2001 ALL MR (Cri) 1327
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND A.S. AGUIAR, JJ.

State Of Maharashtra Vs. Abdul Majid Abdul Gaafur Shaikh & Anr.

Criminal Appeal No. 221 of 1986

3rd May, 2001

Petitioner Counsel: Mr. A. M. SHRINGARPURE

Penal Code (1860), S.302 - Evidence Act (1872), Ss.3, 27 - Appreciation of evidence - Police witness - Murder - Recovery of blood stained clothes and knives on pointing out of accused - Non-examination of panchas on ground that they would not be able to depose for the prosecution as they were afraid of the accused persons - Held, it was not a cogent ground for not examining them - In such a circumstance, it would be unsafe to accept the testimony of police witness.

AIR 1971 SC 1586 - Followed. (Para 4)

Cases Cited:
The State of U.P. Vs. V. Jaggo Alias Jagdish, AIR 1971 SC 1586 [Para 4]


JUDGMENT

VISHNU SAHAI, J. :- Through this appeal preferred under section 378 (1) Cr. P.C., the State of Maharashtra has impugned the order dated 30/11/1985 passed by the Vth Additional Sessions Judge, Thane, in Sessions Case no. 179 of 1985 acquitting the respondents for offences punishable under section 302 r/w 34 IPC.

2. Shortly stated the prosecution case runs as under :-

On 30/3/1985, a social club by the name of Welcome Social Group was functioning on the second floor in Ramakunj Building at Jamblinaka in the district of Thane. At about 1.45 p.m. on the said date, when the deceased Riaz Khan was sitting on the first table in one of the halls of the club which was used for playing cards, and was playing cards thereon, the respondents entered inside the said hall. They dragged Riaz Khan therefrom and took him towards the running passage of the staircase of the second floor. At that time, the respondent - Abdul was holding a knife in his hands. The Manager of the club Subhash Mhatre and one Nahar Dalvi who at that time was doing painting work in the club saw the respondents dragging Riaz. Thereafter, cries of Riaz to the effect that 'Abdul mar diya' were heard. On hearing them, Nahar Dalvi came. In the meantime Subhash Mhatre was also informed and he also reached there. Riaz was saying that he was beaten by Abdul. Riaz asked Nahar Dalvi to catch the persons who has run away after assaulting him. Nahar Dalvi and Subhash Mhatre came on the road where they found a rickshaw standing in front of Ramakunj building opposite Subhash Hotel. They saw the respondents boarding the said rickshaw and running away.

It is also said that one Krishnakumar Ashar (Nanuseth) who has a hotel called 'Love Bird' in the vicinity of the place of the incident and Harishchandra Gole who had been working in Welcome Social Group also reached the place of the incident and Riaz told them that the respondent - Abdul has assaulted him.

Thereafter,Nanuseth asked Harishchandra to go to Thane town police station and inform the police. Immediately after Harishchandra had left, it struck Nanuseth that there was a police chowky nearby in the main bazarpeth. Consequently, he along with Subhash Mhatre went to the said chowky and informed police Constable Narvekar about the assault on Riaz Khan. While he was informing him, the latter stopped a rickshaw. On the said rickshaw, constable Narvekar proceeded to the place of the incident. Nanuseth and Subhash followed him. As soon as they reached Jamblinaka, they saw Harishchandra returning with a constable. With the help of the police, Nanuseth made Riaz board a rickshaw and took him to Civil Hospital, Thane.

3. The FIR of the incident was lodged by Nanuseth at Thane nagar police station and on its basis, S.I. Mungedekar registered C.R. No.157 of 1985 under section 302 r/w 34 IPC.

4. The investigation was conducted in the usual manner by P.I. Shivajirao Desai of Thane nagar police station. At 2.15 p.m. he rushed to Jamblinka where he came to know that Riaz had been shifted to Civil Hospital, Thane. He went to the said hospital and learnt that Riaz Khan had succumbed to his injuries. He instructed the head constable on duty to arrange for the inquest and himself rushed to Azad nagar and Rabodi for arresting the respondents. But, the respondents were not to be found. He came back to Thane nagar police station and attached the blood stained pyjama of the complainant Nanuseth under a panchanama Exhibit 18. He thereafter prepared the panchanama of the scene of the offence.

On 31/3/1985, he recorded the statement of nine witnesses. On 1/4/1985, 2/4/1985, 3/4/1985 and 4/4/1985 he recorded the statements of some more witnesses. On 4/4/1985, at 2.30 p.m. he arrested the respondent - Abdul Gafur. On 5/4/1985, PSI Rabodi arrested the respondent Aaya Yellappa Benuri. On his application, the magistrate remanded the said respondents to police custody. During the course of interrogation, they expressed their willingness to produce the blood stained clothes and knife. The said willingness in the presence of the panchas Kalicharan and Ramdular was recorded in a panchanama. Thereafter, on the pointing out of the said respondents, blood stained clothes and knives were recovered vide separate panchanamas.

However, we are not going deeper into these recoveries because, the prosecution in the trial court did not examine the two panchas on the ground that they would not be able to depose for the prosecution as they were afraid of the accused persons. We are afraid that this was not a cogent ground for not examining them. In this connection, it would be pertinent to refer to para 16 of the decision of the Supreme Court reported in AIR 1971 SUPREME COURT PAGE 1586 (The State of U.P. and another Appellants v. Jaggo alias Jagdish and others, Respondents).

We are extracting the relevant observations which are in para 16 and read thus:-

"The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been over. In such a case Ramesh could have been produced for cross examination by the accused."

Since the panchas were not examined, we feel that it would be unsafe to accept the testimony of P.I. Desai.

Since the respondents were unknown to the witnesses, during the course of investigation, they were put up for test identification. At the test parade, Subhash Mhatre and Maulabux (Rickshaw driver) correctly identified respondent Abdul Majid and although the former identified respondent Aaya, the latter failed to identify him.

After completing the investigation, P.I. Desai submitted the charge sheet against the respondents.

5. Going backwards, the autopsy on the corpse of Riaz Khan was conducted by the medical Officer of Civil Hospital, Thane. A perusal of the autopsy report, the genuineness of which has been admitted by the defence under section 294 Cr.P.C., shows that eight incised wounds were found on the corpse of the deceased who died as a result of haemorrhagic shock due to injuries to heart, lung and liver resulting from them.

6. The case was committed to the court of Sessions in the usual manner where the respondents were charged for offence punishable under section 302 r/w 34 IPC to which charge, they pleaded not guilty and claimed to be tried.

Their defence was that of denial.

During trial, in all the prosecution examined seven witnesses. We may mention that there is no eye witness of the incident and the case hinges on circumstantial evidence.

A perusal of the impugned Judgment would show that the main circumstantial evidence adduced by the prosecution against the respondents was that immediately before the incident, they were seen at Welcome Social Group by Narhar Dalvi PW 2 and Subhash Mhatre PW 5 (the former identified them at the test parade and the latter was not sent). Another piece of circumstantial evidence is that immediately after the incident, they went away in the rickshaw of Maulabux, PW 3.

Another piece of circumstantial evidence was recovery of blood clothes and knives on the pointing out of the respondents in the presence of public panchas Kalicharan and Ramdular. There are also some minor pieces of circumstantial evidence to which in our view, it is not necessary to advert to.

Apart from the circumstantial evidence, against the respondent - Abdul, prosecution relied on the evidence of oral dying declaration deposed to by witnesses Subhash Mhatre, PW 5, Nanuseth PW 1 and Harishchandra PW 4.

After assessing the evidence on record, the learned trial Judge came to the conclusion that the prosecution had failed to bring home the guilt of the respondents beyond reasonable doubt and hence, acquitted them vide the impugned judgment.

7. Aggrieved by the acquittal of the respondents, the State of Maharashtra preferred this appeal (Criminal Appeal no. 221 of 1986). As mentioned earlier, appeal against the respondent - Abdul Majid Abdul Gafur Shaikh was dismissed by a division bench of this court on 9/2/1987. In the circumstances, this appeal only survives against respondent no.2 Aaya Yallappa Benuri.

8. We have heard learned Additional Public Prosecutor for the appellant and perused the entire evidence on record. In our view, very plausible reasons have been furnished by the trial Judge for acquitting the respondents and this appeal does not merit interference.

As mentioned above, this appeal only survives against respondent - Aaya Yallappa Benuri.

We have seen above that the oral dying declaration of the deceased only implicates the respondent Abdul against whom the appeal has abated. The said dying declaration which has been deposed to by witnesses Subhash Mhatre, Nanuseth and Harishchandra shows that the deceased Riaz Khan told them that Abdul has assaulted him. This oral dying declaration does not incriminate the respondent - Aaya Yallappa Benuri.

9. Consequently, we are left only with the circumstantial evidence against the respondent - Aaya Yallappa Benuri. We have earlier given our reasons as to why it would not be safe to accept the evidence of recovery of the blood stained clothes and knives on the pointing out of the said respondent. That reason is that the two public panchas of recovery namely Kalicharan and Ramdulari were not examined. In para 5 (in his examination in chief,) P.I. Desai stated that they were not examined because, they were not willing to depose in favour of the prosecution being afraid of the accused persons. In our view, in view of the decision of the Supreme Court referred to earlier (AIR 1971 SUPREME COURT PAGE 1586 SUPRA) it was not open for PSI Desai to draw this inference and the said witnesses should have been examined and it was for the court to judge whether they had been won over or not. In these circumstances, as already mentioned by us earlier on the sole testimony of P.I. Desai, it would not be safe to accept this piece of evidence.

10. Coming to the identification of the respondent - Aaya Yellappa Benuri by witnesses Subhash Mhatre and Maulabux, it is pertinent to mention that the latter at the test parade failed to identify the said respondent and though the former identified him but, the trial Judge for very plausible reasons, contained in para 25 of the impugned Judgment, did not place any reliance on it. A perusal of para 25 shows that during the course of his cross-examination, Subhash Mhatre admitted that persons of different appearance were made to stand as dummies in a row at the test parade; some of them were having big hairs like hippies and others were not having similar hair styles. Since dummies were not similar to the respondent, the learned trial Judge was justified in ignoring this piece of evidence.

We now come to the last piece of circumstantial evidence namely that respondent - Aaya Yellapa immediately before the incident was last seen along with the deceased by witnesses Subhash Mhatre and Narhar Dalvi.

It is pertinent to mention that both these witnesses did not know the respondent by name. It is also pertinent to mention that although the respondent - Aaya Yallappa Benuri was put up for identification but, witness Narhar Dalvi was not sent to identify him, the reason perhaps being as has been admitted by him during his cross examination, that immediately after his arrest, the said respondent was shown to him. It is true that witness Subhash Mhatre identified the respondent - Aaya Yallappa at the test parade but, in view of his admission that dummies were dissimilar to the said respondent, it would not be safe to accept his evidence.

11. For the said reasons, in our view, the learned trial Judge was wholly justified in acquitting the respondent - Aaya Yallappa Benuri for the offence under section 302 r/w 34 IPC.

12. In the result, we uphold the acquittal of the respondent - Aaya Yallappa Magappa Benuri for the offence under section 302 r/w 34 IPC and dismiss this appeal. The respondent is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.

As mentioned earlier, appeal against the respondent - Abdul Majid Abdul Gafur Shaikh stands abated in view of order dated 9/2/1987 passed by a division bench of this court.

Appeal dismissed.