Case Note & Summary
The High Court of Judicature at Bombay heard two criminal appeals arising from the judgment and order dated 30 November 2012 passed by the Additional Sessions Judge at Sewree, Mumbai, in Sessions Case No.318 of 2011. The appellants, Rashid Ahmed Abdul Bashar Shaikh and Naushad Badruddin Shaikh, were convicted under Sections 302, 324 and 506(II) read with 34 of the Indian Penal Code and sentenced to life imprisonment and fines. The prosecution case originated from a dispute over missing tin sheets. On 20 November 2010, at about 6.30 a.m., Nasreenbanu, the sister-in-law of informant Smt. Shamshad Maqsood Khan, informed the latter that her tin sheets were missing and suspected appellant Rashid of taking them. The women went to Rashid's house, where a heated exchange occurred with his siblings. At about 11.00 p.m., Rashid and an unknown person wearing a green half-shirt and black jeans came to the informant's house. Rashid asked the informant to send her husband Maqbool outside. When Maqbool declined and asked to speak the next morning, Rashid allegedly caught his hand and dragged him outside. The prosecution alleged that Rashid took out a chopper concealed around his waist and inflicted blows on the neck and shoulder of the deceased, while the unknown person gave a chopper blow on the head. Nasreenbanu, who came running, was also assaulted on her left hand. The accused brandished weapons and fled in an autorickshaw, but the person in the green half-shirt was apprehended and beaten by locals. The deceased was taken to Shatabdi hospital and then to Sion hospital, where he succumbed to injuries. An FIR was registered at Chembur Police Station as Crime No.532 of 2010 for offences under Sections 302, 307, 324, 506(2) and 34 IPC, Section 4 and 25 of the Arms Act, and Sections 37(1)(a) and 135 of the Bombay Police Act. Investigation led to the arrest of Naushad and seizure of his clothes and a chopper. Later, the disclosure statement of Rashid was recorded under Section 27 of the Indian Evidence Act, and his clothes and weapon were seized. The prosecution examined ten witnesses. The accused were questioned under Section 313 CrPC and denied the charges. Rashid examined two defence witnesses to support his plea of alibi. In appeal, the counsel for Naushad relied on several precedents, while the counsel for Rashid argued that no independent witnesses were examined and that the alibi was proved. The Additional Public Prosecutor contended that PW1 to PW3 were natural eyewitnesses and that the medical evidence corroborated their testimony. The court referred to the postmortem report of PW11 Dr. Rajesh Chandrakant Dere, which detailed numerous chop and incise injuries consistent with the alleged assault. The final operative order of the High Court is not included in the provided text.
Headnote
A) Evidence - Interested Witnesses - Reliability of Testimony - Indian Evidence Act, 1872, Sections 3 and 134 - The prosecution case depended on the evidence of the informant and her relatives, who were challenged as interested witnesses; the defence contended that no independent witnesses were examined despite the incident occurring in a thickly populated area; the court had to assess whether the testimony of interested witnesses could be accepted without further corroboration - Held that the court scrutinized the consistency of the eyewitness accounts and noted that minor contradictions were attributable to passage of time (Paras 8-9). B) Criminal Trial - Alibi - Burden of Proving Defence - Code of Criminal Procedure, 1973, Section 313 and Indian Evidence Act, 1872, Section 103 - Appellant No.2 took the plea of alibi and examined two defence witnesses; the defence argued that the alibi stood proved and benefit of doubt should be extended to the accused; the court was required to evaluate whether the defence evidence displaced the prosecution's positive identification of the accused - Held that the court considered the alibi plea against the direct ocular testimony and medical evidence before arriving at a conclusion (Paras 6, 8). C) Evidence - Medical Evidence Corroboration - Consistency Between Ocular and Medical Evidence - Indian Evidence Act, 1872, Sections 45 and 60 - The postmortem report of PW11 Dr. Rajesh Chandrakant Dere detailed multiple chop and incise injuries on the deceased, which corresponded to the prosecution's version of the attack by choppers; the court referred to the autopsy findings to test the veracity of the eyewitness accounts - Held that the injuries noted in the postmortem notes and injury certificates were consistent with the ocular evidence and supported the prosecution case (Paras 10-11). D) Penal Law - Common Intention - Section 34 IPC - Indian Penal Code, 1860, Sections 34, 302, 324, 506(2) - The appellants were convicted by the trial court under Section 302 read with 34 IPC for a murder allegedly committed in concert with another person; the issue was whether the prosecution proved a shared intention or pre-arranged plan to cause death; the appellate court examined whether the evidence established common intention among the accused - Held that the trial court had relied on the common intention doctrine, and the High Court was assessing whether the evidence supported such common intention (Paras 1-3). E) Evidence - Disclosure Statement Under Section 27 Indian Evidence Act - Admissibility and Seizure of Weapon - Indian Evidence Act, 1872, Section 27 - Investigating Officer PW10 recorded the disclosure statement of appellant No.2 and seized his clothes and weapon at his instance under Section 27; the recovery was part of the investigation and was considered as corroborative material; the court examined the chain of investigation including seizure and forensic forwarding - Held that the seizure and recovery were properly part of the investigation, but the final assessment of the appeal is not included in the provided text (Paras 5-6).
Issue of Consideration
Whether the trial court was justified in convicting the appellants under Sections 302, 324 and 506(II) read with 34 of the Indian Penal Code based on the testimony of interested witnesses and medical evidence; whether the plea of alibi raised by appellant No.2 was sufficiently proved; whether the evidence of disclosure statement and recovery under Section 27 of the Indian Evidence Act was properly considered; and whether the conviction could be sustained in the absence of independent witnesses.
Law Points
- reliability of interested witnesses
- alibi defence
- common intention under Section 34 IPC
- corroboration of ocular evidence by medical evidence
- disclosure statement under Section 27 Indian Evidence Act
- examination under Section 313 CrPC
- appreciation of evidence in murder trial
