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2018 DIGILAW 966 (BOM)

Salim Khan Mumtaz Khan v. State Of Maharashtra

2018-04-05

B.R.GAVAI, M.G.GIRATKAR

body2018
JUDGMENT M.G. Giratkar, J. - By way of present appeals, all the appellants assailed the judgment of their conviction dated 04.02.2005 passed by the learned Additional Sessions Judge, Amravati in Sessions Case No. 230 of 2003 by which they are convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and fine of Rs. 25,000/each, in default, to suffer further imprisonment for one year; for the offence punishable under Section 330 read with Section 34 of the Indian Penal Code, they are sentenced to suffer imprisonment for seven years and fine of Rs. 5000/each, in default, to suffer further imprisonment for one year; and for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code, they are sentenced to suffer imprisonment for seven years and fine of Rs. 3000/each, in default, to suffer further imprisonment for one year. 2. The case of the prosecution against the appellants can be summarized as under : All the appellants were working as police personnel in Railway Protection Force (RPF). There was theft of some fishplates of Gate No.74 from Dhamangaon Railway Station. Sectional Engineer (Track) Central Railway, Dhamangaon reported the incident to RPF Police at Wardha. Dhamangaon Railway is within the jurisdiction of RPF Police at Wardha. ASI Salim Khan was ordered to do enquiry and if necessary, file a complaint in Dhamangaon Railway Police Section i.e. Dattapur Police Station. At that time, Suresh Kamble, Dinkar Patil and Rashid Mulani were constables attached to RPF headquarters at Wardha. On 01.08.2003, all the appellants had been to Dhamangaon Railway. They went to the house of deceased Birju Yadav. They searched his house. Birju was caught and dragged to Railway Station by road. His wife Latabai was at the house. Birju was assaulted on way to railway station from his house. He was severely assaulted in a room used and kept for RPF police at railway platform. Birju then gave confession of commission of theft of fishplates and selling the same by him. At about 02:00 to 02:30 p.m., the condition of Birju became serious. Immediately the accused with the help of Prakash Neware, called for an auto rickshaw for carrying Birju in Rural Hospital at Dhamangaon. He was taken to the Rural Hospital, Dhamangaon. Medical Officer Dr. Rangari declared him brought dead. At about 02:00 to 02:30 p.m., the condition of Birju became serious. Immediately the accused with the help of Prakash Neware, called for an auto rickshaw for carrying Birju in Rural Hospital at Dhamangaon. He was taken to the Rural Hospital, Dhamangaon. Medical Officer Dr. Rangari declared him brought dead. The wife of deceased lodged a report to the Police Station, Dattapur. The dead body was sent to postmortem. Dy.S.P. Bargal of Chandur Railway investigated the crime. After completing investigation, filed charge sheet before the JMFC, Chandur Railway, who, in turn, committed it to the Court of Session at Amravati. Charge was framed at Exh.6. The same was read over and explained to the appellants/accused. They pleaded not guilty and claimed to be tried. The prosecution has examined in all 24 witnesses. At the conclusion of trial, the appellants came to be convicted as stated above. 3. Heard Shri Anil Mardikar, Senior Counsel with Shri Sumit Joshi, Shri K.J. Topale and Shri S.D. Chande, the learned Counsel appearing on behalf of the appellants and Shri N.R. Patil, the learned Additional Public Prosecutor appearing on behalf of the respondent/State. 4. Shri Mardikar, the learned Senior Counsel has submitted that there is no evidence to show that the appellants beat the deceased. The deceased ran away from the custody of the appellants and dashed to the running train. Probable defence is proved. Learned trial Court wrongly convicted the appellants. At last, submitted that all the appeals be allowed and the appellants be acquitted for the offences they are charged with. 5. Shri Patil, the learned Additional Public Prosecutor has submitted that the learned trial Court found that the deceased was in the custody of the appellants. They beat the deceased and, therefore, he died. 6. Wife of deceased lodged a report at Police Station, Dattapur. PW1 Latabai has stated in her evidence that on the day of incident, at about 11:30 a.m., her husband returned to the house for taking meal. Accused Nos.1 to 3 entered in the house. They took search of their house. They did not find anything, they pulled her husband out of the house. They forcibly took him with them on the road. While taking away her husband, he was assaulted by all the three accused with kicks and blows and lathi. He was taken Yavatmal road. They beat her husband while going. They took search of their house. They did not find anything, they pulled her husband out of the house. They forcibly took him with them on the road. While taking away her husband, he was assaulted by all the three accused with kicks and blows and lathi. He was taken Yavatmal road. They beat her husband while going. She followed her husband up to the square and then returned back as her children and father-in-law were ill at the house. After two hours, she came to know that her husband was no more. She came to know that he was killed and kept in the hospital. She then went to the hospital at Dhamangaon and found that her husband was severely beaten. She lodged a report at Exh.36. 7. In the cross-examination, material omissions are brought on record. She has stated in her cross-examination as under : "I have stated before police that at about 11.30 to 11.45 a.m. when my husband was about to take the meal, accused no.1 to 3 entered my house and have checked my house. I have also stated before police that accused 1 to 3 then dragged my husband out of the house and while assaulting him took with them. I have informed to police that my husband was assaulted with kicks, blows and sticks and was taken to Yeotmal road and I followed them upto square. I cannot tell the reason why all these facts are not appearing in the report Exh.36. I have not stated before police that I returned to the police due to illness of my father-in-law. I have stated before police that I came to know about my husband after 2 hours of the same and then I went to the hospital. I have also stated before police that I have seen number of injuries on the person of my husband. I have also stated before police that I came to know that my husband was assaulted in waiting room of Dhamangaon Rly Station. I used to cover the face with the border of saree when third person came in the house." 8. In her further cross-examination, she has admitted that she had no occasion to meet to the police before this incident. She can recognize the police by uniform. The persons who entered her house were in civil dress. I used to cover the face with the border of saree when third person came in the house." 8. In her further cross-examination, she has admitted that she had no occasion to meet to the police before this incident. She can recognize the police by uniform. The persons who entered her house were in civil dress. She has not disclosed before the police that the persons entered her house were accused Nos.1 to 3. She was not called for identification parade. Material omissions show that what she has stated against the accused, has not stated in her statement. Her admission shows that she never saw the accused before the incident. The persons who entered her house were in civil dress. She was not called for identification parade. The question arose as to how she identified the accused persons. Looking to her evidence in the cross-examination, her evidence is not helpful to the prosecution. 9. Pw2 Shakuntalabai Katyarmal has stated that two-three persons brought the dead body and kept in the hospital. The material witnesses named by PW1 in her report (Exh.36) namely Ramesh Bodile, Raju Roy, Rajendra Tiwari, Mahesh Yadav etc. not supported the prosecution. They were declared hostile. Prakash Neware, who, as per the case of prosecution, saw the accused persons beating the deceased, not supported to the prosecution case. All the material witnesses who were witnessing the incident not supported the prosecution. The evidence of railway persons/ employees shows that the deceased was in the custody of accused. The deceased gave jerk and ran away and while running, he dashed to the running train and sustained injuries. 10. Medical Officer Dr. Pawar conducted postmortem and he found injuries on the person of deceased. As per his opinion, the deceased died due to shock. In the cross-examination, he has admitted that none of the injuries was sufficient to cause death. There was no internal damage to the vital organs of deceased. 11. There is no dispute that the deceased died homicidal death but prosecution has miserably failed to prove that the accused/appellants beat the deceased. Not a single witness supported to the prosecution. One of the witnesses PW9 Sunil Patankar has stated in his evidence that the confessional statement of deceased was recorded in his presence. Deceased was in the custody of accused, but his cross-examination shows that he did not disclose till three months to the police. Not a single witness supported to the prosecution. One of the witnesses PW9 Sunil Patankar has stated in his evidence that the confessional statement of deceased was recorded in his presence. Deceased was in the custody of accused, but his cross-examination shows that he did not disclose till three months to the police. His statement was recorded after two-three months. 12. Learned trial Court rightly recorded its finding that Test Identification Parade conducted by PW7 not reliable. The evidence of PW7 shows that he conducted TI parade without calling any independent panch witness. He has not followed the rules in respect of TI parade. PW5 Pravin Tondare has stated that he had taken deceased in his auto rickshaw from railway platform to the hospital. Deceased was dead. Three policemen and Prakash Neware were with the patient in an auto rickshaw. After examining Birju, Medical Officer declared him dead. In the TI parade, he identified accused No.1. The TI parade rightly discarded by the trial Court. Therefore, his evidence is not helpful to the prosecution. 13. None of the material witnesses has stated about beating by the accused persons. PW1 though stated in her examination-in-chief that accused persons beat the deceased, in her cross-examination those are brought as material omissions. The prosecution has miserably failed to prove the guilt of accused persons. There is no evidence to show that the appellants/accused beat the deceased and, therefore, the deceased died. 14. Defence that the deceased gave jerk to the appellants when he was in custody and ran away and dashed to running train and sustained injuries appears to be probable. This particular entry is recorded in station diary at Exh.61. The station diary entry shows that the deceased gave jerk and ran away from the custody of police persons. He dashed to the running train nd sustained injuries. The prosecution failed to prove the guilt of accused beyond reasonable doubt and, therefore, benefit of doubt must go to the accused/appellants. With these findings, we proceed to pass the following order. "The Criminal Appeals are allowed. The impugned judgment and order of conviction and sentence dated 04.02.2005 passed by learned Additional Sessions Judge, Amravati in Sessions Case No. 230 of 2003 is quashed and set aside. The appellants/accused are acquitted of the offences charged with. The appellants/accused are on bail. Their bail bonds shall stand discharged. "The Criminal Appeals are allowed. The impugned judgment and order of conviction and sentence dated 04.02.2005 passed by learned Additional Sessions Judge, Amravati in Sessions Case No. 230 of 2003 is quashed and set aside. The appellants/accused are acquitted of the offences charged with. The appellants/accused are on bail. Their bail bonds shall stand discharged. Fine, in paid, be refunded to the appellants."