Allowed

Mohamed Sabir Mirza Kasam v. the State of Maharashtra

Bombay HC15 Sept 2009APEAL/1156/2003

Case brief

AI extract

What is this about?

This common judgment disposed of two criminal appeals arising from a Sessions Case involving a fatal shooting at a Ganesh Festival. The High Court acquitted the appellants, holding that the prosecution failed to establish guilt beyond reasonable doubt due to unreliable eye-witness identification and questionable recovery of weapons.

What did the court decide?

Appellants acquitted of offences under Sections 302, 307 and 120-B IPC. Impugned conviction judgment quashed. appellants released from custody.

Mohamed Sabir Mirza Kasam Vs the State of… — Murder and Culpable Homicide | Bombay HC (2009)

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Ladda

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL No.1133 OF 2003.

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1)Syed Umar Sayed Abbas,
age 37 years, residing
atNagpada,Teli
Mohalla, Farid Bldg,2nd
Floor, Room No.205,
Mumbai 400 008.

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2)Abid Usman Khan,aged 28
years, residing at 83,
Temkar Street, 3rd
Floor, Room No.10,
Mumbai 400 008.

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3)Mohammed Ibrahim Adam
Hussain, aged 26 years,
Temkar Street, Rasul
Bldg No.37, R.No.15,
Mumbai 400 008.

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4)SardaraliSafdarali
Khan,aged 27 years,
residing at Mahim Mori
road, Behind Bus Depot,
Room No.240, Mahim,
Mumbai 400 016.

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Appellants.
Orig.Accused Nos.1,3,4
and 12

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Versus.

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The State of Maharashtra
at the instance of
D.C.B.,C.I.D.vide Cr.No.
236/95.

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..Respondent.

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WITH

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CRIMINAL APPEAL No.1156 OF 2003

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Mohmed Sabir Mirza Kasim,
an adult Indian inhabitant
aged about 38 years,
residing at 57/A, Temkar
Street,Mumbai-8(at
presentinKolhapur
Central Prison)

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..Appellant.
Orig.Accused No.9

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Versus.

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State of Maharashtra at
the instance of D.C.B.,
C.I.D., Police Station,
Mumbai C.R. No.236/95.

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..Respondent

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Mr A. Majeed Memon with Mr S.Kanse for the
Appellant in Criminal Appeal No.1133/2003.

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Mr Taraq Sayed with Ms Sarfaj Shaikh in Criminal
Appeal No.1156/2003

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Mr D.P.Adsule, A.P.P.for the State-respondent.

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Mr A.S.Gadkari,A.P.P. for the Respondent-State.

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CORAM: BILAL NAZKI,
 AND A.R.JOSHI,JJ

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RESERVED ON : 31.08.2009.

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DELIVERED ON: 15^th SEPTEMBER,2009

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JUDGMENT (Per A.R.Joshi,J):

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1.Both the present criminal appeals are being
disposed of by this common judgment as they are
arising out of the same impugned judgment and order
passed in Sessions Case Nos. 737/1996 and 13/1997
arose out of the same incident which took place on
12th August, 1995 regarding firing opened on the
deceased and one more person, when at about 3:00
p.m. On 12.8.1995 they were sitting in one Ganesh
Festival Pendal talking with each other. Criminal
Appeal No.1133/2003 is preferred by original
accused Nos.1,3,4 and 12 and Criminal Appeal No.
1156/2003 is preferred by original accused No.9.

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2.By the impugned judgment and order dated
23.7.2003 passed by the Additional Sessions
Judge,Greater Bombay (the Trial Court for

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short)accused were convicted for the offence
punishable under Sections 302, 307 read with
Section 120(B) of the Indian Penal Code(IPC).

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3.At this juncture, it may also be mentioned

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that the said conviction was awarded against the

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appellants by the Trial Court also for the offence
punishable under Sections 302, 307 of the IPC read
with section 34 of the IPC. It appears that such
conviction order for the offence punishable under
section 120-B and also under Section 34 of the IPC

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came to be passed on the premise that there were
alternate charges framed against the appellants

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along with other co-accused, alternatively taking

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the shelter of provisions of Section 120-B for

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criminal conspiracy and provisions of Section 34 of

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the IPC for common intention. In our opinion, it is

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erroneous that both the said sections i.e. 120-B

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and 34 of the IPC would be applicable
simultaneously,consideringthespecific

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circumstances alleged against the appellants.

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Whatever that may be but in our opinion, i.e.,not

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the main aspect to be considered but it has to be

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ascertained as to whether the conviction for the
offence punishable under Section 302 and punishable

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under Section 307 of the IPC read with section 120-

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B of the IPC i.e.,regarding conspiracy is required
to be upheld or not and said question is answered
herein in the foregoing paragraphs after discussing
the rival arguments advanced during the hearing of
the present appeals.

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4.Apart from conviction of the appellants for
the offences punishable under Sections 302 and 307
of the IPC, as above, accused Nos. 1, 3, 4 and 12
were also convicted for the offence punishable
under Section 27 of the Arms Act, whereas accused
No.9 was also convicted for the offence punishable
under section 25 of the Arms Act. Suffice it to
say that certain punishment for imprisonment and
also fine were imposed on the appellants and the
main punishment imposed is for imprisonment of life

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for the offence punishable under Sections 302 and

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307 read with Section 120-B of the IPC. This is

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the judgment which is impugned in both the present
appeals.

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5.Certain factual position is required to be

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narrated in order to ascertain the scope of the

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prosecution and in order to ascertain the
correctness and legality of the reasoning given by
the Trial Court in coming to the conclusion of the
guilt of the appellants for the offences charged.
It is also necessary to ascertain as to whether
there was any possibility for the alleged five eye-

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witnesses to observe the assailants during the

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incident of firing which took place in the

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afternoon of August,1995 in Ganesh pendal. On the

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relevant day and time the deceased, a social

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worker, belonging to a particular political party,

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and having his avocation as shopkeeper in Mahim

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area was sitting in Ganesh Festival Pendal and was

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busy in talking with one Rajaram Sarfare, the

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injured who was the contractor for decoration of

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the pendal. Few other workers as well as members of

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Ganpati Festival Mandal were in the vicinity and

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were doing some work. When the deceased and injured

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were talking to each other while sitting on chairs
in the pendal, two unknown persons entered the

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pendal from Kapad Bazaar Road and opened fire on

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Rajendra Rajaram Gupta (hereinafter referred as the
deceased). Allegedly, the said two assailants were
escorted by other three persons. All the said five

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persons were armed with some weapons/arms.
According to the prosecution, the fire arms were
used by accused No.1 and accused No.12. A number
of bullets were fired on the chest, face and other

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parts of the body of the deceased. Due to such

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assault and firing of bullets the deceased died on
the spot. Due to such firing noise of the persons

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in the near vicinity became aware of the situation

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and in fact there was a sort of commotion created

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in the pendal and everybody started running for

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shelter. During such situation of rather a chaos,

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allegedly, the five eye witnesses happened to see

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the main assailants i.e. Accused Nos. 1 and 12 and

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also their other associates i.e.,accused Nos. 3,4

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and 9. Also, according to the prosecution, injured
Rajaram Sarfare got frightened and started running
out of the pendal and towards the police chowky in

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the said area which was situated beyond the road
and within a short distance. However, the fire was
also opened on said Rajaram Sarfare and due to
which he sustained bleeding injuries and fell on
the ground. At this juncture, it may be mentioned
that the substantive evidence of Rajaram Sarfare
(PW 6) is significant inasmuch as he narrated the
incident which is deviating from the incident
narrated by other witnesses i.e.P.W.1, P.W.4 and
P.W.5 and P.W.7.

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6.According to the prosecution, after the
said firing was over, immediately in a fraction of
moments the assailants left the spot and flee away
with weapons/arms in their hands. Immediately,
injured (deceased) Rajendra Gupta was removed to
Hinduja Hospital, however, he was declared dead on
arrival. Injured Rajaram was also taken to Hinduja
Hospital in a taxi and admitted for treatment.
Mahim police arrived on the spot and investigation
was started. CR No.456/1995 was registered at

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Mahim Police Station. Infact, parallel

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investigation was also started by D.C.B. C.I.D., by

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registering fresh CR No.236/95. Initially, F.I.R.,

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was given by P.W.5 Rajesh Akhare who happened to

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have seen the incident of firing from the first

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floor gallery of his residential building which is

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abutting to the said pendal. During the

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investigation, the appellants and other co-accused

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were arrested. There were in all 13 accused named

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in the said case. However, only accused Nos. 1, 3,

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4, 7,9,11 and 12 were tried. Other accused persons
were either dead or were absconding and as such it
is not necessary to give details as to what was the

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role played by them. By the impugned judgment and

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order, original accused Nos. 7 and 11 were

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acquitted, The present appellants were convicted

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and they preferred present two appeals, as

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mentioned above.

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7.During the trial before the Additional

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Sessions Judge, Greater Bombay total 27 witnesses

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were examined. However, suffice it to say that the
substantive evidence of eye-witnesses P.Ws. 1, 4,

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5, 6 and 7 and the substantive evidence of two

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Special Executive Officers P.Ws. 18 and 21 who
conducted the T.I.parade and substantive evidence
of some panchas regarding alleged recovery of the

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fire arms from accused Nos. 1, 3 and 9, is required

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to be dealt with in order to ascertain the

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involvement of the present appellants.

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8.P.W.1 is alleged eye-witness, however,

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according to him, he first heard the shots and some

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noise like bursting of fire crackers and then he

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could see the assailants and also saw that the

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assailants were firing at Rajaram Sarfare, the

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injured P.W.6, when said P.W.6 was running towards

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nearby police chowky. According to P.W.1 he
identified four accused persons in the T.I.parade

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which was conducted on 30th August, 1995 conducted

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at Arthar road Central Prison and he identified

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accused out of 10 to 12 persons standing in a row.
According to the case of the prosecution, said

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T.I.parade was conducted by P.W.21, Special
Executive Officer on 30.9.95. According to the

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said P.w.21, he conducted two parades on that day.

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In the first parade he placed accused No.1 and one

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more accused, who subsequently died and could not
be tried, were put to identification whereas in the

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second parade accused Nos. 3 and 4 were put to
identification. This variance in the substantive
evidence of P.W.21, S.E.O., and P.W.1 alleged eye-

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witness is one of the mitigating circumstances to
the case of the prosecution and raises a doubt

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whether P.W.1 had infact, identified any of the

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assailants in any such identification parade, as
according to him he identified four accused

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persons in one parade and that too on 30th August,

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1995. Apart from the above substantive evidence of
P.W.1, according to him, he identified the another
accused no.12 in one more parade conducted in the
year 1996. According to the case of the

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prosecution, such parade was conducted by P.W.No.18

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another Special Executive Officer and it was

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conducted on 4th October, 1996. It is significant

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to note that said accused no.12 was put to

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identification after one year and two months of the
incident.

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panchas and as such for the purpose of deciding the
present appeals it is not relevant to test their
evidence in detail. P.W.4 is another alleged eye-

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witness who is the son of the deceased Rajendra
Gupta. According to him, initially he heard the

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noise of bursting of some crackers and then he
could see what was happened in the pendal.
According to him, at the time of the incident he

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was sitting in his grocery shop and was making
payment of some bill to one person by name Bhatia.
It is significant to note that said Bhatia is not
examined by the prosecution though his presence is
mentioned by said P.W.4. Again, it is significant

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to note that initially said P.W.4 heard the noise

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of firing and then he had the occasion to see as to
what had happened. According to him, he identified

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accused no.1, as the person opening fire on his
father and identified him in the T.I.parade,

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subsequently conducted. According to him, he also

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identified accused No.12 in the second parade which

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was belatedly conducted after about a year.

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10.P.W.5 is the first informant Rajesh who had

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allegedly witnessed the incident while he was

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standing in the first floor gallery of his building

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and which is abutting to the pendal. Also,

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according to him, he identified accused no.1 and 12

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in the respective T.I.parades conducted at two

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different occasions. P.W.6 is the injured Rajaram

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Sarfare who had sustained bullet injuries.

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According to him, he could not see any of the

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appellants. However, while he was talking to the

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deceased, he heard the noise and he duck for

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shelter and in that process got the bullet injuries

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when the fire was opened on him and he fell
unconscious. He did not mention anything as to

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running towards nearby police chowky and receiving

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any injuries in such process of running. It is

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significant to note that he deviated from the
police statement. However, he has not been put to

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cross-examination by the prosecution in order to

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extract the material contradictions. On this

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aspect, it must be mentioned that the substantive
evidence of P.W.6 is not supporting the case of the

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prosecution inasmuch as, according to the

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prosecution the fire was opened on said witness

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when he was running to police chowky and in the

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midst he got injured and fell on the ground and it

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was witnessed by other witnesses. Considering the

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substantive evidence of this witness along with the

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evidence of other alleged eye witnesses, in our

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opinion, a reasonable doubt has been created as to

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whether any of the alleged eye witnesses had any

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occasion to see the assailants when admittedly the

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incident occurred in fraction of moments and when

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the assailants were unknown persons and there was

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fire opened by two assailants and who were

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allegedly associated by other three persons.

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allegedly seen the incident of assault. However,
according to his substantive evidence he did not

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identify any of the accused in the T.I.parade and

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as such his substantive evidence cannot be taken as

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incriminating against the appellants when
considering the case of these witnesses as to
noticing occurrence only after hearing firing shots
and then trying to run for shelter in the commotion

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which ensued after the opening of the fire.

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12.Apart from the above state of affairs of

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the substantive evidence of the prosecution

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witnesses who are alleged eye witnesses, certain

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other circumstances, as alleged by the prosecution
incriminating against the appellants are that there

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is recovery of one fire arm and clothes at the
instance of accused no.1, recovery of pistol and
seven cartridges at the instance of accused no.3
and recovery of fire arm at the instance of accused

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no.9 in another case. At this juncture, it must

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be mentioned that the fire arm allegedly recovered

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at the instance of accused No.9 was in fact
recovered during the investigation of another
matter and the same fire arm was produced in the

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present case by the Investigating Officer as the

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weapon used by accused No.9 during the incident.

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The effect of such recovery of weapons can be
discussed herein at the appropriate place in order
to ascertain whether the evidence of such recovery

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is trustworthy and whether it is incriminating
against the appellants.

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13.In order to ascertain whether the recovery,

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as mentioned above, is against any of the

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appellants-accused, firstly certain admitted
position is required to be narrated. It appears
that the deceased had about 14 injuries and they

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were from the firing opened on him by the

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assailants. Bullets were recovered from the body,
so also a bullet was recovered from the person of

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injured P.W. 6. The ballistic expert�s report is at
Exh.133. However, considering the said ballistic

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report as to the findings and considering the case
of the prosecution as to the use of revolver/pistol

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by accused Nos. 1 and 12 only and not by other

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accused, it can be seen that the alleged weapons

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recovered at the instance of accused nos. 1 and 3

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and also at the instance of accused no.9 cannot be

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conclusively taken as the weapons used in the

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present assault. Needless to mention that it is

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not the case of the prosecution that accused no.9

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opened fire. In fact, during the trial, the panch

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witness in whose presence allegedly accused No.9

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made a statement and thereafter produced the fire

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arm, was not examined and the said panchnama was

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taken on record through the evidence of the

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Investigating Officer. It must be said that the

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Trial Sessions Court had erred in putting reliance

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on the substantive evidence of the I.O., in the

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absence of the evidence of the panch witness, while
accepting the recovery of fire arm at the instance

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of accused no.9. Moreover, it must be said that the

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reasoning given by the Trial Sessions Court as

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against the accused No.9 is far fetched and cannot

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be accepted for implicating him. This is more so

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as the involvement of accused No.9 is held accepted
by the Sessions Court, only for the recovering of

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the weapon and not for any other material on

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record. On this count itself, the conviction of
accused no. 9 cannot sustain and is required to be
set aside.

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14.So far as involvement of other appellants

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accused Nos. 1, 3, 4 and 12 is concerned, the

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substantive evidence of alleged eye-witnesses has

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been discussed in detail hereinabove and mainly
considering very short period available for the
witnesses to observe the assailants, so as to
subsequently identify them during the T.I. parades,
it must be held that the substantive evidence of

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said alleged eye-witnesses do not inspire

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confidence so as to pin down mainly accused Nos. 1

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and 12 and also accused Nos. 3 and 4. This is more

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so when said eye witnesses specifically mentioned

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as to knowing the incident of firing only on

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hearing the sound as bursting of something like
fire crackers and then only witnessing the incident

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that also under the circumstances which must have

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caused anybody to go for a shelter in order to save

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his own life. Moreover, the substantive evidence of

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P.W.6 injured is not supporting the case of the
prosecution and it is in deviation with the

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substantive evidence of other alleged eye-witnesses

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i.e. P.Ws. 1, 4, 5 and 7. As such, it must be said
that the Trial Sessions Court has also erred in
holding the said appellants involved in the present
matter.

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15.Lastly, another argument advanced on behalf

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of appellants is required to be examined.
According to the case of the prosecution, the
F.I.R., is given by P.W.5. He allegedly witnessed

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the incident from the first floor gallery of the
building abutting to the pendal. Considering the
topography of the scene of the incident and
considering sketch map produced by the prosecution

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and also considering the substantive evidence of
other witnesses as to the pendal was already built

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with tarpoline and work of electrification and

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decoration was going on, it cannot be accepted that
the place at which the deceased was sitting in the

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pendal was clearly visible from the first floor
gallery where P.W.5 was standing.

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16.Apart from the above, it was also argued on
behalf of the appellants that the T.I. parades
allegedly conducted by two S.E.Os. (P.Ws. 18 and
21), cannot be taken as reliable so as to implicate
the appellants. At the cost of repetition, it must

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be mentioned that according to P.W.1, he identified
four accused on 3.8.1995 in one T.I.parade out of
10 to 12 persons standing in the row. Whereas,
the case of the prosecution is otherwise and at no
point of time four accused persons were put to test
identification parade. Moreover, the substantive
evidence brought on record through the cross-
examination of said two S.E.Os., goes to show that
the manner in which the parades were conducted,
does not inspire the confidence as to negating any
possibility of the identifying witnesses seeing the

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suspects in advance. When the case is mainly based
on the identity of the unknown assailants and
mainly considering the specific instances under

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which the incident of firing occurred and

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considering no much time available to the witnesses

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to observe the distinguishing features of the

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assailants, it assumes much importance whether the
identification parades were properly conducted as
per the guidelines. Considering this aspect, in our
view, the learned Trial Sessions Court had placed
unwarranted reliance on such T.I. parades and
reached in holding the establishment of charges
against the appellants-accused.

¶272

17.In view of the above, it must be said that
the prosecution had failed to establish the charges
levelled against the appellants beyond reasonable

¶273

doubt and that impugned judgment and order is
required to be set aside. With these observations,

¶274

both the appeals are disposed of with following
order.

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ORDER:

¶276

 Criminal Appeal Nos. 1133/2003 and 1156/2003

¶277

are allowed as under:-

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1.Appellants original Accused Nos.1,3,4, 9 and 12

¶280

are acquitted of the offence punishable under
Sections 302, 307 read with section 120-B of
the Indian Penal Code. The impugned judgment
and order of conviction passed by the learned
Additional Sessions Judge, Greater Bombay dated
23.7.2003 in Sessions Case No.737/1996 and
13/1997 is quashed and set aside.

¶281

2.Appellants original Accused Nos.1,3,4, and 12
shall be released forthwith from the jail
custody if not required in any other case.

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3.Fine amount, if any paid, shall be refunded to the accused.

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4.The bail bonds of accused No.9 shall stand cancelled.

¶284

5.Appeals are disposed of in terms of this order.

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 Sd/-

¶286

 (BILAL NAZKI,J)

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Sd/-

¶288

 (A.R.JOSHI,J)

Mohamed Sabir Mirza Kasam v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohamed Sabir Mirza Kasam v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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