The State Of Maharashtra vs Shaikh Sarfaraj @ Shaffu Shaikh ...
2023 Latest Caselaw 400 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


          APPLICATION FOR LEAVE TO APPEAL BY STATE
                       NO.117 OF 2020


 The State of Maharashtra,
 Through Police Station Officer,
 City Chowk Police Station, Aurangabad.
                                                        ...APPLICANT
        VERSUS

 1) Shaikh Sarfaraj @ Shaffu Shaikh Sandu,
    Age-20 years, Occu:Labour,
    R/o-Besides Afroz Kirana Shop,
    Roza Baugh, Aurangabad,

 2) Shaikh Adil @ Langada Shaikh Rafiq,
    Age-21 yeas,
    R/o-Behind Azad College, Near Jama
    Masjid, Roza Baugh, Aurangabad.
                                                        ...RESPONDENTS

                  ...
      Ms.V.S. Choudhari A.P.P for Applicant.
                  ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       ABHAY S. WAGHWASE, JJ.

               DATE :          11th JANUARY, 2023

 ORDER :

1. Present Application has been filed under Section 378(1)(b)

of the Code of Criminal Procedure seeking leave to appeal to

challenge the acquittal of the respondents by the learned

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Additional Sessions Judge, Aurangabad in Sessions Case No.76

of 2018 from the offence punishable under Section 302 read with

Section 34 of the Indian Penal Code on 3rd March 2020.

2. With the able assistance of learned APP, we have gone

through the evidence that has been recorded as well as the

impugned Judgment and order. It will not be out of place to

mention here that it appears that the original informant has also

filed Appeal under Section 372 of the Code of Criminal Procedure

(thought wrongly mentioned as "Appeal under Section 378 of the

Code of Criminal Procedure), but it would be considered upon

merits, later on.

3. Perusal of the evidence would show that deceased Feroz

was 18 years old boy. He was the son of PW-1 Farooq Khan. It

appears from the prosecution story that the informant had given

an amount of Rs.200/- to Feroz for household expenses on 30 th

December 2017. Informant could not see the son at home at

6.45 p.m. when he returned and then made inquiry with his wife.

It was told to him that around 4.15 p.m. the present

respondents - original accused had came to the house of Feroz

on motorcycle and took Feroz along with them. Informant had

tried to contact the deceased on his mobile from 7.30 p.m.,

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however it was not reachable. Thereafter, the informant

searched for the son but he could not be traced out. Around

12.15 a.m. one Sayyad Rashid came to the house of the

informant and told that some untoward incident has happened

with Feroz and Feroz has been taken to Ghati hospital,

Aurangabad. Informant went to the hospital, saw the dead body

of his son and thereafter he lodged the First Information Report.

4. Prosecution examined in all 7 witnesses to bring home the

guilt of the accused. The evidence of Associate Professor,

Department of Forensic Medicine, Government Medical College

and Hospital, Aurangabad, Dr. Ramesh Wasnik, who had

conducted the autopsy, would disclose that the deceased had

sustained in all 28 surface wounds and corresponding internal

injuries. The probable cause of death was "head injury

associated with stab injury to spleen." Further, the spot

panchnama would show that from the spot the murder weapon

i.e. knife has been seized. Therefore, there is sufficient evidence

to arrive at a conclusion that death of Feroz was homicidal in

nature.

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5. It is now required to be seen, whether there was sufficient

evidence to connect the respondents to the crime. It can be seen

from the evidence that the case of the prosecution rests on 'last

seen together' theory. PW-1 Farooq, father of the deceased was

not the same person who had seen deceased and accused

together. PW-2 Shaikh Ahmed is the person who had seen Feroz

along with the accused. He has stated that on the day of incident

in the evening at about 5.00 to 5.30 p.m. he was sitting with his

grandson nearby the water tank of Rozebagh. Accused persons

as well as Feroz came near that water tank together. He also

states that one rickshaw was parked in front of water tank. He

had seen the accused as well as deceased shaking hands with

each other and talking. Then PW-2 says that thereafter all of

them went by that auto rickshaw towards Satya Vishnu Hospital.

Thus, it is to be noted that even his examination-in-chief shows

that he has allegedly seen deceased along with accused around

5.00 to 5.30 p.m. From the testimony of PW-6 Medical Officer, it

has not been extracted as to what was the approximate time of

death. That was important point to show the proximity between

the point when deceased was seen along with accused prior to

the death. PW-4 Raziya Khan is the mother of the deceased and

she has stated that when she was at home and talking to Feroz,

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around 4.00 to 4.15 p.m., both the accused came to her house

and called Feroz. She went outside the home. At that time

accused persons told her that they have some work with Feroz

and asked her to permit him to accompany them. Thereafter,

Feroz went along with them. Here, it is to be noted that as per

the prosecution story in the First Information Report, accused

persons had taken Feroz on motorcycle and PW-1 Farooq Khan

has also stated in his testimony that when he had made inquiry

with the boys playing in the area when he could not find Feroz, it

was disclosed by those boys that Feroz went on motorcycle with

accused persons towards Satya Vishnu Hospital. However, PW-2

Shaikh Ahmed says that accused and Feroz had gone in auto

rickshaw towards Satya Vishnu Hospital.

6. Another fact that is to be noted, is the testimony of PW-3

Syed Rashid, who had given information about the untoward

incident to the informant. PW-3 states that he had received

phone call from his friend, reporter Kayyum Khan. Kayyum Khan

requested the witness to provide phone number of one Afsar

Patel who was the maternal uncle of deceased Feroz. Though

witness Syed Rashid tried to give phone call to said Afsar Patel,

he found that it was switched off and thereafter the witness went

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to the house of Afsar Patel around 10.30 p.m. and he says that

at that time he came to know from Kayyum Khan that Feroz is

murdered. He then says that he thereafter, went to Farooq Khan

and informed that Feroz is met with an accident as Farooq is a

heart patient and thereafter Farooq went to Ghati hospital. Here

it is to be noted that Kayyum Khan was the person who has

supplied the information about the incident to PW-3 Syed Rashid,

but said Kayyum Khan has not been examined by the

prosecution for establishing the link. How said Kayyum Khan

came to know about the incident is therefore, missing which

prosecution did not tried to solve. The other witnesses examined

by the prosecution are panch to the spot panchnama and the

Investigating Officer.

7. Thus, it can be seen that since the case is based on 'last

seen together' and the proximity is not established, proper chain

is also not coming forward and most importantly the motive

behind the offence has not been uncovered, it can be seen that

the trial Court was justified in acquitting the accused persons. It

could not have been said on the basis of the quality of the

evidence that the prosecution had proved the guilt of the

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accused persons beyond reasonable doubt. Hence, no case is

made out for grant of leave to appeal.

8. For the aforesaid reasons, the Application stands rejected.

 [ABHAY S. WAGHWASE]                 [SMT. VIBHA KANKANWADI]
     JUDGE                                     JUDGE

 asb/JAN23