Case: Zahir Ahmed Saeed Ahmed Mistry &amp; Others Vs. The State of Maharashtra

The Trial Court has ordered that the sentence passed under Sectionsimplicitor and under Sectionread with Section 201 of the Indian Penal Code shall run concurrently with the substantive sentence awarded under Sectionread with Section 302 of the Indian Penal Code. By the same judgment and order, the Trial Court has acquitted the appellants nos.1 to 3 from the charge under Sectionread with Section 364 of the Indian Penal Code. The said judgment and order dated 31st March 1995 is impugned herein.It is to be noted here that the original accused no.4 namely Sayeed Ahmed Haji Abdul Razak Mistry expired during the pendency of the present appeal and the said fact is recorded by this Court in its order dated 20.3.2009 and 14.2.2011. In view of the fact that the original accused no.4 Sayeed Ahmed Haji Abdul Razak Mistry is dead, the proceedings against him stood abated.For the sake of brevity, the appellants named hereinabove will be referred to with their original accused numbers, as they were before the Trial Court.2. The facts which enumerates from record and are necessary for deciding the present appeal can briefly be stated thus:(i) Smt. Razia Sultana (PW No.1) in the year 1984 was residing with her mother Smt. KhatunbiShe was married and her husband was doing embroidery work. She had two brothers namely Adil Rashid and Shaha Nawaz. Adil (deceased) was working as a welder and Shaha Nawaz was working as a carpenter. Her brother Adil Rashid was working with original accused no.4 Sayeed Ahmed Haji Abdul Razak Mistry. The original accused no.4 was her distant relative from her maternal side. Her brother Adil wanted to set up his own business and in fact he started his business with a partner namely Sherekhan at Gilbert Road, Andheri, Mumbai. As the business of her brother was prospered, the original accused no.4 and his sons i.e. accused nos.1 and 2 developed jealousy. The original accused no.4 had told Smt. Razia Sultana to direct Adil Rashid (deceased) that he should not carry out the said business failing which, he will face serious consequences. Name of theof Adil with whom he was engaged was Ms. Rana Kaushal. She was residing in the area of Bombay Central. Adil Rashid used to keep the photograph of Rana Kaushal with him. On 15.11.1984 at about 11.30 a.m. her brother returned from bank with Rs.Adil gave Rs.750/to her mother Smt. Khatunbiand kept Rs.150/for his pocket expenses. Adil told Razia and Smt. Khatunbi that he along with the appellants was going to National Park for a picnic. The accused no.2 was accompanying Adil at that relevant time. They were going to National Park by a car. The car was parked outside her house on the road. It was a chocolate colour Ambassador car. The accused nos.1 to 3 and Adil (deceased) left the said place at about 11.30 a.m. on 15.11.1984. Adil did not return till the evening and therefore Smt. Raziaand Smt. Khatunbitook his search with the near relative. They also asked the original accused no.4, however, he expressed ignorance about the same and in turn told Smt. Khatunbi that not to worry about the same as they had gone for a picnic, they might come late. As Adil did not return upto 23.11.1984, Smt. Razialodged a missing report on 23.11.1984 with the Kherwadi police station bearing no.51 of 1984 which is atIn the meanwhile, on 16.11.1984 at about 7.45 a.m., Pandu Paradea resident of the village Durvesh,e saw the dead body of a male person, when he went to attend the natures call. He thereafter reported the said fact to the police patil of the village. The police patil in turn informed the said fact to Manor police station within whose jurisdiction the dead body was found. In pursuance of F.I.R. lodged by police patil Shri Janardhan Bhaskar Patil of Durvesh village, P.S.I. Shri Laxman Deshmukhregistered a crime bearing CR No.196 of 1984 under Section 302 read with Section 201 of the Indian Penal Code against unknown person.Shri Laxman Deshmukh drew inquest panchanamaand also scene of offence panchanamaFrom the scene of offence he also seized pieces of strings. He sent the dead body for conducting postmortem examination to the Medical Officer, Primary Health Centre at Masvan, Taluka Palghar, District Thane. After conducting the postmortem examination, the body of the said unknown person was buried as per Islam religion/ rites, as the police and the doctor who conducted autopsy formed the opinion that the deceased person was professing Islam religion. The pieces of stringsColly.) were preserved byfor the purpose of investigation. The clothes which were on the person of the deceased were taken charge by drawing a seizure panchanama (Exhibit 57). The said clothes were namely a fullin colour, a full shirt with black and red lines and blood stainsand underwear white in colourOn 18.1.1985, Smt. Razia Sultanaregistered First Information Report with the Kherwadi Police station, Bandra, Mumbai bearing CR No.33 of 1985thereby expressing suspicion against the appellant nos.1 and 2 being responsible for the disappearance of her brother Adil Rashid. The investigation of the said crime was handed over to P.S.I. Shri Abdul Kadar A. KhanThe crime was initially registered under Sections 365 and 114 of the Indian Penal Code.PSI Shri Khan conducted investigation. He arrested the accused nos.1 and 2 on 31.1.1985 at Mumbai and accused no.3 on 19.2.1985 at Meerut and brought to Mumbai on 23.2.1985. The further investigation was thereafter transferred to Police Inspector Shri Bhimrao KhambePSI Shri Khan assistedPW21 Shri Bhimrao Khambein the further investigation. During the course of investigation, it was revealed that the dead body of Adil Rashid was found within the jurisdiction of Manor Police station and the said police station had registered crime bearing CR.no.196/1984.(iv) That after receipt of necessary reports from various agencies and after completion of investigation,PW21 Shri Bhimrao Khambesubmitted chargesheet in the Court of competent jurisdiction under Sectionread with Sections 364, 302 and 201 of the Indian Penal Code. As the offence under Section 302 of the Indian Penal Code was exclusively triable by the Court of Sessions, the learned Trial Court committed the said case to the Court of Sessions as contemplated under Section 209 of Cr. P.C. After committal of the said case, the Trial Court framed charge against the accused persons belowThe said charge was read over and explained to the accused persons to which they denied. The defence of the accused persons was of total denial. With a view to establish its case, the prosecution examined in all 21 witnesses. The learned Trial Court after recording the evidence and after hearing the parties to the said case, convicted and sentenced the accused persons by the impugned judgment and order dated 31st March 1995 as stated hereinabove.3. Heard Ms. Prabha Mane the learned Counsel for the appellants and Smt. V.R. Bhonsale, the learned APP for theand with their assistance we have perused the entire record of the present case.

Court's reasoning:
In our considered opinion, the appellants cannot be held guilty for and only on this count. The prosecution has failed to establish the fact that the possibility of any other person other than the accused persons committing the murder of Adil, cannot be ruled out by leading succinct and cogent evidence in that behalf. It is also to be noted here that though the accused no.1 in presence ofpointed out the place where the dead body of Adil was thrown, the police of Manor police station were already aware of the said spot and therefore pointing of place by the accused no.1 loses its significance. The lapse ofbetween the two investigating agencies cannot be held to be an aggravating circumstance against the accusedthe present case also as we have stated in the forgoing paragraph,Kishor Dadhich was a total stranger to the accused persons and the accused persons on two occasions confiding with him and making an extra judicial confession about their guilt, is highly improbable.was neither their friend nor of acquaintance with whom they can easily make confession. It is further worth to be noted that even after the accused persons made confession with the said5 did not report to the police immediately.has given clarification that as the accused no.4 has requested him not to mention the same to the police with a view to save his reputation, is unacceptable. We find the testimony ofis untrustworthy and unreliable.35. This leads us to last circumstance of discovery of incriminating articles at the instance of accused nos.2 and 3 from the Advent Pharma Company. The date of incident in the present case is stated to be between 15th November 1984 and 16th November 1984. The articles belonging to Adil Rashid were discovered at the instance of accused nos.2 and 3 from the Advent Pharma Company at Vapi on 20.3.1985 i.e. after about four months from the date of incident. It is to be noted here that the contemporaneous documents i.e. memorandum panchanama Exhibits 33 and discovery panchanama Exhibitare absolutely silent about the specification of the ditch/pit from where the accused no.3 Guddu discovered nylon strings, 10 torn pieces of Western railway season ticket, 9 pieces of torn visiting card, four torn pieces of photograph of a girl etc. It is to be noted here that the evidence ofand the said contemporaneous documents Exhibits 33 andare absolutely silent about the condition of the said articles found after a gap of four months that whether those were degraded, decomposed/smeared with soil or otherwise. The evidence depicts the picture that the said articles were in proper condition as if they were new. It is therefore very unsafe to rely on the evidence ofand those contemporaneous documents Exhibits 33 and(discovery panchanama) for basing the conviction of the accused persons on the said circumstance.36. In view of the above, we are of the considered opinion that the prosecution has not proved the guilt of the appellants satisfactorily and beyond all reasonable doubts. We therefore give benefit of doubt to the appellants and allow the present appeal and set aside the conviction and sentences awarded to the appellants. The bail bonds of the appellants stand cancelled.