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2019 DIGILAW 2599 (BOM)

State Of Maharashtra v. Babumiya Abbas Shikalgar

2019-11-26

N.B.SURYAWANSHI, S.S.SHINDE

body2019
JUDGMENT S. S. Shinde, J. - At the outset it is required to be noted that, by order dated 03rd June 2019 this Court (CORAM : INDRAJIT MAHANTY and A.M. BADAR, JJ.) has already abated this Criminal Appeal as against the Respondent No. 1 - Babumiya Abbas Shikalgar who died on 10th August, 2012. 2. This Appeal is directed against the Judgment and order dated 20th May 1995 passed by the learned IInd Additional Sessions Judge, Kolhapur in Sessions Case No. 137 of 1993 acquitting the Respondent (Orig. Accused) for the offence punishable under Sections 143, 147, 148, 302 read with Sections 149, 302, 307 read with Sections 149, 324 of the Indian Penal Code and Section 135 of the Bombay Police Act. 3. The prosecution case, in brief, is as under: That, P.W. Mohammad and his brother Shoukat are the step brothers of Accused No. 1 - Babumiya. There is dispute between them on account of the properties left by their father Abbas. The house properties are situated at Rajarampuri, Shahapuri, Laxmiputi and Bindu Chowk. The Accused and P.W. Mohammad and Complainant Shahanaj are residing in the house at Bindu Chowk bearing no. 1584/C Ward, Kolhapur. Their residences are separate. As the properties are not partitioned the accused are on hostile terms with the complainant, her husband Shoukat, P.W. Mohammad and their family members. 4. On 02.06.1993 it was a day of Bakri-Id. After offering prayer of the Id, Complainant''s husband Shoukat and his brother Mohammad wee cutting goat at their house. It was about 11 or 11.15 a.m. After cutting goat complainant''s husband Shoukat threw dirt of the goat into the gutter in front of their house. The complainant said him that, why he had thrown the dirt into the gutter and brought a bucket full of water and gave it to her husband for throwing it into the gutter to clean it. Shoukat threw the water in the gutter and thereby the dirt flew. By that the dirt flew and remained stagnant in front of the door of the accused. Thereby the accused No. 1 - Babumiya and his two sons i.e. Accused Nos. 2 and 3 namely Liyakat and Jafar came out of the house holding weapons in their hands. The Accused No. 4 - Hasmatbi also followed them. Then the accused No. 1 abused the complainant in filthy language. Thereby the accused No. 1 - Babumiya and his two sons i.e. Accused Nos. 2 and 3 namely Liyakat and Jafar came out of the house holding weapons in their hands. The Accused No. 4 - Hasmatbi also followed them. Then the accused No. 1 abused the complainant in filthy language. By saying so, the accused No. 1 rushed towards Shoukat with an axe. Shoukat''s brother Mohammad was standing near by. He came there. Then immediately the accused Jafar hit a Suri on the neck, chest and stomach of Shoukat. That time the accused No. 1 Babumiya embraced Shoukat. An axe in his hand had fell down. By that time the accused no. 2 Liyakat hit on the stomach, right forehead and right arm of Mohammad. The accused No. 4 Hasmatbi was encouraging her son to kill Shoukat and Mohammad. Many people had gathered there. One Jahangir Mestri and one person with beard rescued Shoukat and Mohammad. Shoukat fell down in a pool of blood. Mohammad was held by his family members. Then the complainant immediately went to Laxmipuri Police Station and narrated the incident. Thereby the police immediately went to the spot. Shoukat and Mohammad were admitted in the hospital. Shoukat''s wife Shahanaj filed a complaint narrating all the incident. It was registered vide Crime No. 68 of 1993 under Section 307 read with Section 34 of the Indian Penal Code. Shoukat died on the same day in the hospital. Thereafter, Section 302 of the Indian Penal Code came to be added. Investigating Officer Mr. Kadam immediately went to the spot. Spot panchanama was prepared. Weapons were recovered from the spot and other places. Accused were arrested. Clothes on the persons, were attached. Investigation officer directed his constable to get the dying declaration of injured Shoukat recorded. The dying declaration of Shoukat was recorded. As Shoukat died on the same day, post mortem was conducted. Clothes on his person were attached as well as the clothes on the person of injured Mohammad were attached. The properties were sent to the Chemical Analyzer for its report. Bloodsample of the accused, injured Mohammad and deceased Shoukat were sent to the Chemical Analyzer for its report. The Investigating Officer recorded the statements of the witnesses and after completing the investigation he has submitted the charge-sheet. The properties were sent to the Chemical Analyzer for its report. Bloodsample of the accused, injured Mohammad and deceased Shoukat were sent to the Chemical Analyzer for its report. The Investigating Officer recorded the statements of the witnesses and after completing the investigation he has submitted the charge-sheet. Thereafter the learned Additional Sessions Judge, Kolhapur, framed the charge against all the four accused for the offences punishable under Sections 143, 147, 148, 302 r/ w Section 149, 302, 307, 324 r/w Section 149 the Indian Penal Code and Section 135 of the Bombay Police Act. The charge was read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. According to them, Accused No.1 is the step brother of complainant''s husband Shoukat and prosecution witness Mohammad. There is a dispute in between Accused No.1, and said Shoukant and Mohammad on account of the properties left by their father Abbas. Civil and Criminal litigation are pending in between them, on account of the said properties. On the day of incident the complainant''s husband Shoukat and prosecution witness Mohammad picked up a quarrel with Accused No.1. Shoukat gave beating to Accused Nos. 1 to 4. They were armed with deadly weapons. The people intervened and pushed the accused in their house. They were detained in the house by putting the latches from the out side. As deceased Shoukat and prosecution witness Mohammad did not listen to the people, who had gathered there, they assaulted them. The accused have not committed any offence. 5. To bring home the guilt of the accused, during the trial the prosecution examined in all 11 witnesses in support of its case. The learned IInd Additional Sessions Judge, Kolhapur has recorded statements of accused under Section 313 of the Criminal procedure Code. The learned Additional Sessions Judge, after considering the material on record and the evidence adduced by the prosecution, came to a conclusion that there are contradictions in the testimonies of the eye witnesses, they also made improvements in their earlier statements and therefore conviction cannot be based on the testimonies of interested witnesses. The learned Additional Sessions Judge reached a conclusion that the prosecution has failed to prove the charges levelled against the accused. The learned Additional Sessions Judge reached a conclusion that the prosecution has failed to prove the charges levelled against the accused. As stated herein above, the learned Additional Sessions Judge, by the impugned judgment and order dated 20/05/1995 acquitted all the accused for the offences punishable under Sections 143, 147, 148, 302 r/w Section 149, 302, 307, 324 r/w Section 149 the Indian Penal Code and Section 135 of the Bombay Police Act. Hence this Appeal against acquittal by the AppellantState. 6. We have heard the learned APP for the Appellant - State and learned counsel Mr. Shekhar Ingawale for the Respondents - Accused. With their able assistance, perused the grounds taken in the Appeal Memo, the evidence led by the prosecution, the documents produced on record including the dying declaration of the deceased Shoukat, and the reasons recorded by the learned 2nd Additional Sessions Judge, Kolhapur in the impugned judgment. 7. It is submitted by the learned APP that the learned Additional Sessions Judge, did not consider the evidence led by the prosecution in proper perspective. She submits that the Trial Court has failed to appreciate the evidence of the complainant, who was an eye witness to the incident in question. She further submits that the Trial Court erred in holding that oral testimonies of complainant and other witnesses are full of improvements and omissions. It is submitted that the Trial Court has also erred in ignoring the evidence of eye witnesses on the ground that the evidence of eye witnesses is inconsistent. It is also submitted that the Trial Court did not properly appreciate the evidence of child witness Asma Shikalgar - the daughter of Mohammad. The learned APP therefore submits that the evidence of the eye witnesses cannot be discarded on some minor discrepancies. The learned APP further submits that the dying declaration of deceased Shoukat can form a sole basis of conviction without corroboration as it is voluntary dying declaration given by deceased which is recorded in accordance with established procedure and principles. In support of her contention, the learned APP sought to place reliance on the judgment of the Supreme Court in the case of Krishan v/s. State of Haryana, (2013) 3 SCC 280 and in the case of Manoj and others v/s. State of Haryana, (2013) 9 SCC 190 8. In support of her contention, the learned APP sought to place reliance on the judgment of the Supreme Court in the case of Krishan v/s. State of Haryana, (2013) 3 SCC 280 and in the case of Manoj and others v/s. State of Haryana, (2013) 9 SCC 190 8. The learned APP therefore submits that the impugned judgment and order passed by the learned IInd Additional Sessions Judge, Kolhapur dated 20/05/1995 in Sessions Case No. 137 of 1993 acquitting the Respondents-accused for the offences punishable under Sections 143, 147, 148, 302 r/w Section 149, 302, 307, 324 r/w Section 149 the Indian Penal Code and Section 135 of the Bombay Police Act. is illegal, improper and erroneous, and the same is liable to be quashed and set aside. She lastly submits that this Criminal Appeal may be allowed. 9. The learned counsel for the Respondents - Accused submits that the complainant has falsely implicated the accused in this crime as there is a dispute over the properties between them. He further submits that the prosecution has failed to bring home the guilt of the accused. It is also submitted that there are material contradictions and omissions in the testimonies of the prosecution witnesses. The learned counsel for the Respondents - Accused submits that the learned Additional Sessions Judge, after considering the evidence and material on record has rightly acquitted the accused. The impugned order passed by the learned Additional Sessions Judge is well reasoned order and needs no interference at the hands of this Court. He therefore submits that the Appeal filed by the State may be dismissed. 10. We have gone through the entire record and proceedings of the Trial Court. At this juncture, it is necessary to discuss the evidence led by the prosecution on record so as to see, whether the prosecution would be able to prove its case against the accused, or there are discrepancies, omissions or contradictions in the evidence of the prosecution witnesses. In support of its case, the prosecution has examined in all 11 witnesses. During the course of trial, the prosecution has also produced on record Panchanama of attachment of Suri (Exh.13), the inquest panchamama (Exh.14), the panchanama of attachment of clothes of deceased (Exh.15), the panchanama of attachment of clothes of injured (Exh.16), arrest panchanama (Exh.18), spot panchanama (Exh.19), FIR (Exh.21) and the dying declaration of decased Shoukat (Exh.26). 11. During the course of trial, the prosecution has also produced on record Panchanama of attachment of Suri (Exh.13), the inquest panchamama (Exh.14), the panchanama of attachment of clothes of deceased (Exh.15), the panchanama of attachment of clothes of injured (Exh.16), arrest panchanama (Exh.18), spot panchanama (Exh.19), FIR (Exh.21) and the dying declaration of decased Shoukat (Exh.26). 11. There are some admitted facts which are necessary to be mention for the purpose of adjudication of this Appeal. Accused No.1 Babumiya, and the deceased Shoukat and injured Mohammad are the step brothers. The name of their father is Abbas Kashim Shikalgar. Abbas died leaving behind four house properties. There is a dispute between Accused No.1 Babumiya and his step brothers Mohammad and deceased Shoukat on account of the said properties. Due to said dispute over the properties, there are civil and criminal litigations between them. Prior to three months of the incident in question, deceased Shoukat and Mohammad were acquitted from the criminal case lodged by Accused No.1. Therefore the relations between Accused No.1 and deceased Shoukat and Mohammad are not cordial and they are staunch enemies. 12. On the aforesaid background, the evidence of prosecution witness is required to be considered. The informant Shahanaj has deposed that the incident took place on the day of Bakri Id. On that day, her husband was cutting a goat in front of her house and, after cutting the goat her husband threw unwanted things from the body of the goat, i.e. dirt, in the gutter in front of her house. Then she brought a bucket full of water and her husband threw it into the gutter and the unwanted things flew towards the house of accused No.1. At that time, accused Nos,. 4 and 5 were standing on the steps of accused No.1, and accused No.1 came out of house. He was holding an axe. Then accused Nos.2 and 3 followed him holding scythe and knife respectively. The brother of complainant''s husband viz. Mohammad was also there. She deposed that accused No.1 Babumiya hit an axe on the head of her husband. 13. So far as the recitals of the FIR lodged by the complainant is concerned, she has not mentioned in the FIR that accused No.1 hit an axe on the head of her husband. This is an improvement made by the complainant in her oral evidence. 13. So far as the recitals of the FIR lodged by the complainant is concerned, she has not mentioned in the FIR that accused No.1 hit an axe on the head of her husband. This is an improvement made by the complainant in her oral evidence. If accused No.1 hit an axe on the head of her husband Shoukat, the obviously there would have been an injury on the head of Shoukat. The medical officer Mr. Ramchandra Kale (PW-4) who has conducted the post mortem of deceased Shoukat, nowhere says that there was any injury on the head of deceased Shoukat. On the contrary, he deposed that injury No.1 on the person of deceased Shoukat, which is an incised wound over the neck is possible by an axe. It is important to note at this stage that neither the complainant in her deposition nor any other eye witnesses in their evidence have stated that accused No.1 hit an axe on the neck of deceased Shoukat, rather it has come in their evidence that the accused No.1 hit an axe on the head of Shoukat. On this aspect the evidence of the prosecution is not cogent and consistent with the medical evidence. Moreover, the complainant deposed that she has stated the said fact that, accused No.1 hit an axe blow on the head of her husband i.e. Shoukat. However, it is not so mentioned in her statement and supplementary statement recorded by police. According to her, it is because of her frightened condition, she has not even stated so in her complaint. An explanation given by the complainant is not acceptable as her testimony shows that immediately after the incident she went to Laxmipuri Police Station to lodge her complaint. She narrated the incident to the police, then police went to the spot arrested accused, deployed police constable on the spot, then Investigating Officer returned to the police station and then her statement has been recorded. By that time she was in police station and during span of time she might have calmed down. Even in her supplementary statement which was recorded subsequently she would have narrated that the accused No.1 hit an axe blow on the head of her husband. 14. By that time she was in police station and during span of time she might have calmed down. Even in her supplementary statement which was recorded subsequently she would have narrated that the accused No.1 hit an axe blow on the head of her husband. 14. In the FIR lodged by complainant, she stated that while accused No.3 Jafar was hitting Suri on the neck, chest and stomach of her husband, the accused No.1 Babumiya embraced her husband, and therefore the axe in the hands of accused No.1 fell down. However, nowhere in her testimony, the complainant has stated that when accused No.3 Jafar was hitting Suri on the person of her husband, the accused No.1 Babumiya embraced her husband. 15. So far as testimony of Mohammad Ibrahim (PW-5), who is the injured and brother in law of the complainant, is concerned, his story about the axe is different. He deposed that Jahangir Mestri and Mushtak Pathan had come there to rescue them. Jahangir and Mushtak collected the axe fallen from the hands of accused No.1 and threw it on the roof. According to witness Mohammad, the accused No.1 hit an axe on the forehead i.e. above left eye of Shoukat. According to the complainant, the accused No.1 gave a blow of axe on the head of her husband, and according to Mohammad the accused No.1 gave a blow of axe on the forehead of Shoukat i.e. above left eye of Shoukat, whereas medical officer says that all injuries are possible by knife and scythe, and Injury No.5 on the person of Shoukat i.e. incised wound over neck was is possible by an axe, however, medical officer nowhere says that there was an injury on the head of deceased Shoukat. It is required to be noted that PW-5 Mohammad has been examined after Medical Officer was examined. The Medical Officer has deposed that Shoukat has incised wound vertically extending to forehead. So it is obvious in order to corroborate the medical evidence, PW-5 Mohammad stated that the accused No.1 hit an axe on the forehead of deceased Shoukat. Therefore the testimony of Mohammad is not consistent with the testimony of the complainant, who says that accused No.1 hit an axe on the head of her husband i.e. Shoukat. 16. The medical officer Mr. Therefore the testimony of Mohammad is not consistent with the testimony of the complainant, who says that accused No.1 hit an axe on the head of her husband i.e. Shoukat. 16. The medical officer Mr. Kale (PW-4) deposed that only injury No.5 on the person of Shoukat incised wound over the neck, which was muscle deep, was possible by an axe. According to the medical officer except injury No.5, all the injuries were possible by knife and scythe. However, PW-5 Mohammad does not depose that the accused No.1 gave a blow on the forehead of deceased Shoukat with knife or scythe. Therefore evidence of PW-5 Mohammad is not consistent with the medical evidence, and he is improving his testimony. 17. The axe has been attached under the panchanama from the roof of the house of Ashrafbanu Athanikar. It is the prosecution case that by this axe, one blow was given on the person of Shoukat. It means the axe contains blood of deceased Shoukat. As per CA report (Exhibit 54) the blood group cannot be determined as the results are inconclusive; whereas the blood group of accused No.1 is "O". 18. It is the case of the defence that, on the auspicious day of Eid, on being asked by the accused to the Shoukat and Mohammad that as to why he had thrown the dirt in front of their house, Shoukat and Mohammad got enraged and rushed towards the accused holding an axe and scythe in their hands. The people gathered there sent the accused person inside their house and then the latches were put on from the outside. The people also asked the deceased Shoukat and Mohammad to go inside their house. They in fact went inside their house but latches were not put on to their house from outside. On this aspect the evidence of Bashir Chabukswar (PW-7), who claims to be an eye witness, is required to be scrutinized. In his cross examination, Bashir deposed that on account of dirt thrown in the gutter, the exchange of words took place in between Shoukat, and accused Nos.1 and 2. Both parties rushing on the person of each other by giving abuses. On hearing the commotion, the people gathered there and they asked Shoukat that as it was a day of Eid. Why he is picking up quarrel? Both parties rushing on the person of each other by giving abuses. On hearing the commotion, the people gathered there and they asked Shoukat that as it was a day of Eid. Why he is picking up quarrel? This Witness Bashir told Shoukat that he should not quarrel and he should be in his house. The evidence of Bashir shows that on that day deceased Shoukat and Mohammad rushed on the person of the accused, and the accused had also rushed towards Shoukat and Mohammad. It appears that Shoukat and Mohammad were holding deadly weapons in their hands, because in his statement before the Magistrate under Section 164 of Cr.PC this witness Bashir (PW-7) has stated that Liyakat and Mohammad were holding weapons. It is also important to note at this stage that the blood found on the axe was of "O" group, however, the prosecution has failed to bring on record as to whether blood group of deceased Shoukat was of "O". In fact the blood of group of Accused No.1 Babumiya is "O". 19. In so far as the case of accused No.2 Liyakat is concerned, the informant in the FIR stated that accused No.2 Liyakat hit a scythe on the stomach, right forearm and right arm of her husband''s brother Mohammad. In her deposition, the informant (PW-1) deposed that accused Liyakat hit scythe on the chest of her husband. So far as assault on Mohammad is concerned, she deposed that Jahangir and Mustak snatched the scythe from the hands of accused Liyakat, then Liyakat took out another knife from his pocket and he hit it on Mohammad. Liyakat gave knife blows on the hands, stomach and right leg of Mohammad and then Mohammad fell unconscious. However, in the FIR the informant does not say that Liyakat hit the suri (knife) on the person of Mohammad, but says that Liyakat hit on the person of Mohammad with scythe on his stomach, right forehead and right arm. There is a confusion and contradictions in the evidence of the prosecution witnesses about the weapons with which the Shoukat and Mohammad were assaulted by the accused. Some prosecution witnesses deposed that Liyakat took out another suri from his pocket, whereas some prosecution witnesses deposed that suri was affixed on his waist and he took out that suri from there and hit on Mohammad. Some prosecution witnesses deposed that Liyakat took out another suri from his pocket, whereas some prosecution witnesses deposed that suri was affixed on his waist and he took out that suri from there and hit on Mohammad. Perusal of oral evidence led by the prosecution shows that the testimony of PW-1 Shahanaj, PW-5 Mohammad, PW-6 Jahangir Mestri, PW-7 Bashir and PW-8 Asma Shikalgar is full of substantial improvements, omissions and contradictions. 20. Jahangir Mestri (PW-6) is an eye witness to the alleged incident. He deposed that at the time of incident, it is the accused Nos. 1 to 3 who assaulted Shoukat and Mohammad in his presence and have caused serious injuries to them with deadly weapons like axe, schythe and suri. Perusal of testimony of this witness shows that he was working on the poultry farm of deceased Shoukat and prosecution witness Mohammad as labour and on the day of incident he had come to Shoukat and Mohammad to give them good wishes on the occasion of Bakari Eid. It is also evident from his evidence that after the incident when Mohammad admitted in hospital at Miraj, during that period of one month this witness was frequently visiting Mohammad. It shows that this witness PW-6 is an interested witness. 21. Considering the evidence of child witness Asma, as rightly held by the trial Court, she is a tutored witness and therefore it is not safe to rely on her testimony. 22. Bashir Chabukswar (PW-7) is another eye witness in this case. In his cross examination PW-7 admitted that, in the police statement, he has stated that on the day of incident, he had sent accused No.1 and his men into his house and closed the door and put on the latches from outside. He also admitted that after the door of house of accused is closed and its latches are put from outside, the accused and his family members cannot come out by any other door. He also admitted that he did not put on the latch of the door of the house of Shoukat from outside. He also admitted that the people who had gathered there disliked the quarrel and, were also saying that, they should not quarrel. Despite this quarrel took place between the accused and deceased Shoukat and his brother Mohammad. He also admitted that he did not put on the latch of the door of the house of Shoukat from outside. He also admitted that the people who had gathered there disliked the quarrel and, were also saying that, they should not quarrel. Despite this quarrel took place between the accused and deceased Shoukat and his brother Mohammad. PW-7 Bashir requested deceased Shoukat not to pick up quarrel with the accused, which shows that it is the deceased Shoukat who picked up quarrel with the accused on the day of Eid. 23. Now coming the dying declaration of Shoukat recorded by the executive magistrate, Karveer Taluka. In his dying declaration deceased Shoukat stated that Jafurulla came there and hit the knife blow on his (shoukat''s) neck and chest, Babumiya caught hold of him, and Liyakat moved round knife in front of his throat. Jafarun hit on his body, chest, neck, face and left armpit. It can be seen from the evidence of the eye witnesses including informant and child witness Asma that they have stated that Jafaulloa was having a suri in his hand. Therefore there is inconsistency in the version of eye witness and the dying declaration of Shoukat. One more aspect which is important for adjudication of this Appeal is that, in his dying declaration, which was recorded by the executive magistrate, the deceased Shoukat nowhere stated that the accused No.1 hit an axe on his head. He only says that Babumiya caught hold of him. 24. The Trial Court has recorded a finding that there must have been sudden provocation to the accused Nos.1 to 3 on the ground of throwing the dirt in front of the house of accused, and quarrel took place in between them in which it appears that deceased Shoukat and prosecution witness Mohammad rushed towards the accused with the weapons in their hands, and therefore, on seeing that the accused had reasonable apprehension in their mind that they would be certainly assaulted by complainant and prosecution witnesses, in which they may sustain grievous hurt if not death. The Trial Court further recorded a finding that if the accused have exercised their right of private defence and in which they have caused the death of deceased Shoukat and injuries to prosecution witness Mohammad, it does not amount to murder or an attempt to commit murder. 25. The Trial Court further recorded a finding that if the accused have exercised their right of private defence and in which they have caused the death of deceased Shoukat and injuries to prosecution witness Mohammad, it does not amount to murder or an attempt to commit murder. 25. What emerges from the aforesaid discussion is that the evidence of the First Informant and other prosecution witnesses is suffering from material omissions, discrepancies and contradictions. The evidence of the First Informant is not consistent with the contents of the first information report on material aspects. The evidence of other prosecution witnesses is not reliable, as there are material inconsistencies and contradictions in their evidence. Even the evidence of the Medical Officer does not lend support to the evidence of alleged eye witnesses whose evidence is full of contradictions and improvements. It is an admitted fact that the alleged eye witnesses examined by the prosecution are closely related. 26. On appreciation of evidence on record, the prosecution has failed to prove beyond reasonable doubt that the accused had committed the alleged offences. From the aforesaid evidence it is apparent that there is nothing on record to show that the accused has intentionally committed the offence as rightly observed by the trial Court there was a grave and sudden provocation to the accused on the ground of throwing dirt in the the gutter in front of their house by deceased Shoukat. Therefore there is no sufficient material/evidence on record to show that, accused person can be held guilty of offences alleged against them. In that view of the matter, we have no hesitation in concluding that prosecution has not proved the case against the accused beyond reasonable doubt. 27. Considering the evidence led by the prosecution and the material produced on record, we are of the opinion that the view taken by the learned Magistrate is a plausible view . The judgment and order passed by the learned Magistrate is proper and legal. There is no perversity in the impugned judgment and order. At this juncture it is important to note that, even though another view is possible, that cannot be a ground to interfere with the impugned judgment and order of acquittal. 28. There is no merit in the Criminal Appeal. The Criminal Appeal is accordingly dismissed.