Full Judgment Text
2015:BHC-AS:26237-DB
Nalawade A.S . 1/18 Cri. Appeal No.1009/12 & ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1009 of 2012
Faim @ Lala Ibrahim Khan,
Age 47 years, Occ. Business,
residing at B/303, Dattatraya Towers,
Phase I,Evershine City,Vasai,
District Thane.
(At present in Kolhapur Central Prison).
..Appellant.
Versus
The State of Maharashtra. ..Respondent.
WITH
CRIMINAL APPEAL NO.1203 OF 2012
Kamlesh @ Babla @ Bablya Shankar Malpedi,
Age 27 years, R/o. House No.1204, Sadarwadi,
Near Shrihari Soceity, Hanuman Mandir Road,
Gokhivare, Tal.Vasai, District Thane.
At- Kolhapur Central Prison No.C-5523,
Circle No.312, Dist. Kolhapur, Kalamba,
Maharashtra 416007. ..Appellant.
Versus
The State of Maharashtra. ..Respondent.
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WITH
CRIMINAL APPEAL NO.1231 OF 2012
Shri. Haresh @ Harsh Prabhakar Patil,
Age 19 years, Occ.
Residing at House No.283 (C),
Shivdut Niwas, Fatherwadi,
Gokhivare,Tal.Vasai,Dist.Thane.
Presently at Prisoner No.C-3524,
Kolhapur Central Jail,
Taluka and District Kolhapur. ..Appellant.
Versus
The State of Maharashtra. ..Respondent.
…......
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.
….......
CORAM : SMT V.K. TAHILRAMANI, Acting C.J.&
A.S. GADKARI, J.
th
Reserved on : 19 October 2015.
th
Pronounced on : 20 November 2015.
JUDGMENT : (Per 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
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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
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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
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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
after recording the evidence and after hearing the parties to the
said case was pleased to convict the appellants as stated herein
above.
3 The present case is based on ocular evidence of Arun
Chandran (P.W.3), Amit Mishra (P.W.4) and Siddesh Kadam (P.W.21),
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P.W.3 Arun Chandran in his testimony has deposed that on 2.4.2007 he
along with his friend Amit Mishra (P.W.4) were going towards Vasai
(East) by a scooter. On the bridge they saw one person assaulting by
stick to the victim. He therefore, stopped his vehicle and went to see
what was happened. In the mean while, the person who was assaulting
the other person (deceased) threw the stick there and ran away. P.W.3
Arun thereafter took the injured person by auto rickshaw to the
hospital. He also found a diary near the injured person. The name of
the injured person was Faim Khan. The said injured was admitted to
Kanekar hospital. P.W.3-Arun Chandran gave intimation about the
incident to the family members of Faim Khan. He handed over the said
diary to the police. In the night he received a phone call from the
police that the said injured expired. Thereafter, the police obtained his
complaint which is at Exh.71. He had seen the person who had
assaulted the deceased. He was called for identification parade
wherein he identified the said person. He was Haresh Patil (Accused
No.2).
In the cross examination this witness had admitted that
Amit (P.W.4) was driving scooter. From the other side of the road he
saw the accused assaulting. That, when he carried the injured (Munna)
to the hospital, he was unable to talk. He further admitted that when
he reached on the bridge it was about 9.00 to 9.30 p.m. He had seen
the assailant assaulting the victim from the distance of about 10 to 15
ft. and the scooter on which he was pillion rider was at a speed of
about 30 K.M. per hour. That, they reached near the injured within 30
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to 40 seconds after stopping of the vehicle and by that time the
assailant ran away.
4 P.W.4- Amit Mishra has also deposed in the same line as
has been deposed by P.W.3 Arun. In the cross examination P.W.4 Amit
has admitted that victim was also having scooter. On the date of
incident P.W.4 was riding the scooter at the speed of 30 K.M. per hour.
That, he stopped his scooter 50ft. ahead from the place where victim
was lying. That, within 15 to 20 seconds they reached towards the
injured.
5 P.W.21 Siddesh Kadam has deposed that on 2.4.2007
at about 7.30p.m.he along with his friends decided to go to Vasai
(West) and they started proceeding on their motorcycle. They
stopped on the flyover connecting Vasai East and West. At that
time, he saw one person assaulting the said 'uncle' with
something in his hand. As a result of which the said person on
the scooter fell down on the road. Thereafter said two persons
left the place and ran away. P.W.21 thereafter left the said spot.
In the cross examination this witness has admitted
that he reached to the flyover at about 9.00p.m. That his
statement was recorded by police after about 5 days from the
date of incident. He did not remember whether there was light on
the flyover or not. He saw the said incident from the distance of
about 200ft.
6 P.W.12 Avinash Koshti was serving as Resident Naib
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Tahsildar, at Vasai. P.W.12 has conducted the Indemnification
parade. In his deposition he has stated that witness Arun
Chandran (P.W.1) has identified the accused No.3 Harish. P.W.12
has also stated that another witness has also identified Haresh.
P.W.12 is silent about the fact whether P.W.21 Siddesh Kadam
has identified the accused No.2 Harish or not. At this stage we
must note here that the evidence of P.W.12 Avinash Koshti is as
vague as possible and is of no help to the persecution. The
minute scrutiny of his deposition leads us to conclude that he
was very casual while deposing in the court. Even the test
identification parade panchanama (Exh.98) suffers from various
material irregularities and/or infractions of the guidelines framed
under the Criminal Manual and therefore in our opinion in view of
the facts of present case, the said contemporaneous document
(Exh.98) is also unsafe to rely upon.
7 The learned counsel appearing for the appellant No.2
submitted that the date of incident is 2.4.2007. That, the
appellant No.2 Haresh was arrested on 22.5.2007 and the
identification parade was conducted by the police on
4.8.2007.There is substantial delay caused at the instance of the
investigating agency in conducting the said identification parade.
He therefore, submitted that reasonable doubt arises about the
bonafide of the test identification parade. In support of his
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contention, he placed reliance on the decision of the Supreme
Court reported in (1988) 1 SCC 14 [Hari Nath and another vs.
State of U.P.] The Supreme Court has held that if there is no
explanation at all for the delay by the prosecuting agency, the
benefit of this wholly unexplained lack of promptitude in holding
the test identification, reasonable doubt arises. At this stage, we
may also observe that after taking into consideration the
evidence of P.W. 3 and 4 in observing accused No.2 in such a
short span of 30 seconds precisely and then identifying him after
a lapse of more than about four months appears to be very
doubtful. As far as P.W.21 is concerned, though he claims himself
to be an eye witness he has not identified accused No.12 Harish
as the assailant. It further appears that P.W.21, Siddesh is a
chance witness and claims that he had seen the incident from a
distance of about 200ft. In view of the fact that sufficient delay
in conducting the test identification parade by the investigating
agency, the principle laid down by the Supreme Court in the case
of Hari Nath and Another (supra) is applicable to the present case
and we hold that identification by P.W.3 and 4 of accused No.2
Haresh is doubtful and the benefit of doubt goes in favour of
accused No.2 Haresh Patil.
8 It is further to be noted here that P.W.3 in his
testimony has categorically deposed that the person who was
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assaulting the victim had thrown the stick on the spot and ran
away. However, surprisingly the police have discovered two
wooden logs by effecting a panchanama dated 28.5.2011
(Exh.145) from accused No.1 Kamlesh. The said discovery
panchanama has been proved by P.W.22-Nitin Thakare, the
Investigating Officer. The scene of offence panchanama which is
at Exh. 58 discloses one wooden log was found at the spot of
incident itself. The prosecution case rests on the theory that only
Accused-2 i.e. Haresh assaulted the deceased with a wooden log
and in that view discovery of 2 more wooden logs from accused
no.1 Kamlesh creates doubt in the mind of this Court. After taking
into consideration the direct contradictions about the wooden
log used in the crime and its place of discovery, it creates strong
doubt in our mind about the genuineness of the discovery
panchanama itself. Discovery at the instance of accused No.1
Kamlesh therefore, assumes no value and is not at all useful to
the prosecution as the weapon of assault was found on the spot
of incident itself, there was no recovery at the instance of
accused No.2, Haresh, to whom role of actual assault is
attributed. The record pertaining to the present case is absolutely
silent about the fact that there were any finger prints found on
the said weapon, of the appellant Haresh.
9 The prosecution has examined P.W.18 Ashok D.
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Bhande, P.W.19 Kundan K. Jadhav to prove the motive behind the
crime. They deposed that deceased Naim Khan was the brother
of accused No.3 Faim @ Lala Ibrahim Khan. Accused No.3 Faim
@ Lala Ibraghim Khan was doing the business of transport
alongwith deceased Munna @ Naim Khan. A dispute ensued
between the brothers on account of money. By the mediation of
P.W.18 and 19 the said dispute was resolved. The deceased
Munna @ Faim Khan started his own business and was doing
well in the same. That, enraged accused No.3 Faim @ Lala
Ibrahim Khan and therefore, he decided to kill his brother- Munna
@ Naim Khan.
10 The prosecution has thereafter examined P.W.9 Manoj
Sagare to further prove the motive and also the conspiracy
th
hatched by the accused persons. P.W.9 has deposited that on 12
of year 2007 (month not mentioned). Lala had called him with
vehicle and accused no.1, accused no.2 and accused no.3 had
been to the High Court. On the next day he along with accused
persons were returning from S.P Office in the vehicle of accused
No.3 Faim @ Lala Ibrahim Khan when Lala (accused no.3) said
that Munna (deceased) was having excess fat (Charabi) and he
(deceased) was to be managed. This is the only sentence which
was uttered by accused Faim @ Lala Ibrahim Khan on the basis of
which the prosecution has put forth the theory of conspiracy
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hatched by the accused persons. A close scrutiny of the evidence
of P.W.9 reveals that the said statement made by accused No.3
Faim Khan is neither inculpatory nor is the statement which
would lead us to infer that it amounts to conspiracy. It appears
that Faim @ Lala Khan (accused no.3) was jealously talking about
his brother who was flourishing in his own business and nothing
more.
11) The prosecution has also relied upon recovery of three
mobile phones at the instance of accused No.3 Faim @ Lala
Ibrahim Khan. The prosecution has come up with a case that all
the three coble phones were discovered at the instance of
accused No.3. Out of the said three mobile phones, two mobile
phones bearing Nos.9322444929 and 9322444930 were in the
name of accused No.1 Kamlesh Malpedi and Mobile
No.9321662525 was in the name of accused No.3 Faim Khan. The
learned counsel appearing for accused No.3 Faim Khan criticized
the finding recorded by the learned Trial Court in Paragraphs 55
and 56 of the impugned judgment wherein, the Trial Court has
held that call detail record shows that there were en number of
calls exchanged between these two mobile phones belonging to
accused No.1 Kamlesh Malpedi. He further held that it is
impossible that anybody having two mobile phones with it,
would call himself from one mobile to another. That, the case of
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the prosecution that mobile phone No.9322444429 was used by
accused No.2 appearing to be more probable. In the absence of
any evidence to the effect that the said mobile phone bearing
No.9322444929 was with accused No.2 Haresh, at the time of
incident, the observations made by the Trial Court in Paragraphs
55 and 56 of the impugned judgment and the finding recorded
thereto, in our considered opinion is based only on conjectures.
Mr. Shirodkar, learned counsel appearing for original accused
No.1 Faim @ Lala Ibrahim Khan further submitted that assuming
for the sake of arguments that there were exchange of phone
calls on 1.4.2007 and 2.4.2007 inter see in the said two mobile
numbers, the same itself would not attract the charge of
conspiracy. In support of his contention he relied upon a decision
of the Supreme Curt in the case of State (NCT of Delhi) vs.
Navjot Sandhu @ Afsan Guru reported in (2005) 11 SCC 600
wherein Supreme Court has held that there were exchanges
between two persons on cellular phone but form that
circumstance alone no inference can be drawn of reasonable
degree of certainty that said persons have entered into
conspiracy. According to us, in the present case the prosecution
has failed to prove that exchange of telephone calls between the
said three phone numbers was for the purpose of firstly hatching
and thereafter executing the conspiracy entered into by and
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between the accused Nos. 1 and 3. It is to be noted here that
accused No.3 Faim Khan is the employer of accused No.1
Kamlesh and accused No.2 Haresh and therefore, there was other
probability that they might have exchanged telephone calls for
the purpose of their business. The prosecution has not brought
on record any other material to show that the said three mobile
numbers were being used for the purpose firstly hatching
conspiracy and thereafter executing it which was resulted into
the death of deceased Faim Khan. In view of the same we give
benefit of doubt to original accused No.1 Kamlesh and accused
No.3 Faim Khan for the same.
12 Mr. Shirodkar further submitted that in the present
case apart from the fact that prosecution has failed to prove the
conspiracy, has also failed to produce a certificate as
contemplated under Section 65-B(4) of the Evidence Act which is
mandatory in view of the amendment to the said Act which has
come into effect from 17.2.2000. In support of his contention he
relied upon a decision of the Supreme Court in the case of
Anvar P.V. vs.P.K.Basheer and others reported in (2014) 10 SCC
473 and in particular, Paragraph Nos. 15 and 22 which reads as
under:-
“15. Under Section 65-B(4) of the Evidence Act,
if it is desired to give a statement in any
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proceedings pertaining to an electronic record,
it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies
the electronics record containing the
statement;
(b) The certificate must describe the manner in
which the electronic record was produced;
(c) The certificate must furnish the particulars
of the device involved in the production of that
record;
(d) The certificate must deal with the
applicable conditions mentioned under Section
65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in
relation to the operation f the relevant device.
22. The evidence relating to electronic
record, as noted herein before, being a special
provision, the general law on secondary
evidence under Section 63 read with Section 65
of the Evidence Act shall yield to the same.
Generalia specialibus non derogant, special law
will always prevail over the general law. It
appears, the court omitted to take note of
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Sections 59 and 65A dealing with the
admissibility of electronic record. Sections 63
and 65 have no application in the case of
secondary evidence by way of electronic
record; the same is wholly governed by
Sections 65-A and 65-B. To that extent, the
statement of law on admissibility of secondary
evidence pertaining to electronic record, as
stated by his Court in Navjot Sandhu case, does
not lay down the correct legal position. It
requires to be overruled and we do so. An
Electronic record by way of secondary evidence
shall not be admitted in evidence unless the
requirements under Section 65-B are satisfied.
Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in
terms of Section 65-B obtained at the time of
taking the document, without which, the
secondary evidence pertaining to that
electronic record, is inadmissible.”
In the present case the date of incident is
2.4.2007.The amendment of Section 65 of the Evidence Act came
into effect from 17.2.2000 and therefore, it was mandatory for
the prosecuting agency to produce the certificate in terms of
Section 65-B obtained at the time of collecting document (CDR)
without which the secondary evidence pertaining to electronic
record is inadmissible. Thus, in view of the mandate of Section
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65-B of the Evidence Act and in the absence of its compliance the
evidence of CDR produced by the prosecuting agency in respect
of the three aforesaid mobile phones is fully inadmissible in
evidence.
13 Thus, after taking into consideration the entire
evidence available on record, we are of the considered opinion
that the identification by P.W.3-Arun Chandran and P.W.4-Amit
Mishra of accused No.2 Haresh is very doubtful. The test
identification parade which was held belatedly also creates doubt
about the said fact that whether after the lapse of about four
months P.W.3 and P.W.4 the eye witnesses were really able to
identify accused No.2-Haresh. As stated above, the P.W. Nos.3
and 4 had at the most only 30 seconds to observe the accused
No.2 at the time of incident from a running scooter and they have
identified the accused no.2 in test identification parade after a
gap of about 4 months without any special characteristics of
accused no.2 and therefore, it creates doubt about their claim of
identifying the accused No.2-Haresh Patil. As stated earlier the
record of call details of the aforesaid three mobile numbers
produced by the prosecuting agency is inadmissible in view of
the mandate of Section 65-B of the Evidence Act and therefore,
according to us the accused persons are entitled for benefit of
doubt.
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14 Thus, the benefit of doubt is given to the accused
persons and they are acquitted from the charges framed against
them. Hence, the following order.
ORDER
a) The appeals preferred by the respective appellant are
allowed. They are acquitted from all the charges
framed against them.
b) Fine, if any, paid by the appellants be refunded to
them.
c) The appellants be released from Jail forthwith if they
are not required in any other case.
d) The Appellant-Accused No.3 is on bail and his bail
bond stands cancelled.
(A.S. GADKARI, J.) (ACTING CHIEF JUSTICE)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1009 of 2012
Faim @ Lala Ibrahim Khan,
Age 47 years, Occ. Business,
residing at B/303, Dattatraya Towers,
Phase I,Evershine City,Vasai,
District Thane.
(At present in Kolhapur Central Prison).
..Appellant.
Versus
The State of Maharashtra. ..Respondent.
WITH
CRIMINAL APPEAL NO.1203 OF 2012
Kamlesh @ Babla @ Bablya Shankar Malpedi,
Age 27 years, R/o. House No.1204, Sadarwadi,
Near Shrihari Soceity, Hanuman Mandir Road,
Gokhivare, Tal.Vasai, District Thane.
At- Kolhapur Central Prison No.C-5523,
Circle No.312, Dist. Kolhapur, Kalamba,
Maharashtra 416007. ..Appellant.
Versus
The State of Maharashtra. ..Respondent.
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WITH
CRIMINAL APPEAL NO.1231 OF 2012
Shri. Haresh @ Harsh Prabhakar Patil,
Age 19 years, Occ.
Residing at House No.283 (C),
Shivdut Niwas, Fatherwadi,
Gokhivare,Tal.Vasai,Dist.Thane.
Presently at Prisoner No.C-3524,
Kolhapur Central Jail,
Taluka and District Kolhapur. ..Appellant.
Versus
The State of Maharashtra. ..Respondent.
…......
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.
….......
CORAM : SMT V.K. TAHILRAMANI, Acting C.J.&
A.S. GADKARI, J.
th
Reserved on : 19 October 2015.
th
Pronounced on : 20 November 2015.
JUDGMENT : (Per 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
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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
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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
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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
after recording the evidence and after hearing the parties to the
said case was pleased to convict the appellants as stated herein
above.
3 The present case is based on ocular evidence of Arun
Chandran (P.W.3), Amit Mishra (P.W.4) and Siddesh Kadam (P.W.21),
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P.W.3 Arun Chandran in his testimony has deposed that on 2.4.2007 he
along with his friend Amit Mishra (P.W.4) were going towards Vasai
(East) by a scooter. On the bridge they saw one person assaulting by
stick to the victim. He therefore, stopped his vehicle and went to see
what was happened. In the mean while, the person who was assaulting
the other person (deceased) threw the stick there and ran away. P.W.3
Arun thereafter took the injured person by auto rickshaw to the
hospital. He also found a diary near the injured person. The name of
the injured person was Faim Khan. The said injured was admitted to
Kanekar hospital. P.W.3-Arun Chandran gave intimation about the
incident to the family members of Faim Khan. He handed over the said
diary to the police. In the night he received a phone call from the
police that the said injured expired. Thereafter, the police obtained his
complaint which is at Exh.71. He had seen the person who had
assaulted the deceased. He was called for identification parade
wherein he identified the said person. He was Haresh Patil (Accused
No.2).
In the cross examination this witness had admitted that
Amit (P.W.4) was driving scooter. From the other side of the road he
saw the accused assaulting. That, when he carried the injured (Munna)
to the hospital, he was unable to talk. He further admitted that when
he reached on the bridge it was about 9.00 to 9.30 p.m. He had seen
the assailant assaulting the victim from the distance of about 10 to 15
ft. and the scooter on which he was pillion rider was at a speed of
about 30 K.M. per hour. That, they reached near the injured within 30
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to 40 seconds after stopping of the vehicle and by that time the
assailant ran away.
4 P.W.4- Amit Mishra has also deposed in the same line as
has been deposed by P.W.3 Arun. In the cross examination P.W.4 Amit
has admitted that victim was also having scooter. On the date of
incident P.W.4 was riding the scooter at the speed of 30 K.M. per hour.
That, he stopped his scooter 50ft. ahead from the place where victim
was lying. That, within 15 to 20 seconds they reached towards the
injured.
5 P.W.21 Siddesh Kadam has deposed that on 2.4.2007
at about 7.30p.m.he along with his friends decided to go to Vasai
(West) and they started proceeding on their motorcycle. They
stopped on the flyover connecting Vasai East and West. At that
time, he saw one person assaulting the said 'uncle' with
something in his hand. As a result of which the said person on
the scooter fell down on the road. Thereafter said two persons
left the place and ran away. P.W.21 thereafter left the said spot.
In the cross examination this witness has admitted
that he reached to the flyover at about 9.00p.m. That his
statement was recorded by police after about 5 days from the
date of incident. He did not remember whether there was light on
the flyover or not. He saw the said incident from the distance of
about 200ft.
6 P.W.12 Avinash Koshti was serving as Resident Naib
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Tahsildar, at Vasai. P.W.12 has conducted the Indemnification
parade. In his deposition he has stated that witness Arun
Chandran (P.W.1) has identified the accused No.3 Harish. P.W.12
has also stated that another witness has also identified Haresh.
P.W.12 is silent about the fact whether P.W.21 Siddesh Kadam
has identified the accused No.2 Harish or not. At this stage we
must note here that the evidence of P.W.12 Avinash Koshti is as
vague as possible and is of no help to the persecution. The
minute scrutiny of his deposition leads us to conclude that he
was very casual while deposing in the court. Even the test
identification parade panchanama (Exh.98) suffers from various
material irregularities and/or infractions of the guidelines framed
under the Criminal Manual and therefore in our opinion in view of
the facts of present case, the said contemporaneous document
(Exh.98) is also unsafe to rely upon.
7 The learned counsel appearing for the appellant No.2
submitted that the date of incident is 2.4.2007. That, the
appellant No.2 Haresh was arrested on 22.5.2007 and the
identification parade was conducted by the police on
4.8.2007.There is substantial delay caused at the instance of the
investigating agency in conducting the said identification parade.
He therefore, submitted that reasonable doubt arises about the
bonafide of the test identification parade. In support of his
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contention, he placed reliance on the decision of the Supreme
Court reported in (1988) 1 SCC 14 [Hari Nath and another vs.
State of U.P.] The Supreme Court has held that if there is no
explanation at all for the delay by the prosecuting agency, the
benefit of this wholly unexplained lack of promptitude in holding
the test identification, reasonable doubt arises. At this stage, we
may also observe that after taking into consideration the
evidence of P.W. 3 and 4 in observing accused No.2 in such a
short span of 30 seconds precisely and then identifying him after
a lapse of more than about four months appears to be very
doubtful. As far as P.W.21 is concerned, though he claims himself
to be an eye witness he has not identified accused No.12 Harish
as the assailant. It further appears that P.W.21, Siddesh is a
chance witness and claims that he had seen the incident from a
distance of about 200ft. In view of the fact that sufficient delay
in conducting the test identification parade by the investigating
agency, the principle laid down by the Supreme Court in the case
of Hari Nath and Another (supra) is applicable to the present case
and we hold that identification by P.W.3 and 4 of accused No.2
Haresh is doubtful and the benefit of doubt goes in favour of
accused No.2 Haresh Patil.
8 It is further to be noted here that P.W.3 in his
testimony has categorically deposed that the person who was
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assaulting the victim had thrown the stick on the spot and ran
away. However, surprisingly the police have discovered two
wooden logs by effecting a panchanama dated 28.5.2011
(Exh.145) from accused No.1 Kamlesh. The said discovery
panchanama has been proved by P.W.22-Nitin Thakare, the
Investigating Officer. The scene of offence panchanama which is
at Exh. 58 discloses one wooden log was found at the spot of
incident itself. The prosecution case rests on the theory that only
Accused-2 i.e. Haresh assaulted the deceased with a wooden log
and in that view discovery of 2 more wooden logs from accused
no.1 Kamlesh creates doubt in the mind of this Court. After taking
into consideration the direct contradictions about the wooden
log used in the crime and its place of discovery, it creates strong
doubt in our mind about the genuineness of the discovery
panchanama itself. Discovery at the instance of accused No.1
Kamlesh therefore, assumes no value and is not at all useful to
the prosecution as the weapon of assault was found on the spot
of incident itself, there was no recovery at the instance of
accused No.2, Haresh, to whom role of actual assault is
attributed. The record pertaining to the present case is absolutely
silent about the fact that there were any finger prints found on
the said weapon, of the appellant Haresh.
9 The prosecution has examined P.W.18 Ashok D.
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Bhande, P.W.19 Kundan K. Jadhav to prove the motive behind the
crime. They deposed that deceased Naim Khan was the brother
of accused No.3 Faim @ Lala Ibrahim Khan. Accused No.3 Faim
@ Lala Ibraghim Khan was doing the business of transport
alongwith deceased Munna @ Naim Khan. A dispute ensued
between the brothers on account of money. By the mediation of
P.W.18 and 19 the said dispute was resolved. The deceased
Munna @ Faim Khan started his own business and was doing
well in the same. That, enraged accused No.3 Faim @ Lala
Ibrahim Khan and therefore, he decided to kill his brother- Munna
@ Naim Khan.
10 The prosecution has thereafter examined P.W.9 Manoj
Sagare to further prove the motive and also the conspiracy
th
hatched by the accused persons. P.W.9 has deposited that on 12
of year 2007 (month not mentioned). Lala had called him with
vehicle and accused no.1, accused no.2 and accused no.3 had
been to the High Court. On the next day he along with accused
persons were returning from S.P Office in the vehicle of accused
No.3 Faim @ Lala Ibrahim Khan when Lala (accused no.3) said
that Munna (deceased) was having excess fat (Charabi) and he
(deceased) was to be managed. This is the only sentence which
was uttered by accused Faim @ Lala Ibrahim Khan on the basis of
which the prosecution has put forth the theory of conspiracy
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hatched by the accused persons. A close scrutiny of the evidence
of P.W.9 reveals that the said statement made by accused No.3
Faim Khan is neither inculpatory nor is the statement which
would lead us to infer that it amounts to conspiracy. It appears
that Faim @ Lala Khan (accused no.3) was jealously talking about
his brother who was flourishing in his own business and nothing
more.
11) The prosecution has also relied upon recovery of three
mobile phones at the instance of accused No.3 Faim @ Lala
Ibrahim Khan. The prosecution has come up with a case that all
the three coble phones were discovered at the instance of
accused No.3. Out of the said three mobile phones, two mobile
phones bearing Nos.9322444929 and 9322444930 were in the
name of accused No.1 Kamlesh Malpedi and Mobile
No.9321662525 was in the name of accused No.3 Faim Khan. The
learned counsel appearing for accused No.3 Faim Khan criticized
the finding recorded by the learned Trial Court in Paragraphs 55
and 56 of the impugned judgment wherein, the Trial Court has
held that call detail record shows that there were en number of
calls exchanged between these two mobile phones belonging to
accused No.1 Kamlesh Malpedi. He further held that it is
impossible that anybody having two mobile phones with it,
would call himself from one mobile to another. That, the case of
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the prosecution that mobile phone No.9322444429 was used by
accused No.2 appearing to be more probable. In the absence of
any evidence to the effect that the said mobile phone bearing
No.9322444929 was with accused No.2 Haresh, at the time of
incident, the observations made by the Trial Court in Paragraphs
55 and 56 of the impugned judgment and the finding recorded
thereto, in our considered opinion is based only on conjectures.
Mr. Shirodkar, learned counsel appearing for original accused
No.1 Faim @ Lala Ibrahim Khan further submitted that assuming
for the sake of arguments that there were exchange of phone
calls on 1.4.2007 and 2.4.2007 inter see in the said two mobile
numbers, the same itself would not attract the charge of
conspiracy. In support of his contention he relied upon a decision
of the Supreme Curt in the case of State (NCT of Delhi) vs.
Navjot Sandhu @ Afsan Guru reported in (2005) 11 SCC 600
wherein Supreme Court has held that there were exchanges
between two persons on cellular phone but form that
circumstance alone no inference can be drawn of reasonable
degree of certainty that said persons have entered into
conspiracy. According to us, in the present case the prosecution
has failed to prove that exchange of telephone calls between the
said three phone numbers was for the purpose of firstly hatching
and thereafter executing the conspiracy entered into by and
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between the accused Nos. 1 and 3. It is to be noted here that
accused No.3 Faim Khan is the employer of accused No.1
Kamlesh and accused No.2 Haresh and therefore, there was other
probability that they might have exchanged telephone calls for
the purpose of their business. The prosecution has not brought
on record any other material to show that the said three mobile
numbers were being used for the purpose firstly hatching
conspiracy and thereafter executing it which was resulted into
the death of deceased Faim Khan. In view of the same we give
benefit of doubt to original accused No.1 Kamlesh and accused
No.3 Faim Khan for the same.
12 Mr. Shirodkar further submitted that in the present
case apart from the fact that prosecution has failed to prove the
conspiracy, has also failed to produce a certificate as
contemplated under Section 65-B(4) of the Evidence Act which is
mandatory in view of the amendment to the said Act which has
come into effect from 17.2.2000. In support of his contention he
relied upon a decision of the Supreme Court in the case of
Anvar P.V. vs.P.K.Basheer and others reported in (2014) 10 SCC
473 and in particular, Paragraph Nos. 15 and 22 which reads as
under:-
“15. Under Section 65-B(4) of the Evidence Act,
if it is desired to give a statement in any
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proceedings pertaining to an electronic record,
it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies
the electronics record containing the
statement;
(b) The certificate must describe the manner in
which the electronic record was produced;
(c) The certificate must furnish the particulars
of the device involved in the production of that
record;
(d) The certificate must deal with the
applicable conditions mentioned under Section
65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in
relation to the operation f the relevant device.
22. The evidence relating to electronic
record, as noted herein before, being a special
provision, the general law on secondary
evidence under Section 63 read with Section 65
of the Evidence Act shall yield to the same.
Generalia specialibus non derogant, special law
will always prevail over the general law. It
appears, the court omitted to take note of
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Sections 59 and 65A dealing with the
admissibility of electronic record. Sections 63
and 65 have no application in the case of
secondary evidence by way of electronic
record; the same is wholly governed by
Sections 65-A and 65-B. To that extent, the
statement of law on admissibility of secondary
evidence pertaining to electronic record, as
stated by his Court in Navjot Sandhu case, does
not lay down the correct legal position. It
requires to be overruled and we do so. An
Electronic record by way of secondary evidence
shall not be admitted in evidence unless the
requirements under Section 65-B are satisfied.
Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in
terms of Section 65-B obtained at the time of
taking the document, without which, the
secondary evidence pertaining to that
electronic record, is inadmissible.”
In the present case the date of incident is
2.4.2007.The amendment of Section 65 of the Evidence Act came
into effect from 17.2.2000 and therefore, it was mandatory for
the prosecuting agency to produce the certificate in terms of
Section 65-B obtained at the time of collecting document (CDR)
without which the secondary evidence pertaining to electronic
record is inadmissible. Thus, in view of the mandate of Section
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65-B of the Evidence Act and in the absence of its compliance the
evidence of CDR produced by the prosecuting agency in respect
of the three aforesaid mobile phones is fully inadmissible in
evidence.
13 Thus, after taking into consideration the entire
evidence available on record, we are of the considered opinion
that the identification by P.W.3-Arun Chandran and P.W.4-Amit
Mishra of accused No.2 Haresh is very doubtful. The test
identification parade which was held belatedly also creates doubt
about the said fact that whether after the lapse of about four
months P.W.3 and P.W.4 the eye witnesses were really able to
identify accused No.2-Haresh. As stated above, the P.W. Nos.3
and 4 had at the most only 30 seconds to observe the accused
No.2 at the time of incident from a running scooter and they have
identified the accused no.2 in test identification parade after a
gap of about 4 months without any special characteristics of
accused no.2 and therefore, it creates doubt about their claim of
identifying the accused No.2-Haresh Patil. As stated earlier the
record of call details of the aforesaid three mobile numbers
produced by the prosecuting agency is inadmissible in view of
the mandate of Section 65-B of the Evidence Act and therefore,
according to us the accused persons are entitled for benefit of
doubt.
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14 Thus, the benefit of doubt is given to the accused
persons and they are acquitted from the charges framed against
them. Hence, the following order.
ORDER
a) The appeals preferred by the respective appellant are
allowed. They are acquitted from all the charges
framed against them.
b) Fine, if any, paid by the appellants be refunded to
them.
c) The appellants be released from Jail forthwith if they
are not required in any other case.
d) The Appellant-Accused No.3 is on bail and his bail
bond stands cancelled.
(A.S. GADKARI, J.) (ACTING CHIEF JUSTICE)
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