Bombay High Court
Mohd Anis Mohd Rafique Khan vs The State Of Maharashtra on 15 December, 2014
Bench: P.V. Hardas
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.881 OF 2014
(By accused against conviction and sentence)
Mohd.Anis Mohd Rafique Khan }
Age 26 years, Occupation: Wireman
Residing at Anjuman Palace, 3rd Floor }
Room no.307,Achanak Nagar,Mumbai
District Thane (at present in custody of Nasik }
Central Prison) ig .. Appellant
(Orig. Accd no.1)
vs
The State of Maharashtra }
(Through P.I.Shil Dyghar police station,Thane) .. Respondent
}
---
Mr.Rafique Ahmed Shaikh for Appellant
Mr.H.J.Dedhia APP for State
---
CORAM: P.V.HARDAS & G.S.KULKARNI,JJ
DATE: 15TH DECEMBER, 2014
----
JUDGMENT (Per G.S.Kulkarni, J)
1. The Appellant (Original accused no.1) who stands convicted for
the offence punishable under section 302 read with section 34 of the
Indian Penal Code and sentenced to suffer imprisonment for life and to
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pay fine of Rs.5000/- and in default of payment of fine to suffer
imprisonment for six months and further convicted for the offence
punishable under section 201 read with section 34 of the Indian Penal
Code and sentenced to suffer imprisonment for 7 years and to pay fine of
Rs.5000/- and in default of payment of fine further suffer imprisonment
for 6 months with a direction that the sentences to run concurrently, by
the Sessions Judge,Thane, by judgment dated 9th July, 2014 in Sessions
Case No.465 of 2012 by this appeal questions the correctness of his
conviction and sentence.
Briefly stated the facts as are necessary for decision of this appeal
are thus :
2. PW 10- Dnyaneshwar Dashrath Shivtare Police Inspector attached to
Diagar police station was on duty on 7 th March 2012 when PW 10 Police
Patil of Phadke Pada village informed PW 10 that there was one rexine bag
seen floating in the water at the pond of Phadke Pada. PW 10
Dnyaneshwar Shivtare immediately visited the spot along with his staff
and noticed one rexine bag floating in water of the pond. The rexine bag
was fished out from the water. The rexine bag was opened in presence of
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two panchas. It was found that there was a a dead body in folding gesture
inside the rexine bag. An inquest panchanama of the dead body was
prepared in presence of panchas which is at Exhibit 39. Thereafter as FIR
was lodged by the Police Patil, Crime No.I-31/12 under sections 302, 201
of the Indian Penal Code came to be registered which is at Exhibit 44. PW
10 - Dnyaneshwar referred the dead body for post mortem. A
panchanama of the scene of the occurrence at Exhibit 46 was prepared. A
blue colour rexine bag and a nylon string was seized from the spot, vide
Spot Panchanama which is at Exhibit 46. PW 10 - Dnyaneshwar sent
information through wireless message to various police stations for
identification of the dead body. PW 10-Dnyaneshwar on 7.3.2012
entrusted further investigation to Police Inspector PW 11-Gauri Prasad
Hiremath. P.I. Gauriprasad Hiremath recorded statements of some of
witnesses so as to identify the deceased. On 17 th March 2012 the father,
sister and brother-in-law of deceased had approached Police Inspector
Gauriprasad and recognised the dead body to be that of Anwar
Shahabuddin Shaikh. P.I. Gauriprasad recorded statements of father,
sister and brother in law of the deceased who expressed their suspicion on
accused no.1 to have caused the death of deceased. PW 11 - Gauriprasad
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seized clothes of the deceased vide panchanama at Exhibit 40. On 18 th
March 2012 PW 11- P.I. Gauriprasad arrested accused nos.1 and 2 vide
arrest panchanama at Exhibit 41. A cell phone was impounded from the
custody of accused no.1 vide panchanama at Exhibit 41. On 19 th March
2012 the appellant is stated to have confessed the crime and had shown
willingness to produce the motor bike used by him for disposal of the dead
body in the pond. A memorandum panchanama prepared to this effect is
at Exhibit 62. The accused took P.I. Gauriprasad along with the panchas
towards Reti Bunder area and showed one motor-bike which was found
parked in an open plot. A seizure panchanama of the recovery of the
motor-bike was prepared. Thereafter, on 23 rd March 2012 the appellant
had shown willingness to point out the scene of occurrence and the place
where he had thrown the dead body. A memorandum panchanama was
recorded to this effect which is at Exhibit 63. The appellant accordingly
took the police and panchas to his house and had shown the spot inside
his house. A pair of chappals was recovered stated to be belonging to the
deceased. Thereafter, the accused led the police and panchas to the pond
located in Phadke Pada area where the appellant had thrown the rexine
bag containing the dead body of the deceased. A running panchanama of
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all this discovery was prepared which is at Exhibit 63/1. P.I. Gauriprasad
procured C.A. reports which are at Exhibits 55, 56 and 57. After
completion of the investigation, a charge sheet was filed against the
accused. The offences being exclusively triable by the Court of Sessions
the case was committed to the Sessions Court. The learned trial Judge
framed charges at Exhibit 35 under sections 302 and 201 read with
section 34 of the Indian Penal Code. The accused pleading not guilty
claimed to be tried. Prosecution examined 11 witnesses. The learned
Sessions Judge appreciating the evidence which had come on record in the
trial, convicted and sentenced the accused as aforestated.
3. In order to effectively deal with the submissions advanced before
us by learned counsel for the parties, it would be useful to refer to the
evidence of the prosecution witnesses.
4. Prosecution has examined PW 1-Parshuram Patil who is the Police
Patil and the informant. PW 1-Parshuram Patil deposed that on 7 th March
2012 in the morning at 10 a.m. when he was proceeding towards his
office he saw persons gathered near the lake located on the road leading
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to Phadke Pada. He stopped his vehicle and saw a blue colour bag tied
with a nylon string floating on the water. There was foul smell. He
therefore, immediately informed the police at Shil-Diagar police station.
PW 1-Parshuram Patil deposed that police arrived on the spot. The rexine
bag was opened and a dead body of one male was found in the bag. He
deposed that the limbs of the dead body were in folding condition and the
dead body was in highly decomposed condition. PW 1-Parshuram
deposed that police had drawn a panchanama as also had recorded the
FIR. A seizure panchanama of the articles at Exhibit 44 was drawn in his
presence.
5. Prosecution has examined PW 2 Dashrath who is a panch witness
who was declared hostile. In his cross-examination he admitted that a blue
colour rexine bag was seized. He admitted that police seized the rexine
bag and articles under a panchanama. He admitted that an inquest
panchanama of the dead body was drawn. However, he deposed that he
had no inkling in regard to the contents of the blue bag. The testimony of
this witness is not of much assistance to the prosecution.
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6. Prosecution has examined PW 3-Shahabuddin Shaikh who is the
father of the deceased who did not support the case of the prosecution
and was declared hostile. In the cross-examination on behalf of
prosecution he denied to have stated before the police that the deceased
son had an affair with accused no.2 Mehjabin.
7. Prosecution has examined PW 4 -Taslima who is the sister of
the deceased who deposed that she was acquainted with the accused
being her neighbour. She deposed that deceased was her brother who was
working as a mechanic and used to visit Nagpur, Surat etc for his work.
PW 4 -Taslima deposed that accused no.2 Mehjabin had an affair with
deceased Anwar prior to marriage of the accused- Mehjabin with the
appellant. PW 4-Taslima deposed that at about 5 to 6 months prior to the
incident there was a quarrel between the appellant and her deceased
brother on account of the affair with his wife Mehjabin. PW 4 -Taslima
deposed that the appellant also came to know of the affair when he caught
red-handed the deceased along with his wife Mehjabin in his house. She
deposed that the appellant had deserted his wife accused no.2 and that
the she was staying with her parents at their home at Kurla. PW 4-Taslima
deposed that again the appellant had found his wife along with the
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deceased at Kurla Railway Station and that the appellant had informed of
the same to the father of PW 4. PW 4-Taslima deposed that all these facts
were disclosed to her and her sister by father of the appellant. PW 4-
Taslima deposed that she accordingly had gone to Kurla Station but
nobody was seen at the Kurla station and therefore, she had phoned father
of the appellant who informed that they all had returned to the house at
Kurla and advised PW 4 - Taslima and her sister to return home at
Mumbra. PW 4 - Taslima deposed that she and her sister had
reprimanded Mehjabin for having an affair with deceased Anwar. PW 4
deposed that her father had once slapped deceased Anwar and had driven
him out of the house and thereafter deceased Anwar had gone to Surat.
PW 4 deposed that deceased Anwar used to call from Surat after about 10
to 11 days as also used to visit their house and also he used to visit wife of
the appellant. PW 4 deposed that because of this background marriage of
Anwar was settled with a girl from Bandra which was to be held on 2nd
May 2012. She deposed that after the engagement ceremony of deceased
Anwar, he had gone to Nagpur for his mechanic work and returned on
1.3.2012. She deposed that she and her sister, father and the deceased had
all gone to Amrut Nagar, Mumbra for shopping for the marriage of the
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deceased Anwar. She deposed that she returned from shopping at about 7
to 7.30 p.m. She deposed that at 7.45 p.m. her deceased brother-Anwar
had received a call on the cell phone of her father. Deceased Anwar
thereafter left the house stating that he had received a call from his
employer and informed that in case he was late he would return home the
next day morning. PW 4 - Taslima deposed that however, for two days
deceased Anwar did not return and hence they searched deceased Anwar.
A missing report came to be lodged by her father. PW 4 deposed that after
2/3 days father of the bride-groom of deceased Anwar had come to their
house and informed that he had received a phone call that there was an
accident of deceased Anwar and he had been arrested by the police. She
deposed that the father of the bride of Anwar was told to deposit
Rs.6000/- in the bank account if he wanted release of his would be son-in-
law from the case. The bank account number was given by him for
deposit of the said amount. PW 4 - Taslima deposed that her father and
police personnel visited State Bank of India at Thane for verification of the
bank account and it was revealed that the concerned bank account was
from the branch at Pachora District Jalgaon. Police had informed her
father to visit Pachora. PW 4 deposed that the account in Pachora was
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that of a third person who had refused to come to Mumbai for any
investigation on the ground he was totally unconnected. PW 4 - Taslima
has deposed that she along with her husband and his brother had gone to
Shivaji Hospital at Kalwa in search of deceased Anwar and on inquiry was
informed that there was an unknown body received at the hospital. She
deposed that she had identified the dead body of her brother deceased
Anwar. She deposed that she had received dead body from the hospital
for cremation. In her cross - examination, she admitted that she had not
lodged any police complaint of any affair of deceased Anwar with the
accused no.2 Mehjabin. PW 4 - Taslima also deposed that clothes and
chappals are easily available in the market.
8. Prosecution has examined PW 5 - Nasima Shaikh who is the other
sister of deceased Anwar who deposed that she was married with one
Mehboob Shaikh 13 to 14 years before the date of the incident and had 3
sons. She deposed that her husband had died 7 years back and since then
she was residing with her parents at Mumbra. She deposed that she was
acquainted with accused as they were neighbours. She deposed that there
was an affair between wife of the appellant-Mehjabin and her deceased
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brother which was prior to the marriage of Mehjabin with the appellant
She deposed to the incident in regard to her deceased brother trying to
elope with the wife of the appellant from Kurla Railway station. She
deposed that she had gone along with her sister PW 4 for shopping on
1.3.2012 in regard to the marriage of deceased Anwar and after returning
home, a call was received by deceased Anwar from his employer after
which the deceased had informed that he was going to Kalamboli for work
and in case he is late he would return the next morning. PW 5 further
deposed that deceased Anwar did not return for 3 to 4 days. She also
deposed that the would be father-in-law of the deceased Anwar informed
that deceased Anwar had met with an accident. She deposed that she
learnt about the dead body of Anwar lying at Kalwa Hospital and that her
sister and her husband had recognised dead body of the deceased. She
deposed that she learnt that her brother Anwar was murdered due to
affair with wife of the appellant (accused no.2). She deposed to have
identified dead body of the deceased Anwar. In her cross-examination,
nothing material was elicited.
9. Prosecution has examined PW 6 - Dr.Mangesh Ghadge who was
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attached to Rajiv Gandhi Medical College, who deposed that he had
received a dead body on 7.3.2012 at 1.55 p.m. which was later identified
to be that of deceased Anwar. He deposed that he had conducted
postmortem on the very same day. He deposed that the dead body was in
a decomposed condition and he noticed that eye-balls and tongue were
seen protruding. There was a foul smell and peeling of skin all over the
body. PW 6 -Dr.Ghadge deposed that he had not seen any external injuries
on the dead body. He deposed that on the basis of the post mortem
findings, it was difficult for him to determine the exact cause of death
owing to decomposition of the entire body and therefore he kept the
decision pending till the receipt of the C.A.report in respect of nail
clippings and scalp hairs. On perusal of the C.A.report at Exhibits 56 and
55, he deposed that it would be difficult to determine the cause of death
of deceased Anwar and accordingly he issued the post mortem report.
10. Prosecution has examined PW 7-Rakesh Sinha who is a panch
witness who was examined in regard to the memorandum panchanama of
the recovery of motor-bike at Exhibit 62/1. PW 7 - Rakesh deposed that
he was called on 23 rd February 2012 at the police station as a witness to
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the memorandum panchanama of the appellant in disclosing that he had
committed the murder of one person and had shown willingness to point
out the place where he had thrown the dead body. The memorandum
panchanama is at Exhibit 63. P.W.7 deposed that the appellant had taken
the police and PW 7 to his house at Anjuman Building where he pointed
out a place as his residence. A panchanama to this effect at Exhibit 63/1
was recorded.The spot panchanama was recorded at Exhibit 64.
11. Prosecution has examined PW 8-Sayed Hasan who is a salesman in
the shop known as 'Sadaf Bag Center' and was examined in the context of
the recovery of the rexine bag. PW 8 identified the bag to have been
purchased by the appellant from his shop. In the cross-examination, he
admitted that several customers used to visit the shop on each day and it
would be difficult to recognise all of them. He admitted that the rexine
bag can be made available in any shops and that there was no special
marks for identification of the bag to have been purchased from his shop.
12. Prosecution has examined PW 9 - Vilas Patil who is the panch
witness who was examined in regard to the memorandum of the appellant
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in making a confessional statement that he had committed the murder of
the deceased and as regards the pair of chappals concealed in the drawing
room of the house of the appellant. PW 9 deposed that he does not
remember name of the other panch. He deposed that he was asked to put
signature on papers and that he had made signature at the instance of the
police. He deposed that the appellant did not disclose anything in his
presence. He deposed that he cannot recognise the accused who was
present in Court. PW 9 was declared hostile. In his cross-examination on
behalf of the prosecution, he admitted that accused had not made a
confessional statement in regard to the murder and that the pair of
chappals was concealed in the drawing of the house of the appellant. He
deposed that memorandum of the panchanama contained his signature
and he did not remember the contents. He denied the appellant pointing
out room No.307 being his house and that the accused had entered the
house and produced one pair of chappals concealed beneath the bedstead.
13. Having considered the testimony of the aforesaid witnesses, we
now advert to the submissions as made on behalf of the parties. Learned
counsel for the appellant submits that the Trial Court is in error in
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recording that the appellant is guilty of committing murder of deceased
Anwar. He submits that the evidence as adduced on behalf of the
prosecution in no manner proves much or less beyond reasonable doubt
that the appellant is guilty of committing the crime of murder of the
deceased. He submits that the circumstances as brought on record are
weak and inconclusive and in no manner indicate guilt of the appellant. It
is submitted that the testimonies of PW 4 - Taslima and PW 5 - Nasima
who are sisters of the deceased are wholly unreliable and in no manner
can be considered to hold that the offence of murder of deceased Anwar
has been committed by the appellant.
14. On the other hand the learned APP supports the findings as
arrived by the trial Court. The learned APP has placed strong reliance on
the testimony of P.W.4 and P.W.5 - sisters of the deceased and that of PW 8-
Sayad Hasan who has deposed that blue rexine bag in question, which
was used to put dead body of the deceased, was purchased from the shop
where PW 8 was working. The learned APP submits that the findings as
arrived by the trial Court are on proper appreciation of evidence and
hence the appeal deserves to be dismissed.
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15. We have undertaken a careful scrutiny of the evidence as led on
behalf of the prosecution. Case of the prosecution is purely on
circumstantial evidence. The principal reliance of the prosecution is on
the evidence of PW 4 - Taslima and PW 5 - Nasima and PW 8 - Sayad
Hasan. PW 4 and PW 5 are sisters of deceased Anwar who have deposed
that deceased Anwar had an affair with wife of appellant and hence the
appellant had a motive to eliminate the deceased Anwar. In examining the
depositions of PW 4 and 5, we notice that versions of both these witnesses
are much or less identical. However, none of the circumstance as deposed
by these witnesses would lead to a conclusion that the appellant can be
held to be guilty for committing the murder of deceased Anwar. In fact,
the testimony of these two witnesses does not in any manner connect the
appellant to have caused the murder of deceased Anwar. It is significant
that the testimony of these two witnesses fails to derive any inference that
the appellant could be connected to the commission of the crime in
question. There is no incriminating material to show that between 1 st
March 2012 till the dead body was found on 7 th March 2012 there were
any incriminating circumstances which would conclusively establish that
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appellant and the appellant alone to have committed the murder of
deceased Anwar. Moreover, PW 4 - Taslima has admitted in her cross-
examination that chappals which were recovered by the police at the
behest of the appellant was easily available in market. We also find that
the discovery of motor-bike and chappals at the behest of the appellant
would not be of any assistance to the prosecution to bring home the guilt
of the accused in the absence of any corroborative material which would
show how the involvement of these articles in the commission of the
crime. Mere discovery at the behest of the appellant of such articles which
cannot be related to the deceased, cannot be held to be conclusive to bring
home the guilt of the accused. Much reliance has been placed on behalf of
the prosecution on the testimony of PW 8 which in any opinion is of no
assistance to the prosecution inasmuch as PW 8 has admitted in cross-
examination that the rexine bag which was recovered by the police is
available in several shops and that the bag in question has no special
identification marks as purchased from their shop and hence we are afraid
that his deposition could have been in no manner relied upon by the Trial
Court in recording the findings of guilt of the accused.
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16. We are therefore, of the clear opinion that the learned trial Judge
could not have convicted and sentenced the appellant as recorded in the
impugned judgment.
17. We accordingly allow Criminal Appeal by passing the following
order:-
ORDER
The conviction and sentence of the appellant/original accused
no.1 Mohd.Anis Mohd.Rafique Khan is hereby quashed and set aside and
the appellant is acquitted of the offence with which he was charged and
convicted. Fine if paid by him be refunded to him.
Since appellant - Mohd Anis Mohd Rafique Khan is in jail, he be
released forthwith, if not required in any other case.
(G.S.Kulkarni, J) (P. V.Hardas,J)
