The prosecution failed to establish the guilt of the accused beyond reasonable doubt, relying on circumstantial evidence that did not form a complete chain of proof.

JUDGMENT :

Revati Mohite Dere, J.

1 By this appeal, the appellant has assailed the judgment and order dated 28^th March 2019, passed by the learned Additional Sessions Judge, Thane, in Sessions Case No.29/2013, convicting him for the offence punishable under Section 302 of the Indian Penal Code (‘IPC’) and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5,000/- in default, to suffer rigorous imprisonment for one month.

2 The facts as are necessary to deal with the case are:

It is the prosecution case that between 8:00 p.m on 14^th August 2003 and 7:35 a.m on 15^th August 2003, the appellant committed the murder of one scrap vendor-Julfikar Umarkhan with a weapon or sharp edged knife and be-headed the said person and set him ablaze by pouring kerosene or a like substance. The body of the person was found in a bathroom in a flat, being Flat No. 302 of Sai Aashiyana Co-op. Society, A-Wing, Mira Road, Thane. It is further the prosecution case that the said act was done by the appellant to conceal his identity, by showing that he was murdered. The object/motive was to avoid court proceedings and cases which the appellant was facing.

The act came to light, when the neighbours saw smoke billowing out of the said flat. Fire-brigade was called and the fire in the bathroom was doused. A headless dead body was found in the bathroom. On inquiry, it was learnt that the flat belonged to Saiyyad Zuber Kadri, who was residing in Saudi. Inquiry also revealed that Saiyyad’s brother-Musaddik (appellant) was residing in the said flat for about a year, alone, and that the appellant’s another brother was residing in a nearby building. It appears that in the inquiry, the appellant’s brother-Mansoor Kadri had disclosed to the police that his brother was staying in the flat in question. PW2-Avinash Bhamare, PI attached to Mira Road Police Station, Mumbai, lodged an FIR vide C.R. No. 169/2003 (Exhibit 30) as against unknown person. Spot panchanama and inquest panchanama were done and after investigation, the police filed an `A’ Summary report in 2005 as the perpetrator of the crime, could not be found.

It is the prosecution case that the petitioner after committing the said act in 2003, went to reside at Malegaon from 2003 to 2006 and thereafter to Hyderabad between 2006 to 2010, to avoid his arrest.

It appears that the appellant was arrested on 6^th October 2010 by ATS, Mumbai (Kalachowky) in C.R. No. 23/2010 for the alleged offences punishable under Sections 3, 25 of the Indian Arms Act. It is during the appellant’s interrogation in the said case, that the police discovered that the appellant had killed someone in 2003 and portrayed to the police that it was he, who was killed and that the same was done by the appellant, to avoid facing prosecution in cases registered against him. Pursuant thereto, the police re-opened the case i.e. C.R. No.169/2003 since an `A’ Summary was filed in the said case. The appellant came to be arrested in the said case and was remanded to custody in C.R. No. 169/2003. After investigation, charge-sheet was filed in the said case against the appellant for the alleged offences punishable under Sections 302 and 201 of the IPC in the District and Sessions Court, Thane, on 7^th January 2013.

Since the offence under Section 302 of the IPC was triable by the Court of Sessions, the case came to be transferred to the Court of Sessions for trial.

Charge came to be framed against the appellant, to which, he pleaded not guilty and claimed to be tried.

The prosecution, in support of its case, examined as many as 14 witnesses- PW1-Kayamuddin Fakir Mohd. Shaikh, who drew the spot panchanama and inquest panchanama, which are at Exhibits 21 and 22; PW2-PI Avinash Bhagwan Bhamare, the first informant who came to the spot on 15^th August 2003, on learning of smoke coming out from the flat in question. PW2- Avinash lodged the FIR (Exhibit 30); PW3-Mohd. Kuber Alam Sadik Husein, who had seen the appellant a week or two prior to the inci