Bombay High Court
Kalim Ashraf Mohd Ahmed Ansari @ ... vs The State Of Maharashtra on 10 November, 2017
Bench: V.K. Tahilramani
1. cri apeal 385-14 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 385 OF 2014
Kalim Ashraf Mohd. Ahmed Ansari @ ]
Builder ]
Age - 33 Years, Muslim, Indian Inhabitant, ]
Residing at House No. 361/1, Power Loom ]
Factory of Jahid Sheth, Bardi Compound, ]
Panjarpol, Bhiwandi, Dist. Thane. ]
Native Place : Firindipur, Gosithana, ]
Dist. Mau, Uttar Pradesh. ]
At present lodged in Kolhapur Central ]
Prison, Kalamba. ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
[Through Nizampur Police Station in ]
C.R. No. 168/2008.] ] Respondent
• Ms. Rohini M. Dandekar, Advocate (appointed) for
the Appellant
• Mr. Arfan Sait, APP for the State
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : NOVEMBER 9 & 10, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 21.6.2013
jfoanz vkacsjdj 1 of 21
1. cri apeal 385-14 (j).doc
passed by the learned District Judge-2 & learned Additional
Sessions Judge, Thane in Sessions Case No. 441 of 2008.
By the said judgment and order, the learned Session Judge
convicted and sentenced the appellant as under:-
Convicted Sentenced to
u/S
302 Rigorous Imprisonment for life and fine of Rs. 5,000/- in
IPC default, R.I. for 3 months.
376 R.I. for 10 Years and fine of Rs. 5,000/-, in default, R.I. for 3
IPC months.
366A R.I. for 3 Years and fine of Rs. 3,000/-, in default, R.I. for 2
IPC months.
201 R.I. for 3 years and fine of Rs. 3,000/-, in default, R.I. for 2
IPC months.
The learned Sessions Judge directed that all the
sentences shall run concurrently.
2. The prosecution case briefly stated, is as under:
(a) The victim girl was five years old at the time of
the incident. She was the daughter of PW 1
Mohammad Irsal and PW 2 Rukhsana. Mohammad
Irsal and his wife Rukhsana along with their sons
and daughters one of which was the victim girl
jfoanz vkacsjdj 2 of 21
1. cri apeal 385-14 (j).doc
were residing at Panjarpol, Nizampura, Bhiwandi.
Mohammad Irsal was working in powerloom
factory at Nagaon.
(b) On 20.8.2008, the victim girl was playing near her
house at about 11.00 a.m., however, after
sometime, PW 2 Rukhsana noticed that her
daughter was missing. Rukhsana searched for her
daughter, however, her daughter could not be
traced. Rukhsana then telephoned her husband
i.e PW 1 Mohammad Irsal and told him that their
daughter was missing. Rukhsana asked her
husband to come home. Accordingly, Mohammad
Irsal came home and searched for his daughter,
however, he could not find his daughter.
Therefore, he went to Nizampura Police Station
and lodged missing complaint at about 6.20 p.m.
The said missing complaint is at Exh. 28. Along
with the missing complaint, the photograph of the
jfoanz vkacsjdj 3 of 21
1. cri apeal 385-14 (j).doc
victim girl was attached.
(c) The appellant was one of the four workers working
in the powerloom factory of PW 6 Mohammad Jahir
Shaikh. PW 5 Gayasuddin was also working in the
very same powerloom factory. The appellant used
to stay in the factory of PW 6 Mohammad Jahir
Shaikh and also sleep there. PW 6 Mohammad
Jahir Shaikh and PW 5 Gayasuddin had seen the
appellant playing with the victim girl near their
factory on 20.8.2008.
(d) On 22.8.2008, PW 5 Gayasuddin went for his duty
to the powerloom factory at 4.00 pm. Being a
Friday, there was a power cut, hence, the duty
started at 4.00 p.m. Whey he reached the
factory, he saw the appellant in the factory. While
PW 5 Gayasuddin was doing the work, at about
5.15 p.m., on account of severe heat in the
jfoanz vkacsjdj 4 of 21
1. cri apeal 385-14 (j).doc
factory, one of the workers in the factory opened
the door of one room in the factory. As soon as
the door was opened, a bad odour came from the
said room. At that time, Arif Shaikh - one of the
workers in the factory thought that some animal
like a cat may have died in the said room as
previously also one cat had died there. Arif
Shaikh went inside the room to see if anything
had died in the room. Arif Shaikh came out of the
room and told that there is dead body of a girl
with whom the appellant was playing earlier. Arif
Shaikh told PW 5 Gayasuddin to wait and he would
call their employer. After the arrival of their
employer i.e PW 6 Shaikh, PW 5 Gayasuddin along
with Arif Shaikh and PW 6 Shaikh went inside the
room and they saw the dead body of small girl
lying in the said room. At that time, the appellant
did not come inside the room and he left the
factory and went away. Someone informed PW 1
jfoanz vkacsjdj 5 of 21
1. cri apeal 385-14 (j).doc
Mohammad Irsal, the father of the victim girl and
he was told to come to the powerloom factory of
Sheth, hence, PW 1 Mohammad Irsal went to the
spot. On going inside the factory, in one corner of
the room, he saw the dead body of his daughter
lying hidden under a cement sheet. The body of
his daughter was completely swollen and half
naked and there was nylon rope tied around her
neck. PW 1 Mohammad Irsal then lodged FIR Exh.
29. Thereafter, investigation commenced. After
completion of investigation, the charge sheet
came to be filed. In due course, the case was
committed to the Court of Sessions.
3. Charge came to be framed against the appellant -
original accused under Sections 302, 366A, 376 and 201 of
IPC. The appellant pleaded not guilty to the said charge and
claimed to be tried. His defence was that of total denial and
false implication. After going through the evidence adduced
jfoanz vkacsjdj 6 of 21
1. cri apeal 385-14 (j).doc
in this case, the learned Sessions Judge convicted and
sentenced the appellant as stated in paragraph 1 above,
hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the parties,
the judgment delivered by the learned Sessions Judge and
the evidence on record, for the reasons stated below, we are
of the opinion that the appellant kidnapped the victim girl
and committed rape on her and thereafter murdered her and
to cause disappearance of the evidence, he hid the dead
body under the cement sheet in the factory.
5. There is no eye witness in the present case and the
case is entirely based on the circumstantial evidence. The
circumstances are:-
i. Last seen;
jfoanz vkacsjdj 7 of 21
1. cri apeal 385-14 (j).doc
ii. The appellant had access to the place where the incident took
place;
iii. Conduct of the accused;
iv. Recovery of the clothes of the deceased at the instance of the
appellant.
The victim girl was 5 years of age at the time of the
incident. This is seen from the evidence of PW 2 Rukhsana
who was the mother of the victim girl. Rukhsana has stated
that her daughter was 5 years of age. On 20.8.2008, her
daughter was playing near their house at about 11.00 a.m.
After sometime, Rukhsana noticed that her daughter was
missing. Rukhsana searched for her daughter but she could
not trace her daughter. She then telephoned her husband
and told him that their daughter was missing and asked him
to come home. Accordingly, her husband came home and
started searching for their daughter. However, as their
daughter could not be traced, her husband went to
Nizampura Police Station and lodged a missing complaint.
jfoanz vkacsjdj 8 of 21
1. cri apeal 385-14 (j).doc
6. PW 1 Mohammad Irsal was the father of the victim girl.
He has stated that on 20.8.2008, when he was working in his
powerloom factory, he came to know that his daughter who
was playing near their house was missing. He, therefore,
went home and searched for his daughter. However, as his
daughter could not be traced, he lodged a missing complaint
in Nizampura Police Station. The said complaint is at Exh.
28.
Mohammad Irsal has further stated that on 22.8.2008,
he received a phone call from some unknown person who
asked him to come to Panjarpol Mohalla. Accordingly, he
went inside the powerloom factory of Jahid Sheth. He went
in one room of the factory. In one corner of the room, he
saw a dead body hidden by a cement sheet. When he went
near the dead body, he identified the dead body to be that of
his daughter. The dead body was completely swollen, was in
half naked condition and nylon rope was found tied around
the neck of the dead body. PW 1 Mohammad Irsal then went
to the police station and lodged the FIR Exh. 29.
jfoanz vkacsjdj 9 of 21
1. cri apeal 385-14 (j).doc
7. The dead body was sent for postmortem. PW 9 Dr.
Jayashree Mhaske conducted the postmortem on the dead
body of the deceased girl. She found tongue and eyeballs
had protruded out. On examination of the private part of the
dead body, Dr. Jayashree Mhaske found that there was
laceration on majora and labia minora about 2 x 1 c.m.,
hymen was torn, edges ragged at 6 o'clock position and
perineum showed laceration 1 degree. Dr. Jayashree Mhaske
found ligature mark encircling the neck near thyroid
cartilage. On internal examination, Dr. Jayashree Mhaske
found fracture of tracheal ring No. T2 and T3. According to
Dr. Jayashree Mhaske, the age of the injury was within 1 hour
of death. In the opinion of Dr. Jayashree Mhaske, the cause
of death was due to cardio respiratory failure due to
asphyxia due to strangulation with rape. The medical
evidence and the condition the dead body was found in
clearly show that it is a case of homicidal death.
jfoanz vkacsjdj 10 of 21
1. cri apeal 385-14 (j).doc
8. To connect the appellant with the incident, reliance is
placed on the evidence of PW 5 Gayasuddin and PW 6
Mohammad Jahir Shaikh.
PW 5 Gayasuddin has stated that he was working in
powerloom factory of Mujahid Sheth. In the year 2008, there
were four other workers working in the said powerloom
factory i.e Arif, Naushad, Babu and the appellant. The
appellant was working on kandi machine in the powerloom
factory. PW 5 Gayasuddin has stated that the appellant used
to reside in the factory itself. The appellant was having the
key of the factory and he used to open and close the factory
with the said key. Gayasuddin has stated that on 20.8.2008,
he had gone to the factory in the morning. When he reached
the factory, he saw the appellant outside the factory. He
asked the appellant whether Sheth had come. Thereupon,
the appellant replied that Sheth will not come till afternoon.
At that time, Gayasuddin noticed that one small girl along
with the appellant and the appellant was playing with her.
Thereafter, Gayasuddin went back and again returned for
jfoanz vkacsjdj 11 of 21
1. cri apeal 385-14 (j).doc
duty at about 1.00 p.m.
On the next day also, Gayasuddin went to the factory
for work as usual. On 22.8.2008, the duty started at 4.00
p.m. as there was power cut on Friday. When Gayasuddin
reached the factory, he saw that Mujahid Sheth, Arif Shaikh
and the appellant were in the factory. Mujahid Sheth allotted
work to Gayasuddin to be done for that day. At about 5.15
p.m., due to severe heat in the factory, Arif Shaikh opened
the door of one room in the factory. As soon as the door was
opened, a bad odour came from the said room. Arif Shaikh
thought that some animal like a cat may have died in the
said room as previously also, one cat had died there. Arif
Shaikh then went inside the room to see if any dead cat was
there in the room. Arif then came out and told that there is a
dead body of the girl with whom the appellant was seen
playing previously. Arif Shaikh then told Gayasuddin to wait
and that he will call Sheth. On arrival of Sheth, Gayasuddin
along with Arif Shaikh and Sheth went inside the room. At
that time, they saw the dead body of a small girl lying in the
jfoanz vkacsjdj 12 of 21
1. cri apeal 385-14 (j).doc
room. Sheth then instructed them to close the factory and to
stay there only, however, the appellant went away. Within a
short time, police arrived at the spot. From the evidence of
PW 5 Gayasuddin, what is important to note is that
Gayasuddin has stated that the dead body was of the same
girl who was seen playing with the appellant on 20.8.2008
9. PW 6 Mohammad Jahir has stated that he was working
in powerloom factory. In the said factory, there were 12
powerlooms and two kandi machines. In the year 2008,there
were four powerloom workers including Arif Ansari,
Gayasuddin Ansari, Naushad Ansari and Babu Ansari. Out of
these workers, Babu Ansari had gone to his native place
since 5-6 days prior to the incident. Mohammad Jahir has
stated that the appellant was kandi machine operator in the
powerloom factory. The appellant used to stay in the factory
itself and also used to sleep in the said powerloom factory.
During the period from 18.8.2008 to 24.8.2008, there was
power cut from 7.00 a.m. till 1.00 p.m. When there was a
jfoanz vkacsjdj 13 of 21
1. cri apeal 385-14 (j).doc
power cut, Mohammad Jahir used to come to the factory at
11.00 a.m. Mohammad Jahir has stated that during the
period from 18.8.2008 to 24.8.2008, the appellant had keys
of the factory.
PW 6 Mohammad Jahir has further stated that on
22.8.2008, he reached the factory at about 3.30 p.m. He
found lock on the entrance door. Therefore, he waited for
about 10 minutes. Thereafter, the appellant came there and
opened the door. Arif and Gayasuddin also came there.
Mohammad Jahir then allotted duties to Arif and Gayasuddin
and they started the powerloom. Mohammad Jahir then went
away from the factory and he was sitting at a little distance
away near the STD booth. At that time, Arif came running
towards him and informed him that since a strong bad odour
was coming from the room on the backside of the factory, he
had opened the door and found a dead body of a small girl
inside the room. Therefore, PW 6 Mohammad Jahir
immediately went to the factory and went inside the room.
He found a dead body of a small girl whose neck was tied
jfoanz vkacsjdj 14 of 21
1. cri apeal 385-14 (j).doc
with a rope. He instructed the factory to be locked and came
out of the factory. He then requested one Shabbir to make a
phone call to the police. After sometime, the police came to
the factory. The evidence of PW 6 Mohammad Jahir shows
that on the day the victim girl went missing i.e 20.8.2008, at
about 10.30 a.m., the victim girl was seen by him playing
with the appellant near the factory. PW 6 Mohammad Jahir
has identified the dead body found in the factory to be that
of the same girl who was seen playing with the appellant on
20.8.2008.
10. Thus, the evidence of PW 5 Gayasuddin and PW 6
Mohammad Jahir shows that the deceased girl was last seen
with the appellant. The evidence of PW 2 Rukhsana who is
the mother of the victim girl shows that her daughter was
playing near their house, however, at about 11 a.m., she
found that her daughter was missing. The evidence of PW 6
Mohammad Jahir shows that the deceased girl was seen
playing with the appellant at 10.30 a.m. The evidence of PW
jfoanz vkacsjdj 15 of 21
1. cri apeal 385-14 (j).doc
5 Gayasuddin shows that he had seen the girl whose dead
body was found in the factory playing with the appellant in
the morning of 20.8.2008. As stated earlier, the evidence of
Mohammad Jahir shows that he had seen the deceased girl
playing with the appellant on 20.8.2008 at 10.30 a.m. and
the evidence PW 2 Rukhsana, the mother of the deceased
girl shows that the deceased girl went missing on 20.8.2008
at 11 a.m. Thereafter, the deceased girl was not seen alive
and her dead body was found in the factory where the
appellant was working.
11. The evidence of PW 5 Gayasuddin and PW 6
Mohammad Jahir shows that the appellant was in full control
of the factory which is seen from the fact that he had the
keys of the powerloom factory and he used to open and
close the factory with the said keys. The evidence of PW 5
Gayasuddin and PW 6 Mohammad Jahir shows that the
appellant used to reside in the factory and he used to sleep
there. In addition, the evidence of PW 10 Nasruddin shows
jfoanz vkacsjdj 16 of 21
1. cri apeal 385-14 (j).doc
that the keys of the factory was kept with the appellant.
Thus, it is seen that the appellant was the only person who
had the keys of the powerloom factory where the dead body
of the deceased was found and he used to reside in the said
factory. This shows that the appellant was the only person
who had access to all parts of the factory premises including
the place where the powerloom and kandi machines were
installed and the other rooms of the factory, including the
room where the dead body was found.
12. The evidence of PW 5 Gayasuddin and PW 6
Mohammad Jahir shows that the appellant was last seen with
the deceased girl at about 10.30 a.m. on 20.8.2008. From
11.00 a.m., the victim girl was not to be seen. The dead
body of the victim girl was found in the factory where the
appellant was not only working but he was also residing. On
account of power cut, work used to start at 1 p.m. in the
powerloom factory. The appellant had keys of the factory
and he used to open and close the factory. This shows that
jfoanz vkacsjdj 17 of 21
1. cri apeal 385-14 (j).doc
the appellant had full access to the factory premises. The
circumstances brought on record show that at 11 a.m. on
20.8.2008, the appellant had every opportunity to bring the
victim girl in the factory, thereafter, rape her and hide her
dead body in the room meant as a store room in the factory.
13. In addition to the above, we would like to point out the
conduct of the appellant. The evidence of PW 5 Gayasuddin
shows that on 22.8.2008 at about 5.15 p.m., due to severe
heat in the factory, one Arif Shaikh opened the door of one
room in the factory. A bad odour came from the said room.
Arif Shaikh then went inside the room to see if any dead cat
etc. was there in the room. Arif Shaikh came out and told
that there is a dead body of a girl in the room with whom the
appellant was seen playing previously. Arif then asked
Gayasuddin to wait and he will call Sheth. Gayasuddin along
with Arif and Sheth went inside the room and they saw the
dead body of the girl lying in the room. It is pertinent to note
that the appellant did not come inside the room but the
jfoanz vkacsjdj 18 of 21
1. cri apeal 385-14 (j).doc
appellant immediately went away from the said factory.
14. The evidence of PW 6 Mohammad Jahir shows that he
was sitting near STD booth near his factory. At that time, Arif
came running towards him and informed him that since a
strong bad odour was coming from the room on the backside
of the factory, they had opened the door and found the dead
body of a small girl inside the room. Mohammad Jahir
immediately went to the factory and went inside the room.
He found the dead body of a small girl whose neck was tied
with the rope. He instructed the factory to be locked. He
instructed Arif to stay outside till Mohammad Jahir brings the
police. Mohammad Jahir has stated that when he had gone
to see the dead body, the appellant thereafter disappeared
and he was not seen in the factory.
15. The appellant came to be arrested on 22.8.2008 at
about 10.30 p.m. Though the appellant was in charge of the
factory in the sense that he had keys of the factory and he
jfoanz vkacsjdj 19 of 21
1. cri apeal 385-14 (j).doc
used to open and close the factory, as soon as the appellant
heard that the dead body was found in the factory,he did not
enter in the factory and disappeared from the spot. If the
appellant was innocent, the natural conduct of the appellant
would be that out of curiosity, he would have entered into
the room where the dead body was found. However, the
appellant did not do so and he immediately left the factory
and went away and he came to be arrested in the night.
Thus, the conduct of the appellant is most unnatural and it
points out to his mens rea.
16. The next circumstance against the appellant is that the
underwear of the victim girl was recovered at his instance.
PW 4 panch witness Faizan has stated that in his presence,
the appellant stated that he would show the place where he
had kept the underwear of the deceased and he will produce
the same. The appellant led the police and panchas to the
place where the underwear (Article 5) of the victim girl was
kept and he produced the same. That the underwear
jfoanz vkacsjdj 20 of 21
1. cri apeal 385-14 (j).doc
produced by the appellant belonged to the victim girl is
brought out through the evidence of PW 2 Rukhsana who
was the mother of the victim girl. She has stated that the
underwear (Article 5) was worn by her deceased daughter
when she went outside to play on 20.2.2008. PW 1
Mohammad Irsal who was the father of the victim girl also
identified the underwear (Article 5) as that of his daughter.
17. On going through the circumstances proved by the
prosecution, we find that the chain of circumstances is such
that it excludes the possibility of anyone else committing the
murder of the victim girl. In fact, the circumstances beyond
reasonable doubt show that it was the appellant who
committed the crime. Thus, we find no merit in the appeal.
The appeal is dismissed.
[ M.S. KARNIK, J ] [ SMT. V.K. TAHILRAMANI, J. ]
jfoanz vkacsjdj 21 of 21
