Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 273

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S. JADHAV, SARANG V. KOTWAL, JJ.
Asif Nasir Khan – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 834 of 1998
Decided On : 09-03-2022

Advocates:
Advocate Appeared:
For the Appellants : Ms. Keral Mehta, Niranjan Mundargi.
For the Respondent: Ms. Veera Shinde.

Point of Law : Circumstance of last seen together does not by itself and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.

Headnote:
Indian Penal Code, 1860 - Section 302, 201 r/w 34 - Criminal Procedural Code, 1973 - Section 428, 313 - Offence of Murder - Savings of inherent powers of High Court - Appellant as well as his co-accused were acquitted from charge of commission of offence punishable under Section 201 read with 34 of IPC - Appellant was given set off under Section 428 of Cr.P.C. - Whether deceased had left with Appellant.
Findings of the Court :
Alleged murder weapon of knife was not recovered though an attempt was made to search it in Mutha river at instance of Appellant - Therefore, even that evidence is lacking - Taking into consideration all above factors, court are of opinion that prosecution has not proved case against Appellant beyond reasonable doubt - Appellant, therefore, deserves to be acquitted from all charges.
Result : Appeal is allowed.

Judgement Key Points

Based on the legal document provided, here are the key points:

The Appellant, Asif Nasir Khan, was convicted of murder under Section 302 of the IPC and sentenced to life imprisonment in Sessions Case No. 430/1995, though he and his co-accused were acquitted of the charge under Section 201 read with 34 of IPC. (!)
The prosecution case alleged that the Appellant murdered Prakash Pardeshi on 5.6.1995 using a sharp weapon and nunchaku, and the body was thrown into a quarry. (!)
The dead body was found in a stone quarry near Alandi Road on 7.6.1995 by police patil Balasaheb Kand. (!)
The deceased's widow, PW-4 Saira Pardeshi, deposed that the Appellant owed money to the deceased and that the deceased left with the Appellant on the morning of 5.6.1995, but she had significant omissions in her police statement regarding this claim. (!) (!)
Several witnesses produced by the prosecution, including autorickshaw owner PW-1 and panchas PW-2, PW-5, PW-10, PW-13, and PW-14, turned hostile or failed to provide consistent details. (!)
The postmortem report by Dr. Shrikant Chandekar indicated the death occurred 48 to 72 hours before the examination, but the cause of death was reserved and the exact time was not clinched. (!)
The Chemical Analysis (C.A.) report found no blood on the autorickshaw or nunchaku, making the recovery of these items innocuous, although human blood was found on the Appellant's clothes without a determined blood group match. (!) (!)
A pillow found with the dead body matched one seized from a flat shown by the Appellant, but the recovery was doubtful as no items were seized from that flat during the initial visit on 14.6.1995 when the Appellant guided the police. (!) (!)
The alleged murder weapon (knife) was not recovered despite an attempt to search for it in the Mutha river at the instance of the Appellant. (!)
The court held that the "last seen together" theory was weak because the prosecution failed to prove beyond reasonable doubt that the deceased left with the Appellant, citing the Supreme Court judgment in Kanhaiya Lal vs. State of Rajasthan. (!) (!)
The motive was not properly proved as the cheques were not seized during investigation and handwriting verification was not conducted. (!)
Ultimately, the court concluded that the prosecution had not established a complete chain of circumstances proving the Appellant's guilt beyond reasonable doubt. (!) (!)
The Criminal Appeal was allowed, the conviction and sentence were set aside, and the Appellant was acquitted of all charges. (!)

JUDGMENT :

SARANG V. KOTWAL, J.

1. The Appellant was the Accused No. 1 in Sessions Case No. 430/1995 before the Additional Sessions Judge, Pune. Vide judgment and order dated 30.10.1998, the learned trial Judge convicted the Appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment and to pay a fine of Rs. 5,000/- and in default to suffer R.I. for one year. The Appellant as well as his co-accused were acquitted from the charge of commission of offence punishable under Section 201 read with 34 of IPC. The Appellant was given set off under Section 428 of Cr.P.C.

2. Heard Ms. Keral Mehta, learned counsel for the Appellant and Ms. Veera Shinde, learned APP for the State.

3. As per the charge framed, according to the prosecution case, on 5.6.1995 between 9.30 a.m. to 10.00 a.m. the Appellant committed murder of Pappu @ Prakash Pardeshi in the flat of Josphin Shinde on Senapati Bapat Road, Pune by using a sharp weapon and nunchaku. The dead body was covered by cloth and was carried in an autorickshaw towards Lonikand and it was thrown in a quarry with the help of accused No. 2 Zakir Shaikh.

4. PW-15 Balasaheb Kand was a police patil of Lonikand. One Trimbak Kharate on 7.6.1995 told him that one dead body was found lying in a stone quarry near Alandi Road. It was kept in a gunny bag. PW-15 Balasaheb went to Lonikand Police Outpost and took the police to the spot. Thereafter the dead body was taken out by the police.

5. PW-16 Head Constable Natha Thopate was attached to Lonikand Police Outpost. On receiving information from PW-15, he along with others went to the spot, took out the body and sent it to Sasoon Hospital. He conducted the inquest panchnama. He had received the information from PW-15 at about 6.00 p.m. on 7.6.1995. He lodged A.D. No. 72/1995 about this dead body.

6. PW-17 PSI Bajirao Jagtap was attached to Loni Kalbhor police station. He received the papers of A.D. No. 72/1995 from PW-16 Thopate. This witness made enquiries with the brother and wife of the deceased. During that enquiry the Appellant’s name was disclosed. He was arrested on 14.6.1995. The Appellant pointed out the place of incident where the offence was committed. The memorandum and the panchnama to that effect was prepared. They were produced at Exhibits-36 and 37. On the basis of enquiry, this witness registered the offence under Section 302 of IPC and sent the FIR to Chaturshringi police station. The offence was registered on 14.6.1995 at 11.15 p.m.

7. The evidence of PW-3 Dinesh Pardeshi and PW-4 Saira Pardeshi is important. PW-3 Dinesh was the nephew of the deceased Prakash Pardeshi. This witness’s brother Umesh needed money for his surgery. PW-3 Dinesh and his brother Umesh had been to the house of the deceased. At that time, the Appellant came there. The deceased asked him to return the amount which he had taken from the deceased. The Appellant had promised that he would return the amount on the next day. This witness was told by PW-4 Saira that on 5.6.1995, the Appellant had taken the deceased with him but he had not returned and, therefore, PW-4 Saira sent PW-3 Dinesh in search of the deceased to the house of the Appellant at about 11.00 p.m. Initially the Appellant’s sister told him that the Appellant was in the house, but, then the Appellant’s mother told him that the Appellant was not in the house. He came back and told Saira that the deceased was not at the house of the Appellant. On 8.6.1995, the police called him to identify a dead body at Sasoon Hospital. He could not identify the dead body, but, when he was shown the clothes, he identified the clothes as being those of the deceased. In the cross-examination, he has admitted that he was not knowing the Appellant prior to 4.6.1995. There was opposition from the family of the deceased for the deceased’s marriage with Saira and, therefore, they were residing separately. The deceased was addicted to gambling and was also runni

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2022 Supreme(Bom) 273

IN THE HIGH COURT OF JUDICATURE AT BOMBAYSADHANA S. JADHAV, SARANG V. KOTWAL, JJ.Asif Nasir Khan – AppellantVersusThe State of Maharashtra – RespondentCriminal Appeal No. 834 of 1998Decided On : 09-03-2022

Point of Law : Circumstance of last seen together does not by itself and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S. JADHAV, SARANG V. KOTWAL, JJ.
Asif Nasir Khan – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 834 of 1998
Decided On : 09-03-2022