Bombay High Court
Aayeshabi Ayyaz Khan vs The State Of Maharashtra on 23 September, 2021
Bench: S. K. Shinde
25-REVN-191-2020.odt
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
SHIVGAN Date:
2021.10.01
15:36:00
+0530
REVISION APPLICATION NO.191 OF 2020
Aayeshabi Ayyaz Khan ... Applicant.
Vs
The State of Maharashtra ... Respondents
...
Mr. Arun K. Rajput for the Applicant.
Ms. Sharmila Kaushik, APP for the Respondent-State.
PI Sunil R. Dahiphale, Hinjawadi P.Stn., Pune.
CORAM : SANDEEP K. SHINDE J.
DATE : SEPTEMBER 23, 2021.
(Through Video Conferencing)
JUDGMENT :
Rule.
2 Rule made returnable forthwith. With consent of
the parties, revision is taken up for final hearing forthwith.
3 This revision under Section 397 of the Code of
Criminal Procedure, 1973 ('Cr.P.C.' for short) challenges the
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order dated 24th April, 2019 by which the learned Ad-hoc
Additional Sessions Judge, Greater Bombay, Mumbai
refused to pass order of discharge under Section 227 of the
Cr.P.C.
4 Facts essential for decision of this application are
as under;
Applicant is accused no.4 in Sessions Case
No.471 of 2018. She has been prosecuted for the offence
punishable under Sections 302, 201 and 212 of the Indian
Penal Code, 1860. Prosecution case in brief is that, on 31 st
January, 2015, control room received a message that at the
Shivaji Nagar, near dumping ground in a ditch, body of
unknown person was found burning. After which fire brigade
was summoned and fire was doused. Whereafter body was
removed to the hospital at which he was declared dead.
Accidental death enquiry was held. Post-mortem report
revealed, that cause of death was Asphyxia following burn
associated with ligature marks around the neck. Whereupon
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Crime No.61 of 2015 came to be registered under Sections
302, 201 of the IPC. On 5th February, 2015. Nagma Ayyaz
Khan, Sarvar Umar Farooq Shaikh and Shoab M. Mirza Baig
were arrested. Applicant is mother of Nagma (Accused
No.1). Deceased Shamim Ashfaq Khan was Nagma's first
husband. Deceased was staying with Nagma at Gautam
Nagar. There were disputes and differences between
Nagma and the deceased. On 31st January, 2015, Nagma
and Sarvar (accused no.2), second husband of Nagma,
dealt a blow by weapon on the head of the deceased and
strangulated him in the house, building no.19-C-702 at
Gautam Nagar. Whereafter accused no.2 and his friend
Shoab (accused no.3) carried the body of the deceased in
plastic sack and burnt it in dumping ground at Shivaji
Nagar. Statement of fourteen witnesses were recorded.
Whereafter final report was filed on 28 th April, 2015. One of
the witnesses, Mr. Ashfaq Khan filed Writ Petition No.2992
of 2015 seeking re-investigation by an independent agency
alleging that proper investigation was
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not carried out. Writ Petition was not entertained. Petitioner
Ashfaq was directed to approach the Trial Court. Thereafter
the Trial Court vide order dated 16th May, 2016 directed
further investigation under Section 173(8) of the Cr.P.C.
after which prosecution recorded statements of thirteen
witnesses.
5 In the further investigation, applicant's
complicity, who is mother of accused no.1, was disclosed
and, therefore, supplementary charge-sheet was filed
against her in March, 2018. Applicant seeks discharge on
the premise that the final report filed against the accused
nos.1 to 3 in April, 2015 and supplementary charge-sheet
filed against the applicant does not disclose any material
against the applicant and, therefore, it is argued that there
is no sufficient ground for presuming that the applicant has
committed the offence.
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6 As against this submission, the prosecution relied
on Call Detail Records of the accused to contend that
applicant was in contact with the accused no.1 before and
after the incident. The learned Prosecutor would rely on the
statement of one witness, Mr. Shampuri Goswami
(neighbour of accused no.1) and of Smt. Asma Khatun Khan
to contend that statements of these witnesses suggest,
presence of the applicant in the house of the accused no.1
where the deceased was allegedly strangulated. I have
perused the statements of these witnesses. A statement of
Shampuri Goswami was recorded on 27 th March, 2015. It is
part of the first charge-sheet filed against accused nos.1 to
3. In fact, statement of this witness suggests that applicant
(mother of accused no.1) was never seen by him at
Nagma's house. Thus, the statement of this witness is to be
kept out of consideration. Next statement is of Asma
Khatun Khan, a neighbour of Nagma where the deceased
was allegedly strangulated. Statement of this witness was
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recorded in February, 2017, i.e., nearly after twenty-four
months from the incident. This witness would state that
Nagma was living in neighbouring flat since 2014. That
Nagma and her husband were frequently quarreling.
Nagma's mother was visiting her daughter's flat. Her
statement suggests, when police enquired with her in
February, 2015, at that time, she came to know that Nagma
killed her husband. She would further state that two days
before the alleged incident, Nagma's flat was seen locked.
She would say that applicant never stayed at Nagma's flat.
However, on the day of the alleged incident, she had seen
the applicant at Nagma's House.
7 Question is whether, there is sufficient ground for
proceeding against the applicant.
8 For the purpose of determining whether there is
sufficient ground for proceeding against the accused, the
Court possesses comparatively wider discretion in the
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exercise of which it can determine the question whether
material on record, if unrebutted, is such on the basis of
which a conviction can be said reasonably to be possible as
held in the case of State of Karnataka v. L. Muniswamy
and Ors reported in 1977 SC 1489. In the case of State
of Maharashtra v. Som Nath Thapa reported in AIR
1996 SC 1744, Hon'ble Apex Court has held that if the
Court comes to a conclusion that commission of the offence
is a probable consequence, a case for framing of charge
exists and at the stage of framing the charge, probative
value of the materials on record cannot be gone into. It is
settled law that the purpose of Sections 227 and 228 of the
Cr.P.C. is to ensure that the Court should have satisfied that
accusations made against the accused is not frivolous and
that there is some material for proceeding against him. In
the case of Rajbir Singh v. State of Uttar Pradesh
reported in AIR 2006 SC 1963, the Apex Court has held
that at the stage of framing the charge, the Court has to
see if there is sufficient ground for presuming that the
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accused has committed an offence. If the answer is
affirmative, order of discharge cannot be passed and the
accused has to face the trial.
9 In the light of authoritative pronouncements, now
it is to be ascertained whether there is sufficient ground for
proceeding against the applicant.
10 It cannot be overlooked that in April, 2015, the
final report was filed against the accused nos.1 to 3. It is
only after the directions were issued to conduct further
investigation, prosecution has recorded the statements of
thirteen witnesses. Herein the prosecution largely relies on
the statement of Smt. Asma Khatun Khan eventually
neighbour of accused no.1. Her statement reveals that the
police had enquiry with her about the incident in February,
2015. It reveals from her statement that she came to know
about the incident only after the police made enquiries with
her in February, 2015. Admittedly, her statement was
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recorded nearly after twenty-four months, i.e., on 2 nd
February, 2017. This piece of evidence is to be kept out of
consideration for simple reason; that when the police
enquired with her immediately after the incident, it
appears, she was unaware of the incident. Her statement
has been recorded in 2017. Although she has, stated that
she had seen the applicant in the house of Nagma during
the day time on the date of incident, it contradicts her
earlier part of the statement wherein she disclosed that she
came to know about the incident when police enquired with
her two days after the alleged incident. In so far as the Call
Detail Records (CDR) are concerned, calls made by the
daughter to the mother or by mother (applicant) to
daughter (accused no.1) cannot be said to be material
disclosing the complicity of the applicant in the crime in
question.
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11 After weighing the evidence for limited purpose of
finding out whether or not prima-facie case against the
accused has been made out, in my view, the material
placed before me is not sufficient to proceed against the
applicant. The statement of Asma Khatun Khan may give
rise to some suspicion but not grave suspicion and,
therefore, in my view, there is no sufficient ground for
presuming that the applicant had committed offence in
question.
12 For the aforestated reasons, revision is allowed. In
consequence, the impugned order dated 24 th April, 2019 is
quashed and set aside. The applicant is discharged.
13 Rule is made absolute in the aforesaid terms.
(SANDEEP K. SHINDE, J.)
Shivgan
