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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, A.M. BADAR, JJ.
Mohd. Samir Mohd. Juber Shaikh - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 255 of 2009
Criminal Appeal No.1241 of 2008
Decided on : 10-01-2017
It needs to be noted that the dead body was recovered from the water tank leading to filing of the FIR by PW 5 and then investigation of the crime in question commenced. As such, spot of the incident was very well within the knowledge of the investigator, prior to recording that confessional statement of appellants/accused. As such, this evidence is of no use to the prosecution as that fact was already within the knowledge of the police. It is also alleged that one handkerchief was recovered at the instance of appellant/accused No. 4 and this recovery is proved by the prosecution through evidence of PW 9. However, there is no connecting evidence to show that the said handkerchief was used in commission of the crime in question and as such, it cannot be said to be a relevant fact.
The prosecution has failed to prove guilt of appellants/accused in respect of any of the offences alleged against them beyond all reasonable doubts. Appellants/accused are found to be entitled for benefit of doubt as incriminating circumstances against them are not firmly established by the prosecution. Case of the prosecution may be true but Court is unable to record the finding that it must be true in all probability. Resultantly, the impugned judgment and order of the trial Court is required to be set aside.
Evidence Act, 1872 - Section 30-Confession-Admissibility of.-The careful of scrutiny of provisions of Section 30 of the Act, discloses that when the statement of the accused does not amount to confession i.e., when it is wholly or partly exculpatory, same could be used against co-accused.
Prosecution has to establish each circumstance by independent evidence and the circumstances so established should form a complete chain without giving room to any other hypothesis and should be consistent with his guilt and are inconsistent with his innocence.
While appreciating the circumstantial evidence in criminal cases, strict scrutiny of each of the facts placed by circumstantial evidence and their cumulative effect has to be taken into consideration and if they are of such nature as to be incompatible with the innocence of the accused then only conviction can follow.
Evidence Act, 1872 - Section 3-Circumstantial evidence.-This case of prosecution of kidnapping, rape and murder was based on circumstantial evidence but chain of circumstances was not so complete as pointed out to guilt of accused applicants/appellants. Hence, appellants were acquitted.
When the statement of the accused does not amount to confession i.e. when it is wholly or partly exculpatory, it cannot be used against co-accused. Where an accused pleads innocence and throws the blame on the co-accused, such statement cannot be termed as confession of that accused and as such cannot be used against co-accused. For making use of it against co-accused the statement of accused must amount to a distinct confession of his own guilt. Self exculpatory statement of the accused as such cannot be used to infer guilt of co- accused.
Evidence Act, 1872 - Section 125-Criminal Procedure Code, 1973, Section 306- Accomplice-Pardon.-There prosecution may ask that the particular accused out of several accused may be tendered pardon but it does not preclude the accused from directly applying the Court for tender of pardon to him.
Ordinarily it is for the prosecution to ask that particular accused out of several accused may be tendered pardon but this does not preclude the accused from directly applying the Court for tender of, pardon to him. It is then open for the prosecution to agree for tendering pardon to such accused in the interest of successful prosecution of other accused.
The object is to obtain true evidence of offences, so as to prevent the escape of the offenders from punishment for lack of evidence in grave offences. The examination of an approver as a witness of the prosecution during trial is essential.
A.M. Badar, J. (Oral)
By these appeals, appellants/original accused are challenging the judgment and order dated 24th October 2008 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.680 of 2006, thereby convicting them of offences punishable under Sections 363, 366, 377, 302, 201 read with Section 34 of the IPC. For the offence punishable under Section 302 read with Section 34 of the IPC, all appellants/accused are sentenced to suffer life imprisonment and to pay fine of Rs.3,000/- each, in default, to undergo further rigorous imprisonment for 6 months. For the offence punishable under Section 377 read with Section 34 of the IPC, they are sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.1,000/- each, in default, to undergo further rigorous imprisonment for 3 months. For the offence punishable under Section 363 of the IPC, appellants/accused are sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs.300/- each, in default, to undergo further rigorous imprisonment for 15 days. For the offence punishable under Section 366 read with Section 34 of the IPC, appellants/accused are sentenced to suffer rigorous imprisonment for 4 years and to pay fine of Rs.500/- each, in default, to undergo further rigorous imprisonment for 1 month. For the offence punishable under Section 201 read with Section 34 of the IPC, they are sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs.300/- each, in default, to undergo further rigorous imprisonment for 15 days. The learned Additional Sessions Judge directed that all substantive sentences shall run concurrently.
2. At the outset, it would be appropriate to set out the prosecution case :
Informant/PW5 Raju Shikare is a resident of Plot No.9, Bainganwadi, Govandi, Mumbai. He was having medical shop at Chita Camp, Trombay, Mumbai. His family was comprising of his parents, wife, two sons and a daughter i.e. the victim of the crime, who was aged about 3½ years, at the time of the incident. It is the case of the prosecution that this toddler of the informant/father was kidnapped by appellants/accused person on 7th April 2006 for subjecting her to illicit intercourse and then she was subjected to gang rape by them, apart from sodoming her. Thereafter, according to the prosecution case, she was murdered by them and in order to conceal evidence of this crime, the dead body of the minor female victim was dumped in the water tank of a public toilet at Plot No.10 of Bainganwadi. According to the prosecutor case, the offence was committed by appellants/accused in furtherance of their common intention.
3. According to prosecution case, appellants/accused persons were wielding reign of terror in the locality. Few days prior to the incident, appellants/accused persons accosted informant PW5 Raju Shikare near Plot No.9 of Bainganwadi and demanded tablets of Restyl from him. PW5 Raju Shikare in turn replied that they should come to his shop with a prescription from the doctor. Appellants/accused insisted him to deliver those tablets immediately without prescription from the doctor. PW5 Raju Shikare refused to accede to the demand of appellants/accused persons. This infuriated appellant/accused no.4 Parvej Ahmed @ Guddu. He extended threat to informant PW5 Raju Shikare by uttering that this refusal will prove costly. Thus, according to the prosecution case, constituted motive for commission of the crime.
4. It is the case of prosecution that minor female victim of the crime in question was kidnapped by all appellants/accused from about 7 p.m. to 8 p.m. of 7th April 2006 from the vicinity of her house. PW4 Sayyad Rehmatali had seen all appellants/accused taking the minor female victim with them and proceeding towards Plot No.10 of Bainganwadi, at about 8.30 to 8.45 p.m. of that day. When the minor female victim was found missing by her family members, informant PW5 Raju Shikare was telephonically informed about
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