1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.362 OF 2003 IN SESSIONS CASE NO.92 OF 2002 Anis @ Amin Yasin Rogankar } Age – 50 years }.. Appellant Residing at Enterprises Bakery, Thane. } V/s. The State of Maharashtra } .. Respondents Mr.Yug Mohit Choudhary for the Appellant. Mr.Dy.F.R.Shaikh, A.P.P.for the State. CORAM : BILAL NAZKI and A.R.JOSHI, JJ. RESERVED ON : 11th AUGUST, 2009 PRONOUNCED ON : 21st AUGUST, 2009 ORAL JUDGMENT :- (PER A.R.JOSHI, J.) Present appeal is preferred by original sole accused against his conviction in Sessions Case No.92 of 2002 passed by 2 the Second Additional Sessions Judge, Thane on 22nd June, 2002. By the impugned Judgment and order, appellant accused was convicted for the offence punishable under section 302 of Indian Penal Code and also punished under section 201 of Indian Penal Code and was respectively sentenced to suffer imprisonment for life and imprisonment for five years and to pay a fine of Rs. 10,000/- and Rs.1,000/- respectively in default imprisonment was also awarded on failure to deposit the fine amount. Reportedly, since the time of the arrest i.e. since 30th November, 2001, the appellant accused is in custody till today and has completed about 8 years. The learned Advocate Dr.Yug Mohit Choudhary was appointed by the Court to represent the appellant in the present appeal. Prior to appreciating the rival arguments and mainly the argument advanced on behalf of the appellant, certain factual position as to the case of the prosecution can be narrated as under : Appellant accused and the deceased were working in 3 the bakery of P.W. 3 Mohammed Abdul Shakur Ansari. During the relevant time of the year 2001, accused was every day delivering the breads to one another bakery belonging to P.W.1 Mohammad Izaz Nasirali Ansari, the complainant. So also he delivering breads to one more bakery owned by P.W.2 Israr Allauddin Ansari. Some time on 17th November, 2001 deceased received his salary from P.W.3 Mohammed Abdul Shakur Ansari and he told his employer that he would be going to his native place and left the bakery of P.W.3 Mohammed Ansari, however, till about 21st November, 2001 he stayed in the bakery of P.W.2 Israr Ansari. Also according to the case of the prosecution on the night of 21st November, 2001 appellant accused took the deceased to the bakery of P.W.1 Mohammad Izaz Nasirali Ansari, that time only P.W.7 Shahaban Ali Gafurali was present in the bakery. Said P.W.7 Shahaban Gafurali was earlier working in the said bakery, however, had left the employment and had been to his native place and thereafter returned after six months and requested P.W.1 Mohammad Izaz Nasirali Ansari to get 4 employment, but as such job was not available, he requested P.W.1 Mohammad I. Ansari to give him shelter in the said bakery and accordingly he was to allow by P.W.1. Also according to the case of the prosecution, out of three of the said bakery of P.W.1, Mohammad I. Ansari, one was with him as an ower, one was with P.W.7 Shahbaan Ali Gafurali and one was with the accused as it was the job of the accused to deliver the bulk of breads at early hours every day at about 4.00 a.m. to 5.00 a.m. and delivered them in the bakery of P.W.1 and for which he was to use the key to open the bakery and keep the breads and then to go away. According to the case of the prosecution P.W.7 Shahaban Gafurali was also using the bakery for his night shelter and he used to cook meals and dinner in the bakery after 7.00 p.m., every night. As such, according to the case of the prosecution on the night of 21st November, 2001 at about 11.00 p.m appellant accused brought the deceased in the said bakery of P.W.1 Mohammad I.Nasirali Ansari and informed P.W.7 Shahban Gafurali to give shelter to the deceased for that night in 5 the said bakery and according to P.W.7 appellant accused also narrated that one vehicle was going to the village and in which said deceased was to travel on the next day early hours. According to the said P.W.7 Shahaban Gafurali, appellant accused and deceased stay for that night in the said bakery and on the next day morning said P.W. 7 Shahaban Gafurali woke up and went away and thereafter did not know what had happened to the deceased, however, according to him on the next day morning the accused had delivered usual delivery of breads to the said bakery of P.W.1 Mohammad Izaz Nasirali Ansari. 2. It is also the case of the prosecution that during the night between 21st and 22nd November, 2001, appellant accused murdered the deceased by stabbing him, shitting his throat hitting him on head and concealed the dead body under the bakery work platform in the compartment which was being used for storage of stock of breads. It also appears to be a case of the prosecution and as per the substantive evidence of P.W.3 6 Mohammed Abdul Shakur Ansari, the employer of appellant accused that on the night of 22nd November, 2001 accused informed him that he would be going to his village to see his sick wife and thereafter he came back to his place of work only on 30th November, 2001. In the meantime, according to the case of the prosecution and as per the substantive evidence of complainant P.W.1 Mohammad Izaz Nasirali Ansari, he revealed through his another employee that some foul smell was coming from his bakery premises and as such the dead body was discovered lying in one of the compartment under the bakery working platform. So also one broken class/spectacular were found on the floor of the said bakery of P.W.1 Mohammad Izaz Nasirali Ansari. Intimation to the police was given as to finding of the dead body of unknown person and necessary investigating procedure was conducted by the police including the inquest panchanama, spot panchanama, drawing of site plan, obtaining advanced death certificate, sending the body for postmortem, obtaining postmortem notes and drawing of panchanama for 7 taking the cloths of the deceased. All these investigation was conducted after registering an offence on the complaint of P.W.1 Mohammad Izaz Nasirali Ansari and it was registered against the unknown assailants. During the investigation, statements of various witnesses including P.W.2 Israr Allauddin Ansari owner of another bakery, P.W.3 Mohammad Abdul Shakur Ansari owner of still another bakery and employer of appellant accused and deceased. Statement of P.W.7 Shahaban Ali Gafurali was also recorded and it appears that learned trial Sessions Court was much influenced by the substantive evidence of P.W.7 Shahaban Gafurali. Admittedly, said P.W.7 was during the relevant time of the incident, not working in the bakery of P.W.1, but was earlier working in the said bakery. Moreover, admittedly, the said P.W. 7 Shahaban Gafurali was taking shelter for his night meals and stay at the said bakery of P.W.1 Mohammad Izaz Nasirali Ansari and was also having one key of the said bakery. Again at this juncture, it must be mentioned that according to prosecution, one key of the bakery was also with the owner P.W.1 Mohammad 8 Izaz Nasirali Ansari and one was with the appellant accused for him to open the bakery every day at about 4.00 p.m. to 5.00 p.m. and to keep the breads in the compartment meant for storying such bread. At this juncture, it is significant to mention that one of such compartment for storage of bread was used by the assailants to concealed the dead body. Again, it is to be ascertain that according to prosecution, late on the night of 21st November, 2001 accused and deceased were last seen together as per the substantive evidence of P.W.7 Shahaban Gafurali and thereafter on the night of 22nd November, 2001 appellant accused left for his native place and the dead body was found in the morning of 23rd November, 2001. This sequence of events is of much significance in order to ascertain the guilt or otherwise of the present appellant accused. It is also a factual position that though knowing the native address of the appellant accused, police did not go to his native place and presumably waited for him to arrive at Mumbai and he was put under arrest on 30th November, 2001. It must be mentioned that it is quite strange 9 that police party if knowing the name of assailants and had a convincing evidence as to the involvement of the appellant accused in the said murder case, as allegedly from the statement of witnesses and mainly from the evidence of P.W.7 Shahaban Ali Gafurali, they did not take any steps to trace him out and just await his return from his native place to Mumbai. All the same, according to prosecution, the appellant accused was put under arrest on 30th November, 2001 and only on 8th December, 2001 allegedly he made a voluntary statement under section 27 of the Evidence Act, to produce the weapon of offence. According to the prosecution under the memorandum and discovery panchanama bread cutting knife was discovered from the spot rather public place by the side of the road near the auto rickshaw stand of the said locality. As such on completion of investigation, after obtaining the chemical analysis report of the seized articles including the weapon of offence, charge sheet was filed and appellant accused was tried before the Sessions Court and was convicted as mentioned above and which is the order 10 impugned in the present appeal. 3. During the trial total eight witnesses were examined before the Sessions Court. P.W.1 Mohammad Izaz Nasirali Absari is the complainant owner of one bakery where the dead body was found. His evidence is connecting appellant accused so far as the role of appellant to deliver the breads every day early in the morning to his bakery. P.W.2 Israr Allauddin Ansari is the another bakery owner on his bakery allegedly the deceased stayed from 17th November, 2001 till 21st November, 2001. P.W. 3 Mohammad Abdul Shakur Ansari is another bakery owner, the employer of appellant and deceased. P.W. 4 Manubhai Shantilal Patel and P.W. 6 Mehebub Ahmed Ansari are the panch witness so far as alleged recovery of knife and Bellan (roller) and mats were seized at the instance of appellant. Out of such panchs P.W.6 Mahebub Ahmed Ansari has turned hostile and not supporting the prosecution whereas according to P.W.4 Manubhai Shantilal Patel, he signed on the panchanama at the 11 police station and he does not know Marathi language and not knowing the contents of the recovery panchanama. So also he did not mentioned regarding presence of the another panchas. At this juncture, it must be mentioned that due to the effect of substantive evidence of both the said panch witnesses, a reasonable doubt must be entertained as to recovery of any articles much less the weapon of offence at the instance of the accused. Moreover, the chemical analysis report concerning the said weapon is also not incrementing to the appellant and as such it must be said that the Sessions Court is erroneously held regarding involvement of the appellant in the offence of murder. P.W.5 Mrs.Malti Murlidhar, Doctor who conducted the postmortem and according to her, the death occurred about 9 to 33 hours after the last meals. This opinion of the Doctor is to be considered in the light of the evidence of P.W.7 Shahaban Ali Gafurali. According to him, appellant and deceased were last seen together at about 11.00 p.m. on 21st November, 2001 and that dead body in rather putrefied condition was found in the 12 morning of 23rd November, 2001. By considering the case of the prosecution and as to the postmortem notes there cannot be any doubt that the deceased died homicidal death, however, it cannot link the appellant to the offence of murder. P.W.7 Shahaban Ali Gafurali is apparently, the main witness of the prosecution on whose testimony entire case revolved. It appears that the trial Sessions Court was much influenced by the substantive evidence of said witness in order to hold the circumstance of appellant and deceased seen last together. Last prosecution witness is P.W.8 Muktarali Mehemud Bagwan, the investigating officer. 4. Apart from the above substantive evidence of prosecution witnesses, certain admitted position is required to be mentioned in order to have proper prospective of the matter while discussing the arguments advanced on behalf of the appellant. The inquest panchanama, spot panchanama and site plan are admitted, as mentioned above. So also the advance death certificate, postmortem notes and letters to the chemical 13 analysis and also the panchanama regarding seizure of cloths of the deceased, are admitted documents. It cannot be taken that by means attempts of the said documents, there is establishment of the involvement of the accused appellant with the offence of murder. On the contrary, contents of the spot panchanama in which it is specifically mentioned as to finding of blood of the by lane of the side of the bakery by P.W.1 Mohammad Izaz Nasirali Ansari goes to suggest that the dead body must have been taken from some other places out side the bakery, and was dumped under the bakery working platform. This inference is more strengthen by the factual position that only in the morning of 23rd November, 2001, there was foul smell in the bakery of P.W.1 Mohammad Izaz Ansari and then the dead body was discovered. Moreover, the area in which the dead body was concealed was every day being used for keeping the breads and in fact on 22nd November, 2001 in the morning as usual appellant accused had delivered the breads to the said bakery and that time there was nothing so as to indicate that some dead body was concealed 14 under the platform in the area for storage of breads. Admittedly, the entire case of the prosecution is based on circumstantial evidence and allegedly two circumstances were taken as incriminating against the accused. While awarding the conviction by the trial Court, one circumstances is accused and deceased last seen together at the bakery of P.W.1 Mohammad Izaz Ansari on the night of 21st November, 2001 and as to accused telling P.W.7 Shahaban Ali Gafurali that deceased would overstayed on that night in the said bakery of P.W.1 Mohammad Izaz Nasirali Ansari. Second circumstance is regarding the recovery of the weapons of assault at the instance of the accused. On this second circumstance, at the costs of repetition, it must be said that there is failure of the prosecution to establish such recovery at the instance of the accused for various reasons including hostility by P.W.6 Mehebub Ahmed Ansari and specific evidence of P.W.4 Manubhai Shantilal Patel and also the time gap between arrest of the accused and recovery. Moreover, as suggested on behalf of the appellant by learned Advocate, it must 15 be said that the circumstance of appellant accused allegedly keeping the lungi and other cloths of the deceased and the weapon of assault in some public place, does not find to reason and logic. In other words, it would be strange to accept that such articles would be kept hidden by the appellant after commission of offence and would disclosed their place to the police after about 7 days of his arrest. Again on this aspect, at the costs of repetition, it must be said that the conduct on the part of investigating machinery to wait for the appellant to return back to Mumbai and then to keep him under arrest probably believing that he would come back even after committing the offence of murder, does not inspire confidence and on this count we must see that the case of the prosecution has not reached that standard of proof, so also to come to the only hypothesis that only the appellant and not any one else had committed the murder. 5. Again the entire substantive evidence of P.W.7 16 Shahaban Ali Gafurali which mainly implicate the appellant accused, is full of doubts and in fact should have been critically examined by the Sessions Court mainly for the reasons that he could have been also one of the suspects for the offence of murder in as much as admittedly, he was having one of the keys of the bakery of P.W.1 Mohammad Izaz Nazirali Ansari and he was the only person says that accused and deceased were last seen together on the night of 21st November, 2001. Admittedly, during the relevant period of the offence, he was not in the employment of P.W.1, but was staying in the said bakery during the night. In view of the above, in our opinion, the theory of last seen together though accepted, cannot be taken as incriminating circumstance against the appellant accused. 6. In the cases of circumstantial evidence, a motive place much importance and viewing the present matter from that angle, it must be said that there is apparently no motive for the appellant to kill his co-employee, though, said motive tried to be 17 established by the prosecution by saying that on 17th November, 2001, deceased was given his wages by P.W.1 Mohammad Izaz Nasirali Ansari, his employer. It must be said that there is nothing brought on record during the trial, as to what happened to such amount of Rs.8,000/-. It was neither traced nor recovered from the appellant accused. Moreover, the conduct on the part of the appellant as to coming back on 30th November, 2001 to Mumbai to resume his job of P.W.1 Mohammad Izaz Nasirali Ansari strengthened his innocence, though, he left on the night of 22nd November, 2001 to go to his native place to see his sick wife. As such living Mumbai for his native place on said night of 22nd November, 2001 cannot be taken as a circumstance against the appellant and as such in our opinion, it must be said that the evidence brought before the trial Court was deficient for his conviction when there was no eye witness and mainly considering the discovery of the weapon as discussed above. 7. In the above circumstances, we hold that the trial 18 Court had not appreciating the evidence in the proper prospective and had erred to hold the appellant guilty of the offence of murder. In the result, present appeal is allowed with following order : :: O R D E R :: i. The present appeal is allowed. ii. The appellant accused Anis @ Amin Yasin Rognager is acquitted of the offence punishable under section 302 and 201 of Indian Penal Code. The impugned judgment and order passed by the learned IInd Additional Sessions Judge, Thane dated 27th June, 2002 in Sessions Case No. 92 of 2002, is quashed and set aside. Iii. The appellant Anis @ Amin Yasin Rognager, shall be released forthwith from the jail custody, if not required in any other matter. iv. Fine amount, if any paid, shall be 19 returned back to the appellant accused. (BILAL NAZKI,J.) (A.R. JOSHI, J.)