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2015 DIGILAW 1341 (BOM)

Ayubkhan Amirkhan Pathan v. State of Maharashtra

2015-06-22

A.B.CHAUDHARI, P.N.DESHMUKH

body2015
JUDGMENT 1. These two Criminal Appeal Nos. 56 of 2014 and 73 of 2014 have been filed by the State of Maharashtra and the complainant - Smt. Vijaya Dilipsingh Shirke against the judgment and order of acquittal of accused Nos. 2, 6, 7, 8, 12, 14 and 16. Learned Public Prosecutor Mrs. B.H. Dangre submitted that the learned trial Judge has recorded reasons which are clearly perverse in recording the acquittal of these accused persons. Referring to the entire evidence that was read over to us by the Counsel for both the parties, she submitted that on the same evidence on which eight accused persons have been convicted, these accused have been acquitted for the reasons which are perverse, flimsy and has, thus, caused miscarriage of justice to the State. She then submitted that in the substantive evidence of PW 26 and PW 33, these accused have been specifically named and even then learned trial Judge has for no good reasons recorded the order of acquittal. The Public Prosecutor relied on the arguments made by her in reply to the appeals filed by the convicted accused. 2. Per contra, learned Counsel appearing for these accused persons, who have been acquitted, vehemently opposed these appeals against acquittal and submitted that this Court should not interfere with the order of acquittal looking to the settled legal principles in relation to the appeal against acquittal. The High Court would not substitute its view merely because second view is possible. All the defence Counsel then submitted that it is not that the acquittal was recorded by the learned trial Judge for any flimsy reasons and on the contrary as specifically pointed out by Mr. A.V. Gupta, learned Adv., for the defence, that the acquittal was recorded by the learned trial Judge for want of other material and corroborative evidence and circumstances, since, according to trial Court, testimony of PW 26 and PW 33 was not supported by other material circumstances or corroborative evidence. All the learned Counsel for the respective respondents - acquitted accused, therefore, prayed for dismissal of these appeals against acquittal. REASONS: 3. We have considered these appeals against acquittal and the grounds raised therein. We have heard learned Counsel for the rival parties. We have seen the reasons recorded by the learned trial Judge for recording acquittal of accused Nos. 2, 3, 6, 7, 8, 12, 14 and 16. REASONS: 3. We have considered these appeals against acquittal and the grounds raised therein. We have heard learned Counsel for the rival parties. We have seen the reasons recorded by the learned trial Judge for recording acquittal of accused Nos. 2, 3, 6, 7, 8, 12, 14 and 16. It is important to point out at this stage that the accused No. 3 -Sachin Gawande died during trial and, therefore, we are concerned with the acquittal of accused Nos. 2, 6, 7, 8, 12, 14 and 16 who are now seven in number. The trial Judge recorded the following reasons for making an order of their acquittal:-- "117.......................................................................Similarly her evidence against A/7 Pandurang Injewar, A/12 Mahesh Bante, A/14 Sandeep Sanas and A/16 Maroti Walke does not inspire confidence." "125. In the case in hand, accused Nos. 1, 4, 5, 9, 10, 11, 13 and 15 along with some other un-identified assailants armed with deadly weapons came on the spot and belaboured the deceased Pintu on account of previous enmity. The facts and circumstances of the case unequivocally prove the existence of their common object forming unlawful assembly and attacked the deceased Pintu. The evidence so far as against rest of accused persons in question creating doubts to reveal their complicity in the alleged crime and hence, 1 record my finding accordingly against point No. 5." 4. We find from the careful reading of the entire judgment that except the above reasons, no reasons appear in the judgment for recording the order of acquittal of these accused persons. In fact, it is paradoxical. We have already discussed the evidence of the witnesses including the witnesses PW 26 and PW 33 and also indicated the names of these acquitted accused in bracket for emphasis. We have discussed in detail about the trustworthiness of the evidence of these two eye-witness in so far as convicted accused persons are concerned. Upon careful perusal of the entire evidence over and again for the purposes of deciding the appeals against acquittal and keeping in mind the set principles in the matter of appeal against acquittal, we find that from the evidence which we have carefully pondered over while deciding the criminal appeals filed by the appellants-accused persons, trial Judge has recorded no reasons as to why he recorded the order of acquittal of these accused persons. There is, thus, a clear perversity in our opinion and, in fact, the High Court is entitled to interfere if there is perversity on the part of trial Judge in recording order of acquittal, or rather High Court is under a duty to interfere when there is voluminous evidence against these acquitted accused persons. We find in the instant case that as we have already extracted evidence in our judgment while deciding the criminal appeals filed by the accused persons from which it is clear that out of these acquitted accused persons, except accused No. 6 - Mayur Chauhan, accused No. 8 Rajesh Kadu and accused No. 14 - Sandip Sanas, all the others, I.e., accused Nos. 2 - Mangesh Chavan, 7 - Pandurang Injewar, 12 - Mahesh Damodhar Bante, and 16 - Maroti alias Nawa Walake have been duly named, identified on 21st June, 2015 itself by PW 26 and PW 33 whom we have believed as the eye-witnesses. In so far as accused No. 6 - Mayur Chauhan, accused No. 8 - Rajesh Kadu and accused No. 14 -Sandeep Sanas are concerned, their acquittal by the trial Judge deserves to be confirmed for the following reasons:-- "PW 26 Vijaya named accused No. 6 -Mayur Chauhan in her evidence before the Court, but the Investigating Officer - PW 36 Vinod on page No. 419 of the paper-book stated that she had not stated the name of accused No. 6 - Mayur Chauhan when he recorded her statement under section 161, Criminal Procedure Code and, thus, proved the said omission about him. PW 33 Shefali did not state the name of accused No. 6 -Mayur Chauhan, but stated the name as "Bunti Chauhan", which nickname was never admitted by anybody, nor proved by the prosecution. But then she admitted that she did not state [paper book page No. 351] about him in her statement recorded by police as assailant which omission was duly proved by PW 36 - Vinod on page No. 414 [para 21 of the paper-book]. But then she admitted that she did not state [paper book page No. 351] about him in her statement recorded by police as assailant which omission was duly proved by PW 36 - Vinod on page No. 414 [para 21 of the paper-book]. In so far as accused No. 8 - Rajesh Kadu is concerned, PW 26 - Vijaya in her substantive evidence before the Court did not at all name him as assailant, and also admitted that she had not stated his name when her statement was recorded by Police vide page 228 para 36 of the paper book and accordingly the Investigating Officer proved the said omission. PW 33 Shefali took the name of Rajesh Kadu in her substantive evidence before the Court, but then admitted in the cross-examination that she did not state his name when her statement was recorded by police [page 364 of the paper-book]. As regards accused No. 14 Sandeep Sanas, PW 26 Vijaya did not say a word about accused No. 14 as assailant in her evidence before the Court. PW 33 Shefali, however, named accused No. 14 Sandeep Sanas in her evidence. It is, thus, clear that in so far as accused No. 6 Mayur Chavan and accused No. 8 Rajesh Kadu are concerned, the evidence of both these eye-witnesses suffers from serious infirmity and we think it is risky to convict them. In so far as accused No. 14 Sandeep Sanas is concerned, Vijaya has not named him at all in her substantive evidence before the Court and PW 33 Shefali has only named him, resulting into want of corroboration for accused No. 14 Sandeep Sanas from PW 26 Vijaya, We feel it risky to convict accused No. 14 Sandeep Sanas on the singular testimony of PW 33 Shefali who identified him before the Court for the first time and her evidence not being corroborated by her mother about him." 5. In so far as other acquitted accused persons, i.e., accused Nos. 2, 7, 12, and 16 are concerned, we find that so far as accused No. 2 - Mangesh is concerned, initially PW 26 Vijaya had stated by pointing out Umesh Dahake as "Mangesh". But then at the end of same paragraph, she again identified Mangesh Chavan as the assailant. In so far as other acquitted accused persons, i.e., accused Nos. 2, 7, 12, and 16 are concerned, we find that so far as accused No. 2 - Mangesh is concerned, initially PW 26 Vijaya had stated by pointing out Umesh Dahake as "Mangesh". But then at the end of same paragraph, she again identified Mangesh Chavan as the assailant. Similarly, both these eye-witnesses-PW 26 and PW 33 in their sworn testimonies which we have already quoted earlier, identified all the other acquitted accused persons, namely accused Nos. 2, 7, 12, and 16. The submission made by learned Counsel for the respondents -acquitted accused persons that the weapons seized from them or the clothes seized from them did not have any blood stains and, therefore, order of acquittal is justified does not appeal to us. In the first place, the evidence regarding finding of blood on shirt or weapon is in the form of a corroborative evidence and is not the substantive evidence. Substantive evidence before the Court is that of PW 26 and PW 33 which the trial Court has believed, so also we. Though trial Court believed their evidence in entirety, without recording any reasons, trial Court recorded the order of their acquittal. We, therefore, find that there is a clear perversity on the part of trial Judge in recording the order of acquittal in relation to all these accused persons who were acquitted, except accused No. 6 Mayur Chavan, accused No. 8 Rajesh Kadu and accused No. 14 - Sandeep Sanas. That being so, we have no other alternative, but to reverse the judgment and order of acquittal of the above accused [accused Nos. 2, 7, 12, and 16] persons which we do herein and convict them of the offences punishable under sections 147, 148, 149 and 302 read with section 34 of Indian Penal Code and under section 4 r/w section 25 of the Arms Act and u/s. 135 of the Bombay Police Act. 6. In so far as four accused by names Sachin Gawande [accused No. 3) [dead], Rajesh Kadu [accused No. 8], Sandeep Sanas [accused No. 14] and Ayub Khan [accused No. 11] [convicted] are concerned, their names were never given by PW 26 - Vijaya and PW 33 - Shefali when their statements under section 161, Criminal Procedure Code, were recorded. 6. In so far as four accused by names Sachin Gawande [accused No. 3) [dead], Rajesh Kadu [accused No. 8], Sandeep Sanas [accused No. 14] and Ayub Khan [accused No. 11] [convicted] are concerned, their names were never given by PW 26 - Vijaya and PW 33 - Shefali when their statements under section 161, Criminal Procedure Code, were recorded. They were identified in Test Identification Parade held on 21st August, 2002, i.e., after two months of the incident. Both these witnesses have not said a word about these four persons as to whether they had any weapon in their hands and it was vaguely stated that they were assailants. The relevant portion from the evidence of PW 33 - Shefali in this contest is reproduced below:-- "11.......................................................................The witness pointed out the finger towards four accused person and identified them by their faces as assailants. On being asked the names from the said accused person. Their names are Ayub Khan, Sandeep Sanas, Sachin Gawande, Rajesh Kadu." "13. On 21st of August, 2002, I was called for T.I. Parade in Jail. My mother was also called in Jail for T.I. Parade. During T.I. Parade in two round, I identified two assailant in each round. The said four assailants to whom I identified as assailants during T.I. Parade are today present before the Court. The witness pointed out the finger towards Ayub Khan. Sandeep Sanas. Sachin Gawande. Rajesh Kadu and identified them. The T.I. Parade dated 21.8.2002 now shown to me. It bears my signature at page No. 5 and 14. I put these signatures in the Central Jail at the time of T.I. Parade." This is the evidence of both these witnesses. In other words, the prosecution is relying only on the evidence of identification of these four persons in the Test Identification Parade and there is no other evidence against them'. Evidence in the Test Identification Parade, as stated earlier, is not a substantive evidence but is corroborative collected during investigation of a crime. In the substantive evidence, the identification of these four persons is on the basis of Test Identification Parade without any description about the weapons they had overt act, or, as the case may be, as these witnesses specifically described about the weapons in respect of other accused persons. In the substantive evidence, the identification of these four persons is on the basis of Test Identification Parade without any description about the weapons they had overt act, or, as the case may be, as these witnesses specifically described about the weapons in respect of other accused persons. The delay of two months in holding the parade in respect of these four persons may become a material aspect, particularly because all these four persons have not been named in the statements under section 161, Criminal Procedure Code on 21st June, 2002. That apart, in so far as these four persons, who are said to have been identified as assailants by faces are concerned, the evidence of PW 26 Vijaya is infirm, examined in the light of one of them, namely accused No. 8 - Rajesh Kadu. We quote the following portions from paras 35 and 36 of PW 26 - Vijaya's evidence:-- "35. It is true Rani Annapurnadevi was residing in Chhota Tajbag area till her death. It is true some time, I also resided in the area of Chhota Tajbag. My both brother-in-law are still residing in Chhota Tajbag Area. I was visiting Rani Annapurnadevi and my both the brother-in-law after leaving the said area. Even after the death of Rani Annapurnadevi, I was visiting Chhota Tajbag area. It is true Dayaram Kadu was the servant of Rani Annapurnadevi. He used to look after the work of Rani Annapurnadevi and used to sit with her. I was having good relation with Dayaram Kadu as he being servant of Rani Annapurnadevi. It is true at the time of marriage of my elder daughter, I had invited Dayaram Kadu. It is true I had also invited him at the time of marriage of my son Swapnil. It is true the children of Dayaram Kadu used to call me and my husband as maternal Uncle and Aunt. I do not remember if accused Rajesh Kadu had attended the marriage of my son-Swapnil." "36. It is true I did not state to the Police while recording my statement the number of the assailants to whom I identified by faces. I do not remember whether I, did state to the Police while recording my statement, the total number of the assailants were 14 to 15. It is true I did not state to the Police while recording my statement the number of the assailants to whom I identified by faces. I do not remember whether I, did state to the Police while recording my statement, the total number of the assailants were 14 to 15. I cannot assign any reason as to why the said fact is not recorded by the Police in my statement. I did not state the name of the accused Rajesh Kadu to the Police while recording my statement. I did not state age, colour, built, complexion, height, clothes worn and the weapons possessed by the assailants of which I did not give names to the Police while recording my statement." It is, thus, impossible to believe that accused No. 8 - Rajesh Kadu was not known to the mother and daughter [PWs 26 and 33 respectively] when Dayaram Kadu was their servant looking after Rani Annapurnadevi and the children of Dayaram Kadu, namely Rajesh Kadu and others used to call PW 26 Vijaya and her husband "Mama and Mami." It is in this background, we find it very risky to convict accused No. 8- Rajesh Kadu, accused No. 11 - Ayub Khan, and accused No. 14 -Sandeep Sanas, In so far as accused No. 11 Ayub Khan is concerned, he was, however, convicted by the trial Court and, therefore, as a result of this discussion, the benefit of doubt will have to be extended to Ayub Khan and consequently Criminal Appeal No. 570 of 2013 filed by him will have to be allowed and he will have to be acquitted, which we do hereunder. 7. Having, thus, decided to allow Appeal against Acquittal against the above accused persons, except accused No. 6 - Mayur Chavan, accused No. 8 Rajesh Kadu and accused No. 14 - Sandip Sanas for the reasons recorded by us, we will have to hear the accused persons [accused No. 2 - Mangesh Chavan, accused No. 7 - Pandurang Injewar, accused No. 12 -Mahesh Damodhar Bante, and accused No. 16 - Maroti alias Nawa Walake] on the question of sentence to be awarded to them. Hence we post these two appeals against acquittal for hearing on the point of sentence on 26th June, 2015. Counsel appearing for them shall address the Court on the above date. 8. Hence we post these two appeals against acquittal for hearing on the point of sentence on 26th June, 2015. Counsel appearing for them shall address the Court on the above date. 8. This appeal has been filed by Smt. Vijaya wife of Dilipsingh Shirke, complainant, i.e., mother of deceased Pintu Shirke, for enhancement of sentence by converting life imprisonment into death for the convicted accused persons - the appellants. 9. We have heard Mrs. Vijaya Shirke in person who was present in the Court on the date of hearing along with learned Public Prosecutor Mrs. Dangre. Mrs. Vijaya Shirke submitted that by making a diabolical plan, her son was murdered in broad daylight in the District Court building complex which terrorized one and all. According to her, punishment of death sentence is the only punishment they deserved in order to have deterrence for such type of accused persons who dared to enter District Court premises for attacking the deceased who was in the Magisterial Custody brought by the police for production before Court and who was helpless having no means to resist the attack. She, therefore, submitted that this is the most heinous crime committed in the public place, that too in the temple of justice and, therefore, the punishment of death is required to be awarded to the convicted accused persons. 10. The defence Counsel for all the convicted accused persons have opposed the appeal for enhancement of sentence and submitted that there is no element of rarest of rare case as contended by her. 11. Upon hearing Mrs. Vijaya Shirke, the appellant in person before us and the defence Counsel and having given our careful thought to the entire matter, we think that the act of the accused persons was dastardly creating trepidation in the temple of justice in a broad daylight by committing the murder of the person in custody of the Court. But it cannot be said that it is the rarest of rare case for awarding the sentence of death to the convicted accused persons. That being so, we do not find any merit in the appeal for enhancement of sentence to death filed by Mrs. Vijaya Shirke, the appellant in Criminal Appeal No. 56 of 2014. 12. In the result, her appeal will have to be dismissed which we do. 13. That being so, we do not find any merit in the appeal for enhancement of sentence to death filed by Mrs. Vijaya Shirke, the appellant in Criminal Appeal No. 56 of 2014. 12. In the result, her appeal will have to be dismissed which we do. 13. As a sequel, we make the following order: - ORDER "[a] Criminal Appeal No. 569 of 2013 filed by Vijay Kisanrao Mate is dismissed. [b] Criminal Appeal No. 561 of 2013 filed by Raju Vitthalrao Bhadre is dismissed. [c] Criminal Appeal No. 564 of 2013 filed by [1] Kiran Umraoji Kaithe and [2] Dinesh Devidas Gaiki is dismissed. [d] Criminal Appeal No. 573 of 2013 filed by [1] Umesh Sampatrao Dahake, [2] Ritesh Hiramanji Gawande and [3] Kamlesh Sitaram Nimbarte is dismissed. [e] Criminal Appeal No. 56 of 2014 filed by Smt. Vijaya Dilipsinghraje Shirke is dismissed. [f] Criminal Appeal No. 73 of 2014 and Criminal Appeal No. 55 of 2014 filed by State of Maharashtra and Smt. Vijaya Dilipsinghraje Shirke respectively, both are partly allowed, and the following respondents-accused persons, namely:-- [i] accused No. 2 - Mangesh Shivajirao Chavan, [ii] accused No. 7 - Pandurang Motiramji Injewar, [iii] accused No. 12 - Mahesh Damodhar Bante, and [iv] accused No. 16 - Maroti alias Navva Santoshrao Walake are hereby convicted of the offences punishable under sections 147, 148, 149 and 302 read with section 34 of Indian Penal Code and under section 4 r/w section 25 of the Arms Act and under section 135 of the Bombay Police Act, except for offence punishable under section 120-B of Indian Penal Code. These appeals are, however, dismissed against other respondents - accused No. 6 - Mayur alias Banti Shivajirao Chavan, accused No. 8 - Rajesh Dayaramji Kadu and accused No. 14 - Sandeep Nilkanthrao Sanas. [g] Those accused persons who are on bail, their bail bonds stand cancelled and all the convicted accused persons are given eight weeks to surrender. [h] Criminal Appeal No. 570 of 2013 filed by accused No. 11 - Ayubkhan son of Amirkhan Pathan against State of Maharashtra is allowed and the impugned judgment and Order convicting him of offences punishable under sections 147, 302, 120(b) read with section 149 of Indian Penal Code is set aside only qua him, and he is acquitted of the charges for which he was convicted by the learned trial Judge. He be set at liberty forthwith, if not required in any other crime." As Counsel for accused No. 2 is not present, we would like to post these appeals on 26th June, 2015 at 2.30 p.m. for hearing on sentence for accused Nos. 2, 7, 12 and 16. Appeal dismissed. Appeal Dismissed.