Bombay High Court
Sayyed Firoz Sayyed Ismail vs The State Of Maharashtra on 14 December, 2010
Author: A. R. Joshi
Bench: A. H. Joshi, A. R. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 449 OF 2010
Sayyed Firoz Sayyed Ismail
aged about 41 years,
r/o Jurli, Tah. Ghatanji,
Distt. - Yavatmal.
(presently in jail) :: APPELLANT
-: Versus :-
The State of Maharashtra
through Police Station Officer,
Police Station, Parwa,
District - Yavatmal. :: RESPONDENT
.............................................................................................................................
Mr. Shashank V. Manohar, Advocate for the appellant.
Mrs. Sangeeta S. Jachak, Additional Public Prosecutor for the respondent-State.
.............................................................................................................................
CORAM : A. H. JOSHI & A. R. JOSHI, JJ.
DATED : 14th DECEMBER, 2010
JUDGMENT (Per A. R. Joshi, J.)
1. Heard rival submissions. Perused the reasonings given by the Extra Joint Ad-hoc Additional Sessions Judge, Pandharkawada (Kelapur) while deciding Sessions Trial No. 20/2004. Also perused the substantive evidence of 13 prosecution witnesses and certain relevant documents including postmortem report ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 2/12 and injury certificate of the appellant/accused No.1.
2. Present appellant/accused No.1 faced Sessions Trial No. 20/2004 along with 2 other co-accused. They faced the charges punishable under Sections 302, 201, 211, 498-A read with Section 34 of the Indian Penal Code. By judgment and order dated 23/7/2010 in Sessions Trial No.20/2004, present appellant/accused No.1 was convicted for the offence punishable under Sections302 I.P.C. and was sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for 6 months. He was also convicted for the offence punishable under Section 201 I.P.C. and sentenced to suffer simple imprisonment for 3 years and to pay fine of Rs.1,000/-, in default, simple imprisonment for 3 months. He was acquitted for the offence punishable under Sections 211 and 498-A of the Indian Penal Code.
Original accused Nos. 2 and 3 were acquitted of all the charges.
3. Being aggrieved by the conviction for the offence punishable under Section 302 and 201 of the ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 3/12 Indian Penal Code, present appellant/accused No.1 preferred this appeal. The State of Maharashtra did not prefer any appeal against acquittal of accused Nos. 2 and 3 for all the charges and acquittal of accused No.1 for the charge punishable under Section 211 and 498-A of the Indian Penal Code.
4. Case of the prosecution in nutshell can be mentioned as under :-
a) Deceased Shamim Bano was married to the brother of accused No.1 about 6 years prior to her death which occured on 30/8/2004.
She was residing in joint family in which all the accused persons i.e. brother in law and daughter in laws were also residing. She had two issues. After marriage, for few years, there was no ill-treatment to her.
Subsequently her husband become mentally ill and accused No. 1, elder brother of her husband dominated the family and allegedly used to harass her and had a bad eye on her.
Allegedly, deceased Shamim Bano used to narrate to her mother regarding ill treatment ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 4/12 and conduct of accused No.1. Minor children of accused No.3 were also ill-treating the deceased and raising false allegation on her chastity.
b) According to the prosecution there was a motive for appellant/accused No.1 to do away with Shamim Bano as she was not responding to sexual advances of appellant however indulged in illicit relations with one person by name Ramesh.
c) In the night between 30/8/2004 and 31/8/2004 allegedly there was dacoity at the house of accused persons when deceased Shamim Bano was sleeping with other family members on the first floor of their house. According to the appellant and other accused persons, during said incident of dacoity some dacoits had entered the house forcibly and had ransacked the articles and stolen certain valuables. Allegedly during the said incident some dacoits assaulted the appellant and also Smt. Shamim Bano while she was sleeping. In the said assault Shamim Bano received bleeding ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 5/12 injuries to her head and apparently died on the spot.
d) Telephone message was received by Crime Branch regarding the alleged incident of dacoity at the house of the appellant and other accused persons. Police Officers rushed to the spot and investigation was started, Khan.
after recording statement of a minor boy Sajid During investigation, spot panchanama and inquest panchanama were conducted. Dead body of Shamim Bano was sent for postmortem.
Suspecting that it is concocted story developed by the appellant and other co-
accused persons, they were arrested on the next day. Allegedly at the instance appellant/accused No.1 a wooden rafter, allegedly used to kill Shamim Bano, was recovered under the panchanama. Admittedly, during the spot panchanama one more similar wooden rafter was found in the house of the accused persons. Also according to the prosecution appellant/accused No.1 made disclosure statement to produce the cash and ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 6/12 certain ornaments and accordingly cash of Rs.
30,000/- and odd and some ornaments/jewellery was recovered from the same house where the incident took place. Statement of various witnesses/neighbours were recorded. Statement of one Shahida (P.W.-8)-mother of the deceased was recorded. On completion of investigation, charge-sheet was filed committed to the Court of Sessions.
and matter was
5. At this stage, suffice it to show that during the pendency of the matter a letter was written by P.W.-8 Shahida-mother of the victim as to no proper investigation by the police and as such reinvestigation was directed by the order of the Court somewhere in the year 2006. In this premise, matter came up before the trial Court which decided the case convicting appellant/accused No.1 and acquitting other co-accused. Two juvenile offenders were separately tried and acquitted by the concerned Court.
6. Certain admitted factual position is narrated hereunder to have proper perspective of the matter and ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 7/12 to ascertain whether the only circumstance of alleged recovery of wooden rafter, cash amount and jewelery at the instance of appellant/accused No.1 is sufficient to link him with the offences for which he was convicted :-
i) P.W.-2 Smt. Shobha Jaiswal, a
neighbour did not support the case of
prosecution ig as to deceased
narrated her regarding ill-treatment meted out Shamim Bano to her by the accused and regarding appellant/accused No.1 making sexual advances towards her.
ii) P.W.-3 Radhesham Jaiswal, a panch for the enquest panchanama and for the recovery of wooden rafter at the instance of appellant/accused No.1, did not support the case of prosecution.
iii) P.W.-4 Ashok Yamsanwar, another panch regarding alleged recovery at the instance of appellant/accused No.1, did not support the case of prosecution.
iv) P.W.8-Shahedabi Pathan, mother of the deceased did not support the case of ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 8/12 prosecution and denied that her daughter deceased Shamim Bano used to tell her that appellant/accused No.1 was keeping ill eye on her. She disowned the theory of the prosecution as to ill-treatment to Shamim Bano and the theory of motive for the accused persons to do away with the victim.
v) ig P.W.-9 Salimkhan Pathan, the deceased also did not support the case of brother of prosecution on the aspect of ill-treatment meted out to Shamim Bano by the accused persons and as to appellant/accused No.1 insisting her to keep illicit relations with him and her refusal had angered the appellant.
vi) P.W.-11 Mohd. Javed Gani, a neighbour did not support the case of prosecution on the aspect of he witnessing one person by name Ramesh and deceased Shamim Bano chit-chatting and as such said witness informing this to the accused persons.
7. Above mentioned admitted position leads to the only circumstance which was held by the Sessions Court ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 9/12 as against the appellant-accused No.1 and that is alleged recovery at the instance of the appellant.
Admittedly, it is the only circumstance held against the appellant/accused No.1 in spite of the hostility of both the panch witnesses i.e. P.W-3 and P.W.-4. In our opinion, the Sessions Judge had fallen in an error in accepting this sole circumstance of alleged recovery as against the appellant/accused holding him guilty for the offence punishable under No.1 and Sections 302 and 201 of the Indian Penal Code.
8. The only circumstance mentioned above can be discussed in order to ascertain the complicity of the appellant/accused No.1 in the offences for which he was held guilty. Admittedly, both the panchas did not support said recovery of wooden rafter, cash and ornaments and as such recoveries are doubtful. Still if such recoveries are accepted, it can hardly be said that they are incriminating against appellant/accused No.1 so far as his involvement in the offence of murder and offence punishable under Section 201 of the Indian Penal Code. This is more so when there is nothing brought before the Court by the prosecution as ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 10/12 to any of the ornaments were exclusively belonging to the deceased and they were snatched from her person and kept hidden in the same house where the dead body was found.
9. Another glaring mitigating circumstance to the case of prosecution is that the said wooden rafter was not sent for chemical analysis and as such there is nothing to establish that said wooden rafter allegedly recovered at the instance of the appellant/accused No. 1 was used in the commission of offence. Admittedly, according to the case of prosecution, one more wooden rafter was found during the spot panchanama even that was also not sent for chemical analysis. Further more, it is an admitted position that out of the said two alleged wooden rafters, only one wooden rafter was produced before the trial Court and there was nothing to substantiate the case of the prosecution that the wooden rafter which was produced before the Court was the one recovered at the instance of appellant/accused No.1.
10. As mentioned above, it must be held that the ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 11/12 trial Curt had fallen in an error in accepting the said circumstance of recovery against the appellant/accused No.1. Apart from this circumstance there is nothing proved by the prosecution in order to establish the motive for the appellant/accused No.1 to do away with the victim.
11. Jachak During strenuously the arguments argued learned that there A.P.P. is Smt. grave suspicion against appellant/accused No.1 to kill the victim for the reason that she was refusing sexual advances of the appellant. It is further argued on behalf of the State that another circumstance as to only the victim received severe injuries causing her instatenous death and no other family members receiving any injury except some head injury to appellant/accused No.1, is a circumstance to be taken against the appellant/accused No.1. In the absence of any material on record, due to hostility of material witnesses, the argument advanced on behalf of the State, cannot be accepted. Needless to mention that, however grave suspicion may arise against the appellant/accused No.1, it cannot take place of the ::: Downloaded on - 09/06/2013 16:41:49 ::: apeal449.10.odt 12/12 proof which is required to establish his guilt for the offence for which he was convicted.
12. In view of the above discussion the present appeal must succeed and same is according allowed with the following order:
ORDER (1) igCriminal appeal is allowed.
(2) Appellant/accused No.1 is acquitted of the offence punishable under Section 302 and 201 of the Indian Penal Code.
(3) Appellant/accused No.1 shall be released from the jail custody, if not required in any other matter.
(4) The fine amount, if any, already paid by the appellant/accused No.1, shall be refunded back to him.
JUDGE JUDGE
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