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