Murder and concealment-of-evidence convictions were challenged in a case resting on circumstantial evidence. The Court held the chain of circumstances complete, accepted the corroborated extra-judicial confessions, and found witness disclosure delays non-fatal in the circumstances. All three appeals were dismissed.
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.
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.813 OF 2013
Sohel Shoukat Jamadar ] Age : 21 Years, ] Resident of Nandre, Tal. Miraj, ] District Sangli ] …. Appellant / (At present in Sangole District Prison) ] (Org. Accused No.1) Versus The State of Maharashtra ] …. Respondent
ALONG WITH CRIMINAL APPEAL NO.1248 OF 2013
Khalid @ Tipu Kamruddin Mujawar ] Age : 22 Years, Occu.: Worker, ] R/o. Nandre, Tal. Miraj, Dist. Sangli ] (Presently lodged at Central Prison, ] …. Appellant / Kolhapur) ] (Org. Accused No.2) Versus State of Maharashtra ] (Through Tasgaon Police Station, ] C.R. No.74/2011) ] …. Respondent
ALONG WITH CRIMINAL APPEAL NO.142 OF 2014
Rafiq Kasam Naikwadi ] Prisoner No.C/5948, ] …. Appellant / Kolhapur Central Prison, Kolhapur ] (Org. Accused No.3) Versus The State of Maharashtra ] …. Respondent
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Mr. Rajaram V. Bansode for the Appellant-Original Accused No.1 in Criminal Appeal No.813 of 2013.
Mr. Mahindra B. Deshmukh for the Appellant-Original Accused No.2 in Criminal Appeal No.1248 of 2013.
Ms. Payoshi Roy, i/by Dr. Yug Mohit Chaudhary, for the Appellant-Original Accused No.3 in Criminal Appeal No.142 of 2014.
Mr. Arfan Sait, A.P.P., for the Respondent-State.
CORAM : SMT. V.K. TAHILRAMANI & DR. SHALINI PHANSALKAR-JOSHI, J.J.
RESERVED ON : 13 TH SEPTEMBER, 2017. PRONOUNCED ON : 20 TH SEPTEMBER, 2017.
JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
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count and R.I. for five years and to pay fine of Rs.10,000/-, each; in default, to suffer R.I. for one month.
Deceased Sagar was the younger brother of PW-8 Santosh. After taking education of 'D.Pharmacy', he has started assisting his brother in agricultural work. He was in love with PW12 Ayesha Mulla. Accused No.1-Sohel has also taken a fancy for Ayesha and was trying to woo her, so as to dissuade her from her love-affair with Sagar. On that count, just fifteen days prior to the incident, Accused Nos.1, 2 and 3 had raised quarrel with Sagar. PW-8 Santosh and PW-16 Vijay Kinikar had intervened in the quarrel and separated Sagar; however, Accused had left the spot giving threatening to Sagar that he will not remain alive.
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used to do. Therefore, though he made enquiry, he did not lodge any missing complaint with Police. The dead-body of Sagar was found four days thereafter on 16th June 2011 in the early morning at Bandh near the first turn of the Village Kavathe Ekand. PW-8 Santosh went to the spot and found that dead-body of Sagar was kept inside one cement pipe below the road, which was reserved for flowing of the water. He also noticed one footwear (chappal) of Sagar lying on the road and the blood stains, two broken teeth and two broken buttons at the spot. One Axe stained with blood was also lying by the side of the said pipe. He pulled out body of Sagar by holding the legs and found that there were various injuries on the face and neck. He immediately suspected that his brother Sagar was killed by the Appellants herein on account of his love-affair with Ayesha. Hence, he went to Tasgaon Police Station and lodged complaint against all the three Appellants.
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dead-body of Sagar to the Rural Hospital, Tasgaon, for postmortem examination. PW-17 Dr. Prakash Hankare conducted the autopsy and found that the cause of the death was on account of “head injury”. PW-21 API Waghmare then conducted the Spot Panchnama (Exhibit-28) and from the spot, he collected various articles, like, the chappal, two buttons of shirt, two broken teeth, the axe and the identity card of Accused No.1-Sohel, which was lying in the shrubs. On the same day, he recorded the statements of two witnesses and arrested all the three Accused under various Panchanamas (Exhibits “117”, “118” and “119”).
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his Memorandum Panchanama (Exhibit-47) and Seizure Panchanama (Exhibit-48).
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all twenty-one witnesses and on appreciation of their evidence, the learned Trial Court was pleased to hold guilt of all the three Appellants as proved beyond reasonable doubt and convicted and sentenced them as aforesaid.
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has failed to establish this chain of circumstances with the help of cogent, firm and reliable evidence; the Trial Court has, therefore, committed an error in holding guilt of the Appellants to be proved beyond reasonable doubt.
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circumstantial evidence alone, the Prosecution has succeeded in proving the guilt of the Appellants beyond all reasonable doubts. The circumstances which are alleged and proved by the Prosecution against the Appellants can be stated as follows :-
For proving the first circumstance of 'motive', the Prosecution is relying on the evidence of PW-8 Santosh, PW-12 Ayesha and PW-16 Vijay Kinikar. It is the case of Prosecution, as deposed by these witnesses, that Sagar and Ayesha were in love with each other. Accused No.1-Sohel was not approving the said relationship. He has also, thereafter, taken fancy for Ayesha and hence he was trying to dissuade Ayesha from her relationship with Sagar. The evidence of PW-12 Ayesha in this respect is of utmost relevance. She has categorically deposed that in the year
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2011, she was taking education in Second Year of B.E. She was knowing Sagar and had a love-affair with him. According to her evidence, she had good love-affair with Sagar for about one year and till his death, she was in love with him. On 9th May 2011, which was her birth-day, she has become major and, hence, both of them had decided to marry with each other. However, the atmosphere in their house was not proper. Hence, they had not got married.
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also, as usual, Sagar left her at the Company, carrying her from Sangli Bus Stand on his motor-cycle. At 12:40 pm, she received call from Sagar, informing her that one person came to meet him and he has to talk about Sohel. Thereafter, Sagar contacted her on phone on two to three times. At about 3:15 pm, when she came out of the Company, Sagar came there on Bike of PW-5 Nilesh Mahajan. Then, she and Sagar, along with Nilesh, went to the field at Kupwad Road. Three of them discussed about Sohel. Sagar again told her that Sohel was defaming her and, hence, he will beat Sohel and seek apology from him. As per her evidence, then she herself and Sagar went on the motor-cycle to Ganpati Mandir of Haripur. They were there for about one hour. Thereafter Sagar left her at Sangli S.T. Stand. Then she went to her house. At 7:45 pm, she received one call from Sagar enquiring whether she has reached home safely and about the atmosphere at home. Thereafter, at about 10 p.m., she tried to contact Sagar, but his mobile was switched off. On the next day also, she tried to contact him on phone, but could not succeed.
behalf of the Appellants. However, nothing useful is elicited
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through her cross-examination to disbelieve her. Conversely, her cross-examination goes to show that she and Sagar were deeply in love with each other. They used to meet each other at secluded places. They were coming to Sangli for meeting. Once, they even met in Anandi Lodge in Sangli. In her cross-examination, it is again brought out that her parents were of the view that she should marry a boy from Muslim community. It is her evidence that she had disclosed to her parents about her relations with Sagar only after his death, when Police came to make inquiry with her. It is her evidence that, even the mobile was given to her by Sagar. Thus, her evidence sufficiently proves her relations with deceased Sagar and the fact that, as Sagar belonged to Jain community, whereas she was from Muslim community, Accused No.1-Sohel was not approving the said relationship and he was trying to woo or win her. This relationship between Sagar and Ayesha was also known to PW-8 Santosh, PW-5 Nilesh and PW-16 Vijay Kinikar.
Sagar and Accused No.1-Sohel were having grudge against each
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other. Sagar was having a suspicion or feeling that Accused No.1Sohel was defaming Ayesha and, hence, on account of this, just few days before the incident, a quarrel had taken place between Sagar and the Appellants. PW-16 Vijay Kinikar is the witness examined by the Prosecution to prove this incident of quarrel. He was knowing about the love-affair between Sagar and Ayesha. He was also knowing that Accused No.1-Sohel has taken a fancy for Ayesha. According to his evidence, just fifteen days prior to the incident, after taking dinner at about 10 p.m., when he went near Darga in front of the office of Bhagyalaxmi, these three Accused were quarreling with the Deceased and the subject of the quarrel was the love-affair of Ayesha and Sagar. Then, he himself, PW-8 Santosh and Amol intervened in the quarrel and separated them. When he was leaving the spot, he heard Appellants giving threats to Sagar that they will kill him. This evidence of PW-16 Vijay Kinikar is also corroborated by the evidence of PW-8 Santosh, who was also present there and had tried to intervene in the quarrel to separate Sagar from the Appellants. He has also deposed about the presence of PW-16 Vijay Kinikar at the relevant time. Thus, in our considered opinion, in this case, the
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'motive' and 'genesis' of the incident is sufficiently proved on record by the Prosecution.
OF THE APPELLANTS
The second circumstance on which the Prosecution is
relying upon is of the Deceased last seen in the company of the Appellants. In this respect, the Prosecution is relying on the evidence of PW-14 Vijay Patil, who has seen Accused No.2-Khalid and deceased Sagar together near Varad Pan Shop at 8 p.m. on the date of incident. This witness is of the same village and, therefore, knowing Deceased and Appellants. He was also knowing about the love-affair of Sagar and Ayesha and about the quarrel that took place between Sagar and Accused persons, just fifteen days prior to the incident.
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friends. At that time, Accused No.2-Khalid also came there. Accused No.2-Khalid asked Sagar to arrange the dinner and he will pay for the dinner. Sagar told him that they will go tomorrow or day after tomorrow. However, Accused No.2-Khalid insisted that they will go on that day only and then he forced Sagar to sit on his motor-cycle. Then Accused No.2-Khalid sat on his motorcycle as pillion rider. This witness saw that both of them proceeded towards Vasagade Road on their motor-cycle. According to his evidence, that was the last time he has seen the Deceased.
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as there were riots after this incident between the two communities of 'Hindu' and 'Muslim'. Therefore, the delay of these two days in recording of his statement can hardly become fatal, considering these facts.
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evidence of PW-14 Vijay Patil, who has deposed about Accused No.2-Khalid and deceased Sagar leaving Varad Pan Shop on the motor-cycle of the Deceased at about 8 pm, in order to go for dinner.
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where Accused No.1-Sohel and Accused No.3-Rafiq were standing on that night.
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instant case, as the time-gap between the point of time when the Accused persons and the Deceased were last seen alive and when the Deceased is found to be dead is so small, that the possibility of any person other than the Accused persons, being the perpetrators of the crime, becomes impossible. Here in the case, the evidence on record proves that the Deceased was last seen in the company of Accused at about 10 p.m. and the evidence of PW12 Ayesha proves that the last call she had with Deceased was at about 7:45 p.m. to 8:00 p.m. and, thereafter, when she tried to call the Deceased at about 10 p.m., his phone was switched off. Thus, here is a case, where the Prosecution has, on the basis of reliable evidence, established that Sagar was last seen in the company of the Accused and was never seen thereafter; then, it was obligatory on the part of Accused No.2-Khalid to explain the circumstances in which he and Sagar parted company.
“The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the
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knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the Deceased, he must offer explanation as to how and when he parted company. He must furnish an explanation, which appears to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge burden cast upon him by Section 106 of Evidence Act. In a case resting on circumstantial evidence, if Accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him.”
29. (C) HOMICIDAL DEATH
To prove that Sagar has succumbed to the homicidal
death, the Prosecution has relied upon the evidence of PW-1 Chavgonda Pachore, the Panch to the Inquest Panchanama, and the evidence of PW-8 Santosh, who has seen the dead-body of deceased Sagar. According to their evidence, the dead-body was found kept in the cement pipe with injuries on various parts.
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Hankare, who has conducted the autopsy at Rural Hospital, Tasgaon. According to his evidence, there were, as many as, five injuries on the dead-body; out of them one was on the left side of fronto parietal region; the bones in that region were fractured; the skull was burst opened and the brain matter was absent. Further, there was one de-gloving injury over left orbital, maxillary zygomatic region with depressed fracture of left orbital zygomatic, maxillary bones. Another incised wound was found on neck and then the fingers of left and right hand were amputated. In his opinion that the cause of the death was on account of “head injury with burst open fracture skull”. The Postmortem Report is at Exhibit-76. Having regard to the condition in which the deadbody was found as kept in the cement pipe and the multiple injuries on the body, the Defence has also not seriously challenged the fact that Sagar has succumbed to homicidal death.
ACCUSED
To prove the extra-judicial confession made by the Accused, the Prosecution has placed reliance on the evidence of
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PW-10 Akshay Patil. He is resident of the same village and knowing Deceased and Accused persons. Accused No.1-Sohel and Accused No.3-Rafiq were his classmates also. He was also knowing PW-12 Ayesha and the love-affair between Sagar and Ayesha. He was also witness to Accused No.1-Sohel giving friendship band to Ayesha and, thereafter, all of them going for watching movie “Wanted” on the birth-day of Accused No.1-Sohel. It is his evidence that Accused No.1-Sohel had told him that Sagar had love-affair with Ayesha and he had told, therefore, to Ayesha that she should not keep relations with Sagar. Accused No.1-Sohel has also told him about the quarrel between the Accused persons and the Deceased fifteen days prior to the incident. Therefore, it is clear that this witness is sufficiently close to the Accused persons and appears to be a friend of confidence, as he is knowing everything that has transpired not only between the Deceased and Ayesha, but also between the Accused and the Deceased. He was also part of some of those incidents, like, Accused No.1-Sohel giving friendship band to Ayesha and then all of them going for a movie.
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Accused No.3-Rafiq talked with him on phone at about 5:00 p.m. to 5:30 p.m. and enquired with him when he will come to village fare (Urus) at Nandre. When this witness told Accused No.3-Rafiq that he will come within a day or two, Accused No.3 has asked him to come on the next day and he will give him one good news. According to his evidence, therefore, on 13th June 2011, he came to village Nandre, along with his mother, at 11 a.m. He met Accused No.3-Rafiq at 3 p.m. and, thereafter, they went to Urus. At that time, he enquired with Accused No.3 what was the good news, but, Accused No.3 assured him that he will tell the good news afterwards. Then at 7 p.m., they met Accused No.1-Sohel in the Urus. This witness again enquired as to what was the good news, but he was not informed.
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and gave liquor to Sagar. Thereafter, at the first turn of Nandre to Kavathe-Ekand, Accused No.1-Sohel and Accused No.3-Rafiq were waiting. Accused No.2-Khalid took Sagar on his motor-cycle to that spot. When Sagar was getting down from the motor-cycle, Accused No.1-Sohel assaulted him with an Axe on his neck. Sagar fell down. Then Accused No.2-Khalid took the said Axe from the hands of Accused No.1-Sohel and gave blows of that Axe on the face of Sagar. Sagar tried to resist it by his hands. In that attempt, his fingers were cut. Thereafter, ascertaining that Sagar was dead, they put the dead-body in cement pipe, which was below the said road, in the place reserved for flowing water. While returning, they pushed the motor-cycle of Sagar in one Well and then they went to their respective houses. As per the evidence of this witness, he enquired with Accused No.3-Rafiq whether he was making fun, Accused No.3-Rafiq, however, assured him that he was not making fun, but it was a fact. This witness also enquired with Accused No.3 as to why they killed Sagar and Accused No.3 told him that, if they had not killed him, Sagar would have killed them.
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the same day, in the evening, he and Accused No.2-Khalid again went to Urus. There, they met Accused No.1-Sohel and Accused No.3-Rafiq at about 7:00 p.m. to 7:15 p.m. He enquired with them whether they had killed Sagar and they confirmed that they had killed Sagar. They also reiterated to him what was told to him by Accused No.3-Rafiq.
should not place reliance thereon.
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regards the delayed disclosure, we have already noted as to what was the cause of delay in recording statements of these witnesses. The first being there were, admittedly, communal riots in the village, creating the atmosphere of terror and awe, as a result of which, curfew was imposed for fifteen days and there was heavy police bandobast; therefore, it is quite possible that witnesses may not have gathered courage to disclose the information they had about the incident to the Police immediately. The delay in such case, therefore, cannot become fatal in any way.
“The Courts cannot start with the presumption that extra-judicial confession is always suspect or a weak type of evidence. Ultimately, it would depend on the nature of the circumstances, the time when confession is made and the credibility of the witnesses, who speak about such a confession and
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whether confession is voluntary and truthful. It is eventually the satisfaction of the Court”.
“Despite the inherent weakness of an extra-judicial confession as a piece of evidence, the same cannot be ignored, if it is otherwise shown to be voluntary and truthful. The extra judicial confession cannot always be termed as 'tainted evidence' and that corroboration of such evidence is required only as a measure of abundant caution. If the Court found the witness to whom the confession was made to be trustworthy and that the confession was found to be true and voluntary, a conviction can be founded on such evidence alone. More particularly, the Court declared that Courts cannot start with the presumption that extra judicial confession is always suspect or weak type of evidence, but it would depend on the nature of the circumstances, the time when confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful. It is eventually the satisfaction of the Court.”
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disbelieve his evidence about extra-judicial confession of the Accused persons before him; especially, when this extra-judicial confession is also getting corroboration from other evidence on record, like the confession made by the Accused and they were planning about murder of the Deceased since two to three days prior to the incident is corroborated from the evidence of PW-9 Javed Mulla. He has deposed that Accused No.2-Khalid had borrowed his motor-cycle and an Axe from him on a day before the incident. The motor-cycle was returned to him on the night of the incident. However, the Axe was not returned to him. When Muddemal Article No.1-Blade of the Axe and Muddemal Article No.2-Handle of the Axe, which were recovered from the spot of incident, were shown to him, he has identified the same as belonging to him.
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44. (E) RECOVERY OF INCRIMINATING ARTICLES
The crucial circumstance, on which the Prosecution is
placing reliance, is the recovery of incriminating articles from the spot of incident and at the instance of Accused persons. The evidence of PW-2 Panch Satish Patil, corroborated with the evidence of the Investigating Officer PW-21 API Waghmare, goes to prove that, during Police custody on 17th June 2011, i.e. very next day, Accused No.1-Sohel gave a disclosing statement that he will produce the motor-cycle, which was pushed in the Well. The Memorandum Panchanama of the statement was made vide Exhibit-30. Thereafter, Accused No.1-Sohel guided the Police and Panch to the Well, which was near the first turn from the side of Nandre. There, in the Well of one Upadhyay, Accused No.1 pointed out the 'Pulsar' motor-cycle of black colour. It was removed from the Well and it was bearing No.MH-10-AD-3677. It was seized under Panchanama (Exhibit-31). PW-8 Santosh has stated that this motor-cycle was belonging to deceased Sagar.
45. Then, there is also evidence of PW-1 Panch Chavgonda
Pachore, proving that at the spot of incident, they found the Identity-Card of Accused No.1-Sohel lying in the shrubs. The Spot
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Panchanama was made immediately, after the dead-body was found, and the Spot Panchanama (Exhibit-28) sufficiently corroborates his oral evidence to prove that the Identity-Card was lying in the shrub on the northern side of the pipe, in which the dead-body was found, and the said pipe was at the distance of 3 ft. The Spot Panchanama also contains the description of the Identity-Card, proving that it was of Accused No.1-Sohel. It was a laminated Identity-Card of Accused No.1-Sohel, issued by Kasturbai Walchand College, Sangli. His Roll number and photograph was appearing on the said Identity-Card. Prosecution has also examined PW-13 Bahubali Kante, the Junior Clerk from the said College, to prove the fact that the Identity-Card was of Accused No.1-Sohel. Accused No.1 has not offered any explanation about the presence of his Identity-Card just near the spot of incident.
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which was a space in between the wall of his house and the wall of his neighbour. The Driving License of deceased Sagar, with his photo and one SIM Card, were found in the said wallet. They were seized under Panchanama (Exhibit-48). Again no explanation is offered by Accused No.1-Sohel as to how he came into possession of this wallet, containing Driving License and mobile phone of the Deceased. The recovery is at his instance and, that too, from the place known exclusively to him. Recovery of these incriminating articles, therefore, constitute a clinching piece of circumstantial evidence.
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out that the open shirt having blood-stains thereon, which was seized at the instance of Accused No.1-Sohel, was not having the two buttons. The C.A. Report (Exhibit-131) revealed that those two buttons, which were seized from the spot of incident, were found to be tallying with the other buttons of the shirt of Accused No.1-Sohel, in respect of hue and physical characteristics.
incriminating circumstance, therefore, alleged is proved by the Prosecution with cogent, convincing and reliable evidence on record and all these incriminating circumstances, taken cumulatively, form a chain so complete that no other inference but that of the guilt of the Accused persons alone can be drawn therefrom.
49. (F) CALL DETAIL RECORDS
In addition thereto, the Prosecution has also relied upon the evidence of PW-18 Satish Mali, Nodal Officer from B.S.N.L.; PW-19 Ravi Pardeshi, Nodal Officer from Vodafone; and PW-20 Chandrakant Bhor, Nodal Officer from Reliance Internet Company, to prove that there was exchange of several calls on the
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mobile of Accused No.1-Sohel and Accused No.2-Khalid at the relevant time of incident. Here, in this case, none of the Accused have offered any explanation about this circumstance also.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K. TAHILRAMANI, J.]
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3 issues framed by the court
Did the circumstantial evidence establish a complete chain proving the accused persons' guilt beyond reasonable doubt?
Could the extra-judicial confessions made to a friend be relied upon to sustain the convictions?
Did delayed disclosure and recording of witness statements undermine the prosecution case?
Colour shows how this judgement treated each authority
State of Rajasthan Vs. Kashi RamApplied¶111
State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254 · Who else cites this
Gura Singh Vs. State of RajasthanRelied on¶148
Gura Singh Vs. State of Rajasthan, (2001) 2 SCC 205 · Who else cites this
R. Kuppusamy Vs. StateApplied¶153
R. Kuppusamy Vs. State, (2013) 3 SCC 322 · Who else cites this
1 provisions across 1 enactments
Sohel Shoukat Jamadar
Khalid @ Tipu Kamruddin Mujawar
Rafiq Kasam Naikwadi
The State of Maharashtra
V.K. TAHILRAMANI
SHALINI PHANSALKAR-JOSHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
