Bombay High Court
Atanu Purkayastha vs Sajjad Ahmed Abdul Aziz Mugal @ Pathan ... on 10 November, 2025
Author: A.S. Gadkari
Bench: A.S. Gadkari
2025:BHC-AS:47622
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.678 OF 2014
The State of Maharashtra .....Appellant
Vs.
Sajjad Ahmed Abdul Aziz Mugal @Pathan .....Respondent
WITH
CRIMINAL APPEAL NO.491 OF 2015
Sajjad Ahmed Abdul Aziz Mugal @Pathan .....Appellant
Vs.
The State of Maharashtra .....Respondent
WITH
CRIMINAL REVISION APPLICATION (ST) NO.10473 OF 2022
Atanu Purkayastha .....Applicant
Vs.
1. Sajjad Ahmed Abdul Aziz Mugal @Pathan
2. The State of Maharashtra .....Respondents
WITH
INTERIM APPLICATION NO.2904 OF 2022
IN
CRIMINAL REVISION APPLICATION (ST) NO.10473 OF 2022
Atanu Purkayastha .....Applicant
Vs.
1. Sajjad Ahmed Abdul Aziz Mugal @Pathan
2. The State of Maharashtra .....Respondents
Mr. Manoj S. Mohite, Senior Advocate (Spl.P.P.) a/w Ms. Priyanka
Chavan and Ms. Ilsa Shaikh, for the State.
Dr. Yug Mohit Chaudhry a/w Gaurav Bhawnani and Mr. Anush Shetty
i/by Mr. Khan Abdul Wahab, for Appellant in Appeal No.491/2015
and Respondent in Appeal No.678/2014 and Revision (St)
No.10473/2022.
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Mr. Abhishek Yende a/w Mr. Rishikesh Y. Dube, for Applicant in
Revision (St) No.10473/2022 a/w IA 2904/2022.
Mr. Mahesh Tawade, ACP, Traffic South Division.
Mr. Nitin N. Kumbhar, P.I., Unit-4, Crime Branch, Mumbai.
Mr. Sanjay B. Nikam, P.I., Unit-4, Crime Branch, Mumbai.
CORAM : A.S. GADKARI AND
DR. NEELA GOKHALE, JJ.
RESERVED ON : 14th AUGUST 2025.
PRONOUNCED ON : 10TH NOVEMBER 2025.
JUDGMENT:
- (Per Dr.Neela Gokhale, J.)
For the convenience of the exposition, this judgment is divided into
the following parts: -
INDEX
I. FACTUAL MATRIX .................................................................. 5
II. SUBMISSIONS OF THE PARTIES ........................................ 13
A. Submissions on behalf of the Appellant.................................... 13
B. Decisions relied upon by the learned counsel for the Appellant... 25
C. Submissions on behalf of the Respondent-State....................... 28
D. Decisions relied upon by the learned counsel for the
Respondent....................................................................... 41
E. Submissions on behalf of Revision Applicant.......................... 42
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III. POINTS FOR DETERMINATION....................................... 44
IV. ANALYSIS...................................................................... 45
A. Law laid down in cases involving evidence of circumstantial nature....45
B. The evidence on record indicting Sajjad................................... 49
C. On motive ........................................................................... 50
D. Sajjad's presence at the spot of the crime & Law on the Last Seen
theory.................................................................................... 53
E. Seizure of Articles; chain of custody / absence of wax seal ............... 59
F. On CA Report regarding DNA ................................................. 62
G. On recovery of weapon.......................................................... 62
H. On recovery of other articles................................................... 63
I. Extrajudicial confession........................................................... 66
J. Contradictory statements given by Sajjad and unexplained injuries on his
person.................................................................................... 71
K. On CCTV footage / fingerprint & footprints............................... 73
L. Postmortem Report................................................................ 74
M. On applicability of Section 464 Cr.PC...................................... 74
V. FINAL CONCLUSION .................................................... 75
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1. The Appellants and the Revision Applicant in the present
matter assail the Judgment and Order dated 7 th July, 2014 passed by
the learned Addl. Sessions Judge, City Civil & Sessions Court, Greater
Bombay in Sessions Case No.738/2012. By the said judgment, the
Appellant-convict ("Sajjad") stands convicted for offenses punishable
under Sections 302, 354 and 449 of the Indian Penal Code, 1860 (for
short IPC) and under Section 37 (1) (a) read with Section 135 of the
Bombay Police Act, 1951. For the offense punishable under Section
302 of the IPC, Sajjad is sentenced to suffer rigorous imprisonment for
life, to mean imprisonment for the remainder of his natural life; for
the offense punishable under Section 354 of the IPC, he is sentenced
to suffer rigorous imprisonment for 5 years with a fine of Rs.3,000/-
and in default to suffer rigorous imprisonment of 6 months; and for
the offense punishable under Section 37(1) (a) read with Section 135
of Bombay Police Act, 1951, he is sentenced to suffer simple
imprisonment of 1 year with fine of Rs.5,000/- in default of which to
suffer simple imprisonment for 2 months. All substantive sentences of
imprisonment are directed to run consecutively.
2. The State of Maharashtra in Criminal Appeal
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No.678/2014 and the Revision Applicant, the father of the deceased
victim, in Criminal Revision Application (St) No.10473/2022, seek
enhancement of the sentence to capital punishment. The Appellant in
Criminal Appeal No.491/2015 is the sole convict assailing his
conviction. Since the Appeals/Revision Application assail the same
Judgment and Order, all are being disposed together by this common
Judgment and Order.
I. FACTUAL MATRIX:
3. The facts of the case giving rise to filing of Appeals can be
summarized as under:
i) A young lady Advocate namely Pallavi Purkayastha
(victim/deceased) was sharing a rented flat No.1601, 'B' wing,
16th Floor, Himalayan Height Building, Bhakti Park, Wadala (E),
Mumbai with her friend Avik Alok Sengupta (informant). They
were to marry. Both of them were law graduates. Pallavi was
working in a company as a legal Manager. Her work timings were
from 11:00 a.m. to 05:00 p.m. Avik was employed in a law firm
and his work timings were not fixed. He usually left home in the
morning at around 9:30 a.m. and returned at any time around
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10:00 p.m. or later.
ii) On 8th August, 2012, Avik left for his job and Pallavi
was at home. They spoke on the phone during the day. In the late
evening, Avik told Pallavi that he will be late as he had to
complete an assignment. At that time Pallavi told him that there
was no electricity in the house. The lights went off intermittently.
Avik asked her to inform the guard and call the electrician. After
dropping his colleagues Avik returned home, at 5:30 am, next day
i.e., on 9th August, 2012. When he exited the lift, he saw blood
trailing outside the door of his flat and the adjacent flat. The door
of his flat was slightly ajar. He entered the flat and saw Pallavi
lying on the carpet, in a pool of blood. He tried to call his friends
and neighbours but there was no response. Then he came to the
ground floor and informed the watchman. Two persons namely
Mr. Pathak and his wife came to the flat and switched on the
lights. Mr. Pathak called the Police control room. All of them
waited in the flat till the Police came. Thereafter, Pallavi was
taken to the Sion Hospital. Pallavi was declared dead by the
doctors and thus, Avik lodged a complaint with the Police. FIR
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was initially registered against an unknown person. However,
during the enquiry, a watchman in the society disclosed to the
Police that Sajjad Pathan, another security guard of the society,
had committed the offense. On 10 th August, 2012, the Police
arrested Sajjad, under a Panchanama (Exhibit-112).
iii) Crime No.181/2012 was registered on 9th August,
2012 at Wadala T.T. Police Station against Sajjad for offenses
punishable under Sections 302 and 449 of the IPC. During the
course of investigation, the crime was transferred to DCB - CID,
Unit-VI which registered it as C.R. No.79/2012 adding Section 37
(1)(a) r/w Section 135 of the Bombay Police Act, 1951. The
enquiry was initially conducted by the Wadala T.T. Police Station
and thereafter transferred to the Crime Branch. One Mr. Kanade,
was the I.O. when the investigation was being conducted by
Wadala T.T. Police Station. Mr. Kanade conducted the Inquest
Panchanama (Exhibit 59), Spot Panchanama (Exhibit 64) and
Seizure Panchanama of the clothes of deceased (Exhibit 55) and
handed over the investigation to API Mahesh Tawde of the Crime
Branch (PW-39). Mr.Tawade proceeded to conduct Sajjad's
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physical search, recorded Memorandum Panchanama of Sajjad's
clothes, foot wear and the keys of Pallavi's house (Exhibit 68),
Seizure Panchanamas (Exhibit 68A), Memorandum Panchanama
of the knife (Exhibit 85) and the Seizure Panchnama (Exhibit
85A), recorded statements of the witnesses, sent samples for CA
and DNA test, etc. On completion of the investigation, the charge
sheet was filed before the Metropolitan Magistrate Esplanade,
37th Court, Mumbai on 3rd November, 2012.
iv) As the offense punishable under Section 302 IPC,
being exclusively triable by the Sessions Court, the case was
committed to the Court of Sessions by the learned Magistrate
under Section 209 of the Cr.P.C. for trial.
v) The Sessions Court i.e. the trial Court framed
charges on 24th April, 2013 against Sajjad for offenses punishable
under Section 302, 354, 449 of the IPC and Section 37(1)(a) read
with Section 135 of the Bombay Police Act, 1951.
vi) On framing charges, Sajjad pleaded not guilty and
claimed to be tried.
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vii) The prosecution examined 39 witnesses in support
of its case. The witnesses examined by the prosecution are as
under:
1. PW-1 :Mr. Avik Alok Sengupta, the Complainant.
2. PW-2: Darshan Singh Dilip Singh Bamra, an independent
witness.
3. PW-3: Mr. Yogesh Shrikrishna Rajapurkar, Nodal Officer
of Airtel Company.
4. PW-4: Kunal Kishore Shah, Pallavi's neighbour.
5. PW-5: Vikas Narayan Phulkar, Assistant Nodal Officer of
Vodafone India Limited.
6. PW-6: Sunil Subhash Chandra Tiwari, Nodal Officer of
Aircel Limited.
7. PW-7: Rakeshchandra Ramdujh Prajapati, Nodal Officer
of Loop Mobile Company.
8. PW-8: Shekhar Vinayak Palande, Nodal Officer of Tata
Tele Services Maharashtra Limited.
9. PW-9: Sadashiv Lingayya Shetty, Panch witness of seizure
panchanama of Pallavi's clothes.
10. PW-10: Mr. Ahmed Ismail Shaikh, Driver of neighbour of
Pallavi.
11. PW-11: Ms. Jagriti Mohata, Panch witness of Inquest
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Panchanama.
12. PW-12: Vinit Vedprakash Bakshi, Pallavi's friend's father.
13. PW-13: Pramila Ashrafilal Gupta, an independent witness.
14. PW-14: Mosas Rao Parly, Panch witness of Spot
Panchanama.
15. PW-15: Algarson Krishnan Devendra, Panch witness of
Recovery Panchanama.
16. PW-16: Satishkumar Tangwel Devendre, Photographer,
who has taken the photographs of Pallavi's body.
17. PW-17: Mr. Kartik Shivaji Devndra, Panch Witness of
verification of keys recovered at Sajjad's instance.
18. PW-18: Dr. Rajesh Chandrakant Dere, who has conducted
postmortem of Pallavi.
19. PW-19: Shabbir Abdul Jalil Khan, Security Supervisor of
Ivory Tower CHS, where Avik and Pallavi were staying.
20. PW-20: Mohammed Sadik Mir, Security Supervisor of
Ivory Tower CHS, where Avik and Pallavi were staying.
21. PW-21: Rupali Suresh Vaidya, Pallavi's colleague.
22. PW-22, Mohammed Khalid Muneer Hussain Khan,
Security Supervisor of Ivory Tower CHS, where Avik and
Pallavi were staying.
23. PW-23: Subramaniam Muttu Devendra, Panch Witness of
Memorandum Panchanama.
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24. PW-24: HC 4887, Mr. Prakash Gulabrao Shirke, Police
witness, who had published Prohibitory Order of Bombay
Police Act.
25. PW-25: HC-50639, Mr. Sakharam Dattu Redekar, Police
Witness, who had sent the articles to Kalina Forensic Lab
for C.A.
26. PW-26: Dr. Amarsingh Anandrao Rathod, who had
examined Sajjad.
27. PW-27: ASI Narayan Satva Suryawanshi, Police witness,
who had sent articles to Kalina Forensic Lab for C.A.
28. PW-28: Ramsevak Surajmali Gaue, independent witness.
29. PW-29: PI Mr. Vinayak Bajirao Vetal, Police witness.
30. PW-30: Sr. PI Mr. Shirish Sudhakar Sawant, Police
witness.
31. PW-31: Mangesh Madhukar Pathak, neighbour of Pallavi.
32. PW-32: Mr. Dharmesh Mewalal Gupta, wireman working
in Ivory Tower.
33. PW-33: Dr. Kiran Sambhaji Kalyankar, who has collected
blood samples of convict for DNA test.
34. PW-34: PSI Mr. Ganesh Madhukar Kanade, SHO in
Walada T.T. Police Station and 1st I.O.
35. PW-35: Siddharth Deepak Desai, Avik's.
36. PW-36: Kannan Durai Devendra, Panch witness of
Panchanama of Sajjad's physical search.
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37. PW-37: API Mr. Dhanaji Laxman Jagdale, Police witness,
who has forwarded muddemal for C.A., which was
collected from Sion Hospital and from the spot of
incident alongwith forwarding letter.
38. PW-38: Shrikant Hanumant Lade, Assistant Director of
Kalina Forensic Lab, Kalina, Mumbai.
39. PW-39: API Mr. Mahesh Ramesh Tawade, the 2nd I.O.
viii) Upon conclusion of recording of the evidence,
Sajjad's statement under Section 313 of the Cr.PC was recorded
by the Trial Court. Upon appreciation of the oral and
documentary evidence on record, the Trial Court recorded a
finding of guilt of Sajjad in respect of the offenses as charged and
sentenced him to life imprisonment till the end of his natural
life.
ix) The State, by this Appeal and the victims' father, by
the Revision Application seek enhancement of the sentence to
capital punishment. Sajjad has assailed his conviction. It is in
these circumstances that the parties are before us with the
present proceedings.
4. Mr. Manoj Mohite, learned Senior Counsel and Special
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Public Prosecutor represented the State. Dr. Yug Chaudhry represented
the Appellant in Appeal No.491/2015 and Respondent in Appeal
No.678/2014 and Revision (St) No.10473/2022 and Mr. Abhishek
Yende represented the Revision Applicant.
II. SUBMISSIONS OF THE PARTIES:
A. Submissions on behalf of the Appellant:
5. Dr. Yug Chaudhry, learned counsel made the following
submissions:-
1) The case is purely based on circumstantial evidence
1.1) Dr. Chaudhry submits that the case against Sajjad is purely based
on circumstantial evidence. According to him, the prosecution's case is
based on the following; i) testimony of witnesses that Sajjad was seen
outside the deceased's flat immediately before her death; ii) recovery
of clothes with blood stains of deceased, keys to the house of the
deceased, chappals with blood stains, blood stained knife; extra
judicial confessions of PW-10 and PW-19; iii) DNA of Sajjad on the
cluster of hair found in the flat; iv) the CA and FSL reports; v) injuries
found on Sajjad, etc. hence, the entire evidence is circumstantial in
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nature.
1.2) Dr. Chaudhry submits that it is a well established principle of
law that, in cases of circumstantial evidence, the circumstances against
an accused ought to be conclusive in nature and there must be a chain
of evidence so complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and must
show that in all human probability, the act must be done by the
accused. According to Dr. Chaudhry, the chain of circumstances is far
from complete against Sajjad.
1.3) According to Dr. Chaudhry, Sajjad's presence is admitted
but, there were other watchmen on duty as well. There is no
explanation as to why Pallavi called Sajjad. The entire sequence of
CDR shows the calls between the Sajjad and Pallavi and between the
other watchman and electrician, with Pallavi. In case, Sajjad had any
lascivious intent towards Pallavi, Dr. Chaudhry submits that Sajjad
would never convey to PW-19 of Pallavi's request and he would have
gone alone to her house. Further he submits that, Pallavi was very
much alive even after 1:30 am, since she and Avik were exchanging
messages on their blackberry mobile phones. PW-4 witnessed the
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presence of Sajjad outside their flats at 1:30 am but did not hear any
screams from Pallavi. Thus, all these aspects fail to place Sajjad at the
scene of crime.
2) Failure to prove motive
2.1) As per Dr. Chaudhry, had Sajjad wanted to take advantage
of Pallavi, he would have never informed PW-32. In any case, if Pallavi
was uncomfortable with Sajjad, she would have never sought his help
in restoring the electricity in the flat.
2.2) Dr. Chaudhry further argued that neither PW-22 nor PW-
19 disclosed an alleged remark made by Sajjad to the Police when they
found Pallavi lying in a pool of blood in her flat. So also, he submits
that PW-22 and Sajjad were not such great friends that he was in the
habit of sharing secrets with him.
2.3) There is no material to establish that the string of shorts of
Pallavi was torn in the course of the alleged incident. The string could
have been torn earlier as well. Also Pallavi's body was seen at the spot
by PW-1, PW-19, PW-22 and PW-34 prior to taking her to the
Hospital and none of these witnesses deposed regarding the short's
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string being torn.
3) Extrajudicial confessions
3.1) In response to the prosecution case regarding Sajjad calling
PW-19 for a loan of Rs.10,000/- to travel to J&K, and also confiding
in PW-10, a driver of another resident that he had murdered Pallavi,
Dr. Chaudhry submits that none of these so called extra-judicial
confessions inspire confidence and hence must be discarded.
3.2) Dr. Chaudhry submitted that unless an extrajudicial
confession is absolutely credible and iron cast and unless the confessor
had a compelling reason to confess, it is hazardous to rely on such
evidence. It is also counter intuitive that Sajjad will confess to PW-10
or PW-19 when neither of them were his good friends. In fact,
confessing would make it less likely that PW 10 or PW-19 would give
him money, for fear of being an accomplice. Even Sajjad's passbook
indicates that he had Rs.8,000/- balance in his bank account and had
no need to make calls and confess for the purpose of getting money.
This story of the prosecution is thus unbelievable according to Dr.
Chaudhry.
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3.3) The evidence of PW-19 does not inspire confidence for the
reason that when he met the Police in Pallavi's flat and upon seeing
Pallavi lying in a pool of blood, he informed the Police regarding
Sajjad's confession on the phone. Despite this, the Police failed to act
on the said information. The Investigating Officer (PW-34) admits in
his cross-examination that he failed to record PW-19's statement when
he made the said disclosure and recorded it only after 10 hours.
Similarly, at the time of second phone call, PW-19 was at the Hospital
and he disclosed the conversation with Sajjad immediately to the
Police. PW-34 also failed to act on this statement. No FIR was
registered for 2 hours after the disclosure. Sajjad was not initially
named in the FIR. No attempt was made to arrest him nor any trap
was laid to ensnare him by using PW-20. Thus, the unnatural delay in
recording the statement of witnesses and the conduct of the
Investigating Officer negates the theory of the prosecution.
3.4) Dr. Chaudhry submitted that even the evidence of PW-10
does not inspire the confidence. The sequence of CDR details between
Sajjad and PW - 10 fail to lend credence to the prosecution story
regarding the whereabouts of the said witness on 9 th August, 2012.
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Dr. Chaudhry insinuates that the testimony of PW-10 is made up for
the reason that the CDR details show PW-10 receiving a call from the
Crime Branch after which he went to the Police Station of Wadala
raising a cloud of doubt on his testimony. Dr. Chaudhry has referred
to PW-10 as a complete liar as he had claimed that on 9 th August,
2012, he was at home and was suffering from loose motions. Despite
this, the CDR of his phone calls reveal that he has traveled to the
Crime Branch. Moreover, PW-10 was only a driver of another resident
of Bhakti Park and did not even remember the vehicle number of his
employer's car neither did he remember the model of the said car.
PW-10's answers pertaining to the flat number and name of building
relating to Pallavi's flat are wholly vague and evasive. Thus, according
to Dr. Chaudhry, PW-10 is a got up witness and his evidence must be
discarded.
4) Seizure of Sajjad's hair from Pallavi's hand
4.1) Dr. Chaudhry submitted that, the prosecution story
regarding discovery of hair from Pallavi's hands, chest and back is
ludicrous and is bereft of any documentary evidence, panchanama or
witness. PW-1, PW-4, PW-22, PW-31 and PW-34 have not mentioned
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any hair strand in Pallavi's hands, despite all of them seeing her body
at the spot. Even the ADR is silent about any hair found on the body.
Photographs of body taken by PW-16 at Sion Hospital do not show
the hands nor the hair. The Inquest panchanama (Exhibit-59) does not
mention any hair in Pallavi's hands. Contrary to this, the Inquest
panchanama describes the number of injuries on Pallavi's right hand
and palm. Had there been any hair in her hand, the same would have
been noticed.
4.2) External injuries are detailed in column 17 of the post-
mortem notes (Exhibit-77). 5 injuries are noted on Pallavi's hands
including injuries on the ring and middle finger but, there is no
mention of finding hair in her hands. The biological samples also do
not mention hair and the medical officer's evidence is silent about
finding any hair. Dr. Chaudhry thus, raises a question as to where is
the hair? According to him, the chain of custody with respect to hair
in hand is also not established. Thus, the prosecution is unable to
prove Sajjad's culpability in commission of crime.
5) Seizure of Sajjad's hair from the spot of the incident
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5.1) Dr. Chaudhry submitted that the prosecution's case is that
a bunch of hair was found in a pool of blood leading towards Pallavi's
bedroom. DNA establishes this hair to be that of Sajjad. Dr. Chaudhry
complains that there was no wax seal on the hair sample. According to
him, only paper labels were used to seal the same. Dr. Chaudhry has
placed reliance on the Bombay Police Manual to buttress that it is
mandatory to seal articles using wax and brass seal. In a matter where
death sentence is sought, the State cannot seek laxity or indulgence in
complying with its own procedure.
5.2) In fact, PW-39 in his testimony admits that wax seals were
used to seal the knife, stated to be the murder weapon. Thus, the
Police are well aware of the requirement of using wax seal. Not sealing
other evidence with wax indicates lapse in investigation and no
reliance can be placed on such evidence.
6) Seizure from Sajjad under Section 27 of the Indian Evidence Act
('Evidence Act') namely i) blood stained knife, ii) blood stained clothes
and iii) keys of Pallavi's flat
6.1) According to Dr. Chaudhry, Sajjad is alleged to have made
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a disclosure statement, leading the Police to a cabin between two
wings of Julian Alps building in the Society. Dr. Chaudhry argued that,
recoveries under Section 27 of the Evidence Act must be viewed with
caution as the provision is inherently vulnerable to abuse. According
to Dr. Chaudhry, it is unbelievable that Sajjad would hide such an
incriminating evidence in the society itself and that too in separate
locations. A natural course of action for him would be to dispose them
off in a garbage dump. Dr. Chaudhry has brought to our attention that
the testimony of PW-36 - the personal search panch, is silent about
the modus operandi regarding the disclosure statement of Sajjad.
When Sajjad was taken for medical examination, he allegedly
confessed to the doctor that, he had entered the flat by climbing up
pipeline upto the 16th floor, through the bathroom. This is contrary to
the disclosure statement and hence the ensuing recovery is tarnished.
The confession given to the doctor and the disclosure statement
contradict each other and hence casts a doubt on the genuineness of
the disclosures.
7) Panchanamas do not inspire confidence
7.1) The Investigating Officer (PW-39) failed to obtain
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fingerprints from the knife handle and hence cannot be linked to the
accused. The knife was recovered from a shoe rack on 3 rd floor of the
building pursuant to the disclosure statement. The ownership of the
shoe rack is not established.
7.2) Panch (PW-23) is dishonest since he stated his age as 22
years in the panchanama while deposing the same to be 32 years
before the Court.
7.3) Panch (PW-23) at one point of time said that, he was going
to his in-laws' house to bring his mobile phone and in his cross-
examination, he said that his phone was at home all day.
7.4) The keys (Art.10) appear to have been planted by the
Investigating Officer. PW-1 deposed that he handed the keys over to
the Investigating Officer (PW-34) on 9 th August, 2012. The keys were
not sealed and no panchanama was drawn. He admitted that PW-1
gave him the keys but he did not make any entry in the case diary nor
deposited it in the Malkhana. Failure to so do, can only mean that the
keys were taken in custody to make duplicates and misuse them to be
shown as 'recovered' from Sajjad.
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7.5) The clothes recovered from the box are not proved to
have been of Sajjad as they were not shown to the other guards, nor
any witness has stated the same to have belonged to Sajjad.
8) Injuries on the person of Sajjad
8.1) The investigation was transferred to Crime Branch on 10 th
August, 2012. The Investigating Officer (PW-39) stated that he read
the papers and then directed Sajjad to be brought to the Police Station.
Sajjad was picked up from Bhakti park at around 12:30 p.m. on 10 th
August, 2012. Pursuant to a personal search panchanama, he was
taken for medical examination. There were five injuries found on
Sajjad. In response to the prosecution case that, the said injuries were
caused by the victim during a scuffle but, no amplifiable DNA was
found on the nail clippings of Pallavi, Dr.Chaudhry submits that if
there had been a scuffle, Sajjad's skin and blood would have been
found underneath Pallavi's fingernails.
8.2) Dr. Chaudhry placed reliance on Modi's Textbook of
Medical Jurisprudence and Toxicology and pointed to a table showing
the age of wound and likely abrasion seen. According to him, the
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injuries on Sajjad were not fresh and hence, none of them can be said
to have taken place during the course of the incident.
9) Lapses in investigation
9.1) The prosecution failed to collect best evidence, thereby
ruling out the hypothesis of Sajjad's guilt. No casts were prepared of
the footprints. As per the fingerprint report, no fingerprints were
found, which is highly unnatural. CCTV cameras were not functioning
in the society despite, the society being elite up-market and occupied
by lawyers from prestigious law firms, employing many security
guards and private electrician. Thus, it is very unlikely that CCTVs
were not in working condition. The spot panchanama shows that
there was a blood stain on the wall outside the window of Pallavi's
bedroom, however, no fingerprints were found near the blood stain.
The CDR of PW-32 points to an SMS received by him from Pallavi at
1:45:48 on 09th August 2012. Neither Pallavi's phone nor that of PW-
32 was seized. Furthermore, PW/32-electrician was accompanied by a
friend, Ramesh, to Pallavi's flat. Ramesh was never examined.
10) Illegal sentence imposed by the Trial Court
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10.1) Dr. Chaudhry brings to our attention a glaring illegality in
the sentence. The learned Judge of the Trial Court sentenced Sajjad to
life imprisonment, for remainder of his natural life, whereas on
conviction under Section 302 of the IPC, a trial court can either
sentence an accused to life imprisonment or death. The trial court has
no jurisdiction or power to impose any other sentence, least of all to
sentence him for the remainder of his natural life. Similarly, for the
offense punishable under Section 354 of the IPC, the Trial Court had
no jurisdiction, as per the law in force at the relevant time to impose 5
years rigorous imprisonment. The section was amended only in 2013
while the date of offense was 08 th August 2012 - 09th August 2012. On
this ground alone, Dr. Chaudhry says that even without adverting to
the merits of the matter the Judgment and Order should be set aside.
B. Decisions relied upon by the learned counsel for the Appellant:
1. Vikas Chaudhry v. State of Delhi1
2. Manohar @ Manu v. State of Karnataka2
3. Hanumant v. State of M.P.3
4. Sharad v. State of Maharashtra4
1 2023 SCC OnLine SC 472
2 (2023) 19 SCC 168
3 (1952) SCR 1091
4 AIR 1984 SC 1622
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5. Baljinder Kumar @ Kala v. State of Punjab,5
6. Thulia Kali v. State of Tamil Nadu6
7. Ganesh Bhavan Patel v. State of Maharashtra7
8. Shahid Khan v. State of Rajasthan8
9. State of Punjab v. Bhajan Singh9
10. Kalinga alias Kushal v. State of Karnataka10
11. Dharambir @Dharma v. State of Haryana11
12. Heramba Brahma v. State of Assam12
13. Jaspal Singh v. State of Punjab13
14. Sandeep v. State of Haryana14
15. Sanjay v. State of Uttar Pradesh15
16. Aghnoo Nagesia v. State of Bihar16
17. Hanumant v. State of M.P. 17
18. Sevantilal Karsondas Modi v. State of Maharashtra18
19. Imperatrix v. Pitamber Jina19
5 2025 INSC 856
6 AIR 1973 SC 501
7 (1978) 4 SCC 371
8 (2016) 4 SCC 96
9 (1975) 4 SCC 472
10 (2024) 4 SCC 735
11 2024 SCC OnLine SC 540
12 AIR 1982 SC 1595
13 (1997) 1 SCC 510
14 (2001) 9 SCC 41
15 2025 SCC OnLine SC 572
16 (1966) 1 SCR 134
17 AIR 1952 SC 343
18 (1979) 2 SCC 58
19 (1878) ILR 2 BOM 61
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20. Rohidas Manik Kasrale v. State of Maharashtra20
21. Madaiah v. State21
22. In re Rayappa Asari22
23. Hasil v. Crown23
24. Subramaniam v Public Prosecutor24
25. Mohd. Aman v. State of Rajasthan25
26. State of Maharashtra v. Bhagwat Bajirao Kale26
27. Pawan Kumar v. State of Haryana27
28. Mohd. Iqbal alias Munna v. State of Maharashtra28
29. Arjun Rangrao Patil v. State of Maharashtra29
30. Chandrakant Balkrishna Gadankush v. State of Maharashtra30
31. Kiran Ashok Jadhav v. State of Maharashtra31
32. Krishna @ Barkya Mangal Rajput v State of Maharashtra 32
33. H.P. Administration v. Om Prakash33
34. Tomaso Bruno v. State of UP34
20 2012 ALL MR (Cri) 218
21 1992 CRI. L.J. 502
22 1972 CRI. L.J. 1226
23 ILR (1943) 24 Lah 77
24 [1956] 1 WLR 965
25 1997 SCC (Cri) 777
26 2024 SCC OnLine Bom 3775
27 AIR 2003 SC 2987
28 (2016) 3 AIR Bom R (Cri) 596
29 2015 SCC OnLine Bom 184
30 2015 SCC OnLine Bom 3667
31 2014 Cri LJ (NOC 454)
32 2004 ALL MR (Cri) 609
33 AIR 1972 SC 975
34 2015 (7) SCC 178
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35. Juwarsingh v. State of M.P.
36. State of Punjab v. Praveen Kumar36
37. Muluwa v. State of M.P.37
C. Submissions on behalf of the Respondent-State:
6. Mr. Manoj Mohite, learned Senior Counsel made the
following submissions:-
1) Motive
1.1) PW-1 specifically deposed twice regarding Pallavi's
grievance that Sajjad leered at her; two independent witnesses testified
Sajjad to have seen Pallavi in shorts and crop-top in her flat on the
night of the incident and commented that he desired to have one night
with her and to the other witness, he stated that he murdered Pallavi
as she rejected his advances. Mr. Mohite, categorically places the
prosecution case that Sajjad wanted sexual pleasure from Pallavi and
seizing the opportunity when confirming that she was alone at home
that night, tried to fulfil his desire and when Pallavi put up a strong
resistance, he killed her. Mr. Mohite submits that Pallavi was a
35 1981 SCC (Cri) 357
36 (2005) 9 SCC 769
37 (1976) 1 SCC 37
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national swimming champion and was of strong build. She put up a
strong fight against Sajjad which is evident from the disarray of the
bedroom and splashes of blood in the flat, however, ultimately losing
to Sajjad's 17 knife stabs and succumbing to the same.
2) Incriminating recoveries
2.1) There was hair found at the spot of the incident. Sajjad's
DNA was amplified on this hair. Similarly, the knife which was the
weapon of the murder, recovered from Sajjad, had Pallavi's DNA. The
full pant recovered from Sajjad also had his DNA as well as that of
Pallavi. The T-shirt and chappals recovered from Sajjad had his as well
as Pallavi's DNA. Moreover, the keys to Pallavi's flat were also
recovered at the instance of Sajjad. The hair from Pallavi's right hand
also had Sajjad's DNA. Mr. Mohite submitted a detailed chart of the
DNA analysis.
3) Counter of the State to the submissions of Dr. Chaudhry
i) On Delayed FIR - Dr. Chaudhry stated that there is no
explanation as to why the FIR was registered after 2 hours. Mr.
Mohite submits that, statement of PW-1 Avik was recorded
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immediately followed by registration of an ADR at 7:30 a.m. on 09 th
August 2012. PW-19 informed the police regarding Sajjad's phone
call. There is no evidence that this was conveyed to the police in the
presence of Avik and hence the same does not appear in Avik's
statement. At that time the police suspected everyone including PW-1,
PW-19 along with Sajjad and hence, there is no delay in registration of
FIR against an unknown person. Statements of PW-19 and PW-20
were also recorded immediately thereafter. Hence, there is no
question of any manipulation.
ii) Why did Pallavi call Sajjad despite her discomfort -
Admittedly, Sajjad was a security guard in Ivory Tower and that
electricity was intermittently going off in her flat. PW-19 has testified
that Sajjad was on duty at Himalayan Heights i.e., Pallavi's building
and he knows the work of an electrician. PW-4 admits that residents
of the society ordinarily called the electrician through the watchman.
Deposition of Avik indicates that at 10:30 p.m. he told Pallavi to tell
the watchman to call the electrician. Hence, she called Sajjad. This is
corroborated by the CDRs. PW-19 and PW-32 corroborate that Pallavi
called PW-32 at 10:30 p.m. on 08th August 2012 asking him to restore
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the electricity. Pallavi called Sajjad to get the number of PW-32. Pallavi
again called PW-32 at 11:30 p.m. to 11:45 p.m. Thereafter, PW-32
after checking the main switches, told Pallavi that he would come in
the morning. Even Sajjad had called him regarding the electricity
going off in Pallavi's flat to which PW-32 informed him that he will
check in the morning. PW-19 also deposed that on the 09 th of August,
2012 at 1:00 a.m., when he was on rounds with PW-22, Sajjad came
to him, in his uniform and told him that electricity in Pallavi's flat was
off and Pallavi was calling for PW-19 to check the same. This clearly
shows that she never called for Sajjad to restore electricity but only as
a conduit to call the electrician. She allowed him to enter because he
was accompanied by the guard. The CDRs are exhibited and proved
by the Nodal Officers of phone companies, PW-6, PW-3, PW-12 and
PW-13.
iii) Outraging Pallavi's modesty - At 1:00 a.m. on 09th August,
2012, Sajjad told PW-22 that there was no electricity in Pallavi's flat.
Hence, both went to her flat and rang the bell. She did not answer and
Sajjad called her from his mobile. They both entered the flat and saw
that the main switch was on. On Sajjad's query, Pallavi told them that
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Avik was not at home and would return in the morning. According to
Mr. Mohite, this was the time when Sajjad learnt that Pallavi was
alone and in the darkness swiped the keys from the flat. Furthermore,
PW-22 deposed that while coming out of Pallavi's flat, Sajjad told him
that Pallavi was looking very sexy and he wanted to sleep with her for
one night. There is no contradiction nor omission in the entire
evidence. Infact, the lace of Pallavi's knicker was broken and torn, the
string of her shorts was torn and her clothes were blood stained. All is
reflected in the seizure panchanama. The spot panchanama reveals
that the bed sheet and bed cover were in disarray, pillows were on the
floor and there were blood stains on the bed. This indicates a scuffle
on the bed.
iv) Presence of Sajjad outside Pallavi's flat - PW-22 stated that
Sajjad was with him at 1:00 a.m. in Pallavi's flat and they left together
and went down. Thereafter, PW-4-Pallavi's neighbour testified to
having seen Sajjad outside her flat door at 1:30 a.m. On being asked as
to what he was doing there he replied that Avik had called him. PW-4
is an independent witness and his statement was recorded
immediately. It is thus, established that Sajjad came back alone after
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PW-22 went towards the other building, Julian Alps and PW-4
specifically stated that he found Sajjad alone outside the flat.
Considering this evidence, Mr. Mohite argues that Sajjad was last seen
with Pallavi and he made a false excuse to PW-4 that PW-1 had called
him to the flat, knowing fully well at that time that Pallavi was alone.
v) Lack of CCTV footage of the incident - PW-19 testified
that CCTV cameras were installed in the society premises but were
not working. PW-31, resident of society, stated that there was no
CCTV in the compound of the society. PW-32 stated that CCTV was
in the common area but no question was put to him as to whether
they were working. PW-34 stated that the society residents did not
answer as to why there were no CCTV at all and finally, PW/39-the
second investigation officer testified that the CCTV cameras were not
working. The lack of CCTV footage is thus not suspicious as none of
the relevant CCTV cameras were working.
4) On extrajudicial confessions
4.1) PW-19 testified that Sajjad called him at 5:00 a.m. on 09 th
August, 2012, asked for Rs. 10,000/- to go to J&K as he had
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murdered Pallavi. At that time, PW-19 thought he was joking but, on
learning of Pallavi's murder he confided in PW-20 about the same.
PW-20 stated as much. Once again at 7:00 a.m. - 7:15 a.m., Sajjad
called PW-19 and asked him whether he was giving him the money.
On PW-19 asking him about the murder, Sajjad switched off the
phone. The statement of PW-19 was recorded on the 09 th August,
2012 itself and there is no omission or contradiction in his version.
The CDR also corroborates the calls.
4.2) Sajjad also called PW-10, the neighbour's driver on the
09th at 10:30 a.m. PW-10 missed the calls but called him back. Sajjad
told him that 'one item did not allow him sexual favours and hence,
he killed her'. When PW-10 asked him who the 'item' was, he said
simply laughed and disconnected the phone. The CDRs corroborate
this. Mr. Mohite submitted that PW-10's movements of the day may
not match his locations, however, the CDR confirms the calls between
Sajjad and PW-10 at around 10:30 a.m. on the 09 th. Mr. Mohite
pointed out that merely because the CDR may not match each
deposition, this does not affect the witnesses's entire credibility. Mr.
Mohite has also countered Dr. Chaudhry's argument regarding the
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object of the Sajjad in confiding with PW-10 and PW-19 by saying that
they were working in the same society and shared a camaraderie. He
stressed that this knowledge is personal to Sajjad and one cannot
explain the reasons of another for acting one way or the other.
5) Recovery of incriminating DNA
5.1) PW-19 and PW-22 deposed as to seeing hair in the
bedroom. PW-1 also showed the spot from where strands of hair were
seized. The articles were sealed in his presence by putting them in a
brown paper packet and affixing a white paper label and signed by the
panchas. PW-14- spot panchanama panch also witnessed hair seen at
the spot to have been labeled and sealed. There is no cross-
examination at all of any witness as to how it was sealed. Further, PW-
34 testified regarding conducting spot panchanama at 11:40 a.m. and
seizure and sealing of 6 articles. The sealed packet was signed by PW-
34 and two other panchas. PW-34 then sent the muddemal to the CA,
took the signature of PW-37 on the forwarding letter and sent to the
CA with PW-27 in a sealed condition. The entire chain of custody is
explained in the deposition leaving no room for any doubt.
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5.2) The CA reports confirms the DNA of the hair which is
found at the spot of the crime to be that of Sajjad. PW-38 and PW-39
have specifically testified in that regard. Moreover, Sajjad in his
statement under Section 313 of Cr.P.C. has accepted that the hair
found on the scene of crime and amplified by the DNA was his.
5.3) The prosecution examined PW-28 i.e., the person who
sold the knife to Sajjad. He identified Sajjad as well as the knife. This
knife was recovered pursuant to Sajjad's discovery statement. It was
found from a shoe rack on the 03rd floor in Himalayan Heights. It was
sealed as per law. Even if the ownership of the shoe rack is not
established, the fact of the hidden knife was solely within Sajjad's
knowledge and hence, the recovery was proved. The DNA report
revealed that the knife had Pallavi's DNA and blood group. Mr.
Mohite explained the chain of custody of the knife sent to the CA in
sealed condition.
5.4) PW-18- Dr. Dere and the post-mortem report established
Pallavi's death due to sharp side of knife and due to haemorrage shock
of a cut throat injury. On the other hand, PW-26-Dr. Rathod
explained Sajjad's injury. No questions were asked to the doctors in
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cross-examination and the defense only showed a text on Modi's
Jurisprudence.
5.5) PW-22 testified that Sajjad used to stay in the society and
keep his clothes in the cabin. PW-15-panch witnessed recovery of
Sajjad's clothes and chappals (Art-11 and 12) and Pallavi's house keys
(Art-10) from the locked tin box in the cabin. They were seized,
wrapped and sealed. On Dr. Chaudhry's argument that, if the clothes
were blood stained, there would have been a trail of blood left behind
on the staircase, Mr. Mohite pointed out that there was blood only on
the hem of the pant and the chappals had blood stains and were not
drenched in blood to leave a trail. The recovered items were deposited
in the muddemal room. The day being a Sunday, the muddemal was
forwarded to the FSL on the very next day and there was no delay in
that regard.
5.6) Dr. Chaudhry's argument that Sajjad's clothes were not
identified by the other guards is met by the explanation that PW-4 and
PW-19 testified in respect of the uniform worn by Sajjad.
5.7) Mr. Mohite submitted that, by way of a forwarding letter
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th
dated 09 August 2012, substances other than the viscera were sent to
the CA. Hair from the right hand of Pallavi is mentioned in the list.
The articles were dispatched through a PC on duty and had an
impression of seal and an acknowledgment from the FSL office. The
mere fact that the doctor and carrier were not examined does not
render the evidence invalid or point to any manipulation. PW-38- the
Assistant Director of the forensic lab testified as to receiving 3 hair
samples and as well as to the DNA report. The DNA found on the hair
from Pallavi's right hand is that of Sajjad and Pallavi. The only lapse
seems to be the description written by PW-38 referring to the hair
from the hand as hair found in the hand. Nonetheless, Sajjad in his
statement under Section 313 Cr.P.C has accepted that the hair found
from Pallavi's right hand and the DNA was his and Pallavi's.
5.8) Mr. Mohite further explained the chain of custody of the
samples collected from the spot to the CA. He says that some of the
items seized on 10th were sent to the CA on the 13 th, as 11th and 12th
were holidays and the FSL was closed.
6) Injuries on Sajjad
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6.1) PW-26, Dr. Rathod, examined Sajjad on the 10 th and
testified that Sajjad had 5 injuries. Injury No.1 & 2 - 4 were due to
sharp object; Injury 2, possibly by nail scratches and Injury No. 5 was
due to hard and rough surface. The age of injuries was stated to be
within 48 hours. Sajjad in his Section 313 Cr.P.C statement accepted
the injuries.
7) Fingerprint/ footprint report
7.1) Mr. Mohite pointed out that although the defense
expressed their surprise at not finding fingerprints at the spot, no
question was put to any witness in that regard. The fingerprint report
was found to be inconclusive by the fingerprint expert and hence, the
police had no role to play. Similarly, the footprints were all mixed with
those from PW-1, neighbours, watchmen and the police and hence,
there was nothing to be gathered from the footprints.
7.2) Mr. Mohite thus, summarized his arguments as under:
i) Sajjad being seen outside Pallavi's flat at the relevant time by her
neighbour.
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ii) Text messages by and between Avik and Pallavi at 1:45 a.m. on
9th August, 2012.
iii) Post finding Pallavi's body, Sajjad fled the society and despite his
duty hours to be till 8:00 a.m. in the morning, he fled from the society
and was not found.
iv) Confiding in PW-10, PW-19, PW-20 and PW-22 regarding
commission of the murder. Statement of PW-19 was recorded on the
same day. CDR also confirms the call made by Sajjad to PW-19.
v) Sajjad admitted his presence at Pallavi's flat to PW-10.
vi) The spot panchanama was done immediately and specimen of
hair was recovered from the spot.
vii) The articles collected during investigation were admittedly
sealed, which is not disbelieved even by the Defense.
viii) Sajjad was arrested on the 10th August, 2012. The knife, his
clothes, chappals and the flat keys were recovered at his behest on 12 th
August, 2012 itself. The hem of his pants had blood stains, the DNA
of Pallavi and Sajjad was found on it. Sajjad's DNA was found on the
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keys, which were inside the pocket of his pants.
ix) Sajjad's injuries were fresh and consistent with the scuffle with
Pallavi. Sajjad was unable to explain the injuries.
x) Sajjad was released on parole on 23 rd February 2006. he
absconded and was arrested from J&K on 10 th October 2017. This
shows the conduct of Sajjad.
D. Decisions relied upon by the learned counsel for the
Respondent:
1.Gauri Shankar v. State of Punjab38
2. Gagan Kanojia & Anr. v. State of Punjab39
3. Hema v. State40
4. Edakkandi Dineshan v. State of Kerala41
5. State of Himachal Pradesh v. Jeet Singh42
6. John Pandian v. State43
7. Sucha Singh and Anr. v. State of Punjab44
8.Babasaheb Apparao Patil v. State of Maharashtra45
38 (2021) 3 SCC 380
39 (2006) 13 SCC 516
40 (2013) 10 SCC 192
41 (2025) 3 SCC 273
42 (1999) 4 SCC 370
43 (2010) 14 SCC 129
44 (2003) 7 SCC 643
45 (2008) 17 SCC 425
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9. State of U.P. v. Devendra Singh46
10. Santosh Kumar Singh v. State47
11. State of Andhra Pradesh v. N. Venugopal & Ors.48
12. Pravin Dhondiram Chorge and Ors. v. the State of Maharashtra 49
13. Mustak v. State of Gujrat50
14. Shatrughna Baban Meshram v. State of Maharashtra51
15. Nath Singh and Ors. v. State of U.P.52
16. Surjit Singh v. State of Punjab53
17. Bachan Singh v. State of Punjab54
18.Machi Singh v. State of Punjab55
E. Submissions on behalf of Revision Applicant:
8) Mr. Abhishek Yende, learned Advocate appearing for the
Revision Applicant, submitted that Pallavi graduated from law school
in 2009, started practice in Delhi High Court, went on to join a law
firm in Singapore and migrated to Mumbai in 2011. Both her parents
are IAS officers. She and Avik were to marry soon. Mr. Yende
supported the contentions of the State but, added a few points. He
46 (2004) 10 SCC 616
47 (2010) 9 SCC 747
48 1963 SCC OnLine SC 103
49 2017 SCC OnLine Bom 16
50 (2020) 7 SCC 237
51 (2021) 1 SCC 596
52 (1980) 4 SCC 402
53 (2011) 15 SCC 187
54 (1980) 2 SCC 684
55 (1983) 3 SCC 470
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submitted that the chain of evidence against Sajjad is clearly
established. His presence at the spot is proved. He highlighted the
relationship of a security guard with the persons whose safety was
entrusted with them, who takes advantage of his position to commit a
crime. Sajjad stabbed Pallavi 17 times. There is no explanation
forthcoming pertaining to the blood found on his clothes, injuries on
his person, confessions to other witnesses, etc. Mr. Yende highlighted
Sajjad's post incident conduct. Sajjad tried to abscond to J&K. After
he was granted parole, he abused his liberty and a SIT was required to
be formed to secure his presence. He was traced in Gagangiri, only 50
kms away from Pakistan border.
8.1) Mr. Yende canvassed an argument regarding the
aggravating factor that Avik, the Complainant, who found Pallavi's
body went in such a shock that he passed away on 14 th November
2013 from inflammatory brain disorder which was caused by trauma
of the incident. In fact, when Avik was required to be recalled to
depose regarding his supplementary statement, he had already died by
then. Mr. Yende, representing Pallavi's father, made a passionate plea
that the prosecution failed to challenge the lack of offense punishable
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under Section 376 read with Section 511 of the IPC that was excluded
from the charges framed. In fact, the evidence of broken string of
Pallavi's shorts and the condition of her bedroom strongly suggested
an attempt to rape. Mr. Yende even urged this Court to convict Sajjad
for the said offenses by invoking Section 464 of Cr.P.C. He submitted
that in case the Court was not inclined for the same, Sajjad should be
sentenced to enhanced capital punishment. He prayed for dismissal of
Sajjad's Appeal as well.
9) We have heard the parties, considered the entire evidence
on record minutely and perused the Judgment and Order impugned
herein.
III. POINTS FOR DETERMINATION:
1. Whether the evidence on record completes the chain of
circumstances from which a conclusion of guilt can be drawn and
whether this evidence is sufficient to record conviction against Sajjad?
2. If the answer to above be in the affirmative, what should be the
appropriate punishment to be imposed on Sajjad?
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IV. ANALYSIS:
A. Law laid down in cases involving evidence of circumstantial
nature:
11) Before addressing the points for determination, we
consider it appropriate to revisit the law laid down by the Supreme
Court in cases involving evidence of circumstantial nature. In
Hanumant Vs. State of Madhya Pradesh 56, the Supreme Court
expounded the law relating to appreciation of circumstantial evidence
as under:
"12. It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as
to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence
56 (1952) 2 SCC 71
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so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and
it must be such as to show that within all human probability
the forceful arguments the act must have been done by the
accused....."
The decision of the Supreme Court in Shankarlal Gyarasilal Dixit v.
State of Maharashtra57 followed. In Shankarlal (supra), the Apex
Court emphasized the importance of legal principles insofar as
appreciation of circumstantial evidence is concerned by saying that
legal principles are not magical incantations. The Supreme Court held
that "the circumstances on which the prosecution relies must be
consistent with the sole hypothesis of the guilt of the accused...... "
".....The simple expectation is that the judgment must show
that the finding of guilt, if any, has been reached after a
proper and careful evaluation of circumstances in order to
determine whether they are compatible with any other
reasonable hypothesis."
Later in Sharad Birdhichand Sarda vs. State of Maharashtra 58, laying
57 (1981) 2 SCC 35
58 (1984) 4 SCC 116
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down the principles for conviction on the basis of circumstantial
evidence, the Supreme Court held that the following conditions must
be fulfilled, before the case against the accused can be said to be fully
established:-
"(i) The circumstances from which the conclusion of guilt is
to be drawn should be fully established;
(ii) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and
tendency;
(iv) they should exclude every possible hypothesis except
the one to be proved;
(v) there must be a chain of evidence so complete 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."
In paragraph 153 of the aforesaid decision, their Lordships observed
that the said "five golden principles" constitute the "Panchsheel" of the
proof of a case based on circumstantial evidence.
12) In addition to the above, while dealing with a criminal
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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 Sahebrao Bobade v.
State of Maharashtra59, the Supreme Court elaborating the above
principle, observed that the mental distance between 'must be' and
'may be' is long and divides grave conjectures from sure conclusions.
In the case of Karakkattu Muhammed Basheer v/s State of Kerala 60,
the Apex Court followed the principles set out in the case of
Ramreddy Rajesh Khanna Reddy and Another v/s State of A.P .61 paras
26 and 27 of the said decision read thus:-
"26. It is now well-settled that with a view to base a
conviction on circumstantial evidence, the prosecution
must establish all the pieces of incriminating
circumstances by reliable and clinching evidence and the
circumstances so proved must form such a chain of
events as would permit no conclusion other than one of
guilt of the accused. The circumstances cannot be on any
other hypothesis. It is also well-settled that suspicion,
59 1973 (2) SCC 793
60 2024 INSC 838
61 (2006) 10 SCC 172
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however, grave may be, cannot be a substitute for a
proof and the courts shall take utmost precaution in
finding an accused guilty only on the basis of the
circumstantial evidence. [See Anil Kumar Singh v. State
of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v.
State of A.P. (2005) 7 SCC 603]."
B. The evidence on record indicting Sajjad:
13) Considering the principles of law laid down by the Apex
Court, relating to cases based on circumstantial evidence, we now
proceed to deal with the evidence on record. The evidence indicates
that Pallavi called the security guard to get the phone number of the
electrician to facilitate restoration of electricity in her flat. There is a
series of phone calls, made by Pallavi to the security guard, security
supervisor and the electrician. Unable to get through to the electrician,
Pallavi called Sajjad, requiring him to convey her distress to the
electrician. In one of the visits to Pallavi's flat, Sajjad accompanied the
electrician. He learnt that she was alone and also saw her in her night
wear. He commented to the accompanied, his desire to spend a night
with Pallavi. When the electrician and the security supervisor gave up
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on restoring the electricity for the night, Sajjad alone went to the flat.
Pallavi's neighbour saw him and asked him his business to be there at
that hour in the night. To this Sajjad fibbed that Avik had called him.
The prosecution places Sajjad at the place of incident at the relevant
time and further brings home the guilt to him on the basis of the
recovery of the weapon of murder, clothes, chappals and Pallavi's
house keys at Sajjad's instance. Sajjad confided regarding the
commission of the act to the security supervisor as well as the
neighbour's driver, in a bid to loan some money. His clothes, knife,
the keys to Pallavi's house and hair found at the spot bear his DNA,
which further indict him.
C. On Motive:
14) PW-1 deposed that Pallavi had complained to him
regarding Sajjad acting smart with her by forcefully attempting to talk
to her. He used to stare at her. PW-1, in his cross-examination, has re-
asserted this and clearly explained that he was under stress at the time
of giving the complaint due to which he forgot to inform the police
regarding the same. According to the prosecution, Sajjad's motive is of
a sexual nature. The witnesses relied upon by the Trial Court in this
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regard are PW-1, PW-9, PW-10, PW-11 and PW-22. The indictive
testimony was Pallavi's complaint to Avik about Sajjad's conduct; a
lewd remark made by Sajjad to PW-22 when both of them were in
Pallavi's house trying to restore the electricity; the torn string of
Pallavi's shorts and the extrajudicial confessions made by Sajjad to PW-
10 and PW-19. With reference to Dr.Chaudhry's objections that the
Leave and License Agreement of the flat was w.e.f. November, 2011,
while Pallavi's complaint to Avik was in July, 2011, the testimony of
the aforesaid witnesses is crucial. PW-1 specifically stated that on his
return from office, Pallavi complained about Sajjad. This indicates that
PW-1 remembered the incident clearly but may have erred in stating
the date of the incident. Further, PW-19, the Security Supervisor
deposed that the night working time of the Security Supervisors is
from 08:00 p.m. to 08:00 a.m. He along with PW-22 were always on
night duty. There were 4 buildings in Ivory Towers; Himalayan
Heights is where Pallavi and Avik resided. Sajjad was on duty at the
time of the incident. On the relevant night, PW-32, the electrician,
asked him for the key of meter room as Pallavi's flat's lights were not
working. PW-19 deposed as having seen PW-32 and his friend go to
Pallavi's flat to restore electricity. Thereafter, PW-22, another Security
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Supervisor, corroborated the testimony of PW-19. He further deposed
that at 01:00 a.m., Sajjad came to him and told him that Pallavi's
lights were not working. He accompanied Sajjad to Pallavi's flat. On
seeing Pallavi wearing shorts and a crop top, Sajjad, while coming out
of her flat, commented that Pallavi Madam was looking very sexy and
he wanted to sleep with her. This witness rebuked Sajjad. On
returning to the ground floor, he deposed that he went to the other
building but, saw Sajjad again heading towards Pallavi's building.
Supporting this, PW-10, a driver friend of Sajjad, deposed that on the
following morning, while requesting a loan from him, Sajjad clearly
said that "society main ek item ne mujhe kaam karne nahi diya isliye
maine usse maar daala". The testimonies of the above 4 witnesses in
addition to Avik's testimony, establishes the motive of Sajjad in
committing the offense. A mere possibility of Avik giving a wrong
date, on which Pallavi complained of Sajjad's misbehavior to him, as
Dr. Chaudhry argues, referring to the date of the Leave and License
Agreement, does not dilute these testimonies. We are inclined to
believe Sajjad's desire to physically violate Pallavi as a strong motive to
commit the offense. This evidence has not been rebutted in the cross-
examination of the aforesaid witnesses and thus, we find the motive to
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be sufficiently established. This assumes great significance in
establishing Sajjad's culpability.
15) Furthermore, PW-19 affirmed that it was Sajjad who was
on duty at that time and he also has the knowledge of an electrician.
PW-4 supported the prosecution and said that ordinarily the residents
called the electrician through the watchman. Additionally, PW-1, Avik,
deposed that he told Pallavi to tell the watchman to call the
electrician. The CDR corroborates the series of calls. PW-19 and PW-
20 both affirm that Sajjad was in uniform and he conveyed to them
that the lights in Pallavi's flat were not working and hence, Pallavi was
calling PW-19. This negates Dr. Chaudhry's arguments that as Pallavi
called Sajjad, he never misbehaved with her.
D. Sajjad's presence at the spot of the crime & Law on the Last
Seen Theory:
16) In order to establish Sajjad's presence in the house of the
deceased, the Trial Court relied on the testimony of Kunal Shah (PW-
4), Shabbir Khan (PW-19), Mohammad Khalid Khan (PW-22) and
Dharmesh Gupta (PW-32). PW-19 and PW-22 were security
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supervisors while Sajjad was a security guard in Pallavi's society. All
three were on night duty at the time of the incident i.e. on the
intervening night of 8th and 9th August, 2012. The electricity in the
house was repeatedly going off. Pallavi contacted Avik (PW-1) who
told her to call the electrician. She called the electrician (PW-32) at
10:30 p.m. He came there and switched on the main switch from the
meter room, restoring the electricity. The same thing happened later at
11:30 p.m. and 12:30 p.m. On the second call, the electrician refused
to come and hence, she called Sajjad, who went to PW-19 and
informed him. PW-19 deputed PW-22 to accompany Sajjad to the flat.
They switched on the mains again and informed Pallavi. Finally at
1:30 a.m., Sajjad was seen outside Pallavi's apartment by PW-4. The
entire sequence of phone calls is well established by the CDRs.
Furthermore, the Prosecution has also successfully placed Sajjad in
Pallavi's flat at the time of her murder. Firstly, PW-4 has testified that
when he returned home at 01:30 a.m., he saw Sajjad outside Pallavi's
door and upon being questioned, Sajjad told PW-4 that he was there as
Avik had called him. It is already established that prior to this, Sajjad
had already entered Pallavi's flat with PW-22 and was well aware of
Avik's absence at home. This proves that Sajjad lied to PW-4. PW-4 is
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an independent witness and his statement was recorded immediately
on 09th August, 2012 itself. Moreover, PW-22 also testified as to Sajjad
going towards Himalayan Heights after returning from Pallavi's flat
with him. This evidence clinches Sajjad's presence at Pallavi's flat post
01:00 a.m. The PW-18 i.e., Dr. Dere who conducted the Pallavi's
postmortem deposed as to the approximate time of death, on the basis
of the rigor mortis, postmortem lividity on the back and buttocks of
the dead body. The time of her death was fixed from 01:20 a.m. to
03:30 a.m. There is no material on record to indicate the entry of any
other person than Sajjad after 01:30 a.m. in Pallavi's flat. The
prosecution's case against Sajjad, based on the last seen theory is thus,
established.
17) The law in respect of the last seen theory as part of the
circumstantial evidence is well settled. 'Last seen' as a link in the chain
of circumstantial evidence, would suggest existence of oral testimony
of at least one witness to establish that the deceased was last seen in
the company of the Appellant/Accused. In this context, it is relevant to
refer to the following decisions of the Apex Court. In State of U.P. v/s
Satish62, the Apex Court in paragraph 22 of the said decision held as
62 (2005) 3 SCC 114
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thus:-
"22. The last-seen theory comes into play where the time-
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person other
than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to
positively establish that the deceased was last seen with
the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence of
any other positive evidence to conclude that the accused
and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases.
..." .
(emphasis supplied)
18) This position was reiterated by the Apex Court in Hatti
Singh v/s State of Haryana63, and also in the recent decision of the
Apex Court in Krishan Kumar and Another v/s The State of
Haryana64. Although, in Krishan Kumar (Supra) the accused was
acquitted on the facts of that case, the legal position relating to the last
seen theory is consistently followed. The last-seen theory, furthermore,
comes into play where the time gap between the point of time when
the accused and the deceased were last seen alive and the deceased is
found dead is so small that possibility of any person other than the
63 (2007) 12 SCC 471
64 2023 INSC 679
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accused being the author of the crime becomes impossible.
19) Returning to the evidence adduced in the present case, the
testimony of atleast 4 witnesses place Sajjad at the place of the
incident at the relevant time. In addition, there is also no explanation
offered by the Defense as to how and when Sajjad left Pallavi's flat.
Sajjad's entry in the flat is clinched when he tells PW/4 that he was
outside Pallavi's flat as Avik has called him. This, reinforces the
prosecution case of Sajjad having every intent to enter Pallavi's flat at
or a little past 1:30 a.m. The Defense is unable to indicate his exit
from the flat.
20) The principle of law in this regard is well settled. The
provisions of Section 106 of the Indian Evidence Act, 1872 (IE Act)
itself are unambiguous and categoric. Thus, if a person is last seen
with the deceased, he must offer an explanation as to how and when
he parted company. If he does so, he must be held to have discharged
his burden. If he fails to offer an explanation on the basis of facts
within his special knowledge, he fails to discharge the burden cast
upon him by Section 106 of the IE Act. In its decision in the case of
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State of Rajasthan v. Kashi Ram , the Supreme Court held that in a
case resting on circumstantial evidence, if the accused fails to offer a
reasonable explanation in discharge of the burden placed on him, that
itself provides an additional link in the chain of circumstances proved
against him. Section 106 of the IE Act does not shift the burden of
proof in a criminal trial, which is always upon the prosecution. It lays
down a rule that when the accused does not throw any light upon
facts which are specially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence, the
Court can consider his failure to adduce any explanation as an
additional link which completes the chain. In the present case, Sajjad's
entry is established but the defense fails to discharge its burden to
explain when he parted. There is a complete link in the chain of
circumstances, which prove his guilt beyond reasonable doubt.
21) We return to the facts in the present case. The
prosecution also buttressed the conduct of Sajjad in absconding from
the Society even prior to completion of his shift at 08:00 a.m. None of
the witnesses testified seeing Sajjad in the morning when all of them
learnt of Pallavi's murder after the arrival of the police. In fact, PW-19
65 (2006) 12 SCC 254
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deposed that after police came, he went downstairs to search for
Sajjad but did not find him. This shows that Sajjad was not seen till his
arrest.
E. Seizure of Articles; Chain of Custody /Absence of Wax Seal:
22) The Prosecution has also completed the chain of
circumstances on the basis of recovery of incriminating material at the
flat. PW-1 testified to articles being seized from the flat including
strands of hair. The articles were put in brown paper packet and
affixed with a label. The panchas signed across the label. The spot
panchanama (Exhibit 64) records the hair sealed and labeled from the
spot. The spot panchanama further records blood outside the lift as
well as bloody footprints outside the flat. It also records blood stains
outside the window, blood stained bedsheet and a blood stained
blanket. There were footprints going towards the bedroom. In the
pool of blood, strands of hair were found, which were seized and
sealed in a brown envelope. He signed along with the two panchas.
Much is being made by Dr. Chaudhry regarding the seized articles not
being sealed with wax. According to him, not using a wax seal has left
the seized articles vulnerable to tampering. However, there is no cross-
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examination on this aspect. Nothing of any significance is elicited
from the cross-examination. The further testimony records the chain
of custody of the sealed articles. The articles in a sealed condition
were deposited with the FSL. Fact remains that the seals found on the
samples were intact when the samples were received in the FSL. More
significantly, there is no evidence to indicate that the packet or the
seals on them were tampered with. In the absence of anything of
significance emerging in the cross-examination as well as evidence
indicating any tampering with the seals or the envelopes, the said
anomaly is not of much significance.
23) Dr. Chaudhry has also raised doubts about the seized
muddemal not being deposited in the Malkhana at the Commissioner's
office even after the investigation was transferred to the DCB - CID.
However, there is evidence to indicate that the articles were kept in
the muddemal room in Wadala T.T. Police Station. Mr. Mohite has
fairly submitted that the entries of the muddemal being taken in the
station diary and the muddemal register were not part of the charge-
sheet. However, Mr. Mohite sought leave and tendered the muddemal
register for our perusal to satisfy our conscience. These entries do
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appear in the register, however, since they were not part of the
evidence before the Trial Court, we have not relied upon the same.
Even in its absence, the Defense failed bring out any suggestions in the
cross-examination of PW-34 and as such, nothing is elicited in this
regard. We are also satisfied with Mr. Mohite's explanation that 9 th
August and 10th August of the year 2012 were holidays being
Janmashthami and Dahi Handi respectively and 11th August and 12th
August being a weekend and the FSL being closed, the articles were
sent to FSL on 13th August, 2012. The period of custody of the articles
with the police was short and the FSL has received the same in a duly
sealed condition. Undoubtedly, there was a delay of 4 days in sending
the sealed parcels containing the articles to the FSL, but this was
explained clearly as a routine delay caused on account of public
holidays and nothing sinister could be read into it, unless it was shown
that the police had any hostile animus or motive to implicate Sajjad
falsely. There is nothing in the cross examination regarding any
suggestion that the police had any motive to falsely implicate Sajjad in
the case. As such the testimony of the witnesses appears untainted and
hence, we are satisfied regarding the sanctity of the articles sent to
FSL.
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F. On CA Report regarding DNA:
24) The CA Report (Exhibit 132) dated 20 th October, 2012 is
on record. The DNA Report is at Exhibit 119. The DNA found on the
hair at the scene of the crime is established to be that of Sajjad. PW-38
has testified in that regard. He testified that he received the controlled
blood sample also in sealed condition. After receiving all the samples,
he broke open the seals. The DNA on the articles was amplified by
using the prevalent procedure of testing. PW-38 clearly deposed that
the blood stained hair and the DNA profile of Sajjad are identical and
the same were that of Sajjad. Nothing contradicting his testimony was
elicited in his cross-examination. Furthermore, Sajjad affirmed in his
Section 313 Cr.P.C statement that the DNA found on the hair at the
scene of crime and that found on the hair held by the deceased was
his.
G. On recovery of weapon:
25) PW-28 testified that Sajjad purchased the knife from him.
He identified the knife as sold by him. This knife, in fact, was
wrapped in a transparent plastic bag and cardboard and sealed with
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wax. Insofar as the recovery of knife is concerned, the same was
recovered at Sajjad's behest. The panch (PW-23) deposed that
pursuant to the disclosure statement of Sajjad, the knife was recovered
from a shoe rack on the 3 rd floor of Himalayan Heights. Dr. Chaudhry
argued that no person has claimed ownership to the shoe rack and
also that Sajjad would not have time to go to his room and get the
knife before committing the offense and hence, the recovery is tainted.
This is mere contemplation on the part of the defense based on
surmises and conjectures. There is no suggestion given to any of the
witnesses in this regard and the disclosure followed by the recovery of
the murder weapon fortifies the prosecution case.
H. On recovery of other articles:
26) The testimony of PW-22 has already established that Sajjad
stayed at the Society and kept his clothes in his cabin in the other
building called Julian Alps in the Ivory Towers Society. PW-15 deposed
in respect of recovery of Sajjad's clothes, chappals, belt and keys to
Pallavi's flat, pursuant to his disclosure statement. He affirmed that
the pants and chappals had stains of dried blood. The memorandum
panchanama at Exhibit 68 and 68-A records that, the articles were
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nd
seized, wrapped and sealed. PW-39 (2 I.O.) deposed regarding the
seizure of the articles in the presence of the panchas and depositing
the same in muddemal room. These articles were also sent to FSL on
13th August, 2012. The objection of Dr. Chaudhry regarding delay in
sending the articles to FSL is already discussed and dealt with herein
above.
27) Dr. Chaudhry has doubted the chain of custody of the
articles. However, on perusal of the testimony of PW-25 who deposed
regarding receipt of 4 sealed parcels, one plastic parcel and one sealed
bottle of blood with forwarding letter having the impression of seal
and acknowledgment of the FSL office, we are satisfied that the chain
of custody is unbroken. Once again, nothing is elicited from the cross-
examination of either PW-39, PW-25 or PW-38 who is the Assistant
Director of FSL at Kalina. PW-38's statement that the blood detected
on the full pant of Sajjad matches his DNA profile as well as that of
Pallavi also clinches the issue.
28) Sajjad's clothes worn on the date of incident are identified
by PW-4 and PW-19, who have stated that he was wearing the society
uniform, which was recovered at Sajjad's behest. The keys to Pallavi's
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flat were also recovered from the pocket of Sajjad's pants recovered as
aforesaid. PW-17, the panch, testified as to the seizing and the sealing
of the two keys. The keys were of Pallavi's flat. Much is again raised
by Dr. Chaudhry that the said keys could have been duplicate keys
made by the police as Avik had already handed over the keys to his flat
to the police. Admittedly, there is no panchanama or station diary
entry of receipt of the said keys from Avik. In an attempt to explain
this lapse on the part of the police, Mr. Mohite argued that, on 09 th
August, 2012, the significance of taking keys from Avik was not
appreciated. It was when Avik informed the police about the assault
on Pallavi and the FIR was registered that the police went to the flat to
conduct spot panchanama. It was perhaps at this time that the I.O.
concerned took keys from Avik to open the flat. The same were
handed over to Avik as he was still living there. Admittedly, there is no
record of this. However, there is no cross-examination of either Avik
or the I.O. on this point. In any case, the panchas also testified to the
discovery of the keys in Sajjad's pants. If we were to believe Dr.
Chaudhry's theory that the keys were planted by the police, we would
have to disregard the entire discovery of all the other articles
recovered from the cabin in the society, which is a far cry. The keys to
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the flat were found in the pocket of the recovered pants. The recovery
pursuant to the disclosure is of all the articles found in the tin box in
the cabin, collectively and if one is tainted, all the others follow suit.
But, if the sanctity of other articles is found to be of sterling quality,
that of the keys is inconsiderable. Since we are satisfied about the
sanctity of the evidence relating to the recovery of clothes, chappals
and other articles from the cabin, this theory woven by Dr. Chaudhry
is unbelievable.
I. Extrajudicial confession:
29) Another aspect of the prosecution's case is regarding the
extrajudicial confession made by Sajjad to PW-10 and PW-19. PW-10
deposed regarding missed calls received from Sajjad. When he called
him back, Sajjad informed him that "society main ek item ne mujhe
kaam karne nahi diya isliye maine usse maar daala". Thereafter, Sajjad
cut the call and after some time called back to ask for a loan of Rs.
10,000/- to go to his native place at J&K. Dr. Chaudhry has
questioned the testimony of PW-10 by saying that PW-10 is not a
reliable witness since he did not remember the registration number of
his employer's car and had also narrated a story that he was on leave
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th
and at home on 09 August, 2012 as he had loose motions from the
day before. However, the CDR of PW-10's mobile phone indicates
that he visited the Crime Branch office. Be that as it may, nothing is
elicited in the cross examination to doubt the testimony of these
witnesses. The flip flop of PW-10 regarding his movements on 09 th
August, 2012 does not have any substantial effect on his testimony
pertaining to Sajjad calling him and boasting about doing off Pallavi.
In fact, the very same CDR corroborates calls received by PW-10 from
Sajjad at the time that he has testified to.
30) PW-19 also deposed that at 05:00 a.m. on 09 th August,
2012, he received a call from Sajjad asking for Rs. 10,000/- loan to go
to his native place. At that time, he told PW-19 that he had killed
Pallavi Madam. PW-19 stated that at the time, he thought that Sajjad
was joking. Thereafter, upon learning of Pallavi's murder, he
immediately told the police regarding the phone call from Sajjad. PW-
19 deposed about receiving another call from Sajjad at around 07:00
a.m. when he was in Sion Hospital with the police. PW-19 deposed
that he asked Sajjad why he killed Pallavi but, Sajjad only inquired as
to whether he was ready to loan him the money and cut the call. The
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testimony withstood the cross-examination. Nothing was elicited from
the cross-examination in this regard. Dr. Chaudhry has raised three
points in an attempt to demolish this testimony, albeit nothing of such
kind is forthcoming in the cross-examination of either PW 19 or PW
34 (the first I.O. to whom PW 19 informed regarding the call from
Sajjad). Firstly, Dr. Chaudhry muses as to why Sajjad was not arrested
on the very same day on the information given by PW 19 to the I.O.
regarding Sajjad's phone call; secondly, Dr. Chaudhry says that the
passbook of Sajjad showed a balance of Rs. 8,000/- in his own bank
account, which negates the story that Sajjad was in need of money;
and thirdly, there was no reason for Sajjad to confide in his supervisor
as they were not friends but PW-19 was Sajjad's senior. In answer to
these surmises raised by Dr. Chaudhry pertaining to Sajjad's intent,
Mr. Mohite argued that the musings of Dr. Chaudhry have not
translated in cross-examination of the I.O. pertaining to why Sajjad
was not arrested as soon as PW 19 conveyed receiving a telephone call
from Sajjad. This aspect is raised for the very first time in the
arguments before this Court. Regarding the request for money from
PW 10 and 19, Mr. Mohite stated that, Sajjad probably was hesitant to
go to his bank, fearing recognition by the police and he wanted money
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quickly without detection. Furthermore, there was a camaraderie
amongst the security personnel working in the society and hence,
despite the title of supervisor of PW-19, there was really no class
ranking or a formal hierarchy in the security personnel. In State of UP
v. Devendra Singh (supra, at 46), the Supreme Court has held that, to
discard the evidence of a witness on the ground he did not react in a
particular manner is to appreciate evidence in wholly unrealistic and
unimaginative way. There is no set rule of natural reaction. Every
person who witnesses a serious crime reacts in different ways, some
are stunned, some become speechless, others run away. Different
people behave differently in different situations and how a person
would react in a given situation can never be predicted. It is thus
difficult, nay impossible to hold with certainty as to why Sajjad called
and confided in the aforesaid witnesses or why he wanted money
despite having some in his bank account.
31) Per contra, Dr. Chaudhry relied upon a decision of the
Supreme Court in Kalinga alias Kushal (supra, at 10) in which the
Apex Court observed that extrajudicial confession must be accepted
with great care and caution and if not supported by other evidence, it
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fails to inspire confidence. It is a weak piece of evidence generally
used as a corroborative link to lend credibility to other evidence on
record. We have perused the said decision and analyzed its
applicability to the facts in the present case. Admittedly, the standard
required for proving an extrajudicial confession to the satisfaction of
the Court is on the higher side, however, its acceptability depends on
the voluntary nature of the confession and its contents. The CDR's
exhibited in the present case establish that the calls to the witnesses
were initiated by Sajjad. There is no element of force or coercion
employed by the witnesses on him. The nature of the said confession
is essentially in the manner of sharing a confidence with a friend. The
Supreme Court in its decision in Gagan Kanojia (supra, at 39) held as
under:
"23. Extra-judicial confession, as is well known, can
form the basis of a conviction. By way of abundant
caution, however, the court may look for some
corroboration. Extra-judicial confession cannot ipso
facto be termed to be tainted. An extra-judicial
confession, if made voluntarily and proved can be relied
upon by the courts."
Admittedly, there is no suggestion in the cross-examination of these
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witnesses, to even remotely suggest any coercion on their part on
Sajjad. Considering the above discussion, we have no hesitation in
accepting the veracity of the extra judicial confession made by Sajjad
to the witnesses. The statements of the said witnesses inspire
confidence.
J. Contradictory statements given by Sajjad and unexplained
injuries on his person:
32) Coming to the next aspect in the matter regarding
unexplained injuries on the person of Sajjad and the contradiction in
his statement given to the medical doctor during examination and the
disclosure statement leading to the recovery of the keys etc., PW-26
i.e., the Doctor of Nagpada Police Hospital, deposed that Sajjad had 5
injuries on his person. Age of the injuries were within 48 hours. There
were nail scratches caused while resisting assault. No contradiction of
any relevance is elicited in the cross examination of the doctor.
However, Dr. Chaudhry has an interesting twist to the statement given
by Sajjad to the Doctor. Exhibit 91 is the Medical Examination
Certificate. Under the heading of Medical History given by the patient
in the certificate, it is recorded that Sajjad informed the Doctor that
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the injuries were caused while he climbed the pipeline from the duct
of the building upto 16 floors of the building and entered the
bathroom of Pallavi's flat from the window. He said that he opened
the door of Pallavi's bedroom and entered the bedroom. Pallavi got up
and started shouting and quarrel started between Sajjad and Pallavi.
During the scuffle, Sajjad suffered the injuries on his body. On the
contrary, Dr. Chaudhry pointed out that the Prosecution case is that,
Sajjad flicked the keys to Pallavi's flat when he accompanied PW-22 to
the flat to check the electricity on the night of 8 th August, 2012. Dr.
Chaudhry pointed to the discrepancy in Sajjad's statement and the
case mounted by the Defense. We have perused the statement of Sajjad
given to the Medical Doctor in the office of the Police Surgeon, Police
Hospital, Nagpada. The recovery of keys to Pallavi's flat from Sajjad is
a reliable piece of evidence and is covered by Section 27 of the IE Act.
Moresoever, the testimony of PW-4, who saw Sajjad outside Pallavi's
flat at 1:30 a.m. supports the prosecution case that Sajjad entered the
flat with the said keys. In any which way, the testimony of PW-4 and
other witnesses have established Sajjad's presence at the spot of the
crime hence, the discrepancy in Sajjad's statement given to the doctor
is not enough to turn the case in his favor.
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K. On CCTV footage / fingerprints & footprints:
33) There are few other points raised by Dr. Chaudhry to
buttress his contention that there were lapses in police investigation.
For e.g. according to Dr. Chaudhry, CCTV footage was not collected
by the police. Similarly the finger prints and foot prints were not
collected from the spot of the crime. In so far as the CCTV is
concerned, the witnesses have stated that though there were CCTV
cameras installed in some parts of the society, none of them were
working. Thus, this cannot be a lapse on the part of the police that the
societies internal CCTV cameras were not in working condition. No
purpose could be served in collecting the CCTV cameras when there
was no footage available. Regarding the finger prints not collected
from Pallavi's flat, there were no amplifiable finger prints found at the
spot. Neither was there any collectible foot prints in the house. Dr.
Chaudhry's contention is that since it was alleged that Sajjad's pants
were blood stained, logically there ought to have found foot prints of
blood. In this regard, we have perused the testimonies of the witnesses
concerned. It was only the hem of the pant on which dried blood was
found, at the time of discovery. Blood found on the hem of the pants,
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does not necessarily indicate that the assaulter must have left bloodied
foot prints behind. In any case, there were found some foot prints but
then again, they were not liftable. Lack of additional evidence does
not vitiate existing cogent evidence, pointing to the guilt of the
convict.
L. Postmortem report:
34) Finally, the Postmortem report at Exhibit 77 proved by Dr.
Dere (PW-18) records the cause of death as 'Hemorrhage shock due to
cut throat injury (unnatural)'. The evidence on record established by a
number of witnesses, including the medical doctor, indicates a brutal
murder of a young woman, resisting sexual assault and being
repeatedly stabbed 17 times by a knife, her throat was cut to stop her
from screaming and her attempts to open the window to shout for
help was defeated by her assaulter.
M. On applicability of Section 464 Cr.PC (Argument of the
Revision Applicant):
35) Mr. Yende argued that the string of the shorts worn by
Pallavi was broken. The bedsheets in the bedroom were mangled and
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in disarray. There was blood all over, pillows were strewn on the
bedroom floor. Coupled with the established motive of Sajjad, it is
obvious that his act amounted to an attempt to rape. The fact that the
deceased resisted the attempt to rape does not make the act less
serious. He submitted that the Trial Court ought to have charged and
convicted the accused under Section 376 read with Section 511 of the
IPC. He prayed that Section 464 Cr.PC be invoked and Sajjad be
convicted for the charge of attempt to rape despite the same not being
framed by the Trial Court. We have perused the statutory provision of
Section 464. It is a matter of record that neither the State nor the
Revision Applicant had assailed the charges framed by the Trial Court
or sought framing of additional charge. We are not inclined to either
direct the Trial Court to frame charge under these Sections and record
evidence from the point immediately after framing of the charge or
direct a new trial upon framing of the additional charge.
V. FINAL CONCLUSION:
36) An in-depth analysis of the facts in the present case and
the testimony of the witnesses as substantial evidence, clearly
establishes the 'Panchsheel' of the proof of the guilt of the Appellant
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(Sajjad) based on established circumstantial evidence. The five golden
principles laid down in the landmark case of Sharad Birdhichand
Sarda (supra, at 58), including the legal distinction between 'may be
proved' and 'must be proved' is bridged. The motive for commission
of the offence is established. Sajjad wanted to have sexual relations
with Pallavi. The witnesses established as much that Sajjad expressed
his desire while in Pallavi's flat itself. Thereafter, once the Security
Supervisor left for the other building, Sajjad was seen doubling back to
Pallavi's building. At the precise time, Pallavi's neighbour saw Sajjad
outside her flat at 01:30 a.m. on the pretext that Avik had called him,
when Sajjad was fully aware that Avik was not at home. Sajjad is the
last person seen outside Pallavi's flat with clear intent in entering it.
The following morning, Pallavi is found dead; there is a pool of blood
in the flat, outside the flat, near the lift. Sajjad is nowhere to be seen
when he was supposed to be on duty. Sajjad calls up two witnesses and
confesses his guilt while seeking monetary help to return to his native
land. He is arrested. The knife vendor establishes purchase of knife by
Sajjad, which is recovered from a shoe rack on the 3 rd floor of Pallavi's
building. Similarly, Sajjad's shirt, pant, comprising his uniform,
chappals. etc. are recovered from the cabin in another building of the
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society, which was used by Sajjad. Blood stains collected from the
clothes match the DNA of Sajjad and Pallavi. Keys to Pallavi's flat are
recovered from Sajjad's pant pocket. There are unexplained injuries
on his person which are consistent with the scuffle he had with Pallavi.
All these established facts are consistent with Sajjad's guilt and the
chain of evidence is so complete as there is no reasonable ground for a
conclusion consistent with his innocence. In all human probability, the
act of murder of the deceased is done by the Sajjad. We thus, answer
point for determination (i) in the affirmative.
37) The evidence on record, when assessed in its entirety,
establishes the guilt of the Appellant beyond all reasonable doubt. The
observations of the Trial Court are compelling and do not warrant any
interference. The prosecution has established its case beyond all
reasonable doubts based on legal, admissible and cogent evidence. In
so far as the sentence imposed by the Trial Court is concerned, Dr.
Chaudhry is correct to say that the Trial Court is foreclosed from
imposing a sentence of rigorous imprisonment for life, which shall
mean imprisonment for the remainder of his natural life, while
convicting him for the offense punishable under Section 302 of the
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IPC and also imposing a sentence to suffer RI for five years along with
fine of Rs. 3,000/- for the offense punishable under Section 354 of the
IPC, since the law for the time being in force, at the time of
commission of the offense, did not prescribe the sentences as imposed.
The Trial Court appears to have committed an error to the limited
extent of sentencing. However, this Court, as a Constitutional Court
has the power to impose a modified punishment providing for any
specific term of incarceration or till the end of the convict's life as an
alternate to death penalty. We, are of the view that interests of justice
will be met in sentencing the convict to Rigorous Imprisonment for
life, which will mean imprisonment till the end of his natural life. He
will not be entitled to the grant of parole or furlough. We deem this
appropriate based on the conduct of the convict who has on previous
occasion absconded and was returned to prison after a period of 1 and
half year from near the Pakistan border. We thus, consider it
appropriate to confirm the sentence of imprisonment for life to mean
the remainder of natural life, while upholding the conviction under
Section 302 and 354 of the IPC. The second issue is answered
accordingly.
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38) In view of the aforesaid discussion, we are of the opinion
that the Judgment and Order impugned herein is a well reasoned and
legally sound decision. Both the Appeals and the Revision Application
thus fail and are accordingly dismissed. The conviction and sentence
of the Appellant (Sajjad) for the offenses as stated aforesaid stand
confirmed.
39) In view of the disposal of the Appeals and Revision
Application, nothing survives for consideration in the Interim
Application, accordingly same is also disposed of.
(DR. NEELA GOKHALE, J.) (A.S. GADKARI, J.)
