Bombay High Court
Mohd Ali Jaan Mohd. Shaikh And Anr vs The State Of Maharashtra And Anr on 15 April, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2025:BHC-AS:17018-DB
1--apeal-559-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.559 OF 2022
1. Mohd. Ali Jaan Mohd Shaikh,
Aged about 34 years,
Residing at 33-A, Tandel Street,
Ramzan Ali Macchiwala, 4th Floor,
Room No. 22, Dongri, Mumbai 400 009
2. Pranay Manohar Rane @ Nana
Aged about 45 years,
Residing at Ankur Apartments,
Room No. 406, Shastri Nagar,
Vasai (West), District Thane
Both are at present undergoing the
sentence imposed upon them at
Mumbai Central Prison, Mumbai .....Appellant
Vs. (Ori. Accused Nos.1 and 2)
1. The State of Maharashtra
2. Central Bureau of Investigation
vide RC-3(S)/2016-SCUV/SC-II,
New Delhi .....Respondents
Mr. Nitin Sejpal, with Ms. Akshata Desai, for the Appellants.
Ms. P.P. Shinde, APP for Respondent No.1-State.
Mr. Pradip D. Gharat, Special P. P. for Respondent No.2-CBI.
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 11th MARCH 2025
PRONOUNCED ON : 15th APRIL 2025
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JUDGMENT:
– (Per Dr. Neela Gokhale J. )
1. The Appellants have assailed the judgment and order
dated 25th April 2022 passed by the Special Judge (Exclusive Special
Court constituted for the cases under MCOCA/TADA/POTA and
other Sessions Cases against the accused – Rajendra Sadashiv Nikalje
@ Chhota Rajan) at Greater Bombay in Sessions Case No.187 of 2011
arising out of CBI RC-3(S)/2016-SCUV/SC-II, New Delhi. By the
impugned judgment and order, the Appellants stand convicted for the
offences punishable under Sections 302, 307, 326, 120-B, 34 of the
Indian Penal Code (‘IPC‘), 1860 and Section 27 of the Indian Arms
Act, 1959. For the offences punishable under Sections 302, 34, 120-B
of the IPC for committing murder of Irfan Qureshi, the Appellants are
sentenced to suffer rigorous imprisonment (RI) for life with fine of
Rs.8,000/- each, in default to suffer additional RI for six months each.
For the offences punishable under Section 302, 34, 120-B of the IPC
for committing murder of Shakil Ibrahim Modak (‘Modak’), the
Appellants are sentenced to suffer RI for life with fine of Rs.8,000/-
each, in default to suffer additional RI for six months each. For the
offence punishable under Section 307, 34, 120-B of the IPC, both the
Appellants are sentenced to suffer RI for 8 years with fine of
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Rs.5,000/- each, in default to suffer RI for four months each. The
Appellants are sentenced to suffer RI for five years with fine of
Rs.5,000/- each, in default to suffer RI for four months each for the
offence punishable under Sections 326, 34, 120-B of the IPC. The
Appellants are also sentenced to suffer RI for four years with fine of
Rs.5,000/- each, in default to suffer RI for four months each for the
offences punishable under Section 27 of the Indian Arms Act, 1959.
All the substantive sentences are directed to run concurrently and both
the Appellants are entitled to set off for the period of detention
already undergone by them. There were three more co-accused in the
same case, however, vide the same Judgment and Order, the said three
co-accused were acquitted of all the offences.
2. The facts leading to the present Appeal are as follows:
(a) On 13th February 2010, the First Informant, Mohd. Asif
Mohd. Rafiq Khan along with one Naushad Qureshi and Mohd. Irfan
Qureshi were sitting outside the shop of Naushad Qureshi situated at
Dharmashi Street, Phool Galli, Aktari Masjid Building, Mumbai. The
First Informant received a phone call from one of the deceased, one
Modak, informing him that he was coming to Princess Building.
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However, Modak replied that he was himself coming to the Phool
Galli. Modak reached Phool Galli at 20:15 hours and sat on the chair
next to the Informant. While they were talking, a person came from
the front side and fired at him with a revolver held in his right hand
with an intention to kill him. The Informant received an injury on the
left side of his chest. Three other persons came along with the first
assailant and started firing at Modak and Qureshi. In order to save his
life, the Informant ran towards Bhendi Bazar and went to his friend’s
shop near Metro Optician and narrated the incident. His friend took
him to Sir JJ Hospital. In the firing, Modak and Qureshi received
bullet injuries and were also taken to Sir JJ Hospital but they
succumbed to their injuries. In the firing, another woman namely, Smt.
Gangubai Eknath Sonawane also sustained a bullet injury while she
was walking on the Dharamshi street. She was also admitted to Sir JJ
Hospital.
(b) The Informant narrated the entire incident to the police
while in the hospital. His statement was recorded on the basis of
which, C.R. No.26 of 2010 was registered at the Sir JJ Marg Police
Station against four unknown persons for the offences punishable
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under Sections 307 and 34 of the IPC and Section 3, 25, 27 of the
Indian Arms Act, 1959. Spot Panchanama was prepared in the
presence of panchas; blood, blood mixed with earth and, earth were
collected from the spot. Three lids were also found. Three white
coloured plastic chairs out of five chairs having bullet holes were also
seized. Inquest panchanama was prepared. Statements of witnesses
were recorded, seized muddemal was sent to Forensic Science
Laboratory (‘FSL’). Supplementary statements of the witnesses were
recorded. In September 2010, the CA Report was received from the
FSL and thereafter in October, 2010, investigation was transferred to
DCB CID, Unit 1, Mumbai.
(c) The Appellants were arrested on 23 rd October 2010 by PSI
Anil Gangawane (PW/24), who was working in DCB, CID in the
Motor Vehicle Anti Theft Department in another crime. While in his
custody, the 2nd Appellant, Pranay Rane gave a statement regarding the
place where the weapon used in the present crime, was kept.
Accordingly, the said weapon was recovered along with four live
cartridges under the provisions of Section 27 of the Indian Evidence
Act, 1872.
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(d) Thereafter, under the orders of Additional Chief
Metropolitan Magistrate (‘ACMM’), 37th Court, Ballard Pier, Mumbai,
PI Sudhir Sawant got the custody of the Appellants and they were
arrested on 12th November 2010 in the present crime. On 15 th
December 2010, Test Identification Parade (‘TIP’) was conducted at
Mumbai Central Prison, Mumbai.
(e) Upon completion of investigation, charge sheet against
these Appellants was submitted. The learned ACMM took cognizance
of the offences. Upon committal, charges were framed against the
Appellants and others on 25th January 2017 for the aforesaid offences
and under Section 37(1)(a) of the Maharashtra Police Act. The
Appellants entered their plea of ‘not guilty’ and claimed to be tried.
(f) In the meantime, separate charges were framed against
Rajendra Nikalje @ Chhota Rajan. Pursuant to the orders passed by
Lt. Governor New Delhi, this Accused was directed not to be moved
out of Tihar Jail, New Delhi and he remains there till date.
(g) In support of their case, the Prosecution examined 37
witnesses. The defence did not lead any evidence. The statements of
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the Appellants and the other acquitted accused under Section 313 of
The Code of Criminal Procedure, 1973 (‘Cr.P.C.’) were recorded. The
defence of the accused was of total denial, innocence and false
implication. However, vide judgment and order dated 25 th April 2022,
the Special Judge convicted the Appellants and sentenced them as
noted in paragraph 1 above. Being aggrieved by their conviction, they
have preferred the present Appeal.
3. Mr. Nitin Sejpal, learned counsel appeared for the
Appellants, Mr. Pradip Gharat, learned Special Public Prosecutor
represented the CBI and Mrs. P. P. Shinde, learned APP represented
the State.
4. The case of the prosecution essentially rests upon direct
evidence of an injured eye witness, i.e. PW/1 the First Informant
namely, Mohamed Asif Khan. He deposed about the entire incident as
it happened in his presence. He has stated that while he was sitting
with Modak and Qureshi, four persons arrived and started firing the
revolver. He sustained a bullet injury on the left side of his chest. So
also, Irfan and Modak sustained bullet injuries, which resulted in their
death. He further stated that he ran away taking support of his bike,
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through the Masjid Galli- Bhendi Bazar and reached near Metro
Opticians, where he met his friend. His friend took him on his bike to
the hospital. He further stated in his substantive evidence that he
narrated the incident to the police in the hospital and after he was
discharged from ICU, the police again recorded his statement. This
witness described the Appellants in detail. He was also subjected to
TIP. He has given a lucid description of the conduct of the TIP. He
identified the Appellants. Thereafter, this witness also identified the
Appellants in the Court. PW/1 was subjected to a rigorous cross-
examination, however, he stood his ground and did not budge from
his testimony.
5. Mr. Sejpal tried to suggest that at the time of giving his
statement to the police, PW/1 was semiconscious and that he gave the
description of only one person, who fired at him. In fact, PW/1 has
reiterated and volunteered to say that he described both the persons. It
was also suggested to this witness that he did not see the face of the
assailants as he left the spot immediately. Mr. Sejpal also doubted the
TIP by saying that the parade was delayed and PW/1 saw the
Appellants before the parade. Mr. Sejpal contended that delay in
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holding a TIP renders it fatal and this witness had identified the
Appellants without specifying their individual roles. It was repeatedly
suggested to this witness that since he was injured, he ran away from
the spot and hence, did not see the assailants. Despite, repeated
questioning on this aspect, this witness spoke with precision and
consistently identified the Appellants. He was able to narrate the
entire sequence of events cogently. Nothing fruitful was elicited from
his cross examination.
6. Per contra, Mr. Gharat justified the alleged delay in
conducting the TIP and says that the delay, if any, should be seen from
the date of arrest of the accused and not from the date of the incident.
Admittedly, the incident took place on 13 th February 2010 and the
Appellants were first arrested on 23 rd October 2010 by the Motor
Vehicle Anti Theft Department. They were arrested in the present
crime on 12th November 2010 and the TIP was conducted on 15 th
December 2010. Thus, according to Mr. Gharat, there was no
unreasonable delay in conducting the TIP. Moreover, he submits that
PW/1 has attributed specific roles to the Appellants. So also, the
witness has identified the Appellants as accused before the Court,
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which is, the substantive evidence. He thus submits that even for the
sake of arguments, if the TIP was ignored, the testimony of PW/1 is of
sterile quality and there is no reason to disbelieve the same.
7. Mr. Gharat took us through the procedure laid down for
conduct of TIP, which is prescribed in the Criminal Manual. On this
aspect this witness deposed as under:
“6. I received a letter from police on 14.12.2010 and by
the said letter I was called in a Arthur road jail on
15.12.2010 for the purpose of identification parade.
Accordingly, I had gone in the Arthur Road jail on
15.12.2010. I was told by one of the policeman
belonging to the crime branch to go inside and identify
the person who made assault on me. When I went inside
saw that there were two rows having seven persons, each
in the row. I identified the persons who had fired on me
and he was standing in between persons at number 3 & 4
in the first row. I also identified the person who was
firing at the time of occurrence and standing in between
person at number 2 & 3 in the second row. He had fired
on Shakil Modak and Irfan Qureshi. The persons to
whom I identified in the first row and had made assault
on me was Mohd. Ali Jan Mohd. Shaikh. The person to
whom I identified and standing in the second row was
Pranay Rane. The Nayab Tahsildar told me the name ofShivgan 10/23
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1–apeal-559-2022.doctwo persons to whom I identified. I can identify Mohd.
Ali Jan Mohd. Shaikh and Pranay Rane, if shown to me.
(The witness pointed his finder towards accused Mohd.
Ali Jan Mohd. Shaikh and Pranay Rane are present in
court). Again my statement was recorded in the office of
Crime Branch on the day of identification parade.”
The sequence narrated by PW/1 of conducting the TIP is in
consonance with the prescribed procedure. We thus have no reason to
disbelieve the testimony of the eye witness PW/1. He has clearly
identified the Appellants in the TIP as well as before the Court. PW/21
one, Nandkishor Deoo Palav, the Executive Magistrate (Retd) also
deposed regarding the procedure that was followed while conducting
the TIP. He stated that he took all the necessary precaution to ensure
that the witnesses do not come in contact with each other after the
first TIP. His testimony also remained intact on the cross-examination.
8. The law on the point in respect of value attached to the
testimony of an injured witness is settled. Such testimony is accorded a
special status in law. This is, as a consequence of the fact that, injury to
the witness is an inbuilt guarantee of his presence at the scene of the
crime and because the witness will not want to let his actual assailant
go unpunished, merely to falsely implicate a third party for the
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commission of the offence. Hence, the Apex Court in a series of its
decisions has held that the deposition of an injured witness should be
relied upon unless, there are strong grounds for rejection of his
evidence on the basis of major contradictions and discrepancies
therein. In State of UP v. Kishan Chand1, a similar view was reiterated
observing that, the witness sustaining injuries at the time and place of
occurrence, lends support to his testimony that he was present during
the occurrence.
9. In the case of Abdul Sayed v. State of Madhya Pradesh2,
the Supreme Court while discussing the value to be attached to the
testimony of an injured eye witness also affirmed this view and held
that the testimony of an eye witness should be viewed from broad
angles. It should not be weighed in golden scales but with cogent
standards. If an eye witness reproduces the incident in the same
sequence as it registered in his mind, the testimony cannot be doubted
as artificial on that core alone. Thus, Mohamed Asif Khan, the eye
witness has given a graphic description of the entire incident. His
presence on the spot cannot be doubted as he was injured in the
incident. His deposition must be given due weightage and cannot be
1 (2004) 7 SCC 629
2 (2010) INSC 608
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brushed aside merely on the ground that either he ran away from the
spot as he received injuries or the TIP was allegedly delayed.
10. Mr. Sejpal also pointed to testimony of the 2 nd witness,
PW/7-Gangubai Sonawane, who was also injured in the melee to say
that although she was injured, she failed to identify the Appellants.
However, this does not negate the testimony of PW/1 as PW/7 has
deposed that upon being hit by the bullet, she became unconscious
and fell down. However, she reiterates that she was present and
suffered a bullet injury due to firing.
11. There is another eye witness namely, PW/13, one Shahabaz
Abdul Rehman, who was also present at the time of the incident. He
suffered no injuries and identified the Appellants, who fired at the
deceased. He also deposed regarding being called for identification of
the accused (TIP) and he also identified the accused in the Court. The
defence has not seriously doubted the presence of PW/13 but only
disputes the identification made by him on the ground that he did not
identify the Appellants by name in the TIP. In fact, he stated that he
took the deceased to the hospital. The attempt made by the defence to
suggest that he never participated in the TIP nor identified any person
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has failed, as PW/13 remained consistent in his testimony. In fact, a
perusal of the cross-examination indicates that there was no
substantial challenge to the testimony of PW/13 regarding the
identification of the Appellants and he has remained consistent with
the statement given to the police.
12. PW/22 is another eye witness namely, Shakil Ismail
Qureshi. He deposed that he had gone to a shop behind a mosque in
Phool Galli on 13.02.2010. There he saw three to four persons firing
at unknown persons. Thereafter, the police recorded his statement. He
was called for the TIP. He identified the Appellants during TIP as well
as in the Court. Mr. Sejpal tried to assail his testimony that it was
only on the next day of the incident, pursuant to advice from his
employer, that PW/22 went to the police station to give his statement.
In fact, the clarification brought out in the cross examination of this
witness itself corroborates his version in his chief examination. His
explanation clearly brings out that he may have been apprehensive to
go to the police directly and involve himself with a police matter as
earlier he used to sell stolen articles to his employer Ashfaq, which
were later sold in Chor Bazaar. But the witness was quick to say that
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on the advice of his employer, he promptly went to the police the very
next day and reported the incident as he witnessed it. It is thus, quite
believable that a person witnessing an incident such as firing on the
streets by three-four persons, is likely to be shocked and rattled
enough that he does not go to the Police Station immediately,
especially with an earlier background of selling stolen articles. There is
also a fear in an ordinary person to go to the police and record his
statement lest the police involve him in a long drawn investigation.
However this witness identified the Appellants. He also identified the
Appellants in the Court. There is nothing on record to show why this
witness would falsely implicate the accused. The delay in informing
the police is not so long as to disbelieve his testimony. In fact, on the
very next day, PW/22 visited the Police Station and recorded his
statement. Nothing fruitful was elicited from his cross examination.
13. Prosecution also placed reliance on recovery of weapon
pursuant to the statement of Appellant No.2. To corroborate this, the
prosecution examined the panchas in whose presence the discovery
was made. PW/16 one, Manik Kapoorchand Raja has deposed that the
Appellant No.2 stated in his presence that he would show the place
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where he had kept the weapon. He proved the disclosure panchanama
and its contents. He also identified the Appellants in the Court. He
stated that the 2nd Appellant took both the pancha witnesses to a house
where the parents of the Appellants opened the door. Thereupon, the
2nd Appellant produced the revolver and four live cartridges from one
plastic bag from an iron cupboard in the house.
14. Mr. Sejpal attempted to demolish this testimony of PW/16
by saying that the house from which the weapon and the cartridges
were recovered belonged to a friend of the Appellants and thus, the
persons opening the door were not his parents. To this, PW/16 has
specifically replied that he had referred to the persons as parents of
the Appellants as he did not know that the house belonged to his
friend and not parents. However, PW/16 identified the revolver, as
was seized and sealed in his presence.
15. PW/18 namely, Dr. Bhalchandra Gopinath Chikhalkar
deposed as to the injuries suffered by the deceased. He conducted the
post-mortem and affirmed that the death was on account of fire arm
wounds. He also stated regarding recovery of bullets from the body of
the deceased. The bullet was thereafter sent for forensic analysis. The
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Doctor also opined that the bullet might have been fired at the victim
from the distance of 100 cm and injuries found on the body can be
associated with the victim sitting and the assailant being in standing
position. The defence was unable to contradict the testimony of
PW/18. His testimony also corroborated the eye witnesses testimony
regarding the victims sitting on the chairs and the injuries caused by
bullets fired from a revolver. The Doctor identified the post-mortem
report and the bullets which were sent for forensic analysis.
16. PW/23, API Mukund Vasudeo Gorhe, is the Investigating
Officer. He deposed as to the investigation done by him and the spot
panchanama. He stated that all the articles seized from the spot were
sealed with his signature as well as the panchas. They were deposited
in muddemal room of the police station. He identified the bullets from
the sealed bottle and the label on the bottle. There is nothing to
suggest that this witness deposed falsely.
17. PW/25, Dr. Mohamed Aarif Rashamwala testified to the
treatment given by him to the First Informant. He affirmed that one
bullet was extracted from the chest of PW/1 and he was discharged on
12th March 2010. He also corroborated the testimony of PW/1
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regarding that he was completely conscious when he gave statement to
the police.
18. Mr. Gharat drew our attention to the CA examination
reports at Exhibits 149 to 157 and Exhibit 207. Exhibit 149 is an
application made by the prosecution for marking the CA reports as
Exhibits under the provisions of Section 293 of the Cr. P. C. and also
for marking of the corresponding articles. Mr. Gharat particularly
pointed out that the defence took no objection for marking the CA
Reports as Exhibits. The Application below Exhibit 149 was partly
allowed and the CA Reports were placed on record and accordingly,
exhibited as Exhibits 150 to 157. According to Mr. Sejpal, the CA
Report at Exhibit 207 was however, not included in the documents,
which were allowed to be exhibited in view of the provisions of
Section 293 of the Cr.P.C. Exhibit 207 is the FSL Report pertaining to
the matching of the bullets with the .38 revolver recovered pursuant
to the disclosure statement made by the 2 nd Appellant. The said Report
clearly states that on comparison, the bullets from the body of the
deceased and PW/1 injured witness match with the revolver recovered
at the behest of the Appellant No.2.
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19. Mr. Sejpal contended that the CA Report at Exhibit 207
was not proved by calling the Forensic Expert to testify. According to
him, this report is not proved and could not have been exhibited. The
application below Exhibit 149 made by the prosecution was only
relating to CA Reports marked at Exhibits 150-157. It was only to the
exhibition of these documents that the defence did not take any
objection. Hence, the CA Report at Exhibit 207 regarding matching of
the recovered revolver with bullets is not proved and cannot be read
in evidence.
20. Section 293 of the Cr.P.C. provides that any document
purporting to be a report under the hand of a Government scientific
expert to whom this Section applies, upon any matter or thing duly
submitted to him for examination or analysis and report in the course
of any proceeding under this Code, may be used as a evidence in any
inquiry, trial or other proceeding under the Code. Sub-clause (2) vests
power in the Court to summon and examine any such expert as to the
subject matter of his report, if it thinks fit. This Section applies to any
Chemical Examiner or Director, etc. of a Central or State Forensic
Science Laboratory. Admittedly, the Court has not summoned any such
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expert who has given the said report at Exhibit 207. However, there is
also nothing on record to indicate that the defence ever objected to
exhibiting of said document. No doubt that the manner in which the
CA Report ideally ought to have been proved through the author of
the said report who has analyzed the articles. However, this by itself
would not turn the case on its head, considering the provision of
Section 293 of the Cr.P.C. Had the defence seriously wanted to contest
the said Report, it was imperative on its part to express its objections
during the trial on the basis of which the Court would have exercised
its power under Sub-clause (2) and called the expert to depose as to its
credibility. Having failed to take any objection in the trial, it is well
within the power of the Court to exhibit the said Report given under
the signature of the Assistant Chemical Analyzer to the Government of
Maharashtra.
21. In this regard, Mr. Gharat canvassed a further case that
without prejudice to his argument of application of Section 293 of the
Cr.P.C., in fact, this document has also been proved by the
Investigating Officer, i.e. PW/28 in his deposition. This witness has
testified that upon recovery of that weapon, he wrote the letter to the
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FSL to verify if the said weapon was used in the present crime.
Furthermore, he specifically denied the suggestion given to him in the
cross-examination that the fire arms recovered and seized from the
discharged accused were planted on the 2 nd Respondent. Mr. Gharat
also pointed to the statements of the accused recorded under Section
313 of the Cr.P.C. and contended that the accused did not offer any
explanation in this regard despite having opportunity to do so.
Similarly, no such argument was raised before the trial Court
regarding the admissibility of the CA Report.
22. Mr. Sejpal has placed reliance on various decisions of the
Supreme Court and this Court on the legal aspects pertaining to
omissions in testimony of eye witnesses, provisions relating to
discovery under Section 27 of the Indian Evidence Act, 1872 etc. We
have perused the said judgments. We agree with the legal propositions
in the said decisions cited. However, the same are not applicable to
the facts in the present case.
23. The present case thus, primarily hinges on the testimony
of four eye witnesses. Although the prosecution has fairly succeeded in
establishing the guilt of the Appellants beyond reasonable doubt on
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the basis of the recovery of the weapon, evidence of the medical
Doctor, panchas, and the Investigating Officer, it is settled position of
law that conviction can be based on the testimony of a single eye
witness and there is no rule of law or evidence which says to the
contrary, provided that the said witness passes the test of reliability. It
is only when the Court finds that the eye witness is a wholly unreliable
witness that his testimony is discarded in toto and no amount of
corroboration can cure that defect. In the present case, there are four
eye witnesses. Even if the testimony of PW/7, who became
unconscious when she received bullet injury is discarded, the other
three eye witnesses inspire confidence.
24. In view of the aforesaid discussion, we find that the
judgment and order impugned herein is a well reasoned and legally sound
decision. The evidence on record, when assessed in its entirety establishes
the guilt of the Appellants beyond reasonable doubt. The observations of
the trial Court regarding reliability of the eye witnesses testimony, the
corroborative evidence, etc are compelling and do not warrant any
interference. Prosecution has established its case beyond all reasonable
doubt against the appellants herein based on legal, admissible and
Shivgan 22/23
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1–apeal-559-2022.doc
cogent evidence.
25. In view of the reasons stated above, the present Appeal
fails and is accordingly, dismissed. The conviction and sentence
awarded to the Appellants for the offences as stated aforesaid stands
confirmed.
(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2025.04.15
17:42:42
+0530Shivgan 23/23
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