Wednesday, March 26, 2014

Witness not expected to recall every minute detail while lodging FIR, Bombay high court rules

The Bombay high court on Tuesday dismissed an appeal filed by Farman Imran Shah, an accused under the stringent law meant to curb organized crime in a Pune murder case registered at Kondhwa police station. The court said it is not expected for a complainant who has just lost her husband to remember every minute detail immediately and held that more details and names can be added in the complaint, once out of trauma. 

Shah had sought a discharge citing lack of evidence, belated adding of his name by the complainant and non application of mind by the authorities who granted prior sanction to prosecute him under the Maharashtra Control of Organised Crime Act (MCOCA). He had challenged an order of the Pune special court passed last March which rejected his discharge plea. 

The case against Shah was that he was involved in the fatal assault conspiracy on Anwar Shaikh in March 2012. At about 10.30pm on March 13 that year, Shaikh and his wife Parvin were in their car when two accused Matin sheikh and Nadir Sayyed, who were on a motorcycle, obstructed their way and other accused encircled their car. One man hurled a stone at a pane on the driver's side, others pulled out Shaikh and assaulted him. He succumbed to his injuries at a hospital. Police after investigation said it was a crime committed by an organized crime syndicate of Mohasin alias Guddu Anwar Shaikh and his associates. Shah was arraigned as accused number 12 in the case in 2012. 

A bench of Justices PV Hardas and AS Gadkari while dismissing Shah's appeal on March 25 observed that, "It cannot be expected from a witness who is under the impact of a ghastly incident to give each and every minute detail when he or she is suffering from the trauma." 

"It is only after the witness comes out of the trauma, that it is possible for him or her to recapitulate the details and give a detailed account'' to the police. 

The HC said, "Non-appearance of a name of an accused while lodging an FIR does not vitiate it, neither can an inference be drawn that such an accused had not participated in the crime at all.'' It rejected Shah's claim that his name was added later in the complaint as an "afterthought'' which indicates he was not involved. The court also found nothing wrong in the prior sanction granted to prosecute him under MCOCA and said the prosecution must be given a chance to lead evidence during trial in the case.

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