Bombay High CourtSyed Khaled Syed Riyasat And Anr vs The State Of Mah on 11 October, 2010Author:P.V. HardasBench:P.V. Hardas,A.V. Potdar- 1-




                                                                                 
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                         
                                    BENCH AT AURANGABAD




                                                        
                                CRIMIINAL APPEALS NOS.567/2008 & 636/2008



                                                    CRIMINAL APPEAL NO.567/2008




                                           
                             
                             1] Syed Khaled s/o Syed Riyasat,
                                age 30 yrs., occu.Contractor,
                                r/o Balepeer, Amrai, Beed.
                            
                                Tq. & Dist.Beed.

                             2] Miskinkhan s/o Karimkhan Pathan,
                                age 27 yrs., occu.Auto Rickshaw Driver,
         

                                r/o Balepeer, Amrai, Beed.
                                Tq. & Dist.Beed.
      



                                                            ...Appellants..
                                                       (Org.accused nos.1 & 2)

                                     Versus





                             The State of Maharashtra.
                                                              ...Respondent...

                                            .....





    Smt.Sadhana S. Jadhav, Advocate for appellants.

    Shri B.V. Wagh, APP for respondent.

    Shri G.K. Thigale, Advocate to assist APP.


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                                              CRIMINAL APPEAL NO.636/2008




                                                                                
                             Sk.Bilal s/o Sk.Abdul Rajjak,
                             age 24 yrs., occu.service,




                                                        
                             r/o Balepeer-Aamrai, Beed.
                             Tq. & Dist.Beed.
                                                       ...Appellant..
                                                     (Org.accused no.3)




                                                       
                                     Versus

                             The State of Maharashtra.




                                            
                                                    ...Respondent..
                              ig     .....
                            
    Smt.Sadhana S. Jadhav, Advocate for appellant.

    Shri B.V. Wagh, APP for respondent.
           

    Shri G.K. Thigale, Advocate to assist APP.
        



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                                     CORAM: P.V. HARDAS &
                                            A.V. POTDAR, JJ.

                                     RESERVED FOR JUDGMENT ON 06.10.2010

                                     JUDGMENT PRONOUNCED ON 11.10.2010





    JUDGMENT (Per P.V. Hardas, J.) :1]    The appellants - original accused nos.1 to 3, who stand convicted for

    offence punishable u/ss.120-B and 302 of the Indian Penal Code and sentenced to::: Downloaded on - 02/08/2016 17:33:24 :::- 3-

    imprisonment for life and each to pay fine of Rs.1,000/- with a default sentence of

    undergoing further simple imprisonment for one month with no separate sentence




                                                                                
    being awarded for offence punishableu/s 120-Bof the Indian Penal Code, by the




                                                       
    Additional Sessions Judge-II, Beed, by judgment dated 2.8.2008, in Sessions

    Case No.175/2007, by these appeals question the correctness of their conviction




                                                      
    and sentence.2]    Facts in brief as are necessary for the decision of these appeals may briefly




                                           
    be stated thus:PW 28 Tukaram Borade, Police Sub Inspector, was attached to Beed City
                            
    Police Station, on night patrolling duty on 23.5.2007. As a part of patrolling duty,

    he, along with other police personnel in a jeep, was patrolling the entire Beed city
           

    and visiting Police Stations Pimpalner, Station Peth and Beed (Rural).                  They
        



    commenced their duty at 12-05 hours and while the jeep, in which PW 28 PSI

    Borade was travelling, was passing by Nagar road towards Charatha road, they





    noticed a black colored motorcycle and a person lying on the road in front of the

    Collector office. They accordingly took a 'U' turn and went to that place. It was

    about 00-25 hours. A person, who was watchman at Champavati Krida Mandal,





    disclosed on inquiry that one white colored car had given dash to the rear side of

    the motorcycle and then the car had escaped. Thereafter, two persons came on

    the motorcycle, out of them one was the brother of the deceased, who disclosed

    his name as Naderkhan, who is examined as PW 9. One mobile phone was found

    near the dead body, which was handed over to Naderkhan. The dead body was of::: Downloaded on - 02/08/2016 17:33:24 :::- 4-

    one Nayyarkhan and on examination, it was found that Nayyarkhan had sustained

    injury on the right side neck and the intestines had protruded out. Since the injury




                                                                                
    to the neck was caused by a sharp weapon, PW 28 PSI Borade came to the




                                                       
    conclusion that it was a homicidal death. Naderkhan arranged for a small tempo

    for carrying the dead body to the hospital and accordingly the dead body was




                                                      
    shifted to Beed hospital. Police personnel were asked to keep guard at the spot.A crowd of about 8,000 to 10,000 people had gathered at the hospital and the

    crowd commenced pelting stones. Security was arranged for and law and order




                                           
    was restored. PW 28 PSI Borade in the mean time learnt that three accused had
                             
    surrendered in Beed City Police Station and this message was received at about
                            
    2-00 a.m. In Balepeer locality, there were instances of burning houses of the

    accused. He was, therefore, deputed for maintaining law and order at Balepeer.He returned to the scene of the offence at about 5-00 a.m. and had noticed a
      



    country-made pistol     and, therefore, lodged a complaint under theArms Actagainst the deceased.PW 29 PSI Sonawane, who was attached to Beed City Police Station,

    received a message at 2-00 a.m. on 23.5.2007 about the murder of Nayyarkhan.He was asked to go to Balepeer locality and he stayed at Balepeer locality till 3-30





    a.m.   There were instances of stone pelting and burning of the houses of the

    accused. He restored law and order and in the mean time had received message

    about similar instances going on in the campus of the Civil Hospital at Beed. He,

    therefore, rushed there. At about 4-30 a.m., PW 32 PI Avale asked him to record

    the complaint of PW 9 Naderkhan. He, therefore, took Naderkhan to Beed City::: Downloaded on - 02/08/2016 17:33:24 :::- 5-

    Police Station and recorded the complaint of Naderkhan at Exhibit 55. On the

    basis of the complaint of PW 9 Naderkhan, offence came to be registered. The




                                                                                 
    printed FIR is at Exhibit 56. PW 32 PI Avale, who was attached to Beed City




                                                         
    Police Station, was also on zonal patrolling duty.        At about 00-45 hours, he

    received a call on his wireless from PSI Borade about finding of the dead body in




                                                        
    front of the office of the Collector. Within five minutes, he reached the scene of the

    offence and noticed the dead body of Nayyarkhan lying in front of the gate of the

    collectorate. Besides the dead body, a motorcycle was also seen lying on the




                                            
    road. He also found the brother of the deceased present at the scene of the
                              
    offence and noticed incised wounds on the dead body of Nayyarkhan.Nayyarkhan was shifted to the Civil Hospital at Beed where the Medical Officer

    declared him dead. A crowd had gathered in the campus of the Civil Hospital as
         

    well as in Balepeer locality and the crowd was of about 5,000 to 6,000 people.Instances of stone pelting started on the police van in the campus of the Civil

    Hospital and accordingly he had arranged for the police staff to maintain law and





    order. He also received information that three accused had surrendered in Beed

    City Police Station and, therefore, he asked them not to initiate any action, but to

    detain the accused in the Police Station till his arrival as he was in-charge of the





    Police Station. He apprehended that the mob, which was present in the Civil

    Hospital, may rush to the Police Station on learning that the accused had

    surrendered and, therefore, he requested the staff in the hospital to be ready to

    face any eventuality. Exhibit 120 is the extract of the register maintained with the

    Muddemal Clerk regarding handing over of the rifles. He had directed that the::: Downloaded on - 02/08/2016 17:33:24 :::- 6-

    rifles be handed over to the Constables so that proper precaution could be taken.He further directed PW 29 PSI Sonawane to record the complaint of PW 9




                                                                                 
    Naderkhan.Post mortem on the dead body of deceased Nayyarkhan came to be

    performed by PW 21 Dr.Arun Ghuge. He noticed following external injuries :[1] Incised wound over lateral aspect of right side of neck of size 6 cm.
               vertically, 4 cm. in breadth and 6 cm. in deep. On opening of such
               wound, there is total cut of major vessels and cut open trachea on right




                                            
               lateral side which is sharp cut along with external carotid vessel cut into
               two pieces.[2] Incised wound over medial aspect of lower 1/3rd of left thigh above
               knee joint with bleeding edges of size 8 cm. in length x 3 cm. in deep.It was vertical one.[3] Incised wound over middle 1/3rd of left thigh anterior surface of size
               1.5 cm. in length x 0.5 cm. in width x 05 cm in deep.[4] Abrasion over lateral aspect of left thigh upper end 10 cm. below the
      



               left iliac crest of size 4 cm. laterally 4 cm. vertically with fresh color,
               with irregular margins probable due to hard and blunt object like stone.[5] Abrasion over pateliar aspect of lateral aspect of knee left 5 x 3 cm.fresh, red, with irregular margins probably due to hard and blunt object.[6] Abrasion on lateral aspect of left shoulder 9 cm. vertically x 6 cm.
               horizontally, with irregular margins with fresh red color, probably due to
               hard and blunt object.[7] Abrasion over left hand dorsum at the base of thumb and index
               finger 8 cm. x 6 cm. fresh and irregular, margins, probably due to hard
               and blunt object.[8] C.L.W. over lateral angle of left eye over maxillary prominence 2 x 2
               cm. x bone deep due to hard and blunt object.[9] Left eye ecchymosis both lids, eye ball intact.::: Downloaded on - 02/08/2016 17:33:24 :::- 7-

               [10] Abrasion over right hand over base of the right thumb dorsally 3 x
               2 cm. irregular margins, red fresh.[11] Incised wound over right hypogestrium oblique running from
               epigastrium towards right along the bordes of left rib of size 8 cm. in
               length, 3 cm. in depth and 6 cm. in deep and intestinal loops protruding




                                                         
               probably due to sharp and pointed object.[12] Incised wound below the wound no.11, which was oblique
               extending from 3 cm. lateral to umbilicus to right lateral border of




                                                        
               abdomen (lumber area) which was parallel to injury no.11 with sharp
               margins of 9 cm. in length, 6 cm. in width and intestinal loop protruding
               through this injury.On opening of the abdomen (injury no.12), multiple injury (4) in
               mesentry with large haematoma and blood in peritoneal cavity with




                                             
               cutting of mesentric vessels small intestine (jejunum) transversely cut
               into two pieces. There was cut injury over greater curvature of stomach
                             
               of size 5 cm. in length and 4 cm. in width with identifiable food particles
               approx. 250 m.l. present in stomach, injuries could be probably caused
               by sharp and pointed object.[13] Abrasion over left foot dorsally at the base of little toe of size 2 x 2
               cm. with fresh red with irregular margins, probably caused by hard and
               blunt object.[14] Abrasion over right medial mallets 1 cm. x 1 cm. fresh red color,
      



               fresh red with irregular margins, hard and blunt object.[15] Abrasion over base of right great toe dorsally 1 cm. x 1 cm. fresh
               red with irregular margins, caused by hard and blunt object.He further noticed haematoma in the left temporal area of size 6 cm. x 5 cm.with no evidence of fracture. According to him, all the injuries were ante mortem





    and injuries nos.1, 11 and 12 were sufficient to cause death in the ordinary course

    of nature. According to him, death must have been instantaneous. He, therefore,

    opined that cause of death was haemorrhagic shock due to multiple deep injuries.The post mortem report is at Exhibit 75. According to him, injuries nos.1 to 3, 11

    and 12 could be caused by Article no.18 - dagger, Article no.19 - knife and Article::: Downloaded on - 02/08/2016 17:33:24 :::- 8-

    no.17 - Kukri.In the mean time, PW 32 PI Avale reached Beed City Police Station at about




                                                      
    5-30 a.m. and arrested the three accused, who had surrendered and accordingly

    arrest panchanamas were drawn at Exhibit 121 in respect of accused Syed




                                                     
    Khaled, Exhibit 122 in respect of Miskinkhan and Exhibit 123 in respect of accused

    Bilal. Investigation of the said crime came to be entrusted to him. The inquest

    panchanama on the dead body of deceased Nayyarkhan was drawn by PW 27-A




                                           
    Police Head Constable Pathan at Exhibit 28.ig                        The scene of the offence -panchanama also came to be drawn in the presence of PW 1 Sk.Aref at Exhibit26. From the scene of the offence, chappals belonging to the victim, broken

    pieces of the tail lamp of the motorcycle and sample of the blood stains and three
         

    pieces of the broken number plate o the car came to be seized. A country-made
      



    revolver was also found about a foot from the dead body with one live cartridge in

    the revolver.    Mean while, instances of stone pelting on the buses of the





    M.S.R.T.C. continued between 8-30 to 11-00 a.m. in the areas of Balepeer and

    Ankush Nagar.     Offences came to be registered for pelting of stones and burning

    of the houses of the accused. The crime numbers are 168, 169, 170 and 171 and





    the extracts are at Exhibits 124 to 127. Mean while, he returned to Beed City

    Police Station at about 9-40 or 10 a.m. and seized the clothes, which were on the

    person of the accused, in the presence of panch witnesses under seizure memos

    at Exhibits 39, 40 and 41. The said clothes were found stained with blood. Nearly

    10,000 to 15,000 people attended the funeral of Nayyarkhan. On that day, he had::: Downloaded on - 02/08/2016 17:33:24 :::- 9-

    recorded statements of four witnesses. He had also recorded the statement of

    Kundlik Suskar, a watchman near the scene of the incident. However, he could




                                                                              
    not be examined as he expired during the pendency of the trial. The arrested




                                                      
    accused were produced before the Magistrate after the funeral was over. On

    24.5.2007, statements of 11 witnesses came to be recorded. During custodial




                                                     
    interrogation, accused Syed Khaled had expressed his willingness to point out the

    place where the car was parked.       Accordingly, a memorandum came to be

    recorded in the presence of witnesses at Exhibit 36. Accused Khaled took the




                                          
    police and the panch to Islampura locality and pointed out the car, which was
                            
    parked there. On inspection, it was noticed that the number plate towards the rear
                           
    side was intact and the registration number of the vehicle was MH-10-E-3222.The front bumper and the bonnet and the mud-guard of the car were found
         

    damaged and the front number plate was found half broken. The vehicle was
      



    inspected and the registration book was found in the vehicle and the name of the

    owner i.e. Sk.Rahim Sk.Khaja transpired during the inspection. The said vehicle





    i.e. car was seized and brought to the Police Station vide seizure memo at Exhibit132. The registration book of the Fiat car is at Exhibit 129. On the same day i.e.

    24.5.2007, the other accused viz. Miskinkhan also expressed his willingness to





    point out the place where the motorcycle was kept and accordingly memorandum

    at Exhibit 37 came to be recorded in the presence of panch witnesses. Accused

    Miskinkhan took the police and the panch to his house and pointed out the

    motorcycle, which was kept behind his house. The registration number of the said

    motorcycle was MH-20-AM-1735. The motorcycle came to be seized as per the::: Downloaded on - 02/08/2016 17:33:24 :::- 10 -seizure memo at Exhibit 37. The motorcycle belonging to the deceased was

    inspected and it was noticed that the paint of the car had adhered to the portion of




                                                                                
    the motorcycle, which was accordingly removed and the half broken number plate




                                                       
    of the car was also removed and seized. The panchanama is at Exhibit 37. Since

    the mobile phone belonging to the deceased Nayyarkhan had been handed over




                                                      
    to PW 9 Naderkhan, the said mobile came to be seized vide seizure memo at

    Exhibit 48. Accused Sadeq came to be arrested from Parali and was produced in

    the Police Station on 25.5.2007 at 3-30 a.m. His mobile phone of 'Samsung'




                                           
    make came to be seized vide seizure memo at Exhibit 45. His clothes came to be
                             
    seized vide seizure memo at Exhibit 42. Statement of the car owner Sk.Rahim
                            
    Sk.Khaja came to be recorded.On 26.5.2007, accused Syed Khaled expressed his willingness to point out
         

    where his mobile phone of 'Samsung' make was kept by him. Accordingly, his
      



    memorandum at Exhibit 32 came to be recorded in the presence of panchas. The

    accused led the police and the panch to an electric transformer and produced the





    mobile, which had been hidden. The said mobile came to be seized vide seizure

    memo at Exhibit 32. On the same day, accused Miskinkhan also expressed his

    willingness to point out where he had hidden his mobile phone and accordingly





    memorandum at Exhibit 33 came to be recorded in the presence of the panchas.Accused Miskinkhan led the police and the panch to the electric transformer and at

    a site, which was 50 ft. from the Police Station, produced the mobile phone, which

    came to be seized vide seizure memo at Exhibit 33.On 27.5.2007, accused Syed Khaled expressed his willingness in the::: Downloaded on - 02/08/2016 17:33:24 :::- 11 -presence of panchas to point out the place where the weapons had been thrown in

    the water of 'Bindusara' river. Accordingly, his memorandum at Exhibit 53 came to




                                                                                  
    be recorded. Memorandum of accused Miskinkhan to that effect also came to be




                                                          
    recorded at Exhibit 51. Accused Shaikh Bilal had also expressed his willingness in

    the presence of two panchas to point out where he had thrown Kukri.                          His




                                                         
    memorandum at Exhibit 52 came to be recorded. The three accused led the

    police and the panch and pointed out respective places where the weapons had

    been thrown by them. Officials from the Sanitary Department of Beed Municipal




                                               
    Council were called and were asked to find out if they could find weapons in the
                              
    water. A big knife came to be discovered and thereafter Kukri was found and then
                             
    Rampuri knife. The aforesaid weapons came to be seized and the said weapons

    are Article Nos.17, 18 and 19.On 1.6.2007, correspondence was made with the mobile companies in
      



    respect of the calls made and received from the mobiles of the accused. The call

    statement was received.          On 7.6.2007, the seized articles were sent to the





    Chemical Analyser through PW 27 Police Constable Chaure. The reports of the

    Chemical Analyser are at Exhibits 130 to 135. On 13.6.2007, accused Afsarkhan

    was arrested and during his search, a mobile of 'Samsung' company was found





    with a "Reliance" SIM card.       The said mobile came to be seized at Exhibit 46. On

    11.8.2007, the Tahsildar was requested to draw the sketch map of the scene of the

    incident and thereafter a charge-sheet against the accused came to be filed. The

    two accused viz. Faisal Chouse and Mirza Asif Baig were absconding at the time

    of filing of the charge-sheet.::: Downloaded on - 02/08/2016 17:33:24 :::- 12 -3]    On committal of the case to Court of Sessions, charge vide Exhibit 3 came




                                                                               
    to be framed against the accused for offence punishable u/s 120-B, 147, 148, 149,




                                                       
    302 r/w 149 of theIndian Penal Codeandu/s 25of the Arms Act. The accused

    pleaded their innocence and claimed to be tried.             The trial Court, upon




                                                      
    appreciation of the evidence, convicted original accused no.1 Syed Khaled,

    accused no.2 Miskinkhan and accused no.3 Shaikh Bilal for the offences, as

    stated above, and acquitted original accused nos.4 and 5.4]
                             
          In order to appreciate and effectively deal with the submissions advanced
                            
    before us by the learned counsel for the parties, it would be useful to refer to the

    evidence of the prosecution witnesses.5]    PW 9 Naderkhan, brother of deceased Nayyarkhan, states that he runs a

    hotel in the new Bhaji Mandi at Beed and resides in Balepeer locality. He states





    that deceased Nayyarkhan was his youngest brother. Nayyarkhan after obtaining

    the qualification of D.Ed., began the business of selling plots. Accused Sadeq was

    his partner.   At the time of his death, deceased Nayyarkhan was an elected





    member of Beed Municipal Council and had been elected about 8 to 9 months

    prior to his death. He states that he knows all the accused as they reside in his

    lane. He further states that accused Ayub and the absconding accused Asif had

    also contested the Municipal election from the same ward from which Nayyarkhan

    had contested. He alleges that accused Ayub and Miskinkhan had attempted to::: Downloaded on - 02/08/2016 17:33:24 :::- 13 -break the election voting machines at the polling booths and there was also some

    controversy between Nayyarkhan and accused Khaled because the ticket from




                                                                                
    Rashtrawadi party was refused to accused Khaled.            He states that after the




                                                        
    elections, the relations between the accused and Nayyarkhan were strained. In

    respect of the incident, he states that on 22.5.2007, he was in his hotel and at




                                                       
    about 12-30 in the night, while he was about to take his dinner, one Hamid Mistri

    informed him that his brother was lying in front of the Collector office in a pool of

    blood. He, therefore, went on his motorcycle along with Hamid to the scene of the




                                            
    incident and noticed the police present there. He states that he had seen injuries
                             
    caused by knife on the neck and stomach of his brother. He further states that the
                            
    dead body was shifted to the hospital where the Medical Officer pronounced him

    dead. He states that one Khaja came to the hospital at about 2-00 a.m. and
         

    informed him that the accused had assaulted his brother. He states that he learnt
      



    in the hospital that accused Bilal, Miskinkhan and Khaled had surrendered in Beed

    City Police Station. He states that he had gone and lodged his complaint at





    Exhibit 55. He states about handing over of the mobile belonging to Nayyarkhan.He states that the funeral of his brother had been performed on the next day of the

    incident. In cross examination, he has admitted that accused Mirza Asif Baig had





    also contested the election against deceased Nayyarkhan. He has admitted that

    one Mohd.Chouse, who was father of the absconding accused, was leader of their

    community and was a member for about 10 years before the election of deceased

    Nayyarkhan.    He has also admitted as correct that ticket from Rashtrawadi

    Congress party was claimed by accused Khaled as well as deceased Nayyarkhan.::: Downloaded on - 02/08/2016 17:33:24 :::- 14 -He has also admitted as true that Sadeq and Miskinkhan had worked for Afsar in

    the election. He has denied the suggestion that about 9 casesu/s 12-Aof the




                                                                                
    Bombay Prevention of Gambling Act had been registered by Beed City Police




                                                        
    Station against him.     He has also denied the suggestion that an offence

    punishableu/s 394of the IPC had been registered against him at Beed City Police




                                                       
    Station. He has pleaded ignorance about any offences registered against his

    deceased brother. Omission has been duly proved that he had not stated about

    deceased Nayyarkhan and accused Sadeq doing business of selling plots in




                                           
    partnership and that certain amount being outstanding against Sadeq. Omission
                             
    has been duly proved that he had not stated about accused Ayub attempting to
                            
    break the voting machines and about deceased Nayyarkhan having sustained

    injuries by knife on his neck and stomach. Omission has been duly proved that he
         

    had not stated that one Khaja had come to the hospital at 2-00 a.m. and had
      



    disclosed that the accused had assaulted deceased Nayyarkhan. Omission has

    been proved that he had not stated that he had learnt in the hospital about the





    surrender of accused Khaled, Bilal and Miskinkhan in the Police Station. He has

    also admitted in cross examination that prior to the incident, there were no written

    complaints by the accused against deceased Nayyarkhan and vice versa. He has





    admitted that the motorcycle, which was being driven by deceased Nayyarkhan

    was registered in his name. He has denied portions marked 'A' and 'B' from his

    report. He has admitted that while lifting his brother and placing him in the tempo,

    his clothes were stained with blood, but were not seized by the police.::: Downloaded on - 02/08/2016 17:33:24 :::- 15 -6]    From the evidence of this witness, it clearly emerges that on receipt of the

    information, he had gone to the scene of the offence and had noticed his brother




                                                                                 
    deceased Nayyarkhan with injuries and had shifted him to the hospital.Subsequently, he lodged his complaint at Exhibit 55. In the light of the fact that the

    prosecution has examined an eye witness, the omissions in respect of the




                                                        
    relations between the deceased and the accused being strained, according to us,

    pale into insignificance.   The report of the Chemical Analyser demonstrates that

    the pieces of broken number plate of the Fiat car found at the scene of the offence




                                            
    matched with the half broken front number plate, which was affixed to the car.Thus, what is established on record by the prosecution is that the Fiat car was
                               
    involved in giving dash to the motorcycle. Whether the accused are the persons,

    who are involved in the offence, would depend upon the appreciation of the
           

    evidence of the other prosecution witnesses.7]    Evidence of PW 10 Hamid Baig, who had informed PW 9 Naderkhan, is also





    relevant. He claims that he was knowing deceased Nayyarkhan and also knows

    the accused as they were residents of his locality. He states that on 22.5.2007, he

    had worked as a mason in a house in Islampur and had completed the work at





    about 12-00 midnight. After completing the work, he started for going to his

    residence at Balepeer and as he came in Bashirganj square, he noticed a Fiat car

    of white color coming with high speed from the side of Shivaji statue. He states

    that he noticed that the vehicle was being driven by accused no.1 Syed Khaled.The vehicle went towards Karanja road and he proceeded towards his house.::: Downloaded on - 02/08/2016 17:33:24 :::- 16 -While he was coming towards Shivaji statue, he noticed PW 14 Syed Khajamiya

    coming from the side of Shivaji statue. He states that he saluted him but PW 14




                                                                                
    Syed Khajamiya appeared frightened and went straight ahead. He states that in




                                                        
    front of the Collector office, he noticed one motorcycle lying on the road and also a

    person lying on the road. He accordingly stopped his vehicle and went to see




                                                       
    what the matter was.      He noticed Nayyarkhan lying in a pool of blood and,

    therefore, went and informed his brother Naderkhan. He states that he along with

    Naderkhan came to the scene of the incident and thereafter deceased Nayyarkhan




                                            
    was shifted to the hospital. In cross examination, he has admitted that Khajamiya
                             
    was an electrician and he and Khaja used to meet after an interval of about 15
                            
    days or a month. He has admitted that he had never worked along with PW 14

    Khaja. He has admitted that he did not enquire from the police or the persons
         

    present as to how the incident had occurred. He has admitted that he went away
      



    after half an hour after admitting deceased Nayyarkhan in the hospital. He has

    admitted that he did not feel it necessary to immediately go and see Khaja though





    he looked frightened. He has admitted that he is uncle of wife of Anwarkhan and

    Anwarkhan is the younger brother of PW 9 Naderkhan.                He has denied the

    suggestion that deceased Nayyarkhan had many enemies because of several





    quarrels and controversies. Though this witness has been cross examined at

    length, nothing of importance has been elicited in his cross examination to doubt

    that he had seen PW 14 Khajamiya coming from the opposite direction and that

    Khajamiya appeared to be frightened. There is nothing to doubt that he had seen

    deceased Nayyarkhan lying in a pool of blood and that he had gone and informed::: Downloaded on - 02/08/2016 17:33:24 :::- 17 -brother of deceased Nayyarkhan and along with him, had come to the scene of the

    incident. PW 14 Khajamiya, who is an eye witness to the incident, states that he




                                                                                
    was knowing deceased Nayyarkhan about one year prior to his death. He claims




                                                       
    to be knowing the accused also as brother of accused Bilal and Sadeq was his

    class-mate in school. He states that deceased Nayyarkhan was owning a mobile




                                                      
    phone having number 9323113032, which was purchased by PW 14 Khaja, who

    had in turn sold it to deceased Nayyarkhan. In respect of the incident, he states

    that on 22.5.2007 at about 12-15 in the night, he was going towards Balepeer and




                                           
    near the Collector's office, he heard a sound of crash. On hearing the sound, he
                             
    parked his motorcycle and looked towards the place from where the sound had
                            
    come. He noticed a white colored Fiat car giving dash to the motorcycle from

    behind. He accordingly went towards that place and in the mean time two other
         

    motorcycles came there. On each of the motorcycle, there was the driver and the
      



    pillion rider. Those four persons alighted from the motorcycles and three persons

    also alighted from the Fiat car. All the persons started assaulting the person, who





    was on the motorcycle, to which the dash had been given by the Fiat car. He

    states that in the head-light of the Fiat car, which had not been switched off after

    the car had stopped, he noticed accused Miskin, accused Khaled, accused Bilal





    and accused Ashef. These four persons were holding Kukri, knife and dagger. He

    could not notice any weapons in the hands of the other three persons, who were

    merely standing there. He states that on witnessing the incident, he returned

    home instead of going to Balepeer.        He states that he was frightened on

    witnessing the incident and informed his family members the reason as to why he::: Downloaded on - 02/08/2016 17:33:24 :::- 18 -did not go to Balepeer. He states that within about 15 to 20 minutes, there was a

    rumor in his locality that a person had been murdered in front of Collector's office.He states that he had gone to the hospital and had informed the incident to




                                                        
    Naderkhan.    He states that on the next day, the funeral of Nayyarkhan was

    performed. He states that three persons were armed with weapons and they were




                                                       
    accused Khaled, Miskinkhan and Bilal. He states that he did not see any weapons

    in the hands of accused Ayub and Sadeq. He states that his statement came to be

    recorded on 24.5.2007. In cross examination, he has stated that he was knowing




                                            
    deceased Nayyarkhan because he used to visit Balepeer locality. He has admitted
                             
    that he has an account in Hyderabad bank and the maximum deposit in the
                            
    account is between Rs.1,00,000/- to Rs.3,00,000/-. He has admitted of having an

    account in India bank with the maximum deposit of Rs.1,00,000/-. He has denied
         

    the suggestion that deceased Nayyarkhan was doing business in his name. He
      



    has stated that his aunt had asked to go to his father's house for delivering

    message. He states that his aunt had come to him on account of some family





    dispute and she had come at about 7 to 8 p.m. on that day. He has admitted as

    true that after 6 p.m., no bus is available for coming from village Tadsona where

    his aunt was residing, but has volunteered that there are private vehicles. He has





    admitted that on the next day, he could not go for giving the message. He has

    admitted not to have stated in his police statement that he had sold his mobile

    having number 9823113032 to deceased Nayyarkhan about 8 to 9 months prior to

    the incident. He has admitted not to have taken any steps for changing the name

    of the owner of the mobile. He was asked a question as to whether message,::: Downloaded on - 02/08/2016 17:33:24 :::- 19 -which he was going to deliver, could not have been given on mobile or on phone

    and this witness has answered that he was not knowing the telephone number of




                                                                               
    Khalil to whom the message was to be delivered. He has admitted that he had




                                                       
    about 8 to 10 friends at Balepeer and some of them were possessing mobiles. He

    has admitted to have participated in the election procession of Nayyarkhan. He




                                                      
    has admitted not to have stated in his police statement that he was knowing

    deceased Nayyarkhan about one year prior to the incident.             Similarly, he has

    admitted not to have disclosed that he was knowing accused Irshad because he




                                           
    was his class-mate and accused Bilal and Sadiq were his brothers and that rest of
                             
    the accused were his friends. He has admitted to have reached the scene of the
                            
    incident at 12-15 in the night. Omission has been duly proved that he had not

    stated in his police statement that he informed the incident to his relatives for
         

    explaining the reason as to why he could not go to Balepeer. Omission has been
      



    duly proved that he had not stated that he had informed Naderkhan in the hospital.He has admitted that there was a Police Chowki in the hospital, but he did not





    disclose to the police. He has admitted to have returned home at about 1 to 1-30

    in the night from the hospital. He states that on 24.5.2007 at about 10 a.m., he on

    his own went to Beed City Police Station and informed the incident. He has





    admitted that he had not actually seen the dash being given to motorcycle, but the

    motorcycle was pushed to a distance of about 70 to 80 ft. He has admitted that

    while four accused were assaulting, he could not notice as to who was the person

    who was assaulted. He has admitted that he desired to go and see as to who was

    the injured person, but did not do so as his name would be involved in that::: Downloaded on - 02/08/2016 17:33:24 :::- 20 -incident. He states that at first he heard the sound of dash when he was near the

    hotel in front of Collector's office at Gate No.1 and he stopped his vehicle within 5




                                                                                  
    to 10 ft. He states that he was at a distance of 15 to 20 ft. towards the southern




                                                          
    direction from the road divider and the victim might be 15 to 20 ft. towards the

    north from the road divider. He states that the whole incident was completed




                                                         
    within 4 to 5 minutes and the car and the motorcyclists also left within 4 to 5

    minutes.8]    Smt.Sadhana S. Jadhav, learned counsel for the appellants, has urged
                              
    before us that no reliance can be placed on the evidence of PW 14 Khajamiya
                             
    because of the unnatural conduct on the part of this witness in not reporting the

    matter to the police at the first available opportunity. It is also urged before us that
           

    this witness had gone ahead and, therefore, all that he could see, assuming that
        



    he was present at the scene of the offence, would be the back of the persons, who

    had inflicted injuries to deceased Nayyarkhan. The presence of this witness at the





    scene of the offence is cemented by the evidence of PW 10 Hamid, who states

    that he had seen this witness in a frightened state at about the same time when

    the incident is alleged to have occurred. Within minutes, Hamid had reached the





    scene of the offence and had seen the deceased lying on the road with injuries.The omissions, which have been elicited in the cross examination of this witness,

    are not on such crucial aspect of his evidence, which would entitle the court to

    disbelieve the evidence of this witness. It is true that this witness is a solitary

    witness to the incident and, therefore, his evidence should be of such a quality as::: Downloaded on - 02/08/2016 17:33:24 :::- 21 -would inspire the confidence of the Court. The reticence of this witness in not

    disclosing the incident is apparent from the fact that this witness apprehended




                                                                                
    involvement of his name in the incident and that is the reason why he did not go to




                                                        
    see as to who was the injured. The fact that this witness went home has not been

    shaken in the cross examination. Though an omission has been proved that he




                                                       
    had not stated in his police statement that he had disclosed the incident to his

    family members, yet that would not detract from the fact that he had gone home

    and had disclosed the incident to his relatives. Though this witness has been




                                            
    cross examined at length, according to us, nothing of importance has been elicited
                             
    in his cross examination, which would doubt his presence at the scene of the
                            
    offence. The head-lights of the Fiat car had not been switched off and, therefore,

    there was adequate illumination for this witness to have witnessed the incident.There is nothing in the cross examination, which would suggest that this witness
      



    had gone so far ahead that he could only see the back of the assailants and,

    therefore, could not have identified the assailants. Coupled with this, this witness





    had also stated that in the hospital, he had narrated the incident to brother of

    deceased Nayyarkhan. PW 9 Naderkhan also states about this witness coming to

    the hospital and informing him about the incident. Thus, we find from the evidence





    of this witness that though there are omissions, which according to us, are not on

    the vital aspect of his evidence, implicit reliance can be placed on the testimony of

    this witness and we can not fault the trial Court for having placed reliance on the

    testimony of this witness. Immediately upon death of deceased Nayyarkhan, a

    mob of about 8,000 to 10,000 people had gathered in the Civil Hospital and there::: Downloaded on - 02/08/2016 17:33:24 :::- 22 -were instances of stone pelting and burning of the houses of the accused. The

    entire situation was tense and in such circumstances, this witness may not have




                                                                                
    gathered enough courage to inform the incident to the police fearing reprisal by the




                                                       
    accused. Even on the day of the funeral, about 10,000 to 15,000 people had

    participated in the funeral and there were instances of pelting of stones on the




                                                      
    transport vehicles. In such circumstances, therefore, the delay on the part of this

    witness in not informing the police immediately that he had witnessed the incident,

    would not make him an unreliable witness nor would it cast a shadow on his




                                           
    testimony.      This witness at the close of his cross examination has emerged
                              
    unscathed and, therefore, we find that reliance can be placed on the testimony of
                             
    this witness.9]    The fact that accused no.1 was driving the Fiat car is established from the
        



    evidence of PW 13 Shaikh Rahim. PW 13 Shaikh Rahim states that he is a driver

    by profession and he owned Premier Padmini Fiat car bearing registration





    No.MH-10-E-3222.       He states that the vehicle was parked at Farooqui Petrol

    Pump near Shivaji statue on 22.5.2007. According to him, it is the place where the

    vehicles are generally parked. He states that he was present in the vehicle and on





    that day at about 8 p.m., accused no.1 Syed Khaled and one Javed came on

    motorcycle and accused Khaled stated that he wanted the Fiat car for carrying his

    family members to Parali. The hire charges were accordingly agreed at Rs.400/-.Javed was the driver of the vehicle and Javed took the vehicle while the accused

    and the other persons went away on a motorcycle. After taking dinner, he was::: Downloaded on - 02/08/2016 17:33:24 :::- 23 -sleeping at the house and one Syed Sheru and one Shaikh Isaq came to his

    house at about 1 to 1-15 a.m. and informed him that his vehicle was parked in




                                                                              
    Baba Chowk and they further informed him that his vehicle was damaged from the




                                                      
    front side. They also informed him that the vehicle had been brought there by

    Khaled. He accordingly followed them to Baba Chowk and noticed the vehicle.He found that the front bumper, dish-board, radiator, number plate were broken.He also subsequently learnt that this vehicle had given dash to deceased

    Nayyarkhan and that he had died. He states that he drove his vehicle to his house




                                           
    and on 24.5.2007, police had brought accused no.1 Syed Khaled and had seized
                             
    the vehicle. In cross examination, he has admitted that prior to 22.5.2007, he had
                            
    no business dealings with accused no.1 Syed Khaled. He has admitted that he did

    not know as to whether Khaled could drive the vehicle. He has further stated that
         

    Javed had disclosed that Khaled can drive the vehicle. He could not explain as to
      



    why the name of Miskinkhan was recorded at portion marked 'A' in his statement

    though he was not knowing his name. Similarly, he could not explain as to why the





    name of father of accused Syed Khaled was recorded in his statement at portion

    marked 'B' though he did not know the name of father of Syed Khaled. An

    omission has been duly proved that Shaikh Isaq and Sher Ali had not disclosed the





    name of Syed Khaled as a person, who had brought the vehicle in the square.Similarly, omission has been duly proved that Isaq and Sher Ali had not informed

    him that the front portion of the vehicle was damaged. He was asked whether the

    car was jammed so that it could not be driven, but he has denied that the vehicle

    could not have been driven after the accident.::: Downloaded on - 02/08/2016 17:33:24 :::- 24 -10]   Prosecution has also examined PW 16 Shaikh Javed, the driver of the




                                                                              
    vehicle, who states that Khaled had come to him on motorcycle and that he




                                                      
    wanted to engage a vehicle for carrying his family members to Parali. He had

    asked him to come at the place where the vehicles were parked. He states that




                                                     
    Khaled had engaged the Fiat car of PW 13 Shaikh Rahim bearing registration

    No.MH-10-E-3222 and the hire charges were fixed at Rs.400/-. He states that one

    Baba drove the car and brought the said car to the banyan tree and it was handed




                                          
    over to Khaled. He has agreed that he and one Baba used to arrange vehicles for
                            
    hire since last 4 to 5 years. He has admitted that he was knowing Khaled since 4
                           
    to 5 year5s and though Khaled did not hold driving licence, Khaled used to drive

    the vehicles. He has admitted that he and Khaled had gone together in some
            

    vehicle and he has seen Khaled driving four wheeler vehicle. He has admitted that
         



    he was at some distance when the talk between Rahim and Khaled took place.He states that he does not know whether Rahim had asked Khaled if he could





    drive the vehicle. He has further stated that Khaled had said that he would return

    the vehicle on the next day morning. He has admitted that Rahim had handed

    over the key of the vehicle to him. Omission has been duly proved that he had not





    stated that Khaled had asked him to come to the place where the vehicles were

    parked. Though this witness has been cross examined at length, again nothing of

    importance has been elicited in his cross examination, which would doubt the

    veracity of the evidence of this witness. Thus, from the evidence of PW 13 Shaikh

    Rahim and the evidence of PW 16 Shaikh Javed, prosecution has established that::: Downloaded on - 02/08/2016 17:33:24 :::- 25 -accused Khaled had engaged the said car and had driven the car away.Prosecution has also examined PW 17 Shaikh Vashim @ Baba, who




                                                                                 
    corroborates PW 13 Shaikh Rahim and PW 16 Shaikh Javed.11]   Prosecution has examined PW 11 Syed Isaq, who states that he along with




                                                        
    his friend Shaikh Afroz were present in the square at Islampura and had noticed

    one white colored car, which was proceeding at high speed. The vehicle stopped

    in the square and, therefore, they went towards the vehicle as it had been driven at




                                            
    high speed. He states that he noticed Khaled alighting from the said car and,
                              
    therefore, they saluted Khaled and enquired what had happened. Khaled had
                             
    asked him to give this vehicle to Shaikh Rahim. He states that he had noticed

    damage to the front side of the vehicle and had also noticed the front number plate
            

    was broken. He states that the registration number of the Fiat car was MH-10-
         



    E-3222. He states that thereafter one motorcycle came at high speed and the

    motorcycle was being driven by Bilal and accused Miskinkhan was the pillion rider.Khaled sat on the motorcycle and all the three proceeded on the motorcycle. He

    states that the time was about 12-30 to 1-00 a.m.             He thereafter went and

    informed Rahim that one person had come in the car and had asked him to give





    the car to Rahim. In cross examination, it has been elicited that he was knowing

    accused Bilal since about 1 to 1 & half years prior to the incident. Similarly, it has

    been elicited in the cross examination that he was knowing accused Khaled since

    about 1 to 1 &half years prior to the incident. It has also been elicited in cross

    examination that he was knowing accused Miskinkhan since 1 to 1 & half years::: Downloaded on - 02/08/2016 17:33:24 :::- 26 -prior to the incident. He has admitted that he was knowing deceased Nayyarkhan

    since 2 to 3 years prior to the incident. A question was asked in the cross




                                                                                 
    examination as to whether this witness had informed accused no.1 Khaled that the




                                                         
    house of Shaikh Rahim was at a short distance. This witness has answered that

    immediately a motorcycle came and, therefore, he could not inform accused no.1.He has admitted that key was not given to him and he does not know where the

    key was kept. Omission has been duly proved that he had not stated that he had

    seen Khaled alighting from the vehicle. He states that after giving message to




                                             
    Rahimbhai, he returned back to the square. He has admitted that the light of the
                              
    vehicle had been switched off when Khaled had brought the vehicle and Khaled
                             
    was present for about 4 to 5 minutes. He has also admitted that Khaled had come

    at the square in the vehicle in between 12-30 to 1-00 a.m.         He has admitted that
            

    police were present int he hospital, but he did not narrate the incident to the police.The evidence of this witness, therefore, clearly establishes that after the incident,

    the car was driven and parked in the square by accused Khaled, who has





    requested this witness to inform Rahim about the car being parked in the square.The evidence of this witness further establishes that the front number plate was

    broken in half and the front portion of the car was damaged. The evidence of this





    witness establishes that he had gone and informed PW 13 Shaikh Rahim about

    car being parked in the square.12]   The evidence of PW 11 Syed Isaq is further corroborated by the evidence of

    PW 12 Shaikh Afroz, who also deposes on the similar lines as that of PW 11.::: Downloaded on - 02/08/2016 17:33:24 :::- 27 -13]    Prosecution hash examined PW 19 Adnankhan, who states that he was




                                                                                
    knowing deceased Nayyarkhan and was also knowing the accused. He states that




                                                       
    on 22.5.2007, he along with his friend PW 20 Sarafaraj were standing at Samelan

    Pan kiosk. At about 12 midnight, they noticed two motorcycles coming at high




                                                      
    speed. The motorcycles came from the western side going towards east i.e. from

    Nagar side to Shivaji statue. One of the vehicles was being driven by accused

    Bilal with Miskin as the pillion rider while the other was being driven by Afsarkhan




                                           
    and Asif Baig as the pillion rider. He states that thereafter within 4 to 5 minutes,
                             
    deceased Nayyarkhan came from the western side and he too proceeded towards
                            
    Shivaji statue towards east. He states that he saluted deceased Nayyarkhan, who

    stated that he was going home and he would meet them the next day. He further
            

    deposes that within a short time thereafter one white Fiat car came at high speed
         



    and their attention was attracted towards the car as they had heard the sound of

    closing of the door. He states that they had noticed accused no.1 Khaled driving





    the car, and accused Sadeq and accused Faisal were the other passengers in the

    car.   He states that the registration number of the car was MH-10-E-3222. He

    states that the car also proceeded towards Shivaji statue. He states that thereafter





    he and his friend went home and slept. In the cross examination, he has been

    confronted with portion marked 'A' in his statement that he had stated in his police

    statement that he was student of the Ist year B.Sc. while in fact he was student of

    IIIrd year. He states that he had gone to the Pan shop at about 11 p.m. and

    Sarafaraj i.e. PW 20 was also present there. He states that the Pan shop was::: Downloaded on - 02/08/2016 17:33:24 :::- 28 -open upto 11-30 p.m. and thereafter one shutter was kept open and the business

    was transacted upto 11-45 p.m. He states that he had noticed the motorcycle of




                                                                              
    deceased Nayyarkhan when it was at a distance of 10 to 15 fr. From him. The




                                                      
    other two motorcycles had come from the western side and he had noticed them

    when they were at a distance of 10 to 15 ft.      He has admitted that prior to




                                                     
    22.5.2007, he had not seen the vehicle i.e. the white Fiat car. He had stated that

    he had a desire to inform the police on 23.5.2007, but on that day, there was

    tension in the city. Similar is the evidence of PW 20 Shaikh Sarafaraj. In cross




                                          
    examination, he has admitted that there was a talk between him and PW 19
                            
    Adnankhan about motorcycles going at high speed. He has admitted that he had
                           
    noticed the car after about 5 to 6 minutes of noticing the motorcycles. He states

    that previously he had also seen accused Khaled while driving a four wheeler and
            

    some times he had seen accused Khaled and Sadeq driving Cruiser - a four
         



    wheeler vehicle.   It has also been elicited in the cross examination that he had

    seen Asif Baig while driving Tata Sumo. He has admitted in the cross examination





    that some of the accused were possessing four wheelers, but could not say as to

    whether they were owners of the car. He has stated that he had noticed them

    while driving car on many occasions.14]   Thus, the prosecution has established that the two motorcycles driven by

    four accused preceded the motorcycle driven by deceased Nayyarkhan.Motorcycle of deceased Nayyarkhan was followed by the Fiat car driven by

    accused no.1 Khaled. The involvement of the vehicle in the accident is clearly::: Downloaded on - 02/08/2016 17:33:24 :::- 29 -spelt out not only from the evidence of the eye witness, but also from the report of

    the Chemical Analyser and the finding of the broken number plate at the scene of




                                                                                  
    the incident. As discussed above, the evidence of the prosecution witnesses




                                                          
    proves beyond reasonable doubt the involvement of the present appellants. After

    examining the evidence minutely, according to us, there is no ground for faulting




                                                         
    the view taken by the trial Court and, therefore, there being no merit in the present

    appeals, the appeals deserve to be dismissed.15]      Thus, after considering the entire evidence, according to us, the prosecution
                               
    has established beyond doubt the complicity of the appellants-accused in the said
                              
    crime.     Unmerited acquittal of the other accused would not be a ground for

    extending the benefit to the present appellants-accused.             The trial Court has
            

    discussed at length the evidence of the officers from the mobile companies in
         



    respect of the call chart to come to the conclusion that the accused had conspired

    to kill deceased Nayyarkhan. Even if that evidence is left out of consideration, the





    evidence of the eye witness clearly establishes the involvement of the accused.Similarly, the discovery of the Fiat car at the instance of accused Khaled, even if

    ignored, does not have any bearing on their acquittal as the evidence of PW 13





    Shaikh Rahim, PW 16 Shaikh Javed and the other witnesses clearly establishes

    that the car was taken by accused no.1 - Syed Khaled and it was actually driven

    by accused no.1 - Syed Khaled.            The evidence of the eye witness, thus,

    establishes the complicity of the appellants-accused.           No case for extending

    benefit of doubt to the appellants-accused has been made out. Their conviction::: Downloaded on - 02/08/2016 17:33:24 :::- 30 -and sentence, therefore, according to us, needs no interference.16]   Thus, the appeals, being without merit, are dismissed, confirming the




                                                       
    conviction and sentence of the appellants-accused.(A.V. Potdar, J.)                            (P.V. Hardas, J.)
                            
                           
            
         






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