1 Criminal Appeal No.23 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.23 OF 2009 1. Mohammad Taher Abdul Anis, Age-21 years, Occu-Business, 2. Shaikh Nazim Shaikh Abdul, Age-32 years, Occu-Business, Both R/o.Mominpura, Beed, Tq. and Dist. Beed APPELLANTS VERSUS State of Maharashtra, Through Police Station Officer, Police Station, Rural, Beed Tq. and Dist. Beed RESPONDENT Mr.S.S.Jadhav h/f. Smt.S.S.Jadhav, learned counsel for the appellant no.1 Mr.P.P.Dhorde, learned counsel for appellant no.2 (Appointed) Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 08/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellants have questioned the correctness of their conviction and sentence in Sessions Case No. 52/2007 vide judgment and order dated 02/01/2009 by the Ad-hoc Additional Sessions Judge, Beed, by which the appellants were convicted u/s. 302 r/w. 120-B of The IPC and sentenced to suffer life 2 Criminal Appeal No.23 of 2009 imprisonment and to pay fine in the sum of Rs.5,000/- each, in default to suffer further RI for 3 years. They were also convicted u/s.201 r/w. 120-B of The IPC, and sentenced to suffer RI for 3 years and to pay fine in the sum of Rs.1,000/- each, i.d. to suffer further RI for 1 year. They were also convicted for the offence punishable u/s. 120-B of The IPC and sentenced to suffer RI for 2 years and to pay fine in the sum of Rs.5,000/- each, in default to suffer further RI for 6 months. 2. Such of the facts as are necessary for the decision in this appeal can be briefly stated as follows : a) One Abdul Majid S/o.Abdul Samad Momin (P.W.No.1) R/o.Mominpura, Beed, lodged missing report in Peth Beed Police Station on 06/03/2007 at about 2.00 p.m. that his nephew have left the residence on 05/03/2007, at about 7.30 p.m. and not returned since then. This missing complaint was recorded vide Missing Complaint No.6/2007. It appears that later on, on the same day, around 5.00 p.m. or so, he had received telephone message from Beed Rural Police Station that dead body of Amer is found lying in the area known as 'Shantivan'. Accordingly, he visited that place and verified that the dead body was of his nephew Amer. Thereafter, he lodged the complaint (Exh.45) in Beed Rural Police Station against the unknown persons. On the basis of this report, offence was registered vide CR No.32/2007 for an offence punishable u/s. 302 of 3 Criminal Appeal No.23 of 2009 The IPC. b) Initially investigation in CR No.32/2007 appeared to be carried out by one P.S.I. Jadhav. During the said investigation, he had prepared inquest panchnama (Exh.14) of the dead body of the deceased in between 5.30 p.m. to 6.00 p.m. Thereafter, spot panchnama (Exh.57) was drawn in between 6.00 p.m. to 6.40 p.m. in the presence of panch witnesses. While drawing spot panchnama, he had seized one big handkerchief locally known as "Gamcha", one wooden log stained with blood, one piece of cotton rope, chilly powder packet in partly open condition, loose condom with packet of condom, one mobile phone of Reliance Company, some cash, blood mixed soil and controlled soil. Thereafter, dead body of deceased was sent for post mortem to Civil Hospital Beed. c) Dr. Santram S/o.Vitharam Rathod (P.W.No.11) conducted autopsy on the dead body. He had noticed following external injuries on the dead body. 1. Evidence of ligature encircling the neck completed. Horizontal single turn knot on left side. Length of the said ligature is 50 cm. 2. Evidence of fracture of thyroid cartilage. 3. Contused lacerated wound on scalp on left parietal region (three wounds) a) 4 x 1 x 1 cm, b) 7 x 1 x 1 cm, c) 5 x 1 x 1 cm. 4. Contused lacerated wound on scalp on right parietal region (two wounds), a) 8 x 1 x 1 cm, b) 7 x 1 x 1 cm. 5. Contused lacerated wound on occipital, on scalp occipital - transverse, 15 x 5 x 1 cm. 4 Criminal Appeal No.23 of 2009 6. Abrasion on right forearm - 10 x 1 cm. 7. Abrasion on left arm medial - 2 x 2 cxm. 8. Contusion on left arm - 2 x 3 cms. 9. Avulsion of Nail - left hand thumb 10. Mummification of all fingers of both hands. 11. Abrasion below right knee - a) 3 x 1 cm, b) 2 x 1 cms. 12. Abrasion on right foot dorsally, 2 x 2 cms. 13. Abrasion below left knee - a) 0.5 x 1 cm. b) 0.5 x 2 cms. c) 0.5 x 1 cm. After opening the body, he had noticed Sub-dural haematoma, 3 x 2 cm on left parietal region and there was blood clot. He opined that cause of death of deceased was Asphyxia due to strangulation coupled with the head injury. He has also opined that death might have caused 36 hours before the autopsy was conducted on the dead body. Accordingly, he had prepared post mortem notes at Exh.65. d) Thereafter, further investigation in CR No.32/2007 was carried out on 07/03/2007 onwards. During the investigation, he took charge of the clothes of deceased under panchnama at Exh.58. He took charge of the motor cycle of the deceased under panchnama Exh.48. During the investigation, he had recorded statements of witnesses. On 21/03/2007, he had arrested both the appellants under the arrest panchnama at Exh.70 and 71. While in custody, appellant no.2 made disclosure statement (Exh.51) leading to the recovery of his clothes and mobile phone from his house on 23/03/2007. On the same day, he had seized clothes of appellant no.1 under the panchnama at Exh.52. On 24/03/2007, he had 5 Criminal Appeal No.23 of 2009 recorded statements of certain witnesses including the statement of Mohd. Anis (P.W.No.4), rickshaw driver. On 26/03/2007, voluntarily the appellants have shown the place of offence in the presence of panch witnesses. Accordingly, panchnama of the place of offence was drawn. On the same day, statement of Navnath Shankar Anerao (P.W.No.7) was recorded. On 04/05/2007, property seized during the investigation was sent to Chemical Analyser alongwith covering letter. Thereafter further investigation was entrusted to Mr.Morale (P.W.No.16). During the investigation carried out by P.W.No.16, he had recorded statements of Abdul Hamid (P.W.No.14) and Shaikh Shakil Sk.Jamil (P.W.No.15). He also collected the particulars about incoming and outgoing calls from the cellphone recovered from the place of offence, as well as from the house of appellant no.2. After completion of investigation, he had filed charge sheet against the appellants before the Court of C.J.M. Beed. After passing necessary committal order, trial was committed to the Court of Sessions, Beed. e) It appears that the learned Lower Court framed the charge at Exh.9 against the appellant for an offence punishable u/s. 302 r/w. 120-B, u/s. 201 r/w. 120-B and u/s. 120-B of The IPC, to which the appellants pleaded not guilty and claimed to be tried. f) During the trial, to substantiate the charges lavelled against the appellants, prosecution has examined 16 witnesses including Abdul Mujib Abdul Samad Momin (P.W.No.1) who had lodged the missing report at Exh.45 and the FIR at Exh.46, Mohammad Faijan Mohamad Karim (P.W.No.2) panch witnesses to the seizure of motor 6 Criminal Appeal No.23 of 2009 cycle of deceased on 15/03/2007, Mohammad Wasim alias Bablu Abdul Wahid, panch witness to the seizure of clothes of accused on 23/03/2007, Mohammad Anis Mohammad Janib (P.W.No.4), the rickshaw driver, who dropped appellant no.1 on 05/03/2007 at about 8.30 p.m. near Barshi Naka from Chandani Chowk, Abdul Rafiz Abdul Majid (P.W.No.5) who had seen the deceased alongwith the appellants in the night of 05/03/2007, Mohammad Ashpak Inamdar (P.W.No.6), panch witness to the inquest panchnama Exh.14, Navnath Shankar Anerao (P.W.No.7) carpenter, from whose shop the alleged wooden log stained with blood was recovered at the place of offence, which was purchased by the appellants, Abdul Mastakil Abdul Karim Momin (P.W.No.8), Hotel Owner in Neknoor, Abdul Hakim Gulam Mehmood (P.W.No.9), who sold the plot to appellant no.2, Tilak Parveen Abdul Kadir (P.W.No.10) mother of deceased Amer, Dr.Santram Vitharam Rathod (P.W.No.11), medical officer, who conducted autopsy on the dead body of the deceased, Hemant Sharad Bhalchandra (P.W.No.12) Senior Executive in Legal Department of Idea Cellular on the point of production of call details on the cell phone of deceased, PSI Shaikh Mohammad Inam (P.W.No. 13) who carried out investigation in between 07/03/2007 to 21/03/2007). Abdul Hamid Abdul Bashir (P.W.No.14), who sold cellphone to appellant no.2, Shaikh Shakil Shaikh Jamil (P.W.No.15), owner of the mobile shop, from whom the handset was purchased by P.W.No.14, and P.S.I., Raindeo Baburao Morale, (P.W.No.16) Investigation Officer, who filed charge sheet against the appellants. 7 Criminal Appeal No.23 of 2009 g) Upon perusal of this evidence, learned Lower Court was pleased to accept the same and convicted the appellants for the charges lavelled against them and hold the charges stand proved. h) Considering the evidence led before the Lower Court, it is clear that the case of prosecution is based on circumstantial evidence. In view of this, before considering the submissions of learned counsel for the appellants and learned A.P.P. for State, it is necessary to advert to the evidence of material witnesses. 3. It is in the evidence of Abdul Majid (P.W.No.1) that deceased Mohd.Amer is the son of his brother Abdul Kadir. He had one more brother by name Abdul Anis. Father of deceased is doing the business of selling of fish. They all are residing separately. According to him, deceased left the residence on 05/03/2007 at about 7.10 to 7.15 p.m. on his Hero-Honda motor-cycle without intimating anybody that where he was proceeding. During the night hours, he did not return. They waited upto 2 p.m. of 06/03/2007, and then lodged the missing report in Peth Police Station, Dist. Beed. He has further stated that around 3.00 p.m., the police had traced motorcycle of the deceased near house of one Atmaram Chandane. Around 5.00 p.m., he had received telephone message from Beed Rural Police Station that dead body of Amer is found in the area of 'Shantivan' of village Pali. Immediately, he rushed to ‘Shantivan'. He identified the dead body as the dead body of Amer. He noticed that one rope was tied around his neck. There was one injury on his 8 Criminal Appeal No.23 of 2009 stomach, might have caused with sharp weapon. Thereafter he lodged complaint Exh.45 in Beed Rural Police Station. He has further stated that later on he learnt that deceased had received telephone message from appellant no.2 in the evening of 05/03/2007 from mother of deceased P.W.No.10. He further learnt that on receipt of said telephone call, he proceeded to Barshi Naka. Thereafter appellant no.1 joined them and they proceeded on motor- cycle of deceased to Manjarsumba Road. He had further stated that on 23/03/2007, he learnt from the owner of New High Way Automobile that he had seen the deceased in the company of appellants in the evening of 05/03/2007 around 7.00 to 7.15 p.m., when they were proceeding towards Manjarsumba Road. He has further stated that the first appellant is his nephew while second appellant is assisting deceased in transporting fish for the business of the deceased. He has further stated that deceased was doing business of selling of plots in partnership. It has come in his cross examination that he knew appellant no.2 since last 4-5 years as he is providing transportation to the fish business of the deceased as well as his brother Abdul Kadir. Appellant no.2 is also doing rickshaw business. His brother Kadir is doing the business of selling of dry fish in the shop situated near his own house. He had admitted in his further cross examination that on 06/03/2007, he alone went to Beed Peth Police Station. Before that, mother of deceased met him. He had also stated that before 9 Criminal Appeal No.23 of 2009 lodging the missing report, he had received information from the mother of deceased as to how and when deceased had left the house, but he had not stated that information in the missing report. He has further admitted that he had not received any information while lodging the missing report that deceased was possessing cash collected from business transaction and also carrying the valuable articles. He has further stated that after the missing report was filed, he and other relatives take search of deceased at the house of his sister Zulekha Begum at Shahenshah Nagar at the residence of Raica Begum at Mominpura and also pass on the message to relatives on the mobile phone. He has further admitted in his cross examination that he only received the message from Beed Rural Police Station that dead body of deceased was traced, but he had not received any information as to who has given this information to the Police Station. He has further stated in his cross examination that he alongwith father of the deceased and about hundreds of person from his locality proceeded to the spot and remain present at the spot, locally known as ‘Shantivan’ in the night between 06/03/2010 and 07/03/2010. He has further admitted in his cross examination that during the period 06/03/2007 to 24/03/2007, Abdul Rafiq (P.W.No.5) met him on 3-4 occasions, who is owner of New Highway Automobile Shop, but not disclosed that he saw deceased with the appellants and were proceeding on the motor-cycle towards Manjarsumba road. He had admitted in his further cross examination that when his supplementary statement was recorded, at that time, 10 Criminal Appeal No.23 of 2009 already appellants were arrested. He has denied that till his supplementary statement was recorded, he was not knowing the exact cause of death of the deceased. He has also admitted in his cross examination that when they reached at the place in the night of 06/03/2007, at that time appellant no.2 was present. 4. It is in the evidence of Mohad. Anis (P.W.No.4) that he is doing the business of Rickshaw Driver on the rickshaw of Mohd. Shabbir in the Beed City. In the night of 05/03/2007, at about 8.30 p.m., he was waiting for customers for his rickshaw in Chandani Chowk at Beed. At that time, appellant no.1 came from Hiralal Chowk and boarded in his rickshaw and proceeded to Barshi Naka. Appellant no.1 received call on his cellphone to which he replied that, due to failure of his vehicle, he is reaching within 2 minutes and he has kept his vehicle at the proper place. He dropped appellant no.1 at Barshi Naka. At that time, clothes on the person of appellant no.1 were wet. According to him, he knew appellant no.1 as he is residing in the same area. He has stated in his cross examination that his statement was recorded on 24/03/2007. He has admitted in his cross examination that he is unable to give details about the conversion on cellphone by appellant no.1 with his caller. 5. It is in the evidence of P.W.No.5 Abdul Rafiq that he is running a Automobile Shop in the name and style New Highway Automobile, which is situated near RTO Office, Barshi Naka. He has stated that 11 Criminal Appeal No.23 of 2009 at about 7.00 to 7.15 p.m., appellant no.1 came near his shop on Vespa Scooter. He parked his scooter near his shop. He saw that appellant no.2 was standing at some distance. He has further deposed that deceased had stopped his Hero-Honda Passion motor- cycle at some distance. Deceased was present near his motor-cycle. Thereafter, appellant and deceased sat on the motor-cycle of the deceased and proceeded towards Manjarsumba Road. On 06/03/2007, around 10.00 a.m., he came to know that deceased was missing, then he went to the house of deceased at Mominpura. He saw that appellant no.2 was present in house of deceased alongwith other persons. At that time, he questioned appellant no.2 about whereabouts of the deceased as he was with the deceased. Appellant no.2 did not reply his queries. On 06/03/2007 itself, around 5.00 to 5.30 p.m., when he was in his shop, he noticed that a mob was proceeding towards Manjarsumba from Mominpura. On his inquiry, he learnt that dead body of deceased is lying at Shantivan. He also proceeded to Shantivan and saw the dead body of deceased lying in the injured condition. He has stated in his cross examination that his statement was recorded by police on 21/03/2007 at about 8.00 to 8.30 p.m. He has further stated that he had little knowledge of Marathi language. He had admitted in his further cross examination that he had no knowledge for how much time, appellants and deceased were standing in front of his shop and what conversation was going on in between them. He has further admitted that he has no knowledge whether deceased and appellants 12 Criminal Appeal No.23 of 2009 were initially proceeded towards Manjarsumba and took turn and went back to Beed City. He has further admitted that complainant Abdul Mujib and father of deceased have met him on 06/03/2007, but he had not disclosed the fact to anybody or to them that he saw deceased alongwith the appellants in the evening of 05/03/2007. He has also admitted that he has not disclosed this fact to anybody till his statement was recorded on 21/03/2007. He has further admitted that when he reached at ‘Shantivan’, Pali, about 60-70 persons were present there. At that time, he saw complainant Abdul Anis, father of appellant no.1 and other relatives were also present there, but he did not inform them that he was known with the fact that deceased was with the appellants. He denied that after the arrest of appellants on 21/03/2007, at the request of complainant Mujib, and father of the deceased, he made up his mind to disclose these facts which he had not seen. 6. It is in the evidence of P.W.No.7 Navnath Shankar Anerao that he is residing near Barshi Naka since last 6-7 years before the incident in question took place. He is doing the business of iron smith and also preparing wheels of bullocks, handle of axe and wooden logs which are necessary for the purpose of agriculture. He has stated that in the afternoon on 26/05/2007, police visited his shop, at that time, they have brought one wooden log with them. They have also brought 2 persons with them to whom he identified as appellants before the Court and on inquiry, he informed that in the evening of 05/03/2007, around 7 to 7.30 p.m., he had sold that 13 Criminal Appeal No.23 of 2009 wooden log to the appellants for the consideration of Rs.20/- In his cross examination he has admitted that, "it did happen that police stated me that accused in their custody used the said wooden log and it is purchased from me." He has further admitted in his cross examination as true that the said weapon wooden log has no specific identification marks so as to identify it that it was prepared by him. 7. It is in the evidence of Abdul Mustakil Abdul Karim (P.W.No.8) that he is doing the hotel business in the name and style Hotel Biryani in the Neknoor and Hirapur area of Dist. Beed. He knew deceased, and also appellants no.1 and 2. He has stated that appellant no.1 and 2 are close friends. Relation between deceased and appellant no.1 are strained. He has stated in his evidence that deceased had disclosed him that he had paid Rs.50,000/- to appellant no.2 for purchase of plot. In the evening of 06/03/2007, he learnt that dead body of deceased Amer was found lying in ‘Shantivan’ area. In his cross examination, he has admitted that when he visited ‘Shantivan’ area to see the dead body of the deceased, at that time, he had noticed that appellant no.1 was also present there. He has further admitted in his cross examination that he came to know about the arrest of appellants on 22/03/2007. Thereafter, he came to know that the peoples in his Mohalla were gossiping that appellants have committed murder of the deceased. Thereafter he 14 Criminal Appeal No.23 of 2009 was also guessing the same. In his further cross examination, omission in his statement before police was proved that he had not stated in his statement before police that deceased told him that he had paid Rs.50,000/- to appellant no.2 for purchase of plot. He has admitted in his cross examination that after he learnt that deceased was missing and missing complaint was lodged, he had not visited the house of deceased and participated in the search operation. 8. It is in the evidence of Abdul Hakim (P.W.No.9) that he knew appellant no.2. He own one plot near Inden Gas Agency admeasuring 50 x 60 ft., which he sold to appellant no.2 for the consideration of Rs.1,50,000/-. Appellant no.2 had paid Rs.1,00,000/- against the consideration and Rs.50,000/- are still to be paid which is to be paid at the time of execution of sale deed. Appellant no.1 was with appellant no.2 at the time of said transaction. He has stated in his cross examination that the said transaction took place about 1 year back, for which no written document was prepared. He is unable to give the city survey no. or house no. of the said property. He has further admitted that he has no title deed for the said plot. He has stated that his statement was recorded by police on 16/03/2007 wherein he has not stated that at the time of said transaction, appellant no.1 was with appellant no.2. He has also admitted that he has not stated in his statement before police that at the time of said transaction, deceased accompanied appellant no.2. 15 Criminal Appeal No.23 of 2009 9. It is in the evidence of Tilat Parveen (P.W.No.10) that deceased is his son. Deceased was carrying business of sell of fish. She knew the first appellant, who is the son of her brother in law. She also knew appellant no.2 as he was assisting her husband as well as her deceased son to transport the fish as her son is doing the business of selling of fish. Deceased was using the rickshaw for transportation of fish. Appellant no.2 used to visit their house in connection with their business. On 05/03/2007, deceased was present in the house. At abut 7.00 p.m. or so, he received telephone message from appellant no.2. Thereafter, deceased left the residence to meet appellant no.2 on his motor bike. Deceased did not returned till late night. On the next day, she and her relatives took search of their son. Motor bike of her son was traced on the next day around 1.30 p.m. near Nagoba Galli. After some time, police informed on cell phone that dead body of her son was traced in the ‘ShantIivan’ Area. Her statement was recorded by the police on 31/03/2007. She has stated in her cross examination that appellant no.2 was assisting her son in his business since last about 3-4 years. Her husband is having mobile phone. She knew that there was usual talk on cellphone in between her deceased son and appellant no.2. She had not replied the question put to her that there was no dispute between her deceased son, appellant no.2 and her husband. In clear un- ambigious term, she has admitted in her cross examination that she has not disclosed to anybody till 31/03/2007 that deceased left the house on receipt of message from appellant no.2 on his cellphone. 16 Criminal Appeal No.23 of 2009 10. It is brought in the evidence of Hemant Sharad Bhalchandra (P.W.No.12), who is serving as Senior Executive in the Idea Cellular Phone, particulars about the incoming and outgoing calls on cellphone no.9922196986 and 9325325734 which shows that in the evening, at the cellphone received near the dead body of the deceased, call was received from the cellphone, recovered at the instance