Allowed

Ismail @ Salim Yusuf Shaikh @ Javed and Anr. v. the State of Maharashtra

Bombay HC2 Feb 2009APEAL/233/2003

Case brief

AI extract

What is this about?

The High Court quashed the life sentence convictions of two accused for murder based on identification parade evidence that raised doubts about reliability and procedural compliance. The court found insufficient independent eyewitness evidence and unsustainable reliance on identification.

What did the court decide?

Release of Ismail @ Salim Javed Yusuf Shaikh and Kisan @ Soma @ Akash Rathod forthwith if not required in any other case.

Ismail @ Salim Yusuf Shaikh @ Javed and Anr. Vs… — Murder and Culpable Homicide | Bombay HC (2009)

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d gm

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE CRIMINAL JURISDICTION

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CRIMINAL APPEAL NO.233 OF 2003

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Ismail @ Salim Javed Yusuf Shaikh

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aged about 25 years, Indian inhabitant of Mumbai, resident of MHADA Colony, Shiv-Shakti Chawl, Room No.D-1, Gorai Road,Borivali(West), Mumbai 400 092.

¶7

Kisan @ Soma @ Akash Rathod, aged about 25 years, Indian inhabitant, resident of Mahatma Phule Nagar, Zhopadpatti, Opp.M.H.B.Colony, Gorai Road, Borivali(West), Mumbai 400 092. Appellants (Yerwada Central Prison) (Ori.Accused Nos.1 & 2)

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Vs.

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The State of Maharashtra Respondent. (at the instance of D.C.B.,C.I.D., Mumbai).

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Mr.M.S.Mohite for the Appellants.

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Mrs.P.H.Kantharia, APP for the State.

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CORAM : BILAL NAZKI &

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ANOOP V.MOHTA,JJ.

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DATE OF RESERVING THE JUDGMENT : 15/01/2009

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DATE OF PRONOUNCING THE JUDGMENT: 02/02/2009.

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JUDGMENT (Per Anoop V. Mohta,J.)

¶17

	The	Appellants	(accuse	d	nos.1	&	2)	have		been
convicted	for	offences	under	Sec	tion	302,		120B	and	34
of	Indian Penal	Code	(IPC)	by	the	judg	ment	and		order
dated	27.11.2002	in	Sess	ions	Case		No.	173/1999		and
Sessions	Case	No.1336/	1999	pass	ed	by		the		learned
Additional	Sess	ions J	udge,	Grea	ter	Mum	bai	and		thereby

¶18

( 2 )

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they have been sentenced to suffer imprisonment for

¶20

life without any fine. Therefore, this Appeal.

¶21

2.	As	per	prosecution,	on	8.10.1998	at	abo	ut	8.45
p.m.	one		Shri Bharat	Shah	(the		deceased),		entered
Raza	Commun	ication	Cent	re, n	ear Jum	a	Masjid,		Shaikh
Memon	Street,	Mumb	ai-400002.	An	owner	o	f a	tea	stall,
Mr.Prasanna	He	gde	Shetty	was	leaving	the	sa	id	STD
booth.	After	ma	king ISD	call,	while	p	aying	phone	call
bill	at	cou	nter, three	unkno	wn pe	rsons	entered		into
said	STD	both	possessing	fire	arms	and	fired	at	the
deceased.		He	succumbed	to th	e injuri	es	on th	e	spot.
The	duty	offi	cer of	L.T.Ma	rg Po	lice	Station	,	received
message	from		control	room	that fi	ring	incident		took

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place at Mangaldas Market, near Juma Masjid in front

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of Crawford Market.

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3.	On	receivi	ng the	said	message,	immediately	the
police	rushed	to	the	place	of	offence within	5
minutes,	and	were	noticed	that	one	person is lying	in
pool	of	blood	and s	ustained	injuries	of fire	arms.
The	police	start	ed	inquiry	and	recorded co	mplaint
lodged	by	Ataullah	Khan	(PW	1) and	on that	basis
registered		an o	ffence	bearing	C.R.N	o.396/1998 of	L.T.
Marg	Police	Station	u/s.	302	r/w 34	of I.P.C.	and

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Sections 3, 25 of Arms Act against the unknown

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( 3 )

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persons.

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4.	After	conclusion	of	investigatio	n, the	police
filed	charge	sheet ag	ainst	both th	e appellants	before
Additional	C.M.M.	3rd	Court	at Espla	nade, Mumbai	on
22.1.1999.	Some	time	in	July,	1999, on	an
information,	accus	ed Vikram	an	d Sanjay	were	arrested
under	the Arms	Act at	Ahm	edabad.	After complet	ion of

¶29

investigation on 11.10.1999 a supplementary chargesheet was filed.

¶30

5.	Both	the	accused were	tried	by	the	Sessio	ns Court,
Mumbai.		The	statements of	the	accus	ed	were	recorded
under	Section		313 of C	ode	of	C	riminal	Procedure

¶31

(Cr.P.C.). All the accused pleaded not guilty. The prosecution examined eight witnesses.

¶32

6. The	appellants ha	ve	bee	n	convict	ed.	Accused
no.3-Vikram	was acquitted,	b	asically	on	the	basis	of
two eye	witnesses namely;		PW	1-Ataul	lah	Khan	(owner
of STD	booth) and PW	4-P	rasanna	Shetty	(ow	ner of	Tea
stall). P	W 1-Ataullah Kha	n	has	not	supp	orted the	case
of the	prosecution. PW	1,	the	owner	of	STD	booth,
where the	incident too	k	place.	Tho	ugh	lodged	the
F.I.R.	but during the	tria	l, he	did	not	support	the
prosecution.	He was decla	red	hostil	e.	He	was	working

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( 4 )

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in the	said	STD	booth whe	n he	hea	rd noi	se	of	bull	et at
about	8.45	p.m.	At that	time	, he	was	ma	king	ent	ry in
the	phone	book	. The cu	stomer	who	made	STD		call	to
Dubai,	paid	the	bill. He	fell	down	in	the	boot	h	and
in	view	of	bleeding inju	ry, b	lood	was	oozi	ng	from	his
head.	At	that	time, t	he	tea	stall		owner		(PW
4)-Prasanna		was	also present	in	the	booth	f	or		making
telephonic		call.	According	to	this	witn	ess,	at		that
time,	there	was	a rush in	the	STD	booth.	P	W	4	after
making	pho	ne	call, paid	phone	bill	and	left	the		STD
booth.		Within	five	minutes,	the	police		arrived		and
made	inq	uiry	and recorded	his	st	atement.		Th	e	injured
was ta	ken	to	J.J.hospital.	This	w	itness	had	n	ot	given
description	o	f	suspects at		the	time		of		lodging

¶35

complaint. Therefore, stated that false descriptions

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were recorded by the police in my complaint.

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7.		The	compla	inant-P	W 1	stated	that	on	6.11.1998	he
along		with	PW	4-Pr	asanna	were	taken	to	Arthur	Road
Jail		for	atte	nding	iden	tification	para	de.	He	could
not		identify	any	body.		As he	was	unable	to	identify
the		accused	an	d	not	sup	ported	the	contents	of
supple	me	ntary	statem	ent,	he	was	decl	ared	hostile.	PW
1,		even	in	the	cro	ss-examinat	ion,	could	not	support
the		prosecution.	E	ven	as	per t	his	witness,	he had	not
seen		any	accused		person	as he	was	sitti	ng in	the

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( 5 )

¶39

booth.	PW		4	had already	left	the	boo	th	by making
phone	call	and	payi	ng bill.		It	is	clear,	therefore,
that	PW	4-Prasan	na	was not	in	STD		booth	and the
decease	d/customer		was	inside	the	b	ooth.		Therefore,
this	person	in	no	way can	be	said	to	be	eye witness
except	to	the	extent	that he	sa	w	the	dece	ased fallen
down	due	to	bullet	injury.	The	re	was	no	occasion for
him	to see	the	accu	sed. T	he	evide	nce	of	this witness,

¶40

therefore, in no way is sufficient to connect the

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accused with the offence.

¶42

PW 4 is the star witness according to the prosecution. He is the owner of tea stall running in front of STD booth (Razak Communication Centre) which is at a distance of 20 to 25 feet from his tea stall. He stated, " I paid bill of my STD call. After that when I was returning back to my Tea stall and reached outside door of Razak communication center somebody dashed me when I saw backside. I notice 2 to 3 persons shot firing to one person inside Razak communication center. I tried to apprehend assailants but could not succeed.". He stated, "They were firing at a distance of 2 to 3 feet. I saw incident of firing at a distance of about 10 feet.". Therefore, this witness could not see the accused as he saw the backside of two persons who, according to them, were

¶43

( 6 )

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firing	from a distance of 2 to 3 feet. He saw	the
incident	of firing at a distance of about 10 feet.	PW
1-	the complainant has not even mentioned that	he saw
someone	firing at the deceased. He could have	seen
someone	firing as he heard the sound like	cracker.
Therefore,	even at the time of firing, he could	only
see	the backside of the accused. This witness	could
not spe	cify against whom he had dashed. It also	means
that	accused/assailants were not inside the	booth
except	the deceased and the complainant. This	witness
has	not stated how many assailants were firing	and
with	what weapon. In the cross-examination he	admits
that	he could not even see the assailants who	were
running	from the place of occurrence. The	doctor’s
medical	report-PW 3, indicates that there was	no
tattooing	or singing around the bullet wounds	that in
case	of fire from 2 to 3 feet the same is bound	to be
found.	Therefore, the case of firing from	the
distance	of 2 to 3 feet is unbelievable. It is	also
for	the reason that Razak communication center	is
situated	in the said passage of Ishwar market.	The
door to	enter is situated in a passage which is 4	to 5
feet	wide. The entire footpath outside is	surrounded
by	various shops. The incident took place at	about
8.45	p.m. at night and must have lasted for a	short
period.	It is difficult to accept, therefore,	the

¶45

( 7 )

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case o	f P	W 4 that he saw	all the assa	ilants correctly.
There	is	no other corrob	orative witness	to this
incident	excep	t PW-4. It appears	that PW 4	had just a
fleeting	gl	impses of the	accused. P	W-1 declared
hostile	as	not substantial	to have id	entified the
accused	in	I-parade. PW-1 state	d that when	he saw the
falling	i	njured in booth, Shett	y was standing	at its
tea	stall	as he had already	left the booth.	PW-4 had
witnessed	in	cidence from a dis	tance that itse	lf is not
sufficient	to	connect the accused	with the cr	ime. The
learned	Ju	dge has agreed and	has recorded	that the
witness		might have not seen	the suspect	while running
from	the	place of offence	after leaving	the said
booth.		The medical evidence	PW-3 also	does not

¶47

support the evidence of PW-4 that the firing took place from 2 to 3 feet.

¶48

9.	PW-4	is an	importa	nt witness	as	accord	ing	to	the
prosecution,		he iden	tified	the	acc	used	i	n	the
Identification		parade.		Importan	tly		in		the
cross-examina	tion	he	admitted	that	"It	is	true	that	I
could	not	saw ass	ailants	who were	runn	ing	f	rom	the
place	of	offence.	Within	a minute	or	one		and	half
minute	the	alleged	inci	dent of	firing		taken		place.
And	within	that	time	assailants	start	ed	runni	ng	the
place.	I	was ava	ilable	in Bombay	from	the		date	of

¶49

( 8 )

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incident	till attending Identification parade,	and
thereafter	till 18-9-99." It means, this witness	could
not	see the assailants clearly when they were	firing
and	when they were running from the place of	offence
as	a within a minute or half the alleged incident	of
firing	took place. He stated that when he was	called
for	identification parade on 06/11/1998 at Arthur	Road
Jail,	he was harassed till 4.30 p.m. He i	dentified
two	accused out of 13 to 14 persons standing in	a
hall.	There he came to know the names of both	the
accused.	He also stated "I am having cross term	with
L.T.Marg	Police." It appears, therefore, that	this
PW-4	was either forced and / or compelled to depos	e in
favour	of the prosecution. The identification	parade
was	held on 06/11/1998. It was one month after	the
date	of incident. None of the two ind	ependent
panchas,	who were present during the ident	ification
parade,	were examined. There is no ind	ependent
corroborat	ion to the identification evidence. This	is
clear	even from the evidence of PW-5 Sharad	Vichare
(SEO).	PW-4 also nowhere mentioned the present	any
panchas	either in the office or in the jail. In	this
back	ground, we are of the view that	the
identificati	on as done in the present case itself	is
not	sufficient to convict the accused as it	raises
various	doubts. As the identification parade	itself

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( 9 )

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appears to be conducted and not in accordance with the

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prescribed procedures, it was held to be breaches of various mandatory provisions.

¶54

10.	PW-5,	Special Executive	Off	icer	(SEO),		who
conducted	the	identification parade	as		noted		apart
from	two ind	ependent panchas, he	adm	itted	that	"i	t is
true that	I use	d pancha provided	by	police	and	d	ummies
provided	by Jailor	for holding parad	e a	nd	I my	self	not
called	either	panch or dummies".	"It	is	true		that
both the	suspects	fetched in parade	i.e.		Accuse	d	No.1
and 2	Ismail	and Kisan are dis	similar	by	all		respect."
"I d	id not	come across with	guide-lin	es	issued	by	the
Hon’ble	High	Court that two	dissim	ilar	suspect		should
not fetch	in one	parade." " It is	true	that	one	of	the
important	factor	asking both the	su	spects	and		witness
as to	whether	they have shown to	each	othe	r whil	e	in

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police custody in the office of DCB CID not recorded by me in I Parade, panchanama Exh. 31".

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We have noted that even as per the evidence of PW-5, he with eye-witnesses PW-1 and PW-4 had gone to the jail along with I.O. P.W.7 (P.I.Ghuge for the T.I.parade." There was no precaution taken to see that eye-witnesses who were accompanied by the I.O. were to sit in a different room from where they would not

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( 10 )

¶58

see the accused being brought into	the room	for
holding I.P. parade. He also admits	"it is true	that
one of the important factor to	the effect	that
precaution taken by me that witnesses	should not	see
the suspects before attending parade,	not recorded	in
I parade panchanama. There was no	steps taken to	see
that PW-1 completed his part of	identification	parade
and there is nothing to show that	both the wi	tnesses
PW-1 and PW-4 had no opportunity	to exchange	the
information about the suspects before	PW-4 were	made
to identify the suspects- accused du	ring the	parade.
There is also nothing to show that	the accused	were
given opportunity to change their place	in the line	of
dummies. Both were standing in the	same line, at	the
same place where both the witnesses	identified	them.
In Ramcharan Bhudiram Gupta & Ors.	Vs. The Stat	e of
Maharashtra, 1995(1) All MR 122, the	Division Bench	of
Bombay High Court has held that refe	rring to Section	9
of Evidence Act dealing with th	e facet of	the
identification parade, it is settled	that the e	vidence
of identification can only be relied u	pon if all	the
chances of suspects being shown to	witnesses prior	to
the test of Identification are	eliminated	and
precautions were taken to ensure that	the accused	was
not seen by any outsider. The p	rocedure prescribed	in
the High Court Criminal Manual with	this regard	should

¶59

( 11 )

¶60

be strictly complied with. (Vilas Vasantrao Patil Vs.

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The State of Maharashtra, 1996(1) ALL MR 513) .

¶62

12.	Accused	N	o.1 was arrested o	n 25/10/19	98 and
Accused	No.2	w	as arrested on	30/10/1998.	The
identificatio	n	para	de held on 06/11	/1998.	Therefore,
there	is no	m	uch delay but still	the o	rder of
conviction	based	upon	the evidence of P	W-4 and	PW-5 in
the	present	fact	is unsustainable as	the evidence	of
PW-4	is	ind	ependently not sufficient	to convict	the
accused	with	crime.	Accused No.3	is already	acquitted
by	the	said	Judgment. Taking all	this into	account
the	identifica	tion	evidence against	the	Appellants
does	not		inspire confidence, raises	various	doubts.
The	identification		parade is just an	aid	to the

¶63

investigation. It cannot be relied solely to convict

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accused.

¶65

13.	PW-6, R	ajan	Dina	nath Dho	ble	was	attached to
L.T.Marg	Police	Station	as	Crime	P.I..		On receipt of
message	about	firing	incid	ent the	y r	ushed	to the spot
within	5 minutes.		He	record	ed	inquest	cum spot
panchanama	without	record	ing	injuries	on	the	dead body
(Exhibit	19)	and	forwa	rded	the	dead	body to
J.J.Hospital.	He	ma	de	inquiry,	rec	orded	the complaint
lodged	by the		Ataulla	and	regist	ered	the offence

¶66

( 12 )

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against 3 unknown persons. He recorded various

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statements. On 23/10/1998, the investigation was handed over to the DCB CID.

¶69

14.	Thou	gh	the	pros	ecution	has recovered	some	weapons
from	the	accuse	d	no	charges	under the Arms	Act	were
framed	against		the		Accused	in the present	case,	but
registered	two		cases		separately	. No	panchanama	of
recovery	of	any	wea	pons	at	the instance of	the	accused

¶70

brought on record. No panchas examined to prove

¶71

recovery of any weapon from the accused.

¶72

15.	PW-7 and	PW-8	stated	that	as rec	overy	of fire arm
at	the instance	of	accused	sep	arate	cases	are registered
under	Section 3	and	25	of the	Arms	Act	and separate
charge-	sheet filed	by	co	ncern	police	station.	Except
this,	there is no	thing	brought	on	record	to	complete the

¶73

links that those weapons were used for committing

¶74

offence in question.

¶75

16.	In	a case	and situation	of murd	er by	firing, the
investigating		agency	needs to	take	various	additional
precautions	and	measur	es to	collect	all	possible
material	and	evidence	to link	the ac	cused	with the
crime.	Any	lacuna	gives ben	efit of	doubt	to the
accused,	in	absence	of direct	evidence	or	eye-witnesses.

¶76

( 13 )

¶77

The conviction based upon the circumstantial evidence

¶78

needs unbroken, corroborative and cogent evidence as law

¶79

stands today.

¶80

17.	There	w	as no	indepen	dent eye-	witness	inspit	e o	f the
fact	that	the	incident	took	place	in a	cro	wded	locality
surrounded		by	several	shops.	The	motive	so		referred,
even if	any,	is	based	upon	the all	eged th	reat,	which	was
prior	to	the	2 years	of	the incide	nt.	There	is	nothing
to	link	the	accused	with	particular	group.			Therefore,
taking	all	this	into	account,	we see	there	is	no	clear
and	cogent		evidence	to	connect	the acc	used,		basically
for	want	of	missing	links as	recorded	above.		There	is

¶81

nothing to prove beyond the reasonable doubt that the

¶82

accused and no one else committed the murder.

¶83

18.	Resultant	ly, Appeal	is allowed.		The	judgment	and
order	dated	27.11.2002	in Sessions		Case	No.173/1999	and
Sessions	Case	No.1336/1999	passed		by	the	learned
Additional	Sessions	Judge,	Greater Bom	bay	is	quashed	and
set	aside.	The	Appellant no.1-Ism	ail	@	Salim	Javed
Yusuf	Shaikh	and Appell	ant No.2-Kisan	@	Soma	@	Akash

¶84

Rathod be released forthwith, if not required in any

¶85

other case.

¶86

(ANOOP V. MOHTA, J.)

¶87

(BILAL NAZKI, J.)

Ismail @ Salim Yusuf Shaikh @ Javed and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Ismail @ Salim Yusuf Shaikh @ Javed and Anr. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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