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2020 Supreme(Bom) 798
IN THE HIGH COURT OF BOMBAY
Prasanna B Varale, Prakash D Naik, JJ.
Mohd Ismail Abdul Hadis Maniyar - Appellant
Versus
State Of Maharashtra (at Instance Of Ghatkopar Police Station Vide C R No 222 Of 2012) - Respondent
Criminal Appeal No. 421 of 2015
Decided On : 15-09-2020
Gaurav Bhawnani, Advocate, Khan Abdul Wahab, Advocate, P.P. Shinde, Advocate
Headnote:
CRIMINAL APPEAL - CONVICTION FOR OFFENCES UNDER SECTIONS 302 AND 201 OF THE INDIAN PENAL CODE - CHALLENGE - CIRCUMSTANTIAL EVIDENCE - CHAIN OF CIRCUMSTANCES - LAST SEEN TOGETHER - RECOVERY OF CLOTHES, ARTICLES AND PHOTOGRAPH OF THE VICTIM - RECOVERY OF CLOTHES OF THE ACCUSED - RECOVERY OF BRICK - FINDING OF BODY IN THE GUTTER - ARREST OF THE ACCUSED - EXPLANATION UNDER SECTION 106 OF THE EVIDENCE ACT - SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE - PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE - GOLDEN PRINCIPLES - SECTION 106 OF THE EVIDENCE ACT - EXPLANATION BY THE ACCUSED - FAILURE TO EXPLAIN - INFERENCE OF GUILT - DISMISSAL OF APPEAL.
Fact of the Case:
The appellant was convicted for the offence punishable under Section 302, 201 r/w. 109 of Indian Penal Code (for short "IPC"). The First Information Report (for short "FIR") was registered vide C.R.No. 222 of 2012 registered with Ghatkopar Police Station. The case of the prosecution is that, on 16th July 2012 message was received by Asst. Sub-Inspector Mr. Jagannath Maroti Shinde (PW-4) attached to Ghatkopar Police Station, from control room that one female was lying in a drainage near Balasaheb Desai Colony, Ghatkopar. He proceeded to the said spot. It was a gutter in front of Home Guard Training Center, Ghatkopar West Mumbai. Body of female was found in the drainage.
Finding of the Court:
The Trial Court gave a finding that the following circumstances are duly established. 1) Accused No.1 was the husband of deceased Jugara. 2) Accused No.1 entertained grudge against deceased Jugara on suspicion that she had relations with one Mubarak (this gives motive to accused No.1 to kill Jugara). 3) Accused No.1 leaves his native place together with deceased and their son for coming to Mumbai. 4) Accused No.1 takes room on rental basis at Ganpat Patil Nagar, Borivali from PW-3 Mr. Dilip Gupta on 11th July 2012. 5) Accused No.1 was last seen with the deceased leaving the room at 6 pm on 14th July 2012 by PW-2 Ujjwala. 6) Accused No.1 did not return to the room. 7) Dead body of Jugara, wife of accused No.1, found in a gutter in front of Home Guard Training Center, Balasaheb Desai Colony, Ghatkopar (W), Mumbai on 16th July 2012. 8) Accused No.1 returns to native place with his son on 17th July 2012. 9) Accused No.1 explains when asked by relatives of the deceased that Jugara had run away. 10) Accused No.1 lodges no missing report about missing of his wife either at Mumbai or at his native place. 11) Accused No.1, together with accused No.2, arrested on 26th July 2012 at the native place at Uttar Pradesh. 12) House search of a room at Ganpat Patil Nagar, Borivali in presence of panch witness PW-10 Salim Sayyed shows that trunk was found containing clothes of male and female and photograph Art.G of deceased Jugara. 13) Brick seized at the instance of accused No.1. 14) No explanation by the accused about death of his wife Jugara.
Issues: 1. Whether the prosecution has proved the chain of circumstances to establish the guilt of the accused. 2. Whether the theory of last seen together can be believed as there is long gap between the time when the accused was allegedly seen by the witness with deceased and the finding of dead body body. 3. Whether the prosecution has established the time of death. 4. Whether the photograph of the deceased was produced before the Court in evidence. 5. Whether the CDR was proved. Certificate under Section 65(B) of the Evidence Act was not produced. 6. Whether the panch witnesses were habitual. 7. Whether while recording the statement of the accused under Section 313 of Cr.P.C, all the incriminating circumstances were not put to the accused. 8. Whether the Trial Court has erroneously invoked Section 106 of the Evidence Act, when the prosecution has failed to discharged its initial burden showing complicity of the accused in the crime. 9. Whether the accused has been convicted on the basis of surmises which are not supported by any evidence.
Ratio Decidendi: 1. The case is based on circumstantial evidence. There is no eye witness to the incident. The prosecution has failed to prove the chain of circumstances to establish the guilt of the accused. 2. The theory of last seen together cannot be believed as there is long gap between the time when the accused was allegedly seen by the witness with deceased and the finding of dead body body. 3. The prosecution has not established the time of death. 4. The photograph of the deceased was not produced before the Court in evidence. 5. The CDR was not proved. Certificate under Section 65(B) of the Evidence Act was not produced. 6. The panch witnesses were habitual. 7. While recording the statement of the accused under Section 313 of Cr.P.C, all the incriminating circumstances were not put to the accused. 8. The Trial Court has erroneously invoked Section 106 of the Evidence Act, when the prosecution has failed to discharged its initial burden showing complicity of the accused in the crime. 9. The accused has been convicted on the basis of surmises which are not supported by any evidence.
Final Decision: The Criminal Appeal is dismissed. The Judgment and order dated 7th March 2015 passed by the Additional Sessions Judge, City Civil Court Greater Bomay, in Sessions Case No. 737 of 2012 convicting the appellant under Sections 302 and 201 of the I.P.C is hereby confirmed.
JUDGMENT
Prakash D. Naik, J. - The appellant and accused No.2 were prosecuted for the offence under Section 302, 201 r/w. 109 of Indian Penal Code (for short "IPC"). The First Information Report (for short "FIR") was registered vide C.R.No. 222 of 2012 registered with Ghatkopar Police Station.
2. The case of the prosecution is as under:
a) On 16th July 2012 message was received by Asst. SubInspector Mr. Jagannath Maroti Shinde (PW-4) attached to Ghatkopar Police Station, from control room that one female was lying in a drainage near Balasaheb Desai Colony, Ghatkopar. He proceeded to the said spot. It was a gutter in front of Home Guard Training Center, Ghatkopar West Mumbai. Body of female was found in the drainage.
b) Fire Brigade was called and body of the female was taken out. It was taken to Rajawadi Hospital by mobile van of Ghatkopar Police Station. Medical Officer at Rajawadi Hospital examined the body and found that the female was brought dead.
c) Inquest Panchnama Exh.36 was prepared on 16th June 2012 in presence of two panch witnesses, one of whom was Salma Ayuf Khan (PW-9). There was green top and black salvar on the dead body. One metal finger ring, mangalsutra, ear ring and painjan was found on the person of deceased. These articles and the clothes were removed from dead body before sending it for post-mortem. Clothes and articles were seized by panchnama (Exh.24), prepared on 16th June 2012, in presence of two panch witnesses one of whom was Indrajit Azhad (PW-5).
d) Mr. Rajkumar Vishnu Kothmire P.I (PW-8) was attached to Ghatkopar Police Station at the relevant time. Photograph of the dead body were clicked before sending it for postmortem since the body was not identified. He gave photograph of the body for publishing in newspaper. It was published in Gujarati, Daily "Metro Mirror" through Mr Jignesh Jagdish Pathak (Court Witness). Initially accidental death case No. 120 of 2012 was registered. Post-mortem report was received. Opinion was reserved. After receipt of report from Forensic Laboratory regarding viscera, cause of death was given as "Hemorrhagic shock due to head injury with skull bone fracture (un-natural)".
e) The photograph of dead body published in the newspaper was noticed by Mr. Allauddin Hafizullah Maniyar (P.W-1). He suspected that photograph is of his sister Jugara. He was working at Bhivandi, District-Thane. He went to Ghatkopar Police Station and met Mr. Kothmire. He was taken to mortuary. He identified the dead body to be that of his sister Jugara. After identification of the dead body, statement of P.W-1 was recorded and FIR was registered on 26th July 2012.
f) P.W-1 is the brother of deceased. According to him Jugara was married to accused No.1 (Appellant) six years prior to the incident and she was residing at Gaudi Bajar, Uttar Pradesh. The accused was suspecting that she was having relation with person named Mubarak. She was ill-treated. On 06th July 2012, accused No.1 left the native place along with deceased and their son. While leaving village, he informed that, he was leaving for Mumbai. On 17th July 2012, accused No.1 returned to village along with his son. On inquiry by family members of P.W-1, he informed that Jugara ran away.
g) Investigating team went to native place of accused at Gaudihawa, Misaroliya Janpad, District- Siddharth Nagar, Uttar Pradesh. Accused No.2 is father of accused No.1. He aided and abetted accused No.1. Both were arrested and brought to Mumbai.
h) During investigation house of accused at Borivali was searched on 31st July 2012, in the presence of panch witnesses. Mr. Salim Mehmood Sayyed (PW-10) was one of the panch witness. One rexine bag containing clothes of deceased, other clothes and imitation jewellery was found. Photograph of deceased was also found. These articles were seized by panchnama (Exh.37). On 01st August 2012, accused No.1 made voluntary statement in the presence of two panch witnesses, Investigating Officer and expressed his desire to sh
