Bombay High Court
Sadik S/O. Shabash Shaikh vs The State Of Maharashtra on 23 January, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:1384-DB
1 Cri-Appeal-921-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 921 OF 2018
Sadik S/o. Shabash Shaikh
Age: 51 years, Occu: Service
R/o Sadaphule Vasti, Jamkhed,
Tal. Jamkhed, Dist. Ahmednagar
At present R/o Attarwadi,
Bangdiwala Chawl, Room No.29/46 G,
Kureshinagar, Kurla, Mumbai - 70 ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mr. K. P. Rodge (appointed) and Mr. Mohsin Khan, Advocate for
Appellant
Mrs. V. S. Chaudhary, APP for the Respondent/State
...
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved on : 17.01.2024
Pronounced On : 23.01.2024
JUDGMENT :
[ PER NEERAJ P. DHOTE, J.]
1. Heard Mr. Rodge and Mr. Mohsin Khan, learned Advocates
for the Appellant and Mrs. Chaudhari, learned APP for the
Respondent / State. Perused the paper book.
2. The Appellant is convicted by the learned Additional
Sessions Judge, Ahmednagar, in Sessions Case No.11/2016, for
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the offences punishable under Sections 302 and 201 of the
Indian Penal Code [for short 'IPC'] and sentenced to suffer
rigorous imprisonment for life till end of his natural life and to pay
fine of Rs.15,000/-, in default, to undergo rigorous imprisonment
for three (3) years and further to suffer rigorous imprisonment for
seven (7) years and to pay fine of Rs.5000/-, in default, to
undergo rigorous imprisonment for one (1) year, respectively.
3. The aforesaid Sessions Case arose out of Crime
No.144/2015, registered with Jamkhed Police Station,
Ahmednagar on the report lodged by the Informant - Shakil
Sattar Shaikh [PW-1]. It is the prosecution's case that the
Informant is the resident of Sadaphule Vasti, Jamkhed,
Ahmednagar. The Informant's father and step mother resides in
the same locality near BSNL tower. The Appellant has constructed
his house near the house of Informant's father and prior to one
and half year [1 ½], the Appellant was residing there with his
mother - Chandbi, first wife - Gulshanbi and two sons. However,
due to harassment by the Appellant, his family members left the
house.
3.1. On 19/09/2015 around 11:00 am, the Informant's cousin -
Sayeed Mehboob Shaikh (deceased) and Haider came to the
house of Informant. On inquiry with them, Sayeed told him that,
he came along with Appellant, second wife of Appellant-
3 Cri-Appeal-921-2018.odt
Mahmooda and Haider and also told him that the first wife of
Appellant has made Application to the Mumbai Port Trust where
the Appellant was working, demanding her share in the property,
and to sort out the issue in that regard, the Appellant brought him
from Mumbai and the brother of first wife of the Appellant was
contacted for settlement. The deceased - Sayeed stayed in the
house of Appellant in the night. The Informant returned to his
house in the night, after closing his shop.
3.2. In the morning of 20/09/2015 between 05:00 to 05:15 am,
the Informant's father - Sattar telephonically informed the
Informant's step-mother that Sayeed and Mahmooda i.e. second
wife of the Appellant, were lying in a pool of blood in front of
their house. The Informant immediately rushed to the spot which
was the premises of the Appellant's house and saw dead bodies of
Sayeed and Mahmooda with injuries on their head. The Informant
lodged report with the Police Station and the aforementioned
crime came to be registered against the Appellant.
3.3. The Police reached the spot of incidence to take charge of
the dead bodies for postmortem and prepared the inquest. The
Appellant came to be arrested and the weapon - Sattur came to
be seized at his instance. The muddemal / articles seized during
the investigation were referred for forensic examination. The
death certificates, postmortem reports and the reports of
4 Cri-Appeal-921-2018.odt
Chemical Analyser came to be collected. On completion of the
investigation, the Appellant came to be Charge-Sheeted for the
offences punishable under Sections 302 and 201 of IPC.
3.4 The learned Trial Court framed the Charge against the
Appellant at Exhibit-6 for the offences punishable under Sections
302 and 201 of IPC, to which, the Appellant pleaded not guilty
and claimed to be tried vide plea at Exhibit-7. The prosecution
examined in all eleven (11) witnesses and brought on record the
relevant documents. After examination of the prosecution
witnesses, the learned Trial Court recorded the statement of the
Appellant under Section 313(1)(b) of the Code of Criminal
Procedure [for short 'Cr.PC] at Exhibit-69. The Appellant denied
the prosecution case. By the impugned Judgment and Order, the
learned Trial Court convicted the Appellant for the offences as
mentioned in Para No.2 above.
4. It is submitted by the learned Advocates for the Appellant
that the case is based on the circumstantial evidence and the
circumstances brought on record by the prosecution do not
conclusively prove that the offence is committed by the Appellant.
They submitted that the prosecution has not examined the person
Haider Ali, who is referred by the PW-1 - Shaikh Shakil Sattar
[Informant]. They further submitted that no motive is proved by
the prosecution. They submitted that if the chain of circumstance
5 Cri-Appeal-921-2018.odt
is not complete, the benefit should be given to the Appellant. In
support of their arguments, they cited the Judgment in the case of
Sharad Birdhi Chand Sarda Vs. State of Maharashtra;
1984 AIR 1622.
5. It is submitted by the learned APP that the prosecution has
successfully proved the circumstances which conclusively
establishes that the offence is committed by the Appellant only
and none other. He submitted that the Trial Court has properly
appreciated the evidence available on record and no interference is
called for.
6. Before evaluating the evidence available on record, it is to be
noted that the prosecution's case is based on circumstantial
evidence. The law on the point of circumstantial evidence is well
settled by catena of Judgment of the Hon'ble Supreme Court of
India and various High Courts. In the above referred Judgment,
the law on circumstantial evidence is reiterated as:
"1. The circumstances from which the conclusion of guilt is to be
drawn should be fully established; [163D]
2. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and
tendency;[163G]
4. They should exclude every possible hypothesis except the one
to be proved; and [163H]
5. There must be a chain of evidence so complete as not to leave
6 Cri-Appeal-921-2018.odt
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.
[164B]. These five golden principles constitute the panchsheel of
the proof of a case based on circumstantial evidence and in the
absence of a corpus deliciti".
In Manjunath and Others Vs. State of Karnataka;
2023 SC Online SC 1421 (in Criminal Appeal No.866/2011
decided on 06/11/2023), the Hon'ble Supreme Court of India in
Paragraph No.14 has observed thus;
"14. The law on circumstantial evidence, is well settled. The
locus classicus on the issue is Sharad Birdhichand Sarda, (supra)
which stands consistently followed up until very recently in
Kamal v. State (NCT of Delhi) [2023 SCC OnLine SC 933 [2
Judge Bench]
14.1 Illustratively, in Gargi v. State of Haryana [(2019) 9
SCC 738[2 Judge Bench] this court has, referring to various
earlier judgments, summarised the principles relating to
circumstantial evidence. The principle, is that the sum total of
circumstances, when examined should point to the guilt of the
Appellant, while ruling out all other possible hypotheses
including his innocence and absence of second party guilt.
Further reference may be made to Indrajit Das v. State of
Tripura [2023 SCC OnLine SC 201 [2 Judge Bench] and Prakash
Nishad v. State of Maharashtra [2023 SCC OnLine SC 666 [3
Judge Bench]."
7. Coming to the case in hand, the prosecution has brought on
record the following circumstances to prove the charge;
(i) Homicidal death of Sayeed Mehboob Shaikh and Mahmooda
Sadik Shaikh.
(ii) House of Appellant at Jamkhed as the place of Homicidal
death of the said persons.
(iii) Presence of Appellant at Jamkhed at the time of Incident.
(iv) Discovery of weapon at the Instance of Appellant.
7 Cri-Appeal-921-2018.odt
(v) Motive.
8. The evidence bought on record by the prosecution to prove
the above circumstances is discussed below:
(i) HOMICIDAL DEATH OF SAYEED MEHBOOB SHAIKH
AND MAHMOODA SADIK SHAIKH
a) The evidence of the Informant, who is PW-1 - Shaikh
Shakil Sattar, show that he knew the Appellant and both the
deceased person. There is no dispute on this aspect. Deceased -
Sayeed along with Haider met him on 19/09/2015 in the morning
and informed that they had come with the Appellant and deceased
- Mahmooda to Jamkhed. In the early morning of 20/09/2015,
he got the information that Sayeed and Mahmooda were lying in a
pool of blood near the gate of the house of Appellant. Thereafter,
he went on the spot and saw the dead bodies of Mahmooda and
Sayeed.
b) The evidence of PW-5 - Dr. Yuvraj Haribhau Kharade show
that he was the Medical Officer at Rural Hospital, Jamkhed at the
relevant time and performed Postmortem on two dead bodies i.e.
of Sayeed Mehboob Shaikh and Mahmooda Sadik Shaikh. In his
evidence, he has described the injuries on the dead bodies. The
injuries on the body of Sayeed Mehboob Shaikh are described as
under:
"(1) Incised wound over right tempo parieta occipital region of
scalp at five sites from lateral to medial side, mearuements are as
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follows:
(1) 7x1x1 cm. (2) 10x1x1.5 cm. (3) 9x1x1 cm. (4)
10x1x1.5 cm (5) 12x1x1.5 cm.
(2) Contused lacerated wound over right cheek two sites 6x1x1
cm And 1x1x1 cm.
(2) CLW over forehead 5x1x0.5 cm.
(3) CLW over chin 9x1x1 cm.
(3) Contused abrasion over chest.
Other injuries discovered by external examination of
following nature -
1) Fracture right temporal bone with fracture occipital bone
with fracture parietal bone with fracture right mandible.
I have also found following injuries on the head of body:
1) Injury under scalp was present.
2) Scull - fracture with right temporal bone with fracture
occiptal bone with of parietal bone
Brain - congested and subdural and subarchnyd heamotoma
+ large size".
He opined the cause of death of Sayeed Mehboob
Shaikh as "due to head injury by hard and sharp object".
c) The injuries on the body of Mahmooda Sadik Shaikh are
described as under:
"Crush injury over left frontal and left temporal and parietal of
scalp with left side of face.
I also found Brain coming out of skull.
I have found other injuries on her body which are as under:
Fracture left frontal bone with fracture left parietal bone with
fracture left temporal bone with left zygomatic arch with left
mandible with all facial bones left sides".
He opined the cause of death of Mahmooda Sadik Shaikh as
"due to head injury by hard and blunt object".
9 Cri-Appeal-921-2018.odt
d) The postmortem reports show the names of deceased as
Sayeed Mehboob Shaikh and Mahmooda Sadik Shaikh, which are
proved in the evidence of PW-5 and are at Exhibits - 33 and 34,
respectively. The postmortem reports corroborate the testimony
of this Medical Officer.
e) The inquest at Exhibits - 17 and 18, which are admitted by
the defence, show the names of deceased as Sayeed Mehboob
Shaikh and Mahmooda Sadik Shaikh.
f) The evidence of PW-5 - Doctor show that he was
confronted with seized Sattur - article-30 and big stone -
article-2. The evidence of PW-5 - Doctor go to show that the
sharp injuries on the deceased - Sayeed were possible by Article
No.30 - Sattur and the injuries on the deceased - Mahmooda,
which were mentioned in Column Nos.17 and 18, were possible
by means of big stone like Article No.2. The suggestion of
defence that the said injuries were not a possible by use of the
said articles, are denied by this expert witness.
g) The above referred evidence available on record clearly
establishes that the death of Sayeed Mehboob Shaikh and
Mahmooda Sadik Shaikh is homicidal. Moreover, as can be seen
from the tenor of cross-examination of the prosecution
witnesses, the homicidal death of the said persons is not
disputed. It is thus clear that the prosecution has established the
10 Cri-Appeal-921-2018.odt
circumstance no.(i).
(ii) HOUSE OF APPELLANT AT JAMKHED AS THE PLACE
OF HOMICIDAL DEATH OF THE SAID PERSONS
a) On this point, the evidence of PW-1 - Shaikh Shakil Sattar
show that when he learnt that Sayeed Mehboob Shaikh and
Mahmooda Sadik Shaikh were lying in a pool of blood, he went
on the spot. His evidence show that he saw the dragging blood
marks of dead body from the house of Appellant towards gate.
b) There is evidence of panch witness for spot panchnama,
who is examined as PW-3 - Pandurang Gahininath Raut. His
evidence show that in the morning of 20/09/2015, he went to
Jamkhed as he was called by the Police. The Informant had
shown the spot of incident, which comprised of two room with
compound wall and two dead bodies were lying inside the
compound. There were blood stains on the wall of compound and
spot. Two mobile handsets, brick pieces and one stone of cement,
stained with blood were lying. He went inside the room and
found blood stains in the room, one liquor bottle, two glasses and
one stove, were lying there. The articles were seized from the
said spot under the panchnama at Exhibit-22. The testimony of
this panch witness remained unshaken in the lengthy cross-
examination. The spot panchnama corroborates the testimony of
11 Cri-Appeal-921-2018.odt
this panch witness.
c) There is document in the form of map of the spot of incident
prepared by the office of Deputy Superintendent of Lands
Records, Jamkhed [Nimtandar No.2] at Exhibit-44, which is
admitted by the defence.
d) The evidence of Investigating Officer, who is examined as
PW- 11, show that he received 8A extract of the spot of incident
and the same is brought on record at Exhibit-60. Perusal of the
same show that in Column No.4 the names of owner are
mentioned as 'Shaikh Shaikhlal Sadik, Shaikh Arifa Sadik, Shaikh
Faizan Sadik', minors through mother Mahmoodabi Sadik Shaikh.
His evidence also speak of preparing rough map/sketch of the
spot of offence, which has been discussed above as Exhibit-44.
e) The cross-examination of prosecution witnesses show that
the spot of incident is not disputed by the defence. The above
discussed evidence show that the the circumstance no.(ii) is
proved.
(iii) PRESENCE OF APPELLANT AT JAMKHED AT THE
TIME OF INCIDENT
a) What can be seen from the evidence available on record is
that the Appellant was working with the Mumbai Port Trust as a
Senior Worker. There is no dispute on this aspect. Exhibits-45
12 Cri-Appeal-921-2018.odt
and 46, which are the communications issued by the concerned
Authority of Mumbai Post Trust to the Jamkhed Police and are
admitted by the defence, establish the employment of the
Appellant with the Mumbai Post Trust. The documents were
collected by PW-11 - Balkrushna Janardhan Hanpude Patil
[Investigating Officer] as can be seen from his deposition. The
said Exhibit-46 show that the Appellant was away from his duty
from 18/09/2015 to 20/09/2015 without informing or obtaining
prior permission of the office.
b) As earlier seen from the evidence of PW-1 - Shaikh Shakil
Sattar that the Appellant had constructed his house at Jamkhed.
The evidence of PW-6 - Bashir Rasul Qureshi show that he had
mutton shop at Jamkhed by the name Bhai-Bhai Mutton Shop in
the year 2015 and he knew the Appellant. He read the news in
the newspaper regarding murder of his wife. On earlier day of
incident i.e. 19th, the Appellant had come to his shop and
purchased 1 Kg. meat and he identified the Appellant at the time
of his evidence. He deposed that his statement was recorded in
that connection. The cross-examination show that he knew the
Appellant as the customer and the Appellant had alone come to
his shop to purchase the meat and after purchasing the meat, he
paid the money and left. Nothing has come in the evidence of this
witness to disbelieve him.
13 Cri-Appeal-921-2018.odt
c) There is evidence of PW-2 - Gulshabi Sadiq Shaikh, who is
the first wife of the Appellant. Her evidence show that she was
residing at Jamkhed with two children and mother-in-law in
Sadaphule Vasti and the Appellant used to occasionally come to
meet them. As the Appellant used to abuse and beat her, she
went to reside at Underkhed at her brother's house. On
19/09/2015, her husband i.e. the Appellant, his second wife,
deceased - Sayeed and Haider came from Mumbai to settle the
dispute with her and she came to know about the same from her
brother. She deposed that they intended to come to her house at
Underkhed on 20/09/2015, however, on 20/09/2015, they
received the information on phone about the incident and she
directly went to the Hospital at Jamkhed, where she saw the dead
body of Mahmooda and Sayeed. The Police recorded her
statement. This evidence is to be read with the evidence of PW-
1, wherein, he deposed that deceased - Sayeed and Haider Ali
came to his house at about 9:30 am on 20/09/2015 and after
inquiry, deceased - Sayeed told him that the Appellant and his
wife - Mahmooda had come to Jamkhed to settle the dispute with
Gulshanbi i.e. PW-2 and they already talked with the brother of
Gulshanbi - PW-2. Thus, the evidence of PW-2 becomes
relevant by virtue of Section 6 of the Evidence Act.
d) The evidence of panch witness - PW-7 show that on
20/09/2015, he was called at Jamkhed Police Station and he
14 Cri-Appeal-921-2018.odt
reached there with Talathi Sachin Bhaisade and the Appellant was
produced. His evidence show that the blood stained clothes of the
Appellant i.e. half shirt of blue-white squares and black pant were
seized under the panchnama at Exhibit-38 and the Appellant was
arrested under the panchnama at Exhibit-39. This evidence is
corroborated by the evidence of PW-11 - Investigating Officer,
wherein, he deposed that on 20/09/2015, he took the custody of
the Appellant under the arrest panchnama and at that time, seized
the clothes and other articles from the Appellant.
e) This evidence regarding arrest of the Appellant show that
the Appellant was arrested on 20/09/2015 around 5:30 p.m. from
Jamkhed, where the incident had happened.
f) The defence of Appellant is that of denial and alibi. To
question No.22, the Appellant replied in his statement under
Section 313 of Cr.PC that deceased - Mahmooda and deceased -
Sayeed came together on 19/09/2015 and he came to Jamkhed
on the next date. Except this, nothing is brought by the Appellant
in the evidence that he was present elsewhere on the day of
incident. Even on the touchstone of preponderance of probability,
the defence of alibi is not made out. In the light of the evidence
brought on record on this point, non-examination of Haider Ali
[referred by PW-1 - Shaikh Shakil Sattar] is not fatal for the
prosecution.
15 Cri-Appeal-921-2018.odt
g) From the above discussed evidence, it becomes crystal clear
that at the time of offence, the Appellant was at Jamkhed and as
earlier discussed the Appellant was having his house at Jamkhed.
Thus, the presence of the Appellant at Jamkhed at the time of
incident is established and the circumstance no.(iii) is established.
(iv) DISCOVERY OF WEAPON AT THE INSTANCE OF
APPELLANT
a) The evidence of PW-4 - Sachin Arjun Bhaisade, who was
serving in the Tahsil Office, Jamkhed speak of discovery of
weapon at the instance of Appellant. His evidence show that on
21/09/2015, he was called at Jamkhed Police Station. When he
reached at 3:00 pm, he found the Appellant in the police custody
and the Appellant had shown his willingness to show the place
where he concealed the weapon and memorandum of the
statement at Exhibit-24 was prepared. The Appellant led the
vehicle to the spot which was near the BSNL Tower, near the girls
hostel in Sadaphule Vasti. The Appellant showed the spot which
was in the grass under the bush of Rui tree and one Sattur was
produced by the Appellant from the said spot which was seized
under the seizure panchnama at Exhibit-25. The evidence of this
panch witness show that he identified the Appellant at the time of
his evidence and also identified the Sattur - Article No.30, as the
same weapon which was discovered and seized at the instance of
Appellant. He denied that the Appellant was handcuffed. It has
16 Cri-Appeal-921-2018.odt
come in the cross-examination that the spot of discovery was
situated towards backside of the girls hostel and was not visible
from the hostel. He denied that the spot of discovery was
accessible to the public.
b) The evidence of PW-11 - Investigating Officer corroborate
the evidence of the said panch witness that the article - 30 -
Sattur was seized at the instance of the Appellant under the
memorandum at Exhibit-24 and seizure panchnama at Exhibit-25.
c) The discovery at the instance of the Appellant is relevant by
virtue of Section 27 of the Evidence Act, 1872 which reads as
under:
"27. How much of information received from Appellant may be
proved -- Provided that, when any fact is deposed to as
discovered in consequence of information received from a person
Appellant of any offence, in the custody of a police officer, so
much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be
proved".
The evidence as discussed above show that the
discovery of the said Sattur was out of disclosure from the
Appellant while he was in policy custody. The Appellant was
arrested soon after the incident and there was immediate
discovery of article-30 Sattur at the instance of the Appellant.
From the evidence available on record, the discovery of weapon
i.e. Sattur - Article-30 at the instance of the Appellant, while he
was in police custody, has been established by the prosecution
and the circumstance no.(iv) is established.
17 Cri-Appeal-921-2018.odt
(v) MOTIVE
a) In the cases based on circumstantial evidence, motive
assumes significance. The motive for commission of crime in the
cases in hand, as per the prosecution, is that both the deceased
were in love relation with each other and therefore, the Appellant,
who was the husband of deceased - Mahmooda, committed the
crime. The evidence of PW-1 - Shaikh Shakil Sattar show that
the deceased - Mahmooda was the second wife of the Appellant
and PW-2 Gulshanbi, the first wife of the Appellant was real
sister of deceased - Mahmooda. There is no dispute on these
aspects. In the cross-examination of PW-1 - Shaikh Shakil
Sattar, the factum of love affair between the deceased - Sayeed
and deceased - Mahmooda is brought on record. He deposed that
he was not aware whether PW-2 Gulshanbi was knowing about
the love affair between deceased - Sayeed and deceased -
Mahmooda and he was not aware whether the love affair of
deceased - Sayeed and deceased - Mahmooda was known to the
Appellant.
b) The evidence of PW-2 Gulshanbi, the first wife of Appellant
and sister of deceased - Mahmooda, in her cross examination
deposed that deceased - Sayeed was residing near their hourse at
Mumbai and was usually coming to their house. It is brought on
record in the cross-examination of PW-2 that deceased - Sayeed
also used to come in the house of the Appellant when her sister
18 Cri-Appeal-921-2018.odt
i.e. deceased - Mahmooda, was staying with him. It is also
brought in the cross-examination that when she was staying with
the Appellant at Mumbai, the Appellant used to leave the house at
6:00 am and return at 6:00 pm. This cross-examination fortifies
the prosecution's case about the motive.
c) The evidence of PW-11 - Investigating Officer show that
during the course of investigation, it transpired that, the deceased
- Sayeed was having illicit relations with the deceased -
Mahmooda who was the wife of the Appellant and due to the said
relations, the Appellant brought them from Mumbai on the pretext
to settle the dispute of his first wife at Jamkhed and the Appellant
administered liquor to both of them and committed their murder.
This aspect of liquor finds corroboration from the evidence of
PW-5 - Doctor, which show that after opening the stomach of
both the deceased, he found food articles with the smell of
alcohol. The column no.21 of the postmortem reports
corroborate the said testimony about the presence of alcohol in
the stomach of both the deceased. As is clear from the evidence
of PW-3 - Pandurang Gahininath Raut that there was one bottle
like liquor bottle and two glasses on the spot of incident which
were seized under the spot panchnama. Thus, the evidence on
record show that the Appellant had the motive to commit the
crime as his second wife deceased - Mahmooda and deceased -
Sayeed were intimately involved with each other.
19 Cri-Appeal-921-2018.odt
d) The above discussed evidence on record establishes the
motive behind the crime.
9. The other evidence that of PW-8, PW-9 and PW-10, who
are the police personnel, show that they had carried articles and
DNA kit for chemical anaylsis. The reports of chemical analyser
are brought on record in the evidence of PW-11 - Investigating
Officer at Exhibits - 64 and 65. It only indicate stains on the
articles. Though there are other CA reports, they are not
exhibited before the Trial Court. Therefore, they are kept out of
consideration.
10. The paper book show that the incriminating circumstances
were put to the Appellant by the learned Trial Court pursuant to
the provisions of Section 313(1)(b) of Cr.PC, wherein the
Appellant accepted that he was residing near the house of
Informant's father i.e. near BSNL Tower at Jamkhed and one dead
body of male and another dead body of female were lying inside
compound of his house. This response of the Appellant to the
incriminating circumstances and denial to all other incriminating
circumstances gives rise to additional link in the chain of
circumstances to make it complete. On this aspect, it would not
be out of place to quote the observations from the Judgment in
Trimukh Maroti Kirkan Vs. State of Maharashtra; (2006)
10 SCC 681, in Paragraph Nos.15, 21 and 22, which read thus;
20 Cri-Appeal-921-2018.odt
"15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case would
undoubtedly be upon the prosecution, but the nature and
amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases of
circumstantial evidence. The burden would be of a
comparatively lighter character. In view of Section 106 of the
Evidence Act there will be a corresponding burden on the
inmates of the house to give a cogent explanation as to how the
crime was committed. The inmates of the house cannot get
away by simply keeping quiet and offering no explanation on
the supposed premise that the burden to establish its case lies
entirely upon the prosecution and there is no duty at all on an
accused to offer any explanation".
"21. In a case based on circumstantial evidence where no
eyewitness account is available, there is another principle of law
which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an
additional link in the chain of circumstances to make it
complete. This view has been taken in a catena of decisions of
this Court.
22. Where an accused is alleged to have committed the murder
of his wife and the prosecution succeeds in leading evidence to
show that shortly before the commission of crime they were
seen together or the offence takes placed in the dwelling home
where the husband also normally resided, it has been
consistently held that if the accused does not offer any
explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for
commission of the crime. In Nika Ram v. State of H.P. [AIR 1972
SC 2077], it was observed that the fact that the accused alone
was with his wife in the house when she was murdered there
with 'khokhri' and the fact that the relations of the accused with
her were strained would, in the absence of any cogent
explanation by him, point to his guilt. In Ganeshlal v. State of
Maharashtra [(1992) 3 SCC 106], the appellant was prosecuted
for the murder of his wife which took place inside his house. It
was observed that when the death had occurred in his custody,
the appellant is under an obligation to give a plausible
explanation for the cause of her death in his statement under
Section 313 Cr.P.C. The mere denial of the prosecution case
coupled with absence of any explanation was held to be
inconsistent with the innocence of the accused, but consistent
with the hypothesis that the appellant is a prime accused in the
commission of murder of his wife"......................................................
21 Cri-Appeal-921-2018.odt
11. The above discussed circumstances are proved by the
prosecution by credible evidence. The proved circumstances point
towards the involvement of the Appellant in the crime and rules
out all other possible hypotheses including the innocence of the
Appellant and any other person. We maintain the conviction of
the Appellant recorded by the Trial Court. The learned Trial Court
has imposed punishment for the offence punishable under Section
302 of IPC as "to suffer rigorous imprisonment for life, which
shall mean, till end of his natural life". The said punishment needs
to be corrected / modified to bring it in consonance with the
provisions of Section 302 of IPC.
12. The Appellant is also convicted for the offence under
Section 201 of IPC for causing disappearance of evidence of the
offence. Learned Trial Court recorded the impugned judgment
that the Appellant had assaulted the Sayeed and Mahmooda in his
house and after commission of the offence, he dragged their dead
bodies out of the house upto the compound gate, with intention
to disappear evidence in respect of the offence which had taken
place in his house and concealed weapon - Sattur in the grass
near Rui tree at some distance from the spot of offence.
Therefore, ingredients of Section 201 of IPC were proved against
him. Examining this observation of the learned Trial Court in the
light of above referred proved circumstances, we see no reason
not to concur with the said finding of the learned Trial Court.
13. In view of the above, we proceed to pass the
22 Cri-Appeal-921-2018.odt
following order:
ORDER
(i) The Appeal is dismissed.
(ii) The Paragraph No.2 of operative order of the impugned
Judgment dated 02/05/2018 is corrected/modified as under:
"The word "Accused is sentenced to suffer rigorous
imprisonment for life, which shall mean, till end of his
natural life" is corrected and be read as "Accused is
sentenced to suffer imprisonment for life".
(iii) The fees of appointed Advocate is quantified at Rs.10,000/-
[Rupees Ten Thousand Only], which is to be paid by the
High Court Legal Services Sub- Committee, Aurangabad.
(iv) The Record and Proceedings be sent back to the Trial Court.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
Sameer
