Bombay High Court
Akbar Khan Ahmer Khan And Anr vs The State Of Maharashtra on 10 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
apeal-570.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.570 OF 2014
1. Shri Akbar Khan Ajmer Khan
Age 28 years, residing at Military
Quarter No. P-9/8, O.G. Line,
Deolali Camp, Dist. Nashik.
2. Shri Akram @ Babalu Rafique Khan,
Age 19 years, Residing at Cheri Kanavar,
Brahmhapuri Tal. & Dist. - Appellants
Behind Madhya Pradesh (At present both (Orig. Accused
are lodged in Nashik Central Jail). ... Nos.1 and 2)
V/s.
1. State of Maharashtra Respondent
Deolali Camp Police Station, Nashik ... (Orig.
Complainant)
-------------------
Mrs. Aisha Mohammed Zubair, for the Appellants.
Ms. P.P. Shinde, APP for the Respondent - State.
---------------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
JUDGMENT RESERVED ON : 24th MARCH 2021.
JUDGMENT PRONOUNCED ON : 10th JUNE 2021.
JUDGMENT : (Per Sadhana S. Jadhav, J.)
1. The appellants have taken an exception to the Judgment and
Order dated 23rd May 2014 passed by the Ad hoc District Judge-3 and
Additional Sessions Judge, Nashik in Sessions Case No.282 of 2012 by which
the appellants have been convicted for the offence punishable under sections
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302, 120-B r/w 34 of Indian Penal Code for life imprisonment and pay fine
of Rs.500/- each, in default to suffer S.I. for one month each.
2. Such of the facts necessary for the decision of this appeal are as
follows :-
(i) That the appellant no.1 - accused no.1 - Akbar Khan was
married to Afsana Begum. The appellant no.1 was working as Hawaldar in
Light Regiment and hence, was residing in the Military Quarters Nos. P-9/8/
OG Line, Deolali Camp, Dist. Nashik. The appellant's duty was at the Army
Rest House from morning to evening i.e. 6.30 am to 1.00 pm and from 3.00
pm to 6.00 pm.
(ii) The incident in question has occurred on 7 th September 2012.
On 7th September 2012 the wife of the appellant Afsana Begum (hereinafter
referred as "the deceased") was taken to the Medical Officer Hospital by
Subhedar Prasad and Nursing Assistant Naik Mehetre. At about 6.30 pm, the
deceased Afsana was found unconscious at her family quarters. Her pulse
could not be recorded. At about 6.50 pm, she was examined by Major Satish
Dhage (P.W.1). He could not find any respiratory movement, B.P. was not
recordable, her pupils were dilated and fixed. P.W.1 tried to revive the
patient but there was no response and hence, she was declared dead and the
conclusion drawn by P.W.1 was that she was brought in dead condition. He
addressed a letter to the Civil Police Station, Deolali Camp reporting death
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case and the said certificate is at Exh.26. P.W.1 on external examination, had
found multiple irregular abrasions on her anterior aspect neck. Abrasions
were found at the middle of neck region, there was blood stains and small
abrasions around mouth. He issued a certificate of medico-legal case which
is marked at Exh. 27. A death notification was issued in the name of the
deceased which is at Exh.28. According to P.W.1, the cause of death was not
known. Despite an opportunity P.W.1 has not been cross-examined and
hence, it can be safely stated that the said documents which are at Exhs.26,
27 and 28 are admitted by the accused. At Deolali Camp, Accidental Death
No.41 of 2012 was registered at about 11.30 pm on 7 th September 2012 at
station diary No.54/2012 and the said A.D. report is at Exh.38. The
prosecution has examined as many as 20 witnesses to bring home the guilt
of the accused.
3. That the inquiry in A.D. No.41/2012 was given to Anil Pawar,
Investigating Officer - P.W.20, who in the course of inquiry visited the house
of the appellant. He found that the domestic articles were scattered helter-
skelter and the pillows were lying down. He suspected that it could be only
the husband of the deceased to be the perpetrator because the ingress and
egress to the military quarters is not very easy. He soon realised that the
scene of there being a theft in the house was created and therefore, he
inquired with the Medical Officer of Civil Hospital, Nashik about the cause
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of death. It is pertinent to note that the post-mortem notes which are at
Exh.75 are admitted by the accused no.1. The Medical Officer upon seeing
the post-mortem notes which are at Exh.75 informed P.W.2 that the cause of
death is "asphyxia due to throttling". P.W.2 had also gone through the
certificate issued by the Medical Officer, Civil Hospital, Nashik which
indicated clearly that the cause of death was "asphyxia due to suffocation".
The Medical Officer had given a letter to P.W.2 in respect of the cause of
death on 8th September 2012 i.e. on the very next day. It was also clarified
by the Medical Officer that it may be a case of throttling, strangulation,
gagging and smothering. The said letter is at Exh.33. P.W.2 was rest assured
that it could be none other than the accused no.1 - appellant. He inquired
with the neighbour Hawaldar Hukum Singh (P.W.7) and he had learnt that a
lady teacher used to visit the house of Hukum Singh to take tuition and the
said lady teacher had seen the accused going on his bicycle at about 4.30 to
4.45 pm. In further inquiry, he had also learnt that the senior of the accused
Ujwal Kumar Bir (P.W.6) had called upon the accused as he had not reported
on duty at the stipulated time. He further learnt that the accused had not
received call of P.W.6 and subsequently replied that he was held up as his
bicycle was punctured. This was sufficient material for P.W.2 to suspect the
involvement of the appellant and hence, he lodged FIR at the Deolali Camp
Police Station against the accused for the offences punishable under section
302 of IPC.
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4. On the basis of his report, Crime No.53 of 2012 was registered
at Deolali Police Station and the investigation was set in motion. P.W.2 has
deposed to that effect before the Court. In the cross-examination, he has
admitted that "it is correct to say that the accused had not attended duty on
time. Hence, on the ground doubt/suspicion, I have filed the complaint
against the accused." It is also admitted that he had not recorded the
statement of the witnesses Hawaldar Hukum Singh, Ms. Rakhi Saini and
Hawaldar Ujwal Kumar Bir. He has further admitted that civilians were
having access with the said quarters but he had lodged report on the basis of
the information given by the Doctor, Ms. Saini and Mr. Singh.
5. At the same time, Police Hawaldar Rokade had informed about
A.D. Inquiry to Police Constable Rajendra Tejale (P.W.3) who had rushed to
the spot immediately and the spot panchanama was conducted in A.D.
No.41/2012. The scene of offence panchanama is at Exh.47 which shows
that the scene of offence panchanama was rather conducted in A.D. Inquiry.
It was conducted between 11.45 am to 12.30 pm and the same is
substantiated by P.W.3 - Rajendra Tejale. It is pertinent to note that the FIR
was lodged thereafter at about 21.10 hours. The Police had taken
precaution that they should not unnecessarily implicate the accused. In the
course of spot panchanama, P.W.3 had found that there were blood stains on
the bed sheet, pillows were lying under the bed. The recitals of the scene of
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offence panchanama which is at Exh.47 indicates that there is a door next to
the table on which the television set is placed. In the open space behind it,
there is a toilet and the bathroom. In short, the house has two doors, one on
the front side and the other on the rear side. According to P.W.3, P.W.2 had
not done any inquiry in the accidental death. The recitals of Exh.47 are
proved by P.W.3. The fact that there was an inquiry of Vinod Kumar Yadav
(P.W.4) to verify as to whether the accused was in the office or at home
between 2.00 to 2.30 pm has been proved by him in his substantive
evidence and according to him, on 7 th September 2012 he wanted a liquor
cartel and therefore, he had call upon the accused between 2.00 to 2.30 pm
when he was at home. The Police had called Sukhavindarsingh Nimaz
(P.W.5) to the Police Station on 8th September 2012 and had inquired with
him about the accused. He was asked to accompany the Police to the
quarters of the accused to act as a panch at the time of scene of offence
panchanama and the recitals of Exh.47 are proved by him.
6. It had transpired in the course of investigation that the accused
was working under the supervision of Ujwal Kumar Bir (P.W.6) on 7 th
September 2012. He has deposed before the Court that on 7 th September
2012 the accused had reported to him between 6.30 to 6.45 am and on that
day, they were cleaning the rest house. At about 12.00 noon the accused had
informed his senior that he had to attend the children parents meeting and
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therefore, he was permitted to leave rest house at about 12.15 to 12.20 but
he was directed to return upto 3.15 to 3.30 pm. However, the accused had
returned at about 4.45 pm and the reason for his inability to attend in time
was that his bicycle was not working and he had to get it repaired and
therefore, he had gone to the market but at the same time, it is the matter of
fact which was deposed before P.W.6 that although his senior had called him
3 to 4 times none of his call was answered and the call which was answered
was at about 4.00 pm. The staff was aware that the accused was also having
motorcycle. That, at about 6.30 pm the accused no.1 was informed by his
neighbour Hukum Singh that his wife had become unconscious and
therefore, he was relieved immediately. Thereafter, he had not answered call
of his senior (P.W.6). P.W5 entered inside the military hospital where he
found that the people had gathered outside the Military Ward and the
accused was crying. P.W.5 had admitted in his cross-examination that the
time of reporting of the staff which was under his control was never noted.
But at the same time, he had shown his cell phone to the Police to verify that
he had actually called upon the accused 3 to 4 times. Although duty hours
are 6.30 am to 1.00 pm and 3.00 to 6.00 pm, certain omissions are brought
on record, however, they are not material omissions.
7. Hukum Singh - P.W.7 has given reason for calling upon the
accused at about 6.30 pm and informed him that his wife is unconscious and
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that he was one door neighbour of the accused. That, at about 6.30 pm
neighbours of the accused called him and informed that the wife is not
opening the door. The children of Sukhvindarsingh (P.W.5) and the elder
son of accused were taking tuition from Ms. Saini in their varanda between
4.00 to 6.00 pm and she is paid Rs.200/- pm. On the day of the incident,
P.W.7 had returned home at about 6.15 pm. He then saw the elder son of
Akbar Khan - accused no.1 knocking the door and therefore, he had gone to
the house of Sukhvindarsingh (P.W.5). The wife of P.W.5 informed P.W.7 that
the son of the accused no.1 was crying but the door was not opened and
therefore, P.W.7 pressed the front door bell which was not responded to.
P.W.7 peeped inside and saw that the younger son of the accused was
wondering in the house here and there. He was crying. The little child had
informed P.W.7 that his mother was sleeping but she would not woke up. He
was therefore constrained to call upon the accused and called him home
immediately. The wife of P.W.5 was aware that there was a door at the rear
side and therefore, she would try to go from that door to help the children
and to their surprise, they found the said door open. The wife of P.W.5 saw
the wife of the accused sleeping on the cot with a blanket on her face. P.W.7
had checked her pupils but by then her body had turned cold. P.W.7 and the
neighbours had seen blood oozing from her nose. He has identified the bed-
sheet on which she was sleeping. He called for the vehicle and arranged to
take her to the military hospital but then the Doctor had declared her dead.
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It is admitted that the civilians can have access to the OG line quarters.
8. Witness nos.9, 10 and 12 are declared hostile witnesses.
9. At the time of inquest panchanama, it was noticed that there
were weal marks on her chest and there were injuries on her neck. The
inquest panchanama is at Exh.42 and the contents are proved by Maya
Kharale (P.W.11). It is a matter of record that in the course of investigation,
the accused had disclosed that he was in love with his sister-in-law. The
accused had disclosed to the Police on 8 th September 2012 that he was in
love with his younger sister-in-law Sitara and he used to talk with her on the
cell phone everyday in the morning and in the evening. They have even
clicked photos together which were feed on his memory card and he had
kept the same in the suitcase. The said memory card was recovered by the
police at the instance of the accused no.1. The memorandum is at Exh.160
and the recovery panchanama is at Exh.161. The Police had seized 2
memory cards and 4 photographs of the accused with his sister-in-law. The
cell phone of the accused was seized and in the course of investigation, it
had transpired that on 7th September 2012 the accused had received 2
phone calls on his phone number which he had received from cell phone
No.9806793492 and subsequently, there were 8 to 10 calls from the number
and therefore, the Police suspected that there must have been some dispute
between the husband and wife over the calls. The Police were surprised to
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know that the wife of the accused would take her elder son Mitas for tuition
but on that day it was the accused who had taken the child for tuition and in
the course of inquiry, it was learnt that the said cell phone number was that
of the father of the deceased who had spoken to her at about 2.30 pm on 7 th
September 2012 and therefore, the father of the deceased was informed to
reach Nashik and report to Deolali Camp Police Station and upon seeing
dead body, the unfortunate father was sure that his daughter has been killed
by throttling. On the basis of the statement given by the accused which was
recorded on 12th September 2012 it had transpired that he had given cell
phone to his sister-in-law bearing cell phone no.8817318586 which was
taken in the name of the father of the accused. The same was verified by the
appellants after recording the statement of father of the accused - Ajmer
Khan. Moreover, the Police had also recorded the statement of Harikumar
Nair (P.W.19) who had disclosed that on 7th September 2012 in the afternoon
at about 2.15 pm to 2.45 pm, he had met the accused at Sansari Naka
Railway Line and he had inquired with the accused as to why he was
whiling away time with his friends during duty hours. At that time, the
accused had disclosed that he had relatives from his village and therefore,
he was to treat them with meat and therefore, had gone to purchase meat.
Unfortunately, P.W.19 has resiled from his earlier statement and is therefore,
declared hostile.
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10. Accused no.2 happens to be the nephew of accused no.1. That,
on 22nd August 2012 the accused no.1 had been to Bhind, M.P. to meet his
in-laws and had informed his nephew that he was in love with his sister-in-
law and therefore, intended to eliminate Afsana. He had requested his
nephew to look out for the boys who could be hired to kill his wife and that
he would pay them Rs.500/-. On 24th August 2012, the accused no.1 had
returned to Nashik. He had informed him that the accused nos.3 and 4 are
willing to do the job and that he would accompany them on 6 th September
2012 to Nashik. They had reached Nashik Road Railway Station at about
12.00 to 12.15 on 7th September 2012. He had also passed on the cell phone
numbers of two boys whom he had hired. The cell phone no.9806793492
was of Narendra Singh.
11. Now, it is necessary to examine the involvement of the appellant
nos.2/ accused no.2. The first and foremost involvement of appellant no.2 is
surfaced on the basis of the statement made by the accused no.1. Prima
facie, it appears that the accused no.1 had not named anybody. However, in
all probabilities, it was the CDR (Call Detail Records) on the basis of which it
was traced that the accused no.2 and the two absconding accused were in
Nashik on the relevant date and at the relevant moment i.e. between 11.00
am to 4.00 pm on 7th September 2012. It is true that P.W.15 Chandrakant
Bhor, Nodal Officer, Reliance Communications has deposed before the Court
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that cell phone no.8817318586 was issued in the name of Ajmer Khan i.e.
the father of accused no.1. It had transpired that the said number was being
used by Sitara - Sister-in-law of the deceased. Cell phone number of the
accused no.1 which is again issued by Reliance Communications is
8928188041.
12. Evidence of Rajendra Aher - P.W.13 has substantiated that he
was a part of the investigation and had recorded the statement of Sitara.
However, none of the witnesses named by P.W.20 including Sitara or
Umeshchandra Raut has not been recorded. The admission in the cross-
examination would show that on the basis of the documents seized by the
investigating officer it had transpired that the sim cards were not issued in
the name of the accused. It is also admitted that Akram Khan was not
subjected to Test Identification Parade.
13. Balwinder Kour Sukhvindar Singh Nimaz - P.W.14 happens to be
the wife of Sukhvindarsingh Nimaz (P.W.5). In fact, the person who reached
the spot at the first instance is Balwinder Kour (P.W.14) who is the neighbour
of accused no.1. Her son takes tuition along with the elder son of the
accused no.1. According to her, on that day, it was the accused no.1 who had
dropped his son for tuition in the varanda. After the tuitions, the children
had gone to their respective houses, the elder son of the deceased Mitas
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knocked the door of the house, there was no response. He knocked it for a
long time but in vein so finally Mitas went to the house of Balwinder Kour
(P.W.14) and informed her that his mother was not opening the door.
Thereafter, P.W.14 requested Hukumsingh to call upon the accused and
informed him that his wife was not opening the door. There was no response
to the door bell also. Finally, she entered the house through the rear door
only to see that the deceased was lying on the cot with a blanket on her
body and that there were blood stains on the bed-sheets. The younger son
was wondering in the house. At that juncture, P.W.7 peeped into the house
and saw the second son wondering. He was informed by the little child that
the mother was sleeping and therefore, he called upon his senior Major
Satish Dhage who happens to be a Doctor at the Military Campus and they
all have arranged to admit in the Hospital. All these facts are proved by
P.W.1, P.W.7, P.W.14. Even it is clear that the case rests upon substantive
evidence.
14. P.W.16 - Sachin Bhadange who is the Nodal Officer of Aircel
Company has proved that the cell number 9806793492 is from Gwalior, M.P.
On the basis of record i.e. CDR from 1 st August 2012 to 13th September 2012
was used by Narendra Singh from Gwalior, M.P. and cell number
8656066589 was issued in the name of Vaishali from Gwalior, M.P. but was
being used by the accused no.2 as per the Police investigation.
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15. Dattaram Angare (P.W.17) who was working as the Nodal
Officer for Idea Cellular Ltd., has on the basis of the CDR has deposed before
the Court that cell phone no.8805715526 was issued in the name of accused
no.1 but was being used by the deceased. The said document which is at
Exh.126 and proved by P.W.17 is admitted by the accused under section 294
of Cr.P.C.
16. Amit Karkera - P.W.18 who is the Nodal Officer of Uninor
Cellular Ltd., has on the basis of the record proved that the cell phone
no.8177958221 has issued in the name of Vinodkumar Singh but is used by
accused no.2. It is admitted by the accused under section 294 of Cr.P.C.
17. Anil Pawar - P.W.20 happens to be the Investigating Officer of
Crime No.53/2012 registered at Deolali Camp Police Station. He has proved
the omissions and contradictions in the evidence of the witnesses. He had
proved the steps taken by him in the course of investigation. He had also
verified from Philips who was engaged in the work of repairs of vehicle and
was named by accused no.1. Upon enquiry, Philips had disclosed that his
shop was closed between 2.00 to 5.00 pm. He has deposed before the Court
in respect of his investigation about the Call Detail Records of the accused.
He has also stated before the Court that he has recorded the statements of
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Vijay Devadia - owner of Hotel Sharda who disclosed that the accused no.1
had taken lunch along with three other persons on 7 th September 2012
between 2.00 - 3.00 pm. That the accused no.2 Akram was produced before
the Judicial Magistrate, First Class on 20 th September 2012 and he had
disclosed the names of B.P. Singh and Vijay Singh Parihar.
18. The chain of events established by the prosecution are as
follows :-
(A) The accused no.1 had left the place of service at about 12.15
pm under a false pretext of attending the parents-teachers'
meeting;
(B) The accused no.1 reached home, changed his clothes and had
been to Deolali Railway Station where he met three people. In
the said vicinity, he had met P.W.19 - Harikumar Nair who has
been declared hostile. Accused no.1 returned home between
3.00 to 3.15 pm and had left the house at about 4.15 pm on his
bicycle;
(C) The accused no.1 had not received the calls from his senior i.e.
P.W.6 Ujwal Kumar Bir and had finally answered the fourth call
of his senior and informed that his cycle was punctured and
therefore, there was a delay in reporting to the job. At about
same time i.e. between 2.00 to 2.30 pm, he had answered the
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call of P.W.4 - Vinod Kumar Yadav;
(D) Since the main door was found to be locked from inside it can
be inferred that the accused no.1 had taken exit from his house
through the rear door for the reasons best known to him at
about 4.15 pm;
(E) The photographs with Sitara and her daily communication with
accused no.1 clearly establish that he was in an intimate
relationship with his sister-in-law Sitara;
(F) That the cell phone used by Sitara to communicate with the
accused no.1 was issued in the name of the father of the
accused no.1 only to camouflage the regular calls between
them and to conceal the said fact from his wife Afsana;
(G) That, soon after he left the house the wife of accused no.1 was
found dead;
(H) That, the cause of death was asphyxia due to throttling/
smothering. There were injuries on her neck;
(I) That, accused no.1 had deliberately created a scene of theft in
his bedroom, however, that was not first disclosure made by
him;
(J) That, Mrs. Saini takes tuitions in the varanda and they had not
seen anyone entering the house. Moreover, the door on the rear
side was not broke open and therefore, there is a possibility of
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two things; firstly, the accused had taken the aid of some other
person to eliminate his wife between 2.00 to 4.15 pm or that he
had killed his wife during that period and had peacefully taken
exit from the rear door.
19. There is no cogent and convincing evidence besides the calls to
even remotely suggest that the accused no.2 was in the house of the accused
no.1 between 2.00 to 4.15 pm on 7th September 2012. The prosecution has
failed to substantiate their contention that the cell phone which was issued
in the name of Vaishali from Gwalior, M.P. was rather being used by the
accused no.2. The Nodal Officer i.e. P.W.16 has clearly established that the
said cell phone No.8656066589 was issued in the name of Vaishali but has
failed to substantiate that the user of the said number was none other than
the accused no.2 who happens to be 20 year old nephew of accused no.1.
20. The learned counsel for the appellants has without going into
the merits of the matter and dislodging the circumstances put forth by the
prosecution has vehemently submitted that the trial of the accused no.1 is
vitiated and that the accused needs to be acquitted or the matter has to be
remanded to the concerned Court for adopting appropriate procedure and
has not followed Chapter 6-C of the Army Rules, 1950 contemplating the
criminal cases affecting persons belonging to the armed forces. The learned
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counsel for the appellants has demonstrated Rules 3 and 4 Volume III of
Chapter 6-C which read thus :-
"3. Where a person subject to Military Naval or Air Force law is
brought before a Magistrate and charged with an offence for
which he is liable to be tried by a court-martial, such
Magistrate shall not proceed to try such person, or to inquire
with a view to his commitment for trial by the Court of
Sessions or High Court for any offence triable by such court
unless:-
(a) he is of opinion for reasons to be recorded, that he
should so proceed without being moved thereto by
competent Military, Naval or Air Force authority, or
(b) he is moved thereto by such authority.
4. Before proceeding under clause (a) of rule 3, the Magistrate
shall give written notice to the commanding Officer of the
accused and until the expiry of a period of seven days from the
date of the service of such notice, he shall not
(a) convict or acquit the accused under sections 243, 245,
247 or 248 of the Code of Criminal Procedure, 1898 (V
of 1898), or hear him in his defence under section 244
of the said Code; or
(b) frame in writing a charge against the accused under
section 254 of the said Code; or
(c) make an order committing the accused for trial by the
High Court or the Court of Sessions under section 213
of the said Code;
(d) transfer the case for enquiry or trial under Section 192
of the said Code."
21. In fact, Section 3 of Army Act, 1950 contemplates as follows :-
"3(i) "active service", as applied to a person subject to this Act,
means the time during which such person -
(a) is engaged in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of
march to, a country or place wholly or partly occupied by
an enemy, or
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(c) is attached to or forms part of a force which is in military
occupation of a foreign country;"
22. To substantiate her contention, the learned counsel has placed
implicit reliance upon the judgment of this Court in the case of
Kanwardeepsingh Harbansingh Bedi Vs. State of Maharashtra 1, wherein this
Court has placed implicit reliance upon the judgment in the case of
Superintendent and Rememberancer of Legal Affairs, West Bengal Vs. Usha
Ranjan Roy Choudhury (reported in [1986 (Supp.) SCC 190), wherein the
Court was dealing with the law as to whether Section 549 of Code of
Criminal Procedure, 1898 i.e. 475 of the Criminal Procedure Code, 1973 is
applicable or can be exercised by the Special Judge in West Bengal as well,
has observed thus :-
"Rule 3 of the said Rules requires that when person subject to
military, Naval or Air Force law is brought before a Magistrate
on accusation of an offence for which he is liable to be tried by
Court Martial also the magistrate shall not proceed with the
case unless he is requested to do so by the appropriate military
authority."
23. In that case, the accused was a Naval Officer. The Court has
held as under :-
"When an accused has been delivered by a Magistrate under
Rules 5 and 6 the Commanding Officer or the competent
military, naval or air force authority must, as soon as may be,
inform the Magistrate whether the accused has been tried by a
court martial or other effectual proceedings have been taken or
ordered to be taken against him. The communication of such
1 2009 ALL MR(Cri) 1946
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information is mandatory. When the Magistrate is informed that
the accused has not been tried or other effectual proceedings
have not been taken or ordered to be taken against him, he is
obliged to report the circumstance to the State Government and
the State Government, in consultation with the Central
Government may take appropriate steps to ensure that the
accused person is dealt with in accordance with law. The policy
of the law is clear. Once the criminal court determines that there
is a case for trial, and pursuant to the aforesaid rule, delivers the
accused to the Commanding Officer or the competent military,
naval or air force authority, the law intends that the accused
must either be tried by a court martial or some other effectual
proceedings must be taken against him. To ensure that
proceedings are taken against the accused, the Rules require the
Commanding Officer or the competent authority to inform the
Magistrate of what has been done."
24. In fact, the Apex Court, in the subsequent judgments, has
clarified the said position. In fact, it appears that the judgment of the Apex
Court in the case of Balbir Singh vs. State of Punjab2, had clarified the
position of law. It appears that the judgment of the Apex Court in the case of
Balbir Singh Vs. State of Punjab has clarified section 70 of the Army Act as
follows :-
"70. Civil offence not triable by court- martial. A person subject to
this Act who commits an offence of murder against a person not
subject to military, naval or air force law, or of culpable homicide
not amounting to murder against such a person or of rape in
relation to such a person, shall not be deemed to be guilty of an
offence against this Act and shall not be tried by a court-
martial, unless he commits any of the said offences-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by
"
notification in this behalf.
2 1995 SCC (1) 90
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25. Section 72 of the Air Force Act which corresponds to Section 70
of the Army Act provides as under :-
"72. Civil offences not triable by court- martial.- A person subject
to this Act who commits an offence of murder against a
person not subject to military, naval or air force law, or of
culpable homicide not amounting to murder against such a
person or of rape in relation to such a person, shall not be
deemed to be guilty of an offence against this Act and shall
not be tried by a court-martial, unless he commits any of the
said offences-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by
notification in this behalf."
The section on its plain language, lays down that where a
person subject to the Act is charged with the offences listed therein
while on "active service" he shall be deemed to be guilty of an
offence against the Act and could be tried by a court-martial
irrespective of the fact that the victim is not subject to military,
naval or air force law.
Section 4(i) of the Act defines Active Service and provides:
"4. (i) 'active service', as applied to a person subject to this Act,
means the time during which such person-
(a) is attached to, or forms part of, a force which is engaged in
operations against an enemy, or
(b) is engaged in air force operations in, or is on the line of march
to, a country or place wholly or partly occupied by an enemy,
or
(c) is attached to, or forms part of, a force which is in military
occupation of any foreign country;"
The above definition, however, is not exhaustive. The Central
Government has the power to enlarge the definition by a
declaration issued under Section 9 of the Act. Section 9 reads
as follows:
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"9. Power to declare persons to be on active service.
Notwithstanding anything contained in clause (i) of Section 4,
the Central Government may, by notification, declare that any
person or class of persons subject to this Act shall, with
reference to any area in which they may be serving or with
reference to any provision of this Act or of any other law for
the time being in force, be deemed to be on active service
within the meaning of this Act."
12. The Government of India in exercise of the powers conferred
by Section 9 issued Notification No. SRO 8-E on 5- 12-1962
declaring "that all persons subject to the said Act, shall,
wherever they may be serving be deemed to be on 'active
service' within the meaning of the said Act, for the purposes of
the said Act and of any other law for the time being in force"."
26. In the case of Balbir Singh (supra), the appellant was on casual
leave while on active service and he was armed with a notification dated 5 th
December 1962.
27. In the case of Madan Lal Vs. Union of India and Anr. 3, the Apex
Court had held as follows :-
"A bare reading of Section 70 of the Army Act makes it crystal
clear that a person who commits an offence of murder against a
person not subject to military, naval or air force law, or of
culpable homicide not amounting to murder against such a
person or of rape in relation to such a person, shall not be
deemed to be guilty of an offence against this Act and cannot be
tried by a Court Martial."
28. It would be apt to place reliance upon the judgment of this
Court in the case of Sandeep Sanjay Vithal Vs. The State of Maharashtra 4.
3 (2002) 10 SCC 185
4 2004 Cri. LJ 3678
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The Apex Court has held as follows :-
"9. Section 70 of the Army Act 1950 provides that a person subject
to the said Act who commits an offence of murder against a
person not subject to military, naval or air force law or of
culpable homicide not amounting to murder against such a
person or of rape in relation to such a person, shall not be
deemed to be guilty of an offence under the said Act and shall
not be tried by a court-martial, unless he commits any of the
said offences either while on active service, or at any place
outside India, or at frontier post specified by the Central
Government by notification in that behalf.
10. Reading of the above provision of the said Act would be
incomplete unless we take note of the definitions of certain
expressions found in the said Act. Section 3(ii) defines the term
"Civil offence" to mean an offence which is triable by a criminal
court. The term "court martial" is defined under Section 3(vii) to
mean a court-martial held under the said Act, while the term
"Criminal court" means a court of ordinary criminal justice in
any part of India. The word "offence" defined in Section 3 (xvii)
means any act or omission punishable under the said Act and
includes a civil offence as defined in the said Act. The expression
in "active service" as applied to a person subject to the said Act
has been defined under Section 3(i) to mean that the time
during which such person- (a) is attached to, or forms part of a
force which is engaged in operations against an enemy or (b) is
engaged in military operations in or is on the line of march to, a
country or place wholly or partly occupied by an enemy or (c) is
attached to or forms part of a force which is in military
occupation of a foreign country.
12. The provisions of law comprised under Sections 69 and 70 read
with various definitions of the terms and expressions used in the
said Act which are to be found in Section 3 thereof, make it
abundantly clear that if offence is committed by the army
personnel against a person subject to military laws and while
being on active service certainly he would be subjected to the
proceedings before the court martial. However, any such offence
committed against a person not subject to military laws and
otherwise than on active service then he would be subjected to
the provisions of the said Code as regards the place and court
trial. The said provisions clearly distinguishes 'active service'
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from merely being in service of Army. When the person is either
attached or engaged in military operations against an enemy or
at a place wholly or partly occupied by enemy, or is attached to a
force which is in occupation of the foreign country, only in those
situations an army person could be said to be "on active service".
Merely because a person has joined the military service, he
cannot be said to be "on active service" within the meaning of
the said expression under the said Act."
29. The learned counsel while placing reliance upon the judgment
of the Bombay High Court in the case of Kanwardeepsingh (supra), has
missed the facts of the case. In that case, the accused and the victims were
on duty, they were sailing in a ship to their headquarter and while on
voyage, the incident had occurred where the accused and the victims were
in the same service and therefore, the Bench had referred to the military
provisions. Hence, the facts are irrelevant for the purpose of deciding the
present case on the lines of the argument propounded by the Advocate for
the appellants.
30. The present one is a case of circumstantial evidence. At this
stage, it would be apt to refer to the judgment of the Apex Court in the case
of Sarbir Singh vs. State of Punjab 5. The Supreme Court, in the said case
had referred to the judgment in the case of Reg Vs. Hodge reported in
[(1838) 2 Lewin 227], wherein it was held as thus :-
"A note of caution has also been struck regarding the role of
imagination. In the case of Reg v. Hodge, (1838) 2 Lewin 227, it
5. 1993 SCC Supp (3) 41
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was said:
"The mind was apt to take a pleasure in adapting circumstances
to one another, and even in straining them a little, if need be, to
force them to form parts of one connected while; and the more
ingenious the mind of the individual, the more likely was it,
considering such matter, to overreach and mislead itself, to
supply some little link that is wanting, to take for granted some
fact consistent with its previous theories and necessary to
render them complete.' It has been impressed that suspicion and
conjecture should not take place of legal proof. It is true that the
chain of events proved by the prosecution must show that
within all human probability the offence has been committed by
the accused, but the Court is expected to consider the total
cumulative effect of all the proved facts along with the motive
suggested by the prosecution which induced the accused to
follow a particular path. The existence of a motive is often an
enlightening factor in a process of presumptive reasoning in
cases depending on circumstantial evidence."
31. In conclusion, the Supreme Court had held thus:-
"According to us the evidence adduced on behalf of the
prosecution is clear, unambiguous and in unmistakable terms
establish that the appellant is the perpetrator of the crime and
nothing has been brought to our notice which leaves any gap in
the circumstances to establish the guilt of the appellant."
32. The circumstances clearly indicate that the wife of accused no.1
had died homicidal death at the hands of the accused no.1. The act was
premeditated and sketched in such a way as to camouflage the death as
must have taken place in the course of commission of theft. However, the
entire episode points towards the guilt of accused no.1 and the appeal as far
as accused no.1 is concerned deserves to be dismissed. The motive of the
accused no.1 was to eliminate his wife in order to be able to marry his sister-
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in-law i.e. Sitara - sister of the deceased. The question remains as to
whether it was necessary to eliminate his wife and deprive the children of
their mother's love and care at such a tender age. In fact, children have lost
love of their father also and hence, it is clear that the accused had ignored
his children due to the smoke screen of love. She was killed in the living
house which was occupied exclusively by the couple and their children and
at least, at that relevant time, there is no iota of evidence to indicate that at
the relevant time any intruder had trespassed the house. Hence, the accused
no.1 deserves no leniency in the eyes of law.
33. As far as accused no.2 is concerned, there is no cogent and
convincing material on record which would clearly establish the guilt of the
accused. The statement of the accused no.1 while in police remand cannot
be relied upon to the disadvantage of the co-accused. It is not the case of the
prosecution that the statement of accused no.1 or accused no.2 was
recorded under section 30 of the Indian Evidence Act and conviction cannot
be based on the basis of the Call Detail Records, more so, when the sim card
was not issued in the name of the accused or any of his family member. The
investigating agency has neither recorded any statement under section 164
of Cr.P.C. Hence, the accused no.2 deserves to be acquitted with the aid of
benefit of doubt.
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34. Hence, we pass the following order :-
ORDER
(i) The appeal is partly allowed;
(ii) The conviction and sentence passed against the accused no.1 by
the Ad hoc District Judge-3 and Additional Sessions Judge,
Nashik in Sessions Case No.282 of 2012 vide judgment and
order dated 23rd May 2014 is hereby upheld and confirmed;
(iii) Accused no.2 is acquitted of all the charges levelled against him;
(iv) Accused no.2 be released forthwith, if not required in any other
offence;
(iv) Fine amount, if any paid, be refunded;
(v) Appeal is disposed of on above terms.
34. It is informed across the bar that at present, accused no.1 is
enlarged on emergency parole on the ground of pandemic situation.
Accused no.1 shall surrender within 2 weeks to serve the rest of the
sentence.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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