Ayyub Yakub Shaikh C.No.7810 vs The State Of Maharashtra
2021 Latest Caselaw 12839 Bom

                                          1                  criappeal 393.2014.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO.393 OF 2014

             Ayyub s/o Yakub Shaikh,
             age 39 yrs, Occ. Labour,
             R/o Village Itkal,Tq. Tuljapur,
             District Osmanabad.                          ..Appellant..
                                                        (orig. accused)
             Versus

             State of Maharashtra,
             Through Police Station,
             Naldurg.                                    ..Respondent..
                                  ...
     Advocate for Appellant : Mr.Sanjaykumar Chavan (Appointed)
            APP for Respondent : Mr. R V Dasalkar
                              ...
      CORAM : V.K. JADHAV & SHRIKANT D. KULKARNI, JJ.

...

Reserved on : 23.8.2021 Pronounced on : 08.09.2021 ...

JUDGMENT :- ( Per V. K. JADHAV, J.)

1. This appeal is directed against the judgment and

order of conviction passed by the Sessions Judge,

Osmanabad dated 30.4.2014 in Sessions Case No.10 of

2013.

2. Brief facts of the prosecution case, are as follows :-

     a]      PW-1/informant           Rajabhai      Imam         Bhambharte

     (Shaikh)          is      resident       of   village       Itkal.        The





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     appellant/accused          Ayyub    is   son-in-law         of      the

complainant. Deceased Anwarbee was given in marriage

to the appellant/accused and they were having two

children out of their marital wedlock. After marriage,

they were residing at village Itkal. On 10.8.2012 PW 1

Rajabhai came to know that his daughter Anwarbee was

not returned from her place of employment. Hence, he

had made inquiry with his relatives, but he could not

trace out her though he has made every efforts to fnd

out. Hence, on 12.8.2012 PW 1 Rajabhai had lodged the

missing report of his daughter exhibit 14 at police

station, Naldurg. It was registered as missing report

no.15 of 2012 and inquiry was handed over to Bit Head

constable Giri.

3. On 13.8.2012 however, PW 1 Rajabhai has lodged

the complaint exhibit 13 in the concerned police station

at Naldurg alleging therein that husband of deceased

Anwarbee used to suspect about character of deceased

Anwarbee and some 3 to 4 years prior to the incident,

assaulted her and also caused injury to her by using

axe. Even, PW 1 Rajabhai has lodged the complaint

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about the said incident in the police station. PW 1

Rajabhai has expressed his suspicion that by

suspecting about the character of deceased Anwarbee,

the appellant/accused had committed her murder and

also disposed off the dead body.

4. On the basis of his complaint, crime no.135 of

2012 came to be registered in the concerned police

station for the offence punishable under section 302,

201 of the Indian Penal Code. API Shetkar took over the

investigation of the crime. He has effected arrest of the

appellant/accused. On 13.8.2012 the appellant/accused

has made a voluntary statement in presence of the

panchas that he had buried the dead body of the

deceased Anwarbee in the house and, he has shown his

willingness to point out the said place. Accordingly, PW

12 API Shetkar has drawn memorandum of panchnama

exhibit 38 and also drawn the panchnama of the place

where the accused has buried the dead body of

Anwarbee. It was accordingly exhumed from the said

buried place at his house. Said panchnama is marked at

exhibit 38. Necessary permission was obtained from the

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Tahsildar for exhuming the body and in presence of Naib

Tahsildar, panch witnesses, Medical Offcer, the dead

body of was taken out from the buried place and,

accordingly, postmortem was conducted on the spot

itself. PW 9 Dr. Vishwanath Mallinath Swami has

conducted postmortem examination on the spot itself,

which is marked at Exhibit 32. Dr. Swami has noticed

ligature mark around neck between larynx and chin

above (thyroid cartilage) running along line of mandible

bone, around whole neck except at a point over left side

of neck (anteriorly aligning left border of the mandible

where it is interrupted and is directed obliquely

upwards. Length of ligature mark was 33 cm, breadh 1

1/2 cm and depth was 1/2 cms. There was minor

abrasion in bed of groove. Said injury was ante-mortem

in nature. In his opinion, death of deceased was caused

due to 'asphyxia due to strangulation'. After completion

of the investigation, Investigating offcer has submitted

charge-sheet before the Court.

5. The learned Sessions Judge, Osmanabad has

framed the charge vide exhibit 4 against the

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appellant/accused for the offence punishable under

sections 302, 201 of the Indian Penal Code. The

contents of the charge were explained and read over to

the accused in vernacular and accused pleaded not

guilty to the charge and claimed to be tried.

6. Prosecution has examined in all 12 witnesses to

substantiate the charges levelled against the accused.

The defence of the accused is of denial. According to

him, the complainant Rajabhai used to demand money

from him and deceased Anwarbee for consuming the

liquor and deceased Anwarbee refused to give money to

the complainant. Even, PW 1 Rajabhai and his wife

used to insist Anwarbee to take divorce form the

appellant/accused, to which deceased Anwarbee had

refused. The informant had a grudge against Anwarbee

so also against the appellant/accused. It is the defence

of the accused that informant himself has killed his

daughter and buried her. After completion of the

prosecution evidence, the statement of the accused

under section 313 of the Cr.P.C. came to be recorded.

6 criappeal 393.2014.odt

7. By judgment and order dated 30.4.2014 the

learned Sessions Judge, Osmanabad in Sessions case

No.10 of 2013 has convicted the appellant/accused for

the offence punishable under sections 302, 201 of the

Indian Penal Code, which is as follows :-

1- The accused Ayyub Yakub Shaikh is convicted u/s 235(2) of Cr.P.C., of the offence punishable under section 302 of IPC and sentenced to suffer R.I. for life and to pay a fne of Rs.1000/- (Rs. One thousand only), in default of payment of fne, he is directed to undergo further R.I. for three months.

2. The accused Ayyub Yakub Shaikh is further convicted u/s 235 (2) of Cr.P.C. of the offence punishable under section 201 of IPC and sentenced to suffer R.I. for 7 years and to pay a fne of Rs.1000/- (Rs. one thousand only). In default of payment of fne, he is directed to undergo further R.I. for three months.

3. Both the sentences shall run concurrently.

4. The accused Ayyub Yakub Shaikh is in jail since his arrest on 13.8.2012 till the date. Subject to the provisions of section 433-A of Cr.P.C., he is entitled to set off, as provided u/s 428 of Cr.P.C.

5. The muddemal property pick-axe and spade be destroyed after the period of appeal is over, if appeal is preferred, then the decision of appeal.

6. The accused is informed that he has right to prefer appeal against this judgment before Hon'ble High Court.

7. Certifed copy of this judgment be given free of costs to accused, forthwith.

                                          7                    criappeal 393.2014.odt



     8.      Learned           counsel   for    the     appellant/accused

submits that the prosecution case entirely rests upon

the circumstantial evidence and there is no direct

evidence in this case. The appellant/accused and

deceased Anwarbee were living happy married life as

deposed by their daughter PW 2 Parvin Shaikh.

Learned counsel thus submits that the circumstances

relied upon by the prosecution are not proved, and, as

such, the guilt of the accused is not established.

Learned counsel submits that the prosecution has not

proved the memorandum panchnama and recovery

panchnama exhibit 38. The witnesses on the said

panchnama are the habitual panch witnesses. The

appellant/accused is entitled for the beneft of doubt.

9. Learned counsel for the appellant/accused, in

order to substantiate his contentions, placed reliance on

the following judgment :-

Sandip Baburao Waidande Vs. State of Maharashtra Through, Kurlap Police Station reported in 2021 SCC online 560.

8 criappeal 393.2014.odt

10. Learned APP for the respondent-State submits

that the prosecution case rests upon the circumstantial

evidence and the circumstances relied upon by the

prosecution are conclusive in nature pointing out the

guilt of the appellant/accused. There is evidence about

homicidal death of deceased Anwarbee. Her dead body

was found buried in the house itself and said place was

within the exclusive knowledge of the

appellant/accused. At his instance dead body was

removed from the buried place. The appellant/accused

has given false explanation about death of his wife and

on the other hand, made wild allegations against the

father of the deceased Anwarbee. The Trial Court has

rightly convicted the appellant/accused. There is no

substance in this appeal. The appeal is liable to be

dismissed.

11. We have carefully considered the submissions

advanced by the learned counsel for the appellant-

accused and the learned APP for the respondent-State.

With their able assistance, we have perused the grounds

taken in the appeal, annexures thereto, the record and

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proceeding and the case laws cited by the respective

parties.

12. PW 1 Rajabhai, who happened to be the father of

the deceased Anwarbee, has noticed the absence of

deceased Anwarbee from 10.8.2012. After searching her

extensively, PW 1 Rajabhai has lodged the missing

report in the concerned police station on 12.8.2012 and

inquiry of the missing report was assigned to Bit H.C.

Giri. It is to be noted here that the appellant/accused

has not fled any missing report about his wife in the

police station nor he has informed to the parents of the

deceased about her missing. On 13.8.2012 PW 1

Rajabhai has lodged the complaint exhibit 13 expressing

his doubts against the appellant/accused for having

committed the murder of deceased Anwarbee and

disposed off her dead body. According to PW 1

Rajabhai, the appellant/accused was suspecting about

character of deceased Anwarbee and some 2 to 3 years

prior to the incident and he has also assaulted the

deceased Anwarbee and used weapon axe in the assault

by suspecting about her character. PW 1 Rajabhai has

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lodged the complaint about it in the concerned police

station.

13. PW 3 Abdul Pathan, who is the brother-in-law of

the accused has deposed that after deceased Anwarbee

found missing from the house, he alongwith his father

PW 1 Rajabhai took search of deceased Anwarbee for

two days, but they did not fnd her. He has also

deposed that some 3 to 4 years prior to the incident

accused assaulted deceased Anwarbee by axe by taking

doubt over her character. There is nothing in the cross-

examination to disbelieve the version of PW 1 Rajabhai

so also PW 3 Abdul Pathan. In our considered opinion,

the prosecution has established and proved the motive

for the appellant/accused to commit murder of his wife.

It is necessary to mention here that the motive plays a

prominent role when the prosecution case rests upon

the circumstantial evidence.

14. It further appears that on the basis of the

complaint exhibit 13, crime no.135 of 2012 came to be

registered in the concerned police station for the offence

punishable under section 302, 201 of IPC against the

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appellant/accused. Consequently, PW 12 API Shetkar

has effected arrest of the appellant/accused on

13.8.2012 itself. Arrest panchnama is marked at exhibit

41. On the same day, the appellant/accused has made

a voluntary statement that he is ready to show the place

of incident where he had buried the dead body of his

wife and said place of the incident is in his house itself.

We have carefully gone through the contents of the

panchnama exhibit 38. The prosecution has proved the

contents of this panchnama through PW 11 Raosaheb

Waghmare. There is nothing in his cross-examination to

disbelieve the same. It appears that after recording this

memorandum panchnama, accused took the panch

witnesses, police party and other persons to the spot of

the incident and shown the place. After recording the

memorandum panchnama, PW 12 API Shetkar has

called the Tahsildar and Medical Offcer. On arrival of

the Tahsildar and Medical Offcer, they went to the spot

as shown and lead to them by the appellant/accused.

They have reached to village Itkal and the

appellant/accused took all of them to his house. Even,

API Shetkar has called the photographer on the spot.

12 criappeal 393.2014.odt

PW 12 API Shetkar has called 2 to 3 persons for digging

the place. After digging out the place, dead body was

exhumed.

15. The prosecution has examined PW 5 Bharat

Suryawanshi, who is serving as Nayab Tahsildar at

Tahsil Offce, Tuljapur. On 13.8.2012 he had received a

telephonic call of API Shetkar and also gave a letter and

requested him to attend the exhumation of dead body to

remain present on the spot of village Itkal. On the basis

of the said letter, API Shetkar, Tahsildar has directed

him to attend exhumation of dead body. Said letter/

order issued by the Tahsildar is placed on record and

marked at exh.20. According to him, he went to

Naldurg police station and PW 12 API Shetkar and the

appellant/accused were present in the police station.

Thereafter, all of them went to the spot as shown by the

appellant/accused. He further deposed that the

appellant/accused has pointed out the place where he

buried the dead body, which was situated in the middle

room of his house. He has further deposed that after

digging 2 to 3 feet, there was a pungent smell. They saw

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the part of dead body. The dead body was exhumed

from the ditch and brought on the foor. Father of the

deceased identifed the dead body of his daughter. The

panchnama of the dead body was carried out and PW 9

Dr. Swami has performed postmortem examination on

the spot itself.

16. Prosecution has examined PW 4 Ravindra Lakade,

who was called by the police inside the house of the

accused for digging the foor. According to him,

alongwith some other persons, he dug the place shown

to him by the appellant/accused. After digging to some

extent, they found dead body of the wife of the accused

and there were ligature marks on the neck of the dead

body.

17. Prosecution has examined PW 6 Kundlik Nivrutti

Gaikwad, who is panch witness on the spot panchnama

exhibit 23. Prosecution has proved the contents of the

spot panchnama through PW 6 Pundlik Gaikwad. He

has supported the contents of the spot panchnama.

Spot is in the middle room of the house of the accused.

14 criappeal 393.2014.odt

18. Prosecution has examined PW 9 Dr. Vishwanath

Swami. He went to Naldurg police station as police had

come to the hospital at about 11.00 am on 13.8.2012.

Thereafter, he himself, police, Press reporter,

cameraman, Tahsildar went to the village Itkal.

According to PW 9 Dr.Swami, place was shown by the

appellant/accused and he disclosed to them that he had

buried the dead body of his wife in the house after

strangulation. After digging, dead body was taken out of

the ditch. It was a female dead body. It was identifed

by PW 1 Rajabhai as his daughter. PW 9 Dr. Swami has

inspected the dead body which was having ligature

mark around neck. On inspection he noticed that one

red cloth was tied around the neck of the dead body. He

performed the post mortem of the dead body on the

spot. According to him, deceased died due to

strangulation. On external examination Dr.Swami found

following injuries :-

* EXTERNAL INJURIES *

Ligature mark around neck between larynx and chin above (thyroid cartilage) running along line of mandible bone, around whole neck except at a point over left side of neck. Anterioirly alining left border of the mandible where it is interrupted and is directed obliquely

15 criappeal 393.2014.odt

upwards. Length of ligature mark was 33 cms, breadh 1 1/2 cm and depth was 1/2 cm. There was minor abrasion in bed of groove.

Said injury was antemortem. According to him,

injury was possible by pressing the neck by clothe. In

his opinion, death of deceased Anwarbee was caused

due to 'Asphyxia due to strangulation'.

19. Prosecution has examined PW 2 Parvin Shaikh,

aged 15 years the daughter of the deceased. She has

deposed that on 9.8.2012 it was Thursday and she was

in the house for the entire day. Her parents had been to

work. On that day, her mother returned home in the

evening. Her mother Anwarbee left PW 2 Parvin and her

brother Tohir to the house of her grand father. She has

further deposed that her mother (deceased Anwarbee)

was alone in the house. On the next day, at about 7 am

she returned to her house. She has deposed that her

mother was not in the house. Appellant/accused was

there in the house. He had disclosed that her mother

went to job. Then, she went to Masjid (Mosque). She

further deposed that she had given Laddu and Jilebi in

the Masjid and she returned home and gave Laddu and

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Jilebi to her father. PW 2 Parvin has further deposed

that hands of her father was having mud, and she had

asked her father to wash his hand, but he refused and

taken Jilebi and ate. Thereafter, the appellant/accused

gave her Rs.10/- and asked her to go alongwith her aunt

Dilshan to Naldurg. She went to Naldurg alognwith Aunt

Dilshan. She returned home at about 7.30 p.m. on the

same day. She had again asked the appellant/accused

as to whereabouts of her mother. The appellant/accused

told that she did not return and he had visited the place

of the employment of the deceased Anwarbee twice. It is

thus clear that the appellant/accused was in the house

on 9.8.2012 and when PW 2 Parvin left the house, her

mother was in the house. Thus, PW 2 Parvin had seen

her mother deceased Anwarbee alive lastly in the house.

PW 2 Parvin has also deposed about the presence of the

appellant/accused in the house.

20. In a case of Sharad Birdhichand Sarda Vs. State of

Maharashtra reported in 1984 SC 1622, the Supreme

Court has laid down the following principles to

17 criappeal 393.2014.odt

appreciate the evidence when the prosecution case rests

upon the circumstantial evidence.

The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence.

1. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established.

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

21. The circumstances relied upon and proved by the

prosecution is having a defnite tendency to point out

guilt of the accused. The circumstances so proved are

consistent only with the hypothesis of the guilt of the

accused and cumulative effect of the circumstances

does not leave any reasonable ground for the conclusion

18 criappeal 393.2014.odt

consistent with the innocence of the accused shows that

in all human probabilities the act must have been done

by the accused.

22. In a case of Sandip Waidande (supra) relied upon

by the learned counsel for the appellant/accused, in the

facts of the said case, the Division Bench of this Court

decided the appeal and no principle is laid down as

such.

23. In view of the same, we fnd that the trial court

has rightly convicted the appellant/accused for the

offence punishable under section 302, 201 of the IPC.

There is no substance in this appeal. The appeal is

thus liable to be dismissed. Hence, following order.

ORDER

i. Criminal appeal is hereby dismissed.

ii. Criminal appeal is accordingly disposed off.

iii. Since Advocate Mr. Sanjaykumar Chavan is appointed to represent the cause of the appellant/accused, we quantify his legal fees and expenses @ Rs.10,000/- (Rs.Ten Thousand)

19 criappeal 393.2014.odt

to be paid by the High Court Legal Services Sub-Committee, Aurangabad.

( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. )

...

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