Syed Eraj Arshad Syed Hashmi Ali vs The State Of Maharashtra
2016 Latest Caselaw 3896 Bom

                                        (1)                           crap301.16




                                                                         
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD




                                                 
                          CRIMINAL APPEAL NO. 301 OF 2016




                                                
    Syed Eraj Arshad s/o. Syed Hashmi Ali                 ..       Appellant
    Age. 50 years, Occ. Business,                                  [original
    R/o. Gadipura, Nanded.                                         accused]
    [At present




                                       
    Nashik Road Central Prison,
    Nashik, Taluka & Dist. Nashik]
                                        Versus
                                 
    The State of Maharashtra                              ..       Respondent
    Through Police Station,
    Bhagyanagar, Nanded.
       
    



    Mr.  R.S.   Deshmukh  h/f.  Mr.   S.S.  Kazi,  Advocate  for   the 
    appellant.
    Mrs. P.V. Diggikar, A.P.P. for respondent/State. 





                                        CORAM :  A.V.NIRGUDE &
                                                 V.L.ACHLIYA,JJ.

DATED : 18.07.2016

ORAL JUDGMENT [PER : A.V. NIRGUDE,J.]:-

1. This appeal challenges judgment and order dated

18.04.2016 passed by the learned Additional Sessions

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Judge-4, Nanded, in Sessions Case No.203 of 2013

convicting sole accused/appellant for offence punishable

under section 302 of the Indian Penal Code. The appellant

was sentenced to suffer life imprisonment and to pay a

fine of Rs.1000/- with a default clause.

2. The prosecution alleged that the accused had

illicit relations with victim-Vidya and due to dispute

that arose between them, he committed her murder on

10.06.2013 at Nanded.

3. The prosecution adduced evidence of twelve

witnesses and the learned Sessions Judge of the Trial

Court held that the prosecution could prove the case of

murder through circumstantial evidence.

4. The learned Counsel for the appellant asserted

that the circumstances required to prove the offence

against the accused are not proved by the prosecution to

prove its case beyond reasonable doubt and therefore the

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appeal deserves to be allowed.

5. The question, therefore, is - what circumstances

are proved against the appellant/accused and whether they

are sufficient to convict him for any offence?

6. P.W.3-Mangalbai in our view is the main

prosecution witness. She happens to be the victim's

mother. She and victim-Vidya used to stay in one house

located in Udaynagar area of Nanded city. Vidya was a

spinster, aged about 40 years. She was working as a clerk

in a school at Purna. She used to travel to Purna

everyday to attend her job. Victim-Vidya's father Nagorao

had two wives. He had control over management of two

schools at Purna. He had two houses, one in Nanded in

which the victim and her mother stayed and where incident

took place and another at Purna, in which he stayed with

his second wife and her son-Rahul (P.W.2). P.W.3-

Mangalbai stated that on 10.06.2013 at about 8.30 a.m.

she was about to leave her house for going to Parbhani as

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she had some work in bank at Parbhani. At the gate she

met the accused entering the house. The accused told her

that he was to go to Nagpur and before he could go there,

he wanted to meet Vidya and P.W.3-Mangalbai. Vidya was

alone in the house. P.W.3-Mangalbai left for Parbhani.

At about 3.30 p.m. she came back. She found that door of

the house was locked from inside. Therefore, she went to

enter the house from rear door. She found rear door open.

She entered the house and saw Vidya's dead body on the

floor. She raised alarm. She made phone calls to her

step-son Rahul, Vidya's friend Vaishali and one Ashok

Paikrao. She also made phone call to her husband i.e.

Vidya's father. She then took Vidya to nearby hospital,

where Doctor declared Vidya as dead. She noticed some

injuries on throat, cheek and knee of the dead body. She

also found Odhani lying near the dead body. She then

realized that Vidya's mobile phones were missing. She

made a call on her mobile phone. The accused picked up

the phone call and told her that he was going to Nagpur

and he had no concern with them. The accused then

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switched off the mobile phone. Rahul (P.W.2), thereafter,

lodged police complaint. She also alleged that she found

cash amount of Rs. 4 to 5 lakhs missing from her house.

7. Rahul is P.W.2. He disclosed in his deposition

that he knew that his step-sister Vidya was having love

affair with the accused and that the accused was

threatening Vidya etc. On 10.06.2013 he received phone

call from Vaishali (P.W.4) - friend of Vidya- and learnt

that Vidya was dead. He and his mother and other elders

rushed to Nanded. He saw Vidya's dead body in their

house. He also noticed some injuries on Vidya's body. He

then made phone call to accused and asked him as to where

he was. The accused informed him that he was carrying

mobile phone belonging to Vidya. He then made complaint

to police.

8. P.W.4-Vaishali's deposition is not quite

relevant. She simply stated that she was friend of Vidya.

She also disclosed that she met Vidya a day prior to her

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death. She learnt from third person about Vidya's death.

In other words, she did not state as to whether she

received phone call from P.W.3-Vidya's mother and Rahul -

P.W.2-Vidya's step-borther.

9. P.W.7 is one Sanjeev Kumar, who stated that he

was related to Vidya and 15 days prior to the incident,

he had occasion to meet Vidya. At that time Vidya told

him that she had love affair with the accused and that

she and the accused would marry soon. She also told him

that she had sex with the accused and the accused had

taken her nude photos using his mobile phone camera. She

further told him that the accused was threatening her

that he would show said photographs to people and defame

her. In addition to this some Text Messages on mobile

phone of the accused and the victim have been proved.

10. In the light of above material, we can find

following circumstances.

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11. First circumstance is that the accused had

motive to commit this offence. There is no denial even

on his part that he had relationship with Vidya. The

text messages that were exchanged between the accused and

the victim-Vidya are admitted evidence. The accused

admitted contents of such messages. On perusal of these

messages, we found that all was not well between the

couple. Vidya was asking the accused that he should

divorce his wife and should marry her. In other words,

she was not ready to become his second wife. On account

of this, there was tension between the couple. The text

messages do not disclose any demand from the accused side

for transferring any property in his favour etc.

Therefore, the prosecution could not prove that the

accused demanded the property from Vidya and since she

was not willing to part with her property, he killed her.

12. Second circumstance according to the prosecution

is that the accused was seen lastly together with the

victim on 10.06.2013 at about 8.30 a.m. P.W.3-Mangalbai

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stated that she met the accused at the gate of her house.

Accused then entered the house where Vidya was alone. The

question is whether this disclosure inspires confidence.

The complaint of this incident was given to police at

about 11.30 p.m. on that day. But in this complaint,

there is no mention of this incident. P.W.2-Rahul is the

complainant and admittedly P.W.2-Rahul met P.W.3-

Mangalbai prior to lodging of the complaint. As soon as

P.W.2-Rahul learnt about the incident, he rushed to

Nanded. He, his father-Nagorao, his mother and his step-

mother P.W.3-Mangalbai were all together till lodging of

the complaint. During this time, P.W.3-Mangalbai would

have certainly disclosed that she had occasion to meet

the accused in the morning at her house. It was natural

for P.W.3-Mangalbai to disclose this incident to all her

family members, so that would have been used as one of

the circumstances against the accused. If this important

incident is not found in the F.I.R., it can be concluded

easily that P.W. 3 Mangalbai did not disclose this piece

of information to anyone till 11.30 p.m. on that day.

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Surprisingly, during investigation P.W.3-Mangalbai's

statement was not recorded soon after the F.I.R. was

lodged. Her statement was recorded seven days after the

incident. In this statement, it seems, she for the first

time disclosed that she had occasion to meet the accused

on that day in the morning at her house. This

circumstance, thus appears to be a planted piece of

evidence. This piece of evidence is not reliable and we

discard it. There are no other circumstances proved

against the accused, which leads to establish guilt of

the accused beyond reasonable doubt. The most important

circumstance of last seen together has not been proved.

13. On due consideration of evidence on record, we

are of the view that reasons and findings recorded by the

learned Additional Sessions Judge are not sustainable in

law. In a case based upon circumstantial evidence, the

evidence must satisfy the following tests :-

"(1) the circumstances from which an inference of guilt is sought to be drawn must be

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cogently and firmly established;

(2) those circumstances, should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) the circumstances, taken cumulative,

should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else; and

(4) the circumstantial evidence in order

to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such

evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

14. It is settled position in law that in a case

based on circumstantial evidence, prosecution has to

prove that the circumstances on the basis of which

conclusion of guilt is to be drawn, must be fully

established and same must be of conclusive in nature and

must include all possible hypothesis except the one to be

proved. Facts so established must be consistent with the

hypothesis of the guilt of the accused and chain of

circumstances must be complete, so as not to leave any

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reasonable ground for a conclusion consistent with the

innocence of the accused.

15. On analyzing reasons and findings recorded by

the trial Court in the light of evidence as discussed in

foregoing paras, we are of considered opinion that there

is no circumstantial evidence which establishes chain of

circumstances to conclusively establish the guilt of

accused and rules out his innocence.

16. In this view of the matter, the reasons and

findings recorded by the Trial Court are not sustainable

in law. In the result, the appeal deserves to be allowed

by extending the benefit of doubt to accused. We,

therefore, pass the following order :-

O R D E R

i. The Criminal Appeal is allowed.

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                    ii.              The   judgment   and   order   dated 

18.04.2016 passed by learned Additional Sessions

Judge-4, Nanded in Sessions Case No.203 of 2013 is hereby quashed and set aside.

iii. The appellant is acquitted of the offences with which he was charged. Fine amount, if paid by the appellant be refunded to

him.

iv. The appellant be set at liberty, if

not required in any other offence.

[V.L.ACHLIYA,J.] [A.V.NIRGUDE,J.]

snk/2016/JUL16/crap301.16 @