Sayyed Firoz Sayyed Ismail vs :
2010 Latest Caselaw 287 Bom

    apeal449.10.odt                                                                                                  1/12


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                               
                                            NAGPUR BENCH : NAGPUR




                                                                                 
                                    CRIMINAL APPEAL NO. 449 OF 2010


    Sayyed Firoz Sayyed Ismail




                                                                                
    aged about 41 years,
    r/o Jurli, Tah. Ghatanji,
    Distt. - Yavatmal.
    (presently in jail)                                    ::                   APPELLANT




                                                               
                      -: Versus :-   
    The State of Maharashtra
                                    
    through Police Station Officer,
    Police Station, Parwa,
    District - Yavatmal.                                   ::               RESPONDENT

    .............................................................................................................................
      


                        Mr. Shashank V. Manohar, Advocate for the appellant.
     Mrs. Sangeeta S. Jachak, Additional Public Prosecutor for the respondent-State.
   



    .............................................................................................................................

                                                           CORAM :   A. H. JOSHI & A. R. JOSHI, JJ.
                                                           DATED :  14th DECEMBER, 2010





    JUDGMENT  (Per A. R. Joshi, J.) 

1. Heard rival submissions. Perused the

reasonings given by the Extra Joint Ad-hoc Additional

Sessions Judge, Pandharkawada (Kelapur) while deciding

Sessions Trial No. 20/2004. Also perused the

substantive evidence of 13 prosecution witnesses and

certain relevant documents including postmortem report

apeal449.10.odt 2/12

and injury certificate of the appellant/accused No.1.

2. Present appellant/accused No.1 faced Sessions

Trial No. 20/2004 along with 2 other co-accused. They

faced the charges punishable under Sections 302, 201,

211, 498-A read with Section 34 of the Indian Penal

Code. By judgment and order dated 23/7/2010 in

Sessions Trial No.20/2004, present appellant/accused

No.1 was convicted for the offence punishable under

Sections302 I.P.C. and was sentenced to suffer

imprisonment for life and to pay fine of Rs.5,000/-,

in default, to suffer simple imprisonment for 6

months. He was also convicted for the offence

punishable under Section 201 I.P.C. and sentenced to

suffer simple imprisonment for 3 years and to pay fine

of Rs.1,000/-, in default, simple imprisonment for 3

months. He was acquitted for the offence punishable

under Sections 211 and 498-A of the Indian Penal Code.

Original accused Nos. 2 and 3 were acquitted of all

the charges.

3. Being aggrieved by the conviction for the

offence punishable under Section 302 and 201 of the

apeal449.10.odt 3/12

Indian Penal Code, present appellant/accused No.1

preferred this appeal. The State of Maharashtra did

not prefer any appeal against acquittal of accused

Nos. 2 and 3 for all the charges and acquittal of

accused No.1 for the charge punishable under Section

211 and 498-A of the Indian Penal Code.

4. Case of the prosecution in nutshell can be

mentioned as under :-

a) Deceased Shamim Bano was married to

the brother of accused No.1 about 6 years

prior to her death which occured on 30/8/2004.

She was residing in joint family in which all

the accused persons i.e. brother in law and

daughter in laws were also residing. She had

two issues. After marriage, for few years,

there was no ill-treatment to her.

Subsequently her husband become mentally ill

and accused No. 1, elder brother of her

husband dominated the family and allegedly

used to harass her and had a bad eye on her.

Allegedly, deceased Shamim Bano used to

narrate to her mother regarding ill treatment

apeal449.10.odt 4/12

and conduct of accused No.1. Minor children of

accused No.3 were also ill-treating the

deceased and raising false allegation on her

chastity.

b) According to the prosecution there was

a motive for appellant/accused No.1 to do away

with Shamim Bano as she was not responding to

sexual advances of appellant however indulged

in illicit relations with one person by name

Ramesh.

c) In the night between 30/8/2004 and

31/8/2004 allegedly there was dacoity at the

house of accused persons when deceased Shamim

Bano was sleeping with other family members on

the first floor of their house. According to

the appellant and other accused persons,

during said incident of dacoity some dacoits

had entered the house forcibly and had

ransacked the articles and stolen certain

valuables. Allegedly during the said incident

some dacoits assaulted the appellant and also

Smt. Shamim Bano while she was sleeping. In

the said assault Shamim Bano received bleeding

apeal449.10.odt 5/12

injuries to her head and apparently died on

the spot.

d) Telephone message was received by

Crime Branch regarding the alleged incident of

dacoity at the house of the appellant and

other accused persons. Police Officers rushed

to the spot and investigation was started,

Khan.

after recording statement of a minor boy Sajid

During investigation, spot panchanama

and inquest panchanama were conducted. Dead

body of Shamim Bano was sent for postmortem.

Suspecting that it is concocted story

developed by the appellant and other co-

accused persons, they were arrested on the

next day. Allegedly at the instance

appellant/accused No.1 a wooden rafter,

allegedly used to kill Shamim Bano, was

recovered under the panchanama. Admittedly,

during the spot panchanama one more similar

wooden rafter was found in the house of the

accused persons. Also according to the

prosecution appellant/accused No.1 made

disclosure statement to produce the cash and

apeal449.10.odt 6/12

certain ornaments and accordingly cash of Rs.

30,000/- and odd and some ornaments/jewellery

was recovered from the same house where the

incident took place. Statement of various

witnesses/neighbours were recorded. Statement

of one Shahida (P.W.-8)-mother of the deceased

was recorded. On completion of investigation,

charge-sheet was filed

committed to the Court of Sessions.

and matter was

5. At this stage, suffice it to show that during

the pendency of the matter a letter was written by

P.W.-8 Shahida-mother of the victim as to no proper

investigation by the police and as such

reinvestigation was directed by the order of the Court

somewhere in the year 2006. In this premise, matter

came up before the trial Court which decided the case

convicting appellant/accused No.1 and acquitting other

co-accused. Two juvenile offenders were separately

tried and acquitted by the concerned Court.

6. Certain admitted factual position is narrated

hereunder to have proper perspective of the matter and

apeal449.10.odt 7/12

to ascertain whether the only circumstance of alleged

recovery of wooden rafter, cash amount and jewelery at

the instance of appellant/accused No.1 is sufficient

to link him with the offences for which he was

convicted :-

              i)            P.W.-2       Smt.         Shobha            Jaiswal,               a




                                         
              neighbour         did      not        support         the         case        of

              prosecution ig       as     to        deceased

narrated her regarding ill-treatment meted out Shamim Bano

to her by the accused and regarding

appellant/accused No.1 making sexual advances

towards her.

ii) P.W.-3 Radhesham Jaiswal, a panch for

the enquest panchanama and for the recovery of

wooden rafter at the instance of

appellant/accused No.1, did not support the

case of prosecution.

iii) P.W.-4 Ashok Yamsanwar, another panch

regarding alleged recovery at the instance of

appellant/accused No.1, did not support the

case of prosecution.

              iv)           P.W.8-Shahedabi Pathan, mother of the

              deceased        did        not        support        the          case        of




     apeal449.10.odt                                                                         8/12




                                                                                        
              prosecution           and       denied        that          her        daughter

              deceased       Shamim          Bano    used      to      tell         her       that




                                                        

appellant/accused No.1 was keeping ill eye on

her. She disowned the theory of the

prosecution as to ill-treatment to Shamim Bano

and the theory of motive for the accused

persons to do away with the victim.

v) ig P.W.-9 Salimkhan Pathan,

the deceased also did not support the case of brother of

prosecution on the aspect of ill-treatment

meted out to Shamim Bano by the accused

persons and as to appellant/accused No.1

insisting her to keep illicit relations with

him and her refusal had angered the appellant.

vi) P.W.-11 Mohd. Javed Gani, a neighbour

did not support the case of prosecution on the

aspect of he witnessing one person by name

Ramesh and deceased Shamim Bano chit-chatting

and as such said witness informing this to the

accused persons.

7. Above mentioned admitted position leads to the

only circumstance which was held by the Sessions Court

apeal449.10.odt 9/12

as against the appellant-accused No.1 and that is

alleged recovery at the instance of the appellant.

Admittedly, it is the only circumstance held against

the appellant/accused No.1 in spite of the hostility

of both the panch witnesses i.e. P.W-3 and P.W.-4. In

our opinion, the Sessions Judge had fallen in an error

in accepting this sole circumstance of alleged

recovery as against the appellant/accused

holding him guilty for the offence punishable under No.1 and

Sections 302 and 201 of the Indian Penal Code.

8. The only circumstance mentioned above can be

discussed in order to ascertain the complicity of the

appellant/accused No.1 in the offences for which he

was held guilty. Admittedly, both the panchas did not

support said recovery of wooden rafter, cash and

ornaments and as such recoveries are doubtful. Still

if such recoveries are accepted, it can hardly be said

that they are incriminating against appellant/accused

No.1 so far as his involvement in the offence of

murder and offence punishable under Section 201 of the

Indian Penal Code. This is more so when there is

nothing brought before the Court by the prosecution as

apeal449.10.odt 10/12

to any of the ornaments were exclusively belonging to

the deceased and they were snatched from her person

and kept hidden in the same house where the dead body

was found.

9. Another glaring mitigating circumstance to the

case of prosecution is that the said wooden rafter was

not sent for chemical analysis and as such there is

nothing to establish that said wooden rafter allegedly

recovered at the instance of the appellant/accused No.

1 was used in the commission of offence. Admittedly,

according to the case of prosecution, one more wooden

rafter was found during the spot panchanama even that

was also not sent for chemical analysis. Further

more, it is an admitted position that out of the said

two alleged wooden rafters, only one wooden rafter was

produced before the trial Court and there was nothing

to substantiate the case of the prosecution that the

wooden rafter which was produced before the Court was

the one recovered at the instance of appellant/accused

No.1.

10. As mentioned above, it must be held that the

apeal449.10.odt 11/12

trial Curt had fallen in an error in accepting the

said circumstance of recovery against the

appellant/accused No.1. Apart from this circumstance

there is nothing proved by the prosecution in order to

establish the motive for the appellant/accused No.1 to

do away with the victim.

11.

Jachak During

strenuously

the arguments

argued learned

that there A.P.P.

is Smt.

grave

suspicion against appellant/accused No.1 to kill the

victim for the reason that she was refusing sexual

advances of the appellant. It is further argued on

behalf of the State that another circumstance as to

only the victim received severe injuries causing her

instatenous death and no other family members

receiving any injury except some head injury to

appellant/accused No.1, is a circumstance to be taken

against the appellant/accused No.1. In the absence of

any material on record, due to hostility of material

witnesses, the argument advanced on behalf of the

State, cannot be accepted. Needless to mention that,

however grave suspicion may arise against the

appellant/accused No.1, it cannot take place of the

apeal449.10.odt 12/12

proof which is required to establish his guilt for the

offence for which he was convicted.

12. In view of the above discussion the present

appeal must succeed and same is according allowed with

the following order:

ORDER

igCriminal appeal is allowed.

(2) Appellant/accused No.1 is acquitted

of the offence punishable under Section 302

and 201 of the Indian Penal Code.

(3) Appellant/accused No.1 shall be

released from the jail custody, if not

required in any other matter.

(4) The fine amount, if any, already paid

by the appellant/accused No.1, shall be

refunded back to him.

                             JUDGE                                 JUDGE




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