This criminal appeal challenged the acquittal of respondents accused of murder and arms offences. The High Court upheld the trial court's finding that witness evidence was inconsistent and unbelievable, holding that no grounds existed to intervene and dismissing the appeal.
The criminal appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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cri-appeal-147-13
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 147 OF 2013
Khasimbi Rehman Shaikh
..Appellant
Vs.
Firoz Faizulla Khan and ors.
.. Respondents
Mr. Amit Munde for appellant. Mrs. M. M. Deshmukh, APP for State.
CORAM: P. V. HARDAS & A. M. THIPSAY, JJ.
FEBRUARY 22, 2013.
P.C.
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– Rahim Abdul Shaikh, PW 3 – Abbas Shaikh and PW 4 – Sarfaraj Shaikh. However, during trial, PW 3 and PW 4 do not support the prosecution and were declared hostile. The prosecution, therefore, relied on the evidence of PW 1 – Sayyad and PW 2 - Rahim. Additionally the prosecution placed reliance on the disclosure memorandum under Section 27 relating to the seizure of a pistol. The allegations of the prosecution were that the accused had pointed the pistol at the deceased and the deceased was, thereafter, mercilessly assaulted by a chopper. The deceased - Abdul Kadar had sustained about 21 injuries. The aforesaid fact is deposed to by the Medical Officer who had performed the post-mortem examination.
"25. Thus, what can be gathered from the evidence of the two witnesses reproduced above is that both claim to be present at the spot at the time of the incidence and witnessed the entire incidence. It should however be noted that, in his cross-examination PW 1 Sayyad Hussain Shaikh Rehman has stated that Rahim (PW 2) had not witnessed the incidence. According to the witness, Rahim (PW 2) had reached the spot when they were carrying Abdul Kadar in their hands. In his cross examination he has stated that he had not stated to Rahim about the incidence. Rahim had not stated to him that he shall also become an eye witness. He had not told him that
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he had witnessed the incidence. He has further stated that he knows that Rahim is cited as an eye witness. He further states that he does not know on whose say Rahim is quoted as eye witness. Thus, according to this witness Rahim was not present at the spot at the time of the incidence. Whereas, according to Rahim he was present at the spot during the entire incidence. He has also stated that he had told PW 1 Sayyad Hussain Shaikh Rehman that he had witnessed the entire incidence. Thus, the witnesses have falsified the evidence of the other. It creates a doubt about their very presence at the spot during the entire incidence. None of them therefore can be believed.”
On the basis of the aforesaid findings, therefore, the trial court came to the conclusion that it was extremely doubtful if either PW 1 or PW 2 present at the scene of the incident. Since the trial court, by giving cogent reasons, has disbelieved the evidence of PW 1 and PW 2, mere recovery of the pistol by itself would be insufficient for sustaining conviction.
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The view taken by the trial court is a possible view to be taken on the basis of evidence on record.
(A. M. THIPSAY,J.) (P. V. HARDAS,J.)
1 issue framed by the court
Whether the High Court should interfere with the trial court's acquittal of the respondents for murder and possession of arms.
3 provisions across 2 enactments
Khasimbi Rehman Shaikh
Firoz Faizulla Khan
P. V. Hardas
A. M. Thipsay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
