Bombay High Court
Zahir Ahmed Sayeed Ahmed Mistry & ... vs The State Of Maharashtra on 7 December, 2015
Bench: B.P. Dharmadhikari
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.162 of 1995
1. Shri Zahir Ahmed Saeed Ahmed Mistry,
an adult Indian Inhabitant, Aged about
37 yrs,
2. Shri Jamil Ahmed Saeed Ahmed Mistry
an adult Indian Inhabitant, aged about 29 yrs.
Both residents of B-18, Dhakay Nagar, S.V.
Road, Andheri (West), Bombay 400 058.
3. Abdul Wajid @ Guddu @ Abdul Jabbar S/o
Abdul Gani Shaikh,
an adult Indian Inhabitant, aged about
30 yrs, resident of 20/20, Purra Faiyaz Ali,
Meerut (U.P.
.....Appellants
(Orig. Accused Nos. 1 to 3)
Versus
The State of Maharashtra
(At the instance of Kherwadi Police Station,
Vide C.R.No.33 of 1985) ..Respondent.
(Original Complainant)
-----
Miss. Prabha Mane for Appellants.
Smt. V.R. Bhonsale, APP for Respondent-State.
-----
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APEAL.162-1995.odt
CORAM: B.P. DHARMADHIKARI &
A.S. GADKARI, JJ.
Reserved On : 7th August 2015.
Pronounced On : 7th December 2015.
JUDGMENT (Per A.S. Gadkari, J.):
1 The appellants, original accused nos.1 to 3, have questioned the
correctness of the judgment and order dated 31 st March 1995 passed by the
Additional Sessions Judge, Bombay in Sessions Case No.264 of 1985
thereby convicting them, firstly under Section 120-B simplicitor and
sentenced to suffer rigorous imprisonment for life and secondly under
Section 120-B read with Section 302 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for life by each of the appellants
and thirdly under Section 120-B read with Section 201 of the Indian Penal
Code and sentenced to suffer rigorous imprisonment of one year each. The
Trial Court has ordered that the sentence passed under Section 120-B
simplicitor and under Section 120-B read with Section 201 of the Indian
Penal Code shall run concurrently with the substantive sentence awarded
under Section 120-B read with Section 302 of the Indian Penal Code. By
the same judgment and order, the Trial Court has acquitted the appellants
nos.1 to 3 from the charge under Section 120-B read with Section 364 of
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the Indian Penal Code. The said judgment and order dated 31 st March
1995 is impugned herein.
It is to be noted here that the original accused no.4 namely
Sayeed Ahmed Haji Abdul Razak Mistry expired during the pendency of
the present appeal and the said fact is recorded by this Court in its order
dated 20.3.2009 and 14.2.2011. In view of the fact that the original accused
no.4 Sayeed Ahmed Haji Abdul Razak Mistry is dead, the proceedings
against him stood abated.
For the sake of brevity, the appellants named hereinabove will
be referred to with their original accused numbers, as they were before the
Trial Court.
2 The facts which enumerates from record and are necessary for
deciding the present appeal can briefly be stated thus:
(i) Smt. Razia Sultana (PW No.1) in the year 1984 was residing
with her mother Smt. Khatunbi (PW-3). She was married and her husband
was doing embroidery work. She had two brothers namely Adil Rashid and
Shaha Nawaz. Adil (deceased) was working as a welder and Shaha Nawaz
was working as a carpenter. Her brother Adil Rashid was working with
original accused no.4 Sayeed Ahmed Haji Abdul Razak Mistry. The
original accused no.4 was her distant relative from her maternal side. Her
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brother Adil wanted to set up his own business and in fact he started his
business with a partner namely Sherekhan at Gilbert Road, Andheri,
Mumbai. As the business of her brother was prospered, the original accused
no.4 and his sons i.e. accused nos.1 and 2 developed jealousy. The original
accused no.4 had told Smt. Razia Sultana to direct Adil Rashid (deceased)
that he should not carry out the said business failing which, he will face
serious consequences. Name of the fiancée of Adil with whom he was
engaged was Ms. Rana Kaushal. She was residing in the area of Bombay
Central. Adil Rashid used to keep the photograph of Rana Kaushal with
him. On 15.11.1984 at about 11.30 a.m. her brother returned from bank
with Rs.900/-. Adil gave Rs.750/- to her mother Smt. Khatunbi (PW-3) and
kept Rs.150/- for his pocket expenses. Adil told Razia and Smt. Khatunbi
that he along with the appellants was going to National Park for a picnic.
The accused no.2 was accompanying Adil at that relevant time. They were
going to National Park by a car. The car was parked outside her house on
the road. It was a chocolate colour Ambassador car. The accused nos.1 to 3
and Adil (deceased) left the said place at about 11.30 a.m. on 15.11.1984.
Adil did not return till the evening and therefore Smt. Razia (PW-1) and
Smt. Khatunbi (PW-3) took his search with the near relative. They also
asked the original accused no.4, however, he expressed ignorance about the
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same and in turn told Smt. Khatunbi that not to worry about the same as
they had gone for a picnic, they might come late. As Adil did not return
upto 23.11.1984, Smt. Razia (PW-1) lodged a missing report on 23.11.1984
with the Kherwadi police station bearing no.51 of 1984 which is at Exhibit-
8.
(ii) In the meanwhile, on 16.11.1984 at about 7.45 a.m., Pandu
Parade (PW-14), a resident of the village Durvesh, Taluka-Palghar,
District-Thane saw the dead body of a male person, when he went to attend
the nature's call. He thereafter reported the said fact to the police patil of
the village. The police patil in turn informed the said fact to Manor police
station within whose jurisdiction the dead body was found. In pursuance of
F.I.R. lodged by police patil Shri Janardhan Bhaskar Patil of Durvesh
village, P.S.I. Shri Laxman Deshmukh (PW-15) registered a crime bearing
CR No.196 of 1984 under Section 302 read with Section 201 of the Indian
Penal Code against unknown person. PW-15 Shri Laxman Deshmukh
drew inquest panchanama (Exhibit-52) and also scene of offence
panchanama (Exhibit-53). From the scene of offence he also seized pieces
of strings. He sent the dead body for conducting postmortem examination
to the Medical Officer, Primary Health Centre at Masvan, Taluka Palghar,
District Thane. After conducting the postmortem examination, the body of
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the said unknown person was buried as per Islam religion/ rites, as the
police and the doctor who conducted autopsy formed the opinion that the
deceased person was professing Islam religion. The pieces of strings
(Article-11 Colly.) were preserved by PW-15 for the purpose of
investigation. The clothes which were on the person of the deceased were
taken charge by drawing a seizure panchanama (Exhibit 57). The said
clothes were namely a full pant-white in colour, a full shirt with black and
red lines and blood stains (Article-2) and underwear white in colour
(Article-10).
(iii) On 18.1.1985, Smt. Razia Sultana (PW-1) registered First
Information Report with the Kherwadi Police station, Bandra, Mumbai
bearing CR No.33 of 1985 (Exhibit-9) thereby expressing suspicion against
the appellant nos.1 and 2 being responsible for the disappearance of her
brother Adil Rashid. The investigation of the said crime was handed over to
P.S.I. Shri Abdul Kadar A. Khan (PW-19). The crime was initially
registered under Sections 365 and 114 of the Indian Penal Code. PW-19
PSI Shri Khan conducted investigation. He arrested the accused nos.1 and
2 on 31.1.1985 at Mumbai and accused no.3 on 19.2.1985 at Meerut and
brought to Mumbai on 23.2.1985. The further investigation was thereafter
transferred to Police Inspector Shri Bhimrao Khambe (PW-21) on
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1.3.1985. PW-19 PSI Shri Khan assisted PW-21 Shri Bhimrao Khambe in
the further investigation. During the course of investigation, it was revealed
that the dead body of Adil Rashid was found within the jurisdiction of
Manor Police station and the said police station had registered crime
bearing CR.no.196/1984.
(iv) That after receipt of necessary reports from various agencies and
after completion of investigation, PW21 Shri Bhimrao Khambe submitted
chargesheet in the Court of competent jurisdiction under Section 120-B
read with Sections 364, 302 and 201 of the Indian Penal Code. As the
offence under Section 302 of the Indian Penal Code was exclusively triable
by the Court of Sessions, the learned Trial Court committed the said case to
the Court of Sessions as contemplated under Section 209 of Cr. P.C. After
committal of the said case, the Trial Court framed charge against the
accused persons below Exhibit-1. The said charge was read over and
explained to the accused persons to which they denied. The defence of the
accused persons was of total denial. With a view to establish its case, the
prosecution examined in all 21 witnesses. The learned Trial Court after
recording the evidence and after hearing the parties to the said case,
convicted and sentenced the accused persons by the impugned judgment
and order dated 31st March 1995 as stated hereinabove.
APEAL.162-1995.odt
3 Heard Ms. Prabha Mane the learned Counsel for the appellants
and Smt. V.R. Bhonsale, the learned APP for the Respondent-State and
with their assistance we have perused the entire record of the present case.
4 The learned Counsel for the appellants submitted that the
prosecution has utterly failed to prove the theory of 'last seen together' in
view of the settled legal position. That the time when the appellants were
last seen with the deceased Adil Rashid and the finding of the dead body of
Adil by different police station on the next day is after substantial lapse of
time. That the time gap between the last seen together and finding of the
dead body is too large and the prosecution has failed to put forth the cogent
evidence that there is nobody else who might be responsible for
committing murder of Adil Rashid. She further submitted that Smt. Razia
Sultana (PW-1) while filing the missing report on 23.11.1984 did not give
any specific name of any of the accused persons and did not express any
suspicion against the appellants. She further submitted that though PW-15
Police Officer Mr. Laxman Deshmukh from Manor Police station was
examined by the prosecution, the photograph of the deceased Adil Rashid
was not shown to him thereby proving the identity of the deceased Adil
beyond reasonable doubt. She further contended that the evidence adduced
by the prosecution is of such weak nature that the entire link of
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circumstances is not established beyond reasonable doubt and therefore the
appellants cannot be held guilty for want of cogent and proper legal
evidence. She therefore urged before us that the present appeal may be
allowed and the appellants may be acquitted from all charges
framed/levelled against them.
Per contra, the learned APP submitted that though the present
case is based on circumstantial evidence, the prosecution has proved the
motive behind the present crime. She further submitted that the appellants
were last seen together with the deceased Adil and thereafter deceased was
not traceable for substantial period. She further submitted that the appellant
nos.1 and 2 have gave extra judicial confession to PW-5 Kishor Dadhich.
That the incriminating articles were discovered at the instance of accused
nos.2 and 3 which were belonging to the deceased. She lastly contended
that the prosecution has successfully proved the chain of circumstances.
She therefore prayed that the conviction and sentence of the appellants may
be upheld and the present appeal may be dismissed.
5 With a view to appreciate the submissions advanced by the
learned Counsel for the appellants and the learned APP for the State, it is
necessary to advert in brief, the evidence of the prosecution witnesses.
6 PW-1 is Smt. Razia the elder sister of the deceased Adil Rashid.
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PW-1 has deposed that she was married and her husband was doing
embroidery work. That in the year 1984 she was residing with her mother
Smt. Khatunbi (PW-3). She had two brothers namely Adil Rashid
(deceased) and Shaha Nawaz. Adil was working as a welder with the
original accused no.4 Sayeed Ahmed Haji Abdul Razak Mistry. That
Sayeed Ahmed Haji Abdul Razak Mistry was her distant relative from her
mother's side. The accused nos.1 and 2 are the sons of accused no.4. That
Adil Rashid wanted to set up his own business. Adil started his business
with a partner namely Shere Khan at Gilber Road, Andheri, Mumbai. That
the business of her brother Adil was prospered in due course of time and
therefore the original accused no.4 and his sons i.e. accused nos.1 and 2
developed jealousy. The original accused no.4 threatened Adil for the same
and administered threats of dire consequences. PW-1 thereafter told
accused no.4 that she will try to persuade her brother Adil to give up his
work. The said incident occurred in the month of September or October
1984. That the name of fiancée of Adil was Rana Kaushal and Adil was
engaged with her. Adil used to keep her photograph with him. Adil used to
give his earnings to his mother Smt. Khatunbi (PW-3). That on 15.11.1984
at about 11.30 a.m., Adil came to home from the Bank with Rs.900/- Adil
gave Rs.750/- to his mother (PW-3) and kept Rs.150/- for his pocket
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expenses. He informed PW-1 and PW-3 that he was going to National Park
for a picnic with accused persons. The said accused no.2 was
accompanying Adil on that relevant time. They were going to National
Park by a car. The car was parked outside her house on the road. The said
car was of chocolate colour. That the accused nos.1 and 3 were also present
there. After about five minutes, Adil left with accused no.2. At that time her
mother Smt. Khatunbi (PW-3) also told Adil that she will also accompany
him, however, accused no.2 Jamil told her that the car is not in proper
condition. Adil was carrying money purse containing Rs.150/- and a
photograph of his fiancée and also railway season ticket. On 22.11.1984
her mother met her sister Zarina (PW-2) in hospital, when her mother
complained Zarina that Adil did not return home. Zarina replied that on
16.11.1984 the accused nos.1 and 2 and one more person had come to her
house in torn clothes on their person and they stayed there till 22.11.1984.
That on 23.11.1984 Smt. Razia visited Kherwadi police station and lodged
a missing report bearing no.51 of 1984. On 24.11.1984 Zarina asked
original accused no.4 Sayeed Mistry the whereabouts of Adil. She received
anonymous telephone call that the accused nos.1 and 2 are at Meerut. She
informed the said fact to the Missing Persons Bureau. Therefore the police
officer sent one constable alongwith her husband to Meerut. The accused
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nos.1 and 2 could not be arrested and brought at Mumbai as they had
obtained the bail order from the Court at Meerut on 18.1.1985. She
registered FIR (Exhibit-9) at Kherwadi police station, Bandra, Mumbai
thereby expressing suspicion against the appellants being responsible for
disappearance of her brother Adil Rashid. On 1.2.1985, she came to know
that her brother Adil was killed and accused nos.1 to 3 were arrested by the
police. Her further statements were recorded by the police on 5.2.1985 and
8.2.1985. She identified various articles belonging to deceased Adil in the
Court.
In the cross-examination, this witness has deposed that on
15.11.1984 when her brother Adil had gone with accused person and not
returned home, her mother neither told her nor PW-1 suspected any foul-
play in the same. She has admitted that she had seen accused no.3 at
Bandra Court for the first time. She has further admitted that in her
statement dated 27.11.1984 (23.11.1984), she had neither given the names
of the accused persons nor described them. That she did not disclose to the
police the description of the car or its make and or its number or its colour
as she was in disturbed state of mind on 27.11.1984 (23.11.1984). By this,
the defence has in fact brought on record the improvement in the evidence
of PW-1 Razia Khan. The further contradiction that she did not state in any
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of her statements that Zarina told her mother that on 16.11.1984 the
accused nos.1 and 2 and one more person had come to her house with torn
clothes on their person has been brought on record. She has further
admitted that when she came to the door of her house on the date of
incident, she had a glance (zalak) towards road and she saw three boys in
the car.
7 PW-2 is Zarina Noor Mohd. She has deposed that PW-1 Razia
was her distant relative. The original accused no.4 was husband of her
sister. She has deposed that on 16.11.1984, late in the night, the accused
nos. 1 and 2 had been to her house. They were wearing shirt and pant. As
the accused nos.1 and 2 had been to her house late in the night, she asked
about the same to which the accused no.2 Jamil replied that they had come
in the area to recover money. They stayed at her house as usual and left in
the morning. Again in the afternoon accused no.2 Jamil came to her house,
took meals and left the place. Thereafter she contacted accused no.4 on
phone and asked him whether he had driven out his children. Thereafter for
a period of three to four days continuously the accused no.2 Jamil used to
come to her house. On 22.11.1984 she had been to the hospital wherein she
met Khatunbi, the mother of deceased Adil. PW-2 asked Smt. Khatunbi
(PW-3) whether the accused nos.1 and 2 have been driven out of the house
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by their father. Smt. Khatunbi (PW-3) informed her that her son Adil had
gone with Jamil (accused no.2) and Zahir (accused no.1). PW-2 informed
PW-3 that accused no.2 and another person had been to her house. Smt.
Khatunbi (PW-3) waited to the house of PW-2 till 11.00 p.m. on that date
for accused no.2 Jamil. The accused persons did not come to her house.
That on 23.11.1984 Smt. Khatunbi (PW-3) came with Razia (PW-1) to her
house and made enquiry about Adil Rashid (deceased). PW-2 told them
that the accused no.2 Jamil with another person had came to her house in
the night of 16.11.1984. That Jamil came to her house last time on
22.11.1984. On 27.11.1984 she was called by the police in a room at
Kherwadi police station and police officer asked her to identify the accused
no.3. She identified accused no.3 Guddu as the said same person who had
visited her house on the night with Jamil (accused no.2).
In the cross-examination, this witness has deposed that she had
seen the accused no.3 Guddu for the first time on 16.11.1984. That she did
not pay any special attention to the accused no.3. No other material which
is useful to the appellants has been elicited in her cross-examination.
8 PW-3 is Smt. Khatunbi Shaikh, the mother of deceased Adil
Rashid. PW-3 has deposed that she was having six children. Out of them
four were daughters and two were sons. Out of four daughters, three
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daughters were residing with their respective husbands and fourth daughter
namely Razia (PW-1) though married was residing with her along with
family. The original accused no.4 was husband of her sister and he was
distantly related to her. The accused no.4 was having welding factory at
Jogeshwari (West). When her husband died, her son Adil was of 10 years
of age. After Adil completed his 4 th standard, he was sent for earning
livelihood with accused no.4. That the accused no.4 earlier used to pay
Rs.20/- per day to Adil when he was working on probation and after Adil
learnt the work, the accused no.4 and his sons were asking him to do any
sort of work. Although Adil used to work for long time, he was being paid
very less. Therefore her son Adil started his own business of welding in
partnership at Gilbert Road, near Bhavans College, Andheri. Though her
son started his business and had hardly completed one month, his business
was lucrative. After Adil started his own business, a period of 15 days
thereafter, the accused no.4 came to her house and threatened her son by
asking him not to work in partnership but to work with him (accused no.4).
Her son Adil refused to do so. That on 10.11.1984 a customer of her son
under misunderstanding delivered a cheque to the original accused no.4.
When her son came to know that his customer had given a cheque to
accused no.4 for the work which he had done, he (Adil) went to accused
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no.4 and collected it from him. He deposited the same in the bank on
15.11.1984. Her deceased son went to bank to collect the said amount
under the said cheque. He went to the bank at about 10 a.m. and returned at
11.00 a.m. After Adil brought back the said cheque, the accused no.4
visited her house and threatened her that she should warn Adil to behave
properly otherwise its result will be unpalatable. PW-3 told accused no.4
that Adil was not interfering with his work and was doing his own work
independently. On 15.11.1984 Adil came home alongwith accused no.2
Jamil from the bank. Thereafter accused no.2 Jamil told Adil to accompany
him for an outing to National Park at Borivali. The accused no.1 Zahir and
another friend were also with him. They were sitting in the car parked on
the road. The said car was of chocolate colour. PW-3 also told them that
she would accompany them, when accused no.1 said that he along with
Adil and Jamil are going to National Park for outing and that the car is not
in proper condition. Thereafter they went out of the house. After some time
Adil (deceased) came and gave her Rs.900/- and said that if he carries the
entire amount, the accused persons would spent all the money. He kept
Rs.150/- out of Rs.900/- with him. After Adil (deceased) went outside the
house with accused no.2 Jamil, she saw that accused no.1 Zahir was
standing near the steering wheel of the car and one more person was sitting
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on the rear side of the car. As Adil did not return home till 16.11.1984 she
made enquiry with his partner Shera Khan to which Shera Khan replied
that he does not know the whereabouts of Adil and he is also waiting for
him. That on 18.11.1984 she attended betrothal ceremony of daughter of
accused no.4. She made enquiry with accused no.4 about Adil. At that time
accused no.4 informed her that he received telephone call from his son
Jamil that their car had broken down at Vapi and after it was repaired, they
would come back. On 22.11.1984 Zarina (PW-2) met her in hospital and
informed that in the night of 16.11.1984 Jamil (accused no.2) was at her
house with another boy and stayed in the night. On 23.11.1984 she went to
the house of accused no.4 and enquired about Adil to which accused no.4
expressed his ignorance about the same. She informed the said fact to the
police. Thereafter her son-in-law Akhtar Khan (husband of PW-1 Razia)
and a police constable went to Delhi for making enquiry and returned after
a week. Zahir (accused no.1) and Jamil (accused no.2) were arrested by
Meerut police and during the enquiry they told that after picnic they
dropped Adil at Andheri. Police arrested accused nos.1 and 2 from a Bidi
Shop at Nagpada. The police thereafter showed her two photographs which
were of Adil (deceased). She identified the said photographs and the person
therein. She thereafter attended Kherwadi police station and identified the
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articles of her deceased son.
In the cross-examination, this witness has admitted that neither
herself nor her deceased son Adil complained about the threats
administered by the original accused no.4. That she and her daughter saw
the chocolate colour car from distance of about 10 to 12 feet. That her first
statement was recorded by the police on 8.2.1985. She did not give
description about another boy who was accompanied by accused nos.1 and
2. She had further admitted that she did not tell the police that her son Adil
was having purse (article-3) and its contents. She has further admitted that
in the year 1983 her son Adil consumed poison and he was treated in
Cooper Hospital at Vile Parle.
9 PW-4 is Namdeo Kamble, panch-witness to the recovery of car
at the instance of accused no.1. This witness has deposed that accused no.1
made memorandum statement which is at Exhibit 16 and in pursuance
thereof car having chocolate colour was shown by accused no.1 which was
owned by PW-5 Kishor Dadhich. The discovery panchanama is at Exhibit
16-A. He further deposed that the said car was of chocolate in colour and
he did not recollect the make of the said car. That it was night time and he
did not see the car number. That the doors of the said car were locked. He
further deposed that today he will not be able to identify the said car as he
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had seen it during the night time. That he will also not be able to identify
the master (owner) of the said car to whom the accused no.1 Zahir had
pointed out because of lapse of nearly 10 years. When the car (article-9)
was shown to this witness he has deposed that from the number plates, the
number of the car and seats which were black in colour was the same car
which was seen by him at J.B. Nagar compound, Andheri as the same
Ambassador car. He has further deposed that the said car was in chocolate
colour and now it is white in colour.
10 PW-5 is Mr. Kishor Dadhich, a Travel Agent from whom the
accused no.1 Zahir had taken Ambassador car, which was allegedly used
in the present crime. PW-5 has deposed that he was doing travel agency
business from his residence since 1984. At that time he owned a vehicle, an
Ambassador car bearing no.MMU-3824. It was cherry blossom (chocolate)
in colour. He used to give the said car on hire basis. That on 12.11.1984 the
accused nos.1 and 2 called upon him along with his mechanic Farooq at
about 11.30 a.m. to 12 noon. Farooq informed PW-5 that accused nos.1 and
2 wanted his car on hire basis as the family members of the accused nos.1
and 2 wanted to go to Haji Malang. Farooq also informed that they do not
want any driver. Thereafter he gave his car on hire basis for a period of two
days i.e. for 13th and 14th November 1984. Farooq took the responsibility of
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bringing back the said car. The accused nos.1 and 2 took the car on
13.11.1984 at about 9.00 a.m. PW-5 made necessary entry in the movement
register. The said car did not return on 14.11.1984. On 15.11.1984 also the
said car did not return. On 16.11.1984 he received telephone call from
accused no.1 to the effect that the car had gone out of order at Vapi and he
should sent his mechanic to get it repaired. On 16.11.1984 at about 5 p.m.
the accused nos.1 and 2 along with another person called upon him. They
reported that "some problem had occurred at their hands and police are
behind them". When he asked them what they mean by problem, to which
they stated that "a murder had taken place at their hands and that he should
not discuss the said fact to anybody else". Thereafter the accused nos.1 to 3
left his place by saying that his car was at Advent Pharma at Vapi and he
should bring it back to Mumbai. That after half an hour, the accused no.1
again came to him and told him to give his mechanic so that he will get the
said car repaired. At that time one Subash Singh was working with PW-5
and PW-5 sent Subash Singh along with appellant no.1. After 15 minutes
said Subash Singh returned and told him that Zahir had left him and was
not traceable. PW-5 thereafter contacted Farooq and took the residential
address of the accused persons. PW-5 met the father of accused no.1. He
narrated the incident to the father of accused nos.1 and 2 and also the fact
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about their committal of murder. The accused no.4 requested PW-5, not to
lodged complaint to the police as the name of his family will be tarnished.
The accused no.4 subsequently gave him authority letter to bring the car
back from Advent Pharma company at Vapi. The accused no.4 gave a
letter in hand writing addressed to one Mr. Kavishwar of Advent Pharma
company saying that he should take Rs.100/- from the person and give the
car. That on 19.11.1984 PW-5 went to Vapi and met Mr. Kavishwar (PW-
11) at Advent Pharma. PW-5 paid Rs.100/- to Mr. Kavishwar to which he
(PW-11) passed a receipt for the same. PW-5 took the keys of the car and
came back to Mumbai. He kept the car at J.B. Nagar, Andheri in garage.
That during the course of investigation the police seized his car. That on
16.3.1985 he was called by Kherwadi Police station for identification. He
identified the accused no.3 as a person who had come with accused nos.1
and 2 on 16.11.1984 to threatened him.
In the cross-examination, this witness has admitted that he did
not recollect, whether he had made statement before the police that he told
them that the accused nos.1 and 2 had come to him and they had taken his
car. That they had committed murder and that they had not returned his car.
That he did not recollect that the accused persons had taken his mechanic
and left him in the way. That he did not recollect whether he should report
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to the police about the said incident.
The close scrutiny of this witness makes it clear that most of the
statements made by this witness in his examination-in-chief are either
improvements or omissions which have been brought on record at the
instance of the appellants in the cross-examination. At this stage itself we
may note here that the alleged extra judicial confession given by the
appellants to this witness according to us is not trustworthy and reliable
because the PW-5 was a total stranger to the accused person and confiding
with him about the crime committed by the accused persons appears to be
improbable, as various omissions and improvements have been brought on
record by the appellants and we are of the considered opinion that this
witness is not trustworthy and his testimony is not reliable. It is also to be
noted here that the alleged extra judicial confession is not inculpatory and
is very vague as far as the precise act by any of the accused is concerned.
The tenor of the alleged extra judicial confession is that all the accused
jointly confessed before PW-5 about their act and there is no in-depth
specification about culpability of the crime and therefore it will be unsafe
to rely on the said alleged extra judicial confession in the present case.
11 PW-6 is Hashmatali Sayyed, a panch-witness to the spot which
was pointed out by the accused no.1 where according to the prosecution the
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appellants had thrown the dead body of Adil Rashid (deceased). This
witness has proved the memorandum panchanama (Exhibit-28) and the
spot panchanama (Exhibit-28-A).
In the cross-examination, this witness has admitted that there
were about 25 huts where the jeep was halted near the spot and the police
did not make any enquiry with the hutment dwellers in his presence.
12 PW-7 is Sharad Raut. The accused no.3 Abdul @ Guddu in
presence of this witness made a demonstration that a pant which was found
on the dead body of Adil Rashid fits him. It is the case of the prosecution
that after committing the murder of Adil, a full pant of Adil was worn by
the accused no.3 and accused no.3 in turn put on his pant on the dead body
of Adil. It is to be noted here that the clothes which were found on the dead
body of Adil were already in possession of the police and the aforesaid
demonstration in presence of PW-7 according to us is a redundant and
futile exercise to connect the link in the chain of circumstances. According
to us the evidence of this witness cannot be taken into consideration for
connecting alleged link of chain of circumstances put forth by the
prosecution. It appears from the evidence of this witness that a pant which
was recovered in the presence of this witness, which according to the
prosecution was of Adil was not shown to any of the witnesses for its
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identification. We therefore keep aside the evidence of this witness from
our consideration.
13 PW-8 is Surajbali Patel, a panch-witness to the discovery of the
incriminating articles at the behest of the accused nos.2 and 3. This witness
has deposed that on 20.3.1985 at the instance of accused no.2 a wallet of
deceased which he had thrown in the adjoining company of Advent Pharma
was discovered at his instance. At the instance of accused no.3 four nylon
pieces of strings, 8 to 9 pieces of torn railway ticket were discovered from
an open ground of the Advent Pharma company wherein the grass had
grown upto 1 and ½ feet. The accuse no.3 also produced 4 to 5 torn pieces
of a photograph of a girl from the said place. In the same process the
accused no.2 also discovered a wallet of the deceased from an open space.
PW-8 has stated that there was nala at that place and accused no.2 jumped
over the said nala and went inside the compound from the side of nala.
That there was grass at the said place. That the accused no.2 jumped over
the barbed-wire and went inside the compound. The said place was
opposite of Advent Pharma Company. This witness did not recollect the
name of the company. The accused no.2 searched for the wallet and traced
it out. In the wallet there was visiting card having writing something like
Shera Company or Shera Welding.
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It is to be noted here that the evidence of PW-8 is absolutely
silent about the exact place from where the incriminating articles were
discovered at the instance of the accused nos.2 and 3. It is is to be noted
here that the date of incident in question is 15.11.1984 or there about and
the discovery at the instance of the accused nos.2 and 3 was effected on
20.3.1985 i.e. after about four months from the date of incident. The
evidence so also the said discovery panchanamas at Exhibits 33 and 33-A
are silent about the condition of the articles, particularly the papers which
were smeared by soil, so also their stage of degradation and its appearance
and the depth of ditch/pit dug by accused no.3. There is another aspect of
the Exhibits 33 and 33-A. The memorandum panchanama of accused nos.2
and 3 is a joint memorandum which is at Exhibits 33 and in pursuance of
the joint memorandum panchanama, the said articles were discovered. It is
to be noted here that the statement made by accused no.3 Guddu first in
point of time, it is apparent that the police had already knowledge about the
place wherein the accused no.3 had either buried the articles in presence of
accused no.2. It further appears to us that the discovery at the instance of
accused nos.2 and 3 though projected as a separate discovery is in fact a
joint discovery and according to us is not safe to rely upon it. We may note
here that the police officer who effected the discovery in pursuance of joint
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memorandum statements which is Exhibit 33 is ignorant about legal
implications of joint discovery at the instance of accused persons.
14 PW-9 is Jogabhai Patel, the owner of the hotel adjacent to
Advent Pharma Company at GIDC, Vapi. It appears that this witness has
been examined with a view to establish the fact that four months prior to
20.3.1985 the accused persons had been to his hotel early in the morning.
15 PW-13 is Jayant Aher, the hand-writing expert who has
examined the letter given by accused no.4 in favour of Mr. Jagannath
Kavishwar (PW-11) for releasing the car by PW-5 Kishor Dadhich. As the
accused no.4 is expired and the case against him stood abated, the evidence
of this witness cannot be taken into consideration from the point of
deciding the present appeal.
16 PW-16 is Haji Abdul Bidiwala from whose shop the accused
nos.1 and 2 were arrested on 31.1.1985 by the police. This witness has
failed to identify the accused persons in the Court. PW-17 is Sukhdeo
Dhaktode, Police Constable who had gone to Delhi along with PW-18
Akhtar Khan (husband of PW-1 Razia) in search of accused nos.1 and 2 on
9.12.1984. The record discloses that the statements of aforesaid three
witnesses i.e. PW-16, PW-17 and PW-18 came to be recorded after lapse of
10 years and just prior to the commencement of the trial and therefore it
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creates strong doubt in our mind about the reliability of their evidence and
we refrain ourselves from taking into consideration the evidence of these
three witnesses.
17 PW-10 is Bahadursingh Ramsingh, a peon who was working in
the Advent Pharma Co. at GIDC, Vapi. PW-10 has deposed that he was
working in the said company four to five years prior to 1985. That accused
no.1 was one of the workers of Advent Pharma Co. and he was working in
Fabrication department. That accused no.1 was working for 10-15 days in
the fabrication department of Advent Pharma Co. That accused no.1 come
one day in the company at about 10 a.m. in an Ambassador car of
brown/chocolate colour bearing no.MMU-3824. That accused no.1 wanted
to meet Iqbal Bhai, Manager of the company. That Iqbal Bhai was not
present on that day. At that time, Mr. Kavishwar (PW-11) the Plant
Manager and Mr. Sudame the cashier were present. That he was called on
4.3.1985 at Kherwadi Police station and he identified the accused no.3 in
the identification parade.
In the cross-examination, this witness has admitted that the
accused no.1 came to the company and accused nos.2 and 3 were sitting in
the Hotel of PW-9 Jogabhai Patel. He has further admitted that he did not
ask accused no.1 as to what work he had with Iqbal Bhai.
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18 PW-11 is Jagannath Kavishwar, Officer of Advent Pharma
Company. PW-11 has deposed that he was working with Advent Pharma
Co. since 1977. He has deposed that on 11.11.1984 at about 10 a.m.
accused no.1 came in the office of the factory and enquired about the
Manager Iqbal Bhai. That Iqbal Bhai was not present in the factory. That
the accused no.1 came in an Ambassador car having chocolate colour. The
said car was parked outside the gate and later on it was brought in the
company. That the accused no.1 waited for Iqbal , however, Iqbal did not
come to the office. The accused no.1 wanted some money for going to
Mumbai. The accused no.1 took Rs.100/- from the Accountant Shri
Sudame and thereafter went away. The accused no.1 kept the said car in the
compound. After two days they received telephone call from the accused
no.4 that he is sending Rs.100/- with the person to collect the car. The
accused no.4 gave authority letter on his letter-head. On 20.11.1984 at
about 11.00 a.m. Mr. Kumar came to collect the car. Mr. Kumar first met
Sudame to pay Rs.100/-. He showed the authority letter to him. After
reading the said letter, it was revealed that the car was to be collected by
one Kishorbhai. He handed over the possession of the said car to
Kishorbhai. In the cross-examination, this witness has identified that the
said person Kumar (PW-5) who had came to his Company earlier. He has
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admitted that he did not know whether his Company maintains
correspondence file or not.
19 PW-14 is Pandu Parade. PW-14 in his testimony has stated that
he was residing at Palghar since his childhood. On 16.11.1984 at about
7.45 a.m. in the morning while he was coming from Kharadpada Road to
answer the nature's call, he saw the dead body of a male person. At that
time one Ramji Waghan was with him. He told said Ramji to wait near the
spot. PW-14 went to report about the dead body to the police patil of the
village namely Janardhan Patil and Sarpanch Suresh Samre. He contacted
them and reported the matter orally to them. The dead body was of a
stranger. He saw tyre marks of a light motor vehicle towards the direction
of Mumbai at the said spot. He alongwith other inspected the dead body
and found black mark on his neck of strangulation by the string.
20 PW-15 is Laxman Deshmukh, Police Sub Inspector then
attached to Manor Police station. PW-15 has deposed that on 16.11.1984 at
about 9.45 a.m. Police Patil Janardhan Patil of Durvesh village came to the
police station and lodged his complaint. He recorded the statement and
treated it as First Information Report and registered a crime bearing CR
No.196 of 1984 under Sections 302 and 201 of Indian Penal Code (Exhibit-
56). He conducted the inquest panchanama (Exhibit 52) and scene of
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offence panchanama (Exhibit-53). He seized one stone and pieces of
strings (Articles 11 and 12 respectively). He called a photographer and took
photographs of the dead body and the spot. PW-15 sent the dead body for
postmortem examination to the Medical Officer, Primary Health Centre at
Masvan, Taluka Palghar, District-Thane. He recorded the statements of
Pandu Parade (PW-14) and other witnesses. After receipt of the
postmortem notes, the dead body was disposed off on 19.11.1984 as per
Muslim religious rites. The Police Constable brought the clothes of the
deceased viz. full pant-white in colour, a full shirt with black and red lines
and blood stains and an underwear white in colour. The said clothes were
taken charge by the Head Constable Shri Patil by effecting seizure
panchanama (Exhibit-57). That on 2.2.1985 Police Inspector Shri Khambe
and PSI Shri Khan of Kherwadi police station came to Manor police station
along with the arrested accused persons. The said accused persons were
concerned with CR No.196/1984 registered at Manor Police station. He
handed over the case papers and articles pertaining to CR registered at
Manor police station to the officer from Kherwadi police station for further
investigation. On 4.31985, his statement was recorded by Police Inspector
Khambe (PW-21).
21 PW-20 is Dr. Subhash S. Patil, the then Medical Officer at
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Masvan Primary Health Centre, Taluka Palghar, District-Thane. PW-20 has
deposed that on 16.11.1984 at about 2.30 p.m. the dead body of unknown
person was brought from village Durvesh by the police from Manor Police
station. He performed the postmortem on the said dead body between 3.00
and 5.00 p.m. on that date. That the dead body was of a male person of age
25 years and might be from Muslim community. The dead body was
having full shirt with brown and chocolate colour strips and light green
spots and also ash coloured full pant and a white brief underwear inside.
The clothes were in dry condition. The shirt was having blood stains which
was oozing from nostrils. The Rigor Mortis was absent. The tongue was
inside the mouth and blood stained fluid oozing from nostrils. There were
no external injuries to genitals and penis was circumcised. During the
course of postmortem, he observed and noticed the following things:
"All four limbs were in extended position. Fists were open and
fingers partially flexedat the interphalyngeal joints. No sand or
earth under the nails. Face:-(Petachial Hemorrhage, defined as
susbastaneoius hemorrhage and ranging from 2 m.m. to 3.mm
incise. Petaehial hemorrhage over the lower half of the face.
Both eye lids were swollen and black in colour, skin of the face
was congusted. Conjunctival hemorrhages were present. Eye
bolls were appeared to be protruded Neck: Ligature mark was
seen on the neck in between the laryn and the chin as a dark
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brown depression. The length of which was about 33 cm. About
9 cm of posterior surface of the neck was without the mark.
Breadth of the ligature mark was 2 cm in the anterior surface of
the neck in between the two sterno cledomstords just above the
thyroid cartilage. (Sterno cledomastords is the name of a muscle
of the neck which is situated in the anterior surface of the neck,
the attachment of muscle be mastoid process and the midea end
the collar bone. Laterally the mark was branching of both sides
of the neck. Three separate ligature marks were seen braching
from the left lateral end of the ligature mark, as, dark drown
depression crossing each other. Abrasions and bruises. Multiple
present over anterior surface of neck, round about the ligature
mark and lower half of the face in the form of small round and
oval patches. Some bruises were also seen over upper part of
chest anteriorly, and there colour was brown. Another injuries
was noted. Small intestine contained completely digested liquid
flood. Large intestine contained matter. Liver was congusted.
Spleen and kidneys were congusted. Bladder was empty."
After conducting the postmortem examination, PW-20 was of
the opinion that cause of the death was Asphyxia due to strangulations.
This witness has proved the postmortem notes at Exhibit-74. In question
put by the Court, PW-20 has stated that the injures present over the neck in
the form of ligature mark had been caused by ligature or a string or rope.
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He had further stated that injures noted in the postmortem examination
might be caused due to strings like Article-14 shown to him.
22 PW-12 is Udaychandra Panickar, the Special Executive
Magistrate who had conducted test identification parade on accused no.3
Guddu. As far as evidence of this witness is concerned who has conducted
the test identification parade, we may note here that this witness in his
examination in chief itself has stated that the test identification parade was
held in the premises of police station which is contrary to the settled
position of law till date led down by this Court. Secondly the memorandum
of identification parade (Exhibit 39) a contemporaneous document on
record discloses in equivocable terms that this witness had given
suggestions to the witness prior to the test identification parade and the
concerned witness thereafter identified the accused no.3. We are of the
considered opinion that the same cannot be countenanced. For these two
stated reasons we discard the test identification parade held by PW-12 from
our consideration.
23 PW-19 is Abdul Kadar A. Khan, PSI then attached to Kherwadi
Police station. PW-19 has deposed that on 23.11.1984 at about 6.40 p.m.
one Mrs. Razia Khan (PW-1) came to police station and lodged a missing
complaint of her brother. The same was entered at serial no.51 of 1984
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(Exhibit-8). On 27.11.1984 he received instructions from the Senior
Inspector of Police to conduct detailed enquiry in the matter and
accordingly he recorded statements of Razia (PW-1) and Zarina (PW-2)
and accused no.4 and submitted a report to the Senior Inspector of Police.
He also sent wireless messages to all the police stations pertaining to said
Adil Rashid. That on 12.12.1984 the accused no.4 met him and informed
that the accused nos.1 and 2 were also missing with Adil Rashid and were
traced by Civil Line Police Station, Meerut and they had been released on
bail by his younger brother. That on 15.12.1984 he received letter from the
Senior Inspector of Police Missing Persons Bureau, Crime Branch that the
said officer has conducted enquiry into the matter and submitted a report
(Exhibit-69). In the said report, it was stated that when Civil Line Police
Station, Meerut enquired with Zahir and Jamil (accused nos.1 and 2), it
was informed to them by the accused persons that the missing person
(Adil) departed with them from Andheri Railway station on the said date.
That on 19.1.1985 under the orders of Superiors he registered CR No.33 of
1985 under Sections 365 and 114 of the Indian Penal Code against the
accused nos.1 and 2 at Kherwadi police station. The said FIR is at Exhibit-
9. PW-19 thereafter went to Meerut and Delhi in search of Adil. However,
Adil was not found. He also searched accused nos.1 and 2. But they were
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also not found. That when he contacted Civil Line Police Station, Meerut,
the officer therein informed him that on 28.1.1985 the accused no.4 took
the custody of his sons (accused nos.1 and 2) and promised to produce
them at Mumbai. That on 31.1.1985 at about 6.30 p.m. he arrested accused
nos.1 and 2 from the shop of Haji Abdul Bidiwala (PW-16). He
subsequently added Section 302 of the Indian Penal Code to CR No.33 of
1985. That the further investigation was handed over to Police Inspector
Shri Khambe (PW-21) to whom PW-19 assisted in the case.
24 PW-21 is Shri Bhimrao Khambe, Police Inspector then attached
to Kherwadi Police station. PW-21 has deposed that on 1.2.1985 he took
over the further investigation of CR No.33 of 1985 registered at Kherwadi
police station from PSI Shri Khan (PW-19) as per the orders of the
Superior Officer. He collected the papers of investigation. PSI Shri Khan
(PW-19) assisted him in the said case. On 2.2.1985 the accused no.1 made
voluntary statement and expressed his willingness to show the place where
the dead body of Adil was thrown. The accused nos.1 and 2 led the police
to village Durvesh village on Western Express Highway near the mile stone
no.443/4 and accused no.1 pointed out the place where the body was
thrown. The detail panchanama came to be recorded which is at Exhibit 28.
The accused no.1 thereafter led the police to the Advent Pharma Co. at
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Vapi and pointed out the person namely Kavishwar (PW-11). This witness
has deposed about various facts pertaining to the steps taken by him during
the course of investigation upto the stage of filing of chargesheet in the
Court.
25 After scrutinizing the entire evidence available on record
minutely, it is thus clear that the present case is based on circumstantial
evidence. It is the settled position of law that in a case of circumstantial
evidence the circumstances on which the prosecution relies must be
consistent with the sole hypothesis of the guilt of the accused. In a case
resting on circumstantial evidence, it is incumbent for the prosecution to
prove each and every circumstance on which it proposes to rely. The
circumstances so proved should be of conclusive nature i.e. they should
have a definite tendency of implicating the accused. The circumstances so
established should form a complete chain which should exclude every
hypothesis of innocence and unquestionably point towards the guilt of the
accused. In other words the circumstances should be conclusive i.e.
accused and the accused alone has committed the crime.
26 The Supreme Court in its celebrated judgment in the case of
Hanumant Govind Nargundkar V. State of M.P., reported in 1952 SCR
1091: AIR 1952 SC 343: 1953 Cri L.J. 129 has held that:
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"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
reasonable ground for conclusion consistent with the innocence
of the accused and it must be such as to show that within all
human probability the act must have been done by the accused."
27 It is further the settled position of law that in order to sustain a
conviction for murder on circumstantial evidence, the following conditions
must be fulfilled:
(1) The circumstances from which the conclusion of guilt is to
be drawn should be fully established.
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is, they should not
be explainable on any other hypothesis except that the accused
is guilty.
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(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except the
one to be proved and
(5) There must by a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and it must show that in all
human probability the act must have been done by the
accused.
28 The minute scrutiny of evidence on record discloses that
following circumstances have been put forth by the prosecution against the
appellants/accused persons:
(1) motive;
(2) last seen together;
(3) extra judicial confession given to PW-5;
(4) abscondance after the alleged commission of crime/going to
Meerut and staying there;
(5) destruction of evidence;
(6) incriminating articles discovered at the instance of accused
nos.2 and 3
29 In the present case the identity of deceased Adil Rashid is not in
dispute as the mother of deceased (PW-3) had identified and admitted the
photograph of Adil in her testimony.
30 The learned Counsel for the appellants submitted that in the
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present case the chain of circumstances has not been proved by the
prosecution and it has been broken at various stages and therefore the
benefit of doubt may be advanced to the accused persons. She has further
submitted that as the place of recovery of dead body was not in exclusive
possession of the accused persons, the accused persons cannot be held
responsible for the same. In support of her contention, she relied on two
decisions of the Supreme Court reported in AIR 1956 SC 316 in the case of
Eradu & Ors. Vs. State of Hyderabad and 1992 Cri. L.J. 4027 in the case of
Anant Bhujangarao Kulkarni Vs. State of Maharashtra.
31 It is to be noted here that the deceased was last seen together
with the accused person by PW Nos.1 and 3 i.e. sister and mother of the
deceased Adil. These witnesses have stated that on 15.11.1984 at about
11.30 a.m. they saw Adil in the company of accused persons in chocolate
colour Ambassador car. It is to be noted here that these witnesses have not
given any specific and/or distinctive features and/or number of the said car
at the inception to the police. As far as PW-1 Razia is concerned, it has
been brought on record by the defence that the description given by her is
an omission. PW-4 is a panch-witness to the discovery of car at the
instance of accused persons, has stated that when he saw the car in the
Court it was a white colour car. Thus a person who due to darkness could
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not see the registration number or make of car and could not have seen the
colour of seats in it as doors were locked, identifies it after 10 years due to
its number plate though its colour was changed. This identification of car
(Art.9) is after 10 years. Identity of car in this matter is the most important
link. Even its owner PW-5 - Kishore or then PW-10 - Bahadursingh (Peon
at Advent Pharma) are not asked to identify it. PW-11 - Kavishwar, a
Chemist at Advent Pharma who speaks about visit of accused Zahir on
16.11.1984, though gives registration number of car, does not depose that
he saw that car in company premises. In chief, at first place he speaks of
visit of Zahir on 11.11.1984 while at other place he points out that date to
be 16.11.1984. In xerox copy of visit book dated 19.11.1984, visit of PW-5
appears to be recorded as visit by one Kishore Sharma. Thus, last name of
PW5 is not correctly recorded. Even entry of visit of Zahir on 16.11.1984
appears to be not proper. Name Zahir appears to be stated later on and at
end vehicle number is also written. PW-11 mentions this visit book as
inward register and its original is not produced by the prosecution. Thus,
the entire evidence is not convincing to conclude visit of Zahir to M/s.
Advent Pharma on 16.11.1984 or leaving of a car by him there. In our
opinion, the prosecution has failed to prove by leading cogent evidence
with respect to specifications of the car by which the accused persons along
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with deceased Adil travelled on 15.11.1984.
A useful reference at this stage can be made to a decision of the
Supreme Court reported in 2015(9) SCALE 513 in the case of Nizam &
Ors. Vs. State of Rajasthan, wherein in paragraph-18 the Supreme Court
has held that, where the time gap is long, it would be unsafe to base
conviction on 'last seen theory'. It is further held that it is safer to look for
corroboration from other circumstances and evidence adduced by the
prosecution. In the present case, the deceased was last seen in the company
of accused persons on 15.11.1984 at 11.30 a.m. The dead body was
found/noticed on 16.11.1984 at about 7.30 a.m to 7.45 a.m. by Pandu
Parade (PW-14) at village Durvesh, Tal-Palghar District-Thane. In view of
the ration laid down by the Supreme Court in the case of Nizam & Ors
(supra) the time gap between last seen together and finding of dead body is
too long to hold the appellants guilty for the murder of Adil on the said
count, only on the basis of last seen together theory. It is to be noted here
that the accused persons have since beginning taken consistent stand that
they departed with Adil at Andheri railway station. The said fact can also
be enumerated from Exhibit 69 a letter written by the Senior Inspector of
Police of Missing Persons Bureau to the Senior Inspector of Police of
Kherwadi Police station. In our considered opinion, the appellants cannot
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be held guilty for and only on this count. The prosecution has failed to
establish the fact that the possibility of any other person other than the
accused persons committing the murder of Adil, cannot be ruled out by
leading succinct and cogent evidence in that behalf. It is also to be noted
here that though the accused no.1 in presence of PW-6 pointed out the
place where the dead body of Adil was thrown, the police of Manor police
station were already aware of the said spot and therefore pointing of place
by the accused no.1 loses its significance. The lapse of non-coordination
between the two investigating agencies cannot be held to be an aggravating
circumstance against the accused persons.
32 As far as the alleged motive behind the crime i.e. deceased Adil
has separated from accused no.4 and started his own business, the newly
started business of Adil was flourished and therefore the accused persons
were having jealousy against the deceased Adil. The said motive has been
proved by Razia (PW-1) and Smt. Khatunbi (PW-3).
33 The next circumstance of abscondance of the accused persons
till their arrest itself cannot be treated as clinching circumstance against
them. The learned Counsel for the appellants relied upon the decision of
the Supreme Court reported in 1992 Cri. L.J. 2320 in the case of Rajinder
Singh alias Kada Vs. State of Punjab wherein in paragraph-13 the Supreme
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Court has held as under:
" The abscondance of the accused relied upon by the High Court
remains of no consequence. In the first place it is not a
determining factor and not one which could outweigh the other
material appearing on the record. It by itself does not establish
the guilt of the appellant beyond reasonable doubt.
It is a settled principle of law that absconding may lend weight
to the other evidence establishing the guilt of an accused, but, by itself, is
hardly any evidence of guilt. The conduct of an accused making himself
scarce for some period is relevant under S.8 of the Evidence Act and may
be indicative to some extent of a guilty mind, but it would not be
conclusive evidence of his guilt. Even innocent persons may, when
suspected of grave crimes, attempt to evade arrest. Such is the instinct of
self- preservation in an average human being. Absconding is a weak link in
the chain of circumstances and is not conclusive either of guilt or a guilt
conscience. Even assuming that the fact of absconding has been established
by the prosecution, it cannot be held that the appellants were the author of
the crime in the absence of evidence pointing to their guilt. Thus merely
because the accused persons were absconding after a particular date itself
cannot be treated as determining factor and their guilt in the present
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offence.
34 The learned Counsel for the appellants then would contend that
the alleged extra judicial confession given to Kishor Dadhich (PW-5)
cannot be relied upon as it was given to a total stranger. In support of her
contention, she relied upon the decision of the Supreme Court in the case
of Tarseem Kumar Vs. The Delhi Administration reported in AIR 1994 SC
2585 wherein the Supreme Court has held that extra judicial confession
made before stock witness who was casually knowing accused is not
acceptable. In the present case also as we have stated in the forgoing
paragraph, PW-5 Kishor Dadhich was a total stranger to the accused
persons and the accused persons on two occasions confiding with him and
making an extra judicial confession about their guilt, is highly improbable.
PW-5 was neither their friend nor of acquaintance with whom they can
easily make confession. It is further worth to be noted that even after the
accused persons made confession with the said PW-5, PW-5 did not report
to the police immediately. PW-5 has given clarification that as the accused
no.4 has requested him not to mention the same to the police with a view to
save his reputation, is unacceptable. We find the testimony of PW-5 is
untrustworthy and unreliable.
35 This leads us to last circumstance of discovery of incriminating
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articles at the instance of accused nos.2 and 3 from the Advent Pharma
Company. The date of incident in the present case is stated to be between
15th November 1984 and 16th November 1984. The articles belonging to
Adil Rashid were discovered at the instance of accused nos.2 and 3 from
the Advent Pharma Company at Vapi on 20.3.1985 i.e. after about four
months from the date of incident. It is to be noted here that the
contemporaneous documents i.e. memorandum panchanama Exhibits 33
and discovery panchanama Exhibit 33-A are absolutely silent about the
specification of the ditch/pit from where the accused no.3 Guddu
discovered nylon strings, 10 torn pieces of Western railway season ticket, 9
pieces of torn visiting card, four torn pieces of photograph of a girl etc. It is
to be noted here that the evidence of PW-8 and the said contemporaneous
documents Exhibits 33 and 33-A are absolutely silent about the condition
of the said articles found after a gap of four months that whether those
were degraded, decomposed/smeared with soil or otherwise. The evidence
depicts the picture that the said articles were in proper condition as if they
were new. It is therefore very unsafe to rely on the evidence of PW-8 and
those contemporaneous documents Exhibits 33 and 33-A (discovery
panchanama) for basing the conviction of the accused persons on the said
circumstance.
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36 In view of the above, we are of the considered opinion that the
prosecution has not proved the guilt of the appellants satisfactorily and
beyond all reasonable doubts. We therefore give benefit of doubt to the
appellants and allow the present appeal and set aside the conviction and
sentences awarded to the appellants. The bail bonds of the appellants stand
cancelled.
37 The Appeal is accordingly allowed.
(A.S. GADKARI, J.) (B.P. DHARMADHIKARI, J.)
