Bombay High Court
Mohammad Ashraf Wali Mohammad vs State Of Maharashtra And Anr on 25 October, 2023
Bench: Nitin W. Sambre, Rajesh S. Patil
2023:BHC-AS:32017-DB
905.ia.459.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 459 OF 2023
IN
CRIMINAL APPEAL NO. 1178 OF 2022
Mohammad Ashraf Wali Mohammad
Age-33 years,
R/at Field of Husain Sheth, Mamon
Colony, Room No.6, Malegaon. ...Applicant
V/s.
1. State of Maharashtra
Through P.I. Pawarwadi Police Station,
Dist. Nashik.
2. Sana Majit Husain
Age-20, Occ : Labourer,
R/at : Depo, Malegaon,
Dist : Nashik ...Respondents
____________________________________
Digitally
signed by
Amol
Amol Diliprao
Diliprao Nawale
Nawale Date:
2023.10.25 Mr. Aniket Nikam i/b. Amit Icham for the Applicant.
16:48:49
+0530
Smt. M. M. Deshpande, APP for the Respondent/State.
____________________________________
CORAM : NITIN W. SAMBRE &
RAJESH S. PATIL, JJ.
RESERVED ON : 7th SEPTEMBER, 2023
PRONOUNCED ON 25th OCTOBER, 2023
ORDER (PER RAJESH S. PATIL):
1. This an Application under sub-Section (1) of Section
Amol D. Nawale
905.ia.459.2023.doc
389 of the Code of Criminal Procedure, 1973 (for short 'CrPC')
filed in Criminal Appeal No.1178 of 2022, by the present
Applicant, who was Original Accused No.1. The Applicant is
convicted by the Additional Sessions Judge, Malegaon, for the
offences punishable under Sections 302 and 201 of the Indian
Penal Code, 1860 (for short 'IPC'), by Judgment and Order dated
18th October, 2022 passed in Sessions Case No. 176 of 2019.
2. Brief facts as contended by the prosecution is as
follows :-
2.1. Deceased Majid Husain Wajid Husain @ Majja Dada
(for short 'deceased'') was a habitual offender, and there were
several Criminal Antecedents against him. He was even externed
by an Executive Magistrate.
2.2. The deceased was alleged to have committed the
murder of one Mohammad Sharif Wali Mohammad @ Sharif
Kacchi, who was the brother of the present Applicant (original
Accused No.1), and now convict. The said Mohammad Sharif Wali
Mohammad @ Sharif Kacchi was also brother of the accused no.3
and 8 and uncle of the Accused No.2. Therefore, with a view to
take revenge of their brother, the Original Accused nos. 1 to 7
Amol D. Nawale
905.ia.459.2023.doc
entered into a conspiracy to kill the deceased. The Accused Nos. 4
to 7 were entrusted with the task of deceiving the deceased and
bringing him at Chalisgaon fata. According to the plan, the
Accused No.5 approached the house of the deceased with 2-3
other persons on 3rd April, 2019 and deceived the deceased and
caused him to accompany them. Accordingly, the Accused Nos.5, 6
and 7 and the deceased hired an auto-rickshaw of one Juber Khan
(P.W.1) at 05.30 p.m. on 3rd April, 2019 at 60 feet road, Malegaon.
2.3. The deceased and the Accused Nos. 5 and 6 boarded
the said auto-rickshaw, however, accused no.7 did not board the
auto-rickshaw and commenced its journey on the motorcycle. The
auto-rickshaw started its journey towards Dhule. As the auto-
rickshaw crossed Laling ghat, the accused nos. 1, 2 and 3 followed
the auto-rickshaw on the motorcycle. The Accused No.2 pretended
that the tyre of the auto-rickshaw was punctured, due to which the
auto-rickshaw driver Juber Khan reduced its speed. At that time,
the Accused No.1 and 2 boarded the auto-rickshaw, whereas the
Accused Nos. 5 and 6 deboarded the auto-rickshaw. Thereafter, the
Accused Nos. 1 and 2 started beating the deceased with their
hands and also, intimidated the auto-rickshaw driver to drive the
Amol D. Nawale
905.ia.459.2023.doc
auto-rickshaw, by pointing a knife on his neck. They directed the
auto-rickshaw driver to take turn towards Malegaon.
2.4. While taking the turn, the auto-rickshaw became slow,
the Accused Nos. 4 and 6 reached at the spot on a black coloured
motorcycle. The Accused No. 4 inflicted the blow of fighter on the
face of the deceased. Thereafter, the said two motorcycles started
running in front of the auto-rickshaw, and the auto-rickshaw was
following them. The Accused No.1 thereafter inflicted a forcible
blow of his elbow on the head of the deceased, whereas the
accused no.2 forcibly twisted the neck of the deceased, due to
which the movements of the deceased stopped. The Accused Nos.
5 and 7 also started following the auto-rickshaw on a motorcycle.
The Accused No.5 handed over a rope to the Accused No.1 as per
his demand.
2.5. All the three motorcycles took a left turn and
proceeded towards
a kaccha road, on the left side of the highway, the auto-rickshaw
followed them. They stopped after some distance, whereafter the
Accused No.1 asked the other accused persons to remove the
deceased from the auto-rickshaw. The deceased was, accordingly,
Amol D. Nawale
905.ia.459.2023.doc
removed from the auto-rickshaw. Thereafter, the Accused No.1 told
to the auto-rickshaw driver Juber that the deceased had murdered
his brother. He thereafter, handed over the auto-rickshaw driver
fare of Rs.3,000/- and asked him not to disclose the incident to
anybody. Thereafter, the auto-rickshaw driver return back to
Malegaon alone by his auto-rickshaw. The Accused Nos. 1 to 7
strangulated the deceased with the rope, thereby killing him. After
2 to 3 days, the Accused Nos. 4 to 7 met Juber Khan and
intimidated him that if he disclosed the incident to anyone, he
would also be roped in the crime. Hence, the auto-rickshaw driver
Juber kept silence on the issue.
2.3. Having regard to the history of deceased, police always
used to search for him, as such he used to be hardly at his home
and for days he used to not return to his home. Hence, no
complaint was lodged with police station by the family of the
deceased though the deceased had not return back to home for
long time. As the deceased did not return back home after almost
one and a half months, the brother of the deceased namely Sajid
Husain (P.W.3) approached Pawarwadi Police Station, Malegaon on
17th May, 2019 and lodged a missing complaint, bearing
Amol D. Nawale
905.ia.459.2023.doc
No.6/2019.
2.4. The police head constable P.W.2 Sultan Shaikh (P.S.I)
conducted enquiry into the missing complaint and through secret
source received information that the deceased had proceeded in
the auto-rickshaw of Juber Khan (P.W.1) along with the Accused
Nos. 5 and 6. As such, P.W.2 made made enquiry with Juber Khan,
the auto-rickshaw driver, who narrated entire episode to P.W.2.
2.5 On 27th May, 2019, P.W.2 called upon the Accused Nos.
1 to 7 and enquired with them, however, they did not disclose
anything. Hence, P.W.2 directed the accused person to visit the
police station on the next day. On 28th May, 2019, the Accused Nos.
1 to 7 visited the police station when P.W.2 made enquries with the
Accused No.1 and 2 separately, whereafter, they disclosed to him
that the deceased was killed by them, by strangulating him and his
body was thrown into a valley. P.W.2 hence, proceeded with them
to trace out the dead-body of the deceased. However, the Accused
No.1 changed his version, on their way, and informed that the
dead body was cut into 15 to 20 pieces, and the pieces was thrown
along a road at different places. Thereafter, an enquiry was made
with the Accused Nos. 1 and 2 separately, by stopping the vehicle,
Amol D. Nawale
905.ia.459.2023.doc
when both of them disclosed to P.W.2 that the dead body was
buried on the bank of a canal at Malegaon. They also informed
that the Accused No.8 helped them to carry the dead-body at
Malegaon from the scene of occurrence, by his Sumo vehicle.
2.6. P.W.2 thereafter informed the police inspector Mr.
Gulabrao Patil (P.W.14) about the whole incident, who made an
entry in the station diary. P.W.14 thereafter called upon Naib-
Tahsildar, Medical Officer, Photographer, Panchas and others and
all of them proceeded to the canal namely Owadi Nala. The
Accused Nos.1 and 2 were also with whole team of P.W.2. The
Accused Nos. 1 and 2 disclosed that the dead body was buried
under the hip of garbage at the bank of the canal. The dead was
found buried, by using salt and cement. The dead body was
exhumed from the ditch.
2.7. The brother of the deceased, namely Sajid
Husain(P.W.3), identified the dead body to be that of his deceased
brother. The dead body was partially decomposed. The Naib-
Tahsildar prepared a panchanama in the presence of the Panchas,
in respect of the entire operation. P.W.14 police inspector was
drawn inquest panchanama, to ascertain the exact time of
Amol D. Nawale
905.ia.459.2023.doc
incident. Dr. Yamunesh Pawar (P.W.5A) sent the dead body for
post-mortem examination at Civil Hospital, Dhule. Dr. Ramesh
Gadri (P.W.5A) conducted the post mortem examination. He found
certain head injuries and certain injuries to the muscles of the neck
of the deceased.
2.7. P.W.2 thereafter lodged an F.I.R with Pawarwadi Police
Station, Malegaon on the same day, on the basis of which C.R.
No.64/2019 was registered against the accused persons, for the
offences punishable under Sections 302, 363, 201, 120B, 324, 323,
506 read with Section 34 of the IPC.
2.8. P.W.14 Police Inspector Gulabrao Patil investigated into
the crime. In that connection, he arrested the accused persons. He
prepared a running panchnama, thereby covering the entire crime
scenes. He recovered the rope and the knife, on the basis of the
Disclosure Statement of the Accused No.1. He seized the clothes of
the accused persons as well as the motorcyles, which were
produced by their relatives. He also seized the clothes of the
deceased, which were produced by Police Constable Hitesh
Bhamare. He got the blood sample of the mother taken by a
medical officer at Malegaon. He sent the sternum and the femur
Amol D. Nawale
905.ia.459.2023.doc
bones of the deceased, so also the blood sample of his mother to
the Forensic Science Laboratory for D.N.A analysis. He recovered a
fighter, at the instance of the Accused No.4, so also seized four
wheeler sumo. He sought for C.D.R., S.D.R., tower location of the
mobile phones of the accused persons. He also collected the D.N.A
report and the post mortem notes and sent the Muddemal for
chemical analysis. Thereafter, statements of the witnesses were
recorded. The statement of the sole eye-witness Mr. Juber Khan
(auto-rickshaw driver) was recorded by the Judicial Magistrate, as
per Section 164 of the Code of Criminal Procedure, 1973. After
completion of the investigation, eight accused persons were
chargesheeted before the court of Additional Chief Judicial
Magistrate, Malegaon, for the offences punishable under Sections
302, 363, 201, 120B, 324, 323 and 506 of the IPC. The learned
Magistrate took the cognizance of the offences, and committed the
case to the Sessions Court for trial.
3. The accused persons came to be charged for the
commission of the offences punishable under Sections 302, 363,
201, 120B read with Section 34 of the IPC, by the learned Trial
Amol D. Nawale
905.ia.459.2023.doc
Judge. The contents thereof were read over to the accused persons
and as they pleaded to be not guilty, the trial commenced.
4. The statements of the accused were recorded under
Section 313 of the Code of Criminal Procedure, 1973. The accused
denied the entire incident so also suggestions put to the witnesses
about commission of the crime. It was also further contended that
the dead body was not that of the deceased.
5. To prove their case, the prosecution examined in all 16
witnesses, and relied upon certain documents, whereas the
accused persons, did not lead any evidence.
6. After the evidence were recorded, arguments were
submitted by the Advocates of both sides, the learned Additional
Sessions Judge, Malegaon by his judgment and order dated 18 th
October, 2022, acquitted the Accused No.2 to 8 of the offences
punishable under Sections 302, 363, 120-B and 201 read with
Section 34 of the IPC.
7. However, the Accused No.1 was convicted for an
offences punishable under section 302 of the IPC, was sentenced to
imprisonment for life and was also sentenced to pay fine of
Rs.10,000/-(Rupees Ten Thousands only) and in case of default in
Amol D. Nawale
905.ia.459.2023.doc
the payment of fine, to undergo further rigorous imprisonment for
a term of six months. The Applicant/Accused No.1 was also
convicted of the offences punishable under Section 201 of the IPC
and was sentenced to undergo rigorous imprisonment for a term of
five years, was also sentenced to pay fine of Rs.2,000/- (Rupees
Two Thousands only) and in case of default in the payment
thereof, to undergo further rigorous imprisonment for a term of
one month. The Accused No.1 was however, acquitted of the
offence punishable under Sections 363 and 120-B read with 34 of
the IPC.
8. The Applicant-Accused No.1 being aggrieved by order
and judgment dated 18th October, 2022 passed by the Additional
Sessions Judge, Malegaon preferred an Appeal bearing No. 1178 of
2022 against the said order. The present Interim Application is
filed seeking relief of releasing the applicant on bail pending the
hearing and final disposal of the appeal.
9. We have heard Counsels of both sides, the Applicant/
Original Accused No. 1 has been behind bars for four and a half
years. The Appeal filed by the Applicant against conviction in the
Amol D. Nawale
905.ia.459.2023.doc
year 2022, which is likely to take some more time for final hearing.
10. No criminal antecedents of Applicant has been brought
on record. The Applicant has his family consisting of his wife and
two children, who are dependent on him, so also his nephew.
11. The Applicant, along with the Accused No. 2 were
charged for committing murder of the deceased. However, the
Accused No. 2 is acquitted. The Applicant is also acquitted of the
offence punishable under Section 363 of the IPC. However, the
Applicant is convicted under Section 302 on the basis that he has
made a confession which amounts to discovery under Section 27 of
the Evidence Act.
12. It is not the Prosecution's case that they have filed
appeal against the acquittal of Accused Nos. 2 to 8 and more
particularly against the Accused No. 2.
13. It is the case of the Prosecution that P.W. 2 Juber Khan
(Autorickshaw driver) was paid a fair of Rs. 3000/- (Rupees Three
Thousand only) whereafter the P.W.1 Juber Khan left the site of
occurrence of the crime incident and left for Malegaon. It is the
Amol D. Nawale
905.ia.459.2023.doc
prosecution's case that thereafter, Accused Nos. 1 to 7 strangulated
the deceased with the help of a rope. Therefore, the P.W.1 Juber
Khan cannot be called as a eye witness to the offense punishable
under Section 302 and 201 of IPC. Hence, this could not be a case
of direct evidence.
14. The wife of the deceased (P.W. 8) has stated in her
admission that the deceased was a history sheeter and a local
goon. Several criminal cases were pending against him and he had
several enemies. Even the Police constable P.W.2 has deposed about
the criminal history of the deceased and his animosity with several
persons. Similarly, the brother of the deceased has stated in his
deposition that before the deceased left his house, he was
assaulted by one Salman Khan alias Sallu dada. He further stated
that the deceased was into all kinds of wrong things.
15. The Panch witness P.W.13 has turned hostile and has
not supported the case of the Prosecution, so also, the P.W.1
Autorickshaw driver has turned hostile. The Investigating Officer
P.W.14 has admitted in his cross-examination that the knife and
rope which was seized under the Japti Panchnama, were not
sealed. P.W.5 Doctor who conducted the Postmortem stated in his
deposition that the deceased had died two and a half months ago.
Amol D. Nawale
905.ia.459.2023.doc
Therefore, the date of the alleged offense, i.e. 3 April 2019 does
not match with the date mentioned by the Doctor.
16. When the dead body was discovered, no Memorandum
Panchnama as contemplated under Section 27 of the Evidence Act
was drawn. In the recent case of Bobby Vs. State of Kerala
reported in 2023 SCCOnLine SC 50, the Supreme Court held that
S.27 of the Evidence Act requires that the fact discovered embraces
the place from which the object is reproduced and the knowledge
of the accused as to this, and the information given must relate
distinctly to the said fact. It further held that there was no
statement of Accused No. 3 recorded under Section 27 of the
Evidence Act and therefore the prosecution has failed to prove the
circumstances that the dead body of the deceased was recovered at
the instance of the Accused No. 3. The Supreme Court relied upon
the judgment of the Privy Council in Pulukuri Kottaya Vs. King
Emperor reported in 1946 SCCOnline PC 47.
17. The law laid down by the Supreme Court in the
judgment of Bobby (Supra), in our view, it is squarely applicable to
the present proceedings.
18. As far as the case on parity is concerned. The Applicant
Amol D. Nawale
905.ia.459.2023.doc
was arrested on 29th May, 2019 and subsequent to arrest has faced
the trial and consequently has been convicted of the said offences
punishable under Sections 302 and 201 of the IPC. The Additional
Session Judge has already recorded the reasons for the acquittal of
the Accused No.2, who was similarly placed with that of the
Accused No.1, which can also be germane to the cause for
considering the prayer of the present applicant.
19. That being so, we deem it appropriate to allow the
present Application. The Applicant be released on bail on
furnishing P. R. bond of Rs. 25000/- (Rupees Twenty-Five
Thousand only) with two sureties in the like amount.
(RAJESH S. PATIL, J.) (NITIN W. SAMBRE, J.)
Amol D. Nawale
