Bombay High Court
Wasim Khan Chand Khan vs The State Of Maharashtra Thr. Pso., P.S. ... on 8 September, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
(1) 35appa938.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION NO. 938/2024 IN CRIMINAL APPEAL NO.536/2024
Wasim Khan Chand Khan .Vs. State of Maharashtra through PSO P. S. Daryapur,
Amravati, Dist. Amravati.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Opai Mohd. Naveed Mohd. Parvez, Advocate for applicant-
appellant.
Mr. S. A. Ashirgade, A.P.P. for non applicant - State.
CORAM : ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
DATE : SEPTEMBER 8, 2025
Heard.
2. Applicant - original accused, has filed application
seeking to suspend the sentence. The allegation against the
applicant is that he has, on 29.11.2018, at about 22:00 hrs.,
committed murder of his wife. The applicant has been convicted
for the offence punishable under Section 302 of the Indian
Penal Code, 1860 and sentenced to suffer life imprisonment. He
is, however, acquitted of the offence punishable under Section
498A of the IPC.
3. Having heard both sides and having gone through the
impugned judgment, evidence and other materials placed before
us, it appears that the prosecution's case rests on last seen
together theory as also on extra judicial confession made by the
applicant.
4. On last seen theory, learned A.P.P. has invited our
attention to evidence of PW7 Akil, who deposed that he is
acquainted with the applicant and the deceased. On the date of
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incident, while he was going to distribute milk, he saw applicant
coming from his house. The applicant demanded tobacco, which
the witness gave. Thereafter, the witness left for his job.
5. In our view, the evidence will only establish presence
of the applicant in his house. There is nothing to show that the
witness has seen the deceased i.e. applicant's wife in the house
or with the applicant. In the circumstance, argument of the
prosecution that the witness has last seen together the applicant
and the deceased, is apparently not appealing.
6. On the evidence of extra judicial confession, our
attention is invited to PW8 Shaikh Amanullah. He deposed that
the applicant is his relative. On 29.11.2018, in the night, he
received a phone call from applicant, who informed him that he
had a quarrel with his wife and in that quarrel he pressed her
throat. The witness suggested the applicant to take his wife to
the hospital. Later on, the witness came to know that the
applicant has killed his wife. In the cross-examination, the
witness admitted that one day prior to recording his statement,
he had been to Police Station, Daryapur where he was detained
by police.
7. Trial Court disbelieved this witness, maybe because
his statement has been obtained by police by detaining him in
police station. We are in agreement with the view taken by the
Trial Court. If the witness has been detained by police one day
prior to recording his statement, there is every reason to believe
that the statement has been extracted from the witness and,
therefore, cannot be relied upon.
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8. Other evidence is in respect of homicidal death and
about harassment caused by applicant to his wife. The evidence
of harassment was led to bring home the guilt under Section
498A of the IPC, which the Trial Court was not convinced with.
We need not, therefore, delve upon the testimony of the
witnesses on the point of harassment.
9. So far as homicidal death is concerned, even if it is
admitted that the death is homicidal, the question is whether
the applicant is responsible for the murder. The evidence, which
we have dealt with, appears to us to be lacking necessary
ingredients for conviction under Section 302 of the IPC.
10. The Trial Court appears to have swayed away with the
theory of last seen together. In our view, it is but natural that
the husband and wife will reside together. The question,
however, is whether on the date of incident, they were seen
together in the house. The evidence, as discussed, indicates that
PW7 has only seen the applicant in the house. The witness did
not disclose the time. The offence has been allegedly committed
at 22:00 hrs. Thus, in the meantime, who had entered the
house and where was applicant is not known.
11. The Trial Court relied upon judgment of the Supreme
Court in the case of Trimuka Maroti Kirkan Vs. State of
Maharashtra [AIR 2006 SCW 5300], where the Hon'ble Apex
Court held that where an accused is alleged to have committed
murder of his wife and the prosecution succeeds in leading
evidence to show that shortly before commission of crime, they
were seen together or the offence has taken place in dwelling
home where the husband also normally resides and if the
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accused does not offer any explanation how the wife received
injuries, it is a strong circumstance, which indicates that he is
responsible for commission of crime.
12. In the present case, evidence indicates that the
deceased has been killed in the dwelling home where the
applicant normally resided and, therefore, absence of
explanation will only give rise to suspicion of involvement of
applicant in crime. The law, however, is well settled that the
suspicion, howsoever strong it may be, will not take place of
proof beyond reasonable doubt. Corroboration to the theory of
prosecution will be wanting in such set of facts, which is
apparently absent in the present case.
13. That being so, the applicant has made out a case for
suspension of sentence.
14. Accordingly, the application is allowed. The sentence
of conviction passed by the learned Additional Sessions Judge,
Achalpur, in Sessions Trial No. 19/2019, convicting the
applicant under Section 302 of the Indian Penal Code, 1860,
stands suspended. The applicant - Wasim Khan Chand Khan,
shall be released on bail on his furnishing Personal
Recognizance Bond in the sum of Rs.50,000/- with one or two
sureties in the like amount.
15. The applicant shall not indulge into any illegal
activities. The applicant shall attend the jurisdictional police
station, viz. police station - Daryapur, District - Amravati, on
first Monday of every month between 11:00 am to 1:00 pm. The
applicant shall appear before the Court as and when directed.
(5) 35appa938.24
The applicant shall monitor progress of appeal and shall appear
before the Court on the date of final hearing of appeal.
16. The learned A.P.P. or the Investigating Officer is at
liberty to seek cancellation of bail, if any of the condition, is
breached or for any other sufficient reason.
17. The application is disposed of in terms of above.
(Siddheshwar S. Thombre,J.) (Anil L. Pansare, J.)
Kahale
