Allowed

Shri Abdulla Mehboob Sarguru and 4 Ors. v. the State of Maharashtra .

Bombay HC27 Oct 2004APEAL/570/1999

Case brief

AI extract

What is this about?

This Criminal Appeal concerns the conviction and life imprisonment of seven appellants accused of conspiring to help a detainee escape and murdering a police constable. The High Court acquitted all appellants, holding that the prosecution failed to prove conspiracy or murder beyond reasonable doubt due to unreliable witness testimony and lack of corroborative evidence.

What did the court decide?

All appeals allowed. All accused acquitted and ordered released forthwith if not needed in other offences. Impugned judgment and order quashed and set aside.

Shri Abdulla Mehboob Sarguru and 4 Ors. Vs… — Pension and Retirement Benefits | Bombay HC (2004)

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[1]

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE

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 CRIMINAL APPEAL NO. 570 OF 1999
 WITH
CRIMINAL APPEAL NO. 496 OF 1999

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 CRIMINAL APPEAL NO. 570 OF 1999

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 1. Abdullah Mehboob Sarguru
 R/o of Mumbai.
 Currently lodgedat Yerwada
 Central Jail.

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 2. Izaz Shabbir Hussain Sayyed
 Residing at A-31, 203,
 Shriprasad Colony, Nala Sopara,
 (East), Dist. Thane and
 currently lodgedat Yerwada Central
 Jail.

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 3. Mirza Arif Baig alias
 Jacky Azam Baig
 Residing at 27, Mohmmad Ali
 Road, Mochi Chawl, 2nd floor,
 R.No.41,Mumbai and currently
 lodged at Thane Central Jail.

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 4. Jahagir Alia Shabuddin
 alias Shabu Kalbe Hussain
 sheikh, R/o Red Rose
 Apartment, 2nd floor,R.No.9,
 Opp. Kausa Masjid, Mumbra,
 Dist. Thane and currently’
 lodged at Thane Central Jail.

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 5. Anwar Abdulla Sarguru
 R/o Mumbai and currently
 lodged at Yerwada Central Jail. .. Appellants
 (Orig.accused
 Nos.1,2,3,4 and
 7).
 V/s.

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 The State of Maharashtra. ..Respondents.

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[2]

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 Shri H.H. Ponda Sr.Advocate with Shri Shrish Gupte,
 Sr.Advocate with Shri S.V. Marwadi for the appellants.
 Mrs. P.H. Kantharia,A.P.P. for the State.

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 CRIMINAL APPEAL NO.496 of 1999

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 1. Satish L. Gawte,
 R/o Flat No,. 504,
 Mahan Palace, near
 Lassi Hall,Ulhasnagar,
 Thane.

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 2. Suryaji Sawant (Dead)
 Residing at Old Police line,
 New Buld. No.C/19,
 Thane (W), Thane. .. Appellants
 (Orig.Accused Nos.
 5 and 6)
 Vs.

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 The State of Maharashtra. . Respondent.

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 Shri Shrish Gupte,Sr. Advocate with Shri B.G. Tangsali
 for the appellants.
 Mrs. P.H. Kanthari,A.P.P. for the State.

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CORAM : V.G.PALSHIKAR &

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 ANOOP V.MOHTA, JJ.

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 DATE : 27TH OCTOBER, 2004.

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 ORAL JUDGMENT (PER ANOOP V. MOHTA)

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 . These appeals are against the judgment and order
 dated 20th August, 1999, passed by the Sessions Judge,
 Mumbai, whereby, all the accused have been convicted
 under section 302 r/w Section 34 of Indian Penal Code
 (I.P.C.) and Section 120B r/w Section 34 of I.P.C. and
 also under Section 225 r/w section 34 of I.P.C. They

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[3]

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 have been sentenced to suffer imprisonment for life.
 They have also been imposed with a fine of Rs. 10,000/-
 each and directed that sentences to run concurrently.
 Therefore, Criminal Appeal No. 570 of 1999, by accused
 Nos. 1 to 4 and accused No.7 and Criminal Appeal No.
 496 of 1999, by accused No.5 and accused No.6 (now
 dead), against the common Judgment and Order.

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 2. FACTS;- All these 7 accused were charged under
 Sections 302, 120B and 225 of I.P.C. along with 8
 others, for hatching conspiracy and facilitate to
 escape, from the legal custody of the police, one Phiroz
 Abdula Kokani and for that to murder a Police Head
 Constable Bhalchandra Kardile (hereinafter deceased).
 The place of occurrence, was near O.P.D. building,
 opposite Department of radiology, in the compound of Sir
 J.J.Hospital (hereinafter J.J. Hospital), Byculla,
 Mumbai-400 008. The said, Phiroj Abudla Kokani was
 detenue under Terrorist And Disruptive Activities
 (Prevention) Act, 1987 ( for short TADA Act).

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 3. On 6/5/1998 at about 12.30 p.m. Police
 constable (P.W.2), Shivaji Awati, P.S.I., S.L. Gawte

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[4]

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 Accused No.5 (for short A 5), deceased Kardile, P.C.
 Parad, P.C. Sawant, Accused No.6 (for sort A6) and
 motor driver Mahadik of Van No. MH-12-M-4048 brought
 Phiroz Kokani and Salim Abdul Razak Beg, for medical
 treatment to the J.J. Hospital. The said vehicle was
 parked at J.J. Hospital compound. P.S.I. Gawte ( A5)
 had service revolver, P.C. Parad, H.C. Kardile ( the
 deceased), P.C. Awati had only one carbines.

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 4. On same day at about 3.45 p.m. the said
 prisoner along with specific Officers with specified
 duties were accompanying from Thane Jail to the
 Hospital, for medical treatment. As per the prosecution
 firing took place in the place of occurrence and the
 deceased died, as a bullet hit him.

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 5. Phiroz Kokani was taken to the 5th floor by
 P.S.I. Gawte, P.C. Parad and P.C. Shirsat and Salim

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 Beg was taken to Ward No.4 by Awati (P.W.2), the
 deceased and Sawant (A6). All were moving around for
 treatment from 12.30 p.m. At about 3 P.M. P.S.I.
 Gawte (A5) went to ward No.4 and at that time Phiroz
 Kokani was sitting in prisoner’s Van. P.S.I. Gawate

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[5]

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 sent Awati (P.W.2) and the deceased for their meals near
 the van and accordingly, Awati, (P.W.2) and the deceased
 went. Thereafter, P.C. Parad and Shirsat were sent, as
 replacement. Phiroz Kokani during this period was in
 the police van. At that time Awati handed over his
 Carbine to Shirsath. After some time Sawant (A6)
 returned from Ward No.4 and around that time Phiroz
 Kokani wanted to go to toilet to ease himself therefore,
 Sawant (A6) had removed his handcuffs and took him along
 with Awati and the deceased to the toilet in the O.P.D.
 The toilet was found locked, therefore, they came back
 and were waiting on the road for P.S.I. Gawte. Phiroz
 Kokani was standing near the door of the van and was
 surrounded by on three sides by the deceased, Sawant
 (A6) and Awati (P.W.2).

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 6. At about 3.45 p.m. a person fired at (the

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 deceased) Kardile and a bullet hit him. The deceased
 fell down. (P.W.2) Awati, another constable removed the
 carbine from the neck of the deceased and chased the
 assailant at gate No.6, who had fired at the deceased
 and also . Awati P.W. 2, claimed to have seen Phiroz
 Kokani sitting as a pillion rider on a running

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[6]

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 motorcycle and fled away from the spot towards Noor
 Baug. P.W.2 (Awati), as well as, other constables could
 not chase those persons, as another person standing near
 the gate No.6 had also fired on him. As per
 prosecution’s case, all these persons, who had fired
 escaped, from the scene. A6 did not chase any one. He
 was only standing near the Van. P.W. 2 (Awati) came
 back and found the deceased absent from the spot, as he
 was shifted to Ward No.4 by (Sawant) A6 and Mahadik.
 After noting all the information, the police machinery
 had commenced their investigation. The spot panchanama
 was recorded including of the van and the surrounding
 area at about 5.45 P.M. They found two pieces of fired
 shell on the spot. Based on the information gathered
 from P.W. (Awati). The statement of P.S.I. Salunke,
 P.W. 10, was recorded by P.W. 16 and was treated as
 F.I.R. As per the prosecution, they had arrested police
 officer P.S.I. Gawte (A5) and (A6) Head Constable
 Sawant, as some incriminating aspects were found in the
 conduct of these officers. The entire police team was
 interrogated. P.W 3 another eye witness Sachin whose
 statement was recorded on 7/5/1998. P.W. 3 was on the
 scene of occurrence near gate No.6, at the relevant

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[7]

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 time, as he had brought his pregenent wife for
 sonography at Sion, as he is also resident of Sion
 Mumbai. P.W. 3 had witnessed 4 persons with pistol
 running from the spot of occurrence through the gate
 No.6.

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 7. On 3/6/1998 accused No.1 was arrested by the
 police. On 14/7/1998 the custody of accused Nos. 2 to
 4 were taken from the Railway Police, C.S.T., Mumbai.
 Accused 5 and 6 were arrested. On 19/8/1998, accused
 No.7 was also arrested and was transferred from Goregaon
 Police Station. The Investigating Officer, after due
 panchanma and formalities, sent the material for the
 chemical analyser’s report.There was no recovery of any
 arms and or weapons. The necessary reports were
 received. Dr. Bawiskar examined and submitted the
 post-mortem of the deceased Exh..... The necessary
 charges were filed against the accused Nos. 1 to 4 on
 25/68/1998 and on 1/8/1998 against accused Nos. 5 and
 6. The Charge-sheet was filed against accused No.7 on
 9/11/1998. All the accused denied the charges framed
 against them. The necessary statements were recorded of
 the accused. The prosecution has examined 16 witnesses.

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[8]

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 These witnesses are as under.

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 P.W. 1 Sanjay Bhimrao Salunke whose statement

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 was recorded under Section 154 Cr.P.C. and
 treated as F.I.R. and who has assisted P.W. 16

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 in the investigating of the case.

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 P.W. 2 Shivaji Bhimaji Awati, who was on duty

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 as Police escort on Prisoner’s van at J.J.

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 Hospital on the date of the incident and one of
 the eye witness to the incident i.e. on
 6.5.1998.

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 P.W. 3 Sachin Sadashiv Marshilkar, eye witness

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 to the incident on 6.5.1998.

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 P.W. 4 Devkinandan Motiram Bawiskar, Medical

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 Officer on duty who at the relevant time was

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 attached to Central Jail Hospital who has spoken

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 about Phiroz Kokani being referred to J.J.
 Hospital for his ailment and medical examination

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 on 5.5.1998.

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[9]

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 P.W. 5 Dattajirao Shankarrao Ghorpade, who at

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 the relevant time was a Jailor attached to Thane
 Central Prison who has deposed about the
 under-trial Phiroz Kokani being relieved from
 the jail to proceed under escort to J.J.
 Hospital.

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 P.W. 6 Kashinath Pandurang Gurav who was in
 charge of the armoury at the relevant time . He

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 has spoken about the handing over of handcuffs
 carbine etc. to the Police personal in this

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 case.

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 P.W. 7 Mohd. Shabir Ismail Rindani who on the
 relevant date went to meet the undertrial Phiroz

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 Kokani at J.J. Hospital.

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 P.W. 8 Pramod Tukaram Patade, SEM who has

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 conducted the identification parade in this

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 case.

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 P.W.9 Pradip Kalimohan Singhi, acted as panch in

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 this case for scene of offence.

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 [10]

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 P.W. 10 Arjun Laxman Chavan, who was working as

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 a Clerk in the Thane Central Prison at the
 relevant time forwarded the under trial Phiroz
 Kokani to the police escort team for treatment
 to J.J. Hospital on 6.5.1998 as per the orders
 of TADA Court, Mumbai. He has deposed about the
 undertrial Phiroz Kokani not returning to the
 Jail on that date.

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 P.W. 11 Madhukar Laxman Salunke who has spoken
 about the duties assigned to escort party he
 being the escort in charge.

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 P.W. 12 Dr. Vithalrao Narayanrao Dabre, R.M.O.

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 of J.J. Hospital.

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 P.W. 13 Lotal Sakharam Shirsath attached to

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 Thane Police Head Quarters at the relevant time.
 He escorted the prisoners including Phiroz

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 Kokani on the date of incident i.e. 6.5.1998.

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 P.W. 14 Shashikant Eknath Shinde, Deputy

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 [11]

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 Commissioner of Police who was assigned the work
 of supervision at the Head quarters arranging
 for escort of prisoners and issued circular.

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 P.W. 15 Bhujang Shankar Mohite, Commisisoner of
 Police who has granted sanction to the

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 prosecute- P.S.I. Gawte, and H.C., Sawant

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 accused Nos. 5 and 6-- respectively vide
 sanction order dated 31.7.1998--

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 P.W. 16, Mohd Javed Abdul Rashid who was on
 duty as P.I. at J.J. Marg Police Station on
 the date of the incident i.e. 6.5.1998.

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 8. The learned Judge, after considering the entire
 material on the record, convicted the appellant-accused
 Nos. 1 to 7, out of 15 accused. Three accused have
 been reported to be dead and other 5 accused are still
 absconding. The accused No.6 died pending the appeal.
 Therefore, appeal against accused No.6 is abated. One
 Salian @ Dany who was amongst three assailants, also
 died pending the trial. He was a relevant person to
 establish prosecution’s case.

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 [12]

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 9. The learned Sessions Judge held that the death

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 of the deceased was due to firing at him, near the
 police van bearing No. MH 12 W 4048 and near gate No.6,
 J.J. Hospital, Mumbai. The death of the deceased
 (Kardile) was homicidal. Accused Nos. 1 to 7 were held
 responsible for the death of the deceased. It is also
 held that there was a criminal conspiracy by the present
 accused and others, and by firing at the deceased a
 commotion was created and taking advantage thereof, said
 Phiroz Kokani escaped from legal custody of the police.
 It has also been held that the entire gamut of the
 conspiracy was the culmination of meeting of minds to
 gain the above objectives. It is also held that there
 was subversion of lawful authority at the time of firing
 at the deceased, which consequently made Phiroz Kokani
 to escape. The learned Judge therefore, held that the
 offences have been committed by each of the accused Nos.
 1 to 7 and accordingly, convicted and punished.

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 10. Heard the learned Sr. Counsels for the

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 appellants and Mrs. P.H. Kantharia, learned A.P.P.for
 the State. We have been taken through the record of the

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 [13]

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 proceeding. We have gone through the testimonies of the
 witnesses and the relevant documents with the assistance
 of the Counsels appearing for the parties.

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 11 REASONING:- The prosecution story and the
 conviction in question are mainly based upon the P.W. 2
 (Awti), P.W. 3 (Sachin). P.W.2 was a police constable
 at the relevant time, who had surrounded Phiroz Kokani
 along with the deceased (Kardile) P.C. Sawant-accused
 No.6 (now dead) at the relevant time. P.W. 2 has

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 deposed that the deceased ( Kardile) got injured, as one
 Salian (now dead) had fired at him. P.W. 2 has deposed
 that as the deceased fell down, he removed carbine from
 his neck and chased that person i.e. Salian @ Dany.
 P.W. 2 has further deposed that he had chased two

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 persons, one who fired i.e. Salian @ Dany and the
 prisoner Phiroz Kokani who ran away towards Noor Bag.
 P.W. 2 after some chase returned as both the persons

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 ran away and escaped. P.W. 2 has nowhere deposed about
 the other 4 persons, who ran away from the spot. and or
 even referred to any other accused, who fired the shots
 if any, except deceased Salian @ Dany. Therefore, as
 per this witness itself, the deceased (Kardile) had

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 [14]

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 succumbed to the said bullet injury. The murder was
 committed only by Salian, (now dead ). He has not
 deposed about any other person or accused. He had
 identified the dead body of Salian @ Danny on 28th June,
 1998. On 22/7/1998 he was again called to J.J. Marg,
 (Morgue) to identify another dead body. This witness
 had identified accused Nos. 2 and 4 in the Court.
 There was no reference made about the specific role
 played by these accused and specially of A2 to A4.
 There was no reference made of accused No. 1 and 7 in
 his deposition.Therefore, there was no cross-examination
 by accused Nos. 1 and 7. P.W. 2 was suspended from
 29th May, 1998, because of the incident in question.
 P.W. 2 has also deposed that he had not mentioned about

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 the firing by the said Salian at him. This witness has
 no where supported the prosecution case beyond
 identifying the role played by Salian, who had fired and
 killed the deceased. Even though this witness had
 identified the accused No.5, 6, 2 and 4 in

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 identification parade, it nowhere connects the offence
 as alleged by the prosecution against all the appellants
 accused Nos. 1 to 7, as he had positively deposed and
 identified the person who had killed the deceased.

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 [15]

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 There are no other corroborating witnesses to this,

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 except P.W.3, even as per the prosecution case.

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 12. P.W. 3, who had been to J.J. Hospital for
 Sonography of his pregenant wife, and was about to enter
 gate No.6, he heard pistol shots. This wintess had also
 identified the dead body of assailant of the deceased on
 20th June, 1998. This witness has also in the
 identification parade on 22/7/1998, identified the
 accused Nos. 2 and 4. We have gone through this
 testimony of P.W. 3 and we find that this witness is
 full of contradictions and therefore, unreliable. There
 is no proof on the record to show about their visit to
 J.J. Hospital. He was in the hospital upto 6 p.m. on
 that day. But his statement was recorded on 7/5/1998.
 There was no reference also about motorcycle on which
 P.W.2 chased the assailants. P.W. 3 has deposed that

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 he had heard pistol shots, when he was entering the gate
 No.6 of the Hospital, at about 3.40 to 3.45 p.m. He saw
 three persons holding pistols running towards him. He
 also saw a constable lying injured. Those three persons
 when reached near gate No.6, haulted for a moment and
 again fired at constable. This witness has deposed that

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 [16]

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 the deceased (Kardile) was lying injured when constable

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 P.W. 2 had removed carbine from the neck of the
 deceased and went towards the assailants. This witness
 has further deposed that he saw P.W. 2 chasing two
 persons armed with pistols who were riding on
 motorcycle. This witness had also chased them for some
 distance. The said motorcycle went towards Dongri.
 P.W. 3 has deposed that P.W. 2 stopped one motorcycle
 and rode towards the assailants. This witness came into
 picture, after the injury of the deceased and when
 Salian and Phiroz Kokani were running away. There was
 no case of the prosecution or even of P..W. 2 that
 Phiroz had a pistol in his hand. There is no material
 to show that this witness had allowed the assailant and
 Phiroz to escape and then chased them. If this witness,
 was on the spot at the relevant time he saw P.W. 2
 chasing these two persons. There is no mention about

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 the role of accused No. 2 and 4 at this stage on the
 spot of occurrence. It means only two person fled away
 on motorcycle, as there was no reference about three
 persons on the motorcycle by P.W. 2, although P.W.3 has
 deposed that he saw accused no. 2 (Ijjaz), who was
 driving the motorcycle on which two persons escaped.

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 [17]

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 13. P.W. 3’s statement was recorded by the police.

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 This witness has identified accused No.2, driver of the
 motorcycle, and the second person i.e. accused NO.4 who
 was talking with with the accused No.2. It is not clear
 when and where they were talking to each other. There

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 is clear contradictions in between P.W. 2 and P.W.3 in

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 reference to the no. of persons, who were running
 towards him and rode on the motorcycle. P.W. 2 has
 deposed that he had chased assailant Salian and Phiroz
 who rode on the motorcycle and fled away. The
 prosecution and P.W.2’s case was that Phiroz with
 unknown persons fled away on motorcycle. There is

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 contradiction between P.W.2 and P.W. 3 also. This P.W.
 3 has deposed that he heard voice of injured constable
 and thereafter, they took the deceased to the casualty
 department. On 22/7/1998, he identified accused Nos. 2

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 and 4 in the identification, parade. This P.W. 3 in
 his cross-examination has has been unable to explain the

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 absence of the reference of motorcycle in his police
 statement. He has also been unable to explain, why he
 could not tell to the police that P.W. 2 had stopped
 the motorcycle and rode over to chase the assailants and

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 [18]

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 said Phiroz Abdula. This witness has further deposed
 that there was no much traffic on that road. His
 pregenent wife during this time was in a nereby hotel.
 His wife was not examined.

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 14. There are various contradictions and

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 improvements in the evidence of P.W. 3 in reference to
 the evidence of P.W.2. As per P.W. 3 there were three
 persons who fired at the deceased and injured him and
 thereafter four persons ran out of the gate No.6 and not
 only two as deposed by P.W. 3. There is no reference
 made to what happened to other absconding 2 persons.
 P.W. 2 (Awati) has nowhere deposed that he chased those
 assailants by a motorcyle upto Noor Baug, but could not
 succeed in arresting them. P.W. 3 has further deposed
 that P.W 2 (Awati) while chasing on the road stopped the
 motorcycle and rode on in and chased the two assailants.
 There are discrepancies in reference to the details of
 alleged accused or assailants as given by P.W. 2 and
 P.W. 3. Therefore, it is P.W. 3, who had given
 specific role only to accused Nos. 2 and 4, and not to
 any other, who along with other accused alleged to had
 hatched conspiracy and helped Phiroz Kokani to escape.

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 [19]

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 The prosecution has attempted to connect all these
 accused 1 to 7 and specially accused Nos. 2 and 4 with
 the crime in question based on the evidence of these two

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 witnesses. P.W. 2 as noted above has nowhere
 attributed any role to these accused specially of
 accused Nos. 2 and 4 in his testimony connecting them
 with firing at the deceased and or at him. There are no
 other testimonies or witnesses to support the positive
 case and or evidence against the accused Nos. 2 and 4.
 The identification by P.W. 2 and P.W. 3 of accused
 Nos. 2 and 4 in the identification parade after one and
 half months, itself cannot be sufficient foundation to
 convict the accused under section 302 r/w section 120B,
 as done in the present case. We have also noted that
 P.W. 2 has no where mentioned any thing about Phiroz
 Kokani, when he ran out of the gate No.6. P.W. 3 has
 also been unable to connect the manner in which accused
 No.2 or 4 helped Phiroz Kokani to escape on motorcycle
 and further that person who sat on the pillion of
 motorcycle with gun was Phiroz Kokani and no one else.
 No other corroborating evidence, including of
 motorcyclist and motorcycle number, except the statement
 made in F.I.R. Exh.40. It is clear that such statement

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 [20]

¶127

 made in the F.I.R. cannot be treated as substantial

¶128

 piece of evidence, unless it is corroborated by other
 independent witnesses or any other cogent material to
 support the same. Therefore, the evidence of P.W.2
 (Awati) read with the evinces of P.W. 3 are not
 sufficient to link the offence, as charged against all
 the accused. These evidences are not sufficient to
 involve all the accused in the crime in question beyond
 reasonable doubt.

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 15. Even if we take the testimony of P.W. 2, as
 substantial and material evidence to support the
 prosecution case, we find that, as per the prosecution
 case itself, the person, who had killed the deceased was
 the deceased Salian. P.W 2 and 3 had identified the
 dead bodies of the said deceased Salian @ Dany with
 other. Therefore, Salian @ Danny had murdered the
 deceased and no one else. Therefore, it is difficult to
 sustain the conviction, as well as, impugned order, as
 passed by the learned Sessions Judge against all the
 accused in view of this evidence itself.

¶130

 16. THE CONSPIRACY:- What remains is the case of the

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 [21]

¶132

 conspiracy, as contemplated under Section 120A r/w with
 Section 120 B of I.P.C. There is nothing on the record
 to establish conspiracy or pre planning by all the
 accused to facilitate the escape of Phiroj Kokani from
 the Police custody on that day, in question. As per
 P.W. 2 deceased Salian and Phiroz Kokani ran away and
 he chased them, this itself cannot be sufficient to
 connect the involvement of accused Nos. 2 and or 4.
 There is no independent or any material circumstance to
 demonstrate that all the accused had conspired and
 committed the offence in question.

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 17. The more important thing in this case is the
 alleged prosecutions case of conspiracy revolving around
 Section 120A and 120B of Indian Penal Code. There is no
 doubt that it is difficult to collect the evidence and
 to prove the agreement between conspirators. Based on
 the facts and circumstances of the case, the Court has
 to draw inference to prove that the particular act or
 omission falls within the ambit of conspiracy. The
 material as well as, circumstances should be such as to
 satisfing the Court that the persons have conspired to
 commit the offence. Thus it is essential that the main

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 [22]

¶135

 accused should be connected or involved in such
 agreements of minds along with other co-conspirators,
 eitehr directly or indirectly. Therefore, the burden is
 always heavy on the prosecution to bring on the record,
 the material to connect, a conspirator with the crime or
 offence in question. Section 10 of the Indian Evidence
 Act, 1872 will also come into play in such matters.
 Prima facie therefore, the mode of proof of the offence
 of conspiracy also needs the same evidence and material
 to prove the concerned offence. In absence of any
 direct evidence and in the facts and circumstances of
 such case, conspirator’s design and intention to commit
 illegal act has to be inferred.There is necessity of
 proving the common intention by the conspirators and
 between the conspirators. There must be connection of
 act or omission as a part of such conspiracy.

¶136

 18. In the present case therefore, even if we assume
 some negligence on the part of the police officers, as
 they failed to take care of the particular prisoner, at
 the relevant time, that itself cannot be the foundation
 to connect all these police officers along with the
 accused with the crime in question on the foundation of

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 [23]

¶138

 section 120A and 120B of I.P.C.

¶139

 19. There is evidence on record through P.W.14 by
 which it has been brought on the record that the police
 officers were fully aware of their responsibilities and
 or should be aware of their responsibilities while
 taking or transporting any prisoner from one place to
 another. The said guide lines has been placed on the
 record through the evidence of prosecution witnesses.
 Therefore, even if there were some breaches of their
 duties or guide-lines, still it is difficult to accept
 the prosecution case that all the police officers were
 involved in this particular crime, as it amounts to
 "conspiracy", as contemplated under Section 120A and
 120B of I.P.C.

¶140

 20. In the present case, there is no doubt and as

¶141

 observed even by the learned Sessions Judge that the
 prosecution has failed to place on the record any
 material and or evidence to bring on the record any
 meeting of minds and or any agreement by the accused
 prior to the date of incident i.e. 6/5/1998. In the
 absence of proof of any other act or intention of any

¶142

 [24]

¶143

 conspirators, prior to the date of meeting and or
 incident and as the prosecution has failed to prove and
 or bring any thing on record to connect their agreement
 or meeting of minds prior to 6/5/1998 or even
 thereafter. It is difficult to accept the prosecution
 case, as well as, the reasoning given by the learned
 Judge, that there was conspiracy hatched by these
 accused to commit the crime in question, with the help
 of each other.

¶144

 21. The conspiracy in the present case as alleged
 and as observed by the learned Judge, is therefore,
 based on surmises and conjunctures. The inference can
 be drawn of conspiracy and or of common intention to
 commit such act, only if any material or connecting
 evidence brought on the record, concerning and or
 connecting the respective conspirators or accused. In
 the present case according to us all these things are
 missing. There are no circumstantial evidence to
 connect all these accused with the crime in question on
 the foundation of conspiracy.We are concerned with the
 direct or indirect proof of conspiracy by all the
 accused, to connect the crime with the accused.

¶145

 [25]

¶146

 22. The alleged conspiracy by the police officers as
 observed by the learned Judge is in correct. It is
 difficult to accept that they had hatched conspiracy at
 the cost of life of the deceased.

¶147

 23. The deceased (Kardile) was also a police

¶148

 officers at the relevant time who had cordoned Phiroz
 Kokani along with others at the relevant time. There is
 no material placed on the record by the prosecution that

¶149

 they had plan or an intention to kill the deceased
 through the assailant-deceased- Salian. It is clear on
 the record that assailant Salian had fired the shot at
 the deceased and not on any one else. The involvement
 of these officers therefore, in this crime according to
 us is not proved beyond reasonable doubt, for want of
 either direct or indirect proof of conspiracy.

¶150

 24. The evidence of P.W. 7 has been made the

¶151

 foundation against all the accused that he saw a boy
 talking to Phiroz Kokani in the Mazgaon Court and later
 on the said P.W. 7 was also present at J.J. Hospital
 to meet Tanwir and Phiroz Kokani. Merely because the

¶152

 [26]

¶153

 said boy was talking with Phiiroz Kokani, as also
 deposed by P.W. 13, and the family members of Salim,
 also arrived at the said Hospital and came near
 prisoners van and handed over tiffin after inspection by
 the accused NO.5, that itself cannot be sufficient to
 held that P.W 13 or P.W.7 have proved beyond reasonable
 doubt of conspiracy by the police officers also.
 Accused No.5 had allowed the tiffin to be kept in the
 prisoners van for the Salim Beg that itself cannot be
 sufficient to accept the prosecution case against the
 accused.

¶154

 25. P.W. 7, Mohmad Shabir had identified accused
 No.1 and deposed that he saw Abdullah (Accused No.1)
 (A1) at Mazgaon Court. There is no corroborative
 evidence to support the testimony of this witness. This
 witness has admitted that he had not told any thing to
 the police at the time of his statement. which is
 reproduced as under:-

¶155

 I come out, stood at distance and heard the
 conversation between Abdul Sadguru and another
 to the effect "Firoz Abhi J.J. hospital me aaya

¶156

 [27]

¶157

 hai. Hamne baki ki puri tayari kiyeli hai, tu
 jake usko ye bata de, aur jo time apnane pakka
 kiya hai woh bhi bol de." I had not told the
 police to the aforesaid effect at the time of my
 statement. I cannot explain how it is so
 recorded."

¶158

 26. The learned A.P.P. has also relied on evidence
 of P.W. 1 to support its case to justify the conspiracy
 by all these accused. P.W. 1 Sanjay Salunke, has
 deposed that after receipt of the information he rushed
 towards the spot and proceeded further to investigation
 into the matter. Therefore, this witness has no direct
 knowledge of the incident in question. This witness has
 admitted that the statement of P.W.2 (Awati). was not
 recorded as F.I.R.. This witness has also deposed that
 the accused were made to stand near the railway gate and
 the police persons cordoned them on that spot during the
 process of the identification parade.

¶159

 27. It is also difficult to accept that merely
 because Firoz Kokani at 3.30 P.M. requested the accused
 No.5 to take him to the Lavatory and as lavatory was

¶160

 [28]

¶161

 closed, this incident was a part of the alleged
 conspiracy. The conspiracy can also be proved by
 circumstantial evidence but according to us in the
 present case both these elements are missing. The
 incident as referred above nowhere supports pre planning
 or meeting of minds or agreement of minds of these
 officers with others to allow the prisoner to rescue
 from their custody.

¶162

 28. It is not unnatural that when a handcuffed
 accused wants to go to lavatory or toilet, his handcuffs
 are required to be removed. The possibility of pre
 planning and discussion, unless proved beyond reasonable
 doubt, could cannot match the prosecution case that
 every thing was pre planned by all the accused as
 alleged and therefore, accordingly the prisoners were
 brought into the hospital at 12.00 p.m.and kept waiting
 upto 3.45.

¶163

 29. The deceased was injured who had carbine in his
 neck and no other accused or police officers had carbine
 at the relevant time. The deceased was shot dead and in
 that situation merely because accused No.6 (now dead)

¶164

 [29]

¶165

 could not control Firoz Kokani, who escaped from that

¶166

 spot, that itself cannot be the reason to accept the
 prosecutions case of conspiracy against these accused.
 The panic some time make such situation mentally and
 physically uncontrolable. The standby person in such
 cases of firing is likely to save his own life first.
 P.W. 2 in fact took carbine from the neck of Kardile
 and had chased assailants. What accused No.6, could
 have done to prevente the escape of prisoner cannot be
 suggested now. P.W. 3 Shirsat has deposed that Sawant
 was frightened and came to us and informed accordingly.
 Even if there is some negligence till it cannot be said
 to be a case of criminal conspiracy, as alleged, against
 the accused in the present case.

¶167

 30. Therefore, in absence of positive proof of
 conspiracy and in facts and circumstances of the case we
 do not agree with the findings given by the learned
 Sessions Judge, including the conviction order against
 the appellants under Section 302, 120B and 225 of I.P.C.

¶168

 31. There are no ingredients of Section 225 of
 I.P.C., present in the present case. There is no

¶169

 [30]

¶170

 material to support on the record that the
 acucsed-police officials had deliberately or

¶171

 intentionally facilitated, Phiroz to escape from police
 custody. On the contrary there is evidence to show that
 they tried and chased those persons to arrest them, but
 they could not arrest them, in spite of their efforts.
 There is material on record that all these officials at
 the relevant time had surrounded Phrioz before the
 incident in question. They were in the premises since
 12.30 p.m. Therefore, for want of specific material
 against these accused in the facts and circumstances of
 the case, we are not accepting the case of the
 prosecution that the police officers have committed the
 offence under Section 225 of I.P.C., even if we assume
 for a moment that there was some negligent, as they
 failed to take care of the prisoner as per the guide
 lines provided in such situation, if any, still it
 cannot be said this act itself falls within the ambit of
 Section 225 of I.P.C. At least in the present case. We
 are not concerned with the departmental action or
 enquiry, if case is made out.

¶172

 32. There is no doubt that the police officers

¶173

 [31]

¶174

 should take care of their responsibilities as per guide-
 lines prescribed for such situation. Therefore, such
 negligence, if any, are unaffordable to the department,
 as well as, to the society. However, in the present
 case, based on the material placed on the record, we are
 of the view that the prosecution has failed to prove
 beyond reasonable doubt that all the accused had hatched
 the conspiracy and with common intention committed the
 murder of Kardile and facilitate Phiroz Kokani to escape
 from legal custody.

¶175

 33. The prosecution is unable to explain the delay
 of more than 24 hours in lodging the F.I.R. In such
 matters the delay of lodging and recording F.I.R. after
 24 hours of the incident also raises doubt in the
 prosecution case. The presence of P.W. 3 at the
 relevant time on the scene is also appears to be
 doubtful. Being the resident of Sion, instead of
 treating his pregenent wife at Sion, hospital, he had
 visited J.J. Hospital, Byculla. No evidence of
 pregenant wife of P.W. 3 was lead to support the case
 of P.W. 3 to confirm about his presence at the relevant
 time.

¶176

 [32]

¶177

 34. There is no much dispute about the handling over
 of arms and ammunitions and handcuffs; about the
 homicidal death of the deceased; about the presence of
 police officers and two prisoners in the J.J. hospital,
 at the relevant time, as the same has been duly proved
 by P.W. 4,5,6,7,10. But this itself not sufficient to
 accept the prosecution case.

¶178

 35. There is nothing on the record to show that
 while conducting the identification parade all the
 necessary guide lines have been followed.

¶179

 36. P.W. 4 Dr.Devkinandan Motiram Bawiskar in his
 post-mortem report has established and proved only about
 one basic bullet injury. This witness had only proved
 the treatment to Firoz Kokani and therefore, he was
 brought to the J.J.Hospital.

¶180

 37. P.W. 8 Pramod Patade, has also nowhere
 supported the prosecution case fully. Identification
 parade was not conducted as per the prescribed
 guide-lines.

¶181

 [33]

¶182

 38. P.W. 9 Pradip Singh, was the panch witness and
 has deposed that two shell’s of bullets were recovered
 from the spot. It was recorded at 5.45 p.m. on the
 same day. P.W. 15 was the Commissioner of Police, who
 had sanctioned the action against the appellants-accused
 5 and 6.

¶183

 39. P.W 16 the Investigating Officer has proved the
 various documents on the record, including the post
 mortem of Kardile and chemical analyser’s report.There
 were various contradictions in his testimony in
 reference to other testimonies of the prosecution
 witness.

¶184

 40. The cumulative effect of these testimonies is
 that the prosecution has failed to prove beyond
 reasonable doubt that the accused have committed the
 offence in question. The learned Judge has therefore,
 wrong in convicting all the accused based on the
 evidence of these testimonies as same nowhere supports

¶185

 [34]

¶186

 the prosecution case fully, against all the accused,
 under section 302 r/w section 120B and or 225 of I.P.C.
 The learned Judge has overlooked the case of defence
 completely and wrongly relied upon the prosecution case.
 Therefore, impugned Judgment and order is quashed and
 set aside.

¶187

 41. For the reasons recorded above, both the appeals
 are allowed. All the accused are acquitted they be
 released forthwith, if not needed, in any other offence.

¶188

[ V.G.PALSHIKAR]

¶189

[ANOOP V. MOHTA, J.]

Shri Abdulla Mehboob Sarguru and 4 Ors. v. the State of Maharashtra .

Case brief

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Shri Abdulla Mehboob Sarguru and 4 Ors. v. the State of Maharashtra .

Case brief

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What the court decided

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