SC 467-2017 : 1 : Registered on 08.08.2017 Received on 12.08.2017 Decided on 19.08.2023 Duration Years-6, Days-12 Exh.
IN THE COURT OF SESSION AT GREATER BOMBAY SESSION CASE NO.
467 OF 2017 (CNR NO.
MHCC02-009076-2017) The State of Maharashtra ) (Bandra Police Station in ) C.R.
No.
682 of 2016) ) ...
Prosecution Versus Akhtar Faim Shaikh ) Age :- 35 years, Occ.
Service, ) Address :- Nargis Datta Nagar, Chawl No.13) Room No.
332, Bandra West, Mumbai. )
...
Accused Ld.
APP.
Kshirsagar and Siroya for State / Respondent.
Ld.
Adv.
Tiwari for the Accused.
CORAM : HER HONOUR THE ADDITIONAL SESSIONS JUDGE SMT.
A.B.
SHARMA (C.R.
NO.
39) DATED : 19.08.2023.
JUDGMENT (DICTATED IN OPEN COURT) Part-B [Para 44(ii) of Chapter VI of Criminal Manual]
Date of offence 30.12.2016
Date of FIR 30.12.2016
Date of Charge-sheet 08.08.2017
Date of framing of charges 04.04.2019
Date of commencement of evidence 16.12.2021 SC 467-2017 : 2 : Date on which Judgment is reserved -
Date of the Judgment 19.08.2023
Date of the sentencing order, if any - Accused Details Rank Name of
Date of Date Offences Whether Sentence Period of of the accused arrest of charged acquitted imposed Detention Accd. release with or undergone on bail convicted during Trial for purpose of Section 428 of Cr.P.C. Akhtar Faim 30.12.16 - 302 of IPC Acquitted - - Shaikh Part 'C" [Para 44(iii) of Chapter VI of Criminal Manual] LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A. Prosecution : RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS PW-1 Irshad Navabali Qureshi Informant PW-2 Shakila Likayat Hussain Shaikh Witness PW-3 Omprakash Pyarelal Vaishya Seizure Panch PW-4 Sahida Zahid Aalam Shaikh Inquest Panch PW-5 Javed Ahmed Warsi @ Nizambhai Witness PW-6 Nazma Jiyauddin Shaikh Witness PW-7 Dr. Vivek Sadanand Desai Medical Officer PW-8 Madina Khatun Shaikh Witness SC 467-2017 : 3 : PW-9 Taskiya Vasiulla Ansari Witness PW-10 Ramchandra Annappa Dodagade Investigating Officer PW-11 Satish Pillai Photographer PW-12 Ruchali Sankpal Investigating Officer PW-13 Dr. Rajaram Narayanrao Marathe Medical Officer PW-14 Farhan Usman Khan Witness PW-15 Museb Anwar Beg Witness PW-16 Kiran Shantaram Lore Carrier PW-17 Sanjeev Moreshwar Bhole Investigating Officer B. Defence Witnesses, if any : RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS DW-1 NIL - DW-2 NIL - C. Court Witnesses, if any :- RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS CW-1 NIL - CW-2 NIL - LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS A. Prosecution : Sr. Exhibit Number Description Nos. 1 PW-1(Exh.21)- Exh.22 FIR SC 467-2017 : 4 : 2 PW-3(Exh.26)- Exh.27 Seizure Panchnama 3 PW-4(Exh.28)-Exh.29 Inquest Panchnama 4 PW-7(Exh.33)-Exh.34 Death Certificate 5 PW-10(Exh.37)-Exh.38 Casualty Papers 6 PW-12(Exh.45)-Exh.46 & 47 Portion marked A -Exh. 48 Death Report 7 PW-13(Exh.49)-Exh.52 Cause of Death Certificate -Exh.53 Answers to queries -Exh.54 Post Mortem Report 8 PW-15(Exh.62)-Exh.63 Label -Exh.64 Seizure Panchnama -Exh.65 Arrest Memo 9 PW-17(Exh.67)-Exh.68 Letter to Doctor who carried Postmortem -Exh.69 Letter received from Doctor who carried Postmortem -Exh.70 Colly. Forwarding letters to FSL -Exh.71 Portion marked A in Taskiya Ansari B. Defence : Sr. Exhibit Number Description Nos. - - C. Court Exhibits : Sr. Exhibit Number Description Nos. 1 Exh. 03 to 06 CA Reports 2 Exh.08 Charge 3 Exh. 09 Plea of accused 4 Exh. 73 Statement of Accused u/s. 313(1)(b) of Cr.P.C. SC 467-2017 : 5 : D.
Material Objects : Sr. Material Object Number Description Nos. 1 Article - A-1 to A-10 Photographs 2 Article - B Blue Colour Pillow 3 Article - C White Colour Pillow 4 Article - D White Colour Shirt 5 Article - E White clothes having blood stains 6 Article - F Small checks Shirt having blood stains 7 Article - G Grey Pillow cover having blood stains 8 Article - H White colour purse having blood stains 9 Article – I Yellow Dupatta having blood stains 10 Article – J Quilt having blood stains 11 Article – K Mat having blood stains 12 Article – L White colour handkerchief having blood stains 13 Article –11 Photocopy of Form 14 Articles A-11 to A-13 Photographs The accused is facing trial for the offence punishable under Sections 302 of the Indian Penal Code (for short 'the IPC'). Brief facts of the Prosecution case is as under :-
----------------------------------------------------------------------------------------------------2. The informant lodged report alleging therein that he got acquainted with the accused since year 2003. According to him, till three years since 2003, the accused was his tenant and residing on the First Floor. Thereafter, the accused started residing in Room No. 332, Chawl No. 13, in front of the Aliyawar Jang Hospital, Bandra (W) Mumbai-50. The accused was doing tailoring work. SC 467-2017 : 6 :
3. On 30.12.2016 at about 12:00 noon, when the informant was plying his taxi near Bandra Talao, the accused made phone call to the informant and requested to come immediately at home. Therefore, the informant went near the house of the accused. At that time, the accused and his elder sister were standing near the lane of their house. As soon as they noticed the informant, they started crying. When the informant asked them about the reason of their crying, the accused disclosed him that at about 10:00 am, he killed his younger sister Jamila by throttling, at his house. When the informant asked him why he did so, the accused narrated him that Jamila was having illicit relationship with several boys and she used to roam with them during night. The accused further informed that he expounded Jamila on several occasions, but she did not listen him. On the day of incident, also she returned home at around 2:00 am. Thereafter, at about 10:00 am, when the accused asked Jamila about it, she answered in arrogant manner. Therefore, the accused annoyed and he pushed Jamila. Due to which, she fell down and the accused killed by throttling her and also kept pillow on her mouth to prevent her shouts. Thereafter, the informant took the accused by his Private Car bearing No. MH-06-9326 to Bandra Police Station and narrated the aforesaid incident to the Station House Officer. He took the accused in custody. Thereafter, the informant lodged report against the accused.
4. Pursuant thereto, Crime No. 682 of 2016 under Section 302 of 'the IPC' came to be registered against the accused. The investigation ensued and culminated into filing of Charge-sheet (Exh. 01) against him. SC 467-2017 : 7 :
5. My learned Predecessor has framed the Charge (Exh. 08) for the offence under Section 302 of 'the IPC' to which, the accused pleaded (Exh. 09) not guilty and claimed to be tried. The accused in his statement (Exh. 73) under Section 313(1)(b) of the Code of Criminal Procedure denied the contents of F.I.R. The defence of the accused is of total denial and false implication.
6. Heard the learned AP.P. Smt. Kshirsagar for the State and learned advocate Shri. Tiwari for the accused. In view of the rival submissions made by them, the following points arise for my determination and I have recorded my findings thereon for the reasons discussed below - No. POINTS FINDINGS
1. Whether the prosecution proves that the … Yes. deceased Jamila died homicidal death ?
2. Whether the prosecution proves that the accused committed murder of Jamila by … No. throttling her ?
3. Whether any other offence is proved ? ... No.
4. What order ? The accused is acquitted.
7. To establish the guilt of the accused, the prosecution has examined in all Seventeen (17) witnesses and closed its evidence by filing Pursis. Neither the accused examined himself nor any witness. R E A S O N S AS TO POINT NO. 1 :-
8. Admittedly, Jamila Shaikh is died. But, the question is whether her death could be described as 'homicidal death' or not. Death could be SC 467-2017 : 8 : natural, accidental or homicidal. In the present case, in order to prove whether Jamila died homicidal death, the prosecution has relied upon the evidence of the Inquest Panch Sahida (PW-4), Dr. Desai (PW-7), Satish Pillai (PW-11) and Dr. Marathe (PW-13).
9. The inquest panch Sahida (PW-4) deposed that on the day of incident, she was at Bandra Police Station alongwith her friend Nisare Haseena for another matter. At that time, the Police asked them to act as Panch for preparing Inquest Panchnama and after taking their consent, the Police took them to Bhabha Hospital in mortuary where the body of the deceased was kept. They noticed cut injuries on the wrist of the deceased, nails scratches on neck and bleeding injury on her back side. The police prepared Inquest Panchnama (Exh. 29) in Marathi.
10. Dr. Desai (PW-07) testified that on 30.12.2016, one WPC came to his clinic and took him to a room, in a chawl at Nargis Datta Nagar. He noticed one girl aged about 16 to 18 years was lying on the floor. He examined her. According to this witness, she was not breathing and found dead. Therefore, he declared her as ‘dead’ and issued Certificate (Exh. 34) about it, on his letterhead.
11. The Photographer Satish Pillai (PW-11) deposed that Lady Officer of Bandra Police Station called him to capture the photographs beside Lilavati Hospital. Accordingly, he captured photographs of dead body of a lady, in murder case. According to this witness, he captured Six photographs of dead body, on the spot and Seven photographs of the dead body, at BHABHA Hospital and handed over all those photographs (Article A-11 to A-13) to the police. SC 467-2017 : 9 :
12. During cross-examination he admitted that police did not issue him any written intimation or Request Letter to capture the photographs. He has also not received any written intimation from Doctor. He further admitted that he has not given any bill to the police. He has further admitted that the photographs can be edited. This witness is concern about capturing the photographs of dead body only and his evidence would not be treated as substantial evidence.
13. Dr. Rajaram Marathe (PW-13) who has conducted postmortem of deceased Jamila, testified that on 30.12.2016, one 17 years old, female dead body was brought for postmortem. On 31.12.2016, he has conducted postmortem of the said body during 1.30 p.m. to 3.00 p.m. During the postmortem, he noticed following external injuries - a. Multiple nail marks on anterior neck and layngeal region b. Six nail marks 0.5 x 1.0 c.m each scattered over right side of larynx upto mandibular angle. c. Two nail marks 0.5 x 1.00 c.m. on left side of larynx and below mandibular angle. d. Abrasion on right thumb near nail. e. CLW 3x1x1 bone deep on occipital region. f. Two teeth marks on lower lip right side. He has also found following injuries on internal examination -
1. sub scalp haemorrhage on occipital region.
2. Bilateral haemotoma 2x1 c.m. on both sides of larynx
3. larynx congested internally with froth
4. Tracjea and larynx with congested walls
5. Both lungs are shown patechial haemorrhages SC 467-2017 : 10 :
6. Heart shown patechial hemorrhages
14. He further deposed that he has preserved Blood and nails. He has issued Post Mortem Report (Exh. 54) and given the Final cause of death as, ‘death due to throttling and unnatural’.
15. During his cross-examination, it has brought on record that when the body was sent for postmortem, the copy of Inquest Panchnama was provided and he had gone through the contents of Inquest Panchnama. It is further admitted that he received Death Certificate issued by Dr. Vivek Desai, wherein the injuries are not mentioned. He has also admitted that he has also received Death Certificate issued from BHABHA Hospital, wherein only Three injuries are mentioned and the cause of death is shown as 'unknown'. He has also admitted that in Post Mortem Report (Exh. 54), Five injuries are mentioned. In the Post Mortem Report (Exh. 54), approximate time of death of the deceased is not mentioned. This witness also admitted that there were injuries on the occipital region of the body. According to this witness, in general, the cause of death from wounds are immediate but depends upon the nature of injury. He has admitted that slight injury on the vital organs may cause death. According to him, immediate and direct causes of death are hemorrhage, injury on vital organs and shock. The deceased sustained injury having size of CLW 3 x 1 x 1 on occipital region, which is bone deep. He has further admitted that brain hemorrhage can be caused due to high blood pressure and heavy blood loss can cause death of person. He also admitted that head injury may cause internal or external bleeding. There was bleeding from head injuries. No x-rays or MRI of deceased were taken. He further admitted that he has not SC 467-2017 : 11 : mentioned whether the injury sustained to head is mild or serious injury.
16. He further admitted that the nail marks mentioned in Column No. 17 of Post Mortem Report cannot cause death of person. He has not mentioned colour of the injuries in Post Mortem Report. In the Post Mortem Report (Exh. 54) and Death Report (Exh. 48) received by BHABHA Hospital, measurements are different. There was no bleeding from mouth, ear and nose of deceased. He has specifically admitted that in the case of throttling, bleeding may come from mouth, ear and nose and tongue may proclude.
17. The Learned advocate for the accused submitted that the death of deceased is accidental. She sustained head injury. She was in habit of consuming Gutkha and other stupefying substance and due to which, her death can be possible. So far as submission made by the Learned Advocate is concerned, Dr. Marathe (PW-13) during his cross- examination admitted that nothing was found in the nail of deceased. He has not gone through Viscera Report, while giving his opinion.
18. The accused is disputing the cause of death and as per his defence, the deceased fell down on the ground and sustained head injury, due to which, she died. Admittedly, the deceased sustained head injury, but Dr. Marathe (PW-13) issued Post Mortem Report (Exh. 54), which clearly indicates that the injuries mentioned in Column No. 17 and 18 are ante-mortem injuries. As per the evidence of Dr. Marathe and Post Mortem Report, the death of deceased Jamila is caused due to throttling and unnatural. The defence has put suggestion to this witness SC 467-2017 : 12 : that if the neck is struck with hard surface, death can be caused. The said suggestion was denied by this witness. The defence has denied the death of Jamila was caused due to throttling.
19. During the evidence of inquest panch, it is brought on record that the witness do not recollect the words written in the Panchnama. However, the Inquest Panchnama (Exh. 29) clearly indicates that there was half encircled mark around the neck of the deceased, which itself strengthen the testimony of Dr. Marathe and the opinion given by him in Post Mortem Report (Exh. 54) about the cause of death as 'throttling'. Thus, the above evidence coupled with Post Mortem Report (Exh. 54) is indicative of the fact that Jamila Shaikh suffered homicidal death. Hence, I record my findings to the Point No. 1 in Affirmative. AS TO POINT NO. 02 :-
20. The story of the prosecution is that the accused has committed murder of deceased Jamila by throttling. This case is based on circumstantial evidence and the prosecution is required to prove the case beyond reasonable doubt by completing the chain of circumstances. The learned Advocate for the accused has submitted that in this case, there is no direct evidence. The sister of the deceased namely Shakila (PW-2), Nazma Shaikh (PW-6), mother of deceased namely Madina Shaikh (PW-8), Taskiya Ansari (PW-9) did not support the case of prosecution. The prosecution has relied on the seized articles stained with blood. The FSL Report (Exh. 04) regarding the blood sample and Nail Clippings of the accused nowhere supports the story of the prosecution. The blood group of accused is ‘B’. The blood group of deceased as per the FSL Report (Exh. 06) is inconclusive. The blood SC 467-2017 : 13 : stains found on the seized articles are having blood group ‘B’. The learned advocate for the accused has argued that the prosecution has nowhere brought on record that the accused sustained injury and his blood was reflected on all the articles.
21. The spot panch Omprakash Pyarelal Vaishya (PW-3) deposed that on 30.12.2016, at about 1.30 pm, the police asked him to act as a panch and he consented for it. When he reached to the spot, he noticed one body of girl was lying, on the ground and he came to know that she was murdered. He deposed that the informant (PW-01) has shown the spot to them and he also noticed clothes, purse, mobile phone stained with blood. The Police seized all the articles from the spot and prepared Panchanama(Exh. 27). This witness has identified the Blue pillow having blood stains (Article B), White colour Pillow having blood stains (Article C), White colour Shirt having blood stains (Article D), White colour cloth having blood stains (Article E), small checks shirt having blood stains (Article F), Grey pillow cover having blood stains (Article G), White colour purse having blood stains (Article H), Yellow dupatta having blood stains (Article I), Quilt having blood stains (Article J), Mat having blood stains (Article K) and White colour handkerchief having blood stains (Article L).
22. It is not disputed that the accused came to be arrested on the same day i.e. on 30.12.2016. The Arrest Form (Exh.65) nowhere indicates any fresh injury was sustained by him. The blood group of deceased was determined as inconclusive and the blood group of accused is determined as ‘B’. SC 467-2017 : 14 :
23. On this material point, the learned APP has submitted that the deceased and accused are siblings and it might have possible that they both have similar blood group. Therefore, the same may be considered while appreciating the FSL Report (Exh. 13). So far as the submission of learned APP is concerned, there are no oral or documentary evidence on record to show that the deceased was having ‘B’ blood group. Mere the accused being brother of the deceased itself is not sufficient to conclude that being siblings, they both are having similar blood group. Hence, I do not find the argument of the learned APP is convincing.
24. The learned APP has further submitted that the deceased was addicted to drug and she used to roam with different boys in night hours. Due to which, the reputation of the family of the deceased and accused is tarnishing. Due to the said reason, quarrel used to take place between the deceased and the accused. On the day of the incident, on this count, the quarrel has been taken place between the accused and the deceased. The accused banged her head on the wall and then throttled and committed her murder.
25. So far as the aforesaid submission made by the Learned APP is concerned, witness Farhan Khan (PW-14) that he is acquainted with the accused and deceased as they were residing at some distance, in same lane. He deposed that the quarrel used to take place between them and their family members. He further deposed that the deceased was not having good moral character and on this count, quarrel used to take place, in her family. He further deposed that on 30.12.2016, when he returned home after completion of his work, he came to know about the alleged incident that Akhtar killed his sister. SC 467-2017 : 15 :
26. During his cross-examination, he admitted that due to laps of time, he is unable to identify Akhtar. He also admitted that he has no personal knowledge about the incident. The Police asked his name and address only. He further admitted that since the date of incident, till asking his name and address by police, he was in Mumbai only. He further admitted that when he came to the Court for evidence, the police accompanied with him. He also admitted that personally, he has never seen that quarrel used to take place between the family members of deceased. He further admitted that the police informed him what and how to depose in the Court.
27. The evidence of this witness indicates that he is unable to identify the accused and he has never seen the quarrel taken place between the accused, deceased and their family member. Panch witness Omprakash (PW-3) during his cross-examination admitted that if any noise is created on the spot that can be easily heard by the surrounding people. This material admission clearly indicates that the quarrel must be heard by the surrounding people, if arose in the said room. In view of this piece of evidence, the evidence of Farhan Khan is not reliable and convincing. Therefore, the evidence of this witness is not sufficient to prove the said aspect.
28. Admittedly, the present case is rest on circumstantial evidence. So far as the story of the prosecution is concerned, it is the settled principle of law that the prosecution must be fulfilled following conditions - (a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. SC 467-2017 : 16 : (b) 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. (c) The circumstances should be of a conclusive nature and tendency. (d) They should exclude every possible hypothesis except the one to be proved, and (e) 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.
29. In the light of the aforesaid preposition, the evidence of the prosecution witnesses needs to be appreciated. To prove the guilt of the accused, prosecution is mainly relied on the evidence of the informant (PW-01) and Javed Ahmed (PW-05). The informant is claiming that the accused confessed before him that he has committed murder of Jamila. The informant Irshad Navabali Qureshi (PW-1) who is taxi driver testified that the informant was acquainted with the accused and his family, since 2003. The Accused was doing tailoring work and at the time of incident, he was residing in Room No. 325. On 30.12.2016 at about 12.00 O'clock, this witness has received the phone call from Accused and at that time he was at Bandra Lake with his taxi. The Accused made inquiry with him about his location and requested him to come immediately. Accordingly, he immediately came near to the SC 467-2017 : 17 : residence of accused. At that time, the Accused was standing alongwith his sister on road. They started crying after noticing the informant. Upon inquiry, the Accused stated that “eSaus ekjk” and also disclosed him that “eSaus NksVh cgu dks ekjk”. When the informant asked the accused about the reason, the accused disclosed that his younger sister used to move out of house during night. The accused also requested this witness to visit his house.
30. The informant (PW-01) further testified that, the house of the accused was locked and people gathered there. He came to know that the younger sister of the accused is inside the room. He has suspicion that something happens with the sister of accused. Therefore, instead of opening the door, he took the accused to the Police Station. It has further come in his evidence that thereafter the police visited the spot. When the police opened the door, they noticed that the younger sister of accused was lying on bed. She sustained bleeding injury on the backside of her head and One pillow was also there. Thereafter, the police took the accused in custody. He provided the information to the police about the incident as per the FIR (Exh. 22). According to this witness, the police visited the spot and prepared Spot Panchnama (Exh.27) and also seized the articles from the spot.
31. During cross-examination, he admitted that Nargis Dutt Nagar and Aliyawar Jung Hospital are situated on two different places. He further admitted that while police were recording his statement, the accused was also narrating about the incident to police. The police were also recording the statement of the accused while recording his statement. He further admitted that he was not in the photographs (Article A-1 to A-10). SC 467-2017 : 18 :
32. During the cross-examination of this witness, following material omissions in the form of improvisations are brought on record - a) The accused disclosed that, “eSaus NksVh csgu dks ekjk”. b) “At that time the house of accused was locked.” c) “I came to know that the younger sister of accused is inside the room. At that time, I have suspension that something is happened with sister of accused.”
33. In this case, it is very surprising to note that when the defence has put all the aforesaid improvements to the investigating officer API Ruchali Sankpal (PW-12) who has recorded the statement and registered the FIR (Exh. 22). She deposed that the informant has narrated the aforesaid facts while giving his statement. The statement is the part and parcel of the FIR (Exh. 22) nowhere indicates the aforesaid improvisation. The informant has completed omitted to state the aforesaid facts in his statement and the FIR. It is pertinent to note that API Sankpal (PW-12) has not recorded any supplementary statement of the informant. Therefore, the aforesaid omissions are required to be treated as the material omissions.
34. Javed Ahmed Warsi @ Nizambhai (PW-05) deposed that the informant Irshad (PW-01) is his neighbour and they are residing in the same locality since long. He deposed that in the year 2016 on 30th, there was camp for issuance of Aadhar Card and he was participated in the said Camp. On that day, at around 11.00 a.m., the mother-in-law (PW-06) of sister (Sakina) of the accused came to him. She took him in the office of All Vision, beside the camp. He further deposed that she disclosed to save accused as he killed his sister. He further deposed that SC 467-2017 : 19 : thereafter, he made phone call to the informant Irshad Qureshi(PW-01). At that time, the accused was standing, in front of his house. Thereafter, this witness dialed 100 number and Bit Marshal came within 15 to 20 minutes. He further deposed that within 5 to 10 minutes, Irshad (PW-01) reached there. Thereafter, the Police, this witness and Irshad (PW-01) went to house of the accused, where they noticed that sister of accused was lying dead.
35. During his cross examination, he has admitted that he is social worker and used to visit police frequently. He also candidly admitted that he is deposing as per the say of police and he was told by police that, the accused will be shown on VC for identification. He further admitted that the accused was shown on VC and thereafter, he identified the accused. This witness, by nodding his head admitted that by taking oath in the name of God, he deposed as per the statement after reading into the Court, prior entering into the witness box.
36. The star witnesses of the prosecution i.e. the informant (PW-01) and Javed (PW-05) deposed contradictory to each other. According to Javed (PW-05), he called the informant and after 5 to 10 minutes, the informant reached there. Whereas the informant deposed that the accused called him by making phone call and accordingly he came near the house of the accused. The informant during his evidence nowhere whispered that he was called by Javed (PW-05) and thereafter the informant, Javed (PW-05) and the police went to the spot. The evidence of Javed indicates that he is the first person who get the information of the incident. The learned advocate raised the point that the investigating officer has neither seized the mobile phone of the accused SC 467-2017 : 20 : and Irshad nor collected CDR of both the mobile phones to prove that the accused made phone call to the informant (PW-01).
37. So far as the testimony of the informant (PW-1) in respect of the accused about extra judicial confession made by the accused to him is concerned, he has improvised the story of the prosecution during his evidence in respect of the same. Therefore, corroboration is required to the evidence of the informant (PW-01) as Javed (PW-05) is claiming that he called the informant by making phone call. If it is so, then question arise when the accused has called the informant (PW-01) and confessed before him as Javed (PW-05) nowhere deposed that the informant met with the accused, after his arrival. The investigating officer has not collected the CDR and SDR to prove that at the relevant time, the accused made phone call to the informant and thereafter confessed about his guilt. The version of both these witnesses are contradictory, which creates doubt about the extra judicial confession made by the accused. There are several discrepancies in the contents of the FIR (Exh. 22) and the evidence of the informant (PW-01). The material admission given by Javed (PW-05) that he deposed as per say of the police itself creates serious doubt about the story of the prosecution. It is well settled that the extra judicial confession is a weak piece of evidence and corroboration is needed. The credibility of the extra judicial confession decreases when the surrounding circumstances are doubtful.
38. The sister of the deceased Shakila Likayat Hussain Shaikh (PW-2) deposed that the deceased left her education. Jamila used to take stupefying drugs. She used to consume Tobacco and Gutkha. She used to roam outside the house during night hours and used to return in the SC 467-2017 : 21 : morning. On this count, the quarrel used to take place between deceased and family members. It has further come in her evidence that her mother came to her and informed that the deceased fell down. So, she went to the house of her mother, but till that time, Jamila died. Therefore, they had taken her to the Hospital by Auto Rickshaw. This witness did not support the story of the prosecution. Attempt was made by the prosecution to extort certain admissions from this witness to support the case of the prosecution, but nothing emerges from this witness. Hence, the evidence of this witness is not much helpful to prove the guilt of the accused.
39. The witness Nazma Jiyauddin Shaikh (PW-6), Madina Khatun Shaikh (PW-8) and Taskiya Ansari (PW-9) did not support the story of the prosecution. Therefore, the evidence of these witnesses are to be discarded.
40. ASI Ramchandra Annappa Dodagade (PW-10) deposed about collection of blood sample of the accused from the Medical Officer alongwith the Form (Article -11). The blood sample of the accused was forwarded to the FSL and the blood group of accused is detected as ‘B’ as per the FSL Report (Exh. 04). The evidence of this witness is of formal nature and is not sufficient to prove the guilt of the accused in absence of other ocular evidence.
41. Witness Museb Beg (PW-15) deposed that on 30.12.2016, Bandra police called him as a panch to seize the Shirt (Article-F) of the accused. He further deposed that Police seized Shirt having blood stains and prepared Seizure Panchanama (Exh. 64). He further deposed that when SC 467-2017 : 22 : they went to police station, one boy having thin physic / body was present there and Police informed them that the said Shirt (Article-F) belongs to the said boy i.e. Accused. He further deposed that the Police arrested the accused in his presence and prepared Arrest Memo (Exh. 65).
42. During his cross-examination, he admitted that he was not aware, since when the accused was brought to the police station and since when he was present in the police station. He further admitted that the Shirt like Article-F, is easily available with the scrap and clothes vendor.
43. From the evidence of this witness it appears that the aforesaid Shirt was not handed over by the accused to Police in the presence of this witness. The police has seized Shirt (Article-F) having blood stains and thereafter, had shown the accused to this witness, which itself creates the doubt about the recovery of said Shirt.
44. API Ruchali Sankpal (PW-12) and ACP Sanjeev Moreshwar Bhole (PW-17) are the investigating officers deposed about the procedural aspect and necessary steps taken by them during investigation. Hence, the evidence of both these witnesses are of formal in nature and not sufficient to establish the guilt of the accused beyond reasonable doubt.
45. The carrier HC Kiran Lore (PW-16) have collected the hair sample, male sample and skin of the accused and handed over those samples to I.O. Sanjeev Bhole (PW-17). The evidence of this witness is also of formal nature. SC 467-2017 : 23 :
46. In the present case, except the recovery of certain articles from the spot, no ocular evidence is brought on record, which did not complete the chain of circumstances. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR (SC) 1622, the Hon'ble Supreme Court in Para No. 217 observed that :- “..… in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him.”
47. The aforesaid ratio is squarely applicable in the present case. In this case, the defence is succeeded to create the doubt on the story of the prosecution. In the present case, the prosecution has not discharged its primary burden to prove the case beyond reasonable doubt. The prosecution has not established a complete chain of incidents to prove the guilt of the accused.
48. In view of the forgoing reasons, I am of the view that the evidence adduced by the prosecution has not cogent, reliable, clinching and sufficient to prove the guilt of the accused beyond reasonable doubt. Thus, I record my findings to the Point No. 2 in Negative. AS TO POINT NO. 3 :-
49. The prosecution could not prove the ingredients of Section 302 of ‘the IPC’ against the accused. Its evidence does not prove any other lesser offence. Hence, Point No. 3 is answered in Negative. AS TO POINT NO. 4 :-
50. In view of Negative findings on Point Nos. 2 and 3, I am of the opinion that the prosecution has utterly failed to bring home the SC 467-2017 : 24 : guilt of accused for the offence punishable under Section 302 of 'the IPC'. Therefore, the accused is entitled for acquittal. The seized Articles, being worthless and not claimed, require disposal. Hence, in view of above discussed reasons, I record my finding to the Point No. 4 accordingly and proceed to pass the following order :- ORDER
1. The Accused Akhtar Faim Shaikh is hereby Acquitted under Section 235(1) Code of Criminal Procedure of an offence punishable under Section 302 of the Indian Penal Code.
2. The accused be set at liberty, if not required in any other offence.
3. The Accused is directed to furnish his personal and surety bonds of Rs. 15,000/- (Rupees Fifteen Thousand), as per the provision of Section 437-A of Criminal Procedure Code, for the period of Six months, in respect of his appearance before the Hon'ble High Court, if appeal against the order of acquittal is filed.
4. The seized muddemal property Article B - Blue Pillow having blood stains, Article C - White colour Pillow having blood stains, Article D - White colour Shirt having blood stains, Article E - White colour clothes having blood stains, Article F - small checks shirt having blood stains, Article G - Grey Pillow cover having blood stains, Article H - White colour purse having blood stains, Article I - Yellow Dupatta having blood stains, Article J - Quilt having blood SC 467-2017 : 25 : stains, Article K - Mat having blood stains, Article L - White colour handkerchief having blood stains, being worthless, be destroyed, after the Appeal period is over.
5. The unmarked articles - Two Gutkha packets, Pink colour Bra, Black Thread, one White metal ornament, Sim Card, labels, being worthless, be destroyed, after the period of Appeal is over.
6. The unmarked articles - Two currency Notes of Rs. 100/- each and Two currency Notes of Rs. 10/- each, be credited to the Government, as per rule.
7. The unmarked Article - White colour Samsung Company Mobile, be kept in auction and the amount of sale proceed, be credited to the Government.
8. The unmarked articles, if any, being worthless, be destroyed, after the period of Appeal is over.
9. As the matter is disposed off by this Judgment, the record and proceedings be sent to Record Department.
10. The Judgment is dictated and pronounced in open Anita Digitally signed by Court. Anita Bajranglal Bajranglal Sharma Sharma Date: 2023.09.04 16:00:43 +0530 (A. B. SHARMA) Additional Sessions Judge Date :- 19.08.2023. City Civil And Sessions Court Dictation Typed on :- 19.08.2023. Greater Bombay. Signed and Checked on :- 04.09.2023. SC 467-2017 : 26 : “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.” 04.09.2023 at 4.00 pm (Y.M. SAKHARKAR) UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge (With Court SMT. A. B. SHARMA room no.) (C.R. NO. 39) Date of Pronouncement of 19.08.2023
JUDGMENT/ ORDER
JUDGMENT/ORDER signed by P.O. 04.09.2023 on
JUDGMENT/ORDER uploaded on 04.09.2023
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IN THE COURT OF SESSION AT GREATER BOMBAY SESSION CASE NO.
467 OF 2017 (CNR NO.
MHCC02-009076-2017) The State of Maharashtra ) (Bandra Police Station in ) C.R.
No.
682 of 2016) ) ...
Prosecution Versus Akhtar Faim Shaikh ) Age :- 35 years, Occ.
Service, ) Address :- Nargis Datta Nagar, Chawl No.13) Room No.
332, Bandra West, Mumbai. )
...
Accused Ld.
APP.
Kshirsagar and Siroya for State / Respondent.
Ld.
Adv.
Tiwari for the Accused.
CORAM : HER HONOUR THE ADDITIONAL SESSIONS JUDGE SMT.
A.B.
SHARMA (C.R.
NO.
39) DATED : 19.08.2023.
JUDGMENT (DICTATED IN OPEN COURT) Part-B [Para 44(ii) of Chapter VI of Criminal Manual]
Date of offence 30.12.2016
Date of FIR 30.12.2016
Date of Charge-sheet 08.08.2017
Date of framing of charges 04.04.2019
Date of commencement of evidence 16.12.2021 SC 467-2017 : 2 : Date on which Judgment is reserved -
Date of the Judgment 19.08.2023
Date of the sentencing order, if any - Accused Details Rank Name of
Date of Date Offences Whether Sentence Period of of the accused arrest of charged acquitted imposed Detention Accd. release with or undergone on bail convicted during Trial for purpose of Section 428 of Cr.P.C. Akhtar Faim 30.12.16 - 302 of IPC Acquitted - - Shaikh Part 'C" [Para 44(iii) of Chapter VI of Criminal Manual] LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A. Prosecution : RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS PW-1 Irshad Navabali Qureshi Informant PW-2 Shakila Likayat Hussain Shaikh Witness PW-3 Omprakash Pyarelal Vaishya Seizure Panch PW-4 Sahida Zahid Aalam Shaikh Inquest Panch PW-5 Javed Ahmed Warsi @ Nizambhai Witness PW-6 Nazma Jiyauddin Shaikh Witness PW-7 Dr. Vivek Sadanand Desai Medical Officer PW-8 Madina Khatun Shaikh Witness SC 467-2017 : 3 : PW-9 Taskiya Vasiulla Ansari Witness PW-10 Ramchandra Annappa Dodagade Investigating Officer PW-11 Satish Pillai Photographer PW-12 Ruchali Sankpal Investigating Officer PW-13 Dr. Rajaram Narayanrao Marathe Medical Officer PW-14 Farhan Usman Khan Witness PW-15 Museb Anwar Beg Witness PW-16 Kiran Shantaram Lore Carrier PW-17 Sanjeev Moreshwar Bhole Investigating Officer B. Defence Witnesses, if any : RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS DW-1 NIL - DW-2 NIL - C. Court Witnesses, if any :- RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS CW-1 NIL - CW-2 NIL - LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS A. Prosecution : Sr. Exhibit Number Description Nos. 1 PW-1(Exh.21)- Exh.22 FIR SC 467-2017 : 4 : 2 PW-3(Exh.26)- Exh.27 Seizure Panchnama 3 PW-4(Exh.28)-Exh.29 Inquest Panchnama 4 PW-7(Exh.33)-Exh.34 Death Certificate 5 PW-10(Exh.37)-Exh.38 Casualty Papers 6 PW-12(Exh.45)-Exh.46 & 47 Portion marked A -Exh. 48 Death Report 7 PW-13(Exh.49)-Exh.52 Cause of Death Certificate -Exh.53 Answers to queries -Exh.54 Post Mortem Report 8 PW-15(Exh.62)-Exh.63 Label -Exh.64 Seizure Panchnama -Exh.65 Arrest Memo 9 PW-17(Exh.67)-Exh.68 Letter to Doctor who carried Postmortem -Exh.69 Letter received from Doctor who carried Postmortem -Exh.70 Colly. Forwarding letters to FSL -Exh.71 Portion marked A in Taskiya Ansari B. Defence : Sr. Exhibit Number Description Nos. - - C. Court Exhibits : Sr. Exhibit Number Description Nos. 1 Exh. 03 to 06 CA Reports 2 Exh.08 Charge 3 Exh. 09 Plea of accused 4 Exh. 73 Statement of Accused u/s. 313(1)(b) of Cr.P.C. SC 467-2017 : 5 : D.
Material Objects : Sr. Material Object Number Description Nos. 1 Article - A-1 to A-10 Photographs 2 Article - B Blue Colour Pillow 3 Article - C White Colour Pillow 4 Article - D White Colour Shirt 5 Article - E White clothes having blood stains 6 Article - F Small checks Shirt having blood stains 7 Article - G Grey Pillow cover having blood stains 8 Article - H White colour purse having blood stains 9 Article – I Yellow Dupatta having blood stains 10 Article – J Quilt having blood stains 11 Article – K Mat having blood stains 12 Article – L White colour handkerchief having blood stains 13 Article –11 Photocopy of Form 14 Articles A-11 to A-13 Photographs The accused is facing trial for the offence punishable under Sections 302 of the Indian Penal Code (for short 'the IPC'). Brief facts of the Prosecution case is as under :-
----------------------------------------------------------------------------------------------------2. The informant lodged report alleging therein that he got acquainted with the accused since year 2003. According to him, till three years since 2003, the accused was his tenant and residing on the First Floor. Thereafter, the accused started residing in Room No. 332, Chawl No. 13, in front of the Aliyawar Jang Hospital, Bandra (W) Mumbai-50. The accused was doing tailoring work. SC 467-2017 : 6 :
3. On 30.12.2016 at about 12:00 noon, when the informant was plying his taxi near Bandra Talao, the accused made phone call to the informant and requested to come immediately at home. Therefore, the informant went near the house of the accused. At that time, the accused and his elder sister were standing near the lane of their house. As soon as they noticed the informant, they started crying. When the informant asked them about the reason of their crying, the accused disclosed him that at about 10:00 am, he killed his younger sister Jamila by throttling, at his house. When the informant asked him why he did so, the accused narrated him that Jamila was having illicit relationship with several boys and she used to roam with them during night. The accused further informed that he expounded Jamila on several occasions, but she did not listen him. On the day of incident, also she returned home at around 2:00 am. Thereafter, at about 10:00 am, when the accused asked Jamila about it, she answered in arrogant manner. Therefore, the accused annoyed and he pushed Jamila. Due to which, she fell down and the accused killed by throttling her and also kept pillow on her mouth to prevent her shouts. Thereafter, the informant took the accused by his Private Car bearing No. MH-06-9326 to Bandra Police Station and narrated the aforesaid incident to the Station House Officer. He took the accused in custody. Thereafter, the informant lodged report against the accused.
4. Pursuant thereto, Crime No. 682 of 2016 under Section 302 of 'the IPC' came to be registered against the accused. The investigation ensued and culminated into filing of Charge-sheet (Exh. 01) against him. SC 467-2017 : 7 :
5. My learned Predecessor has framed the Charge (Exh. 08) for the offence under Section 302 of 'the IPC' to which, the accused pleaded (Exh. 09) not guilty and claimed to be tried. The accused in his statement (Exh. 73) under Section 313(1)(b) of the Code of Criminal Procedure denied the contents of F.I.R. The defence of the accused is of total denial and false implication.
6. Heard the learned AP.P. Smt. Kshirsagar for the State and learned advocate Shri. Tiwari for the accused. In view of the rival submissions made by them, the following points arise for my determination and I have recorded my findings thereon for the reasons discussed below - No. POINTS FINDINGS
1. Whether the prosecution proves that the … Yes. deceased Jamila died homicidal death ?
2. Whether the prosecution proves that the accused committed murder of Jamila by … No. throttling her ?
3. Whether any other offence is proved ? ... No.
4. What order ? The accused is acquitted.
7. To establish the guilt of the accused, the prosecution has examined in all Seventeen (17) witnesses and closed its evidence by filing Pursis. Neither the accused examined himself nor any witness. R E A S O N S AS TO POINT NO. 1 :-
8. Admittedly, Jamila Shaikh is died. But, the question is whether her death could be described as 'homicidal death' or not. Death could be SC 467-2017 : 8 : natural, accidental or homicidal. In the present case, in order to prove whether Jamila died homicidal death, the prosecution has relied upon the evidence of the Inquest Panch Sahida (PW-4), Dr. Desai (PW-7), Satish Pillai (PW-11) and Dr. Marathe (PW-13).
9. The inquest panch Sahida (PW-4) deposed that on the day of incident, she was at Bandra Police Station alongwith her friend Nisare Haseena for another matter. At that time, the Police asked them to act as Panch for preparing Inquest Panchnama and after taking their consent, the Police took them to Bhabha Hospital in mortuary where the body of the deceased was kept. They noticed cut injuries on the wrist of the deceased, nails scratches on neck and bleeding injury on her back side. The police prepared Inquest Panchnama (Exh. 29) in Marathi.
10. Dr. Desai (PW-07) testified that on 30.12.2016, one WPC came to his clinic and took him to a room, in a chawl at Nargis Datta Nagar. He noticed one girl aged about 16 to 18 years was lying on the floor. He examined her. According to this witness, she was not breathing and found dead. Therefore, he declared her as ‘dead’ and issued Certificate (Exh. 34) about it, on his letterhead.
11. The Photographer Satish Pillai (PW-11) deposed that Lady Officer of Bandra Police Station called him to capture the photographs beside Lilavati Hospital. Accordingly, he captured photographs of dead body of a lady, in murder case. According to this witness, he captured Six photographs of dead body, on the spot and Seven photographs of the dead body, at BHABHA Hospital and handed over all those photographs (Article A-11 to A-13) to the police. SC 467-2017 : 9 :
12. During cross-examination he admitted that police did not issue him any written intimation or Request Letter to capture the photographs. He has also not received any written intimation from Doctor. He further admitted that he has not given any bill to the police. He has further admitted that the photographs can be edited. This witness is concern about capturing the photographs of dead body only and his evidence would not be treated as substantial evidence.
13. Dr. Rajaram Marathe (PW-13) who has conducted postmortem of deceased Jamila, testified that on 30.12.2016, one 17 years old, female dead body was brought for postmortem. On 31.12.2016, he has conducted postmortem of the said body during 1.30 p.m. to 3.00 p.m. During the postmortem, he noticed following external injuries - a. Multiple nail marks on anterior neck and layngeal region b. Six nail marks 0.5 x 1.0 c.m each scattered over right side of larynx upto mandibular angle. c. Two nail marks 0.5 x 1.00 c.m. on left side of larynx and below mandibular angle. d. Abrasion on right thumb near nail. e. CLW 3x1x1 bone deep on occipital region. f. Two teeth marks on lower lip right side. He has also found following injuries on internal examination -
1. sub scalp haemorrhage on occipital region.
2. Bilateral haemotoma 2x1 c.m. on both sides of larynx
3. larynx congested internally with froth
4. Tracjea and larynx with congested walls
5. Both lungs are shown patechial haemorrhages SC 467-2017 : 10 :
6. Heart shown patechial hemorrhages
14. He further deposed that he has preserved Blood and nails. He has issued Post Mortem Report (Exh. 54) and given the Final cause of death as, ‘death due to throttling and unnatural’.
15. During his cross-examination, it has brought on record that when the body was sent for postmortem, the copy of Inquest Panchnama was provided and he had gone through the contents of Inquest Panchnama. It is further admitted that he received Death Certificate issued by Dr. Vivek Desai, wherein the injuries are not mentioned. He has also admitted that he has also received Death Certificate issued from BHABHA Hospital, wherein only Three injuries are mentioned and the cause of death is shown as 'unknown'. He has also admitted that in Post Mortem Report (Exh. 54), Five injuries are mentioned. In the Post Mortem Report (Exh. 54), approximate time of death of the deceased is not mentioned. This witness also admitted that there were injuries on the occipital region of the body. According to this witness, in general, the cause of death from wounds are immediate but depends upon the nature of injury. He has admitted that slight injury on the vital organs may cause death. According to him, immediate and direct causes of death are hemorrhage, injury on vital organs and shock. The deceased sustained injury having size of CLW 3 x 1 x 1 on occipital region, which is bone deep. He has further admitted that brain hemorrhage can be caused due to high blood pressure and heavy blood loss can cause death of person. He also admitted that head injury may cause internal or external bleeding. There was bleeding from head injuries. No x-rays or MRI of deceased were taken. He further admitted that he has not SC 467-2017 : 11 : mentioned whether the injury sustained to head is mild or serious injury.
16. He further admitted that the nail marks mentioned in Column No. 17 of Post Mortem Report cannot cause death of person. He has not mentioned colour of the injuries in Post Mortem Report. In the Post Mortem Report (Exh. 54) and Death Report (Exh. 48) received by BHABHA Hospital, measurements are different. There was no bleeding from mouth, ear and nose of deceased. He has specifically admitted that in the case of throttling, bleeding may come from mouth, ear and nose and tongue may proclude.
17. The Learned advocate for the accused submitted that the death of deceased is accidental. She sustained head injury. She was in habit of consuming Gutkha and other stupefying substance and due to which, her death can be possible. So far as submission made by the Learned Advocate is concerned, Dr. Marathe (PW-13) during his cross- examination admitted that nothing was found in the nail of deceased. He has not gone through Viscera Report, while giving his opinion.
18. The accused is disputing the cause of death and as per his defence, the deceased fell down on the ground and sustained head injury, due to which, she died. Admittedly, the deceased sustained head injury, but Dr. Marathe (PW-13) issued Post Mortem Report (Exh. 54), which clearly indicates that the injuries mentioned in Column No. 17 and 18 are ante-mortem injuries. As per the evidence of Dr. Marathe and Post Mortem Report, the death of deceased Jamila is caused due to throttling and unnatural. The defence has put suggestion to this witness SC 467-2017 : 12 : that if the neck is struck with hard surface, death can be caused. The said suggestion was denied by this witness. The defence has denied the death of Jamila was caused due to throttling.
19. During the evidence of inquest panch, it is brought on record that the witness do not recollect the words written in the Panchnama. However, the Inquest Panchnama (Exh. 29) clearly indicates that there was half encircled mark around the neck of the deceased, which itself strengthen the testimony of Dr. Marathe and the opinion given by him in Post Mortem Report (Exh. 54) about the cause of death as 'throttling'. Thus, the above evidence coupled with Post Mortem Report (Exh. 54) is indicative of the fact that Jamila Shaikh suffered homicidal death. Hence, I record my findings to the Point No. 1 in Affirmative. AS TO POINT NO. 02 :-
20. The story of the prosecution is that the accused has committed murder of deceased Jamila by throttling. This case is based on circumstantial evidence and the prosecution is required to prove the case beyond reasonable doubt by completing the chain of circumstances. The learned Advocate for the accused has submitted that in this case, there is no direct evidence. The sister of the deceased namely Shakila (PW-2), Nazma Shaikh (PW-6), mother of deceased namely Madina Shaikh (PW-8), Taskiya Ansari (PW-9) did not support the case of prosecution. The prosecution has relied on the seized articles stained with blood. The FSL Report (Exh. 04) regarding the blood sample and Nail Clippings of the accused nowhere supports the story of the prosecution. The blood group of accused is ‘B’. The blood group of deceased as per the FSL Report (Exh. 06) is inconclusive. The blood SC 467-2017 : 13 : stains found on the seized articles are having blood group ‘B’. The learned advocate for the accused has argued that the prosecution has nowhere brought on record that the accused sustained injury and his blood was reflected on all the articles.
21. The spot panch Omprakash Pyarelal Vaishya (PW-3) deposed that on 30.12.2016, at about 1.30 pm, the police asked him to act as a panch and he consented for it. When he reached to the spot, he noticed one body of girl was lying, on the ground and he came to know that she was murdered. He deposed that the informant (PW-01) has shown the spot to them and he also noticed clothes, purse, mobile phone stained with blood. The Police seized all the articles from the spot and prepared Panchanama(Exh. 27). This witness has identified the Blue pillow having blood stains (Article B), White colour Pillow having blood stains (Article C), White colour Shirt having blood stains (Article D), White colour cloth having blood stains (Article E), small checks shirt having blood stains (Article F), Grey pillow cover having blood stains (Article G), White colour purse having blood stains (Article H), Yellow dupatta having blood stains (Article I), Quilt having blood stains (Article J), Mat having blood stains (Article K) and White colour handkerchief having blood stains (Article L).
22. It is not disputed that the accused came to be arrested on the same day i.e. on 30.12.2016. The Arrest Form (Exh.65) nowhere indicates any fresh injury was sustained by him. The blood group of deceased was determined as inconclusive and the blood group of accused is determined as ‘B’. SC 467-2017 : 14 :
23. On this material point, the learned APP has submitted that the deceased and accused are siblings and it might have possible that they both have similar blood group. Therefore, the same may be considered while appreciating the FSL Report (Exh. 13). So far as the submission of learned APP is concerned, there are no oral or documentary evidence on record to show that the deceased was having ‘B’ blood group. Mere the accused being brother of the deceased itself is not sufficient to conclude that being siblings, they both are having similar blood group. Hence, I do not find the argument of the learned APP is convincing.
24. The learned APP has further submitted that the deceased was addicted to drug and she used to roam with different boys in night hours. Due to which, the reputation of the family of the deceased and accused is tarnishing. Due to the said reason, quarrel used to take place between the deceased and the accused. On the day of the incident, on this count, the quarrel has been taken place between the accused and the deceased. The accused banged her head on the wall and then throttled and committed her murder.
25. So far as the aforesaid submission made by the Learned APP is concerned, witness Farhan Khan (PW-14) that he is acquainted with the accused and deceased as they were residing at some distance, in same lane. He deposed that the quarrel used to take place between them and their family members. He further deposed that the deceased was not having good moral character and on this count, quarrel used to take place, in her family. He further deposed that on 30.12.2016, when he returned home after completion of his work, he came to know about the alleged incident that Akhtar killed his sister. SC 467-2017 : 15 :
26. During his cross-examination, he admitted that due to laps of time, he is unable to identify Akhtar. He also admitted that he has no personal knowledge about the incident. The Police asked his name and address only. He further admitted that since the date of incident, till asking his name and address by police, he was in Mumbai only. He further admitted that when he came to the Court for evidence, the police accompanied with him. He also admitted that personally, he has never seen that quarrel used to take place between the family members of deceased. He further admitted that the police informed him what and how to depose in the Court.
27. The evidence of this witness indicates that he is unable to identify the accused and he has never seen the quarrel taken place between the accused, deceased and their family member. Panch witness Omprakash (PW-3) during his cross-examination admitted that if any noise is created on the spot that can be easily heard by the surrounding people. This material admission clearly indicates that the quarrel must be heard by the surrounding people, if arose in the said room. In view of this piece of evidence, the evidence of Farhan Khan is not reliable and convincing. Therefore, the evidence of this witness is not sufficient to prove the said aspect.
28. Admittedly, the present case is rest on circumstantial evidence. So far as the story of the prosecution is concerned, it is the settled principle of law that the prosecution must be fulfilled following conditions - (a) The circumstances from which the conclusion of guilt is to be drawn should be fully established. SC 467-2017 : 16 : (b) 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. (c) The circumstances should be of a conclusive nature and tendency. (d) They should exclude every possible hypothesis except the one to be proved, and (e) 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.
29. In the light of the aforesaid preposition, the evidence of the prosecution witnesses needs to be appreciated. To prove the guilt of the accused, prosecution is mainly relied on the evidence of the informant (PW-01) and Javed Ahmed (PW-05). The informant is claiming that the accused confessed before him that he has committed murder of Jamila. The informant Irshad Navabali Qureshi (PW-1) who is taxi driver testified that the informant was acquainted with the accused and his family, since 2003. The Accused was doing tailoring work and at the time of incident, he was residing in Room No. 325. On 30.12.2016 at about 12.00 O'clock, this witness has received the phone call from Accused and at that time he was at Bandra Lake with his taxi. The Accused made inquiry with him about his location and requested him to come immediately. Accordingly, he immediately came near to the SC 467-2017 : 17 : residence of accused. At that time, the Accused was standing alongwith his sister on road. They started crying after noticing the informant. Upon inquiry, the Accused stated that “eSaus ekjk” and also disclosed him that “eSaus NksVh cgu dks ekjk”. When the informant asked the accused about the reason, the accused disclosed that his younger sister used to move out of house during night. The accused also requested this witness to visit his house.
30. The informant (PW-01) further testified that, the house of the accused was locked and people gathered there. He came to know that the younger sister of the accused is inside the room. He has suspicion that something happens with the sister of accused. Therefore, instead of opening the door, he took the accused to the Police Station. It has further come in his evidence that thereafter the police visited the spot. When the police opened the door, they noticed that the younger sister of accused was lying on bed. She sustained bleeding injury on the backside of her head and One pillow was also there. Thereafter, the police took the accused in custody. He provided the information to the police about the incident as per the FIR (Exh. 22). According to this witness, the police visited the spot and prepared Spot Panchnama (Exh.27) and also seized the articles from the spot.
31. During cross-examination, he admitted that Nargis Dutt Nagar and Aliyawar Jung Hospital are situated on two different places. He further admitted that while police were recording his statement, the accused was also narrating about the incident to police. The police were also recording the statement of the accused while recording his statement. He further admitted that he was not in the photographs (Article A-1 to A-10). SC 467-2017 : 18 :
32. During the cross-examination of this witness, following material omissions in the form of improvisations are brought on record - a) The accused disclosed that, “eSaus NksVh csgu dks ekjk”. b) “At that time the house of accused was locked.” c) “I came to know that the younger sister of accused is inside the room. At that time, I have suspension that something is happened with sister of accused.”
33. In this case, it is very surprising to note that when the defence has put all the aforesaid improvements to the investigating officer API Ruchali Sankpal (PW-12) who has recorded the statement and registered the FIR (Exh. 22). She deposed that the informant has narrated the aforesaid facts while giving his statement. The statement is the part and parcel of the FIR (Exh. 22) nowhere indicates the aforesaid improvisation. The informant has completed omitted to state the aforesaid facts in his statement and the FIR. It is pertinent to note that API Sankpal (PW-12) has not recorded any supplementary statement of the informant. Therefore, the aforesaid omissions are required to be treated as the material omissions.
34. Javed Ahmed Warsi @ Nizambhai (PW-05) deposed that the informant Irshad (PW-01) is his neighbour and they are residing in the same locality since long. He deposed that in the year 2016 on 30th, there was camp for issuance of Aadhar Card and he was participated in the said Camp. On that day, at around 11.00 a.m., the mother-in-law (PW-06) of sister (Sakina) of the accused came to him. She took him in the office of All Vision, beside the camp. He further deposed that she disclosed to save accused as he killed his sister. He further deposed that SC 467-2017 : 19 : thereafter, he made phone call to the informant Irshad Qureshi(PW-01). At that time, the accused was standing, in front of his house. Thereafter, this witness dialed 100 number and Bit Marshal came within 15 to 20 minutes. He further deposed that within 5 to 10 minutes, Irshad (PW-01) reached there. Thereafter, the Police, this witness and Irshad (PW-01) went to house of the accused, where they noticed that sister of accused was lying dead.
35. During his cross examination, he has admitted that he is social worker and used to visit police frequently. He also candidly admitted that he is deposing as per the say of police and he was told by police that, the accused will be shown on VC for identification. He further admitted that the accused was shown on VC and thereafter, he identified the accused. This witness, by nodding his head admitted that by taking oath in the name of God, he deposed as per the statement after reading into the Court, prior entering into the witness box.
36. The star witnesses of the prosecution i.e. the informant (PW-01) and Javed (PW-05) deposed contradictory to each other. According to Javed (PW-05), he called the informant and after 5 to 10 minutes, the informant reached there. Whereas the informant deposed that the accused called him by making phone call and accordingly he came near the house of the accused. The informant during his evidence nowhere whispered that he was called by Javed (PW-05) and thereafter the informant, Javed (PW-05) and the police went to the spot. The evidence of Javed indicates that he is the first person who get the information of the incident. The learned advocate raised the point that the investigating officer has neither seized the mobile phone of the accused SC 467-2017 : 20 : and Irshad nor collected CDR of both the mobile phones to prove that the accused made phone call to the informant (PW-01).
37. So far as the testimony of the informant (PW-1) in respect of the accused about extra judicial confession made by the accused to him is concerned, he has improvised the story of the prosecution during his evidence in respect of the same. Therefore, corroboration is required to the evidence of the informant (PW-01) as Javed (PW-05) is claiming that he called the informant by making phone call. If it is so, then question arise when the accused has called the informant (PW-01) and confessed before him as Javed (PW-05) nowhere deposed that the informant met with the accused, after his arrival. The investigating officer has not collected the CDR and SDR to prove that at the relevant time, the accused made phone call to the informant and thereafter confessed about his guilt. The version of both these witnesses are contradictory, which creates doubt about the extra judicial confession made by the accused. There are several discrepancies in the contents of the FIR (Exh. 22) and the evidence of the informant (PW-01). The material admission given by Javed (PW-05) that he deposed as per say of the police itself creates serious doubt about the story of the prosecution. It is well settled that the extra judicial confession is a weak piece of evidence and corroboration is needed. The credibility of the extra judicial confession decreases when the surrounding circumstances are doubtful.
38. The sister of the deceased Shakila Likayat Hussain Shaikh (PW-2) deposed that the deceased left her education. Jamila used to take stupefying drugs. She used to consume Tobacco and Gutkha. She used to roam outside the house during night hours and used to return in the SC 467-2017 : 21 : morning. On this count, the quarrel used to take place between deceased and family members. It has further come in her evidence that her mother came to her and informed that the deceased fell down. So, she went to the house of her mother, but till that time, Jamila died. Therefore, they had taken her to the Hospital by Auto Rickshaw. This witness did not support the story of the prosecution. Attempt was made by the prosecution to extort certain admissions from this witness to support the case of the prosecution, but nothing emerges from this witness. Hence, the evidence of this witness is not much helpful to prove the guilt of the accused.
39. The witness Nazma Jiyauddin Shaikh (PW-6), Madina Khatun Shaikh (PW-8) and Taskiya Ansari (PW-9) did not support the story of the prosecution. Therefore, the evidence of these witnesses are to be discarded.
40. ASI Ramchandra Annappa Dodagade (PW-10) deposed about collection of blood sample of the accused from the Medical Officer alongwith the Form (Article -11). The blood sample of the accused was forwarded to the FSL and the blood group of accused is detected as ‘B’ as per the FSL Report (Exh. 04). The evidence of this witness is of formal nature and is not sufficient to prove the guilt of the accused in absence of other ocular evidence.
41. Witness Museb Beg (PW-15) deposed that on 30.12.2016, Bandra police called him as a panch to seize the Shirt (Article-F) of the accused. He further deposed that Police seized Shirt having blood stains and prepared Seizure Panchanama (Exh. 64). He further deposed that when SC 467-2017 : 22 : they went to police station, one boy having thin physic / body was present there and Police informed them that the said Shirt (Article-F) belongs to the said boy i.e. Accused. He further deposed that the Police arrested the accused in his presence and prepared Arrest Memo (Exh. 65).
42. During his cross-examination, he admitted that he was not aware, since when the accused was brought to the police station and since when he was present in the police station. He further admitted that the Shirt like Article-F, is easily available with the scrap and clothes vendor.
43. From the evidence of this witness it appears that the aforesaid Shirt was not handed over by the accused to Police in the presence of this witness. The police has seized Shirt (Article-F) having blood stains and thereafter, had shown the accused to this witness, which itself creates the doubt about the recovery of said Shirt.
44. API Ruchali Sankpal (PW-12) and ACP Sanjeev Moreshwar Bhole (PW-17) are the investigating officers deposed about the procedural aspect and necessary steps taken by them during investigation. Hence, the evidence of both these witnesses are of formal in nature and not sufficient to establish the guilt of the accused beyond reasonable doubt.
45. The carrier HC Kiran Lore (PW-16) have collected the hair sample, male sample and skin of the accused and handed over those samples to I.O. Sanjeev Bhole (PW-17). The evidence of this witness is also of formal nature. SC 467-2017 : 23 :
46. In the present case, except the recovery of certain articles from the spot, no ocular evidence is brought on record, which did not complete the chain of circumstances. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR (SC) 1622, the Hon'ble Supreme Court in Para No. 217 observed that :- “..… in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him.”
47. The aforesaid ratio is squarely applicable in the present case. In this case, the defence is succeeded to create the doubt on the story of the prosecution. In the present case, the prosecution has not discharged its primary burden to prove the case beyond reasonable doubt. The prosecution has not established a complete chain of incidents to prove the guilt of the accused.
48. In view of the forgoing reasons, I am of the view that the evidence adduced by the prosecution has not cogent, reliable, clinching and sufficient to prove the guilt of the accused beyond reasonable doubt. Thus, I record my findings to the Point No. 2 in Negative. AS TO POINT NO. 3 :-
49. The prosecution could not prove the ingredients of Section 302 of ‘the IPC’ against the accused. Its evidence does not prove any other lesser offence. Hence, Point No. 3 is answered in Negative. AS TO POINT NO. 4 :-
50. In view of Negative findings on Point Nos. 2 and 3, I am of the opinion that the prosecution has utterly failed to bring home the SC 467-2017 : 24 : guilt of accused for the offence punishable under Section 302 of 'the IPC'. Therefore, the accused is entitled for acquittal. The seized Articles, being worthless and not claimed, require disposal. Hence, in view of above discussed reasons, I record my finding to the Point No. 4 accordingly and proceed to pass the following order :- ORDER
1. The Accused Akhtar Faim Shaikh is hereby Acquitted under Section 235(1) Code of Criminal Procedure of an offence punishable under Section 302 of the Indian Penal Code.
2. The accused be set at liberty, if not required in any other offence.
3. The Accused is directed to furnish his personal and surety bonds of Rs. 15,000/- (Rupees Fifteen Thousand), as per the provision of Section 437-A of Criminal Procedure Code, for the period of Six months, in respect of his appearance before the Hon'ble High Court, if appeal against the order of acquittal is filed.
4. The seized muddemal property Article B - Blue Pillow having blood stains, Article C - White colour Pillow having blood stains, Article D - White colour Shirt having blood stains, Article E - White colour clothes having blood stains, Article F - small checks shirt having blood stains, Article G - Grey Pillow cover having blood stains, Article H - White colour purse having blood stains, Article I - Yellow Dupatta having blood stains, Article J - Quilt having blood SC 467-2017 : 25 : stains, Article K - Mat having blood stains, Article L - White colour handkerchief having blood stains, being worthless, be destroyed, after the Appeal period is over.
5. The unmarked articles - Two Gutkha packets, Pink colour Bra, Black Thread, one White metal ornament, Sim Card, labels, being worthless, be destroyed, after the period of Appeal is over.
6. The unmarked articles - Two currency Notes of Rs. 100/- each and Two currency Notes of Rs. 10/- each, be credited to the Government, as per rule.
7. The unmarked Article - White colour Samsung Company Mobile, be kept in auction and the amount of sale proceed, be credited to the Government.
8. The unmarked articles, if any, being worthless, be destroyed, after the period of Appeal is over.
9. As the matter is disposed off by this Judgment, the record and proceedings be sent to Record Department.
10. The Judgment is dictated and pronounced in open Anita Digitally signed by Court. Anita Bajranglal Bajranglal Sharma Sharma Date: 2023.09.04 16:00:43 +0530 (A. B. SHARMA) Additional Sessions Judge Date :- 19.08.2023. City Civil And Sessions Court Dictation Typed on :- 19.08.2023. Greater Bombay. Signed and Checked on :- 04.09.2023. SC 467-2017 : 26 : “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.” 04.09.2023 at 4.00 pm (Y.M. SAKHARKAR) UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge (With Court SMT. A. B. SHARMA room no.) (C.R. NO. 39) Date of Pronouncement of 19.08.2023
JUDGMENT/ ORDER
JUDGMENT/ORDER signed by P.O. 04.09.2023 on
JUDGMENT/ORDER uploaded on 04.09.2023
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