2021 Supreme(Bom) 42

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sadhana S. Jadhav, N.J. Jamadar, JJ.
Golu Mustak Khan – Appellant
Versus
State of Maharashtra (Through Hinjewadi Police Station) - Respondent
Criminal Appeal No. 166, 731, 895, 952 OF 2015
Decided On : 24-03-2021

Point of Law: Criminal Law – Criminal Trial - Cause of death was asphyxia due to throttling - Test Identification Parade – Motive – Deceased had died because of a severe attack of migraine - Motive is not a sine quo non for bringing the offence of murder or of any crime home to the accused. At the same time the absence of ascertained motive comes to nothing, if the crime is proved to have been committed by a same person but to eke out a case by proof of a motive alone - That too suspicion of motive apparently tending towards any possible crime, is not only a very unsatisfactory but also a dangerous process, because circumstances do not always lead to particular and definite inferences and the inferences themselves may sometimes be erroneous.

Headnote:

Indian Penal Code, 1860 - Section 302 r/w 34 of IPC and 120-B – Offence of Criminal Conspiracy and Murder – Appeal against conviction - Appellant (accused no.1) in Appeal is sister of deceased - Deceased was working as Senior Software Engineer with Tech-Mahindra Company - Accused No.1 was staying with deceased and was looking after house - Police of Police Station received a phone call from Hospital and police was informed that deceased was brought to Hospital by Jagjitkaur in an unconscious state on that day and was declared as dead before admission - While conducting the Inquest Panchanama, marks of abrasion were seen on both sides of neck - Similarly, there were abrasions on wrist, there were blackish blue marks on back of deceased - After conducting autopsy, medical officer had opined “cause of death as asphyxia due to throttling” - Investigating Officer More (PW.1) had recorded statements of witnesses - It had transpired, that in intervening night deceased was in exclusive company of accused no.1. She had not given any satisfactory explanation about injuries noticed on dead body of deceased and moreover, postmortem notes show that cause of death was asphyxia due to throttling.

Finding of the court: Absence of motive by itself is not sufficient to exonerate an accused for charges framed against him. Motive is an inner urge that may force a person from doing an act or refraining from doing an act and an inference can be drawn on basis of act which is actually committed - It is admitted by accused no.1 in her deposition that she was constantly in touch with accused no.2 for almost three years prior to death of her brother deceased and more particularly between 20th January to 26th January 2013 - Accused nos.2 and 3 had left Pune on 26th January 2013 i.e. soon after incident - Identity of all accused is established by prosecution through PW. Nos.2,3,5 and 6 and hence, according to learned APP, judgment of trial Court calls for no interference - Conduct of accused no.1 during prelude to death of her brother, her association with accused nos.2 to 4 in intervening night with false explanation offered by her before Court leads to logical inference that accused no.1 had drawn a master plan to eliminate her brother for best reasons known to her alone, and she was aided and assisted by accused nos.2 and accused no.3 in executing plan - As far as accused no.4 is concerned, evidence against him is weak - Witnesses have claimed to have identified him in Test Identification Parade but identity was not established - Moreover, there is no evidence that he was in contact with accused no.1 to accused no.3 prior to incident - His association with accused nos.2 and 3 also does not inspire confidence whereas records show that accused no.2 was using phone of accused no.3 to communicate with accused no.1 - They had travelled from Gwalior to Pune and Pune to Gwalior together during that period - Complicity of accused no.4 in executing plan sketched by accused no.1 is doubtful - He, therefore, deserves extension of benefit of doubt - All circumstances cumulatively and individually establish guilt of accused nos.1 to 3.

(i) Result: Criminal Appeals filed by accused No. 1 to 3 dismissed and Criminal Appeal filed by accused No. 4 allowed;