Bombay High Court
Sallauddin @ Bablu Nizamuddin Shaikh vs The State Of Maharashtra on 7 February, 2017
Author: Revati Mohite Dere
Bench: V.K.Tahilramani, Revati Mohite Dere
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.32 OF 2011
Sallauddin @Bablu Nizamuddin Shaikh
Aged 24 years, Indian Inhabitant,
Serviceman by Profession,
Permanent Resident of
Mohalla Shahdagir,
Ghatki Mandi, Nagina,
District - Bijnauar,
Uttar Pradesh.
(Presently lodged at Nasik Road ...Appellant
Central Prison). (Orig. Accused)
Versus
The State of Maharashtra,
(At the instance of Kurar Police Station,
vide there C.R.No.244 of 2007. ...Respondent
Ms.Naima Shaikh i/b Mr.Khan Abdul Wahab, for the Appellant.
Mr. H. J. Dedia, A.P.P for the Respondent-State.
CORAM : SMT.V.K.TAHILRAMANI &
REVATI MOHITE DERE, JJ.
DATED : 7th FEBRUARY, 2017
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JUDGMENT (Per Revati Mohite Dere, J.) :
1. The appellant has impugned the Judgment and Order dated 8th September, 2010, passed by the learned Additional Sessions Judge, Bombay in Sessions Case No.1 of 2008, convicting and sentencing, him as under:-
- for the offence punishable under Section 302 r/w 34 of the Indian Penal Code, to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer further rigorous imprisonment for one year;
- for the offence punishable under Section 397 r/w 34 of the Indian Penal Code, to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default to suffer further rigorous imprisonment for six months. Both the aforesaid sentences were directed to run concurrently.
2. The prosecution case in brief is as under:-
The Sallauddin @Bablu Nizamuddin Shaikh and deceased - Javed were working in 'Super Fast Communication Centre', Malad (East), Mumbai. The owner of said company was ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:15 ::: 3/20 apeal.32.2011.doc Eqbal Nasaruddin Ansari (PW.7). According to PW.4 - Sayyad Ahmed Faiyaz Ahmed Ansari (complainant), he visited 'Super Fast Communication Centre' on 15 th September, 2007 at about 7.45 a.m. and found Javed lying in the bathroom with a sharp cut injury over his neck. Accordingly, he informed his employer, Eqbal Nasaruddin Ansari (PW.7) and narrated what was seen by him. Eqbal Ansari as well the police arrived at the spot. PW.4 -
Sayyad lodged the report/FIR, which was reduced into writing. The same is at Exhibit-23. Thereafter investigation commenced. The spot panchanama was prepared, the articles from the spot including blood stained knife were seized, the body was sent for post mortem examination, the statement of the witnesses were recorded etc. The doctor who conducted the post mortem examination opined that the probable cause of death was 'Haemorrhage and shock due to chop wound with multiple perforating wounds (unnatural)'. The appellant was arrested on 21st September, 2007 vide arrest panchanama, Exhibit - 17. The blood stained clothes of the appellant were seized from his person. All the articles were sent to the Chemical Analyser. After completion of the investigation, charge-sheet was filed as ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:15 ::: 4/20 apeal.32.2011.doc against the appellant, in the Court of the learned Judicial Magistrate First Class. As the offences were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. As the co-accused was absconding, the trial of the appellant was separated and the trial Court proceeded as against the appellant.
The learned Additional Sessions Judge was pleased to frame charge as against the appellant for the offences punishable under Sections 302 r/w 34 and Section 397 r/w 34 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
The prosecution in support of its case examined as many as 11 witnesses.
The learned Judge after hearing the parties was pleased to convict the appellant, for the offences as afore-stated in para 1.
3. Learned Counsel for the appellant assailed the Judgment on several counts. She submitted that the prosecution had not proved the circumstances as against the appellant ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:15 ::: 5/20 apeal.32.2011.doc beyond reasonable doubt and that each of the circumstance as against the appellant was unreliable and doubtful. She submitted that the evidence of last seen and seizure of blood stained clothes from the appellant's person did not inspire confidence and as such the possibility of somebody else committing the alleged offences could not be ruled out.
4. Learned APP supported the Judgment and Order of conviction and sentence and prayed for dismissal of the appeal.
5. It is not in dispute that the conviction in the present case is based solely on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra 1, it was held that the onus is on the prosecution to prove that the chain of circumstances is complete and that falsity or untenability of the defence set up by the accused cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Apex Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of the circumstantial evidence. These 1 (1984) 4 SCC 116 ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:15 ::: 6/20 apeal.32.2011.doc are :-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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."
Thus, in a case of circumstantial evidence, the prosecution must establish the incriminating circumstances, by reliable, cogent and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached.
6. We have given our anxious considerations to the submissions made by the learned counsel for the Appellant and the learned APP for the State and after going through the ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:15 ::: 7/20 apeal.32.2011.doc evidence on record and keeping in mind the cardinal principles to be considered in a case resting on circumstantial evidence, find that the prosecution has failed to prove the circumstances as against the appellant.
7. As far as homicidal death is concerned, learned counsel for the appellant does not dispute that deceased - Javed died a homicidal death. The opinion given by the doctor with regard to the probable cause of death is 'Haemorrhage and shock due to chop wound with multiple perforating wounds (unnatural)'. Thus, there is no dispute about the fact that deceased - Javed died a homicidal death. The question is whether the appellant is the author of the said injuries caused to deceased - Javed.
8. As far as the evidence of PW.4-Sayyad (complainant) is concerned, he has stated that the deceased - Javed and the appellant were working with Eqbal Nasaruddin Ansari (PW.7), the owner of 'Super Fast Communication Centre', which was carrying out work of repairs of mobile phone, operating xerox ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 8/20 apeal.32.2011.doc machines, PCO and STD booth. He has stated that both, the deceased and the appellant used to stay in the night in the said shop. He had stated that as the workers would wake up late, as per the direction of his employer i.e. Eqbal Ansari, he used to visit the said shop in the morning and wake them up. He has stated that on 10th September, 2007, the appellant informed Eqbal Ansari (PW.7), that he was going to visit his native place on the next day and accordingly left the shop on 11 th September, 2007 and as such Javed was alone in the shop. He has stated that on 15th September, 2007 at about 7.45 a.m. when he went to the shop to wake up Javed, both, the big and small shutter doors of the shop were closed. He has stated that he knocked the small shutter, however, he received no response and found that the small shutter was latched from outside. He has stated that he removed the latch of the small shutter and entered the shop and noticed that the light was on, the counter was moved to one side and the bed-sheet and pillow were lying. He has stated that he searched for Javed and found him lying in the bathroom. He also noticed that Javed had sustained a sharp cut injury on his neck. He had stated that on seeing the same, he ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 9/20 apeal.32.2011.doc was frightened and accordingly came out of the shop and closed the shutter and went to Eqbal Ansari's house and disclosed to him the aforesaid facts. He has stated that Eqbal Ansari thereafter called the police and that he along with Eqbal came to the shop, by which time the police had also arrived. He has stated that an oral report was lodged by him, which was reduced into writing as per his say, on the very same day. He has identified the signature on the report, which is at Exhibit - 23.
9. In the cross examination of PW.4-Sayyad has admitted that before Ramzan, the appellant had asked his employer to clear his account, as he wanted to visit his native place. He has also admitted that on the first day of Ramzan, the appellant had informed their employer Eqbal Ansari (PW.7) and left the shop for his native place. He had stated that he had last met the appellant on 12th September, 2007.
10. According to PW.7-Eqbal Ansari, he had employed the appellant and deceased - Javed, to serve in 'Super Fast Communication Centre'. He has stated that in the night they ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 10/20 apeal.32.2011.doc used to sleep in the said shop. According to Eqbal Ansari, one month prior to the incident, the appellant had informed him that he wanted to visit his native place and had accordingly asked him to settle his account. He has stated that accordingly on 11 th September, 2007, he had settled the appellant's account by paying the entire amount which was due to him. According to PW.7-Eqbal, on 12th September, 2007 at about 10.00 a.m. deceased - Javed informed him that the appellant and his brother had told him that they were going to Govandi first and then to their native place. He had further stated on 14 th September, 2007 at about 11.00 p.m, Javed had come to his house and expressed his desire to offer prayer known as Tarabi and had made enquiries, as to which mosque he would have to go for the same. He has stated that he informed Javed that he would make enquiry and inform him later. Javed (deceased) is also stated to have informed Eqbal, that he had collected Rs.13,500/- and had kept the same in the shop; and that the appellant had called and informed him that he had reached his native place. According to Eqbal Ansari on 15 th September, 2007, PW.4-Sayyad had come to his house at about 8.15 a.m. and ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 11/20 apeal.32.2011.doc informed him, that Javed had been murdered by somebody in the 'Super Fast Communication Centre'. Pursuant thereto, Eqbal and PW.4-Sayyad visited the Kurar Police Station and then came to the spot alongwith the police. He has stated that he found Javed lying in the shop, with cut injuries on the neck, hand and abdomen. He has stated that the police accordingly recorded his statement. According to Eqbal Ansari on 16 th September, 2007, his supplementary statement was recorded, in which he disclosed about collection of Rs.13,500/- and that the same was stolen from the shop.
11. It is elicited in the cross examination of this witness that the appellant was serving in his shop for about eight months and that there was no complaint against him. Eqbal has also admitted that he had not verified whether a sum of Rs.13,500/- was there in the shop, when he visited the shop, soon after learning about the incident, pursuant to the disclosure made by Javed on 14 th September, 2007 at 11.00 p.m. ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 12/20 apeal.32.2011.doc
12. The evidence of both these witnesses i.e. PW.4 - Sayyad (complainant) and PW.7-Eqbal Ansari, shows that the appellant was working in the Super Fast Communication Centre; that he asked Eqbal (employer) to settle his dues till 11 th September, 2007, as he was going to his native place; that the appellant was not seen by them after 12 th September, 2007 in the shop and that Javed had informed Eqbal on 14 th September, 2007, at 11.00 p.m., that the appellant had called and informed him, that he had reached his native place. Both these witnesses do not spell out any motive for the appellant to cause Javed death. Infact, there is no evidence of motive adduced by the prosecution. Thus, these witnesses do not in any way further the prosecution case.
13. In order to prove the circumstance of last seen as against the appellant, the prosecution has examined PW.5- Mohammad Rashid. Mohammad Rashid has in his evidence stated that he was dealing in the sale of bakery products in Pathanwadi for the last 12 to 13 years. He has stated that Eqbal Ansari (PW.7) was also running a grocery shop at Pathanwadi, ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 13/20 apeal.32.2011.doc Eqbal bakery at Malad (East) and Super Fast Communication Centre at Sanjay Nagar, Malad (East). He has stated that he knew both, i.e. the deceased and the appellant, as they were working in the Super Fast Communication Centre. According to Mohammad Rashid, on 15th September, 2007 at about 3.30 a.m., Eqbal Ansari's wife served him food and handed over a food packet for Javed (deceased). He has stated that pursuant thereto, he carried the food for Javed at about 3.45 a.m. He had stated that the shutter of the said shop i.e. 'Super Fast Communication Centre' was closed and hence he knocked on the shutter. He has stated that Javed opened the shutter, pursuant to which he entered the shop and handed over the food to Javed. According to Mohammad Rashid, he saw the appellant and his brother in the shop. He has stated that he enquired with Javed as to how the appellant and his brother were present in the shop, when they were supposed to go to their native place. He has stated that Javed informed him, that the appellant and his brother had missed their train and hence they had come to the shop at 12.00 midnight. Javed is also stated to have informed him, that the appellant and his brother were to leave ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 14/20 apeal.32.2011.doc the shop in the morning. According to PW.5 - Mohammad Rashid, when he was departing from the shop, Javed asked him to place an order in Hussaini Hotel, for tea and biscuit, pursuant to which, he placed the said order and proceeded to his shop. He had stated that on 15th September, 2007, he learnt from Eqbal Ansari about Javed's murder, pursuant to which he visited the 'Super Fast Communication Centre'.
14. It is elicited in the cross examination of this witness that he would collect food from the house of Eqbal Ansari for the deceased and the appellant and deliver it to them, at the shop. A material omission was brought on record with regard to the disclosure made by Javed, 'that the appellant and his brother had been to the shop at 12.00 in the midnight, as they had missed their train'. Several suggestions were also made to this witness with regard to his presence at the shop on 15 th September, 2007 at about 3.45 a.m. and with regard to the dialogue that took place between him and Javed and the presence of the appellant in the shop, however, the said suggestions have been denied by him.
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15. Having carefully analyzed the last seen evidence, we are of the opinion, that it is unsafe to rely on the testimony of PW.5 - Mohammad Rashid. Although, PW.5 - Mohammad Rashid had stated that he would take food from Eqbal Ansari's house and deliver the same to Javed and the appellant every day, it is difficult to comprehend, why on that day, the food was being delivered at such an unearthly hour i.e at 3.45 a.m. If the food was delivered as contended by the prosecution, the spot panchanama ought to have revealed the finding of food items or some container at the spot. The same is also not borne out from the spot panchanama. Apart from the aforesaid, there is a material omission with regard to the disclosure made by Javed to him, that the appellant and his brother had missed the train to go to their native place and that they would be leaving in the morning. Similarly, if the deceased - Javed had ordered for tea and biscuit, as stated by PW.5-Mohammad Rashid, he would have certainly ordered for three cups and not for one cup, if the appellant and his brother were to leave in the morning. Hence, considering the improbabilities, we find it extremely unsafe to rely on the testimony of this witness.
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16. Abid Hussain Ibrahim Marejiya had been examined by the prosecution as PW.6 to prove that the deceased was alive between 4.30 to 4.45 a.m. According to PW.6 - Abid, he was serving as a waiter in Hussaini Hotel at Sanjay Nagar, Malad (East), Mumbai. He has stated that he had attended the said hotel on 14th September, 2007 at 7.00 p.m. and that the said hotel was open through the night, on account of Ramzan. He has stated that about 4.30 a.m., Akbarbhai who was on the counter of the hotel, asked him to deliver tea and biscuit in the Communication Centre. He has stated that when he visited the said shop, the small shutter was partially open and that he served tea and biscuit packet to Javed. He has stated that Javed asked him to carry the empty glass later and hence he had been to the communication centre to take the empty glass back.
17. From a perusal of the cross examination of PW.6-Abid, it appears that he was not personally aware as to who had placed the order for tea and biscuit, but he had on the direction of Akbarbhai made the said delivery. It is elicited in his cross examination, that he had made the delivery between 4.30 to ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 17/20 apeal.32.2011.doc 4.45 a.m., on 15th September, 2007. He has admitted that he had placed the glass of tea and biscuit packet in Javed's hand.
18. A perusal of the evidence of PW.6-Abid shows that when he went to the shop at about 4.30 to 4.45 a.m., he delivered a cup of tea and biscuit pack. It is also pertinent to note, that PW.6 - Abid had seen Javed alive at about 4.30 to 4.45 a.m. The said witness does not talk about the presence of the appellant or having heard or noticed any other person apart from Javed, in the shop. Infact, the evidence of this witness shows that the deceased was alive at 4.30 to 4.45 a.m., when he served him a cup of tea and biscuit packet. Looking to the evidence of this witness, we are of the opinion that this witness does not in any way further the prosecution case.
19. The other evidence as against the appellant is of seizure of blood stained clothes from his person. As noted earlier the incident had taken place on 15th September, 2007, whereas the appellant was arrested on 21 st September, 2007 i.e. after almost 6 days. It is highly improbable that the appellant would ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 18/20 apeal.32.2011.doc continue to wear the same clothes which were blood stained for six days. Hence, the seizure of blood stained clothes of the appellant from his person, at the time of arrest, does not inspire confidence.
20. As far as missing of Rs.13,500/- from the shop is concerned, we may note, that the evidence in that regard also does not inspire confidence. It is pertinent to note, that Eqbal Ansari (PW.7), in his 1st statement has not stated about the disclosure made by Javed to him at 11.00 p.m., that he had collected Rs.13,500/-; and that the same was missing. No money has been recovered from the accused nor is there any evidence to show what was the sale done, for which the said amount was collected, that evening/night.
21. As noted earlier, there is no motive which has come on record. Considering the aforesaid facts, we are of the opinion that the prosecution has utterly failed to prove the offence against the Appellant beyond reasonable doubt. ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 :::
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22. In cases of circumstantial evidence, it is incumbent for the prosecution to prove each and every circumstance on which it proposes to rely. The circumstance so proved should be of an incriminating nature and should form a complete chain, which should exclude every hypothesis of innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstances should be of such a nature as to lead to the conclusion that it is the accused and the accused alone who committed the offence.
23. In the present case, we find that the prosecution has failed to forge a chain of circumstances which would exclude every hypothesis of the innocence of the Appellant. The Appellant, therefore, in our opinion would be entitled to be given the benefit of doubt.
24. In the premise, Criminal Appeal is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the Appellant, be ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 ::: 20/20 apeal.32.2011.doc refunded to him. Since the Appellant is in jail, he be released forthwith, if not required in any other case. Writ is expedited.
25. All concerned to act on the authenticated copy of this order.
(REVATI MOHITE DERE, J.) (V.K.TAHILRAMANI, J.) ::: Uploaded on - 15/02/2017 ::: Downloaded on - 27/08/2017 15:54:16 :::