Allowed

Jamil Rafiq @ Khalil Khan v. the State of Maharashtra

Bombay HC24 Feb 2022IA/1996/2021

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals filed by convicted appellants challenging their conviction for murder and robbery. The court held that the prosecution failed to prove guilt beyond reasonable doubt due to lack of material linking the accused to the crime and insufficient forensic evidence.

What did the court decide?

The accused/appellants are acquitted of the offence punishable under section 302, 392, 452, 342 read with section 34 of the IPC. They are enlarged forthwith.

Jamil Rafiq @ Khalil Khan Vs the State of… — Murder and Culpable Homicide | Bombay HC (2022)

¶1

APEAL765.25.2018.doc

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL APPEAL NO. 25 OF 2018

¶4

WITH
INTERIM APPLICATION NO. 1996 OF 2021
IN

¶5

CRIMINAL APPEAL NO. 25 OF 2018

¶6

Jamil Rafiq @ Khalil Khan.
Age: 24 years, Occ. Service.
R/o. Santosh Tiwari Contractor’s
Zopadi, Below Big Bridge, Near
Kurla Terminus, Mumbai.
Permanent Residence :
Madara, Post: Shankarpur,
Tal: Nanpara, Dist: Beharaich,
Uttar Pradesh.
(Presently lodged at Kolhapur Central...Appellant.
Prison, Nashik)

¶7

v/s.
State of Maharashtra.
(Through Nagpada Police Station,
Mumbai)…Respondent.

¶8

WITH

¶9

CRIMINAL APPEAL NO. 100 OF 2019 WITH

¶10

INTERIM APPLICATION NO. 1414 OF 2021
WITH

¶11

CRIMINAL APPLICATION NO. 1315 OF 2018

¶12

Pappu Chhotan Khan.
C/6811, Age: 27 yrs.,
Occ. Convict, presently at Kolhapur
Central Prison, Kalamba, Kolhapur....Appellant.
v/s.

¶13

1 of 25

¶14

Talwalkar

¶15

Digitally signed by ARUNA S ARUNA S TALWALKAR TALWALKAR Date: 2022.04.18 16:06:25 +0530

¶16

APEAL765.25.2018.doc

¶17

State of Maharashtra.
(At the instance of Nagpada Police
Station, Mumbai in respect of C.R. No.
326/2014 …Respondent.

¶18

WITH

¶19

CRIMINAL APPEAL NO. 765 OF 2018

¶20

Hanif @ Hamid Hasanali Nau.
Age: 47 years, Occ. Carpenter,
residence Furniture Point shop,
Anand Niwas Building, Shop No. 3, 4,
Sector 6, Opp. Chanel Tower, Koper
Khairane, Navi Mumbai, presently at
Kolhapur Central Prison, Kalamba as
convict Prisoner 6810.…Appellant.

¶21

v/s.

¶22

State of Maharashtra
at the instance of Nagpada Police
Station in Crime Register No. 326 of 2014
and Sessions Case No. 767 of 2014 of
Greater Bombay Sessions Court, Dist.
Bombay.…Respondent.

¶23

Ms. Rebecca Gonsalvez i/b. Dr. Yug Mohit Chaudhry, Advocate for the
appellant in Criminal Appeal No. 25 of 2018.
Mr. Adnan Shabbir Sakharkar, Advocate for appellant in Cr. Appeal
No. 100 of 2019.

¶24

Mr. Shantanu R. Phanse, appointed Advocate for appellant in Cr.
Appeal No. 765 of 2018.

¶25

Mrs. M.M. Deshmukh, APP for the State.

¶26

2 of 25

¶27

Talwalkar

¶28

APEAL765.25.2018.doc

¶29

CORAM:SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.

¶30

DATE:FEBRUARY 24, 2022.

¶31

JUDGMENT (PER SMT. SADHANA S. JADHAV, J):

¶32

1The appellants are convicted for the offence punishable

¶33

under section 302, 392, 452, 342 read with section 34 of the Indian
Penal Code in Sessions Case No. 761/2014 by Additional Sessions
Judge, Greater Bombay vide Judgment and order dated 27/6/2017.
The appellants are sentenced to suffer Life Imprisonment and to pay
fine of Rs. 5,000/- in default to suffer S.I for six months for the offence
punishable under section 302 r/w. 34 of the Indian Penal Code. The
appellants are sentenced to suffer R.I. for five years and to pay fine of
Rs. 2,000/- I.d. to suffer S.I. for three months for the offence
punishable under section 392 r/w. 34 of the Indian Penal Code. The
appellants are further sentenced to suffer R.I. for 3 years and to pay
fine of Rs. 1,000/- I.d. suffer S.I. for one month for the offence
punishable under section 452 r/w 34 of the Indian Penal Code. The
appellants are further sentenced to suffer R.I. for 15 days for the
offence punishable under section 342 r/w. 34 of the Indian Penal
Code. Hence, these appeals.

¶34

3 of 25

¶35

Talwalkar

¶36

APEAL765.25.2018.doc

¶37

2Such of the facts necessary for the decision of these appeals
are as under :

¶38

(i)One Abdul Hamid Ansari aged about 96 years was residing
alone in Room No. 9, second floor, Yakub building, Elabhai Street,
Mumbai-8. He was father of 7 children who were all residing
separately. His daughter Mehrunnisa used to send breakfast for him
every day in the morning. It was carried by her son-in-law Mohd.
Wasif Ismail Ansari(P.W.1).

¶39

(ii)On 28/6/2014 Mohd. Wasif Ismail Ansari(P.W.1) as usual
had taken breakfast for his grand-father-in-law at about 8.30 a.m. The
door was found to be open. However, electricity connections were
switched off. He saw that his grand-father-in-law Abdul Hamid was
sleeping with quilt over him. Upon drawing the quilt, he noticed that
the hands and legs of Abdul were tied by a cloth to the bed. Froth was
oozing from his mouth. The information was given to Mehmood
Parvez Abdul Hamid Ansari(P.W. 3) son of deceased Abdul Hamid, who
summoned the police. The first informant called upon Dr. Astullah
who on examination declared the Abdul Hamid “dead”.

¶40

4 of 25

¶41

Talwalkar

¶42

APEAL765.25.2018.doc

¶43

(iii)Grand-Son-in-law of the deceased namely, Mohd. Wasif
Mohd. Ismail Ansari, who happens to be the husband of the grand-
daughter of the deceased lodged FIR at the police station alleging
therein that on 28/6/2014 in the morning at about 8 a.m. he had
taken some bread from Central Bakery for breakfast for his grand-
father-in-law. He saw door of the house open. He switched on the
lights and saw that his grand-father-in-law was sleeping with a quilt.
He tried to wake-up the old man. After removing the quilt, he saw
that the hands and legs of the old man were tied to the cot with a
cloth. His face was also covered with a cloth. He noticed that his
mouth was gagged with a piece of cloth. Froth was oozing from his
mouth. He suspected some foul play. He therefore, called upon the
neighbours and informed the son of Abdul Hamid, namely, Mohd.
Parvez. At his instance, the first informant called upon Dr. Astullah
Ansari. Abdul was declared dead. The first informant then observed
that 3 drawers of the cabinet were open. Screwdriver was lying
nearby. Wallet of Abdul was lying on the cot. There was no money in
the wallet. Abdul used to normally keep some cash in the pocket of his
banian, which was missing. That Abdul Hamid(deceased) had 5 cell

¶44

5 of 25

¶45

Talwalkar

¶46

APEAL765.25.2018.doc

¶47

phone handsets. All the handsets were missing. Mohd. Pervez

¶48

informed the police control room and FIR was lodged against unknown
person.

¶49

(iv)On the basis of the said FIR, Crime No. 226 of 2014 was
registered at Nagpada Police Station for the offence punishable under
section 302, 394, 452, 342 read with 34 of the Indian Penal Code
against unknown person. The accused Jamil and Accused Hanif were
arrested on 11/7/2014. Pappu Chotan Khan was arrested on
26/8/2014. After completion of investigation, charge-sheet was filed
before the Metropolitan Magistrate, Mazgaon, Mumbai.

¶50

3At the trial, prosecution examined as many as 21 witnesses
to bring home the guilt of the accused.

¶51

4P.W.1 Mohd. Wasif Mohd. Ismail Ansari is the first

¶52

informant. He has proved the registration of FIR at his behest and contents of the FIR, which according to him, are true and correct. The first information report is marked as Exh. 31. In the course of recording evidence, P.W. 1 has reiterated the facts disclosed by him to the police. According to him, Abdul Hamid Ansari was carrying five Talwalkar 6 of 25

¶53

APEAL765.25.2018.doc

¶54

cell phones. He has identified the cell phones and watch which were
with the deceased before his death. He has feigned ignorance about
IMEI numbers of the said cell phone numbers. He has deposed before
the Court that the deceased Abdul was friendly with one Mumtaz.
There were some transactions between the deceased and Mumtaz, as
the deceased was helping her monetarily. He had no knowledge as to
whether Mumtaz was on visiting terms with the deceased. His house is
located in the close vicinity of the house of the deceased and the
distance between both the houses could be covered in five minutes.
The first informant was having one SIM card number of the deceased,
but had no knowledge about other SIM card numbers of the deceased.
It is admitted in the cross-examination that he had not removed the
piece of cloth from the mouth of the deceased nor untied his hands.
According to him, Mohd. Parvez, son of the deceased was residing in
the building opposite the house of the deceased and the distance can
be covered within 2 minutes.

¶55

5P.W. 2 Mohd. Salim Abdul Hamid happens to be the son of

¶56

the deceased. According to him, all the four sons of the deceased are
residing separately. The building where his father resided was a three

¶57

7 of 25

¶58

Talwalkar

¶59

APEAL765.25.2018.doc

¶60

storied building. P.W. 1 used to take breakfast for the deceased
everyday. On the previous day, i.e. on 27/6/2014 he had taken lunch
for his father. On the day of the incident in the morning, one of the
resident of the building where his father was residing informed him
telephonically that hands and legs of his father were tied and he was
assaulted. Accordingly, he passed on the information to his elder
brother Mehmood Parvez. Both the brothers visited the house of their
father. According to P.W. 2, his father was having 3 cell phones, wrist
watch and they were missing on 28/6/2014. He had identified the cell
phones in the police station. It is admitted in the cross-examination
that when he visited his father on the day of the incident, P.W. 1 had
been asked to call doctor. They gave information to police. It is
admitted that the latch of the door was not broken. It is admitted in
the cross-examination that mobiles were “Made in China”. He had no
knowledge about the make of the mobiles and company of SIM cards.
The reason assigned by P.W. 2 for his father possessing 3 mobile phones
is that whenever his father found fault with one handset, he purchased
new one.

¶61

6P.W. 3 Mohd. Parvez Abdul Hamid Ansari is the second son

¶62

8 of 25

¶63

Talwalkar

¶64

APEAL765.25.2018.doc

¶65

of the deceased. According to him, on 28th June, 2014 at about 8 to
8.15 a.m. Wasif (P.W.1) had rushed to his house and informed him that
his grand-father was tied to the cot and was not breathing.
Thereupon, P.W. 3 asked him to fetch doctor. He rushed to Yakub
building. There he met his younger brother and his wife. They all saw
that the hands and legs of Abdul Hamid were tied to the cot and a
piece of cloth was shoved in his mouth. One of the son called Nagpada
Police station. By then, Abdul Hamid was declared as “dead” by Dr.
Asatullah Ansari.

¶66

7P.W. 3 has further narrated that there was a table with four

¶67

drawers in the room of Abdul Hamid. 3 drawers were open. A
screwdriver was lying near the table. One of the drawer was found to
be locked. Upon opening the drawer, they found a cash amount of Rs.
6,52,000/-. The police prepared an inventory and kept the said
amount with P.W. 3.

¶68

8On 27/6/2014 some of the accused were arrested and

¶69

some articles were recovered from them. P.W. 3 claims to be knowing
accused Pappu Khan and therefore, could identify him. According to

¶70

9 of 25

¶71

Talwalkar

¶72

APEAL765.25.2018.doc

¶73

P.W. 3, accused Pappu Chhotan Khan was close to the deceased and
was also acquainted with his possessions. P.W. 3 claims to have
identified the watch of the deceased. After five to six days after the
arrest of the accused, P.W. 3 had denied any transactions between his
father and Mumtaz. That Abdul Hamid used to meet Mumtaz 3 to 5
times a week. It is admitted in the cross-examination that when he
visited his father’s room, a lady’s handkerchief was lying in his room.
P.W.3 claims to have learnt from the police that accused No. 3 was
planning to kill Abdul.

¶74

9The prosecution has examined P.W. 12 K. Rama Lingam, the
Chief Manager of Allahabad Bank, Vashi Branch. According to him, on
23/7/2014 P.I. Ramani visited the office of the bank in order to verify
the transactions. On 30/6/2013 Hanif had deposited an amount of Rs.
20,000/- in the bank account of Mr. Narendra Jaiswal. His presence in
the bank was substantiated by C.C.T.V. footage. It is admitted in the
cross-examination that he was not sure whether it was accused No. 2
who had deposited money in the bank. He had handed over the
CCTV footage to the police, but no panchanama was conducted.

¶75

10 of 25

¶76

Talwalkar

¶77

APEAL765.25.2018.doc

¶78

10The prosecution has examined Rajendra Walimbe(P.W.13)

¶79

the Senior Branch Manager of the Bank of Baroda, Kopar Khairane
branch. P.W. 13 has identified accused No. 3 Hanif who had deposited
Rs. 4,000/- in the name of Najima on 9/7/2014. The entry of
depositing Rs. 4000/- is marked as Exh. 58 and 59.

¶80

11P.W. 14 Bhaskar Kadam was API attached to DCB CID Unit
II. On 10/7/2014 a secret information was received by the said unit
that one of the accused in C.R. No. 226 of 2014 registered at Nagpada
police station was to visit Milan Subway, Santacruz. A trap was
arranged. On 11/7/2014 accused Jamil Khan was taken into custody
at Milan Subway. On the same day, another accused Hamid Nao was
apprehended at National Furniture Kopar Khairane. Two handsets of
Telego company were seized from accused Jamil Rafiq khan. The said
handsets had two SIM Cards of IDEA and TATA Docomo company and
the last two digits of the IMEI numbers were 2877 and 5885
respectively. Railway ticket was also seized from accused Jamil Khan.
Similarly, two handsets were seized from accused Hamid having duel
SIM cards. P.W. 14 identified accused Hanif @ Hamid Nau before the
court. According to P.W.14, since inception i.e. since 28/6/2014,

¶81

11 of 25

¶82

Talwalkar

¶83

APEAL765.25.2018.doc

¶84

Crime Branch was carrying out parallel investigation.

¶85

12It is the case of the prosecution that on 24/7/2014 Rs.
5,000/- were recovered from a suitcase from the house of accused
Jamil Rafiq Khan. A panchanama was prepared to that effect and
P.W.15 Santosh Tiwari happens to be the panch for recovery of Rs.
5,000/- at the instance of accused Jamil Rafiq Khan.

¶86

13It is pertinent to note that P.W. 15 Santosh Tiwari was
acquainted with accused Jamil since two to three months prior to the
incident. P.W. 15 happens to be the employer of Siraj Khan, Irfan Khan
and Chandani. That Jamir, Pappu and Imran were the friends of the
employees of P.W. 15 i.e. Siraj Khan and others. On one occasion,
Jamir had enquired with him as to whether he had knowledge of
some source from where he could get money. According to P.W. 15, in
July, 2014, he was residing under Kurla Bridge in R. No. A-3 in Kurla
Terminus area. On 24/7/2014, police officer Ramane had brought
Jamir to his house. The face of Jamir was covered with a veil. They
had taken search of house of P.W. 15 and found Jamir’s cloths and Rs.
5,000/- in Jamir’s suitcase and the same were seized by the police. It

¶87

12 of 25

¶88

Talwalkar

¶89

APEAL765.25.2018.doc

¶90

is elicited in the cross-examination that P.W. 15 was residing in the said
room since 6 months prior to the incident. The room was a tin shed.
There was no cot in the room. He was acquainted with Jamir for 2 to
3 months prior to the incident. He has further stated that on
24/7/2014 when the police visited his house, he was at work and not
in his room. The worksite is closer to his house.

¶91

14P.W.16 Ramchal Prajapati happens to be a co-worker with
accused Hanif Nau in a shop namely, ‘Furniture Point’ owned by Amjad
Khan. According to P.W. 16, Hanif was out of station prior to
16/7/2014. That Hanif Nau was brought to the shop “Furniture Point”
on 16/7/2014 by police. That at the instance of Hanif, his clothes and
one white colour mobile was recovered from the loft. The same were
seized by the police. That Hanif had borrowed Rs. 2,000/- from P.W.
16. Hanif was residing alongwith P.W. 16 in the said shop. The said
amount was not returned. It is stated in the cross-examination by P.W.
16 that they were earning about Rs. 7000/- per month and
contributing about Rs. 3,000/- to 3,500/- per month for food which
they cooked outside shop. That Hanif had borrowed money to send the
same to his village for agricultural work. That P.W. 16 and Hanif were

¶92

13 of 25

¶93

Talwalkar

¶94

APEAL765.25.2018.doc

¶95

the only employees who were sleeping in the shop. At the time of
recovery, no one had accompanied Hanif to the loft.

¶96

15P.W.17 Dr. Waman Kedari-Gaikwad had performed autopsy
on the dead body of Abdul Hamid, aged 96 years. At the time of
performing autopsy, the photographs were taken by Mr. Pervez. The
cause of death was “Asphyxia due to smothering/gagging and
throttling (unnatural)”. It is stated in the cross-examination that
smothering is possible by putting cloth, pillow and hand etc. on the
mouth. In the present case, the death was caused by putting cloth in
the mouth. That throttling can be caused by human hands and not by
ligature. That there were no bruises or injury marks on the part of the
neck. That in case of throttling, there would be some marks on the
neck and throttling would occur only if neck is pressed. In the next
breath, P.W. 17 has stated that it is not necessary that marks would
appear on the neck in the eventuality of throttling. That he is not an
expert in histopathology. All the antemortem injuries were in the
nature of contusions and some abrasions. The associate doctors had
signed the post-mortem notes and P.W. 17 had signed the same
subsequently.

¶97

14 of 25

¶98

Talwalkar

¶99

APEAL765.25.2018.doc

¶100

16P.W. 18 Farid Khan was attached to Nagpada Police Station
as PSI and working as S.H.O. According to him, on 18/6/2014 he
received a call from Yakub Building Nagpada Mumbai that a person
had died. He informed the same to the police station. On visiting the
site, they noticed that an old man had been murdered. However, other
police personnel had reached the scene of offence before he reached.
He claims to have seen the deceased with his hands and legs tied to cot
with a rope and the chest and face were covered with clothes. Dr.
Parvez had declared him dead. He has stated about the steps taken by
him in the course of investigation. He had recorded the statement of
Mohd. Wasif Mohd. Ismail Ansari in J.J. Hospital on the basis of which
Crime No. 226 of 2014 was registered against unknown person by him.
He has clarified in the cross-examination that he had received the
information from mobile van No. 1 at about 8.40 a.m. about the
incident. That Dr. Parvez was called by the relatives of the deceased.
That till the doctor arrives, the hands and legs of the deceased were
not untied. The deceased was still covered with clothes when the
doctor arrived. He could not recollect as to when the copy of the FIR
was sent to the Court of Metropolitan Magistrate.

¶101

15 of 25

¶102

Talwalkar

¶103

APEAL765.25.2018.doc

¶104

17P.W. 20 Ganesh Waykar was attached with Nagpada Police
station in Detection Squad. He is a witness to the recording of
statement of the accused Zamir. He is a witness to the recovery of
white colour mobile and the clothes of accused Zamir from the house
of P.W. 16. It appears that P.W. 20 was a member of the investigating
team for the recovery of incriminating articles at the behest of accused
under section 27 of the Indian Evidence Act and hence, his evidence
needs no discussion.

¶105

18The learned Counsel for the appellants have vehemently
argued that in the present case, there is no cogent and convincing
evidence to connect the present appellant with the homicidal death of
deceased Abdul Hamid. It is submitted that the learned trial Court has
recorded conviction against the accused only on account of recovery of
clothes and Rs. 5,000/- at the instance of Jamir, recovery of watch at
the instance of Pappu Chotan Khan and recovery of mobile handset at
the instance of Hanif. Hence, according to respective Counsel for
appellants, the conviction of the appellants has resulted in grave
miscarriage of justice.

¶106

16 of 25

¶107

Talwalkar

¶108

APEAL765.25.2018.doc

¶109

19Per contra, learned APP has vehemently submitted that the
accused Hanif Nau has not given any plausible explanation for the
possession of the mobile handset, which was used by the deceased.
That the said mobile handset was identified by the family members of
the deceased. It is further submitted that the accused Jamil has not
explained the source of being in possession of Rs. 5,000/- which was
allegedly stolen from the deceased. The wrist watch which was
recovered at the instance of accused Pappu was identified by the family
members of the deceased as the one which was used by the deceased.
Hence, according to the learned APP, judgment of the trial court is
justified and calls for no interference.

¶110

20With the help of the learned APP and the learned Counsel
for the accused, we have gone through the records meticulously. The
only fact that is established by the prosecution in the present case is
the homicidal death of Abdul Hamid.

¶111

21There is no material evidence to show that the accused

¶112

were seen near the scene of offence prior to the incident, on the day of

¶113

17 of 25

¶114

Talwalkar

¶115

APEAL765.25.2018.doc

¶116

the incident or thereafter. It is the case of the prosecution that the
murder of Abdul Hamid was committed in the course of committing
theft. According to P.W. 3, the table in the room of the deceased was
having 3 drawers which were open. A screwdriver was lying nearby.
The third drawer was locked and upon opening the drawer, they have
found cash of Rs. 6,52,000/-. The amount was returned to P.W. 3 at the
time of drawing the inventory. It cannot be believed that the thieves
would not tamper with the third drawer especially when a screwdriver
was allegedly used in the commission of theft.

¶117

22The prosecution case that the deceased was in possession
of five cell phones on the day when he died also does not inspire the
confidence of the court for the simple reason that the prosecution
witnesses have been unable to give the SIM card numbers of any one
of the phone. The identification of the mobile handset seized at the
instance of Hanif is without any foundation for the simple reason that
there is no investigation in respect of IEMI number of the said cell
phone. There is no investigation as far as the last call either made or
received by the deceased. The white colour mobile handset is common
item and it may belong to any person.

¶118

18 of 25

¶119

Talwalkar

¶120

APEAL765.25.2018.doc

¶121

23In the case of Pulukuri Kottayya and ors. v/s. Emperor1, the

¶122

court had observed as follows :

¶123

“10.Section 27, which is not artistically worded, provides
an exception to the prohibition imposed by the preceding
section, and enables certain statements made by a person
in police custody to be proved. The condition necessary to
bring the section into operation is that the discovery of a
fact in consequence of information received from a person
accused of any offence in the custody of a Police officer
must be deposed to, and thereupon so much of the
information as relates distinctly to the fact thereby
discovered may be proved. The section seems to be based
on the view that if a fact is actually discovered in
consequence of information given, some guarantee is
afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence;
but clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which
such information is required to relate. Normally the section
is brought into operation when a person in police custody
produces from some place of concealment some object,
such as a dead body, a weapon, or ornaments, said to be
connected with the crime of which the informant is
accused.”

¶124

1 AIR (34) 1947 Privy Council, page 67

¶125

19 of 25

¶126

Talwalkar

¶127

APEAL765.25.2018.doc

¶128

24In the present case, the object which is allegedly recovered
at the instance of the accused does not in any way connect the accused
with the homicidal death of Abdul Hamid. Unless the object recovered
is proved to be the specific object which was in the possession of the
deceased at the time of his death or was used by him in the past, it
cannot be said that an onus would lie upon the accused to explain its
possession. There have been cases where the object which is recovered
must have changed hands and the person from whom it is recovered
could be a receiver of stolen property. In any case, the onus would lie
upon the prosecution to prove its case beyond reasonable doubt that
the guilt of the accused is established up to the hilt.

¶129

25The accused were working on daily wages. All the accused
are from different States and were working in Mumbai to support their
family. They were sending money to their home towns as is revealed
from the evidence of P.W. 15 and 16. In this eventuality, it was not
impossible for them to save Rs. 5,000/- in order to send it to their
home towns. Moreover, it is not the case of P.W. 1, 2 and 3 that at the
time of the incident, the deceased had Rs. 5,000/- in his wallet and

¶130

20 of 25

¶131

Talwalkar

¶132

APEAL765.25.2018.doc

¶133

therefore, the recovery of Rs. 5,000/- would be of no consequence to
connect the accused with the homicidal death of Abdul Hamid.

¶134

26The learned trial Court has not assigned any justifiable
reason for convicting the accused for the offence punishable under
section 392 of the Indian Penal Code. Section 392 of the Indian Penal
Code reads as follows :

¶135

“392. Punishment for robbery.—Whoever commits robbery
shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to
fine; and, if the robbery be committed on the highway
between sunset and sunrise, the imprisonment may be
extended to fourteen years.”

¶136

In the present case, there is no evidence worth its name to draw an
inference that the robbery was committed on the highway between
sunset and sunrise.

¶137

27The charge was framed against the accused under section
394 of the Indian Penal Code. Section 394 of the Indian Penal Code
reads thus :

¶138

“394. Voluntarily causing hurt in committing robbery.—If

¶139

21 of 25

¶140

Talwalkar

¶141

APEAL765.25.2018.doc

¶142

any person, in committing or in attempting to commit
robbery, voluntarily causes hurt, such person, and any other
person jointly concerned in committing or attempting to
commit such robbery, shall be punished with
1[imprisonment for life], or with rigorous imprisonment
for a term which may extend to ten years, and shall also be
liable to fine.”

¶143

28It is further pertinent to note that the prosecution has
failed to adduce any evidence which would establish the charge under
section 302 of the Indian Penal Code against the accused. Moreover,
P.W. 17 has opined that the cause of death is Asphexia due smothering/
gagging and throttling. As per Mody’s Medical Jurisprudence,
strangulation is a violent form of death, which results from constricting
the neck by means of a ligature or by any other means without
suspending the body. It is called throttling, when constriction is
produced by the pressure of fingers and palms upon throat.

¶144

29In the present case, there is no ligature marks nor thumb
marks on the fragile neck of the deceased. In fact, there is evidence to
show that there was a piece of cloth in his mouth which would be a
clear evidence of death due to gagging. The post mortem notes also do

¶145

22 of 25

¶146

Talwalkar

¶147

APEAL765.25.2018.doc

¶148

not indicate any ligature mark to show that it was a case of
strangulation. In fact, it appears that there was some struggle before
the death occurred in view of the injuries shown in column No. 17 of
the post-mortem notes which are as follows :

¶149

(1) Multiple contusions over upper and lower lips present of size 1 ½ cms. and 1 cm.. Brownish reddish.

¶150

(2) Contusion-left palm-palmer and dorsal aspects, on c/s. 4^th finger tip – Reddish in colour.

¶151

(3) Contusion-right palm-palmer and dorsal aspects, on c/s. 4^th finger tip – Reddish in colour.

¶152

(4) Contusion-right waist jt. 1 x ½ cms in circuling waist x 1 cm., on c/s. Over radial aspect-Reddish in colour.

¶153

(5) Contusion- Left wrist jt. 1 x ½ cms. in circuling wrist x 1cm. On c/s. -Radial aspect- Reddish.

¶154

(6) Abrasion- Medial aspect of Rt. Knee jt. - ½ cm. x ½ cm. -reddish.

¶155

(7) Abrasion-Medial aspect of left partella- 1 ½ cm. x 1 ½ cm. -Reddish.

¶156

(8)Pin Point Multiple Abrasions- over Rt. 3rd 4th 5th toes-
dorsal aspect- Reddish.

¶157

23 of 25

¶158

Talwalkar

¶159

APEAL765.25.2018.doc

¶160

(9)Pin point Multiple Abrasion 4 ½ cm. distal to lt.
Ankle jt. Medially- Reddish.

¶161

The post-mortem notes further show the time of death is as “2 to 6
hours after taking last meal as there was 350 gm. semi-digested food
particles in his stomach. The dead body was seen in the morning at
8.30 a.m. There is no material to show as to whether he had any visitor
at night. The prosecution has not examined Mumtaz, whom he visited
frequently as deposed by his family members i.e. P.W. 1, 2 and 3. The
prosecution has also not examined any neighbour of the deceased to
establish that he had no visitor on the previous night.

¶162

30In view of the above discussion, it can be safely said that
the prosecution has not proved the guilt of the accused beyond
reasonable doubt and hence, accused deserves to be acquitted of all
the charges levelled against them. Hence, following order is passed :

¶163

ORDER

¶164

(i) The appeals are allowed.

¶165

(ii)The accused/appellants are acquitted of the offence
punishable under section 302, 392, 452, 342 read with section 34 of

¶166

24 of 25

¶167

Talwalkar

¶168

APEAL765.25.2018.doc

¶169

the Indian Penal Code as well as 302 r/w. 34 of the Indian Penal Code.

¶170

(iii)The accused/appellants be enlarged forthwith, if not
required in any other offence.

¶171

(iv) Fine amount, if paid, be refunded.

¶172

(v) Since the appeals are disposed of, the interim applications are disposed of.

¶173

(PRITHVIRAJ K. CHAVAN, J)

¶174

(SMT. SADHANA S. JADHAV, J)

¶175

25 of 25

¶176

Talwalkar

Jamil Rafiq @ Khalil Khan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Jamil Rafiq @ Khalil Khan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Maharashtra Vs Ashok Baban Mukane

Ashok Baban Mukane Vs the State of Maharashtra

Nishant Nandu Kamble and Ors. Vs the State of Maharashtra

Suresh @ Tatya Parshuram Powar Vs the State of Maharashtra and Anr.

Pappu Chhotan Khan Vs the State of Maharashtra

Jamil Rafiq @ Khalil Khan Vs the State of Maharashtra