Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 284

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, N.R. BORKAR, JJ.
Subhan Usman Shaikh and Others – Appellants
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 1286 of 2019, Interim Application Nos. 1507, 1508 of 2021
Decided On : 11-03-2022

Advocates:
Advocate Appeared:
For the Appellants : Ms. Payoshi Roy, Dr. Yug Mohit Chaudhry.
For the Respondent: Mr. S.S. Hulke.

Point of Law: An axe with a sharp edge causes incised wounds and cut wounds, and cannot cause contused lacerated wounds, and, according to PW-12 the CLWs are caused by a hard and blunt object.

Headnote:
Indian Penal Code, 1860 - Sections 302, 147, 148, 149 r/w 34 - Criminal procedure Code - Sections 161 and 313 – Offence of Murder and Rioting - Criminal Trial – Appeal against conviction - Benefit of doubt - Whether injuries on person of deceased are possible by axe shown to him, however, Medical Officer did not reply his query - A quarrel took place between Appellant - Accused No.1 and said deceased in front of or near Masjid - Alleged that Appellant - Accused No.1 came from behind of deceased and gave axe blow on the head of said deceased and he fell down - Even thereafter appellant - Accused No.1 gave axe blow on the neck and on head of deceased. At that time other accused persons were also present there with deadly weapons in their hands and they were insisting Appellant - Accused No.1 to kill deceased - At same time they were creating terror amongst people gathered there saying them not to intervene, otherwise they would also be treated like deceased - In said incident initially deceased sustained grievous injuries
Finding of the court:
It is crystal clear that there were inimical terms between these witnesses and accused persons. In statements of Accused recorded under Section 313 of the Criminal Procedure Code, accused have also stated that they have been falsely implicated in crime. Considering deposition of aforesaid witnesses regarding inimical terms between them and accused persons, possibility of falsely implicating Appellant in crime cannot be ruled out - Admittedly there was delay of 55 days and 25 days in recording statement of PW-5 and PW-11 respectively, and for that inordinate delay, prosecution has not given any plausible explanation - Trial Court on basis of evidence and material on record convicted Appellant-Accused No.1 under section 302 of IPC and acquitted all accused of offence punishable under Section 149 of IPC. In said context it is required to be noted that there are multiple injuries not only on head but also on other parts of body of deceased - Some of prosecution witnesses have attributed role to Accused No.1 that he has assaulted on head and neck of deceased - Therefore court find considerable force in submission of learned counsel appearing for Appellant - Accused No.1 that, if the charge framed against original Accused No.1, and other Accused Nos. 2 to 6 is for offence punishable under Sections 147, 148, Section 302 r/w Section 149 and in alternative under Section 302 r/w 34 of IPC, and if trial Court acquitted Accused Nos. 2 to 6, then charge against Appellant - Accused No.1 shall fail - Impugned judgment and order passed by trial Court cannot legally sustain, and therefore, inevitable conclusion is that the appellants/accused No.1 is entitled for benefit of doubt.
Result: Criminal Appeal allowed

Judgement Key Points

Key Points: - The judgment overturns a murder conviction (Accused No.1 acquitted) and sets aside the trial court’s findings (!) (!) (!) . - Medical evidence (PW-12) states the fatal injury was a stab wound not possible by an axe; CLWs could be caused by blunt force, challenging ocular testimony that the axe caused the injuries (!) (!) (!) (!) (!) . - Eyewitness PW-3’s testimony is found unreliable due to after-thought allegations and inordinate delays in recording statements (PW-3 delay not as critical as PW-5, PW-11 delays) and contradictions with medical evidence; PW-5 is also deemed unreliable due to belated statement and discrepancies with autopsy findings (!) (!) (!) (!) (!) (!) (!) . - Axe were recovered from a third person’s house; lack of sealing raises tampering concerns; CA reports inconclusive; exclusive possession by Accused No.1 not proven (!) (!) (!) (!) . - Enmity and motive among trustees and witnesses suggest possible false implicating; benefit of doubt in favor of Appellant No.1 (!) (!) (!) (!) (!) (!) (!) . - The Court holds that if medical evidence rules out ocular evidence completely, ocular evidence may be disbelieved; thus acquittal of co-accused follows and accused No.1 gets benefit of doubt (!) (!) (!) (!) (!) . - Final order: appeal allowed; acquittal of accused No.1; release if not required elsewhere; bail terms set; interim applications disposed of (!) (!) (!) (!) (!) (!) (!) .

How to determine whether medical evidence can disbelieve ocular evidence in a murder conviction?

How to assess the reliability of eyewitness testimony given inordinate delays in recording statements?

What is the consequence when the trial court convicts a single accused under 302 IPC but acquits co-accused under 147, 148, 149, or 34 IPC?

JUDGMENT :

S.S. SHINDE, J.

1. The Appellant-Accused No. 1 has preferred this appeal against the judgment and order dated 26.04.2018 passed by the learned Additional Sessions Judge, Kalyan, thereby convicting the Appellant-Original Accused No. 1 for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) in Sessions Case No. 161 of 2009 and sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- and in default to suffer further imprisonment for two years.

2. The prosecution story in nutshell can be summarized as under:

The Appellant herein, who is original Accused No. 1 and other Accused Nos. 2 to 6 have been charged by the trial court for the offence punishable under Sections 147, 148, Section 302 r/w Section 149 and in the alternative under Section 302 r/w 34 of the Indian Penal Code. There is one trust viz. Kadariya Chistiya Madrasa and a Masjid/Mosque of said Trust is at Anandwadi, Kalyan (East). Due to non-satisfactory work of earlier Trustees, the Board of Trustees of said Trust was changed and the new members were introduced as trustees in that Trust. One of the trustees was Iqbal Ayub Siddiqui. He and his colleagues were handling the state of affairs of the said trust in proper manner. The Appellant-accused No. 1 along with other original Accused Nos. 2 to 6 were the supporters of earlier trustees and some of them were the trustees in earlier board of the trustees. Due to this change in the trustees, the Appellant-accused No. 1 and other accused Nos. 2 to 6 had grudge in the mind against the new trustees and especially against Iqbal Ayub Siddiqui the Managing Trustee of the said Trust. On 01.03.2009 in between 6 p.m. and 7 p.m. a quarrel took place between Appellant-Accused No. 1 and the said Iqbal Siddiqui in front of or near the Masjid at Anandwadi. It is alleged that the Appellant-Accused No. 1 came from behind of Iqbal Siddiqui and gave axe blow on the head of the said Iqbal Siddiqui. Iqbal Siddiqui fell down. Even thereafter Appellant-Accused No. 1 gave axe blow on the neck and on the head of Iqbal Siddiqui. At that time other accused persons were also present there with deadly weapons in their hands and they were insisting Appellant-Accused No. 1 to kill Iqbal Siddiqui. At the same time they were creating terror amongst the people gathered there saying them not to intervene, otherwise they would also be treated like Iqbal. It is further alleged that in the said incident initially Iqbal Siddiqui sustained grievous injuries. He was taken to Rukhminibai Hospital and then he was shifted to Shridevi Hospital Kalyan. At about 9.00 p.m. Iqbal Siddiqui succumbed to the injuries.

3. It is further the case of the prosecution that, complainant Mukaddar Daulat Sayyad, who is the resident of the same locality, was fetching water from water tap in front of the Mosque/Masjid at the relevant time. At that time he heard loud noise as “Ya Allah” therefore, he turned to see what had happened. He saw Iqbal Siddiqui was lying near Masjid, in front of the house of Ismail Shaikh on road. There was injury on the head of Iqbal Siddiqui and blood was oozing. He went near to Iqbal Siddiqui. At that time, Accused No. 1 Subhan Shaikh again came to Iqbal Siddiqui with an axe in his hand and gave axe blows on the neck and on the head of Iqbal Siddiqui and thereafter Accused No. 1 ran away. Thereafter complainant Mukkadar Sayyed lodged a complaint against the accused persons in Kolsewadi police station on the same day at about 10.35 p.m.

4. On the basis of the complaint lodged by the complainant, crime was registered. Senior Police Inspector of Kolsewadi Police Station Mr. D.D. Gavare carried out the investigation in the said crime. He visited the spot of incident and prepared spot panchanama. He collected blood accumulated on the spot of offence as well as simple soil and blood mixed soil. He also prepared rough sketch of the spot of offence. On 02.03.2009 the accused persons were arrested. On the

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