (P.W. 3) does not appear in the relevant register or records, but according to him, it was his colleague Shri Rane whose name has been set down. It is, however, true that he had gone to the police station and that the First Information Report has been registered at 9.20 p.m. on 19-9-1989. Furthermore, the First Information Report sets out the broad details of the assailants and specifically mentions the name of Accused No. 1 along with three other assailants. He has given the broad description of the remaining three persons. The record indicates that all the four Accused were arrested within two or three days of the commission of the offence and it is most unfortunate that even if both the so called eyewitnesses claim to know the assailants that the Investigating Officer did not go through the exercise of holding an identification parade. Shri Mundargi has placed heavy reliance on that aspect of the matter and has relied on certain decisions, which we do not consider it necessary to reproduce, in support of his contention that the non-holding of an identification parade at the earliest point of time in a case of the present type is a serious lacuna in the prosecution case. Shri Mundargi thereafter proceeds to point out to us the nature of replies given by Siddiq Abdul Kadar Bagwan (P.W. 3) to the detailed cross-examination and he contends that the cumulative effect of these answers would most certainly indicate that even if Siddiq Abdul Kadar Bagwan (P.W. 3) was somewhere in the vicinity of the incident that he was most certainly not an eyewitness.
8. It is true that Siddiq Abdul Kadar Bagwan very clearly claims to be an eyewitness, but significantly enough even though he is a member of the Police Force he does not describe the incident in any detail which we would have expected had he seen an assault of the present type. Shri Nalawade has relied heavily on the statements in the First Information Report which have come on record at the earliest point of time and which have been reproduced by Siddiq Abdul Kadar Bagwan in his evidence wherein he has stated that accused No. 1 recognised him and the other two police constables, that he shouted "Police, Police" and gave an alarm which was when all the assailants ran away. He, therefore, contends that this material would indicate that the police were, in fact, in the immediate vicinity and within visible distance of the accused and that, therefore, there is no reason whatsoever as to why the evidence of Siddiq Abdul Kadar Bagwan (P.W. 3) should be discarded. Shri Nalawade further pointed out to us that there can be no better evidence than that of Siddiq Abdul Kadar Bagwan, who is not only an independent person but a member of the Police Force, that it was unnecessary for him to indicate anything beyond stating the names of the persons, the name of accused No. 1 whom he knew and the types of weapons that were used by them. The non-mentioning of any further particulars, according to Shri Nalawade, was quite unnecessary because Siddiq Abdul Kadar Bagwan is a member of the Police Force. Incidents of this type are nothing unusual to him and, therefore, he has stuck to the statement.
9. The evidence of Siddiq Abdul Kadar Bagwan (P.W. 3) is the bedrook of the prosecution case because it is he who identified accused No. 1 and he claims to have seen the assailants and the weapons. It is he who has filed to the First Information Report at the earliest point of time and it is he who has taken the injured Yusuf Siddiq to the hospital. The defence has placed reliance on one fact, namely, that Siddiq Abdul Kadar Bagwan (P.W. 3) admits frankly that Yusuf Siddiq was so badly injured that a considerable amount of blood had got on to the clothes of Siddiq Abdul Kadar Bagwan. He has not advanced any explanation for not having produced the blood-stained clothes before the Investigating Officer and he coolly states that they were sent to the laundry behind the police station a day after the incident. Shri Mundargi submitted that this evidence should not be dismissed so lightly because it would conclusively establish the role played by Siddiq Abdul Kadar Bagwan role played by Siddiq Abdul Kadar Bagwan on that day. He states that if according to Bagwan he was present virtually at the scene of offence and was instrumental in removing Yusuf Siddiq to the hospital that there is just no question of the Investigating Officer not having taken charge of the blood-stained clothes, particularly since he was present in the police station and had recorded the First Information Report. Unfortunately, there is virtually a gaping void in the prosecution case with regard to this very crucial aspect, namely, that Bagwan who could have tendered an explanation has been unable to do so. Under these circumstances, the difficulty that arises is that a serious doubt is cast with regard to the exact role played by Bagwan (P.W. 3) on that day and as a direct consequence of this position the question would arise as to how close he was when the incident took place, whether he had, in fact, identified accused No. 1 on the basis of what he himself saw or on the basis of secondhand knowledge from the locality. If it is the latter, as we are inclined to believe, it would be hasardous to believe him because we are dealing with a murder trial where the consequences to the accused are grave and the conviction almost rests solely on the evidence of Siddiq Abdul Kadar Bagwan. Under these circumstances, we consider it our duty to apply the most rigorous test to the evidence, and unless it is absolutely trustworthy and solidly reliable, it would be impossible for us to base a conviction on this material. In our considered view, and after hearing learned counsel, the quality of the evidence of Siddiq Abdul Kadar Bagwan is at the highest to be categorised as shaky.
10. There are only two other heads that we need to go into. The first of them is the question of the discovery of the weapons at the instance of the three accused. As far as this aspect is concerned, the evidence in question appears to be reasonably reliable, but the difficulty posed is that there is some degree of delay as far as the discoveries are concerned. The Investigating Officer has not indicated as to why, even though the accused were in custody, it took the police so much time to effect the discoveries in question. Here again, there is a total vacuum in the prosecution case. Shri Nalawade did strenuously contend that the delay is insignificant insofar as it is hardly of four or five days. In a criminal trial of the present type, this amount of delay could have fatal consequences. The totality of the evidentiary value of the evidence of discovery, therefore, gets considerably weakened because of the delay factor.
11. As far as the presence of the "AB" blood-group is concerned, the position that emerges is that on the clothes that are attributed to the accused as also on the weapons that are alleged to have been recovered from them, undisputedly, blood of the "AB" groups has been detected. All that Shri Mundargi could contend was that even assuming this circumstance were to be held against the Accused, that it would not permit a conviction on the basis of this evidence alone. On the other hand, the learned A.P.P. contended before us that this is possibly the strongest evidence in the case because the weapons in question do tally with the weapons that are mentioned by Siddiq Abdul Kadar Bagwan (P.W. 3) and, furthermore, the medical evidence would indicate that the injuries on the deceased Yusuf Siddiq could distinctly have been caused by these weapons. Shri Nalawade submits that the presence of the "AB" blood group on the clothes and on the weapons has not been explained by the accused in the absence of an explanation, the prosecution evidence under this head has gone unchallenged. To a large extent, Shri Nalawade is right in so far as the presence of the "AB" blood group on the weapons and on the clothes of the accused in a circumstances of utmost seriousness and an extremely strong piece of evidence against the concerned accused.
12. On the state of this record, the question that new needs to be examined is a to whether the conviction of the Accused is sustainable. Had there been reliable evidence to indicate that they were the participants in the incident, the conviction under S. 302 read with S. 34 of the Indian Penal Code would have followed almost as a matter of course. In the present instance, we have indicted that the evidence of Mohammed Rafiq Mohamed Siddiq (P.W. 2) does not inspire confidence in us and that the evidence of Siddiq Abdul Kadar Bagwan (P.W. 3) is relatively of shaky character. This evidence, therefore, cannot be supported, bolstered up or corroborated by the remaining evidence that the prosecution has brought on record. Even assuming some part of that evidence that the prosecution has brought on record. Even assuming some part of that evidence is relatively strong or conclusive, it would not be sufficient in law to sustain a conviction under S. 302 of the Indian Penal Code. We need to record that as far as accused Nos. 2, 3 and 4 are concerned, the evidence against them is extremely weak and patchy. However, if their participation had been established, it would have been sufficient for a conviction having regard to the fact that there is a charge under S. 34 of the Indian Penal Code. That, however, is unfortunately not the case because the identification evidence is squarely in shambles. As far as accused No. 1 is concerned, we do concede that there are pieces of evidence on record which do strongly point towards him, but the difficult position that the Court in left with is that these few pieces of evidence, even if put together, would not in law be good enough to uphold the conviction on a charge under S. 302 of the Indian Penal Code. It is in those circumstances that accused No. 1 would be entitled to the benefit of doubt.
13. In the result, the appeal succeeds. The conviction and sentence awarded to the four appellants-accused are set aside. It is directed that the appellants-accused, who are in custody, be released forthwith, if not required in connection with any other offence. The appeal is accordingly allowed.
14. Appeal allowed.