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2015 Supreme(Bom) 1927
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, A.S. GADKARI, JJ.
Faim @ Lala Ibrahim Khan & Ors. - Appellants
Versus
The State of Maharashtra - Respondent
Criminal Appeal Nos. 1009, 1203 & 1231 of 2012
Decided on : 20-11-2015
Advocate Appeared:
Mr. Rajendra Shirodkar i/by Mr. Archit Sakhalkar, Advocate for the
Appellant in Criminal Appeal No.1009 of 2012.
Dr. Yug Mohit Chaudhary, Advocate for the Appellant in Criminal Appeal NO.1203 of 2012.
Mr. Yogesh Rawat with Mr. S.S. Redekar, Advocate for the Appellant in Criminal Appeal No.1231 of 2012.
Ms. R.M. Gadhavi, APP. for the State.
The judgment emphasizes the importance of reliable witness identification, the need for concrete evidence of conspiracy, and the mandatory compliance with Section 65-B of the Evidence Act for admissibility of electronic records.
Headnote:
Identification - Criminal Law - Indian Penal Code - Section 302, Section 120B - The judgment and order dated 10.7.2012 convicted the appellants for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with a fine of Rs.10,000/- and under Section 120B of the Indian Penal Code and sentenced to suffer life imprisonment with a fine of Rs.10,000/- each.
Fact of the Case:
The complainant and his friend witnessed an assault on a victim, leading to the victim's death. The prosecution relied on ocular evidence and witness testimonies to establish the guilt of the accused.
Finding of the Court:
The court found the identification of the accused to be doubtful due to delayed test identification parade and discrepancies in the evidence. The prosecution failed to prove the conspiracy and motive behind the crime. The evidence of call details was deemed inadmissible due to non-compliance with Section 65-B of the Evidence Act.
Issues: The issues revolved around the reliability of witness identification, proof of conspiracy, and admissibility of electronic records.
Ratio Decidendi: The court's decision was influenced by the doubt cast on witness identification, lack of evidence for conspiracy, and inadmissibility of electronic records due to non-compliance with Section 65-B of the Evidence Act.
Final Decision: The accused were acquitted from all charges due to the benefit of doubt. The appeals were allowed, fines refunded, and the appellants released from jail.
A.S. Gadkari, J.
The appellants have questioned the correctness of the judgment and order dated 10.7.2012 passed by the Additional Sessions Judge, Vasai, District Thane in Sessions Case No.329 of 2007. By the said judgment and order dated 10.7.2012 the appellant- original accused No.2-Haresh Patil has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with a fine of Rs.10,000/- and in default of payment of fine further rigorous imprisonment of one year. The appellant-original accused No.1 Kamlesh @ Babla @ Bablya Shankar Malpedi, accused No.2 Haresh Patil and accused No.3-Faim @ Lala Ibrahim Khan have been convicted for the offence punishable under Section 120B of the Indian Penal Code and sentenced to suffer life imprisonment with a fine of Rs.10,000/- each and in default of payment of fine to further suffer rigorous imprisonment for one year each. The Trial Court has thus convicted the original accused No.1 Kamlesh @ Babla @ Bablya Malpedi and accused No.3 Faim Lala Ibrahim Khan for the offence punishable under Section-120B of the Indian Penal Code. By the same impugned judgment and order the Trial Court was pleased to acquit the original accused No.4- Durgeshkumar @ Durga Ramshankar Pande from all the charges levelled against him. For the sake of brevity the appellants named herein above will be referred to with their original accused numbers as they were before the Trial Court.
2. The facts which are enumerated from the record and necessary to decide the present appeal can briefly be stated as under:-
(i) The date and time of incident was 2.4.2007. Between 9.00 to 9.30p.m. the complainant Arun Chandran (P.W.3) along with his friend Amit Mishra (P.W.4) were proceeding towards Vasai (East) on their scooter. On the bridge, they saw one person was assaulting by stick to the victim. Complainant Arun Chandran (P.W.3) and his friend Amit (P.W.4) stopped their vehicle and rushed towards the person (victim) who was being assaulted. As soon as Arun and Amit rushed towards the person who was assaulting the victim by stick, he ran away.
(ii) Arun (P.W.3) and Amit (P.W.4) thereafter took the injured from an auto rickshaw to the hospital. From the diary which was found from the injured person they came to know the name of the injured as Faim Ibrahim Khan. Arun (P.W.3) intimated the family members of Faim Khan. Arun also lodged FIR (Exh.71) with Manikpur Police Station. On the basis of the said First Information Report bearing CR NO.I-125/2007 came to be registered. The investigation was initially carried out by PSI Naikwade of Manikpur Police Station. Mr. Naikwade drew the spot panchanama, Inquest panchanama and the seizure panchanama. He also recorded the statements of some of the witnesses. The said investigation was subsequently transferred to PSI Nitin Thakare (PW-22) of LCB, Thane (Rural). He arrested the accused persons. He also discovered the sticks at the instance of accused No.1 Kamlesh under Section 27 of the Evidence Act. PSI Nitin Thakare collected the call detail record pertaining to the mobile phones of the appellants. He also gathered the post mortem notes and Chemical Analysis report during the course of investigation. After completion of the investigation PSI Nitin Thakare submitted the charge sheet in the court of J.M.F.C. Vasai at Vasai under Section 302 and 120B of the Indian Penal Code.
(iii) As the offence under Section-302 of the I.P.C. was exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the said case to the Court of Additional Sessions Judge Vasai, At Vasai. After committal of the case, the learned Trial Court framed the charge below Exh.18.The said charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case and to prove the guilt against the accused persons examined in all 22 witnesses. The learned Trial Court af
