1. cri apeal 385-14 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 385 OF 2014
Kalim Ashraf Mohd. Ahmed Ansari @ ]
Builder ]
Age - 33 Years, Muslim, Indian Inhabitant, ]
Residing at House No. 361/1, Power Loom ]
Factory of Jahid Sheth, Bardi Compound, ]
Panjarpol, Bhiwandi, Dist. Thane. ]
Native Place : Firindipur, Gosithana, ]
Dist. Mau, Uttar Pradesh. ]
At present lodged in Kolhapur Central ]
Prison, Kalamba. ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
[Through Nizampur Police Station in ]
C.R. No. 168/2008.] ] Respondent
• Ms. Rohini M. Dandekar, Advocate (appointed) for
the Appellant
• Mr. Arfan Sait, APP for the State
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : NOVEMBER 9 & 10, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused against the judgment and order dated 21.6.2013 jfoanz vkacsjdj 1 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc passed by the learned District Judge-2 & learned Additional Sessions Judge, Thane in Sessions Case No. 441 of 2008. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:-
Convicted Sentenced to
u/S
302 Rigorous Imprisonment for life and fine of Rs. 5,000/- in
IPC default, R.I. for 3 months.
376 R.I. for 10 Years and fine of Rs. 5,000/-, in default, R.I. for 3
IPC months.
366A R.I. for 3 Years and fine of Rs. 3,000/-, in default, R.I. for 2
IPC months.
201 R.I. for 3 years and fine of Rs. 3,000/-, in default, R.I. for 2
IPC months.
The learned Sessions Judge directed that all the sentences shall run concurrently.
2. The prosecution case briefly stated, is as under:
(a) The victim girl was five years old at the time of the incident. She was the daughter of PW 1 Mohammad Irsal and PW 2 Rukhsana. Mohammad Irsal and his wife Rukhsana along with their sons and daughters one of which was the victim girl jfoanz vkacsjdj 2 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc were residing at Panjarpol, Nizampura, Bhiwandi. Mohammad Irsal was working in powerloom factory at Nagaon.
(b) On 20.8.2008, the victim girl was playing near her house at about 11.00 a.m., however, after sometime, PW 2 Rukhsana noticed that her daughter was missing. Rukhsana searched for her daughter, however, her daughter could not be traced. Rukhsana then telephoned her husband i.e PW 1 Mohammad Irsal and told him that their daughter was missing. Rukhsana asked her husband to come home. Accordingly, Mohammad Irsal came home and searched for his daughter, however, he could not find his daughter.
Therefore, he went to Nizampura Police Station and lodged missing complaint at about 6.20 p.m. The said missing complaint is at Exh. 28. Along with the missing complaint, the photograph of the jfoanz vkacsjdj 3 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc victim girl was attached.
(c) The appellant was one of the four workers working in the powerloom factory of PW 6 Mohammad Jahir Shaikh. PW 5 Gayasuddin was also working in the very same powerloom factory. The appellant used to stay in the factory of PW 6 Mohammad Jahir Shaikh and also sleep there. PW 6 Mohammad Jahir Shaikh and PW 5 Gayasuddin had seen the appellant playing with the victim girl near their factory on 20.8.2008.
(d) On 22.8.2008, PW 5 Gayasuddin went for his duty to the powerloom factory at 4.00 pm. Being a Friday, there was a power cut, hence, the duty started at 4.00 p.m. Whey he reached the factory, he saw the appellant in the factory. While PW 5 Gayasuddin was doing the work, at about 5.15 p.m., on account of severe heat in the jfoanz vkacsjdj 4 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc factory, one of the workers in the factory opened the door of one room in the factory. As soon as the door was opened, a bad odour came from the said room. At that time, Arif Shaikh - one of the workers in the factory thought that some animal like a cat may have died in the said room as previously also one cat had died there. Arif Shaikh went inside the room to see if anything had died in the room. Arif Shaikh came out of the room and told that there is dead body of a girl with whom the appellant was playing earlier. Arif Shaikh told PW 5 Gayasuddin to wait and he would call their employer. After the arrival of their employer i.e PW 6 Shaikh, PW 5 Gayasuddin along with Arif Shaikh and PW 6 Shaikh went inside the room and they saw the dead body of small girl lying in the said room. At that time, the appellant did not come inside the room and he left the factory and went away. Someone informed PW 1 jfoanz vkacsjdj 5 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc Mohammad Irsal, the father of the victim girl and he was told to come to the powerloom factory of Sheth, hence, PW 1 Mohammad Irsal went to the spot. On going inside the factory, in one corner of the room, he saw the dead body of his daughter lying hidden under a cement sheet. The body of his daughter was completely swollen and half naked and there was nylon rope tied around her neck. PW 1 Mohammad Irsal then lodged FIR Exh.
29. 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.
3. Charge came to be framed against the appellant - original accused under Sections 302, 366A, 376 and 201 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced jfoanz vkacsjdj 6 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant and the learned APP 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 Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant kidnapped the victim girl and committed rape on her and thereafter murdered her and to cause disappearance of the evidence, he hid the dead body under the cement sheet in the factory.
5. There is no eye witness in the present case and the case is entirely based on the circumstantial evidence. The circumstances are:-
i. Last seen;
jfoanz vkacsjdj 7 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc ii. The appellant had access to the place where the incident took place;
iii. Conduct of the accused;
iv. Recovery of the clothes of the deceased at the instance of the appellant.
The victim girl was 5 years of age at the time of the incident. This is seen from the evidence of PW 2 Rukhsana who was the mother of the victim girl. Rukhsana has stated that her daughter was 5 years of age. On 20.8.2008, her daughter was playing near their house at about 11.00 a.m. After sometime, Rukhsana noticed that her daughter was missing. Rukhsana searched for her daughter but she could not trace her daughter. She then telephoned her husband and told him that their daughter was missing and asked him to come home. Accordingly, her husband came home and started searching for their daughter. However, as their daughter could not be traced, her husband went to Nizampura Police Station and lodged a missing complaint.
jfoanz vkacsjdj 8 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc
6. PW 1 Mohammad Irsal was the father of the victim girl. He has stated that on 20.8.2008, when he was working in his powerloom factory, he came to know that his daughter who was playing near their house was missing. He, therefore, went home and searched for his daughter. However, as his daughter could not be traced, he lodged a missing complaint in Nizampura Police Station. The said complaint is at Exh.
28. Mohammad Irsal has further stated that on 22.8.2008, he received a phone call from some unknown person who asked him to come to Panjarpol Mohalla. Accordingly, he went inside the powerloom factory of Jahid Sheth. He went in one room of the factory. In one corner of the room, he saw a dead body hidden by a cement sheet. When he went near the dead body, he identified the dead body to be that of his daughter. The dead body was completely swollen, was in half naked condition and nylon rope was found tied around the neck of the dead body. PW 1 Mohammad Irsal then went to the police station and lodged the FIR Exh. 29.
jfoanz vkacsjdj 9 of 21
::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc
7. The dead body was sent for postmortem. PW 9 Dr.
Jayashree Mhaske conducted the postmortem on the dead body of the deceased girl. She found tongue and eyeballs had protruded out. On examination of the private part of the dead body, Dr. Jayashree Mhaske found that there was laceration on majora and labia minora about 2 x 1 c.m., hymen was torn, edges ragged at 6 o'clock position and perineum showed laceration 1 degree. Dr. Jayashree Mhaske found ligature mark encircling the neck near thyroid cartilage. On internal examination, Dr. Jayashree Mhaske found fracture of tracheal ring No. T2 and T3. According to Dr. Jayashree Mhaske, the age of the injury was within 1 hour of death. In the opinion of Dr. Jayashree Mhaske, the cause of death was due to cardio respiratory failure due to asphyxia due to strangulation with rape. The medical evidence and the condition the dead body was found in clearly show that it is a case of homicidal death.
jfoanz vkacsjdj 10 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc
8. To connect the appellant with the incident, reliance is placed on the evidence of PW 5 Gayasuddin and PW 6 Mohammad Jahir Shaikh.
PW 5 Gayasuddin has stated that he was working in powerloom factory of Mujahid Sheth. In the year 2008, there were four other workers working in the said powerloom factory i.e Arif, Naushad, Babu and the appellant. The appellant was working on kandi machine in the powerloom factory. PW 5 Gayasuddin has stated that the appellant used to reside in the factory itself. The appellant was having the key of the factory and he used to open and close the factory with the said key. Gayasuddin has stated that on 20.8.2008, he had gone to the factory in the morning. When he reached the factory, he saw the appellant outside the factory. He asked the appellant whether Sheth had come. Thereupon, the appellant replied that Sheth will not come till afternoon. At that time, Gayasuddin noticed that one small girl along with the appellant and the appellant was playing with her. Thereafter, Gayasuddin went back and again returned for jfoanz vkacsjdj 11 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc duty at about 1.00 p.m. On the next day also, Gayasuddin went to the factory for work as usual. On 22.8.2008, the duty started at 4.00 p.m. as there was power cut on Friday. When Gayasuddin reached the factory, he saw that Mujahid Sheth, Arif Shaikh and the appellant were in the factory. Mujahid Sheth allotted work to Gayasuddin to be done for that day. At about 5.15 p.m., due to severe heat in the factory, Arif Shaikh opened the door of one room in the factory. As soon as the door was opened, a bad odour came from the said room. Arif Shaikh thought that some animal like a cat may have died in the said room as previously also, one cat had died there. Arif Shaikh then went inside the room to see if any dead cat was there in the room. Arif then came out and told that there is a dead body of the girl with whom the appellant was seen playing previously. Arif Shaikh then told Gayasuddin to wait and that he will call Sheth. On arrival of Sheth, Gayasuddin along with Arif Shaikh and Sheth went inside the room. At that time, they saw the dead body of a small girl lying in the jfoanz vkacsjdj 12 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc room. Sheth then instructed them to close the factory and to stay there only, however, the appellant went away. Within a short time, police arrived at the spot. From the evidence of PW 5 Gayasuddin, what is important to note is that Gayasuddin has stated that the dead body was of the same girl who was seen playing with the appellant on 20.8.2008
9. PW 6 Mohammad Jahir has stated that he was working in powerloom factory. In the said factory, there were 12 powerlooms and two kandi machines. In the year 2008,there were four powerloom workers including Arif Ansari, Gayasuddin Ansari, Naushad Ansari and Babu Ansari. Out of these workers, Babu Ansari had gone to his native place since 5-6 days prior to the incident. Mohammad Jahir has stated that the appellant was kandi machine operator in the powerloom factory. The appellant used to stay in the factory itself and also used to sleep in the said powerloom factory. During the period from 18.8.2008 to 24.8.2008, there was power cut from 7.00 a.m. till 1.00 p.m. When there was a jfoanz vkacsjdj 13 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc power cut, Mohammad Jahir used to come to the factory at 11.00 a.m. Mohammad Jahir has stated that during the period from 18.8.2008 to 24.8.2008, the appellant had keys of the factory.
PW 6 Mohammad Jahir has further stated that on 22.8.2008, he reached the factory at about 3.30 p.m. He found lock on the entrance door. Therefore, he waited for about 10 minutes. Thereafter, the appellant came there and opened the door. Arif and Gayasuddin also came there. Mohammad Jahir then allotted duties to Arif and Gayasuddin and they started the powerloom. Mohammad Jahir then went away from the factory and he was sitting at a little distance away near the STD booth. At that time, Arif came running towards him and informed him that since a strong bad odour was coming from the room on the backside of the factory, he had opened the door and found a dead body of a small girl inside the room. Therefore, PW 6 Mohammad Jahir immediately went to the factory and went inside the room. He found a dead body of a small girl whose neck was tied jfoanz vkacsjdj 14 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc with a rope. He instructed the factory to be locked and came out of the factory. He then requested one Shabbir to make a phone call to the police. After sometime, the police came to the factory. The evidence of PW 6 Mohammad Jahir shows that on the day the victim girl went missing i.e 20.8.2008, at about 10.30 a.m., the victim girl was seen by him playing with the appellant near the factory. PW 6 Mohammad Jahir has identified the dead body found in the factory to be that of the same girl who was seen playing with the appellant on 20.8.2008.
10. Thus, the evidence of PW 5 Gayasuddin and PW 6 Mohammad Jahir shows that the deceased girl was last seen with the appellant. The evidence of PW 2 Rukhsana who is the mother of the victim girl shows that her daughter was playing near their house, however, at about 11 a.m., she found that her daughter was missing. The evidence of PW 6 Mohammad Jahir shows that the deceased girl was seen playing with the appellant at 10.30 a.m. The evidence of PW jfoanz vkacsjdj 15 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc 5 Gayasuddin shows that he had seen the girl whose dead body was found in the factory playing with the appellant in the morning of 20.8.2008. As stated earlier, the evidence of Mohammad Jahir shows that he had seen the deceased girl playing with the appellant on 20.8.2008 at 10.30 a.m. and the evidence PW 2 Rukhsana, the mother of the deceased girl shows that the deceased girl went missing on 20.8.2008 at 11 a.m. Thereafter, the deceased girl was not seen alive and her dead body was found in the factory where the appellant was working.
11. The evidence of PW 5 Gayasuddin and PW 6 Mohammad Jahir shows that the appellant was in full control of the factory which is seen from the fact that he had the keys of the powerloom factory and he used to open and close the factory with the said keys. The evidence of PW 5 Gayasuddin and PW 6 Mohammad Jahir shows that the appellant used to reside in the factory and he used to sleep there. In addition, the evidence of PW 10 Nasruddin shows jfoanz vkacsjdj 16 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc that the keys of the factory was kept with the appellant. Thus, it is seen that the appellant was the only person who had the keys of the powerloom factory where the dead body of the deceased was found and he used to reside in the said factory. This shows that the appellant was the only person who had access to all parts of the factory premises including the place where the powerloom and kandi machines were installed and the other rooms of the factory, including the room where the dead body was found.
12. The evidence of PW 5 Gayasuddin and PW 6 Mohammad Jahir shows that the appellant was last seen with the deceased girl at about 10.30 a.m. on 20.8.2008. From 11.00 a.m., the victim girl was not to be seen. The dead body of the victim girl was found in the factory where the appellant was not only working but he was also residing. On account of power cut, work used to start at 1 p.m. in the powerloom factory. The appellant had keys of the factory and he used to open and close the factory. This shows that jfoanz vkacsjdj 17 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc the appellant had full access to the factory premises. The circumstances brought on record show that at 11 a.m. on 20.8.2008, the appellant had every opportunity to bring the victim girl in the factory, thereafter, rape her and hide her dead body in the room meant as a store room in the factory.
13. In addition to the above, we would like to point out the conduct of the appellant. The evidence of PW 5 Gayasuddin shows that on 22.8.2008 at about 5.15 p.m., due to severe heat in the factory, one Arif Shaikh opened the door of one room in the factory. A bad odour came from the said room. Arif Shaikh then went inside the room to see if any dead cat etc. was there in the room. Arif Shaikh came out and told that there is a dead body of a girl in the room with whom the appellant was seen playing previously. Arif then asked Gayasuddin to wait and he will call Sheth. Gayasuddin along with Arif and Sheth went inside the room and they saw the dead body of the girl lying in the room. It is pertinent to note that the appellant did not come inside the room but the jfoanz vkacsjdj 18 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc appellant immediately went away from the said factory.
14. The evidence of PW 6 Mohammad Jahir shows that he was sitting near STD booth near his factory. At that time, Arif came running towards him and informed him that since a strong bad odour was coming from the room on the backside of the factory, they had opened the door and found the dead body of a small girl inside the room. Mohammad Jahir immediately went to the factory and went inside the room. He found the dead body of a small girl whose neck was tied with the rope. He instructed the factory to be locked. He instructed Arif to stay outside till Mohammad Jahir brings the police. Mohammad Jahir has stated that when he had gone to see the dead body, the appellant thereafter disappeared and he was not seen in the factory.
15. The appellant came to be arrested on 22.8.2008 at about 10.30 p.m. Though the appellant was in charge of the factory in the sense that he had keys of the factory and he jfoanz vkacsjdj 19 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc used to open and close the factory, as soon as the appellant heard that the dead body was found in the factory,he did not enter in the factory and disappeared from the spot. If the appellant was innocent, the natural conduct of the appellant would be that out of curiosity, he would have entered into the room where the dead body was found. However, the appellant did not do so and he immediately left the factory and went away and he came to be arrested in the night. Thus, the conduct of the appellant is most unnatural and it points out to his mens rea.
16. The next circumstance against the appellant is that the underwear of the victim girl was recovered at his instance. PW 4 panch witness Faizan has stated that in his presence, the appellant stated that he would show the place where he had kept the underwear of the deceased and he will produce the same. The appellant led the police and panchas to the place where the underwear (Article 5) of the victim girl was kept and he produced the same. That the underwear jfoanz vkacsjdj 20 of 21 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::
1. cri apeal 385-14 (j).doc produced by the appellant belonged to the victim girl is brought out through the evidence of PW 2 Rukhsana who was the mother of the victim girl. She has stated that the underwear (Article 5) was worn by her deceased daughter when she went outside to play on 20.2.2008. PW 1 Mohammad Irsal who was the father of the victim girl also identified the underwear (Article 5) as that of his daughter.
17. On going through the circumstances proved by the prosecution, we find that the chain of circumstances is such that it excludes the possibility of anyone else committing the murder of the victim girl. In fact, the circumstances beyond reasonable doubt show that it was the appellant who committed the crime. Thus, we find no merit in the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ SMT. V.K. TAHILRAMANI, J. ]
jfoanz vkacsjdj 21 of 21
::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 11:53:54 :::