Bombay High Court
Mohd Aadil Mohd Salim Khan @ Rayani vs The State Of Maharashtra on 7 January, 2025
Author: Neela Gokhale
Bench: Revati Mohite Dere, Neela Gokhale
2025:BHC-AS:527-DB
203-Appeal-294-2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 294 OF 2015
WITH
INTERIM APPLICATION NO. 610 OF 2020
WITH
INTERIM APPLICATION NO. 4392 OF 2022
IN
CRIMINAL APPEAL NO. 294 OF 2015
Mohd. Aadil Mohd. Salim Khan @ Rayani
Age: 38 years, Occ: Fisherman,
Residing at Room No.4, Madina Masjid,
Chawl, Gadi Adda, Sewree, Mumbai.
(At present accused lodged in Nashik
Road Central Prison, Nashik)
(Convict No. 7737) ... Appellant
(Org. Accused)
Versus
The State of Maharashtra
(At the instance of Sewree Police Station
Vide C.R.No.137 of 2008) ...Respondent
Mr. Abhaykumar Apte, for the Appellant.
Mrs. P.P.Shinde, APP for the Respondent-State.
CORAM : REVATI MOHITE DERE &
DR.NEELA GOKHALE, JJ.
RESERVED ON : 3rd JANUARY 2025
PRONOUNCED ON : 7th JANUARY 2025
Shivgan 1/21
::: Uploaded on - 08/01/2025 ::: Downloaded on - 09/01/2025 00:03:20 :::
203-Appeal-294-2015.doc
JUDGMENT :
(Per Dr. Neela Gokhale, J.)
1) Mohd. Islam Abdul Kudus Rayani lodged an FIR bearing
no. 136 of 2008 dated 8th September 2008 with the Sewree Police
Station, Mumbai that his brother Mohd. Salim Rayani was missing.
According to him, his brother and the Appellant (Original Accused)
were sharing a rented room near Sewree Gadi Adda. They were in the
business of selling fish. On 1st September 2008, one person from their
village in Uttar Pradesh ('UP') namely, Asgar Rayani informed Mohd.
Islam, i.e., the Informant that his brother Salim was missing from 24 th
August 2008. Mohd. Islam enquired with the Appellant but finding his
response suspicious, he lodged an FIR against the Appellant alleging an
offence punishable under Section 302 of the Indian Penal Code, 1860
('IPC'). The Appellant was arrested on 8 th September 2008. After
investigation, Police filed charge-sheet in the Court of Additional
Chief Metropolitan Magistrate (5th Court), Dadar, Mumbai. Since the
offence was triable by the Court of Sessions, the learned Additional
Chief Metropolitan Magistrate's Court committed the case to the
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Court of Sessions for trial.
2) The trial Court framed charges on 14 th January 2009 to
which the Appellant pleaded not guilty. To establish its case, the
prosecution examined 18 witnesses before the trial Court. The 18
witnesses are as under:
P.W.1- Mohd. Islam Abdul Kudus Rayani (First Informant/Brother
of the deceased);
P.W.2- Ramzan Ramulla Rayani (Panch to the Inquest
Panchanama);
P.W.3- Mohsin Salim Khan (Panch to the Spot Panchanama);
P.W.4- Ramnaresh Arjun Vishwakarma (Panch to the
Memorandum/Request Panchanama);
P.W.5- Sham Bihari Dube (Panch to the Memorandum/ Request
Panchanama);
P.W.6- Mohd. Saie Abdul Kudus Rayani (Brother of the
Deceased);
P.W.7- Riyaz Ahmed Choudhary (Neighbor of the deceased);
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P.W.8- Vijay Dagdu Bhondave (Panch to the recovery of mobile
bill);
P.W.9- Swapnil Jagganath Lokhande (Police Constable);
P.W.10- Raju Dinkar Pote (Officer issuing Prohibitive Order);
P.W.11- Kailashkumar Roshanlal Chourasia (Panwala who
purchased mobile);
P.W.12- Mohd. Shakil Salim Shaikh (Shopkeeper of Hello Mobile
Shop);
P.W.13- Jagdish Vasant Rane (Panch of seizure Panchanama of
clothes);
P.W.14- Dr. Dhirendra Shantilal Balsara (Doctor who performed
Post-Mortem);
P.W.15- Raja Mohan Jadhav (Panch of Memorandum Panchanama
of SIM card);
P.W.16- Arjun Vithal Gaikwad (Station House Officer);
P.W.17- Pandurang Ramchandra Patil (Police Inspector attached to
Sewree Police Station);
P.W.18- Popat Ramrao Tubhe (Police Inspector attached to Sewree
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Police Station).
3) Thereafter, the trial Court recorded the statement of the
Appellant under Section 313 of the Code of Criminal Procedure, 1973
('Cr.P.C.'). The defence of the Appellant was that of false implication.
The learned Sessions Judge after hearing the parties vide judgment and
order dated 12th May 2009 convicted the Appellant. He was convicted
for the offences punishable under Sections 302 and 201 of the Indian
Penal Code, 1860 and Section 37(1) read with 135 of the Bombay
Police Act. He was sentenced on the same day to suffer rigorous
imprisonment for life. Aggrieved by the conviction, the Appellant
preferred the present Appeal.
4) The prosecution story in brief is that there were quarrels
between the deceased and the Appellant over financial transactions.
The deceased went missing in the intervening night of 24 th and 25th
August 2008. The Appellant informed his relatives in UP that he was
missing who in turn conveyed the same to the First Informant.
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Appellant was arrested and the dead body was found from a drainage
of Meson Road, BPT Quarters, Sanjay Nagar, Mumbai.
5) Admittedly, the present case is based on circumstantial
evidence. The prosecution sought to bring home the charges levelled
against the Appellant based on certain circumstances. As to when, on
the strength of circumstantial evidence, a conviction can be sustained,
the law is well settled, i.e., the circumstances from which the
conclusion of the guilt is to be drawn should in the first instance be
fully established; the circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; the circumstances
taken cumulatively should form a chain so far complete that there is
no escape from the conclusion that within all human probabilities the
crime was committed by the accused; the circumstances should be
consistent only with the hypothesis regarding the guilt of the accused;
and they must exclude every possible hypothesis except the one to be
proved.
203-Appeal-294-2015.doc
6) The Supreme Court in its landmark decision in the matter
of Sharad Birdhichand Sarda v. State of Maharashtra 1 held that the
circumstances from which the conclusion of the guilt is to be drawn
should be fully established meaning thereby that they 'must' or
'should' and not 'may be' established.
7) In addition to the above, while dealing with a criminal
trial, a Court must not be oblivious to the most fundamental principle
of criminal jurisprudence that the accused 'must be' and not merely
'may be' guilty before convicting him. In Shivaji Sahabrao Bobade v.
State of Maharashtra2, the Supreme Court elaborating the above
principle, observed that the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure conclusions.
8) Adding on to the aforesaid legal principles, in Devi Lal v.
State of Rajasthan3, a three-judge Bench of the Apex Court held that in
a case based on circumstantial evidence where two views are possible,
1 (1984) 4 SCC 116
2 1973 (2) SCC 793
3 (2019) 19 SCC 447
203-Appeal-294-2015.doc
one pointing to the guilt and the other to his innocence, the accused is
entitled to the benefit of one which is favorable to him. The relevant
portion of the judgment is extracted below: -
"18. ... Though the materials on record hold some
suspicion towards them, but the prosecution has failed
to elevate its case from the realm of "may be true" to the
plane of "must be true" as is indispensably required in
law for conviction on a criminal charge. It is trite to
state that in a criminal trial, suspicion, howsoever grave,
cannot substitute proof.
19. ... in the case of circumstantial evidence, two views
are possible on the case of record, one pointing to the
guilt of the accused and the other his innocence. The
accused is indeed entitled to have the benefit of one
which is favourable to him."
9) Bearing in mind the aforesaid legal principles, we
proceeded to examine the following two issues:
A) Whether incriminating circumstances against the
Appellant are proved beyond reasonable doubt and;
B) If so, whether they, individually or cumulatively,
unerringly point towards the guilt of the accused.
203-Appeal-294-2015.doc
10) Mr. Apte, learned counsel for the Appellant submits that the
prosecution case rests on circumstantial evidence and that the prosecution
has failed to prove each of the circumstance relied upon by them. Mr. Apte
submitted that even the prosecution has miserably failed to prove the
identity of the dead body as being that of the deceased. He submitted that
having regard to the same, the Appellant be acquitted of the offence with
which he is charged.
Mrs. Shinde, learned A.P.P submitted that there is no infirmity
in the impugned judgment and order convicting and sentencing the
Appellant and as such, no interference is warranted in the impugned
judgment and order.
11) In the instant case, the key circumstances on the basis
whereof the prosecution bases its case are;
a) Identification of the deceased's body on the strength
of his clothes and belt as identified by P.W.1;
b) Quarrels between the deceased and the Appellant
over financial transactions;
203-Appeal-294-2015.doc
c) Suspicious response of the Appellant on the deceased
going missing and the Appellant guiding the police to
the place where he had thrown the dead body in the
nala;
d) Recovery of a 'Koyta' (Sickle), Appellant's clothes
and wallet of the deceased, at the instance of the
Appellant from his rented room under Section 27 of
the Indian Evidence Act, 1872.
e) Recovery of the deceased's mobile phone from
P.W.11 who bought it from the Appellant, also at the
instance of the Appellant.
12) Having enumerated the incriminating circumstances relied
upon by the prosecution, we shall now examine as to whether the
aforesaid circumstances unerringly point to the guilt of the Appellant
and rule out all any other hypothesis except the one consistent with
the Appellant's guilt.
203-Appeal-294-2015.doc
13) P.W.1 has identified the body of the deceased only on the
basis of his clothes and a black colour belt. Admittedly, the body was
found after a period of about 16 days from the date on which he went
missing. The body was decomposed. P.W.1 has stated that he was in
Pune when he learnt that the deceased was missing and returned on 3 rd
September 2008. This clearly indicates that P.W.1 had not seen the
deceased on the day he went missing and hence, he would be unaware
as to what the deceased was wearing on the fateful day. The
description of the clothes and the belt is extremely generic. There is
nothing unique about either the clothes or the colour of the belt. The
prosecution has not examined any person nor brought on record what
clothes the deceased was wearing when he went missing. It is also
pertinent to note that P.W.1 had not disclosed in his complaint (FIR),
that his brother (deceased) was wearing a belt. Thus, there is an
omission to that effect. Hence, the identification of the body of the
deceased by P.W.1 only based on his clothing and belt of black colour is
quite suspect. The only basis of identification of the body is the
statement of the Appellant that he had thrown the dead body in the
203-Appeal-294-2015.doc
nala.
14) The Post-Mortem (Exhibit 44) was conducted at KEM
Hospital. Column 5 clearly states that the body was skeletonized; the
body was soiled with liquified soft tissues and surrounding debris; and
maggots were crawling all over. P.W.14-Dr. Dhirendra Shantilal Balsara
deposed that while performing the Post-Mortem, he could not see
external injuries due to skeletonization of the body. In his cross-
examination, he stated that the body could not be identified because of
decomposition. Considering the fact, that the body was identified only
on the basis of the testimony of P.W.1, who himself had not seen what
the deceased was wearing when he disappeared, there exists serious
doubts regarding the identity of the dead body and the prosecution
case in this regard is riddled with doubts. It may also be noted that the
dead body was not recovered at the instance of the Appellant, which
can be treated as being discovered as per Section 27 of the Indian
Evidence Act, 1872. In this regard, there is also a discrepancy in the
evidence of the witnesses as to how the dead body was found i.e. by
203-Appeal-294-2015.doc
the Police or the Appellant.
15) It is pertinent to note that P.W.3-Panch stated in his
testimony that he was shown two concrete stones at the spot of the
incident. P.W.6, another brother of the deceased stated in his chief
examination that the Appellant had taken the Police to the place where
he had thrown the body of the deceased after the murder, and he had
also shown the stone by which he assaulted the deceased. P.W.6 also
stated that the face of the deceased was not in a condition to be
identified. Contrary to his statement in the chief examination, he
admits in the cross examination that he did not go at the spot of the
incident and only came to know from the Police that the Appellant
showed the said place.
16) Thus, the prosecution has failed to prove that the dead
body was that of the deceased and that the Appellant had caused the
death of the deceased. Unfortunately, the trial Court failed to
appreciate the very lack of identification of the dead body itself and
has not dealt with this aspect at all.
203-Appeal-294-2015.doc
17) It is also pertinent to note, in addition to the aforesaid that
in the Post-Mortem report, in Column 5, it is noted that "On 24/08/08,
after 11.00 hrs the victim was killed when he was assaulted with hands and
stone." However, the prosecution rests its case on a Memorandum
Panchanama of the Appellant leading to the discovery of a 'Koyta'
being recovered from the room rented by deceased and the Appellant,
along with the deceased's wallet and the Appellant's washed clothes
with faded blood stains. Juxtaposed with the statement of witnesses
and the Post-Mortem report, the discovery of a 'Koyta' at the behest of
the Appellant throws the case of the prosecution in a wringer. The
Appellant supposedly leading the Police to discover the purported
murder weapon and the Post-Mortem report and the statement of
witnesses indicating the murder to have been caused by bludgeoning
by stone are completely contradictory to each other. The prosecution
has failed to firmly assert and prove the murder weapon to be either
the stones or the 'Koyta', in which circumstance, the recovery of the
same, appears to be doubtful.
203-Appeal-294-2015.doc
18) The prosecution has also based its case on recovery of a
mobile phone from P.W.11, who deposed that he purchased a mobile
phone of 'China' make from the Appellant on 28 th August 2008. He
says that he did not verify the condition of the mobile. He also stated
that he did not operate the phone but only heard songs on the mobile.
It is the prosecution case that the mobile belonged to the deceased and
the Appellant took it from him after killing him and sold it to P.W.11.
To establish this, the prosecution examined P.W.12, a shopkeeper of
Hello Mobile shop and P.W.11 who purchased the mobile from the
Appellant. Most importantly, P.W.12 deposed that he sold one China
mobile no.H-66 to one Riyaz, i.e., P.W.7 and that he gave a bill to
Riyaz in his name. There is no index number on the phone as it is
China make and the model is freely available in the market. To
complete the chain of the phone, the prosecution relied on the
deposition of P.W.7, who stated that the phone was purchased by the
deceased but in the name of P.W.7. He also stated that the phone was
of China make. He identified a receipt of purchase of phone from
203-Appeal-294-2015.doc
Hello mobile shop issued in his own name. We are circumspect about
the reliance of the prosecution on the recovery of mobile phone for
the reason that neither the phone was purchased in the name of the
deceased, nor was there any SIM card in the phone to identify the
subscriber. Furthermore, there was no attempt on the part of the
Investigation agency to ascertain the Model number, IMEI number on
the phone. The make of the phone is freely available in the market.
There is no special description of the phone to attribute that it
belonged to the deceased. Thus, the prosecution theory in this regard
also fails.
19) The prosecution further relied upon the Memorandum
Panchanamas at Exhibits 46 and 47 to suggest that the Appellant took
the Police to a garbage bin where he purportedly threw away the SIM
card. However, P.W.15 clearly deposed that a search was made in the
dustbin, but no SIM card was found. This further demolishes the case
of the prosecution pertaining to the recovery of the phone as an
indicator of the guilt of the Appellant.
203-Appeal-294-2015.doc
20) Even the circumstance of motive has not been proved by
the prosecution by leading cogent evidence. Except the bare evidence
of P.W.1-Mohd. Islam Abdul Kudus Rayani (Brother of the deceased)
that there was a financial transaction between the Appellant and the
deceased, no evidence has come on record as to what was the
transaction or nature of the transaction.
21) Last, but not the least, is the report of the Forensic Science
Laboratory ('FSL'), Kalina, Mumbai. Strangely, a pubic hair sample of
the deceased was sent to the FSL to establish identity of the deceased.
But, no comparable sample was sent to establish a match. The result of
the analysis at Exhibit 60 clearly states that 'No DNA profile is
obtained from the contents of Exhibit 1'. The prosecution also sent
the concrete cement stone, plastic tray, earth, hair found at the place of
the incident, Koyta, clothes of the deceased and the Appellant and the
belt to the FSL. The result of the analysis has been returned as
'Inconclusive'. Only the blood group of the Appellant has been found
203-Appeal-294-2015.doc
to be 'A', which does not in anyway further the prosecution case. The
washed shirt with faded blood stains, purportedly recovered at the
behest of the Appellant, was not even tested for a match with the
blood group of the deceased. Thus, even the FSL report does not carry
the prosecution case to any logical conclusion.
22) The evidence relied upon by the prosecution in its entirety
fails to bring home the guilt to the Appellant. There is a dead body, but
its identity is not established beyond reasonable doubt. It is apparent
that the Police tailored their investigation with complete indifference
to the essential norms in gathering evidence, leaving important leads
unchecked and glossing over leads that established nothing. The
Prosecution ought to have established the weapon of the crime and the
identity of the dead body. It is very unfortunate that a pubic hair
sample of the deceased was sent to the FSL to ascertain the DNA but
no comparable sample was sent with it, which would have helped to
establish the identity of the dead body. The blood found on the stones
as a weapon of assault is also not tested to establish to whom it
203-Appeal-294-2015.doc
belonged. The faded blood from the stains on the Appellant's shirt is
not established to be that of either the Appellant or the deceased. All
these lapses in investigation have ultimately resulted in failing to
present a cogent, conceivable and foolproof chain of events pointing to
the guilt of the Appellant, with no possibility of any other hypothesis.
This leaves us with no option but to extend the benefit of doubt to the
Appellant. The principle of proof beyond reasonable doubt and more
so, in a case of circumstantial evidence must prevail and be given
priority.
23) In view of the foregoing discussion, we find that yawning
infirmities and gaps in the chain of circumstantial evidence in this case
warrants acquittal of the Appellant by giving him the benefit of doubt.
The degree of proof required to hold him guilty beyond reasonable
doubt, on the strength of the circumstantial evidence available in this
case, is clearly not established. There is a great divide between the
'must have' committed the crime from 'may have' committed the
crime.
203-Appeal-294-2015.doc
24) Considering the aforesaid, we pass the following order;
ORDER
(i) The Appeal is allowed.
(ii) The judgment and order dated 12th May 2009 passed
by the 7th Ad-hoc Additional Sessions Judge, Sessions Court for
Greater Bombay at Sewree, Mumbai in Sessions Case No.797 of
2008 convicting and sentencing the Appellant is quashed and set
aside.
(iii) The Appellant be set at liberty forthwith if he is not
required in connection with any other case.
(iv) The Appeal is accordingly disposed of.
(v) In view of the disposal of the Appeal, nothing
survives in the Interim Applications therein and the same are
also disposed of.
203-Appeal-294-2015.doc
25) All parties to act on an authenticated copy of this
judgment.
[DR. NEELA GOKHALE, J.] [REVATI MOHITE DERE, J.]
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2025.01.08
10:33:47
+0530
