Abdul Malik Nabi Ahmed vs The State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant-original accused against the judgment and order dated 30.9.2008 passed by the learned Additional Sessions Judge-2, Malegaon, District Nashik in Sessions Case No. 321 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and under Section 4 read with Section 25 of the Arms Act. For the offence under Section 302 of IPC, the appellant has been sentenced to life imprisonment and fine of Rs. 5000/- i/d S.I. for six months and for the offence under Section 4 read with Section 25 of the Arms Act, the appellant has been sentenced to R.I. for one year and fine of Rs. 1000/- i/d S.I. for one month.

The prosecution case, briefly stated, is as under:

(i) Deceased Nisar Ahmed was the husband of P.W. 8 Kulsumbano and the maternal uncle of P.W. 6 Gulam. Deceased Nisar Ahmed along with his family was residing at Malegaon in Nashik District. P.W. 6 Gulam was also residing at Malegaon. The appellant was in love with a girl residing in the area of the deceased. In the last Ramzan prior to the incident, a Panchayat was called and it was decided that the appellant should marry that girl and `mehr'' amount was decided at Rs. 25,000/-. The deceased was part of that Panchayat. The appellant was angry with the deceased as according to him, a huge `mehr'' amount was fixed. Due to this, the appellant gave threats to the deceased and ultimately on 29.6.2006 at about 10.00 p.m. the appellant assaulted deceased Nisar Ahmed with a chopper when the deceased was sitting at Ashrafi chowk. According to the prosecution, the incident was witnessed by P.W. 6 Gulam. In the meanwhile, somebody informed P.W. 8 Kulsumbano wife of Nisar Ahmed that Nisar was assaulted with a weapon near Shikari hotel. Then P.W. 8 Kulsumbano reached the spot. She saw that Nisar Ahmed was lying there without making any movement and his neck was hanging down to one side of the body. Mohd. Ustafa and Mohd. Murtaza who had also come to the spot, took Nisar in a rickshaw to Faran hospital. At Faran hospital, Nisar was declared dead. Then Nisar was taken to Wadia hospital. There also, the Doctor declared that he was dead.

(ii) In the meanwhile, on 29.6.2006 at about 22.45 hours, one Mansur Ahmed informed Ayeshanagar police station in Malegaon that somebody had assaulted Nisar Ahmed by sword and he was taken to Faran hospital where he expired. Pursuant to this information, P.W. 5 API Surve went to Faran hospital. There he learnt that Nisar was taken to Wadia hospital in an ambulance, therefore, he went to Wadia hospital. Police constable Borse showed him the dead body of Nisar Ahmed. His clothes were stained with blood. There were injuries on the neck of Nisar Ahmed. API Surve then returned to the police station and lodged F.I.R. on behalf of the State against an unknown person as till then, the identity of the accused was not known. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions for trial.

Charge came to be framed against the appellant under Section 302 of IPC, under Section 4 read with Section 25 of the Arms Act and under Section 135 of the Bombay Police Act. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in the present case, the learned Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal. It may be stated here that the learned Sessions Judge acquitted the appellant of the offence under Section 135 of the Bombay Police Act.

We have heard the learned counsel for the appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, for the below mentioned reasons, we are of the opinion that there is no cogent and reliable evidence to show that the appellant caused the death of Nisar Ahmed by assaulting him with the chopper.

To support the conviction, the prosecution is mainly relying on the evidence of P.W. 6 Gulam, who, according to the prosecution, is an eye witness to the incident. Gulam has stated that on 29.6.2006 at about 10.00 p.m. he was going to Atik hotel to have tea. At that time, Nisar chacha was sitting in Ashrafi chowk near Shikari hotel. Gulam has stated that he saw the appellant giving two blows with the chopper on the neck of Nisar. The appellant was shouting that whoever would intervene, would face the same consequences. Then Gulam went away from the spot. The appellant then ran away. Gulam has stated that there was dispute between Nisar chacha and the appellant on account of Panchayat meeting. In the month of Ramzan, the appellant was caught red-handed with a girl, hence, Panchayat was called. In the Panchayat meeting, it was decided that the appellant and girl would get married and `mehr'' amount was decided at Rs. 25,000/-. There was a dispute in relation to `mehr'' amount. Gulam has stated that this was the motive for the murder.

Mr. Gangurde, the learned counsel for the appellant submitted that Gulam is an interested witness which can be seen from the fact that Gulam has admitted that the deceased was his maternal uncle. He submitted that the incident occurred on 29.6.2006 and the statement of Gulam was recorded on 7.7.2006 which is admitted by the Investigating Officer PSI Kazi in paragraph 12 of his evidence. PSI Kazi has stated that he had been investigating the matter continuously from 29.6.2006 and he recorded the statement of Gulam on 7.7.2006. No plausible explanation has been given for the delay in recording the statement of Gulam. Moreover, Gulam has admitted that police recorded his statement only once and the evidence of P.W. 10 PSI Kazi shows that the said statement was recorded on 7.7.2006. Gulam has stated that after 8 to 10 days after the incident, he disclosed the fact that he witnessed the incident to his maternal uncle Kari and Kari informed PSI Kazi (P.W.10). Thereafter police recorded his statement. It is pertinent to note that Gulam has admitted that when he went to Faran hospital at 11 p.m. all his maternal uncles and the wife of the deceased were present in the hospital, however, he did not inform anyone that he had witnessed the incident. Thereafter he attended the burial ceremony which took place in the night between 29.6.2006 and 30.6.2006 at about 1.30 a.m. to 2.00 a.m. Gulam has admitted that at that time, he and all his maternal uncles and sons of the deceased were present in the grave yard. The procession started from the house at about 1.30 a.m. and at 2.45 a.m. they reached the grave yard. Police bandobast was there at the grave yard. Yet Gulam has not informed either the sons of the deceased or his maternal uncles or any other person that he had witnessed the incident and he kept quiet about witnessing the incident for a period of almost nine days. All these facts raise doubt about the veracity of the evidence of P.W. 6 Gulam. Thus, we find much merit in the submission of Mr. Gangurde that Gulam is a got up witness. This is further underlined by the fact that the conduct of Gulam shows that he made no attempt to take the deceased to the hospital nor did he inform any of the relatives of the deceased or the police about the incident on 29.6.2006.

The evidence of P.W. 5 API Surve shows that he was informed at 22.45 hours that some person had assaulted Nisar by sword and Nisar was taken to Faran hospital where he expired. API Surve lodged FIR on behalf of the State and the said FIR is against an unknown person. This FIR was lodged at 23.45 hours and it states that unknown person committed the murder of Nisar Ahmed. If Gulam had really witnessed the incident, he would have informed about it to somebody from the family of the deceased or any of his maternal uncles as he is a close relative of the deceased. Gulam had met his maternal uncles as well as wife and sons of the deceased soon after the incident and one of them inturn, would have informed the police. However, when FIR was lodged at 11.45 p.m. the name of the assailant was not mentioned and the name of the appellant was revealed for the first time on 7.7.2006 when the statement of Gulam was recorded. The conduct of Gulam in keeping quiet about the incident till 7.7.2006 and his other conduct raises doubt about the credibility of his evidence.

Thereafter, the prosecution is relying on the circumstance of recovery of blood stained chopper and blood stained clothes at the instance of the appellant. The panch witness who has deposed on this aspect is P.W.9 Atiq Ahmed. The prosecution is further relying on the fact that the clothes of the appellant were stained with human blood and the chopper recovered at his instance was stained with blood of `A'' group. According to the prosecution, blood group of the deceased is `A''. The learned A.P.P. submitted that finding of blood of `A'' group on the chopper is a strong incriminating circumstance. However, as far as this aspect is concerned, it may be stated that the evidence of the panch witness P.W.9 Atiq shows that there was no sealing of the articles which were recovered at the instance of the appellant. In such case, we are not inclined to place any reliance on the circumstance of recovery of blood stained clothes and chopper at the instance of the appellant.

Useful reference may be made to a decision of the Supreme Court in the case of Amarjit Singh Vs. State of Punjab, (1995) CriLJ 3984 : (1995) 3 Crimes 409 : (1995) 5 JT 529 : (1995) 4 SCALE 555 : (1995) 3 SCC 390 Supp , wherein the Supreme Court has held that the non-sealing of the articles at the spot is a serious infirmity because the possibility of tampering with the said articles cannot be ruled out. The same view was followed in two decisions of the Division Bench of this Court in the case of Ashok Premaji Nirbhawane Vs. State of Maharashtra in Criminal Appeal No. 886 of 2012 and Rajaram Limbaji Babar Vs. The State of Maharashtra in Criminal Appeal No. 899 of 2005.

There is no other reliable evidence against the appellant because all the other witnesses have turned hostile and have not supported the prosecution. Though the medical evidence shows that there were two punctured wounds on the neck of Nisar, however, looking to the other evidence on record, we are of the opinion that there is no cogent, convincing and reliable evidence to show that the appellant caused the murder of Nisar Ahmed.

In the result, the following order is passed:

ORDER

(i) The appeal is allowed;

(ii) The judgment and order passed by the learned Additional Sessions Judge-2 Malegaon, District Nashik in Sessions Case No. 321 of 2006 convicting and sentencing appellant-Abdul Malik Nabi Ahmed under Sections 302 of IPC and 4 read with Section 25 of the Arms Act is set aside. The appellant is acquitted thereunder;

(iii) The appellant be set at liberty forthwith, if not required in any other case;

(iv) Fine amount if any paid, be refunded to the appellant.