Allowed

Abdul Karim Mohamed Hussain v. the State of Maharashtra

Bombay HC9 Oct 2014APEAL/337/1992

Case brief

AI extract

What is this about?

High Court allowed this murder appeal, acquitting the appellant. The court held that the conviction was unsustainable because the witnesses were contradictory and the extrajudicial confession was unreliable, rendering the blood-stained evidence insufficient for conviction.

What did the court decide?

Conviction and sentence quashed and set aside; appellant acquitted; fine refunded; bail bond canceled.

Abdul Karim Mohamed Hussain Vs the State of… — Murder and Culpable Homicide | Bombay HC (2014)

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903 jud. apeal 337-92.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 337 OF 1992

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Abdul Karim Mohamed Hussain Indian aged 32 years, res. at Ambedkar Nagar Colony, Near Gutter Dharavi, Bombay 400 017 .. Appellant

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v/s.

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The State of Maharashtra in Bombay Sessions Case No. 961/89 and Dharavi Police Station C.R.No. 160/89. ..Respondents

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Ms. Swapna Kode, Advocate appointed for the Appellant. Smt. U.V.Kejriwal, APP for the Respondent/State.

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CORAM : P.V.HARDAS &

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SMT. ANUJA PRABHUDESSAI,JJ. DATED : OCTOBER 09, 2014.

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ORAL JUDGMENT (PER P.V.HARDAS, J.).

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The appellant who stands convicted for the offence punishable

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under Section 302 of IPC and sentenced imprisonment for life by the

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Addl. Sessions Judge, Gr. Bombay by judgment dated 15.6.1992 in

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Sessions Case No. 961 of 1989, by this appeal questions the correctness of his conviction and sentence.

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Since none had appeared on behalf of the appellant, when the appeal was called out for hearing, we had appointed Ms. Swapna Kode, learned Counsel to represent the appellant in this appeal.

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Facts in brief as are necessary for decision of this appeal may be stated thus:

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PW9 PSI Ashok Khilare, who was attached to Dharavi Police Station and was on duty on 22.5.1989 from 8.00 p.m. upto 8.00 a.m. of 23.5.1989, recorded the report of PW1 Hazara Bi Abdul Khaliq Nasir Khan at exh.20. On the basis of the said report, an offence vide crime no. 160/89 was registered under Section 302 of IPC. PW1 Smt. Hazara had complained in the report at Exh. 20 that the appellant had stabbed husband of PW1 Hazara, by name Abdul. Upon registration of the offence, PW9 PSI Ashok Laxman Khilari alongwith other police staff including PI Babar proceeded to the scene of incident and noticed deceased Abdul lying in a pool of

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blood. The Inquest panchanama of the dead body of deceased Abdul was drawn. The dead body was thereafter referred for post-mortem examination. The scene of incident panchamama was also drawn in the presence of panchas and sample of the blood stains from the scene of the incident were seized. PW9 PSI Khilari searched for the murder weapon in the vicinity, but the murder weapon was not found.

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On 23.5.1989, PW9 PSI Khilari received information that the accused was seen wandering in the vicinity of Bahar theatre. Accordingly, the police party was deputed.

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The police party successfully apprehended the accused and he was brought to the police station. The accused was then formally arrested in the said crime in the presence of the panchas. The clothes of the accused were seized under seizure memo at Exh.14. Clothes of the accused were found blood stained. Therefore, they were accordingly seized. During custodial interrogation, the accused expressed his willingness to point out the place where a sword stick had been concealed. A memorandum to that effect was recorded in

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the presence of panchas at Exh.18A. The accused led the police and

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the panchas to the house of PW5 Ramesh Soma Wolambe and a sword stick came to be produced by PW5 Ramesh which was seized under the panchanama at Exh.18B. The statement of witnesses were recorded and further to the completion of investigation, chargesheet against the appellant was submitted.

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The post-mortem on the dead body of deceased Abdul was performed by medical officers of Rajawadi. The postmortem report was admitted by the accused and consequently it was exhibited at Exh.25. As per column no.17, following external injuries were noticed

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“ (1) I.W.1/2” x 1/4” on right side of chest below Rt. Cavicle on lateral side.

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(2) I.W. 1/2” s 1/4” on lateral side of left thigh about left knee, muscle deep.

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(3) I.W. 1/2” x 1/4” on medial side left thigh about knee muscle deep.

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The medical officer therefore opined that deceased Abdul had

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died as a result of haemorraegic shock due to hemorrhagic shock due to injury to the internal organs.

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On the case being committed to the Court of Sessions, the trial court, vide Exh.2 framed charge against the accused for offence punishable under Section 302 of the Indian Penal Code. Vide Exh.3 the accused denied his guilt and claimed to be tried. Prosecution, in support of its case examined 10 witnesses. The trial court relied upon the testimony of PW5 Ramesh and PW7 Smt. Jawali and convicted and sentenced the appellant as afore stated.

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We have heard advocate Ms. Swapna Kode, who has very ably argued on behalf of the appellant and the learned APP on behalf of the State. In order to effectively deal with the submissions urged before us by the learned counsel for the parties, it would be useful to refer to the evidence of prosecution witnesses.

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Though prosecution had examined PW1Hazara Bi Abdul Khaliq

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Nasir Khan, wife of deceased Abdul, PW2 Inayatulla Abdul Khalif

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Nsir Khan, son of deceased Abdul, PW3 Krishna Murty Pillay and PW4 Fazaluddin Fakruddin Shaikh as eye witnesses to the incident, none of the eye witnesses supported the prosecution and were declared hostile. As pointed out by us above, the conviction of the appellant rests on the testimony of PW5 Ramesh and PW7 Jawali. PW5 Ramesh deposes that he knew one person by name Saiyed, and as the maternal uncle of said Saiyed used to reside near the house of Ramesh, Saiyed used to frequently visit the house of Ramesh. According to Ramesh, on 22.5.1989 at about 3.14 a.m. Saiyed had brought the appellant/accused to the house of Ramesh. The appellant was holding a sword stick in his hand. The appellant confessed to PW5 Ramesh that he had killed the deceased and asked PW5 Ramesh to keep the sword stick with him and that the appellant would collect it subsequently. PW5 Ramesh accordingly kept the sword stick with him. This had happened in the morning of 23.5.1989 at about 3.15 a.m. Thereafter, again at about 4.45 a.m. accused and the said Saiyed had again come to the house of Ramesh and had asked for tooth-powder and had brushed their teeth and had thereafter left the house of Ramesh. At about 8.00 p.m. The

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appellant accompanied by the police had come to the house of Ramesh and asked Ramesh to hand over the sword stick which had been kept by the appellant. Accordingly, the sword stick was handed over by Ramesh to the police, which was seized.

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Prosecution has examined PW7 Smt.Javali Soma Wolumbe, mother of PW5 Ramesh.

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PW7 Javali deposes that she new Saiyed as maternal uncle of Saiyed was residing near her house and Saiyed used to frequently visit the house of Ramesh. Accordingly, PW7 Javali on 23.5.1989 Saiyed had brought the accused at about 12.30 in the night. Saiyed had awakened PW7 Javali who was sleeping, and Saiyed had requested Javali to give him a bed sheet, which was refused by Javali. At that time Ramesh was not present in the house. Saiyed and the accused had then left. Saiyed and the accused again came to the house of Ramesh at about 5.00 a.m. and had asked for tooth-power and had accordingly brushed their teeth and had left. According to Javali, Ramesh had returned at about 1 a.m. i.e. after the accused

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and Saiyed had left the house. Accused again came to the house of Ramesh at about 5.00 p.m. accompanied by the police. Accused had than picked up the sword stick and handed it over to the police, which was seized. Learned Counsel for the appellant has rightly urged before us that the evidence of PW5 Ramesh and PW7 Javali are totally poles apart and acceptance of evidence of any one witness necessarily falsifies the evidence of the other witness. Learned APP has supported the finding arrived at by the trial court.

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According to Ramesh, the sword stick had been handed over by the accused who had come to his house accompanied by Saiyed. According to Ramesh the accused had also confessed to have killed deceased Abdul, Evidence of PW7 Javali indicates that the appellant

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and Saiyed had come to her house and Saiyed had requested for a bed sheet. On Javali refusing to give bed-sheet, the accused and Saiyed had left her house. According to Javali at that point of time, PW5 Ramesh was not present in the house. Thus the evidence is so contradictory that no reliance at all can be placed on the testimony of PW5 Ramesh in respect of extra judicial confession as well as the

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keeping of sword stick by the accused.

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As pointed out by us above, acceptance of the testimony of any one witness initially, falsifies the testimony of other witness and in such a situation, it would not be open for the court to pick and choose the testimony of any one witness for convicting the accused. The evidence of extra judicial confession also appears to us to be totally unreliable as admittedly PW5 Ramesh was not acquainted with the accused. We find it unbelievable that the accused would confess to have committed a crime to a total stranger and ask that stranger to keep the murder weapon in his house. The entire evidence of PW5 Ramesh and PW7 Javali tasks human credulity for its acceptance. In our opinion, therefore, the trial court erred in placing reliance on the testimony of PW5 Ramesh and PW7 Javali.

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If the testimony of PW5 Ramesh and PW7 Javali is left out of consideration, the only evidence against the accused is the report of the CA which shows that human blood was found on the clothes, though the blood group could not be determined. The report of the

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CA further shows that the sword stick was found stained with human

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blood, but the blood group could not be determined. The said evidence in our opinion is extremely feeble for sustaining the conviction and therefore, in our opinion, the appellant is entitled to be given benefit of doubt.

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Accordingly, Criminal Appeal No.337 of 1992 is allowed and the conviction of the appellant is hereby quashed and set aside and the appellant is acquitted of the charges with which he was charged. Fine, if paid by the appellant, be refunded to him. His bail bond stands canceled.

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Fees payable to the learned counsel appointed for the appellant

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is quantified at Rs.5000/- (Rupees Five Thousand Only.)

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(ANUJA PRABHUDESSAI, J.) (P.V.HARDAS, J.)

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Abdul Karim Mohamed Hussain v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Abdul Karim Mohamed Hussain 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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