Bombay High Court
Sunil Shankarrao Tak vs The State Of Maharashtra on 21 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:20540-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.577 OF 2016
Ajijkhan Mohd. Khan Pathan,
Age 41 yrs., Occ. Nil,
R/o Jawalga, Tq. Himayatnagar,
Dist. Nanded.
At the time of incidence at Rupala,
Tq. Umarkhed, Dist. Yeotmal.
... Appellant
... Versus ...
The State of Maharashtra
Through the Police Station Officer,
Dharmabad Police Station,
Tq. Dharmabad, Dist. Nanded.
... Respondent
...
Mr. Z.H. Farooqui, Advocate (appointed) for appellant
Mr. S.D. Ghayal, APP for respondent
...
WITH
CRIMINAL APPEAL NO.531 OF 2016
Sunil Shankarrao Tak,
Age 40 yrs., Occ. Business,
R/o Tikal Ward, Umarkhed,
Dist. Yeotmal.
... Appellant
... Versus ...
::: Uploaded on - 21/09/2023 ::: Downloaded on - 22/09/2023 09:13:15 :::
2 Cri.Appeal_577_2016+1_Jd
The State of Maharashtra
Through the Police Station Officer,
Dharmabad Police Station,
Tq. Dharmabad, Dist. Nanded.
... Respondent
...
Mr. Z.H. Farooqui, Advocate for appellant
Mr. S.D. Ghayal, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 18th AUGUST, 2023
PRONOUNCED ON : 21st SEPTEMBER, 2023
JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J.)
1 The appellants in both the appeals are original accused Nos.1
and 3 in Sessions Case No.46/2011. They have been held guilty by learned
Additional Sessions Judge, Biloli, Dist. Nanded on 29.07.2016. Appellant in
Criminal Appeal No.577 of 2016 i.e. original accused No.1 has been held
guilty of committing offence punishable under Section 302 and 392 of the
Indian Penal Code. He has been sentenced to suffer imprisonment for life
and pay fine of Rs.10,000/-, in default to suffer simple imprisonment for six
months, for the offence punishable under Section 302 of the Indian Penal
3 Cri.Appeal_577_2016+1_Jd
Code, whereas for offence punishable under Section 392 of the Indian Penal
Code he has been sentenced to suffer rigorous imprisonment for 10 years.
He has been acquitted of the offence punishable under Section 376 of the
Indian Penal Code. Appellant in Criminal Appeal No.531 of 2016 i.e. original
accused No.3 has been convicted for the offence punishable under Section
411 of the Indian Penal Code and has been sentenced to suffer simple
imprisonment for one year and to pay fine of Rs.10,000/-, in default to suffer
simple imprisonment for two months.
2 Before we proceed we would like to place on record that original
accused No.3 - appellant in Criminal No.531 of 2016 was represented by
Advocate. However, as regards the original accused No.1, it appears that on
the request by the appellant, Advocate Mr. V.H. Dighe came to be appointed
to represent him by order dated 19.10.2016. He prepared the appeal memo
and then by order dated 16.11.2016 the appeal came to be admitted. When
the matter came up for final hearing, he remained absent. By order dated
14.03.2023 this Court made it clear that if he remains absent on the next
date, then some other Advocate would be appointed to represent the
appellant. On 28.03.2023 also he was absent and, therefore, we appointed
learned Advocate Mr. Z.H. Farooqui, who was holding for Advocate Mr. N.V.
Gaware in Criminal Appeal No.531 of 2016. Thus, a proper legal
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representation has been given to the appellant in Criminal Appeal No.577 of
2016.
3 Heard learned Advocate Mr. Z.H. Farooqui for the appellant and
learned APP Mr. S.D. Ghayal for the respondent in both matters.
4 It has been vehemently submitted on behalf of the learned
Advocate representing both the appellants that the learned trial Judge has
not considered the facts and the evidence in proper perspective. Informant
is the husband of deceased. Deceased had gone to the field on 23.01.2011
for plucking cotton. She had not returned till 5.00 p.m. and, therefore,
search was made till 12.00 hours at night. Again on the next day i.e. on
24.01.2011 he went to the field along with villagers and neighbourers around
8.00 a.m. and the dead body of his wife was found in the field of one
Bhojanna Sambetwad. Near the said dead body there was one cotton bag,
one chappal, broken bangles, one receipt issued by one Masjid and railway
ticket. There were ligature marks on the neck of deceased. The gold articles
i.e. Mangalsutra, ear top and toe ring in silver were found missing. There
was no sari and blouse on the person of deceased. He also found four water
pouches, two broken liquor bottles, one bag near the dead body and,
therefore, he lodged First Information Report regarding murder of his wife.
5 Cri.Appeal_577_2016+1_Jd
5 Learned Advocate for both the appellants further submits that
the prosecution has examined in all 14 witnesses to bring home the guilt of
the accused, however, none of them is an eye witness. The case of the
prosecution was based on circumstantial evidence. The circumstantial
evidence was in the nature of discovery of the gold ornaments, purse
allegedly belonging to deceased. The prosecution has further come with a
case that the accused was facing charges for the offence punishable under
Sections 302 and 392 of the Indian Penal Code in other cases also and he
came to be arrested by Local Crime Branch and then he was transferred in
the present case also. Merely because the accused was convicted in another
offence by the same Judge, it appears that he has been convicted in this case
also. Present appellant in Criminal Appeal No.577 of 2016 and another
accused challenged their conviction in Criminal Appeal No.564 of 2015 and
Criminal Appeal No.689 of 2015 before this Court and they have been
acquitted on 10.11.2022. These appellants are not challenging the fact that
death of deceased is homicidal in nature, but there was no evidence to
connect the said crime with the present appellant. The alleged discovery
under Section 27 of the Indian Evidence Act cannot be considered as
voluntary discovery and there is no identification of original accused No.3 by
the panch, who allegedly present at the time of discovery. There is also no
identification of the ornaments and, therefore, it could not have been held by
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the learned trial Judge that the offence is proved beyond reasonable doubt.
Both the appellants deserve acquittal.
6 Per contra, the learned APP vehemently supported the reasons
given by the learned trial Judge. It is not in dispute that deceased's death is
homicidal in nature. That has been proved through the medical evidence of
PW 12 Dr. Shaikh Ikbal Ahmed. No doubt, the case of the prosecution is
relying on the circumstantial evidence, but those circumstances have been
cogently proved. Accused came to be arrested on 19.03.2011 in this case and
thereafter he has given memorandum. The Mangalsutra, one of the ear rings
(out of the pair) which is stated to be of gold and toe ring in silver was sold
to one Kishor Varma, who was the Jeweller of shop Vyankatesh Jewellers.
This might be in respect of another matter, but as regards the present matter
is concerned, the Mangalsutra was sold to accused No.3. Actually, he had
sold the golden beads and not the entire Mangalsutra. PW 2 Sayareddy has
supported the prosecution. Thereafter he has voluntarily discovered purse
and water bottle. The purse was belonging to the deceased and PW 4
Sudhakar Jadhav has proved the said panchnama. The purse as well as gold
beads have been identified by the informant - PW 3, the husband of the
deceased. Testimony of PW 8 Saibaba to prove the panchnama dated
21.03.2011 also supports the prosecution. Therefore, there was ample
7 Cri.Appeal_577_2016+1_Jd
evidence against the appellant - accused No.1 to hold that he is the author of
the crime, so also, as regards accused No.3 is concerned, he has received the
stolen property and, therefore, offence under Section 411 of the Indian Penal
Code was proved against him.
7 After going through the evidence, even before starting to scan
the same in detail, we are concerned to observe that the investigation of the
matter is absolutely poor. It appears that the accused was arrested in another
crime and this offence would have gone undetected and, therefore, the
appellant - original accused No.1 appears to have been involved in the
matter. It will not be out of place to mention here that it was argued that in
all 23 cases were registered against the appellant - original accused No.1.
Out of those 23 matters, except 9 matters the remaining are in respect of
offence under Section 302 of the Indian Penal Code. Therefore, we were
interested to know when the accused came to be arrested and in what matter
and then how he has been got transferred in the present case. By our order
dated 31.07.2023 we directed the prosecution to give the data and
accordingly the data has been provided, which states that the accused came
to be arrested on 11.03.2009 in Crime No.15/2009, registered with
Himayatnagar Police Station, Dist. Nanded by Local Crime Branch, for the
offence punishable under Sections 302, 376, 413, 411 of the Indian Penal
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Code. The status has been given that the accused has been acquitted from
the said offence. From those 23 offences in Crime No.85/2009 registered
with Mukhed Police Station 'A' Summary was submitted and in Crime
No.70/2009 registered with Loha Police Station, for the offence punishable
under Section 394 of the Indian Penal Code also 'A' Summary was filed. If we
keep those two offences aside, still the accused has faced 21 offences and the
trial and in most of the offences he has been acquitted. It has been brought
to our notice that a special team was constituted by Commissioner of Police
as matters were reported that by searching a lady at lonely places they have
been robbed and murdered. Under the said circumstance, when this was the
background, it was expected that the learned trial Judge ought to have
meticulously scan the evidence. Of course, some of the acquittals were prior
to the decision in the matter and some are after that. Yet, the learned trial
Judge went on to brand the accused as 'serial killer', which is definitely
objectionable. Unless there is clear evidence to that effect, nobody should be
branded in such a way.
8 Now, turning towards the case in hand, the testimony of PW 12
Dr. Shaikh Ikbal Ahmed would give the findings in Postmortem Report Exh.82
as the cause of death is "asphyxia due to strangulation by ligature". In the
cross there is no serious challenge to the same and, therefore, there is no
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hurdle in accepting that deceased's death is homicidal in nature. However,
we would like to say that the murder weapon i.e. rope was not shown to PW
12 Dr. Shaikh by the learned APP, who was conducting the trial and his
opinion, as to whether that can be the murder weapon has not been
extracted. The alleged murder weapon i.e. rope appears to have been seized
from the spot. Therefore, there was no question of connecting the said
murder weapon with the accused. Suffice it to say that from the testimony of
the autopsy surgeon it can be said that the prosecution had proved that death
of deceased is homicidal in nature.
9 PW 3 is the husband of deceased. From his examination-in-chief
it can be certainly say that he had gone to market and deceased had gone for
plucking cotton. When she did not return till 5.00 p.m., he undertaken the
search and the dead body was found on the next day morning and it appears
that the dead body was in naked condition. The gold as well as silver articles
on her person were found missing and then he has lodged the First
Information Report Exh.47 against unknown person. He has identified the
beads, two golden nose rings and ear rings, one Mangalsutra and silver toe
rings. In his cross-examination he has admitted that police had arrested him
in the said crime for inquiry. That means, he himself was in the array of
accused and there is absolutely no explanation by PW 14 PI Mr. Govardhan
10 Cri.Appeal_577_2016+1_Jd
Kole - the Investigating Officer as to under which circumstances or why he
had let PW 3 informant to go. If he was arrested then there should be report
under Section 169 of the Code of Criminal Procedure, but that was not got
exhibited and in his examination-in-chief there is no explanation for the
same. In his cross-examination he admitted that he had obtained the
permission from the learned trial Judge for Polygraph, Narco Test and Brain
Mapping of the informant, that too, on two occasions. Even as regards the
accused is concerned, he got the permission, but he had not taken him to
Mumbai for carrying out those tests. Thus, it can be seen that he appears to
have acted as per his own whims. If he had no intention to carry out such
tests, then why he sought the permission. But it is required to be noted that
even the informant was in the array of accused immediately after the
incident.
10 PW 3 informant has not stated a single word that he suspected
that his wife was subjected to rape. PW 9 is the nephew of PW 3 and
deceased. PW 11 is the brother of deceased. PW 5 is the brother-in-law of
deceased. He has no personal knowledge of anything but appears to be
involved in search operation and then he saw the dead body, but he
categorically says that the deceased was raped. PW 6 is the wife of PW 5,
who has also seen the dead body. Except these witnesses, there is no other
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witness who has been examined by the prosecution to say as to in whose field
deceased was plucking the cotton. Nobody had seen deceased talking to
accused or going with him. The distance between the field where she was
supposed to pluck cotton and the place where her dead body was found has
not come on record. There is no investigation as to how she could have been
taken to that spot and as the rope and other articles were found at the spot, it
appears to be the spot where the entire activity had taken place. It will not
be out of place to mention here that PW 12 Dr. Shaikh does not say about the
evidence of rape on the person of deceased and, therefore, ultimately the
learned trial Judge has acquitted the accused from the said charge. Even in
the cross-examination of PW 3 he has admitted that nobody has seen the
incident in the village.
11 Turning to the circumstantial evidence, it was mandatory for the
prosecution to prove the golden principles laid down in Sharad Birdhichand
Sarda vs. State of Maharashtra [AIR 1984 SC 1622] and, therefore, whether
only on the basis of alleged discovery under Section 27 of the Indian
Evidence Act, whether it can be said that the prosecution has proved the
offence beyond reasonable doubt, has to be considered. PW 2 Sayareddy is
the panch witness to the said discovery panchnama dated 22.03.2011. If we
consider his testimony, it can be certainly said that the identification of the
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accused has not been got done in Court from him. Merely because he is
giving the name of the accused will not be sufficient. In his cross-
examination there is denial, however, important point to be noted is that
when his testimony was recorded, the muddemal was not before the Court.
Therefore, identification of the articles alleged to be discovered by the
accused persons is not proper at all. It appears to be a running panchnama
connected to other crime also and, therefore, in that background the
identification of the jewellery in a particular case become imperative. This
discovery panchnama says that the accused No.3 discovered 20 golden beads.
That means, the other articles were not discovered on this day before him.
How he could have purchased only golden beads, is a question. There is no
other discovery from accused No.3. The other ornaments alleged to have
been recovered from original accused No.2 Kishor Varma. However,
surprisingly accused No.2 has been acquitted by the learned trial Judge. If
that panchnama has been held to be proved on the basis of testimony of PW
2 by the learned trial Judge, then how it would have resulted in acquittal of
one goldsmith and conviction of the other, is a mystery. It has been observed
by the learned trial Judge that what has been recovered from accused No.2 is
the new gold articles which were not robbed by accused No.1, but then as
accused No.3 was arrested in another crime registered with Ramtirth Police
Station, it has been stated that he had the dishonest intention. This reason is
13 Cri.Appeal_577_2016+1_Jd
absolutely absurd. There was nothing on record to show that original
accused No.3 had the knowledge that those golden beads were stolen
property. In fact, what accused No.3 had gold before the said panchas as it is
reflected in the panchnama ought to have been seen by the learned trial
Judge. He has said that the accused disclosed to him that those golden beads
belong to his wife and he wanted to sell them. The pick and choose method
could not have been adopted when the panchnama is a running panchnama.
12 PW 7 Gangadhar is the panch to the identification of the gold
articles by the husband of the deceased. In fact, PW 3 had not produced on
record any documentary evidence to show that those articles were belonging
to his wife.
13 The most interesting panchnama that has been drawn is on
21.03.2011 and in order to prove that PW 8 Saibaba has been examined.
That panchnama Exh.75 has been discarded as 'Pratyakshik Panchnama',
meaning thereby demonstration panchnama. It appears that the accused
No.1 was asked in presence of police, as to how he has committed the offence
and then he has narrated the incident, which has been then told by PW 8
Saibaba. The learned Judge ought not to have allowed the prosecution to
examine him. The basic nature of such panchnama was inadmissible in
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nature. The accused after his arrest cannot be asked to demonstrate as to
how he has committed the offence. PW 14 PI Mr. Govardhan Kole is the
Investigating Officer and at the beginning itself we have stated that the
investigation carried out by him was of poor quality.
14 Only on the basis of the discovery panchnama the accused No.1
could not have been held guilty of committing murder and robbery. The
judgment by the learned trial Judge is perverse. We are also taking note of
the fact that the accused No.1 i.e. the appellant in Criminal Appeal No.577 of
2016 has been acquitted from Criminal Appeal No.689 of 2015 by this Court
on 10.11.2022 i.e. Sessions Case No.59/2011 by learned Additional Sessions
Judge, Hingoli.
15 The learned Advocate for the appellant has rightly relied on Shiv
Kumar vs. State of Madhya Pradesh [(2022) 9 SCC 676], wherein it has been
held that -
"In dealing with a criminal case where the prosecution relies upon the
confession of one accused person against another accused person, the
proper approach to adopt is to consider the other evidence against
such an accused person, and if the said evidence appears to be
satisfactory and the Court is inclined to hold that the said evidence
may sustain the charge framed against the said accused person, the
court turns to the confession with a view to assure itself that the
15 Cri.Appeal_577_2016+1_Jd
conclusion which it is inclined to draw from the other evidence is
right. Even if the recovery of items was made, the prosecution must
further establish the essential ingredient of knowledge of the
reception of the stolen property. Reliance solely upon the disclosure
statement of co-accused will not otherwise be clinching, for the
conviction under Section 411 of the Indian Penal Code."
Therefore, taking into consideration this ratio and the scanning
of the evidence, as aforesaid, the conviction awarded to the original accused
No.3 deserves to be set aside. Further, he relied on the decision in Manoj
Kumar Soni vs. The State of Madhya Pradesh decided by Hon'ble Supreme
Court in Criminal Appeal No.1030 of 2023 on 11.08.2023, wherein it has
been held that conviction cannot be solely on the basis of discovery
statements. For the aforesaid reasons, we hold that the prosecution had
failed in proving the offence against the accused persons beyond reasonable
doubt. The appeals, therefore, deserve to be allowed. Hence, following
order.
ORDER
1 Both the appeals are hereby allowed.
2 The conviction awarded to the appellant in Criminal Appeal
No.577 of 2016 i.e. original accused No.1 Ajijkhan Mohd. Khan Pathan by
learned Additional Sessions Judge, Biloli, Dist. Nanded in Sessions Case
16 Cri.Appeal_577_2016+1_Jd
No.46/2011 after holding him guilty for the offence punishable under
Sections 302 and 392 of the Indian Penal Code stands quashed and set aside.
3 The conviction awarded to the appellant in Criminal Appeal
No.531 of 2016 i.e. original accused No.3 Sunil Shankarrao Tak by learned
Additional Sessions Judge, Biloli, Dist. Nanded in Sessions Case No.46/2011
after holding him guilty for the offence punishable under Section 411 of the
Indian Penal Code stands quashed and set aside.
4 Both the appellants stand acquitted of the offences charged.
5 The appellant in Criminal Appeal No.577 of 2016 i.e. original
accused No.1 Ajijkhan Mohd. Khan Pathan be set at liberty, if not required in
any other case.
6 The bail bond of the appellant in Criminal Appeal No.531 of
2016 i.e. original accused No.3 Sunil Shankarrao Tak stands cancelled.
7 The fine amount deposited, if any, be refunded to the appellants
after the statutory period.
8 We clarify that there is no change as regards the order in respect
of disposal of muddemal.
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9 The fees of the appointed Advocate Mr. Z.H. Farooqui in Criminal
Appeal No.577 of 2016 is quantified at Rs.10,000/- (Rupees Ten Thousand
only).
(ABHAY S. WAGHWASE, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
