Allowed

Mehbob Amin Shaikh v. the State of Maharashtra

Bombay HC2 Aug 2013APEAL/100/2010

Case brief

AI extract

What is this about?

The High Court held that the prosecution failed to establish the identification of the appellant due to inconsistencies, lack of motive, and missing procedural formalities regarding the test identification parade. Consequently, the nexus between the appellant and the crime was not proved.

What did the court decide?

The appeal was allowed; the conviction and sentence under Section 302 IPC were set aside, and the appellant was acquitted.

Mehbob Amin Shaikh Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 100 OF 2010

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C/7745 ] Maheboob Amin Shaikh ] Presently detained in Nashik Road ] Central Prison, Nashik ]..Appellant [Ori. appellant ]

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Vs.

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The State of Maharashtra ]..Respondent

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Mrs. Indrayani Koparkar Advocate appointed for the Appellant Mrs. V.R. Bhonsale, A.P.P. for the State

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CORAM : SMT.V.K.TAHILRAMANI AND MRS. MRIDULA BHATKAR, JJ.

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DATED : AUGUST 02, 2013

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ORAL JUDGMENT: [PER MRIDULA BHATKAR, J.]

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1 This appeal is directed by the appellant-original accused against the judgment and order dated 24.4.2009 passed by the learned Additional Sessions Judge, Gr. Bombay in Sessions Case No. 235 of 2008. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of the IPC and sentenced him to suffer R.I. for life and fine of Rs. 1000/- in default R.I. for three years.

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2 One Mustaq Yar Mohd. Khan 18 years old boy, was murdered between 10 p.m. to 11 p.m. on 23.12.2007 at Ghatkopar (W), Mumbai. PW-1 Complainant Mustafa Yar Mohd. Khan is the elder brother of the deceased Mustaq. On the day of the incident, after dinner, deceased Mustaq told his family members that he would be going out and would come back. However, he did not return and the family members were about to sleep. At that time, one unknown person came and told that brother of the complainant was killed and lying in front of Satara Bank. The family of the deceased was residing at Milind Nagar, Himalaya Society, Khadi No.2, Ghatkopar, Mumbai. The complainant and his sister PW-2 Ruksana Khan Yar Mohd. Khan later on went towards Satara Bank and they found their brother lying outside the Satara Bank. They shifted Mustaq to Rajawadi hospital and there, he was declared dead by the Doctors. A wireless message was sent to the police. Police from Ghatkopar Police Station received information about such unnatural death. Initially, they lodged accidental death (A.D.) and thereafter, on recording the statement of the complainant PW-1 Mustafa, a crime was registered at C.R. No. 475 of 2007. F.I.R. Was marked at Exh. 9. Police came to the spot. They drew spot panchnama (Exh. 23). Inquest panchnama (Exh.22) was drawn. Police received information that the body of Mustaq was brought in one auto-rickshaw bearing No. MH-03-V-7457 and it was kept

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outside Satara Co-Operative Bank with one person in the autorickshaw. On the basis of this information, PW-10 Police Inspector Fulsingh Shyamrao Pawar started investigation. He got information of the name of the owner and driver of the said auto-rickshaw. He contacted the driver. After two days, police recorded the statement of driver PW-5 Mulchand Shivmurth Jaiswal. Police on the basis of that statement, carried out further investigation and they found that the deceased and the appellant were running near the Pan-shop at Kaju Pada. The deceased Mustaq was drunken and fell down, at that time, PW-7 Sanjay Ghode stopped the appellant and told him to take away the deceased who was fallen, in the auto-rickshaw. The passersby gathered there and they stopped auto-rickshaw of PW-5 Mulchand and put the deceased in the auto-rickshaw along with the appellant. They told him to take auto-rickshaw to Himalaya Society. When PW-5 Mulchand initially was not willing to take the deceased to Himalaya Society, however, due to the pressure of the public, he drove auto-rickshaw towards the Himalaya Society. However, after going some distance, he found that the hands of the appellant were near the neck of the deceased, so he stopped auto-rickshaw and asked the appellant what was he doing to that drunken person. So he told the appellant that till that person regains consciousness, he would not drive auto-rickshaw. The said deceased was taken out of the auto-rickshaw and was made to lie on the foot-path near the

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Satara Bank, then appellant sat in the auto-rickshaw and PW-5 Mulchand drove auto-rickshaw for sometime. At that time, he heard name of the appellant and then the person went away. Thereafter, police recorded the statements of the watchman of the Himalaya Society PW-4 Sahaboob Mohd. Hanif and also other witnesses. The post-mortem was conducted by PW-6 Dr. Pravin Sakharam Bagul on 24.12.2007 and the cause of death was due to neck compression injury with multiple abdominal injuries (death unnatural). Police arrested the appellant on 30.12.2007. Test Identification Parade was conducted on 10.3.2008 and in the Test Identification Parade PW-5 Mulchand, PW-7 Sanjay Ghode and PW-8 Premchand Tiwari identified the appellant. Police after completion of the investigation, filed the charge-sheet in the Court of the learned Magistrate and the learned Magistrate committed the case to the Court of Sessions.

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3 The learned defence counsel while challenging the judgment and order of the learned Sessions Court, has submitted that the prosecution has not proved the case and the appellant is falsely implicated in the present case. The learned counsel submitted that the evidence of auto-rickshaw driver PW-5 Mulchand cannot be believed as it does not inspire confidence due to the inconsistencies in his evidence. She submitted that PW-5 Mulchand did not have any time to see the appellant and so also is the case of PW-7 Sanjay Ghode and PW-8 Premchand Tiwari. She submitted

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that the police did not examine Pancha of arrest panchnama and how the appellant was arrested is also not clear from the evidence of the prosecution. She submitted that the case of the prosecution is based on the circumstantial evidence and the circumstances brought on record, are very weak and cannot prove the case against the appellant. She lastly submitted that in the post-mortem notes, no external injuries were found on the body of the deceased. She therefore, submitted that the appellant deserves to be acquitted.

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4 This case is based on the circumstantial evidence, however, the identification of the appellant is a vital part of the circumstantial evidence. The prosecution has proved the corpus delicti and also the manner in which the murder of the deceased was committed. PW-1 Mustafa and PW-2 Ruksana stated that the deceased who was their brother, left the house after dinner and told them that he would be coming back within short time, however, he did not return. They received the information after sometime that he was lying outside Satara Co-Operative Bank. When they went there, they identified the person as their brother and when he was shifted to the hospital, they realized that he was dead. The evidence of PW-5 Mulchand, PW-7 Sanjay Ghode and PW-8 Premchand Tiwari unfolds the case of the prosecution on the point of commission of the offence. PW-7 Sanjay Ghode who was resident of Gandhinagar, Kaju Pada, has deposed that on 23.12.2007, after

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dinner, he was walking on the road and standing near the pan-shop. At that time, two boys were running after each other, one boy fell down and the other boy was stopped by him and public. Both the boys were surrounded by the people. They asked the person fallen on the ground as to why he was running, he told that he was under intoxication. Then he asked the address, he told that he was residing in Narayan Nagar. PW-7 Sanjay stated that he provided Rs.20/- to those boys to go to their home and the public stopped auto-rickshaw and the boy who was running ahead and the person fallen, were made to sit in the said auto-rickshaw. PW-5 Mulchand who was the auto-rickshaw driver, supports the evidence of PW-7 Sanjay Ghode and connects the further link. He has stated that at Kaju Pada when he was going towards Kurla Station at 11.15 p.m. he saw 15 to 20 persons in front of his auto-rickshaw. They stopped his auto-rickshaw and they put one person who was in drunken state, and told him to take the auto-rickshaw to Himalaya Society. The other person was also made to sit in the said auto-rickshaw. He stated that initially PW-5 Mulchand was not willing to take those persons, however, he was forced by the public to carry those persons. He has stated that the drunken person was unconscious and he noticed that the person sitting in the auto-rickshaw put his hands around the neck of the drunken person and so he asked him as to what was he doing to the drunken person and he told him that

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unless drunken person regains consciousness, he would not drive the auto-rickshaw. So the drunken person was made to lie on the plat-form, then the other person sat in the auto-rickshaw. At that time, he came to know the name of that person. After going ahead for sometime, the person got down from the auto-rickshaw and then went away. PW-8 Premchand further corroborates the evidence of PW-5 Mulchand. PW-8 Premchand stated that he was sitting in one Tata Indica Car at around 11.30 p.m. along with his friend Chand Babu near Himalaya Society. They saw one auto-rickshaw stopped in front of their Indica Car, one person got down from the autorickshaw and one person was made to lie on the plat-form and immediately that person sat in the auto-rickshaw. The said autorickshaw left his place and thereafter he told watchman of the society that the person was kept on the cement plat-form. So some persons gathered there. The watchman of the Himalaya Society is examined as PW-4 Sahaboob Mohd. Hanif. He has stated that when he was standing, one person informed him that one person was lying there. He sprinkled water on the face of that person. Thus, the evidence of these witnesses proves that when PW-7 Sanjay saw the deceased at 11.00 p.m. the deceased was alive. He was running but he was drunk and the other person i.e. the appellant accompanied him in auto-rickshaw. Let us see the evidence of PW-6 Dr. Pravin Bagul. He has deposed that there was neck injury and many

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abdominal injuries found on the body of the deceased at the time of the post-mortem. He has stated that he found contusions, abdominal hemorrhage, blood fluid and blood clots in the cavity of the abdomen. There was contusion in the intestine on the liver, then right side and left side of the kidney. He has opined that the cause of death was “neck compression injury with multiple internal abdominal injuries” and the death was unnatural. Thus, through all these witnesses the prosecution has established that it was a homicidal death. The question now before the Court is whether the appellant has committed this crime or not ? The prosecution admittedly has not brought any evidence on the point of motive. PW-1 Complainant Mustafa and PW-2 Ruksana did not say anything about any acquaintance and enmity of the appellant with the deceased. So the nexus between the appellant and the deceased is not proved. PW-7 Sanjay stated that he saw two persons running and saw that deceased fell down and so he slapped the appellant and handed over Rs.20/- and again they were put in auto-rickshaw. PW-7 Sanjay has stated that he has sometime to see the appellant. Thus, he had an opportunity to see the appellant and he has identified the appellant in the test identification parade at Central Jail, Thane and he has also identified the appellant in the dock in the Court. PW-8 Premchand has identified the appellant as the PW-8 Premchand had an opportunity to see the assailant when he saw the

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deceased was brought out of the auto-rickshaw and he was made to lie on the foot-path. As per his evidence immediately that person who lifted the deceased, again sat in the said auto-rickshaw and went away. Thus, PW-8 Premchand could see the other person for a short time compared to PW-7 Sanjay. PW-5 Mulchand is an autorickshaw driver. He has stated that when he saw people gathered at Kaju Pada, they made two persons to sit in his auto-rickshaw and while going in auto-rickshaw, he found that the appellant had put his hands around the neck of the deceased and so, he asked him that what was he doing and then he stopped auto-rickshaw and kept the body of the deceased on the cement plat-form opposite to Satara Bank and then he sat in the auto-rickshaw and went away. PW-5 Mulchand had some time to see the other person. All these witnesses PW-5 Mulchand, PW-7 Sanjay and PW-8 Premchand admittedly did not have previous acquaintance with the appellant. So as per their evidence, they saw the appellant first time on the night of 23.12.2007. PW-5 Mulchand comparatively had some more time to see the deceased and the appellant. However, it was not a larger span of time. PW-7 Sanjay saw two persons running after each other and as the deceased fell down, he asked the appellant to take him away in the auto-rickshaw. Besides the evidence of these three witnesses, there is no other evidence to bring the appellant near the commission of the crime. PW-5 Mulchand in his cross-

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examination in paragraph 6 admitted that in the police station the appellant and his photograph were shown to him. Thus, this dilutes the value of the identification of this witness PW-5 Mulchand at the time of test identification parade. PW-8 Premchand though has identified him in test identification parade, he had very short time to see the appellant. It is to be noted that when two persons were involved in any incident, attention of the viewers is always divided on two persons. If the witness has an opportunity to see the person and immediately thereafter there is an opportunity to see him again, then there is better retention and memory remains. In the present case, the prosecution did not examine the Special Executive Magistrate (S.E.M.) who had conducted the test identification parade. There is no evidence on record as to what procedure was followed at the time of test identification parade. The person who conducts the test identification parade is best and necessary witness to say that the procedure laid down, was followed scrupulously and identification of the appellant by the witnesses can be attached a high evidentiary value. We do not get any answer as to why the S.E.M. was not examined by the prosecution and why the Memorandum of test identification parade was not proved and it undoubtedly nullifies the value of the identification of the appellant by the witnesses. On the background of the admission of PW-5 Mulchand that in the police station that appellant and photograph

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both were shown to him, the investigation becomes doubtful and shoddy. It is also to be noted that the appellant was arrested on 30.12.2007, however, the test identification parade was conducted on 10.3.2008. The period to see the appellant for the witnesses was very short period and the period undergone between the incident of seeing the appellant and the test identification parade is much more and therefore, we find it unsafe to rely on such identification as the memory of the witnesses was not fresh to identify the appellant after three months. Thus, though the prosecution has proved the fact of unnatural death of the deceased and the manner in which the offence has taken place, we find it unsafe to rely on the evidence on the point of identification of the appellant tendered by the prosecution. In the absence of any motive and the authentic and credit-worthy evidence on the point of identification of the appellant by the witnesses, we find that the nexus between the appellant the commission of the offence is not established and some link is missing. Therefore, we are inclined to set aside the judgment and order of conviction and sentence imposed on the appellant by the learned Sessions Judge.

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5 In the result, the following order is passed:.

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ORDER

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(i) The appeal is allowed.

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(ii) The conviction and sentence under Section 302 of the IPC, imposed on the appellant by judgment and order dated 24.4.2009 passed by the learned Additional Sessions Judge, Gr. Bombay in Sessions Case No. 235 of 2008, is set aside. The appellant is acquitted from the said offence.

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(iii) The appellant shall be set at liberty forthwith, if not required in any other case.

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(iv) Writ of order is expedited.

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(v) Office to communicate this order to the appellant and the Jail Superintendent in which Jail, the appellant is lodged.

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(vi) At this stage, we must record our appreciation for Mrs. Indrayani Koparkar appointed from the High Court Legal Services Committee Bombay to represent the appellant. We found that she had meticulously prepared the matter and she has very ably argued the matter. We quantify legal fees to be paid to her by the High Court Legal Services Committee at Rs. 2500/-.

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[MRS. MRIDULA BHATKAR, J.] [ SMT. V.K.TAHILRAMANI, J.]

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kandarkar

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Mehbob Amin Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mehbob Amin Shaikh 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

Statutes considered

Parties & counsel

Coram

Case details

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