The Court dismissed all criminal appeals. Appeals by convicted appellants were rejected as conviction was based on direct eye-witness evidence and motive, despite failed weapon recovery. Appeals against acquittal of other accused were dismissed as the trial court's view accepting benefit of doubt was reasonable.
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.
Cri. Appeal No. 223/13 & Ors.
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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 223 OF 2013
....Appellants.
(Ori. Accused Nos. 1 & 2)
Versus
The State of Maharashtra Through Complainant P.I. Shrirampur City Police Station, Tal. Shrirampur, Dist. Ahmednagar.
....Respondents.
Mr. V.D. Sapkal, Advocate h/f. Mr. N.R. Bhavar, Advocate for
appellants. Mrs. V.S. Choudhari, APP for respondent/State.
WITH
CRIMINAL APPEAL NO. 616 OF 2018
The State of Maharashtra Through the P.I. Shrirampur Police Station, Tal. Shrirampur, Dist. Ahmednagar.
....Appellant. (Ori. Complainant)
Versus
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Age 23 years, Occu. Labourer, R/o. Near Municipal School No.4, Ward No. 1, Shrirampur, Dist. Ahmednagar.
Mrs. V.S. Choudhari, APP for appellant/State. Mr. M.P. Shinde, Advocate for respondent No. 3. Mr. N.V. Gaware, Advocate for respondent No. 4, 6, 7 & 8.
(Leave is granted against respondent Nos. 1 & 2 only to fle appeal vide order dated 27.8.2018.)
WITH
CRIMINAL APPEAL NO. 617 OF 2018
Muzafar Papabhai Shaikh, (PW5-Brother of deceased)
Cri. Appeal No. 223/13 & Ors.
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Age 49 years, Occu. Agri., R/o. “Sarkar”, Subedar Basti, Ward No. 2, Shrirampur, District Ahmednagar.
....Appellant.
Versus
Cri. Appeal No. 223/13 & Ors.
4
....Respondents.
Mr. S.T. Shelke, Advocate for appellant.
Mr. V.D. Sapkal, Advocate h/f. Mr. N.R. Bhavar, Advocate for respondent Nos. 1 & 2.
Mr. M.P. Shinde, Advocate for respondent No. 3.
Mr. N.V. Gaware, Advocate for respondent No. 4, 6, 7 & 8.
Mrs. V.S. Choudhari, APP for respondent No. 9/State.
(Appeal of respondent No. 1 & 2 is already admitted. Leave is granted against respondent Nos. 3 & 4 only to fle appeal vide order dated 27.8.2018.)
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ. RESERVED ON : 21/11/2019. PRONOUNCED ON : 12/12/2019
JUDGMENT : [PER T.V. NALAWADE, J.]
Cri. Appeal No. 223/13 & Ors.
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punishable under sections 3, 5 r/w. 25 of Arms Act. The sentence of imprisonment of life is given and fne amount of Rs.10,000/- is imposed on each of them. Criminal Appeal No. 616/2018 is fled by the State against accused No. 3 Juber Ashpak Shaikh and accused No. 4 Abdul @ Bhaiyya Abbaskhan Pathan as they are acquitted of the aforesaid ofences. Criminal Appeal No. 617/2018 is fled by the informant against accused Nos. 3 and 4 to challenge the acquittal given to them. Both the sides are heard.
The incident in question took place on the night between 8.1.2010 and 9.1.2010 near Government godown wall which is situated at Azad Chowk, Shrirampur, District Ahmedngar. Informant Manoj Gupta (PW 1) sells snacks called as ‘Bhel’ on his hand cart bearing name Laxmi Farsan in the evening at this spot. His cart remains there from 1.00 p.m. onwards till late hours of night. As usual, on that day also he was present with his hand cart at the spot of ofence. Deceased Ayub Papabhai Shaikh was known to Manoj.
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mouth. In the meantime, Iqbal Memon, another person, who was also known to both Manoj and Ayub came there and there was some talk between Iqbal and the deceased. After that the deceased rose from the bench to rinse mouth. Within no time, two motorcycles came from Gondhavani road towards the hand cart. There were three persons on one motorcycle and there were two persons on second motorcycle. These motorcycles stopped near the stall of Manoj.
7
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company, left the spot on the same two motorcycles and their motorcycles went towards Shivaji Chowk. Manoj could see the three persons who were in the company of accused Nos. 1 and 2 though they were not known to him prior to the date of incident. Manoj noticed that one of the two motorcycles was of Unicorn Honda Company.
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the spot, two caps, empty cartridges and earth mixed with blood were taken over and a pair of Chappals which were lying there also were taken over under panchanama. Some investigation was made by Police Inspector Shri. Padole (PW 16). The dead body was referred for post mortem (P.M.) examination. The clothes of the deceased were taken over under panchanama.
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302, 143, 147, 148, 149, 120-B, 504, 506 etc. of I.P.C. and also for the ofence punishable under sections 3, 5 r/w. Section 25 of Arms Act. Charge was framed and plea was recorded. All the accused pleaded not guilty. The prosecution examined in all 18 witnesses to prove the ofences. Accused did not examine any witness and they took the defence of total denial.
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one shot by using his pistol on the head of the deceased. Manoj (PW 1) has deposed that the third person who had also got down from the motorcycle was holding another pistol and by showing that pistol, he was giving threats to the persons in the neighbourhood including the shop owners and he was asking them to leave the place by closing their shops. Manoj has deposed that deceased Ayub collapsed due to the aforesaid fring at him and then all the fve persons went away on the same motorcycles.
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evidence of Manoj (PW 1) so far as it is in respect of fring done by accused Nos. 1 and 2. In the F.I.R. also, he has mentioned that he knew accused Nos. 1 and 2 from prior to the date of this incident. In F.I.R., Manoj had not given the names of other three persons who had come there on two motorcycles. Though he had described the third person who had got down from the motorcycle, his name was not given. On the other hand, in F.I.R. it was specifcally disclosed by Manoj (PW 1) that only accused Nos. 1 and 2 were known to him and they had come there with three unknown associates. This portion of F.I.R. was confronted to PW 1 during cross examination and he has stated that he had wrongly mentioned in the F.I.R. that there were three other persons, unknown associates of accused Nos. 1 and 2. Thus, the evidence given in the Court that accused Nos. 3 and 4 were known to Manoj is hit by omission in F.I.R.
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side and accused Nos. 1 to 3 on other. He has given evidence that from prior to the date of incident, these accused had kept watch on the movements of Ayub and the accused had vowed to fnish Ayub. All this part of evidence is hit by omission in the F.I.R.
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direction of the Court to give exhibit to this record and so, Exh. 251 was given to this record. The ofcer before whom the T.I. parade was conducted is not examined. Manoj (PW 1) has not referred the incident of T.I. parade. As there is no evidence from Manoj (PW 1) about T.I. parade and as there is no evidence even of the concerned ofcer to prove the record, this record cannot be used as evidence under section 3 of the Evidence Act.
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time, there were three persons sitting on two motorcycles on which accused Nos. 1 and 2 had come there. This part is inconsistent with the previous part of evidence in which he had stated that one person was holding other revolver and he was keeping the shop keepers away from the spot. Maulana (PW 2) has given evidence that he and Ayub Poptiya rushed to the spot when fring was over and they shifted the deceased frst to German Hospital and then to Anarase Hospital and then to Sakhar Kamgar Hospital. The evidence shows that as doctors were not available at German Hospital and Anarase Hospital, the deceased was taken to Sakhar Kamgar Hospital and there doctors declared that Ayub was dead. There is M.L.C. prepared by Sakhar Kamgar Hospital showing that the time of death was mentioned as 12.45 hours of that night.
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statement was recorded. Like in case of PW 1, he had not stated in frst police statement recorded on 9.1.2010 that he knew accused Nos. 3 and 4 and absconding accused. In supplementary statement dated 25.1.2010 he took names of not only other three accused, but also the remaining accused and he informed to police that there was motive for the crime for all the accused. The omission in police statement dated 9.1.2010 in respect of the name of accused Nos. 3 and 4 and absconding accused was confronted to Maulana. He admitted the omission in respect of accused No. 3, but he did not admit the omission in respect of accused No. 4 and absconding accused. The record shows that the omission in previous statement in respect of accused No. 4 and absconding accused was not proved in the evidence of Investigating Ofcer (PW 18), who had recorded the frst statement of Maulana. There are many other circumstances showing that the APP and the defence counsel did not properly conduct the matter and even the Trial Court did not follow the proper procedure for giving exhibits to many documents.
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come in the evidence of PW 1 that he had seen these two persons in the vicinity when the fring had taken place.
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Chappal was lying there. Two caps of bullets, empty cartridges were found on the spot. The description of the letters appearing on the caps is mentioned in the panchanama. In view of the other circumstances which this Court is discussing at proper place, this Court is avoiding to burden the record by mentioning atleast description of the caps and weapons. Map of scene of ofence was prepared on Exh. 148. The evidence of spot panchanama is consistent with the direct evidence given by PW 1 and PW 2.
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so far as his evidence given as against accused Nos. 1 and 2 is concerned. There are more circumstances like medical evidence to corroborate the version of PW 1.
“17 (1):A single penetrating oval shaped injury over anterior abdominal wall in left hypochondric region with anterior end slightly lower than posterior end, directed above downward towards umbilicus, injury was located at a distance of 112 cms from heal, 18 cms below the left nipple, 13 cms below and lateral to xiphoid, 12.5 cm from umbilicus and 17 cms above anterior superior illiac spine. The margins of wound are inverted with clots of blood seen in its depth. There was an abrasion collar of 0.5 cms broad along the posterior upper margin of the wound. The injury penetrates anterior abdominal wall below the coastal margin entered through the peritoneum then stomach and from stomach to messentry, from messentry to abdominal aorta and after leaving abdominal arota the
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bullet get lodged into the body of 3rd lumber vertebra from where it was recovered.
17 (2):- A single circular penetrating wound over perietal region of left side, about 12 cms above the left eye brow, 2.9 cms lateral and 22 cms anterior to mid occipital protanence and 15 cms away from left mastoid process, size of would is 1.7 cms in diameter X cavity deep with punched out, lacerated margins, through which small shattered piece of bone and brain matter seen. Circular shaped fracture skull underneath the wound above mentioned with subgial haematoma around and margins of skull fracture well demonstated with infltrated blood at margins and inner table there is evidence of bevelling of size of 0.3 cms, then bullet penetrates dura entered into the left parietal lobe adjacent to above mentioned fractured skull passed downwards, vertically upto the base of brain matter, turned horizontally through 3rd ventricle to lower margins of corpse callousm, then pones and lodged into mid of medulla oblongata, 1.5 cm above foreman magnum and bullet base was distorted and then whole tract was haemorrhage and lacerated. (Injury No. 1 and 2 are antemortem injuries).”
Dr. Jame (PW 11) has deposed that injury No. 2 is sufcient to cause the death in ordinary course of nature. If the description of injury No. 1 is seen, it can be said that this injury also would have caused the death in ordinary course of nature. On overall medical record the opinion is given that the fre arm injuries caused the death.
Cri. Appeal No. 223/13 & Ors.
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panchanama of seizure of clothes of the deceased. This document is proved as Exh. 62 and it was prepared on 9.1.2010. This evidence shows that shirt, tea shirt and sando banian were on the person of the deceased and at the side of abdomen on all the three clothes holes were noticed. Thus, there were atleast three garments at the place where fring was done by accused No. 1. It is already observed that evidence does not show that the fring on the head was done from close distance by accused No. 2. These pieces of circumstances explain as to why the signs which could have been noticed if there was fring from close distance could not appear on the dead body.
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this incident and there is the evidence of only interested witness PW 16. In ordinary course, when PW 16 was taking action within jurisdiction of other police station, he would have informed the other police station and other police station would have created record in respect of arrest of these accused at this spot and also about seizure of articles as made necessary under the provisions of Criminal Procedure Code (Cr.P.C.). Even the description of the truck is not given by PW 16. In ordinary course, in such case police ofcer would have recorded statements of truck driver and cleaner which could have lend credence to the version of PW 16. There is no record like such information was received, the entry of the accused was taken in any record and entry of movement of PW 16 along with vehicle was made in any register. Due to all these circumstances, this Court holds that the evidence of seizure of two fre arms from accused Nos. 1 and 2 cannot be used against them.
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but it appears that the investigating agency and the prosecution side did not prosecute the matter properly.
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show that PW 4 was also present in the vicinity of the spot of ofence at the relevant time.
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four persons out of fve who came on that day from the side of spot of ofence on two motorcycles.
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he knew all the accused including Wasim Shaikh. The evidence of PW 4 in the cross examination shows that he could not explain the things and described many things asked to him and he could not stand to the test of cross examination. This Court holds that the evidence of this witness is of no use to the prosecution.
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year 2009 one lady was kidnapped by accused Nos. 1 to 3 for extortion and the deceased had intervened in that incident also and after rescuing that lady, the deceased and his persons had given beating to accused Nos. 1 to 3. Evidence is given that after the last incident, accused Nos. 1 to 3 had taken vow and they had decided not to have hair cut till Ayub was fnished. There is such evidence of PW 1, PW 2 and PW 5 also. The tenor of the cross examination shows that it is not disputed that the relations between the deceased and accused Nos. 1 to 4 were strained. Due to these circumstances, this Court holds that there is no reason to disbelieve the prosecution evidence on motive. Thus, there was reason for atleast accused Nos. 1 to 3 to fnish the deceased.
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on motive. When there is such direct evidence and no other possibility is there, conviction can be safely based on the direct evidence even if there is no recovery of weapons used in the incident. The law developed on this point is discussed at proper place on the basis of case laws cited by both the sides.
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matter as already observed the investigating agency did not collect the material properly and the prosecution has also not conducted the case properly. There are other circumstances also due to which it is not possible to believe that accused Nos. 3 and 4 were part of conspiracy. As against accused Nos. 1 and 2, there are many circumstances due to which the conspiracy can be inferred against them and they are as under :-
(i) The incident took place at about 11.30 p.m. in the night time at snack stall and it was not routein of the deceased to go there. The evidence on the record shows that watch was kept by accused and after learning that deceased was there, accused had gone to the spot.
(ii) Accused Nos. 1 and 2 had carried weapons, fre arms with them. Thus, they had procured the fre arms already and they had taken decision to fnish the deceased. (iii) Accused Nos. 1 and 2 fred the shots at the head and abdomen when the deceased was helpless and this circumstance shows that they had come there only to fnish the deceased and they left the spot only when they accomplished their object.
(iv) Accused Nos. 1 and 2 had come on motorcycles to the spot and so, they had taken care to see that they can escape from the place of ofence immediately after the incident was over.
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(v) Accused Nos. 1 and 2 had motive for the crime
and they had taken decision to fnish the deceased. The deceased was proving to be obstacle in their activities.
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Raju (accused No. 6) and that evidence need not be discussed. That evidence is given only to show that they were seen in the company of accused on 9.1.2010 and 10.1.2010. There is evidence of Dhananjay (PW 12) which is to the efect that he knew accused Sandeep Waghmare and Raju Tribhuvan and he had given mobile hand set to Raju Tribhuvan on 8.1.2010 and it was returned to him by Mahesh Ingale on the next day.
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(i) Soni Vs. State of Uttar Pradesh [1983 SCC (Cri)
4901] :- This case is on T.I. parade and the efect of delay in holding T.I. parade. In the present matter, this Court has already observed that there are many circumstances in the present matter due to which the record of T.I. parade cannot be used against the accused. So more discussion of the observations is not necessary.
(ii) Joginder Singh Vs. State of Haryana [AIR 2013 (SCW) 6169] :- This case is on the power of the High Court when the High Court is considering the appeal against the decision of acquittal. In this case, the Apex Court has laid down that appellate Court is expected to give proper weight to following things :-
(a) The views of the Trial Court on credibility of the witnesses.
(b) The presumption of innocence in favour of accused continues in appeal also.
(c) The right of beneft of doubt to accused needs to be considered and if the Trial Court has given such beneft, Appellate Court should not interfere lightly in that decision.
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(d) The Appellate Court should be slow in interfering the decision of the Trial Court Judge as the Trial Court has advantage of seeing the witnesses.
There cannot be dispute over these propositions made by the Apex Court. This Court holds that in the present matter also, it is not desirable to interfere in the decision given by the Trial Court.
(iii) Chandrappa & Ors. Vs. State of Karnataka (AIR 2007 (SC) 111] :- This case is also on the power of the High Court when High Court is considering the appeal against acquittal and the observations are similar to the observations in the case of Jogindar Singh cited supra.
(iv) State of Punjab Vs. Rajinder Singh [AIR 2010 SUPREME COURT 1428] :- The matter is mainly on factual aspects. There were discrepancies in the description of weapons used. The weapon described was shot gun when it was riffle. There was medical evidence which was not consistent with the weapon which was said to be used. The facts were diferent and in the present matter, weapons of diferent kind like pistol or revolver were used and so, the observations made in this reported case cannot be used in the present matter.
(v) The State Vs. Motia and Ors. [1995 CRI.L.J. 835] RAJASTAN HIGH COURT :- In the case, the linking
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evidence in respect of articles shown to be recovered and articles examined by expert was doubtful in nature. This Court has already observed that the evidence and opinion given by Chemical Analyser and also the ballistic expert cannot be used and that evidence is not considered by this Court.
(vi) Bhanudas Bagaji Salve Vs. State of Maharashtra [2006 ALL M.R. (Cri) 67] :- In this case this Court has discussed the efect of circumstances of not sealing the articles at the time of seizure. In the present matter, this Court has not used such expert evidence and so, no more discussion is necessary.
(vii) Maniram Vs. State of U.P. [1994 SCC, Supl. (2) 289] :- In this case, when direct evidence was not supported by expert evidence in the most material part, the Court held that it was difcult to base conviction.
In the present matter relevant evidence is discussed and the weapons are described as pistol and the medical evidence shows that the injuries were caused only by such weapons and it it cannot be said that medical evidence is not supporting the direct evidence in the present matter.
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The State (Delhi Admn.) [AIR 1988 SUPREME COURT 1883] .
This case is on the conspiracy hatched, on the requirements of proving conspiracy. The requirements are already quoted by this Court and so, more discussion is not necessary. The learned APP placed reliance on the case of Bharat Singh and Ors. Vs. State of U.P. [AIR 1999 (SC) 717] . In that case, there was possibility that the shooting by using fre arm was not done from the close range. In that case, guns were said to be used, but there were no circumstances like scorching, blackening and tattooing. There is no need to use these observations in view of the nature of weapons used in the present matter and nature of direct evidence available. In the case of Kali Prasad Singh Vs. State of Uttar Pradesh [2019 (6) Scale 670] , there were gun shots, but clothes like jacket were on the person of deceased and due to that it was held that the absence of blackening of skin was not a circumstance which could have crated doubt about the evidence of witnesses. In the case reported as Paramjit and Ors. Vs. State of Haryana [AIR 2000 (SC) 2038] , there was use of double barrel gun. In this case, the Apex Court has laid down that when one trustworthy witness is examined, the circumstance of non examination of other possible eye witness cannot be considered against the prosecution and that circumstance can be ignored.
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registration of crime police had rushed to the spot and so, the F.I.R. given by PW 1 cannot be used for corroboration purpose under section 157 of the Evidence Act. On this point, the learned APP placed reliance on the observations made in the case of Animireddy
Venkata Ramana & Ors. Vs. Public Prosecutor, H.C. of A.P.
[2008 DGLS (SC) 373] . In this case, the Apex Court has laid down that it is not necessary that police should take step only after receipt of F.I.R. if cognizable ofence is committed. If somehow police received information and proceeded to the spot, the report given by the frst informant after this moment of police cannot be discarded by presuming that this was not the frst information about the crime. In the present matter also, police had rushed to the spot frst and thereafter, the crime came to be registered. There was use of fre arms and many persons were in the vicinity and immediately after the incident, the persons to whom the deceased was known had shifted the deceased to the hospital to save his life and so, somebody must have informed to police that there was incident of fring. F.I.R. was also given immediately and as already observed this circumstance cannot take away the importance of F.I.R. given by PW 1 in the present matter and F.I.R. can be used for corroboration purpose in the present matter.
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by the Trial Court. The conviction given to accused Nos. 1 and 2 is based on sufcient and satisfactory evidence. Similarly, the view taken by the Trial Court in favour of accused Nos. 3 and 4 is a possible view. In the result, all the appeals stand dismissed.
[ S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
3 issues framed by the court
Whether the conviction of appellants for murder and conspiracy is supported by reliable evidence despite failed recovery of arms.
Whether the appeals filed by the State and informant against the acquittal of other accused require interference.
Whether the procedural lapses in investigation invalidate the direct eye-witness testimony.
Colour shows how this judgement treated each authority
Bhagwandas Keshwani v. State of RajasthanRelied on¶41
Bhagwandas Keshwani etc. Vs. State of Rajastan [1974 CRI.L.J. 751 SC] · Who else cites this
Mohammad Usman v. State of MaharashtraRelied on¶41
Mohammad Usman Mohammad Hussain Maniyar and Anr. Vs. The State of Maharashtra [AIR 1981 SUPREME COURT 1062] · Who else cites this
Soni v. State of Uttar PradeshReferred¶47
Soni Vs. State of Uttar Pradesh [1983 SCC (Cri) 4901] · Who else cites this
Joginder Singh v. State of HaryanaRelied on¶47
Joginder Singh Vs. State of Haryana [AIR 2013 (SCW) 6169] · Who else cites this
Chandrappa v. State of KarnatakaReferred¶47
Chandrappa & Ors. Vs. State of Karnataka (AIR 2007 (SC) 111] · Who else cites this
State of Punjab v. Rajinder SinghDistinguished¶47
State of Punjab Vs. Rajinder Singh [AIR 2010 SUPREME COURT 1428] · Who else cites this
State v. MotiaReferred¶47
The State Vs. Motia and Ors. [1995 CRI.L.J. 835] RAJASTAN HIGH COURT · Who else cites this
Bhanudas Bagaji Salve v. State of MaharashtraReferred¶47
Bhanudas Bagaji Salve Vs. State of Maharashtra [2006 ALL M.R. (Cri) 67]
Maniram v. State of U.P.Distinguished¶47
Maniram Vs. State of U.P. [1994 SCC, Supl. (2) 289] · Who else cites this
Kehar Singh v. State (Delhi Admn.)Relied on¶48
Kehar Singh and Ors. Vs. The State (Delhi Admn.) [AIR 1988 SUPREME COURT 1883] · Who else cites this
Bharat Singh v. State of U.P.Referred¶48
Bharat Singh and Ors. Vs. State of U.P. [AIR 1999 (SC) 717] · Who else cites this
Kali Prasad Singh v. State of Uttar PradeshReferred¶48
Kali Prasad Singh Vs. State of Uttar Pradesh [2019 (6) Scale 670]
Paramjit v. State of HaryanaReferred¶48
Paramjit and Ors. Vs. State of Haryana [AIR 2000 (SC) 2038] · Who else cites this
Animireddy Venkata Ramana v. Public ProsecutorRelied on¶49
Animireddy Venkata Ramana & Ors. Vs. Public Prosecutor, H.C. of A.P. [2008 DGLS (SC) 373]
2 provisions across 2 enactments
Rizwan Farooq Shaikh
Shoheb @ Sayyad Usman Sayyad
The State of Maharashtra
Muzafar Papabhai Shaikh
Juber Ashpak Shaikh
Abdul @ Bhaiyya Abbaskhan Pathan
T.V. Nalawade
S.M. Gavhane
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
