Shamshul Yadali Sheikh vs The State Of Maharashtra
2012 Latest Caselaw 404 Bom

PPD

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                                                              APEAL.541-05JUDGMENT.doc




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                     CRIMINAL APPELLATE JURISDICTION




                                                        
                         CRIMINAL APPEAL NO.541 OF 2005
                                [THROUGH JAIL]

      Shamshul Yadali Sheikh,




                                                       
      Aged : 19 yrs.
      R/o. Junglepada, Taluka - Udhwa,
      Dist. Sahebganj (Jharkhand)
      (presently imprisoned as Convicted
      Prisoner at Dhule District Prison,




                                           
      Dhule (Maharashtra).                            ..Appellant
                            ig                        [Orig.Accused]
                Versus
                          
      The State of Maharashtra                        ..Respondent
                                           ....
      Mr. Aniket Vagal, Advocate (appointed) for the appellant.
        


      Mrs. P.P. Bhosale, APP, for the Respondent - State.
     



                                           ....
                              CORAM :   SMT. V. K. TAHILRAMANI, &  
                                         A. R.  JOSHI,  JJ. 

DATE : 29TH NOVEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival submissions on this Criminal Appeal

preferred by appellant/orig.accused challenging the judgment

and order of conviction dated 29th September, 2004 passed by

the IV Adhoc Additional Sessions Judge, Thane in Sessions Case

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No.89 of 2004. Appellant/accused was convicted of the offence

punishable under Section 302 and was sentenced to suffer

imprisonment for life and to pay fine of Rs.5000/-, in default

imprisonment for one year. He was also convicted for the

offence punishable under Section 328 and was sentenced to

suffer RI for two years and fine of Rs.5000/-, in default RI for six

months. He was also convicted for the offence punishable under

Section 201 of IPC and was sentenced to suffer RI for two years

and to pay fine of Rs.5000/- in default RI for six months.

2. The case of prosecution, in nutshell, is as under :-

Complainant PW-2 Abdul Razzak Gulab Shaikh was

originally from native place from Jharkhand came and settled

down in Navi Mumbai and having his business premises at

Crawford Market, Mumbai. His cousin brother victim Harun

Shaikh also came to Mumbai about 14 years prior to the incident

which took place on or about 12th September, 2003 and 13th

September, 2003. Victim was doing the business of selling scents

and other cosmetics. Complainant who was running a business

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of fruit juice business at APMC Market and also has one shop at

Crawford market which was looked after by his son Muzzaphar

Shaikh PW-4. On the night of 12 th September, 2003 victim

Harun, one Attaullah Shaikh who is brother of PW-2 and

Muzzaphar Shaikh (who is son of PW-2) left Crawford Market

area after closure of the business. That time, victim Harun

received a phone call on his mobile No. 9820883407. After

receiving said call, Harun told other persons that he had some

work and he will go home alone. On this, other persons went to

their work. From the next day morning the whereabouts of

victim Harun were not found and the shop of the complainant

could not be opened as the keys were with victim Harun. House

of Harun was visited by Muzzaphar (PW-4). However, he was

not present and two other persons in the house informed that

victim had not come to the house even on the earlier night.

Thereafter the shop was opened by calling the person to prepare

duplicate key. However, the whereabouts of Harun were not

found. Also according to the prosecution, the complainant was

told by the maternal brother of victim and some other people

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that victim was in the company of appellant/accused on the

night of 12.9.2003 at about 11:00 p.m. and that time both had

consumed liquor. On 25.9.2003 also there was no trace of victim

Harun, and as such PW-2 complainant went to MRA Marg Police

Station to lodge complaint. However, as the residence of Harun

was at Shivdi, he was directed to lodge complaint with Dongri

police station and as such a missing report was lodged with

Dongri police station bearing No.37 of 2003.

3. According to prosecution, even on 16.9.2003 there was

no trace of victim Harun, but, on that day enquiries were made

regarding appellant/accused and revealing his address through

one lady by name Haseena resident of Crawford Market, Dongri,

he was taken to Dongri police station. There he was detained for

enquiry. However, on 21.9.2003 he was released from custody as

there was no material available against him as to his

involvement in missing of victim Harun.

4. It is also case of prosecution that on 22.9.2003

according to complainant (PW-2) one boy came to him and

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informed regarding appellant/accused chit-chatting along with

his two other associates i.e. the absconding accused Mahabali

Shaikh and Akbar Shaikh and they were talking about tablets

having stupefying effect. In short, said boy informed the

complainant that appellant/accused has taken in custody those

tablets from co-accused Akbar and crushed them in a powder

and stored it in empty packet of Goa gutkha. According to said

boy, it happened on 12.9.2003 at night and it was told by said

boy to PW-2 on 22.9.2003.

5. Also according to the prosecution, on 24.9.2003

photograph of victim Harun was shown on the TV on Drushti

Channel and it was reported that said unknown person was

found dead near the railway track at Navi Mumbai. Accordingly,

the complainant and his son contacted Turbhe police station and

thereafter identified the dead body of victim Harun in NMMC

hospital, Vashi. According to the case of prosecution, earlier on

13.9.2003 the dead body of victim was found by the side of the

railway track at Navi Mumbai and the matter was enquired into

by Turbhe police after registering of accidental death report.

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Inquest panchnama was conducted. Postmortem on the dead

body was also conducted. Clothes on the person of dead body

were also taken charge of under panchnama. As such, on

knowing that victim Harun Shaikh had died and was last seen

with appellant/accused on the night of 12.9.2003, PW-2 Abdul

Shaikh lodged his complaint with Turbhe police. It was

registered as First Information Report as Exh.8. Investigation

was started. The names of present appellant/accused and his

other two other absconding accused i.e. Mahabali Shaikh and

Akbar Shaikh were revealed. Search was taken for all the three

accused. Mahabali Shaikh and Akbar Shaikh remained

untraceable even till completion of investigation and filing of

chargesheet, and even till completion of the trial against

appellant/accused. Search for accused was conducted - as by

that time he was already released by Dongri police station on

21.9.2003 as there was no material against appellant/accused so

far as his involvement in the missing of Harun. Subsequently

appellant/accused was put under arrest from Pune District on

30.9.2003. He was sent for medical examination as he had

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sustained some injuries and which were sustained by him 4-5

days prior to his medical examination which took place on

1.10.2003 at the hands of Dr. Narayane (PW-8). Also according

to the case of prosecution, on 2.10.2003 alleged memorandum

statement of appellant/accused was recorded under panchnama

and in furtherance of the same allegedly appellant/accused

showed the telephone booth run by PW-10 Ashish Kadam from

where allegedly appellant/accused made a telephone call to

victim Harun on the night of 12.9.2003. Also during

investigation statement of PW-12 Parvej Shaikh was recorded.

According to him, he gave mobile and sim card to victim Harun.

It was the same mobile/sim card number on which victim Harun

received a telephone call on the night of 12.9.2003.

6. On completion of investigation, charge-sheet was filed

against appellant/accused and case was committed to the Court

of Sessions and ended in conviction, as mentioned above.

7. Admittedly, case of the prosecution is entirely based on

circumstantial evidence. The apparent circumstances are as

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under :

[I] According to PW-3 Taimur Shaikh, victim Harun was

seen in the company of appellant/accused on the night of

12.9.2003 and that time victim Harun was under the influence of

liquor.

[II] In the afternoon of 12.9.2003 appellant/accused was

seen in the company of said absconding accused Mahabali

Shaikh and Akbar Shaikh and during that time there was a talk

between Akbar Shaikh and appellant/accused.

Appellant/accused asked Akbar Shaikh regarding some tablets

having stupefying effect. On this, Akbar Shaikh gave some tablet

to appellant/accused which appellant/accused took and crushed

into powder and kept the said powder in his custody and these

events were witnessed by PW-1 Mohammad Shaikh.

[III] Appellant/accused made voluntary statement on

2.10.2003 showing the telephone booth from where he had

made telephone call to victim Harun on the night of 12.9.2003.

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8. It is to be ascertained whether the evidence led before

the trial Court is sufficient to establish the above mentioned

circumstances, and further whether such circumstances are

sufficient to connect the present appellant/accused with the

offence of murder and hiding evidence of murder.

9. So far as the first circumstance is concerned, there is

substantive evidence of PW-3 one Taimur Shaikh. According to

this witness, victim Harun was his cousin brother and on

12.9.2002 he was sleeping at his house at Wadibunder and that

time victim Harun came along with appellant/accused and

introduced appellant/accused as his friend. That time Harun

was under the influence of liquor. According to PW-3 Taimur

Shaikh, victim and appellant/accused met the other relatives

also and PW-3 asked appellant/accused to take Harun to his

house. So far as this circumstance is concerned, it must be

mentioned that initially appellant/accused was taken in custody

by Dongri police station for enquiry in the missing complaint

lodged by PW-2. However on not finding any material against

appellant/accused, he was allowed to go and was released from

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custody. In our considered view, this first circumstance as to last

seen together is not of such a clinching nature so as to only

indicate towards appellant/accused as the author of murder.

10. So far as the second circumstance is concerned,

according to PW-1 he noticed appellant/accused in the company

of other absconding co-accused in that afternoon of 12.9.2003

and all the accused had some discussion and during which

appellant/accused taken charge of tablets from absconding

accused Akbar Shaikh and kept in his custody said tables after

preparing powder. It is significant to note that statement of said

PW-1 was recorded during the investigation only on 29.9.2003

and not prior to that, as such, hardly it can be said that this is an

incriminating circumstance against appellant/accused.

11. So far as the third circumstance is concerned, we have

seen that panch witness PW-7 Shantaram Patil did not support

the case of prosecution so far as alleged memorandum statement

and discovery of place i.e. a telephone booth at the instance of

appellant/accused. On this aspect, another panch PW-9 Krishna

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Hegde was also examined and memorandum statement Exh.30

and discovery panchnama Exh.31 were taken on record.

However, again in our considered view, still if it is considered

that accused had shown the telephone booth to police on

2.10.2003, hardly this circumstance can be said to be so

clinching as against appellant/accused so far as his involvement

in the offence of murder. Even for the same reason, the

substantive evidence of PW-10 Ashish Kadam, operator of the

telephone booth and substantive evidence of PW-12 Parvej

Shaikh the person who gave mobile and sim-card to victim,

cannot be taken as clinching evidence against appellant/accused.

12. So far as the homicidal death of victim Harun is

concerned, there is no doubt regarding the findings in the

postmortem conducted by Dr. Bhushan Jain (PW-5). However,

still the link between appellant/accused and death of the victim

cannot be established, in the absence of any other material other

than the substantive evidence of above referred prosecution

witnesses. As such in our considered view the trial Court had

erred in appreciating the circumstances, as mentioned above, as

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against appellant/accused so as to convict him for the offences

charged.

13. In the result, in our view, the prosecution has failed to

establish the guilt of appellant/accused beyond reasonable doubt

and as such the present appeal is required to be allowed and the

impugned judgment and order is required to be set aside.

Hence, the following order :

:: O R D E R ::

I. Criminal Appeal No.541 of 2005 is allowed.

II. The impugned judgment and order of conviction dated

29.9.2004 passed by the IV Adhoc Additional Sessions

Judge, Thane in Sessions Case No.89 of 2004 is set aside.

The appellant/accused is acquitted of the offence

punishable under Sections 302 read with 34, 328 read with

34 , and 201 read with 34 of Indian Penal Code.

III.The appellant/accused be released from jail custody, if not

required in any other matter.

IV. If fine amount is already paid by the appellant, the same

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shall be refunded back to him;

V. Writ of the order is expedited.

VI.Present order be communicated to the concerned jail

authorities where the appellant/accused is presently

lodged.

(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)

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