In appeal against murder conviction, the High Court set aside the judgment and order deemed insufficient as prosecution failed to prove a complete chain of circumstances, citing constant faults in circumstantial evidence.
Set aside the judgment and order of conviction under section 302 r/w. 34 IPC and allowed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
905.Apeal250_2009
vidya
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 250 OF 2009
Mohd. Sattarul Najrul Mulla r/o. Uttar, 24, Pargan, Thana Bashirhat, Gam Devak, West Bengal. (Presently lodged in Arthur Road Jail)
... Appellant
vs.
The State of Maharashtra ... Respondent
Mr. K.M. Sangani, Advocate for the appellant. Mrs. A.S. Pai, APP for the respondent/State.
CORAM: MRS. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ.
JULY 14, 2016.
JUDGMENT (Per Mrs. Mridula Bhatkar, J.)
This Appeal is directed against the judgment and order dated 10th
February, 2009 passed by learned Sessions Judge, City Civil & Sessions
Court, Greater Mumbai thereby convicting the appellant/accused for the offences punishable under section 302 r/w. 34 of the Indian Penal Code and
is sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in
default further to suffer R.I. for 15 days.
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Complainant Rashid Gazi Ahmed Gazi was resident of Shivajinagar, Govandi, Mumbai. He was having the business of cloth cover. His nephew Ayub and his real brother Wahid used to help him in the business. He had employed two workers, i.e., appellant/accused Mohd. Sattarul and co-accused Rana Mulla. They all used to sleep in the shop. The incident of assault has taken place on the night intervening 12th August, 2007 and 13th August, 2007. On 12th August, 2007, deceased Wahid had collected money of Rs.4,000/- from the party of which the appellant and other accused had knowledge. However, on the same night, Wahid handed over the said amount to his brother, i.e., complainant, which fact was not known to the accused. On 12th August, 2007, the accused, Wahid and Ayub were sleeping in the shop. In the morning , when complainant arrived at the shop, he was surprised to see that the shop was not opened and the door was not locked from inside, so he shouted but nobody responded. When he went inside, he found Ayub was sleeping and one person was covered in bed cover. When he took out the cover, he noticed his brother Wahid had sustained injury on his neck. He was lying in pool of blood and was dead. His servants, i.e., appellant/accused and other accused were not in the shop.
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He woke up his nephew, who was not aware what happened on that night and how Wahid was killed. Thereafter he went to police station and gave information to the police, pursuant to which FIR was lodged at C.R. No. 272 of 2007 with Shivajinagar Police Station. The police conducted inquest and spot panchnama. They found axe lying on the spot. The postmortem was conducted on the body of Wahid. After investigation, the police arrested the appellant and other accused. At the instance of coaccused Rana, who was juvenile in conflict with law, a shop from where the axe was purchased and the said shopkeeper were traced. So also the other shop where the blade of the axe was sharpened was also traced. The police drew panchnama to that effect. The clothes of the appellant/accused were also seized and sent for chemical analysis. The human blood was found in the clothes and on the blade of the axe. After completion of the investigation, the police filed charge-sheet in the Magistrate court. Thereafter the matter was committed to the Sessions Court. The learned Sessions Judge framed charge. The accused pleaded not guilty, as they were not present in the room when the incident has taken place and that they are innocent and not committee any offence. The learned trial Judge rejected the said defence and after appreciating the evidence of the
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prosecution, convicted accused no. 1 as mentioned above. Accused no. 2, being juvenile, was not tried before the learned Sessions Judge. Hence, this Appeal.
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P.S.I. who recorded FIR of PW-1, PW-11 Sunil Rajaram Ghosalkar, P.S.I., Crime Branch. Thane where panchnama of purchase of axe and sharpening of blade of axe was drawn and who called panchas. PW-12 Sharad Nilkanth Shalu is a finger print expert.
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PW-9 P.I. Santosh Bhandare. He relied on the admission given by him that
his predecessor had information about the two shops from where the axe was purchased and from where the blade was sharpened. He further submitted that as per the case of PW-1 Rashid Gazi, Ayub was sleeping in the shop, however, he is not examined as a witness. He further submitted that the evidence of finger expert PW-12 Sharad Shalu is not carried, as the evidence of alleged chance print of accused no. 1 is false. He further submitted that the learned trial Judge ought not to have believed the evidence of these witnesses and hence the judgment of conviction is to be set aside and the Appeal be allowed.
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persons were sleeping in the said shop. Two accused persons were absconding from that day and fourth one was Ayub, who is nephew of the complainant. As per the evidence of PW-1 Rashid had seen all the four persons at 10.30 p.m. on the night of 12th August, 2007. On the next morning at 8 a.m., when he went to shop, he found the door was not locked, so he pushed it and went inside the shop. He noticed the dead body of his brother Wahid. Ayub was sleeping but the two accused persons were not present. When he woke up Ayub, he informed that he knew nothing as to what happened. However, he being there, his evidence was necessary on the point whether accused were present till he and Wahid slept. He is not examined by the prosecution. He should have been examined on the point that whether accused persons were present till he and Wahid Slept on that night. The accused were not found in the morning and Wahid was found injured and dead, this circumstance goes against the accused and it can be easily guessed that they must have assaulted the deceased and so they left the premises. However, such inference of a common man is not acceptable in law, as all the circumstances should be unimpeachable and no room should be left for doubt that accused might not have committed this crime.
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and due to the nature of the business, he is required to keep good relations with the police. Thus the evidence of these two witnesses are not reliable. At the time of spot panchnama, axe was found at the spot and it was seized by the police. It was blood stained but the recovery of red T-shirt and lungi is found doubtful as PW-5 Ayofar Gazi has stated that police at the time of spot panchnama took one red T- shirt and lungi and same was shown as clothes recovered. The report of chemical analyzer discloses that there was a human blood. The blood group was found inconclusive.
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not establish a complete chain of circumstances. There are many loop holes and we are of the view that prosecution has failed to prove the case against the accused and hence we set aside the judgment and order of conviction under section 302 r/w. 34 against the appellant/accused and allow this Appeal.
(MRS. MRIDULA BHATKAR,J.) (MRS. V.K. TAHILRAMANI, J.)
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2 issues framed by the court
Whether the circumstantial evidence established a complete chain of circumstances to sustain a conviction for murder under section 302 IPC.
Whether the omission to examine the co-accused Ayub creates a doubt regarding the presence of the appellant at the time of the crime.
Mohd. Sattarul Najrul Mulla
The State of Maharashtra
MRS. V.K. TAHILRAMANI
MRS. MRIDULA BHATKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
