Bombay High Court
Javed Khan S/O. Wasi Khan vs The State Of Maharashtra on 6 May, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:9619-DB
1 Cri.Appeal560.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.560 OF 2019
Javed Khan Wasi Khan
Age : 33 years, occu : Labour,
R/o. Lane No.10, Sadat Nagar,
Near Railway Station, .. Appellant
Aurangabad, Tal. & Dist. Aurangabad. (Orig. Accused)
Versus
State of Maharashtra .. Respondent
.....
Shri. Naseem R. Shaikh, Advocate for the Appellant
Smt. U. S. Bhosle, APP for the Respondent / State.
.....
CORAM : R. G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : 14.03.2024
PRONOUNCED ON : 06.05.2024
JUDGMENT [ Per NEERAJ P. DHOTE, J. ]
Impugned in the present Appeal, filed under Section 374 (2) of
the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') is the
Judgment and order dated 16.05.2019 delivered by the Additional
Session Judge-6, Aurangabad in Sessions Case No.132 of 2017
convicting the Appellant for the offence punishable under Section 302
and 201 of the Indian Penal Code, 1860 (hereinafter referred to as the
'I.P.C.') and sentencing him to suffer Imprisonment for Life and to pay
fine of Rs.10,000/- (Rs. Ten Thousand), in default to pay fine, suffer
Simple Imprisonment for Two (02) Month for the offence punishable
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under Section 302 of the I.P.C. and to suffer Rigorous Imprisonment for
Three (03) Years and to pay fine of Rs.5000/- (Rs. Five Thousand), in
default to pay fine, suffer Simple Imprisonment for One (01) Month for
the offence punishable under Section 201 of the I.P.C.
2. The Prosecution's case as revealed from the Police Report is as
under:
2.1. Akshay Dnyaneshwar Gulaskar (hereinafter referred to as the
'Deceased') was the son of the Informant PW5 - Dnyaneshwar Sonaji
Gulaskar, R/o. Kotala Colony, Aurangabad. On 08.12.2016 at about
17:45 Hrs., the Informant returned home from his work. At that time,
Deceased was at home. Deceased left the house around 18:30 Hrs. on
the Jupiter moped (two wheeler). He did not return home till late night.
The Informant gave call on the phone of Deceased, however there was
no response. The Informant and his family members thought that
Deceased must be with his friends, therefore, they went to sleep. On
09.12.2016 around 09:15 a.m. the Informant received phone from his
younger son informing him that Deceased was found lying in front of
Saroj High School. The Informant went to the spot which was in front
of Saroj High School, situated on Kasambari Durgah Road. He found his
son Akshay lying dead with cut injury on his neck and injuries over the
body. One cigarette was found near the body. At some distance burnt
papers were noticed. Two wheeler of Deceased was found at the
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distance of one to one and half (1 ½) kilometer from the spot where the
body was lying. Dead body was taken to the hospital.
2.2. The informant lodged the Report with the Police Station Chawani,
Aurangabad against unknown person and Crime No.482 of 2016 came
to be registered for the offence punishable under Sections 302 and 201
of I.P.C. at 13:55 Hrs. During the course of investigation, the clothes of
Deceased came to be seized, the Inquest and Post-mortem were done,
the Spot Panchanama was carried, the statement of friends of Deceased
came to be recorded. It was revealed that lastly the Appellant was in the
company of Deceased. The Appellant came to be arrested, one Knife
came to be seized at the instance of the Appellant, clothes of the
Appellant came to be seized from his house, the blood samples of the
Appellant were drawn, the Forensic experts lifted the prints from the
two wheeler and the Finger prints of the Appellant were taken. The
seized Articles were sent for Chemical Analysis. The Finger Print Expert
opined that the Finger prints of the Appellant matched with the prints
lifted from the two wheeler. The Chemical Analyst opined that the DNA
extracted from the cigarette butt found near the dead body and DNA
extracted from the blood of the Appellant matched. The Test
Identification Parade was conducted in which PW7 - Balbhim Rajabhau
Admane and PW8 - Yogesh @ Banni Chandrakant Ahire who were the
friends of Deceased and were in the company of the Deceased before his
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death, identified the Appellant as the person who left with the Deceased.
Investigation revealed that quarrel took place between the Appellant
and Deceased on account of Rs.1,300/-. In that quarrel, the Appellant
inflicted severe injuries on the neck and other parts of the body and
killed Deceased and left the spot on the two wheeler of Deceased after
destroying the documents of the two wheeler. The cause of death as per
the Post-mortem was "Cut throat injury to neck".
2.3. On completion of the investigation, the Appellant came to be
charge-sheeted. On committal, the learned Additional Sessions Judge,
Aurangabad framed Charge against the Appellant for the offence
punishable under Sections 302 and 201 of the I.P.C. vide Exh.6, to which
the Appellant pleaded not guilty and claimed to be tried. To prove the
Charge, Prosecution examined in all twenty two (22) witnesses and
brought on record relevant documents while recording the testimony of
witnesses. After the Prosecution closed their evidence, the learned Trial
Court recorded the statement of Appellant under Section 313 (1)(b) of
the Cr.P.C. The Appellant denied the Prosecution's case. The Appellant
also submitted his written-statement under Section 313 of Cr.P.C. at
Exh.183 contending that he was falsely implicated. The Appellant
examined two defence witnesses who were the Journalist and Executive
Editor of the daily newspaper. After the defence evidence was over, the
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learned Trial Court delivered the impugned Judgment and Order after
appreciating the evidence available on record.
3. Heard the learned Advocate for the Appellant and the learned APP
for the Prosecution. Scrutinized the evidence available on record.
4. The Prosecution's case is based on circumstantial evidence. As per
settled position under the law in the case based on circumstantial
evidence, (a) the chain of circumstances from which the conclusion of
guilt is to be drawn should be fully established (b) the facts so
established should be consistent only with the hypothesis of the guilt of
the accused (c) the circumstances should be of a conclusive nature
(d) the circumstances should exclude every possible hypothesis except
the one sought to be proved and (e) there must be a chain of evidence
so complete so as not to leave 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.
5. In the case in hand, the Prosecution relied on the following
circumstances to prove the Charge :-
(i) Homicidal Death of Akshay Gulaskar.
(ii) Deceased lastly seen with the Appellant.
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(iii) Seizure of Knife and blood stained clothes at the instance of
the Appellant.
(iv) Matching of DNA extracted from the cigarette butt found
near the dead body and DNA extracted from the Appellant's
blood.
(v) Matching of prints found on the two wheeler and Finger
prints of the Appellant.
(vi) Motive.
(i) Homicidal Death of Akshay Gulaskar :-
6. It is submitted by the learned Advocate for the Appellant that the
Homicidal Death of the Informant's son is not in dispute. It is submitted
by the learned APP that there is sufficient evidence on record to
establish that the Informant's son Akshay died Homicidal Death.
7. The evidence of PW1 - Shaikh Ismail Shaikh Mohammad show
that at 05:45 a.m. on 09.12.2016 while he was going for Namaz to
Noor Saroj Masjid, he saw one body lying behind the school in pool of
blood. One sweeper (PW2 - Ravindra Kishan Salve) of Municipal
Corporation came there and made phone call to the police by dialing the
number 100. One and half (1½) hours later police came. The
cross-examination show that the said evidence of this witness of noticing
the dead body while going to Namaz is not disputed.
8. The evidence of PW2 - Ravindra Kishan Salve show that he was
working as the Sweeper in the Aurangabad Municipal Corporation. At
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06:30 a.m. on 09.12.2016 as he was doing his work in the area of Saroj
Urdu School, he saw the dead body in pool of blood. He made phone
call to the police by dialing the number 100. The police reached the
spot. This evidence is not disputed.
9. The evidence of PW3 - Mirza Ajaj Baig show that he was the
teacher in Saroj Urdu School. On 09.12.2016 the Head-master of the
school was requested by the concerned police to provide two panchas.
On instructions, he went on the spot where the body was lying. The
Inquest at Exh.14 was conducted. The Inquest (Exh.14) is admitted by
the Appellant. Thus, there remains no question of disputing the Inquest.
His further evidence show that he was also the Panch for the Spot
Panchanama at Exh.22. In his presence certain articles were seized from
the Spot. One two wheeler was also seized which was at the distance of
two kilometers from the place of incident. The cross-examination could
not create any dent in his evidence in respect of Spot Panchanama.
10. The evidence of PW5 - Dnyaneshwar Sonaji Gulaskar show that
in the morning of 09.12.2016 he received phone call from his younger
son that Akshay was lying dead near Saroj High School on Kasambari
Durgah Road. He immediately reached the said spot and found his son
Akshay lying dead in pool of blood with injuries on his throat. The dead
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body was lying on stomach. On this point, there is no cross-
examination.
11. The evidence of PW20 - Indal Mohan Bahure show that
from May-2016 to December-2017 he was attached to Cantonment
Police Station. On 09.12.2016 he was the Police Station In-charge. He
was assigned the investigation of this crime. He received telephonic call
that one dead body was lying near Saroj School, so he reached the spot.
He saw one male dead body in pool of blood. He noticed some papers
in burnt condition near the body. He deposed of performing the Inquest
at Exh.14 and of conducting the Spot Panchanama at Exh.22. His
evidence further show that plain soil, blood mixed soil, partially burnt
papers, one burnt cigarette piece, one pen, one jutti pair, one partially
burnt passbook of State Bank of Hyderabad were found. On checking
pant pocket, one list of mobile numbers, one broken belt of wrist watch,
one cigarette pocket smeared with blood having black colour were
found. All the said articles were seized under the panchanama with the
help of Forensic team. He also deposed of seizure of two wheeler which
was at some distance. On the aspect of performing Inquest and Spot
Panchanama, the cross-examination could not create any dent in his
evidence.
12. The evidence of PW10 - Dr. Manoj Bhimrao Patekar show
that from the year-2013 to June-2018 he was the Medical Officer at
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Government Medical College and Hospital, Aurangabad. On 09.12.2016
when he was posted in the Forensic Department, the dead body of
Akshay Dnyaneshwar Gulaskar was received from the Cantonment
Police Station along with Inquest, for Post-mortem. He along with
Dr. Arif Shaikh and Dr. Ashok Jiwane performed Post-mortem from
02:20 p.m. to 04:20 p.m. On examination he found the following
external injuries :
"1. Cut throat injury in the form of incised wound of size
19 cm. X 7 cm. X vertebal column deep, horizontal, over the
front of the neck, extending from just below right ear up left
anterolateral part of neck with tailing on left side. All the
underlined muscles, blood vessels, larynx and upper part of
thyroid cartilage are clean cut. Margins are clean cut,
reddish and blood stained. This injury is individually
sufficient to death in ordinary course of nature.
2. Multiple incised injuries were present on the left side
of the neck, on left lower lip, on the left chick, on the right
submandibula region. All these injuries were clean cut,
reddish and blood stained. Also there were incised injuries
present over dorsal aspect of left hand. Interdigital space
between right thumb and index Finger. On distal phalynx of
left middle Finger. On proximal phalynx of left middle
Finger, medial aspect of proximal phalynx of left thumb. All
these injuries are suggestive of defence injuries. There are
multiple linear abrasions over left shoulder and multiple
superficial incised wounds over left shoulder. There is
superficial incised wound on upper part of nose. There are
multiple linear abrasions on the lower part of back.
Abrasions present over posterior right elbow and anterior
left knee."
13. He deposed that on further internal examination the injury
corresponding to Injury No.1 was found. All the injuries mentioned in
Column No.17 were antemortem and fresh, caused by sharp cutting
weapon up to injury no.13. Injury Nos.13 and 14 were caused by hard
and blunt object. He gave the cause of death "Cut throat injury to neck
10 Cri.Appeal560.2019
(homicidal)". The Post-mortem is at Exh.101 which corroborate his
testimony. Though this witness was cross-examined, his testimony given
in the examination-in-chief remained unshaken.
14. Through the above discussed evidence the Prosecution has
successfully proved that Informant's son Akshay Dnyaneshwar Gulaskar
died Homicidal Death and hence, the circumstance no.(i) is proved.
(ii) Deceased lastly seen with the Appellant :-
15. It is submitted by the learned Advocate for the Appellant
that PW6 - Akash @ Samadhan Janardhan Lahane and PW9 - Shoaib
Iqbal Sayyed who were having their egg omelet center at Balaji Nagar
and Sillekhana at Aurangabad, respectively, where according to the
Prosecution the Appellant and Deceased had gone, did not support the
Prosecution. He submitted that the evidence of PW7 - Balbhim
Rajabhau Admane and PW8 - Yogesh @ Banni Chandrakant Ahire on
the point of last seen cannot be believed. He further submitted that
though these witnesses claimed that they identified the Appellant in the
Test Identification Parade (T.I.P.), the T.I.P. was conduced belatedly after
a period of three months from the date of the arrest and that too in
violation of relevant guidelines. He submitted that the evidence in
respect of last seen, is not trustworthy and be discarded.
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16. It is submitted by the learned APP that the evidence of the
said two witnesses i.e. PW7 - Balbhim Rajabhau Admane and PW8 -
Yogesh @ Banni Chandrakant Ahire remained unshaken in the
cross-examination and they identified the Appellant as the same person
who was lastly in the company of Deceased in the court while recording
the deposition. She submitted that the identification of the Appellant by
these two witnesses is corroborated by the previous T.I.P.
17. The evidence of PW6 - Akash @ Samadhan Janardhan
Lahane and PW9 - Shoaib Iqbal Sayyed is of no assistance to the
Prosecution as the said witnesses did not support the Prosecution.
Though they were cross-examined on behalf of the Prosecution, nothing
has come in their evidence which would further the case of Prosecution.
18. PW7 - Balbhim Rajabhau Admane is the resident of Beed.
He knew one Sagar Shete of Aurangabad whose grandmother was
residing in the same colony where he was residing. On 08.12.2016 he
came to Aurangabad at 06:00 p.m. There was marriage of his maternal
uncle's daughter. On arrival at CIDCO Bus Stand, he made phone call to
Sagar Shete. Sagar Shete came and they both went to Kotla colony as
there was opening ceremony of one Gym center known to Sagar Shete.
From Kotla colony, he, Sagar and one Vaibhav went to the house of his
maternal uncle which was near the MIT College where he kept his bag
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and thereafter they three i.e. he, Sagar and Vaibhav went towards
Jabinda ground which was on Beed Bypass Road and purchased liquor
from one wine shop.
19. His further evidence show that Sagar Shete received phone
call from Amol and Sagar told Amol the place where they were present
i.e. Jabinda ground. Amol and Yogesh @ Banni Ahire (PW8) reached
Jabinda ground. They all, except Vaibhav, consumed liquor. At that
time Amol received phone call from Deceased. Within ten (10) to
fifteen (15) minutes Deceased came to Jabinda ground. Deceased
removed the liquor unit (bottle) from his two wheeler and they all
consumed liquor. Thereafter they all left for taking meals. As one of
them was omitting due to excess consumption of liquor, they purchased
water bottle from the office of Musafir Travels and thereafter went to
Kotla Colony. Sagar, Vaibhav and one friend returned home due to
excess consumption. Deceased told him that good quality anda bhurji
was available at railway station. Therefore, he, Yogesh and Deceased
went to railway station. He and Yogesh were on Honda Passion two
wheeler and Deceased was on Jupiter Scooty. When they reached anda
bhurji center, one friend met Deceased and said friend hugged each
other. The said friend of Deceased told anda bhurji vendor to prepare
good quality anda bhurji as they were his relatives. The said friend of
Deceased was wearing red jacket and black pant.
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20. His further evidence show that while anda Bhurji was
served, Deceased and his said friend left on the scooty of Deceased. The
time was between 12:00 p.m. and 01:00 a.m. Deceased and his friend
returned. They all had anda bhurji. Deceased made the payment for
anda bhurji and he went to pan stall. At that time Yogesh told Deceased
that he will drop Balbhim to the house of his maternal uncle.
Thereafter, he and Yogesh left the place. When they reached near Lalaji
Hotel near railway station, Yogesh told him that they will take Deceased
with them as he had consumed excess liquor and therefore, they took
"U" turn and when they reached near the anda bhurji center, Deceased
and his friend were not there. He deposed that they cancelled going to
the flat of his maternal uncle and went to the room of his friend Yogesh
(PW8). On the next day morning at 09:00 a.m. he gave call to Sagar,
who asked him to come at Kotla colony, so that he will drop him to his
maternal uncle's flat. At that time Sagar informed him that his friend
who was with them in the night was involved in an accident. Thereafter
Sagar left him to the house of his maternal uncle. His evidence show
that police recorded his statement as per his say.
21. His further evidence show that he identified the Appellant
as the same person with whom he met firstly at the anda bhurji center
and thereafter while going with Deceased. His evidence show that he
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identified the Article-8 (black pant) and Article-9 (red jacket) as the
same clothes which were on the person of the Appellant while he saw
him at the anda bhurji center. His evidence show that on 03.12.2016 he
was called for T.I.P. in the Harsool Jail. In the T.I.P he identified the
Appellant as the same person with whom he met for the first time at the
anda bhurji cart and thereafter saw him with Deceased. He identified
the T.I.P. Memorandums at Exhs.86 and 87 as the same which bears his
signature.
22. This witness was cross-examined by the defence. It is tried
to be brought in his cross-examination that he read about the death of
Akshay in the newspaper. As he is not the eye witness to the incident,
not knowing the cause of death is not expected from him. He gave
admission that on the day of the incident they all consumed excess
liquor and therefore, they were not able to control themselves and not
able to understand. He did not inform the police the facial features, age
and description of the person who was lastly seen with the Deceased. He
denied that Yogesh (PW8) provided information to him about the
identification parade and on that basis he identified the Appellant, as
Yogesh (PW8) had first participated in the TIP. He noted down the dates
on which he was called for recording statement and called for
identification parade. He accepted that he was instructed to tell those
dates while recording the evidence in the Court. The omission which is
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brought in para-17 of his evidence is not of much significance. He
denied all the other suggestions.
23. PW8 - Yogesh @ Banni Chandrakant Ahire was residing in
Kotla Colony, Auranabad as he was taking education of Engineering.
Deceased was known to him being the resident of Kotla colony. In the
evening of 08.12.2016 after coming back from college, he was roaming
on the ground of Kotla colony. While he and Amol More were sitting, he
received phone call from Sagar Shete who called them at Durgah on
Beed Bypass road. Sagar Shete, Balbhim Admane (PW7) and Vaibhav
Borade were present there. Thereafter they went to Jabinda ground for
party where they had liquor. After some time Amol More received
phone call between 10:30 and 11:00 p.m. Deceased and Pappu
Narwade came there on Jupiter vehicle. Deceased removed liquor bottle
from two wheeler. They all i.e. Vaibhav Bansold, Deceased Akshay,
Pappu Narwade, Sagar Shete, Amol More and Balbhim Admane (PW7)
consumed liquor. Thereafter they returned towards Kotla colony. Sagar
Shete went to the house of in-laws in Kotla colony and he handed over
the passion motorcycle to him for dropping Balbim Admane (PW7) to
his home. Sagar Shete and Amol went to their respective houses. He,
Deceased, Balbim Admane (PW7) and Pappu Narwade went towards
Railway Station, Aurangabad. In the meanwhile, Pappu Narwade left
for his home. Deceased told them that they would go to railway station
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for having anda burji. Accordingly, they reached the railway station and
went to anda bhuri cart and between 12:00 a.m. and 12:15 a.m. While
they were having anda bhurji, one person came there wearing red jacket
and black pant. Deceased and that person talked at some distance. The
said person told the anda bhurji vendor to provide good anda bhurji as
they were his relatives. After having anda bhurji Deceased paid the bill.
24. His further evidence show that, the Deceased and the said
person informed that they will return in two minutes. Deceased and
that person left on the Jupiter vehicle. Deceased was driving two
wheeler. While he (PW8 - Yogesh) and Balbhim were about to leave the
said place, Deceased and that person came there. He told Deceased that
he will come soon by dropping Balbhim (PW7) and they proceeded.
When they were at Lalji Hotel, they decided that as it was too late they
would take Deceased with them and drop him at home. So, they
returned towards Anda bhurji stall from opposite side of the road. They
did not find Akash and that person at that place. The time was between
12:30 p.m. and 01:00 a.m. They thought that Deceased might have
returned home. They returned and went to room of their friend.
25. His further evidence show that in the morning when they
came to Kotla colony they saw one Duster four wheeler in front of the
Deceased house. One person came out from the said four wheeler and
told them to give support / courage to Ameya. The said four wheeler
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proceeded. They followed it towards the Cantonment Police Station.
They learnt that Akshay was Murdered by someone. His statement
came to be recorded.
26. His further evidence show that on 09.03.2017 he was called
for T.I.P. in the Harsool Jail where he identified the Appellant as the
same person who was seen at the anda bhurji center and thereafter
while going on Jupiter two wheeler along with Deceased. In his
evidence he identified the Appellant as the same person who was lastly
seen with Deceased and to whom he identified in the T.I.P. The T.I.P.
Memorandum at Exhs. 91 & 92 is brought on record and he identified
his signature thereon.
27. He was cross-examined by the defence. His cross-examination
show that his evidence 'Akshay and that person returned on Jupiter and
told them that they will return within two minutes' was an omission in
his previous statement. It has further come that firstly they consumed
liquor in Jabinda park from the bottle purchased by Balbhim Admane
(PW7) and thereafter they, except him, consumed the liquor from
second bottle, which was brought by Deceased. The process of T.I.P. was
completed within five to ten minutes. He visited the police station in
respect of this crime two to three times.
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28. It is clear from the above discussed evidence of PW7 -
Balbhim Rajabhau Admane and PW8 - Yogesh @ Banni Chandrakant
Ahire that the Accused or the person whom they saw in the company of
Deceased at the anda bhurji center was not known to them. The Accused
or the said person was a stronger to them. Their evidence show that
they had consumed excess liquor. The evidence of PW7 - Balbhim
Rajabhau Admane show that the extent of consumption of liquor by
them was to such an extent that they were not able to control
themselves and were not able to understand. This clearly shows that
they were inebriated and not in their senses. It is further clear from
their evidence that the said excess consumption of liquor was prior to
their reaching the anda bhurji center. It is also clear from their evidence
that the said person was not in their company prior to their consumption
of liquor or during consumption of liquor. Their evidence go to show
that after becoming inebriated they went to the egg center at the
instance of Deceased. It is thus clear that when the said unknown
person came at the egg center and met the Deceased, these witnesses
were in an inebriated state. After having the egg bhurji, they dispersed.
Therefore, it is clear that only for short span of time the said unknown
person was present there. Admittedly, the time was midnight. Evidence
of PW7 - Balbhim Rajabhau Admane makes it clear that he did not give
the description (facial features, age) of that unknown person to the
police. Under such circumstances, it is highly doubtful that these
19 Cri.Appeal560.2019
witnesses were able to register the personality and features of the said
unknown person in their minds.
29. Further, though their evidence show that they visited the
prison where the T.I.P. was carried out and they identified the Appellant
as the said unknown person. The Prosecution examined PW13 - Milind
Bhaulal Dhakane who was the Panch for T.I.P. and PW16 - Mrs. Meena
Bhalchandra Warade, Naib Tahsildar, who conducted the T.I.P. The said
T.I.P. was admittedly conducted close to three (3) months after arrest of
the Appellant. (The Appellant was arrested on 10.12.2016 and T.I.P. was
conducted on 09.03.2017). It is needless to state that the T.I.P. is
required to be conducted at the earliest. In the cross-examination of
PW16 - Mrs. Meena Bhalchandra Warade the defence sought the
explanation for delayed T.I.P. and she deposed that she did not explain
the delay in writing to the Investigating Officer though she volunteered
that the T.I.P. was extended at the request of Investigating Officer. Even
the evidence of PW20 - Indal Mohan Bahure, Investigating Officer is
silent on the aspect of delay in T.I.P. It is settled position under the law
that the T.I.P. is for investigation purpose.
30. The evidence of PW16 - Mrs. Meena Bhalchandra Warade
merely show that six (06) dummies were of similar height as that of the
Suspect. The evidence in respect of T.I.P. is completely silent on the
20 Cri.Appeal560.2019
aspect that the dummies were of more or less the same physical
appearance and approximately of same age as that of the Suspect. This
show that there was deviation from the guidelines framed for the
purpose of T.I.P. Under such circumstances, the T.I.P. will not be of any
assistance to the Prosecution for the purpose of corroborating their case
for establishing identity of the Appellant as the assailant.
31. The authorities relied upon by the learned Advocate for the
Appellant on the aspect of last seen and T.I.P. which are (i) Sachin and
Ors vs. The State of Maharashtra, 2021 (3) AIR Bom. R. (Cri.) 87, (ii)
Somasundaram Alias Somu vs. State, AIR 2020 SC 3327, (iii) Md. Sajjad
alias Raju alias Salim vs. State of West Bengal, AIR 2017 SC 642, and
(iv) Musheer Khan @ Badshah Khan and Anr vs. State of M.P., AIR 2010
SC 762 reiterates the settled principles.
32. In the light of the above discussed evidence, the
identification of the Appellant by PW7 - Balbhim Rajabhau Admane and
PW8 - Yogesh @ Banni Chandrakant Ahire as the same person who had
come at the anda bhurji center and thereafter accompanied the
Deceased is required to be seen with doubt and cannot be relied. Thus,
the circumstance no.(ii) is not proved by the Prosecution.
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(iii) Seizure of Knife and blood stained clothes at the instance of the
Appellant :
33. It is submitted by the learned Advocate for the Appellant
that the evidence in respect of discovery of Knife pursuant to the Section
27 of the Indian Evidence Act cannot be relied because the evidence on
record show that the Spot Panchanama was done in detail and no
weapon was found during the Spot Panchanama and subsequently the
discovery of the Knife is shown from the same spot. He further
submitted that the evidence in respect of seizure of blood stained clothes
does not inspire confidence. In support of his submission, reliance is
placed on the judgments in the case of (i) Mani vs. State of T.N., AIR
2008 SC 1021, and (ii) Ishwarbhai Narayan Makwana vs. State of
Maharashtra, 2013 (1) BOM. C. R. (CRI) 10. In these Judgments, the
discovery of relevant articles were made from open ground after more
than ten days of the incident and about 300 feet away from the dead
body and the discovery was not accepted and seizure of blood stained
clothes from the house of the Accused was not construed as a proved
circumstance.
34. It is submitted by the learned APP that the Prosecution have
led the evidence to show that the Knife and blood stained clothes were
discovered and seized at the instance of the Appellant. It is submitted
that the said discovery becomes relevant under Section 27 of the Indian
Evidence Act.
22 Cri.Appeal560.2019
35. For this circumstance of Discovery and Seizure, the relevant
evidence is that of PW12 - Santoshkumar Kisanlal Bansile. He was in
the Government service. On 12.12.2016 he and another witness Milind
Dhakane were directed by their superior to go to the Cantonment Police
Station to act as Panchas. Accordingly, they went to the police station
around 11:20 a.m. The Police Officer told them that the Accused was
likely to come and ask him to hear what he says. Police Constable
brought Appellant in the cabin of the Officer. The Appellant disclosed
his name as Javedkhan Wasikhan. The Appellant stated that he was
ready to show the place where he committed the Murder and further
stated that he was ready to produce the Knife which was used for
commission of the Murder (partly inadmissible). He further deposed
that the Appellant stated that water bottle was used for cleaning the
Knife and he threw the Knife and he was ready to produce it.
Memorandum of the said statement was prepared, upon which both the
panchas signed. He identified Exh.109 as the said Memorandum.
Thereafter by government vehicle the policemen, the panchas, one
photographer and the Appellant went towards the direction given by the
Appellant. The vehicle was stopped ahead of Saroj English School at the
instance of the Appellant. They all alighted from the jeep and walked at
the distance of ten (10) meters. The Appellant searched in the grass
which was standing there and produced the Knife (Article-10). The
23 Cri.Appeal560.2019
blade of Knife was around 3.5 cms in width and its wooden handle was
around 11 cms. The Panchanama at Exh.110 was prepared in that
regard. Thereafter they returned to the police station.
36. The evidence of PW20 - Indal Mohan Bahure, Investigating
Officer show that during Police Custody Remand (PCR) the Appellant
was taken in confidence and enquiry was made with him. Initially he
avoided to give rational answers, but thereafter he showed willingness
to produce the Knife. He prepared the Memorandum at Exh.109. The
Appellant made the said statement in presence of two panchas and
before him. He called the photographer and they all with Accused
proceeded in the government vehicle towards the direction given by the
Appellant. The vehicle was stopped at the instance of the Appellant
ahead of Saroj School. The Appellant led them to one kaccha road and
removed the Knife from bushes which was seized in the presence of
panchas and Panchanama at Exh.110 was accordingly drawn.
37. The cross-examination of PW12 - Santoshkumar Kisanlal
Bansile show that the seizure panchanama at Exh.110 was silent on the
aspect that the accused searched Knife from the bushes of congress
grass. This shows that the evidence of this panch witness that the
accused took search in the congress grass and produced the Knife has no
corroboration from the said panchanama. As seen from the evidence,
there is no dispute that the spot of incident i.e. where the dead body
24 Cri.Appeal560.2019
was found lying, was near Saroj School. In the cross-examination of
PW12 - Santoshkumar Kisanlal Bansile it has come that the place from
where the Knife was produced was not closed. From this evidence
available on record, it is clear that the discovery and seizure of Article-
10 (Knife) was from the vicinity of the place where the dead body was
found lying. The evidence of PW3 - Mirza Ajaj Baig who acted as the
Spot Panch show that several articles were seized at the time of the Spot
Panchanama. Thus, it is strange that the said Article-10 (Knife) was not
found at the time of conducting the Spot Panchanama which was
conducted in detail. Under such circumstances, the Prosecution's case in
respect of the discovery and seizure of Article-10 (Knife) at the instance
of the Appellant is required to be seen with doubt.
38. The evidence of PW12 - Santoshkumar Kisanlal Bansile
further show that on the same day i.e. 12.12.2016 in the afternoon both
the panchas were again called by the Investigating Officer in the police
station where the Appellant stated that he was ready to produce the
clothes which were on his person at the time of the incident and the
amount which he took from Deceased and memorandum at Exh.111 was
prepared. His further evidence show that they all proceeded in the
government vehicle which was taken in the directions shown by the
Appellant. The vehicle was stopped near the corporation school and
Appellant took them in front of his house and gave call by name Samina.
The door of the house was closed and it was opened by one child and
25 Cri.Appeal560.2019
the Appellant entered the said house and they followed. The Appellant
removed one carry bag wherein one red colour full jacket having chain,
steel button and black and red dots, one black T-shirt, one black pant
and 13 currency notes of Rs.100/- denomination were kept. All the said
Articles were seized under the Panchanama at Exh.112. He deposed
that the Articles-8, 9 and 11 were the same clothes.
39. On the point of seizure of the clothes at the instance of the
Appellant, the evidence of PW20 - Indal Mohan Bahure show that after
the said statement of the Appellant that he was ready to produce the
clothes and cash, the Appellant took them to one house in the
government vehicle. The door of that house was closed and upon
knocking the door was opened. They went inside the house and accused
removed one bag in which the aforesaid clothes and cash were kept and
they all were seized.
40. From the above discussed evidence the Prosecution wants to
establish discovery and seizure of clothes and cash at the instance of
Appellant. However, in his evidence of PW20 - Indal Mohan Bahure,
Investigating Officer deposed that during enquiry, the Appellant stated
that chappals which he was wearing at the time of the commission of
the offence (partly inadmissible) were in his house and so he took
search of the Appellant's house and seized the chappals. However on
the contrary, the evidence of PW15 - Vikram Birbhan Bahot show that
26 Cri.Appeal560.2019
the chappals were seized in the police station. Even if the Investigating
Officer is to be believed, there is no evidence as to whom the said house
belong or in whose possession it was. If the said house was that of the
Appellant, it is really strange that when the Investigating Officer took
search of the Appellant's house and seized the chappals, the said clothes
and cash were not found. As seen from the evidence discussed above,
the said house was not the vacant place and it was occupied. Thus, in
the light of above discussed evidence available on record, the evidence
in respect of discovery and seizure of the clothes and cash at the
instance of the Appellant is required to be seen with doubt.
41. From the above discussed evidence of Prosecution
witnesses, the circumstance no.(iii) cannot be said to be proved and is
thus discarded.
(iv) Matching of DNA extracted from the cigarette butt found near the
dead body and DNA extracted from the Appellant's blood :-
42. It is submitted by the learned Advocate for the Appellant
that the evidence in respect of DNA to connect the Appellant cannot be
accepted. It is submitted that the seizure of cigarette butt from the place
of offence was not proper and therefore the result of analysis cannot be
relied. In support of his submission, he relied on the Judgments in the
case of Jitendra s/o. Suresh Gabhane vs. The State of Maharashtra, 2017
(4) Bom. C. R. (Cri.) 289 and Rahul vs. State of Delhi, 2022 (4) R.C.R.
27 Cri.Appeal560.2019
(Criminal) 993 wherein the quality assurance in the process of collection
of samples and their analysis have been emphasized. He further relied
on the Judgment in the case of Madathil Narayanan and Ors vs. State of
Kerala and Anr, AIR 2016 SC (Supp) 254 wherein DNA analysis of the
blood stains could not be done and Prakash Nishad @ Kewat Zinak
Nishad vs. State of Maharashtra, 2023 (3) Bom. C. R. (Cri.) 592 wherein
there was unexplained delay in sending the samples for analysis and the
evidence was found to be not reliable.
43. It is submitted by the learned APP that the evidence on
record show that the DNA extracted from the cigarette butt which was
found on the spot of incident and the DNA extracted from the blood of
the Appellant was found matching and the said scientific evidence is
trustworthy.
44. There can be no dispute in respect of the principles laid
down in the aforementioned Judgments cited by the learned Advocate
for the Appellant. In the case in hand, the relevant evidence for this
circumstance is that of PW3 - Mirza Ajaj Baig who was the Panch for the
Spot Panchanama. In his evidence he deposed that the passbook,
broken wrist watch, shirt, pant, one chit, one pen of Ranault Company
having blood stains were lying on the spot and all the said articles were
collected in one carry bag. Herein he nowhere refers to cigarette butt.
However, his further evidence show that when Articles were shown to
28 Cri.Appeal560.2019
him at the time of the recording his testimony, one plastic pouch
containing two pieces of cigarette (one small and one big size) was
opened and shown to him and at that point of time, he deposed that it
was collected from the spot. Be that as it may. Even if we accept that
the cigarette / cigarette butt was found on the spot of incident, there is
no evidence that after its collection it was sealed. The evidence of PW3
- Mirza Ajaj Baig is completely silent on the aspect of sealing of the
Articles. It is true that PW20 - Indal Mohar Bahure, Investigating
Officer deposed that all the Articles which were collected from the spot
were sealed in the presence of panchas, however, there is no substantive
evidence of Panch witness to corroborate his evidence on that aspect.
45. There is further reason which requires the said evidence to
be viewed with doubt. The PW3 - Mirza Ajaj Baig in his evidence
deposed that they reached the spot at around 08:30 a.m. and left the
spot around 12:00 noon. However, the said timings are not corroborated
from the spot panchanama (Exh.22) which records the time between
12:30 and 13:30 Hrs. Thus, there is complete mismatch in the time
deposed by the Panch Witness for the Spot Panchanama and the timings
mentioned in the Spot Panchanama. This further renders the evidence
of collection of cigarette / cigarette butt to be seen with doubt.
46. There is further reason to discard the evidence in respect of
DNA. There is evidence of PW17 - Mrs. Madhuri Patil, who was the
29 Cri.Appeal560.2019
Assistant Scientific Analyst working in the Forensic Science Lab,
Mumbai. She compared the DNA extracted from the cigarette butt and
DNA extracted from the blood samples of the Appellant and found them
to be matching. In her cross-examination, she deposed that, it was
difficult to interpret the Article, if that Article touches the earth. If the
Prosecution evidence for seizure of cigarette butt from the spot of
incident is accepted, the said piece of cigarette / butt was collected from
the earth. When there is clear evidence of an expert that, if the Article
touches the earth its interpretation becomes difficult, the result of
analysis of the DNA extracted from the piece of cigarette / butt which
was lifted from the earth / ground cannot be accepted. Thus, the
circumstance no. (iv) is not proved by the Prosecution and is discarded.
(v) Matching of prints found on the two wheeler with the Finger
prints of the Appellant :
47. It is submitted by the learned Advocate for the Appellant
that the evidence in the nature of Finger prints cannot be accepted for
the reason that before taking the Finger prints of the Appellant, no
permission of the concerned Magistrate was taken as mandated from the
provisions of the Identification of Prisoners Act. He relied on the
judgments in the case of Nagaraja vs. State of Karnataka, 2020 AIR (SC)
288 and Mohd. Aman and another vs. State of Rajasthan, AIR 1997 SC
2960.
30 Cri.Appeal560.2019
48. On the contrary, it is submitted by the learned APP that the
Finger prints were developed from the two wheeler used by the
Deceased at the time of the incident, matched with the Finger prints of
the Appellant. She further submitted that the provisions of the said act
permits the Investigating Officer to take the Finger prints of the accused
during the course of investigation.
49. On this point, the relevant evidence is that of PW14 -
Gopinath Baburao Lokhande. His evidence show that he was the Finger
Print Expert and on 09.12.2016 he went to the spot of incident with the
requisite material on the directions received from the concerned police
station for collecting Finger prints. On reaching the spot the
Investigating Officer informed him that they found one scooter (two
wheeler) at an unknown place. He with the help of material, examined
the said scooter and found two prints, out of which one print was
developed / lifted from the speedometer and second print was lifted
from the D.P. scooter. The said two prints were developed with the
required chemicals. On 28.12.2016 they received the Finger prints of
the Suspect which were taken by the police and on comparison, he
found that the prints lifted from the speedometer of the scooter matched
with the left hand palm print of the Suspect, which was received from
the police station. The relevant communications and the report of
31 Cri.Appeal560.2019
comparison along with the statement of reasoning are brought on record
from Exhs.126 to 131.
50. The provisions of Sections 4 and 5 of the Identification of
Prisoners Act are in respect of Taking of measurements or photograph of
unconvicted persons, and Power of Magistrate to order a person to be
measured or photographed. However, in the backdrop of the evidence
available on record, which is considered in the subsequent paragraph,
we need not ponder upon the said provisions.
51. In the case in hand, there is absolutely no evidence that the
prints i.e. palm / Finger prints which were received by PW14 - Gopinath
Baburao Lokhande from the concerned Police Station for comparison
were that of the Appellant. It is only on the basis of the letters at
Exhs.127 and 128, which refer that during the course of investigation
the Finger prints of the Appellant taken were being sent for examination
the Prosecution is advocating that the prints of Fingers were that of the
Appellant. The impugned Judgment show that the said Exhibits
weighed heavily in the mind of Trial Court in accepting the evidence of
Finger prints. In any event, the said letter cannot form the basis to
establish that the Finger prints which were sent for comparison by the
concerned police station to the expert i.e. PW14 - Gopinath Lokhande
were that of the Appellant. There is absolutely no substantive evidence
32 Cri.Appeal560.2019
with corroboration in the nature of Panchanama / Memorandum drawn
at the time of taking the Finger prints to establish that the Finger prints
sent for comparison were that of the Appellant. Unless it is proved by
the Prosecution that the Finger prints which were sent to PW14 -
Gopinath Baburao Lokhande for comparison with the prints lifted from
the scooter were that of the Appellant, the said evidence in respect of
the Finger print becomes valueless and is discarded. Thus, the
circumstance no.(v) is not proved by the Prosecution and is discarded.
(vi) Motive :
52. The evidence available on record do not establish that the
Appellant had any motive to commit the crime. Even if for the sake of
argument it is accepted that robbing the Deceased was the motive
behind the crime, the failure to prove the circumstances brought on
record renders the Prosecution's Motive to fall down. Even if for a
moment the seizure of cash amounting to Rs.1,300/- at the instance of
Appellant is accepted, there is nothing to establish that the said cash
belonged to Deceased.
53. Consequent upon failure of the Prosecution to prove the discovery
/ recovery of the Knife and clothes at the instance of the Appellant, the
C.A. Report at Exh.141 showing human blood on the Knife and blood of
'O' group, which was also that of Deceased, will not by itself sufficient to
33 Cri.Appeal560.2019
maintain the conviction and sentence recorded by the learned Trial
Court against the Appellant. The evidence brought on record by the
Prosecution in respect of pointing the egg stall where the witnesses had
the anda bhurji, the place where the dead body was found by the
Appellant during the course of investigation would not be relevant
under Section 27 of the Indian Evidence Act for the reason that the said
places were known to the witnesses and cannot be termed as within the
exclusive knowledge of the Appellant. Though the Appellant examined
two Defence Witnesses, we need not deal with it, as the Prosecution's
evidence has failed to establish the Charge.
54. As discussed above, the Prosecution has utterly failed to
establish / prove the circumstances, much less, the chain of
circumstances to unerringly establish that it was the Appellant who
caused the Homicidal Death of informant's son Akshay. The evidence
available on record do not satisfy the requirement of law on
circumstantial evidence settled right from the case of Sharad Birdhi
Chand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 till
date. On re-appreciation of the evidence available on record, the Charge
fails and the Appeal is liable to be allowed. Hence, the following order.
ORDER
(i) The Criminal Appeal is allowed.
(ii) The Judgment and Order dated 16.05.2019 passed by the learned
Additional Session Judge-6, Aurangabad in Sessions Case No.132 of
34 Cri.Appeal560.2019
2017 convicting and sentencing the Appellant namely Javed Khan Wasi
Khan is hereby quashed and set aside.
(iii) The Appellant namely Javed Khan Wasi Khan is acquitted of the
offence punishable under Sections 302 and 201 of the I.P.C.
(iv) The Appellant be released forthwith, if not required in any other
crime.
(v) Record & Proceedings be sent back to the learned Trial Court.
( NEERAJ P. DHOTE, J. ) ( R. G. AVACHAT, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 06/05/2024 17:42:42
