Bombay High Court
Sohail Abdul Rashid Shaikh vs The State Of Maharashtra on 11 August, 2017
Bench: R.M. Savant
1 apeal859.06.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 859 OF 2006
Sohail Abdul Rashid Shaikh.
Age : 23 yrs
14/7, Quins Mansion, Ground floor,
Govaliya Tank for Jeet Street Cross
Lane, Nana Chowk, Mumbai.
Present lodged at Kolhapur Central Jail,
Kolhapur. ... Appellant.
Versus
The State of Maharashtra.
(at the instance of Colaba Police Station.
C.R. No. 113 of 2000.) ... Respondent.
WITH
CRIMINAL APPEAL NO. 1497 OF 2003
Shri Shakir Abdul Latif.
Age: Adult, residing at Almadine Bldg.
3/Am Motali Bai Street, Agripada,
Mumbai. ... Appellant.
Versus
The State of Maharashtra.
(at the instance of Colaba Police Station.
C.R. No. 113 of 2000.) ... Respondent.
Talwalkar 1/49
::: Uploaded on - 11/08/2017 ::: Downloaded on - 12/08/2017 02:18:39 :::
2 apeal859.06.sxw
---
Mr. S.R. Phanse, Amicus Curiae, for the Appellant in Appeal No.
859 of 2006.
Mr. Ayaz Khan, for the Appellant in Appeal No. 1497 of 2003.
Mrs. P.P. Shinde, APP for State.
---
CORAM : R.M. SAVANT &
SMT.SADHANA S. JADHAV,JJ
JUDGMENT RESERVED ON: JUNE 19, 2017
JUDGMENT PRONOUNCED ON : AUGUST 11, 2017
JUDGMENT :(PER SMT. SADHANA S. JADHAV,J)
1 The Appellants herein are 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
pay fine of Rs. 1000/-each in default R.I. for one month. They are
also convicted for offence punishable under section 201 read with
34 of the Indian Penal Code and sentenced to suffer R.I. for 2 years
and fine of Rs. 500/- I.d. R.I. for 15 days. The Accused No. 1 i.e.
Talwalkar 2/49
3 apeal859.06.sxw
Appellant in Criminal Appeal No. 859 of 2006 is further convicted
for offence punishable under section 392 of the Indian Penal Code
and sentenced to suffer R.I. for four years and to pay fine of
Rs.1000/- in default to suffer further R.I. for one month, by the
Additional Sessions Judge, Greater Bombay vide Judgment and
Order dated 27/8/2003 and 28/8/2003.
2 Such of the facts necessary for the decision of this
Appeal are as follows :
(i) One Madan Phatak, resident of Dadar used to visit
Hotel "Three Flight Up" at Colaba regularly and used to spend time
playing pool game at the said hotel. On 14/4/2000 Madan had
left the house and had been to hotel "Three Flights Up" for having
dinner with his friends. He did not return home. His relatives and
friends made enquiries at all possible places and finally
approached Colaba Police Station and lodged a missing report with
the police. The said missing report was registered bearing No.
Talwalkar 3/49
4 apeal859.06.sxw
13/2000. The description of the clothes worn by Madan Phatak
while leaving the house was mentioned in the missing report.
(ii) On 16/4/2000 the investigating agency visited the
Hotel "Three Flights Up" and the surrounding area. In the course
of enquiry, it was revealed that Madan Phatak had left the hotel
with his friends Sohail and 3 associates in green Maruti Zen car.
The police recorded statements of staff and the Assistant Manager
of the said hotel and also two taxi drivers.
(iii) On 18/4/2000, the police had received a secret
information about the whereabouts of Sohail. The police visited
the residence of Sohail and called him in the police station for the
purpose of enquiry. In the course of enquiry after hearing his
evasive answers, the police suspected his complicity and he was
arrested.
(iv) The police had then called upon two panchas. In the
presence of the panchas, Sohail had disclosed that he would show
place where he had thrown dead body of Madan Phatak with the
Talwalkar 4/49
5 apeal859.06.sxw
help of his associates. The memorandum was recorded and then
Sohail had led the police Station to Tiger Hill point at Lonavala.
(v) Police had called one Dinesh Rane, who happens to be
the good friend of Madan Phatak. Sohail had led the police to a
valley from where he had thrown the dead body of Madan Phatak.
The police had searched the area and had noticed a dead body
lying under the valley, which was 20 to 25 ft. from the hill point.
(vi) Dinesh Rane had identified the dead body of Madan
Phatak. The police had verified and found that the clothes on the
person of the dead body, matched with the description of the
clothes in the missing complaint.
(vii) Sohail had also disclosed the names of his associates as
Shakir Latif, Ali Mohmed i.e. Accused No. 3 and Accuse No. 4
Ismail. The Police had then registered Crime No. 113 of 2000
against the accused under section 365, 302, 328, 392, 201 read
with section 34, 120B of the Indian Penal Code.
Talwalkar 5/49
6 apeal859.06.sxw
(viii) The investigation was set in motion. Accused Shakir
was arrested on 18/4/2000 from Agripada.
(ix) It was revealed that Accused Nos. 3 and 4 were found
to be juvenile in conflict with law and therefore, on 20th April,
2002 case of the Accused No.3 was transferred to Juvenile Justice
Board and on 21/7/2002 case of Accused No. 4 was transferred to
Juvenile Justice Board.
(x) After completion of investigation, on 15/7/2000 the
charge-sheet was filed against the four Accused. The case was
committed to the Court of Sessions and registered as Sessions Case
No. 710 of 2000.
(xi) The prosecution examined as many as 20 witnesses to
bring home the guilt of the Accused.
3 This is a case which rests on circumstantial evidence
and therefore, it would be necessary to discuss the substantive
evidence of every witness in order to ascertain as to whether the
Talwalkar 6/49
7 apeal859.06.sxw
chain of circumstances is so complete as to eliminate doubt of the
complicity of one or all Accused.
4 P.W. 1 Baburao Mohite was attached to Colaba Police
Station as PSI. He has deposed before the Court that on 15/4/2000
at about 8.30 p.m. one Milind Madhav Joshi had approached police
station and lodged a missing complaint in respect of his brother-in-
law Madan Phatak. He had given the description of the missing
person as well as the clothes worn by him when he left the house.
Milind Joshi had further informed the police that Madan Phatak
had left for hotel "Three Flights Up" for having dinner with his
friends and not returned home. The Police had initiated enquiry in
respect of the missing person and in the course of enquiry they had
learnt that Madan had left the hotel "Three Flights Up" in the
company of his friends Sohail Abdul Rashid, Shakir Abdul Latif, Ali
Mohammed Irani and Ismail Abdul Mansoori.
Talwalkar 7/49
8 apeal859.06.sxw
5 P.W. 1 has further deposed before the Court that on the
basis of a secret information, they had called upon Sohail, Rashid
for enquiry under section 41 of the Code of Criminal Procedure,
1973 and at that stage, Sohail had admitted that on 15/4/2000 he
alongwith his associates i.e. co-accused had taken away Madan
Phatak from Hotel "Three Flights Up" Colaba to Dadar in green
colour Maruti Zen car owned by Ismail Mansoori and that they had
administered some spurious substance through cold drink. That
Madan had started shouting and therefore, they had throttled him.
After they had realised that he had died, they had thrown the dead
body from Tiger Hill Point, Lonawala and before disposing of the
dead body they had removed the gold chain from his neck as also
cell phone and other valuables. After recording memorandum
panchanama Sohail had led to the discovery of the dead body of
Madan Phatak, which was duly identified by Dinesh Rane and then
investigation was carried on in accordance with the procedure.
Talwalkar 8/49
9 apeal859.06.sxw
6 It is elicited in the cross-examination of P.W. 1 that he
had personally not done anything in the enquiry regarding missing
complaint. According to him, names of the Accused were recorded
by the Police Inspector Babar. P.W. 1 has feigned ignorance about
the place wherefrom the Accused was picked up and brought to
the police station for the purpose of enquiry. However, P.W. 1 has
categorically admitted that Sohail was put under arrest after
enquiring under section 41(1)(A) of Code of Criminal Procedure,
1973 after he had made the disclosure statement.
7 P.W. 2 Nitin Suvarnapatki is the panch for discovery of
dead body. He has identified Accused Sohail in the court as the
person who had led the police and panchas to the discovery of the
dead body of Madan Phatak. He has proved the contents of the
memorandum panchanama, which is at Exh. 17. He has deposed
before the Court that the dead body was found at the foot of Tiger
hill near Bhushi dam. The discovery-cum-inquest panchanama is
Talwalkar 9/49
10 apeal859.06.sxw
marked at Exh. 17/1. The witness has also identified the clothes
on the dead body i.e. off-white shirt, chocolate colour full pant,
black colour reddish Banian, under garment and chocolate colour
pair of shoes and sox, leather belt.
8 It is elicited in the cross-examination that Dinesh Rane
happened to be distant friend/acquaintance of P.W. 2. It is further
admitted in the cross-examination that P.W. 2 had been to Colaba
Police Station with his friend when he saw Dinesh Rane present in
the police station and thereafter he had agreed with the police to
act as panch. He was not aware at the time of recording of
panchanama that the co-pancha was photographer by profession.
He has admitted that the discovered body was totally decomposed.
That he was not present at the time of post mortem. The witness
has proved the contents of the panchanama at Exh. 17/1.
Talwalkar 10/49
11 apeal859.06.sxw
9 P.W. 3 Appa Ramchandra Patil is another panch for the
purpose of recovery of the vehicle at the behest of Accused No. 2
whom he has identified before the Court. According to P.W. 3,
after recording of memorandum of Accused No. 2 they had reached
Agri pada in front of one building alongwith Accused No. 2. That
Accused No. 2 had pointed out one green Maruti car parked in the
compound of that building. The police had then inspected the car.
Finger prints were taken. The car was brought to the police
station. The said panchanama is at Exh. 19.
10 P.W. 3 had admitted in the cross-examination that
being a hawker dealing with magic items on the footpath, he was
acquainted with the police. That he has signed the panchanamas
in the van. He appears to be a stock panch of police. It is also
admitted that the number plate on the car was missing at the time
of panchanama. The memorandum under Section 27 of the Indian
Evidence Act was not recorded in this presence. He has also
Talwalkar 11/49
12 apeal859.06.sxw
admitted that at the time of recovery panchanama the face of the
Accused was not covered and there was no veil on his face.
11 P.W.4 Narayan Ravi Shetty is panch for the recovery of
the green colour Maruti Zen. According to him, the woolen matting
inside the dicky had faint blood stains, similarly, other articles
such as blue colour plastic bag, plastic sheet and the Tommy. The
seat covers were stained with blood. The articles seized were
packed in a carton, sealed and labelled. The panchanama is at Exh.
23. It is admitted that the signatures on the labels of the card
board box were not found. He was a cold drink vendor running a
stall near Gateway of India.
12 P.W. 5 Abdul Azis Qureshi and P.W. 6 Ashok Mishra are
the panch for recovery of pair of shoes from the Accused No. 1 and
the clothes of Accused No. 1 respectively. The panchanama of
Talwalkar 12/49
13 apeal859.06.sxw
seizure of pair of shoes is at Exh. 27 and panchanama in respect of
recovery of clothes of Accused No. 1 Sohail is at Exh. 29.
13 P.W. 7 Abu Hasan Vali Mohd. Ansari is the panch for
recovery of a cell phone at the instance of the Accused No. 1. The
said cell phone was produced by one Lucky to whom the Accused
No. 1 had sold the said cell phone. P.W. 7 had identified Accused
No. 1 Sohail in the Court.
14 P.W. 8 Arif Ablatif Sayyed is another panch for the
recovery of metal lock of Globe company.
15 P.W.9 Dr. Bhalchandra Gopinath Chikhalkar had
performed autopsy on the dead body of Madan Phatak at Grant
Medical College at J.J. Hospital. The post mortem notes are at
Exh. 37. According to P.W. 9, he had noted external and internal
injuries in the post mortem reports and after receipt of Chemical
Talwalkar 13/49
14 apeal859.06.sxw
Analyser's report he had opined about the cause of death as
compression of neck with head injury. All injuries were ante
mortem injury. P.W. 9 has specifically opined that death was
caused more than 72 hours prior to conducting post mortem.
16 In the cross-examination Dr. Chikhalikar has admitted
that blackish thread was found around the neck of the body at the
time of conducing post mortem and the same was noted in column
No. 8 of the notes of the post mortem. According to him, it is a
case of homicidal death. However, the possibility that the injuries
could be a result of falling from height under intoxication and that
particular part of the body had come into contact with hard and
rough substance cannot be ruled out. He has also admitted that the
head injuries mentioned in coloumn No. 19 were individually
sufficient to cause death. Column 12 of the post mortem notes
indicates that maggots were present all over the body.
Talwalkar 14/49
15 apeal859.06.sxw
17 P.W.10 Bascoraj Antiraj Christopher has acted as panch
for the recovery of the stolen articles at the instance of the Accused
No. 1 Sohail. The Accused No. 1 had led the police and panchas to
Nagpada near Maratha Mandir where the Accused had pointed out
one jewellary shop where he had sold the gold chain which was
adorned by the deceased. The police had seized the chain.
18 P.W.11 Shashidhar Somappa Salian was working as
Pool Master in the hotel "Three Flights Up" at Colaba. He has
deposed before the Court that he was acquainted with the
members who regularly visited the Hotel for playing pool. He was
working in the said hotel from 1999 to 2001. According to him,
Madan Phatak used to regularly visit the Hotel for playing pool.
That on the relevant day, Madan Phatak had introduced Sohail
and Shakir to P.W. 11. According to the P.W. 11, on 14/4/2000 he
had seen Madan Phatak in the company of Sohail and Shakir in
hotel "Three Flights Up". That on 14/4/2000 at 8 p.m. Madan
Talwalkar 15/49
16 apeal859.06.sxw
Phatak had visited Hotel "Three Flights Up" and had played 2/3
games with P.W. 11 as other members had not yet come.
Thereafter, P.W. 11 had left for having meals and when he
returned after sometime, he had seen Madan playing with Sohail.
19 While narrating the chronology of events, P.W. 11
stated that after Madan had played 2 to 3 games with Sohail,
Sohail had left the Hotel and returned after some time alongwith
his friend. Sohail had then introduced his friend Shakir to P.W. 11
and then all three of them had consumed liquor in the hotel and
left the Hotel by 11.15 p.m. P.W. 11 has identified the Accused
before the Court.
20 On 19/4/2000 the police had recorded the statement of
P.W. 11. On 20/4/2000 P.W. 11 was called in Arthur Road Jail to
identify the suspect. He had identified 3 suspects in a row where
they were standing alongwith 15 to 20 other persons.
Talwalkar 16/49
17 apeal859.06.sxw
21 In the cross-examination, P.W. 11 has admitted
following :
(i) There is no register maintained in the hotel to show
that Madan Phatak and both the Accused had visited the Hotel
"Three Flights Up" on 14/4/2000. That 20 to 25 members were
regularly visiting the Hotel "Three Flights Up" for playing Pool
game.
(ii) That there are 3 tables in the hotel and that he was
incharge of 3 tables alongwith another employee namely, Mandar.
(iii) That near about 10 to 15 minutes is required for
completing one pool game.
(iv) That at the time when P.W.11 was playing with Madan
Phatak, other members were playing on other pool table. But he
could not recollect their names.
(v) P.W.11 has further admitted in the cross-examination
that on 17/4/2000 for the first time, he learnt about missing of
Talwalkar 17/49
18 apeal859.06.sxw
Madan Phatak from the Manager of his Hotel namely, Vivek. His
statement was recorded on 19th April, 2000 by P.I. Babar and at the
time of recording of his statement 3 employees namely Vivek,
Alwin and Inayaz were present in the police station. He has
admitted that no police officer had visited the hotel. When
confronted with his statement, he has stated that he had not
disclosed to the police that Madan Phatak, Sohail and Shakir had
consumed liquor in the hotel on that date.
(vi) It is also admitted that 4 persons from Hotel namely
Vivek, Alwin, Imtiyaz were called to Arthur Road Jail. That his
supplementary statement was not recorded after the test
identification parade. The witness was confronted with the
supplementary statement by the advocate for the defence and he
has admitted that the other employees were not present in the
police station when his supplementary statement was recorded.
(vii) It is further admitted in the cross-examination that
P.W.11was not acquainted with Shakir prior to 14/4/2000. The
Talwalkar 18/49
19 apeal859.06.sxw
witness was confronted with his statement and omission was
marked to the extent that Sohail had revisited the Hotel at about
10.15 to 10.30 p.m. alongwith his friend. It is admitted that after
playing pool game Shakir had not revisited the Hotel. That
Mandar was not on duty on 14/4/2000 and P.W. 11 was alone
handling all the 3 pool tables.
(viii) It is elicited in the cross-examination that in the test
identification parade, appearance of 15 persons put for the parade
was not similar.
22 P.W. 12 Allauddin Abdul Razak Sah was working as
taxi driver and was plying taxi bearing No. MH-01-121 owned by
Sah Ulla Khan. He used to drive the said taxi from 6 p.m. to 9 p.m.
at Colaba and after 9 p.m. he used to halt at taxi stand near the
hotel Three Flights-up. According to him, he had taken Madan
Phatak from Colaba to Hindu Colony on 10 to 12 occasion. That
Madan Phatak used to be accompanied by his friend Sohail in the
Talwalkar 19/49
20 apeal859.06.sxw
taxi. That he used to drop Madan Phatak at Hindu Colony, Dadar
and thereafter, his friend Sohail at Yari Road, Andheri on every
occasion.
23 He has further deposed that on 14/4/2000 at about
11.45 p.m. he was waiting for passenger near the petrol pump at
the back side of Regal Theatre. He noticed Madan Phatak
alongwith Sohail leaving Hotel Three Flights-up. He was expecting
that both would engage his taxi. However, at that time, one Maruti
Zen of Green colour having dark glasses came from the side of the
Hotel Regal and stopped in front of them. He saw Madan Phatak
and Sohail boarding the said Maruti Zen car which proceeded
towards Regal Theatre. In the meanwhile, his taxi was engaged by
another passenger and therefore, he had left the place.
24 Statement of P.W. 12 was recorded on 16/4/2000.
Upon being shown the photo of Madan Phatak he has identified
Talwalkar 20/49
21 apeal859.06.sxw
Madan Phatak as the person whom he used to drop at Hindu
Colony, Dadar. He has identified Sohail at the test identification
parade as well as in the Court.
25 He has admitted that the police had recorded the
statement of taxi driver Shakil and the employees of hotel Three
Flights-up on 16/4/2000. He has expressed his inability to
disclose the name of other passenger like Madan Phatak. He was
cross-examined on the point of the procedure adopted while
conducting test identification parade and has admitted that upon
being asked by the jail police, he had identified the suspect. P.W.
12 has specifically stated that Maruti Zen car had dark window
glass and therefore, occupants of the car at the relevant time were
not visible. He has also admitted that he had not noted the
registration number of the Maruti Zen car at the time when he had
seen Madan Phatak and Sohail boarding the said car.
Talwalkar 21/49
22 apeal859.06.sxw
26 According to him, Madan was a regular customer. On
14/4/2000 Madan Phatak was playing pool at 8.30 p.m. and was
consuming beer. That Madan Phatak had introduced him to one
person whom he identified in the Court as Accused No. 1 Sohail.
That on 14/4/2000 at about 11.15 p.m. Madan Phatak had left the
Hote in the company of Sohail. On 15/4/2000 wife of Madan had
eqnuired with him about the whereabouts of her husband. On
20/4/2000 P.W. 13 had identified Sohail at test identification
parade. There is an omission to the effect that before arrival of the
accused Madan Phatak was playing pool with others.
27 P.W.14 Naval Kishor Sav is a material witness since he
had last seen the deceased Madan in the company of Soheb. He
has deposed before the Court that on 14/4/2000 at about 11.30 to
12 mid night Madan had been to his pan stall and ordered two
pan(beetel leaves). He has taken one as a parcel. The witness has
identified Sohail as the person who had accompanied Madan at
Talwalkar 22/49
23 apeal859.06.sxw
the relevant time. P.W. 14 was also taken to the Arthur Road Jail
for the purpose of test identification parade. According to him, he
had identified three suspects. One of them was Sohail, second was
Sakir and third one was Ismail. He identified Sohail and Sakir in
the Court. According to the witness, Sohail had accompanied
Madan to the pan stall, whereas Sakir was seated in the front seat
of the car and while departing, Madan and Sohail had occupied the
rear seat of the car.
28 It is reiterated in the cross-examination that the
Accused No. 1 was seen in the company of Madan Phatak. He had
not mentioned the name of Sohail but had given his description.
29 P.W. 15 Sham Patil is the Special Metropolitan
Magistrate who had conducted the test identification parade at
Arthur Road Jail. According to him, he had conducted the test
identification parade in accordance with law. He had recorded
Talwalkar 23/49
24 apeal859.06.sxw
memorandum panchanama of the test identification parade, which
is at Exh. 51, which was recorded simultaneously at the time of
conducting the parade.
30 P.W. 15 was knowing the names of both the suspects
and therefore, had not verified their names. According to him,
Sohail has not changed the place at the time of identifying witness
No. 6, 7 and 8. He has also admitted certain errors in recording
the panchanama. P.W. 15 knew the provisions stipulated in the
High Court Criminal Manual for holding test identification parade.
31 P.W. 16 Dipti Phatak is the widow of deceased Madan
Phatak. She has deposed before the Court that on 14/4/2000, she
had called upon her husband at about 5 p.m. seeking permission to
go to Dombivli since their daughter was residing with her parents.
He allowed her to go. Upon further enquiry, her husband had
informed her that since she is not at home, he would go to Hotel
Talwalkar 24/49
25 apeal859.06.sxw
Three Flights-up, Colaba and enjoy with his friends. She reached
Dombivali and again called upon her husband. In their casual
discussion, he had informed her that he would wear cream colour
shirt and chocolate colour pant and brown colour shoes for the
party.
32 She has further deposed that on 15th April, 2000 she
made a phone call to her husband and the same was not answered.
The cell phone of her husband was switched of.. Their factory at
Thane is closed. She reached Dadar at about 12 noon and
enquired about her husband. They tried to trace his whereabouts,
but could not trace the same and therefore, they decided to lodge
a missing complaint. She asked her brother Milind Joshi to lodge a
missing complaint. Before the Court she identified the clothes and
the accessories of her husband.
Talwalkar 25/49
26 apeal859.06.sxw
33 In the cross-examination, she had admitted that she
had not gone to her residence at Dadar on 14/4/2000 but she had
gone on 15/4/2000. The missing complaint was filed on the same
day i.e. on 15/4/2000. Her statement was recorded by the police
on 20/4/2000. She had admitted that 4 to 5 months prior to the
alleged incident, she had visited the Hotel Three Flights-up,
Colaba alongwith her husband.
34 P.W. 17 Suresh Jain is licensed money lender and his
shop was situated at Forest Road, Betwali Chawl. He has deposed
before the Court that on 16/4/2000 at about 7 p.m. the Accused
Sohail had been to his shop and demanded Rs. 2000/- by
mortgaging gold chain which was weighing 12 to 13 grams. He
has passed on a receipt in favour of the Sohail. On 23/4/2000 the
police from Colaba Police Station had brought Sohail to his shop.
At that time, he had produced gold chain, which was mortgaged by
Sohail before the police. He had identified the gold chain. The
Talwalkar 26/49
27 apeal859.06.sxw
copy of the receipt is marked at Exh. 55. The witness had shown
the register to the police which was signed by the Accused Sohail
and the details of the receipt No. 288. Perused the Receipt No. 288
which is signed by the Accused. The defence had tried to make a
capital of the overwriting in case of date. However, on the same
receipt the date is recorded as 16/4/2000 and is signed by the
Accused. The chain weighed 14.400 gms. The receipt clearly
establishes the complicity of the Accused Sohail.
35 P.W.18 Mohd. Rajput was working as Mobile
Motor Mechanic at Khandala Ghat. According to him, in April,
2000, the Accused No. 1 had approached him for repairing the car
which had failed at Mechanic Point, Bhor Ghat at about 3 to 4 a.m.
The witness had not noticed registration number of the vehicle. He
had changed clutch plate of the vehicle. According to the witness,
there were four occupants in the said car, who were referring to
one another by their name Sohail, Ismail, etc. He has admitted in
Talwalkar 27/49
28 apeal859.06.sxw
the course of cross-examination that he has no documentary
evidence to show that he was working as mobile motor mechanic.
36 P.W.19 Saif Yusuf Jafrani was doing business as
hawker on the footpath of Manish market. On 16/4/2000 he was
running a Chinese stall at Bohri Moholla. On 24/4/2000 the police
had taken Sohail to the house of P.W.19 and it was revealed that
Sohail had sold a cell phone to P.W. 19. He has identified Sohail
before the Court, but has refused to identify the cell phone which
was given to him by Sohail. The said witness has been declared
hostile.
37 P.W.20 Sunil Babar was attached to Colaba Police
Station as P.I. Crime. According to this witness on 15/4/2000 one
Milind M. Joshi had approached Colaba Police Station and lodged
a missing complaint of his brother-in-law Madan Phatak. It was
registered as Adult Missing Report Registration No. 13/2000. On
Talwalkar 28/49
29 apeal859.06.sxw
16/4/2000 police visited Hotel Three Flights-up and it was
revealed that Madan Phatak was taken by his friend Sohail and 3
associates in green Maruti Car Registration No. MH-019080 on
14/4/2000 at about 11.30 p.m. They had recorded the statement
of the Assistant Manager of Hotel Three Flights-up, Security staff
and two taxi drivers. On 17/4/2000 the police had reached the
house of Sohail and recorded statement of his father. On
18/4/2000 Sohail was brought to the police station as they had
suspected him. In the course of interrogation Sohail had
volunteered to show the place where the dead body of Madan
Phatak was thrown by him with the aid of his associates. They
were led by Sohail to Tiger Hill point at Lonawala and have traced
the dead body of Madan Phatak. It was in a decomposed state.
The police had noticed that the deceased was wearing off-white
shirt, chocolate colour full pant, wear chocolate colour shoes,
brown colour sox etc. as was mentioned in the missing complaint.
The witness has stated that Sohail has also disclosed the name of
Talwalkar 29/49
30 apeal859.06.sxw
the co-accused Shakir, Ismail, Ali Abbas. Hence they were
arraigned as Accused in C.R. No. 113 of 2000 .
38 P.W. 20 surprisingly submits that he had then
registered ADR No. 39 of 2000 and forwarded the dead body to
G.T. Hospital for conducting autopsy under the said ADR.
According to P.W. 20, he had carried the investigation in
accordance with law. He recorded the statement of the witnesses.
He has summoned the Chemical Analyser to the police station who
inspected the car which was seized in the course of investigation.
He has proved the omissions and contradictions in the statement
of the witnesses.
39 He has admitted in the course of cross-examination that
while recording the missing complaint, the description of the
clothes last worn by the missing person was also mentioned. He
had proceeded with the investigation of the said crime on
Talwalkar 30/49
31 apeal859.06.sxw
18/4/2000. He had recorded statement of the wife of the deceased
on 20/4/2000. That the Accused No. 1 Sohail was in police
custody in the intervening night of 18 th and 19th April, 2000 and
that the Accused was produced before Additional Chief
Metropolitan Magistrate, 37th Court, Esplanade, Mumbai on
19/4/2000 and he was remanded in custody till 3/4/2000. Two
Accused were juvenile in conflicts with law. It is also admitted that
the body was in a decomposed state. It was infiltrated with
maggots. The dead body was identified by his friend Dinesh
Phatak. The clothes found on the dead body had tallied with the
description of the clothes mentioned in the missing complaint. The
dead body was also identified by the cousin of the deceased namely
Prabhakar Phatak in the hospital. He had seen the Accused to be
identified at the time of test identification parade.
40 Upon the perusal of the substantive evidence recorded
by the prosecution, it is established by the prosecution that on
Talwalkar 31/49
32 apeal859.06.sxw
14/4/2000 Madan Phatak had visited the Hotel Three Flights-up at
Colaba. He had not returned home. His wife was in contact with
him. On 15th April, 2000 the brother-in-law of Madan Phatak had
lodged a missing complaint and while lodging the missing
complaint he had also given description of the clothes last worn by
the missing person. That Madan Phatak had left the Hotel Three
Flights-up some time after 11.30 p.m. He was seen in the
company of Sohail and other friends and had boarded a green
colour Maruti Zen car. That they had been to the Pan stall of P.W.
14 who had seen the deceased in the company of Accused No. 1.
That the Accused No. 1 had mortgaged a gold chain with P.W. 17
Suresh Jain. The receipt signed by the Accused dated 16/4/2000 is
on record which is marked as Exh. 55. P.W. 11,12 and 13 have
proved that Madan Phatak was in the company of Accused No. 1
upto 11.3.0 p.m. on 14/4/2000 and Madan Phatak was missing
thereafter. The prosecution has seized the Car No. MH-01 U 9080
and has made an attempt to prove that it was the same car which
Talwalkar 32/49
33 apeal859.06.sxw
was boarded by Sohail and his friend on 14/4/2000. On
16/4/2000 Sohail was summoned to the Police Station for enquiry
and in the course of investigation Sohail Accused No. 1 had led the
investigating agency to the discovery of the dead body of Madan
Phatak. The body was in decomposed state on which there was
maggot formation. On the basis of medical evidence i.e. post
mortem notes, it is established that Madan had expired more than
72 hours prior to conducting of autopsy on the dead body and the
same is proved by P.W. 9. The contents of the post mortem notes
are proved by P.W. 9 and the same is marked as Exh. 36.
41 Upon perusal of the substantive evidence of P.W. 11,
12, 13, 14 it is not proved that the Accused No. 2 i.e. Appellant in
Criminal Appeal No. 14 of 1997 Shakir Abdul Latif was the person
who was driving the Maruti Zen car. None of the witnesses had
given the registration number of the Maruti Zen car. The recovery
of the said car at the instance of Accused No. 2 under section 27 of
Talwalkar 33/49
34 apeal859.06.sxw
the Indian Evidence Act is not proved as the car was parked in
open space. There was no enquiry or investigation in respect of the
ownership of the said car. In any case, it is established that the
Accused No. 2 was not the registered owner of the said car nor it
was parked in front of his house. The evidence of P.W. 18 Mohd.
Rajput who claims to have repaired the car in the intervening
night of 14th and 15th April, 2000 is also not proved. That he has
deposed before the court that he had not noticed the registration
number of the said car. It is case of the prosecution that the
clothes of the Accused were seized from the house within 3 days of
the alleged incident. The complicity of the Accused No. 2 in the
said offence is not proved beyond reasonable doubt.
42 It is a case of circumstantial evidence and the
incriminating circumstances as against the Accused No. 1 is that
the dead body of deceased Madan Phatak was discovered at the
instance of Accused No. 1. Hence, it was incumbent upon the
Talwalkar 34/49
35 apeal859.06.sxw
Accused No. 1 to explain the circumstances as to how he had
knowledge about the place where the dead body of deceased
Madan Phatak was disposed of.
43 The Accused No. 2 was arrested on the basis of the
disclosure statement of the Accused No. 1. The manner in which
the test identification parade was conducted as far as Accused No.
2 is concerned, would not inspire the confidence of the Court.
44 The learned Counsel for the Accused No. 2 has placed
implicit reliance upon the Judgment of the Hon'ble Apex Court in
the case of Aghnoo Nagesia v/s. State of Bihar reported in AIR
1966 (SC) page 119, more particularly the finding of the Hon'ble
Apex Court to the observation which reads thus :
"The law relating to confessions is to be found generally in ss.
24 to 30 of the Evidence Act and ss. 162 and 164 of the Code
of Criminal Procedure, 1898. Sections 17 to 31 of the
Talwalkar 35/49
36 apeal859.06.sxw
Evidence Act are to be found under the heading "Admissions".
Confession is a species of admission, and is dealt with in ss.
24 to 30. A confession or an admission is evidence against the
maker of it, unless its admissibility is excluded by some
provision of law. Section 25 is imperative and confession
made to a police officer in no circumstances is admissible in
evidence against accused. This section covers confession
made made when he was free and not in police custody as
also a confession made before any investigation has begun.
The expression "accused of any offence" covers a person
accused of an offence at the trial whether or not he was
accused of the offence when he made the confession. A
statement or confession made in the course of investigation
may be recorded by Magistrate under section 164 of the
Cr.P.C. subject to the safeguards imposed by the Section.
45 According to the learned Counsel, the confessions or
admissions and the statement of Accused No. 1 as well as Accused
No. 2 are inadmissible in evidence and the only material against
the Accused No. 2 is disclosure statement of Accused No. 1 and the
Talwalkar 36/49
37 apeal859.06.sxw
recovery of car which is not proved beyond the reasonable doubt.
It is also submitted by the learned Counsel that the prosecution has
also failed to prove the guilt of Accused No. 1 beyond reasonable
doubt as the dead body was discovered while he was in custody.
46 The last submission of the learned Counsel for the
Accused No. 2 deserves no consideration in the facts of the present
case. The Accused No. 1 was called by the police for the purpose of
enquiry and that he had volunteered to show the place where the
dead body of Madan Phatak had been thrown. Therefore, it is
clear that the said fact was within the exclusive knowledge of
Accused No. 1.
47 Section 106 of the Indian Evidence Act, 1872
stipulates as under :
"When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him."
Talwalkar 37/49
38 apeal859.06.sxw
48 Hence, onus shifts on the Accused and that it was
incumbent upon the Accused No. 1 to prove the particular fact. It
is not the case of the Accused No. 1 that Madan Phatak had met
homicidal death at the hands of some other person and that he had
the knowledge of the place where the dead body was thrown or
concealed. Hence, it can be safely inferred that the said fact was
within his special knowledge. Moreover, the chain adorned by
Madan Phatak was mortgaged by the Accused No. 1 soon after the
incident with P.W. 17 is duly proved through P.W. 17. Hence, it
can be said that the prosecution has proved that the deceased was
last seen in the company of Accused No. 1. The circumstances
which are proved by the prosecution are incompatible with the
innocence of the Accused No. 1.
49 The learned Counsel appointed to espouse the cause of
Accused No. 1 has placed reliance upon the Judgment of the
Talwalkar 38/49
39 apeal859.06.sxw
Hon'ble Apex Court in the case of Jaharlal Das v/s. State of Orisa
reported in (1991) 3 SCC 27. The Hon'ble Apex Court in the said
case observed thus :
"It is well-settled that the circumstantial evidence in
order to sustain the conviction must satisfy three
conditions;
i) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly
established;
ii) those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
accused;
iii) the circumstances, taken cumulatively, 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 none else, and
it should also be incapable of explanation on any other
hypothesis than that of the guilt of the accused."
50 These are settled principles of law. It is true that the
Court has to be cautious that the conjecture and suspicion do not
Talwalkar 39/49
40 apeal859.06.sxw
take place of legal proof. In the present case, Pan stall owner P.W.
14 has identified the person who had accompanied Madan Phatak
after 11.30 p.m. coupled with the fact that within 3 days dead
body of Madan Phatak was discovered at the instance of Accused
No. 1 is sufficient to draw a conclusion that Accused No. 1 is guilty
of the offence punishable under section 302 read with Section 201
and 34 of the Indian Penal Code.
51 In Hanumant Govind Nargundkar v/s. State of M.P.
reported in AIR 1952 SC 343, the Hon'ble Apex Court has
observed that -
"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 pendency and they should be such as to exclude
Talwalkar 40/49
41 apeal859.06.sxw
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 a 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."
That the dead body of Madan Phatak being discovered at the
instance of the Accused No. 1 without putting forth any
explanation about his knowledge of existence of dead body at the
given point, coupled with the fact that there are witnesses, who
have stated on oath that Madan Phatak was lastly seen in the
company of Accused No. 1 and was not heard of thereafter, is
sufficient to prove the guilt of the Accused.
52 The learned Counsel appointed for Accused No. 1
further submits that the Accused No. 1 can be convicted at the
Talwalkar 41/49
42 apeal859.06.sxw
most for the offence punishable under section 201 of the Indian
Penal Code and not for section 302 of the Indian Penal Code.
53 That unless the Accused No. 1 had discharged his
liability under Section 106 of the Indian Evidence Act, such
conclusion would not be permissible in the eyes of law as the onus
would shift upon the Accused to establish that he only had the
knowledge of the place where the dead body was disposed of.
There is only denial at the stage of statement under section 313
Code of Criminal Procedure, 1973 and no explanation under
Section 106 of the Indian Evidence Act.
54 That the Accused No. 1 was convicted by a Judgment
and Order dated 20/8/2003. He was transferred to Nagpur
Central Prison on 9/4/2007. He was released on parole on
14/4/2010 and has not returned to the jail. Hence, Crime No. 190
of 2013 is registered at J.J. Marg Police Station, Mumbai against
Talwalkar 42/49
43 apeal859.06.sxw
the Accused No. 1 for offence punishable under section 224 of the
Indian Penal Code. It was in this circumstance that this Court had
appointed Mr. Phanse, Advocate to espouse the cause of the
Appellant.
55 The learned Counsel appearing for the Accused No. 1
submits that the prosecution has failed to establish the motive on
the part of the Accused No. 1 to cause homicidal death of Madan
Phatak. In every case, it is not necessary that there should be a
motive to cause homicidal death. The motive is psychological
factor which is in the mind of the Accused and may not be
apparent on the face of the record unless it culminates into action.
There is no material on record to show what must have transpired
between the Accused No. 1 and deceased Madan Phatak on
14/4/2000 after 11.30 p.m. It is in this circumstance that the
onus would still lie upon the Accused to establish the facts within
his special knowledge. The motive of the Accused person may not
Talwalkar 43/49
44 apeal859.06.sxw
be known to any other person and therefore, it would be difficult
to put forth the evidence as far as the motive is concerned.
56 In the case of Nathuni Yadav v/s. State of Bihar
reported in 1996 Suppl(10) SCR 905, the Hon'ble Apex Court has
observed as follows :
"Motive is the emotion which impells a man to do a particular
act. Such impelling cause need not necessarily be
proportionally grave to do grave crimes."
57 In a criminal trial it would not be necessary to prove
the motive, but the criminal act of the offender itself is an
expression of motive. The prosecution has proved the complicity
of the Accused No. 1 by establishing the chain of circumstances
which eliminates the innocence of the Accused and therefore, it can
be safely inferred that the prosecution has proved the case as
against the Accused No. 1 beyond reasonable doubt.
Talwalkar 44/49
45 apeal859.06.sxw
58 Post mortem was conducted on 19th April, 2000 and at
that time, it was noticed that there was maggot formation. P.W. 9
has specifically stated that post mortem was conducted on
19/4/2000. Dr. Mody in his Medical Jurisprudence and
Toxicology has stated thus :
"Flies such as, common houseflies and blowflies, are
attracted to the body, and lay their eggs, especially in
the open wounds and natural orifices. The eggs hatch
into maggots or larvae within eight to twenty four
hours during the hot whether. The maggots crawl into
the interior of the body and helps in destroying the soft
tissues. Some times, maggots appear even before
death, if a person has ulcers on him. The maggots
become pupae in four or five days, developing through
about four stages called instars. The pupae developed
into adult flies in the course of three to five days. They
are of some help in estimating the time of death; ability
to identify the type and knowledge of their exact life
history being essential."
Talwalkar 45/49
46 apeal859.06.sxw
In the present case, missing complaint was lodged on
15th April, 2000, the deceased had spoken to his wife in the late
hours of 14/4/2000. The dead body was discovered at the
instance of Accused No. 1 on 18/4/2000 and the post mortem was
conducted on 19/4/2000. The maggot formation would clearly
establish that Madan Phatak had died 4 to 5 days prior to the
conducting of post mortem.
59 After going through the facts of the case and
submissions advanced by the learned Counsel as well as the
learned APP, this Court is of the opinion that no case is made out
to interfere in the findings recorded by the Trial Court as against
the Accused No. 1. However, the Appellant in Criminal No. 1497
of 2003 deserves to be acquitted by extending to him benefit of
doubt. He was in custody from 18/4/2000 till November, 2005.
Talwalkar 46/49
47 apeal859.06.sxw
He was enlarged on bail by this Court vide order dated
27/10/2005. Sentence of fine deserves to be set aside.
60 Before parting with the Judgment, this Court record
appreciation for the efforts taken by Mr. Phanse, Advocate
appointed to espouse the cause of the Appellant in Criminal Appeal
No. 859 of 2006 herein. He is entitled to the professional
remuneration as stipulated by the rules.
70 Hence, the following order is passed :
ORDER
(i) Criminal Appeal No. 859 of 2006 is dismissed.
(ii) The Judgment and Order dated 27/3/2003 is hereby
confirmed in so far as the Appellant/Accused No. 1 Sohail Abdul
Rashid Shaikh in Criminal Appeal No. 859 of 2006 is concerned.
Talwalkar 47/49
48 apeal859.06.sxw
(iii) The Appellant-Sohail Abdul Rashid Shaikh in Criminal
Appeal No. 859 of 2006 is convicted for offence punishable under
section 302, 201 read with section 34 of the Indian Penal Code and
sentenced to R.I. for life. Sentence of fine is maintained.
(iv) There shall be a standing non-bailable warrant against
Accused No. 1/Appellant in Criminal Appeal No. 859 of 2006.
(v) Criminal Appeal No. 1497 of 2003 is allowed.
(vi) The Judgment and Order dated 27/3/2003 is hereby
set aside in so far as the Appellant/Accused No. 2 Shakir Abdul
Latif in Criminal Appeal No. 1497 of 2003 is concerned.
(vii) The Appellant-Shakir Abdul Latif is acquitted of all the
charges.
Talwalkar 48/49
49 apeal859.06.sxw
(viii) Sentence of fine is set aside.
(ix) The bail bond of Appellant/Accused No. 2 Shakir Abdul
Latif in Cri. Appeal No. 1497 of 2003 stands cancelled.
(SMT. SADHANA S. JADHAV,J) (R.M. SAVANT, J)
Talwalkar 49/49
