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2019 Supreme(Bom) 1760
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
T.V. NALAWADE, S.M. GAVHANE, JJ.
Rizwan Farooq Shaikh & Others - Appellants
Versus
The State of Maharashtra & Others - Respondents
Criminal Appeal Nos. 223 of 2013, 616 of 2018 & 617 of 2018
Decided On : 12-12-2019
For the Appellants :V.D. Sapkal, h/f. N.R. Bhavar, S.T. Shelke, Advocates.
For the Respondents:V.S. Choudhari, APP, M.P. Shinde, N.V. Gaware, Advocates.
Headnote:
Evidence Act - Section 157 - Arms Act - sections 3, 5 r/w Section 25 – Indian Penal Code - Sections 302, 143, 147, 148, 149, 120-B, 504, 506 – Offence of murder - Imprisonment of life – Appeal against conviction - Deceased started applying tobacco powder to his teeth - After some time he asked to give a glass of water to rinse the mouth - In meantime another person, who was also known to both came there and there was some talk between - After that the deceased rose from the bench to rinse mouth - Within no time two motorcycles came from 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 - PW 1 knew accused No. 1 and accused No. 2 out of the five persons who had come there on two motorcycles - Noticed that the riders of the two motorcycles remained on their seats and they kept the engines of the motorcycles in running condition - Other three persons from the two motorcycles got down from the two vehicles and they came towards deceased - Then accused No. 1 held neck of and gave abuses and said that he was there to finish - Then he shot bullet by using pistol on the abdomen - Accused No. 2 was also there and he shot another bullet from his pistol on the head - When accused Nos. 1 and 2 were firing bullets third man who was having little bit less height and who was having medium built was showing his fire arm pistol to the shop owners of vicinity and he was asking them to leave the spot – Held, 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 - 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 there was use of double barrel gun - In this case 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 - It was submitted for accused persons that before registration of crime police had rushed to the spot and so F.I.R. given by PW 1 cannot be used for corroboration purpose under section 157 of the Evidence Act - On this point learned APP placed reliance on the observations made in the case - In this case Apex Court has laid down that it is not necessary that police should take step only after receipt of F.I.R. if cognizable offence is committed - If somehow police received information and proceeded to the spot report given by the first informant after this moment of police cannot be discarded by presuming that this was not the first information about the crime - In the present matter also, police had rushed to the spot first and thereafter crime came to be registered - There was use of fire arms and many persons were in the vicinity and immediately after the incident 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 firing. 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 present matter and F.I.R. can be used for corroboration purpose in the present matter - Appeals stand dismissed
JUDGMENT :
T.V. Nalawade, J.
1. The first appeal bearing Criminal Appeal No. 223/2019 is filed by accused Nos. 1 and 2 of Sessions Case No. 24/2010, which was pending in the Court of learned Ad-hoc Additional Sessions Judge, Shrirampur, District Ahmednagar. The Trial Court has convicted and sentenced these accused/appellants for the offences punishable under section 302 r/w. 120-B etc. of Indian Penal Code (hereinafter referred to as ‘I.P.C.’ for short) and also for the offences punishable under sections 3, 5 r/w. 25 of Arms Act. The sentence of imprisonment of life is given and fine amount of Rs.10,000/- is imposed on each of them. Criminal Appeal No. 616/2018 is filed 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 offences. Criminal Appeal No. 617/2018 is filed by the informant against accused Nos. 3 and 4 to challenge the acquittal given to them. Both the sides are heard.
2. In short, the facts leading to the institution of the appeals can be stated as follows:-
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 offence. Deceased Ayub Papabhai Shaikh was known to Manoj.
3. At about 11.30 p.m. of 8.1.2019 deceased Ayub came to the hand cart of Manoj and he sat on the bench kept by Manoj. The deceased started applying tobacco powder (Mishri) to his teeth. After some time he asked Manoj to give a glass of water to rinse the 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.
4. Manoj (PW 1) knew accused No. 1 Rizwan Shaikh and accused No. 2 Sayyad Usman out of the five persons who had come there on two motorcycles. Manoj noticed that the riders of the two motorcycles remained on their seats and they kept the engines of the motorcycles in running condition. The other three persons from the two motorcycles got down from the two vehicles and they came towards deceased Ayub. Then accused No. 1 Rizwan held neck of Ayub and gave abuses to Ayub and said that he was there to finish Ayub. Then he shot bullet by using pistol on the abdomen of Ayub. Accused No. 2 Sayyad was also there and he shot another bullet from his pistol on the head of Ayub. When accused Nos. 1 and 2 were firing bullets at Ayub, the third man, who was having little bit less height and who was having medium built was showing his fire arm, pistol to the shop owners of the vicinity and he was asking them to leave the spot. When Ayub collapsed due to the aforesaid firing, accused Nos. 1 and 2 and other three persons who were in their 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.
5. When the aforesaid five persons left the spot, Manoj shouted for help. Ayub Poptiya and Maulana Akbar Ali were in the vicinity and they rushed to the spot. They shifted Ayub to hospital on motorcycle. They first took Ayub to German Hospital and then to other private hospital. But in both the hospitals, doctors were not available and so, they took the
