Residing At Shivneri Housing ... vs State Of Maharashtra
2012 Latest Caselaw 163 Bom

S

                                   1                                   jud294.06

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION




                                                                             
                   CRIMINAL APPEAL NO.294 OF 2006

     Sultan Noor Mohamad Rana




                                                     
     Residing at Shivneri Housing Society
     R.No.205, 2nd Floor, 95th Road,
     Sion, Dharavi, Mumbai 400 017.          .. Appellant.
           Vs.
     1. State of Maharashtra                 ..




                                                    
     2. Zakia Ansari
     Mangli Kandori Chawl,
     R.No.68, R.S.Nimkar Marg,
     Mumbai 400 008.                         .. Respondents.




                                           
     Mr.Ganesh Gole for the appellant.
                            
     Mrs.V.R.Bhosale APP for the State.
                           
                                 CORAM : V. M. KANADE &
                                         P. D. KODE, JJ.

                                 DATED      : 10TH OCTOBER, 2012
            


     JUDGMENT (PER P.D. KODE, J.)

1. By the present appeal, the appellant has assailed the judgment

and order of conviction passed by learned 1st Adhoc Additional

Sessions Judge, Sewree, Mumbai. By the said judgment and order

the appellant was convicted for commission of offence punishable

under section 302 of Indian Penal Code and was sentenced to suffer

R.I. for life and to pay fine of Rs.1,000/-. The said prosecution has

emerged out of charge sheet filed by Dharavi police station as a

result of investigation of Crime No.541 of 1999 registered with said

police station. The said crime was registered upon first information

lodged by P.W.1 - Zakia Abdul Rehman Ansari, sister of victim Razia,

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who was wife of the appellant.

2. According to the prosecution, about ten years back prior to the

incident which had occurred in between night of 18th and 19th

October, 1999; Razia had married the appellant and was residing

with him at Gopinath Colony, Dharavi, Mumbai. The said couple had

three children out of the said wedlock. According to the prosecution

Razia was residing with P.W.1 alongwith kids as there was no source

of income for the appellant. According to the prosecution the

appellant was tailor and for certain period he had been to Saudi

Arabia and returned back to India sometime before occurrence of

alleged incident. He had developed habit of gambling. There were

quarrels in between the couple on count of said habit of the

appellant.

3. According to the prosecution marriage of one Mansoor Alam

Ansari, cousin of P.W.1 was to be held on 16th October, 1999 at house

of P.W.1. Razia had been to house of P.W.1 since 10th October, 1999.

The appellant used to daily visit house of complainant during said

period. The appellant stayed in said house on 16th October, 1999.

After marriage which was effected on 18.10.1999 the appellant was

insisting Razia to return to the house. However, she was reluctant to

return due to gathering of several relatives at house of her sister.

According to the prosecution ultimately due to insistence of the

appellant, Razia left the said house at about 9 am and at that time

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she was wearing ear rings, gold chain and gold ring belonging to her

mother. On 19th October, 1999 at about 9 am brother of the appellant

informed on telephone that Razia was serious and due to the same

P.W.1 alongwith her mother went to house of the appellant. They

found that Razia was lying naked on a carpet and she was dead.

There was swelling on her face particularly on the left eye, with

tongue out of the lips, blood in her eyes, red and white liquid was

oozing from her mouth and nose and electric wire was also found

lying below head of Razia. P.W.1 made inquiry regarding the

appellant, however, nobody was knowing about him. P.W.1 suspected

of the appellant having committed murder of Razia for gold

ornaments and hence lodged complaint Exhibit-10 narrating the

aforesaid matters. The said complaint was recorded by P.W.10 - PSI

Minakshi Patil. The investigation was carried out by P.W.8 Sr.PI

Madhukar Chavan. During the course of investigation, post mortem

revealed that cause of death of victim was "Asphyxia as a result of

strangulation". The investigating agency was not able to nab the

accused for several years, ultimately, the accused came to be arrested

on 21.4.2004. According to the prosecution the appellant after his

arrest made statement leading to discovery and as sequel to said

statement he led Investigation Officer to Jeweller P.W.6 - Ramesh

Jain at whose shop he had sold gold ring on 20th August, 1999. After

completion of investigation the accused was charge-sheeted as

narrated above and was tried by the Court of Sessions at Sewree.

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4. The prosecution at the trial adduced oral evidence of all

examined ten witnesses and so also relied upon documentary

evidence. The entire prosecution rested upon circumstantial

evidence. The defence of the accused was that of total denial.

Significantly enough the accused during his examination under

section 313 claimed that on 17th October, 1999 some quarrel had

occurred at place of marriage and he had tried to patch up the

matter. He claimed being at said place on 17th October, 1999 and

alone having returned home on 18th October, 1999. He claimed that

at about 8 pm he had been to Bombay Central police station and

purchased tickets of Frontier Mail to go to Meerut and left by

Frontier Mail at 9.10 pm and reached Meerut. He claimed that he

returned to Bombay after about three years and was arrested by the

police in a false case. He claim that he had not committed murder of

his wife. He claimed that his brother Furkhan Ahmed informed him

on phone that Razia was dead.

5. The trial Court accepted evidence of prosecution witnesses and

came to conclusion that the prosecution having established various

circumstances and chain leading to sole inference of guilt of the

appellant. The trial Court amongst other also came to the conclusion

that defence/explanation given by the appellant was false and was

belied by evidence of P.W.6 to whom he had sold ring on 20th August.

In consonance with the finding of guilt of the appellant arrived at,

the trial Court convicted and sentenced the appellant as stated above.

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6. Mr.Ganesh Gole, learned appointed advocate for the appellant

assailed the judgment of the trial Court by urging that though the

appellant has not disputed Razia having met with homicidal death

the other evidence adduced by the prosecution miserably fail to

establish the circumstances as urged by prosecution. It was urged

that in light of fact of Razia having returned to house of the appellant,

said fact itself denotes that the appellant had no motive to commit

murder of his wife. It was urged that merely because there were

quarrel in between Razia and the appellant, it would not be sufficient

enough for leading to inference of the appellant possessing motive

to commit murder of his wife. It was urged that there exists long gap

in between the appellant being in company of Razia and time at

which she was found to be murdered. It was urged that said gap

clearly leads to conclusion that there were several possibilities of

crime in question being committed by somebody else. Learned

counsel for the appellant by meticulously taking through evidence of

P.W.6 urged that evidence of said witness does not inspire confidence

and as a matter of fact the trial Court ought to have rejected the

same. Learned counsel thus urged that after taking into consideration

all circumstances relied by prosecution it does not form formidable

chain leading to inference as wrongly arrived at by the trial Court.

He vehemently contended that the prosecution has not adduced

evidence of any witness of the appellant being nearby the place of

offence. It was urged that since possibility of the crime in question

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being committed by somebody else cannot be ruled out, the appellant

is entitled for acquittal or atleast benefit of doubt.

7. Smt.Bhosale, learned A.P.P. on the contrary supported the

judgment of the trial Court by contending that the trial Court has

correctly assessed the evidence adduced by the prosecution and

came to the conclusion that the prosecution have established that the

appellant had motive to commit the crime in question, had an

opportunity to commit the same, Razia was last seen alive in company

of the appellant and the conduct of the appellant being indicative of

himself being perpetrator of crime. Learned A.P.P. contended that

through evidence of P.W.6 the prosecution has duly established the

nexus of the appellant with the crime in question. It was urged that

considering evidence of P.W.6 in proper perspective the said evidence

also belies so called explanation tried to be canvassed by the

appellant.

8. We have given thoughtful consideration to the submissions

advanced by both the parties and carefully considered record to

appreciate the same. Since there was no eye witness to the crime in

question and the prosecution solely relied upon circumstantial

evidence it would be necessary to ascertain whether the

circumstances relied by the trial Court were found to be duly

established by the prosecution. Before taking said process it will not

be out of place to state that apart from the appellant having not

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disputed Razia having met with homicidal death by admitting post

mortem report at Exhibit-36 revealing cause of death as narrated

earlier even other documentary evidence adduced by the prosecution

in the shape of scene of offence panchnama Exhibit-41 inquest

panchnama Exhibit-31 considered in the light of evidence of P.W.6 in

proper perspective also leads to the conclusion of victim having met

with homicidal death due to herself being strangulated.

9. Now considering the first circumstance of motive and second

circumstance of the appellant having an opportunity to commit the

crime, the glance at the evidence of P.W.5 who had firstly seen dead

body of the victim reveals that he was working in factory of brother

of the appellant i.e. Furkhan. He deposed of the appellant residing by

the side of factory and knowing the appellant as well as victim. The

material part of his evidence reveals that during the days of Dasara

festival and at about 9 am after fetching water he had been to house

of the appellant. He found that son of the appellant was standing at

the door and was weeping and after entering the house he had seen

Razia lying on the bed. He had asked her to get up, when he touched

her body he found that the body was cold. After removing the bed

sheet he saw Razia was naked. He thereafter rushed to Furkhan and

informed him about such condition of Razia and Furkhan informed

about death of Razia to her mother P.W.1. The said evidence duly

establishes that death of Razia had occurred in house of the

appellant and thereafter after receipt of information from Furkhan,

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P.W.1 has set law in motion.

10. Now considering the evidence of P.W.1 we find that she has

deposed more so in consonance with the prosecution tale described in

earlier part of the judgment i.e. as per the matters recorded in the

first information report Exhibit-10. Without unnecessarily enlisting all

matters from her evidence, we find that by said evidence the

prosecution has duly established the fact of Razia coming to the

house of P.W.1, having returned alongwith the appellant due to

insistence of the appellant, the appellant being jobless, himself

addicted to gambling, the appellant insisting Razia for bringing

money from mother of P.W.1, the appellant quarrelling with Razia,

Razia living under tension. Significantly enough his evidence also

discloses of Razia having moved the court and initiated divorce

proceedings against the appellant. The evidence of P.W.1 also reveals

that at the time of leaving house, Razia was wearing ear ring, chain

etc. Further part of her evidence unfolds reason and manner in

which she alongwith her mother went at the house of the appellant

after receipt of information and matters noticed by them.

11. After carefully considering the answers given during cross

examination of P.W.1 we do not find that any material is surfaced on

the record shattering evidence of P.W.1 on any of vital aspects

referred by us in preceding paragraphs. Though certain omissions

regarding the appellant asking Razia to bring money from mother of

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P.W.1 etc. were brought on record from the complaint lodged by P.W.1

we are unable to give any undue importance to the same due to

reason of first information report being not expected to be

encyclopedia containing details of every matter.

12. In the light of aforesaid features from evidence of P.W.1, so also

similar evidence of mother of Razia, P.W.2 Shahaj and sister P.W.4 -

Nabida we are unable to agree with the submissions of learned

counsel for the appellant that the said evidence is not sufficient to

come to conclusion

that the appellant was possessing/having

adequate motive for committing murder of Razia. Though it is true

that there use to always occur quarrels in between the husband and

wife and as such evidence pertaining to quarrel by itself may not be

always sufficient to afford motive for the husband for committing

heinous offence like murder still after considering the evidence of

P.W.1, P.W.2 and P.W.3 the reason and nature of quarrel in between

husband and wife we are unable to accept the said submission

canvassed by learned counsel for the appellant. As a matter of fact, as

said evidence also discloses that Razia had moved the Court for

obtaining divorce against the appellant. Having regard to said aspect

and having due regard to the fact that such aspect would afford

sufficient motive we do not find any substance in the submission

canvassed on behalf of the appellant.

13. Having considered the evidence of P.W.2, mother of Razia and

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so also evidence of P.W.4 another sister of Razia, we find that the

evidence of said witnesses is also on similar lines. Even after close

scrutiny of both the said witnesses we do not find any infirmity in not

accepting the said matters deposed by them. Thus considering

evidence of P.W.1 to P.W.3 it can be safely said that the prosecution

has established relevant circumstance of Razia having last seen alive

in company of the appellant when she had left house of P.W.2, the

appellant was possessing motive and the appellant having

opportunity to commit the crime.

14. Now considering the evidence of P.W.6, by the same the

prosecution has established the fact of the appellant had been to shop

of P.W.6 on 20th October, 1999 and he had sold gold ornaments

weighing 9.150 grams for price of Rs.4,700/-. P.W.6 has also deposed

that police had been to his shop alongwith the appellant on 21.4.2003

and the appellant had been to his shop about three to four years prior

to said date. P.W.6 at time of his evidence brought memo book

maintained in his shop in the year 1990. After looking to item at serial

no.85 he deposed the date on which the appellant had been to his

shop and the transaction in question had taken place. He has also

produced xerox copies Exhibit-35 of the said memo book. He has also

vouched for his signature and signature of the appellant upon the

said memo.

15. Learned counsel for the appellant while referring the answers

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given by P.W.6 during cross examination, urged that his evidence is

not at all convincing and he is got up witness. In the said context it

was pointed out that the book produced was not containing other

transaction for the month of October 1999 and it was also pointed

out that said answers indicate that said book was not bearing date of

commencement since which transactions were entered in the said

book. In the same context learned counsel for the appellant also

drew our attention to the answers given by the appellant during his

examination under section 313 that police had obtained his

signature upon the said memo by using carbon paper. It was also

contended that entire prosecution evidence regarding occurrence of

such events that the appellant leading police to shop of P.W.6 rests

upon evidence of P.W.6 and the Investigating Officer - P.W.10. It was

urged that no independent witness was examined by the prosecution

in support of the said evidence. The said submissions were rightly

refuted by learned A.P.P. by pointing out that the prosecution was not

able to examine first panch due to himself being dead and second

panch due to himself being not traceable.

16. After carefully considering evidence of P.W.1 and P.W.6 and

considering the evidence in entirety we do not find any other

circumstance surfaced on record for doubting said evidence. Having

regard to the same and evidence of Investigating Officer - P.W.10

being not liable to be rejected only on ground of himself being

Investigating Officer and the said evidence is duly corroborated by

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evidence of P.W.6 we are unable to agree that P.W.6 is got up witness

as tried to be canvassed. Indeed, it is true that P.W.6 during the cross

examination admitted that he was knowing the complainant. On the

basis of said admission, mountain was tried to be made out of mole by

stating that due to said reason he has given false evidence against the

appellant. We are unable to accept said submission, On the contrary

acceptance of the said fact on the part of P.W.6, gives ring of truth to

his evidence. Needless to add that due to acquaintance of P.W.1 with

P.W.6, we feel the appellant having approached P.W.6 for selling said

ring does not appear to be unusual feature as tried to be canvassed.

Needless to add that goldsmiths would be reluctant to purchase items

from unknown customer.

17. In the context of evidence of P.W.6 we also find force in the

submission of learned A.P.P. that same belies explanation given by

the appellant of himself having left Bombay by Frontier Mail on

18.10.1999. At the cost of repetition it can be added that as observed

earlier evidence of P.W.6 reveals that he has not given said date by

memory but on the basis of memorandum of transaction prepared by

him i.e. transaction entered in Exhibit-35. The said memo also

militates against stand of the appellant that he had left Bombay on

18.10.1999.

18. Thus, we do not find any infirmity in assessment made by the

trial Court regarding the prosecution evidence and having come to

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conclusion by the same, the prosecution having established above

referred circumstance that Razia was last seen alive in the company

of the appellant when she had left the house of P.W.2, Razia had met

with homicidal death due to strangulation in the matrimonial house,

the appellant was possessing motive for commission of the crime, the

appellant had an opportunity to commit the crime, the appellant was

missing from his house soon after commission of the crime the

appellant has sold ornaments on the person to P.W.6. The appellant

was missing and thus absconded for many years. Needless to add in

our opinion such circumstances established to form a formidable

chain leading to sole inference of the guilt of the appellant in

committing murder of his wife.

19. Now before taking up last submission canvassed regarding

potential of circumstance either alone or in conjunction with other

circumstance leading to sole inference of the guilt of accused it will

not be out of place to make reference to observations of the Apex

Court regarding appreciation of circumstantial evidence in

paragraph no.9 in the decision in the case of State of U.P.

Appellant Vs. Ashok Kumar Srivastava, Respondent reported in

AIR 1992 SC 840 the effect:

"9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every

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hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating

circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in

favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the

facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis

put forward by the accused however far-fetched and fanciful it might be.

ig Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is

reasonable and not otherwise.........."

The aforesaid observation are self eloquent to repel the submission

canvassed on behalf of learned counsel for the applicant that there

exists other possibility of Razia being murdered by somebody else

other than the appellant. In the light of peculiar facts and

circumstance of the present case such hypothesis clearly appears to

be fanciful, on the contrary considering the events which had

occurred on the relevant day we find no fault committed by the trial

Court in arriving at conclusion that the said circumstance lead to

reasonable hypothesis of the appellant being culprit or preparator of

the crime.

20. In the context of the circumstance Razia being lastly seen in

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company of the appellant it will be necessary to say that in order to

give necessary weightage to the said circumstance there must be

proximity in time in between the period at which the concerned

accused was found in company of the deceased and occurrence on

the date. It is true that in the instant case prosecution has not

precisely determined time of death of Razia, however, considering

evidence of P.W.1 that the appellant had been to her house for

bringing cap of his son in the afternoon on 18th October and dead

body was noticed in morning of 19th October it is reasonably clear

that said death must have occurred in between night of 18th and 19th

October. Thus, taking into consideration the reason for which Razia

has returned from house of P.W.1, we are unable to accept that there

was no proximity in between two events occurred. With regard to

other possibilities tried to suggested, the learned counsel for the

appellant has not at all pointed out any circumstance spelling out

other possibilities. On the contrary, selling of ornaments of the

appellant without any reason and rhyme, not remaining in the house

not only for the couple of days but for couple of years taking into

consideration together leads to only probable hypothesis of the

appellant being perpetrator of the said crime.

21. In the premises aforesaid we do not find any merit in the

present appeal and as such dismiss the same.

    (P. D. KODE, J.)                                  (V. M. KANADE, J.)