Shaikh Kalam S/O Shaikh Nabi Vs. the State of MaharashtrA. - Court Judgment

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the accused was driving the said vehicle. even the deceased shaikh sattar was a driver. the accused however identified the dead body as that of shaikh sattar. father and brothers of shaikh sattar, therefore, expressed suspicion against the accused, and as such, the accused came to be arrested. shaikh gaffar shaikh sardar (pw-2) is the brother of the deceased and saminabee shaikh sattar (pw-5) is the wife of the deceased. f. the accused identified the said dead body as of his colleague shaikh sattar shiakh sardar. the appellant-accused, mr. shaikh kalam shaikh nabi, stands acquitted.   1. this appeal is directed against the judgment and order dated 25.10.2010 passed by the additional sessions judge-2 at jalna, in sessions case no. 143 of 2009, convicting the appellant, who was the sole accused in the said case, of the offence punishable under section 302 of the indian penal code and sentencing him to suffer imprisonment for life and to pay a fine of rs. 1,000/-. 2. the prosecution case can be best stated from the `brief facts of the case', as mentioned in column no.15 of the printed prescribed proforma of the charge sheet/final report. it is as follows : that, on 03.06.2009, the accused and one shaikh sattar s/o shaikh sardar (the deceased) left aurangabad by a vehicle bearing no. mh-20 aa-8955 belonging to sarda logistic company for going to vijaywada, andra pradesh. the said vehicle was a container, carrying refrigerators of videocon company. the accused was driving the said vehicle. even the deceased shaikh sattar was a driver. for some time, the accused was to drive the said vehicle and for some time, said shaikh sattar was to drive it. at about 1.45 a.m. on 04.06.2009, the accused was sleeping in the cabin of the said vehicle, which had been parked on the road at mantha. he was woken up by the police. the dead body of shaikh sattar was lying on the road near the said vehicle which had been noticed by the police. when questioned by the police, the appellant stated that he had been sleeping in the container and that, said shaikh sattar was driving the same and that, he did not know when the vehicle came at mantha and when it was stopped. as such, he did not know what had happened to shaikh sattar. the accused however identified the dead body as that of shaikh sattar. the dead body was fully naked. there were injuries on the dead body and more particularly, there was a very serious injury on the head of dead body. the underwear and the pant of said shaikh sattar had been lying by the side of naked dead body. the accused lodged a report with the police, on the basis of which, the crime was registered and investigation commenced. 3. in the course of investigation, statements of shaikh sardar-father of deceased shaikh sattar-and two brothers of shaikh sattar were recorded. it was learnt from them that about two months prior to the incident, a quarrel had taken place between the accused and the deceased; and that, during that quarrel, the accused had threatened to kill shaikh sattar. it was also revealed that the accused had urged said shaikh sattar to accompany him to vijaywada, in the said container vehicle. father and brothers of shaikh sattar, therefore, expressed suspicion against the accused, and as such, the accused came to be arrested. 4. in the course of the investigation, the weapon of offence i.e. tommy was recovered, pursuant to the information disclosed by the accused. the investigating agency concluded that the accused himself had killed shaikh sattar and had pretended to be sleeping. in consequence of formation of this opinion, the accused was prosecuted. 5. the prosecution examined totally 11 witnesses during the trial. the police head constable-shankar mahadeo bhandalkar (pw-1), constable-tukaram chatru rathod (pw-7) and p.s.i.-shirish devising rathod (pw-10) are the persons who had seen the container standing on the road at mantha and who had noticed the dead body lying by its side. shaikh gaffar shaikh sardar (pw-2) is the brother of the deceased and saminabee shaikh sattar (pw-5) is the wife of the deceased. these two witnesses have been examined for establishing that there had been a quarrel between the accused and the deceased, suggesting that as a motive behind the offence. chandkhan sharifkhan pathan (pw-3) is a panch witness in respect of the spot panchanama (exhibit-20) as well as the memorandum panchanama in respect of the statement made by the accused leading to the recovery of the `tommy' (article-5), stated to be the weapon of the offence. dr. kailas dattatraya awate (pw-4) is the medical officer, who performed post-mortem examination on the dead body of shaikh sattar. the head constable-raju jagbir rana (pw-6) is the person who had carried the `mudemal' articles seized in the course of investigation, to forensic science laboratory, aurangabad. prakash dinkar bhatane (pw-8) is the person who works at the toll tax collection centre, kendhali situate at mantha-jalna road. bhagwan kondiram kale (pw-9) is the owner of a hotel at watur phata. these two witnesses have been examined to show that the container in question had come to the toll tax collection center and the hotel, respectively, and that, two persons were travelling by the said vehicle and that, one of them was the accused. p.s.i. syed asif syed mohammad (pw-11) is the person, who had carried out the investigation into the offence. he is the one, to whom the information was allegedly given by the accused, pursuant to which the tommy (article-5) was recovered. 6. the defence of the accused is of denial. 7. we have heard mr. satej jadhav, the learned advocate for the appellant. we have also heard smt. s.d. shelke, the learned additional public prosecutor for the respondent/state. with the assistance of the learned counsel, we have gone through the entire evidence adduced before the trial court and other relevant record. we have carefully gone through the impugned judgment. 8. it is contended by mr. satej jadhav, the learned advocate for the appellant that there was no evidence against the accused so as to hold him guilty. according to him, the circumstance on which the prosecution placed reliance to establish the guilt of the accused were not satisfactorily proved. he contended that the evidence regarding the recovery of the weapon of offence was unreliable and further that the tommy, that was recovered, was the weapon of assault, had, itself, not been established. he submitted that the evidence trying to attribute a motive to accused to do away with the deceased could not be relied upon, as there was other evidence, which contradicted it. he, lastly, submitted that in any case, the circumstance relied upon by the prosecution, even if held to be proved, were hardly sufficient to come to the conclusion that the offence in question had been committed by the accused himself. 9. it would be necessary to carefully examine the evidence showing as to how the incident first came to light. in that context, the evidence of police head constable-shankar mahadeo bhandalkar (pw-1), constable-tukaram chatru rathod (pw-7) and p.s.i.-shirish devising rathod (pw-10) is relevant. 10. the evidence of police head constable-shankar bhandalkar (pw-1), constable-tukaram rathod (pw-7) and p.s.i.-rathod (pw-10) shows that they and other police staff were on petrolling duty in mantha town and that, at about 1.30 to 1.45 a.m. they were proceeding towards talni road by a vehicle. that, at that time, they noticed one container stationed in front of the indian oil petrol pump belonging to one borade. they also noticed, a person lying near the container in naked condition. on noticing this, the police vehicle was stopped and the witnesses got down from the vehicle. they noticed that the said person was dead. they also noticed that the driver of the container i.e. the accused, was sleeping in the said vehicle. he was woken up. on enquires, it was learnt from him that the dead body was of his co- driver shaikh sattar. that, the accused also disclosed that they were coming from aurangabad and were to proceed to andhra pradesh. 11. the evidence of these witnesses is fully consistent with the evidence of one another. in fact, not only there is no challenge to this evidence, but that is the case of the accused also. 12. it is, therefore, very clear that : a. the container was found stationed by the side of the road. b. the dead body of shaikh sattar was lying near rear wheel of the said container. c. the police party that was petrolling, noticed the said dead body. d. at that time, the accused was sleeping inside the vehicle. e. the accused, who was sleeping, was woken up by the police. f. the accused identified the said dead body as of his colleague shaikh sattar shiakh sardar. g. the accused stated that the accused had been sleeping and that shaikh sattar had been driving the vehicle; and that, he did not know, when the vehicle had come to that place and had stopped there. h. the accused stated that he did not know who had killed shaikh sattar (as he had been sleeping). these facts, which are sufficiently and satisfactorily proved, are actually not in dispute at all. 13. that, there were injuries on the dead body and more particularly, a serious injury on the head is also satisfactorily established, apart from being not in dispute at all. the evidence of dr. kaikash awate (pw-4), who performed the post-mortem examination on the dead body, which is supported by the notes of the post-mortem examination prepared by him (exhibit-24) shows that there were following injuries on the dead body : i. incised wound due to hard and sharp object of size approximately 20 cm. in length x 3 cm. deep x 5 cm width at left forehead exposing left eye with frontal bone extending upto vertex. ii. evidence of fracture at left superomedial orbital rim. iii. evidence of fracture at left lateral orbital wall. iv. evidence of expose of left eyeball. according to this witness, these injuries were ante mortem. in the opinion of this witness, the death was caused `due to head injury due to hard and sharp object'. from the evidence of this witness, that shaikh sattar died an unnatural death and that, the death was homicidal, is clearly established. in fact, even this aspect of the matter is not only not in dispute, but it is the case of the accused himself also. 14. we may now examine the evidence of the brother of shaikh sattar. it may be recalled that it is on the basis of the suspicion expressed by the relatives of shaikh sattar, that the accused, who himself had lodged the f.i.r. and who was till then not suspected to be the culprit, came to be suspected and arrested by the investigating agency. in his evidence, shaikh gaffar shaikh sardar (pw-2), brother of shaikh sattar stated that after getting telephonic message from mantha police station that his brother shaikh sattar had been murdered, the witness himself, his father and brother went to the police station and that, the police took them to the government hospital, mantha, where the dead body of shaikh sattar was lying. when this witness, his father and brother returned to the police station, he asked the accused outside the police station about the incident, when the accused told him that as he was in sleep, he did not know what had happened. this witness has then stated the grounds of his suspicion against the accused. according to him, the accused had insisted that shaikh sattar should accompany him to vijaywada though shaikh sattar was not initially ready to go with him, and that he had taken shaikh sattar with him `forcibly'. the witness has then spoken about an incident of quarrel which had taken place between shaikh sattar and the accused about two months prior to the incident, and that, at that time, the accused had threatened shaikh sattar that he would kill him. the evidence of saminabee (pw-5), the wife of shaikh sattar is also similar. according to her, on 03.06.2009, the accused had come with the truck to her house and had asked her husband i.e. the deceased to come with him on the said truck going to vijaywada. she stated that there had been a quarrel between the accused and shaikh sattar about two months before the incident, but added that she had neglected the same. she also stated that her husband was not ready to go with the accused, but the accused had insisted, and therefore, her husband went with him on his truck. 15. by the evidence of these witnesses, an attempt has been made to suggest that because of the quarrel that had been taken place between the accused and shaikh sattar, the accused intended to kill shaikh sattar and that, therefore, he had taken shaikh sattar with him on his trip to vijaywada. we are not impressed by this attempt, which in our opinion, has totally failed. in the first place, though one may accept that there had been a quarrel between the accused and shaikh sattar, it is not possible to hold that the said quarrel was serious, or of such a nature as would generate so much anger or rage in the mind of the accused so as to kill shaikh sattar by pre-planning. secondly, shaikh gaffar (pw-2) has admitted in the cross examination that after the said quarrel, the accused had once taken shaikh sattar with him at vishakhapatannam. the evidence of saminabee shows that the association between the accused and shaikh sattar had been for quite some time and that, previously the accused was working as a cleaner with shaikh sattar. saminabee has clearly stated that she neglected the quarrel, which again indicates it was not perceived by her to be of a serious nature. in examination-in-chief itself she has stated that after the quarrel, the relations between the accused and deceased had again become cordial. we accept and believe this as true, as, otherwise, the accused would never ask the deceased to come with him to vijaywada, and in any case, the deceased would never think of going with him. neither shaikh gaffar (pw-2) nor saminabee (pw-5) suspected that the accused had any ill motive when shaikh sattar was taken by him with him and a reference to the previous quarrel-which had been clearly neglected by them earlier- was made only because of the subsequent death of shaikh sattar. the way things had happened-as narrated by saminabee-the relationship between the accused and the deceased appears to be quite close and it is clear that there is no substance in the claim of shaikh gaffar that the deceased was taken `forcibly'. merely because he has agreed to accompany the accused on insistence of the accused, it cannot be said that he was `forced' to go with the accused. the force, if any, was of the friendship and good relations. the grief reaction of the close relations of the deceased, over the unexpected death might have resulted in a bona-fide suspicion against the accused, but such suspicion felt by them, would be subjective and cannot be treated as a fact showing the involvement of the accused in the offence. 16. considering all these aspects and the fact that after the quarrel in question (which is expected to be believed to be the motive on the part of the accused) shaikh sattar had gone with accused on a long distance trip at least once, we are of the opinion that the evidence of shaikh gaffar and saminabee does not advance the case of the prosecution in any manner. 17. we may now examine the evidence in respect of other circumstance :- namely, the recovery of `tommy'-which is said to be weapon of offence-at the instance of the accused. this aspect is sought to be proved by the evidence of chandkhan pathan (pw-3) and syed asif syed mohammad (pw-11). it may be recalled that chandkhan pathan (pw-3) had also acted as a panch witness in respect of the spot panchanama (exhibit-20), that was drawn on 04.06.2009. without commenting on the selection of the same person as a panch for another panchanama drawn after two days, we proceed to examine his evidence. according to him, on 06.06.2009, he was called at police station, mantha and that, the accused who was in custody at that time made a statement to the effect that he would find out the tommy, which he had thrown in bushes on jalna-jintoor road. that, pursuant to the said statement, he, one shankar and the accused were taken by the police behind the petrol pump situated at jalna-jintoor road, by police vehicle and that, the accused took out an iron tommy from the thorny bushes. he has identified the tommy (article-5) produced before the court as the same that was recovered at the instance of the accused and seized by the police under panchanama (exhibit-22). in the cross examination, he has stated that tommy was lying in a bush at a distance of 10 feet from the road. 18. the evidence of syed asif syed mohammad (pw-11) is also to the same effect and if the evidence of these witnesses is believed, it would, indeed, show that the tommy (article-5) was recovered in the course of investigation pursuant to the information disclosed by the accused. in the view that we are taking, we find it unnecessary to go deeper into this evidence, for judging its reliability and value. 19. the contention advanced by mr. satej jadhav, the learned advocate for the accused that there is no evidence to show that the said tommy was the weapon, with which the deceased was assaulted, deserves serious consideration. it was emphasised before us that the injury that was caused to the head of the deceased, which resulted in his death, was caused by `hard and sharp object'. mr. satej jadhav submitted that the tommy was not a sharp object at all and it was not capable of causing an incised wound. he also pointed out that, admittedly, there were no stains of blood on the said tommy. 20. indeed, we find great substance in the submission made by the learned advocate for the accused. in fact, the evidence of syed asif syed mohammad (pw-11) shows that he also thought it fit to make enquiries with the medical officer as to whether the injury sustained by the deceased was possible by an iron tommy and obtain expert opinion on this point. dr. kailas awate (pw-4), who had performed the post-mortem examination on the dead body stated in his evidence about the receipt of the weapon from the investigating officer for examination. he has described the weapon as `iron rod' and has given its description as `metallic, solid approximately having length 111 cm and gird 8 cm, both edges rounded with tapering one side'. he stated that he gave his report (exhibit-25) on examination of the said rod, which is to the effect that the injuries found on the dead body could be caused/possible by the said weapon. he identified the iron rod/tommy (article no.5) as the same. in the cross examination, he admitted that the rod was not a sharp object. he, however, denied that the injuries on the dead body could not possibly be caused due to the said rod. ordinarily, an incised wound cannot be caused by a blunt object, and therefore, we find it difficult to accept the opinion of this witness as correct. however, the cross examiner has not carried the matter further and had left it at that. we therefore decline to express the opinion that the injuries sustained by the deceased could not have been caused by said tommy /iron rod. we however add that merely because such injuries could have been caused, or it was possible to cause such injuries, by the said weapon, it cannot be said that it was the very weapon that had been used in the assault. it may be recalled that there were no blood stains on the said tommy / iron rod. 21. the aspect of recovery of the weapon would be relevant only if the same is established to be the weapon of assault. such opinion cannot be formed merely on the claim that the accused produced the same. there is no evidence as to from where the accused had secured the said tommy/ iron rod. tommy is usually kept in the vehicle, but there is no evidence to show that such tommy/rod was in the vehicle when the accused and the deceased left aurangabad and that, it was missing when the dead body was noticed and the offence was registered. thus, this evidence :- namely, recovery of tommy/ iron rod pursuant to the disclosure statement made by the accused, does not advance the case of the prosecution against the accused. 22. the evidence of prakash bhatane (pw-8) shows that the vehicle had gone to the toll tax collection center at kendhali and at that time, it was occupied by two persons. that, the accused was the person, who was driving the vehicle at that time. the evidence of bhagwan kale (pw-9) shows that the vehicle had come to his hotel at about 11 to 11.30 pm. and that, two persons got down from it and had meals in the hotel. the witness identified the accused as one of the said two. 23. it is contended by the learned advocate for the appellant that the evidence of these persons about the identity of the accused cannot be accepted, as the accused was not put in test identification parade. since, that the accused and the deceased were together in the said vehicle and that, the accused was driving the same is not in dispute, the discussion on this aspect would be purely academic and uncalled for. in the circumstances, we proceed on the basis that the vehicle had gone to the tax collection center when accused and one more person was inside it and that, it had gone also to the hotel of bhagwan kale (pw-9) when also there were two persons in the said vehicle, one of whom was the accused. 24. the case is based on circumstantial evidence. the rules regarding the appreciation of the circumstantial evidence are well known. the two primary and most fundamental of them are:- (i) the circumstances on the basis of which the requisite inference is expected to be drawn must be clearly and satisfactorily established and (ii) that such circumstances not only must be consistent with the hypothesis of the guilt of the accused, but further must be wholly inconsistent with the theory of innocence of the accused. 25. in this case, the version of the accused is clearly on record in the form of first information report (exhibit 40), that was lodged by him. this version has also been brought on record through the evidence of the prosecution witnesses themselves. thus, the stand of the accused is very clear; namely, that `shaikh sattar was driving the vehicle and that, the accused had fallen asleep, that the accused did not know when the vehicle was stopped, and that, it is only when the police woke him up, he learnt about the death of shaikh sattar and of the dead body lying near the rear side of the vehicle'. 26. in our opinion, whatever has been proved by the prosecution, is not incompatible with what the accused states. in other words, it has not been shown at all that the things could not have happened the way the accused had stated. 27. it was contended by the learned additional public prosecutor that the accused and the deceased were last seen together, and therefore, the accused would be liable to explain as to what had happened to the deceased. we are not impressed by this submission. the accused has claimed that something had happened while he was sleeping and that, the fact that he was sleeping when the police arrived, is clearly established. the incident had taken place in or near the container which was travelling on a public road. it is not that the murder had taken place in a closed premises, where except the accused and the deceased nobody else had any access. apart from this, there are a number of other circumstances, which create a doubt about the theory of the prosecution. 28. admittedly, the dead body was lying just near the vehicle and the accused was found to be sleeping inside the vehicle. it is unthinkable that the accused would, after killing shaikh sattar, leave his body just near the container and go for a sleep in the vehicle itself. it is nobody's case that the accused was merely pretending to be sleeping and that he was not actually sleeping. we are conscious of the fact that merely because the accused did not react in a way in which ordinarily, a culprit would have reacted, it cannot be said that he might not be guilty of the alleged offence, but the fact remains that this behaviour of the accused which cannot be said to be consistent with his guilt, is also required to be taken into consideration alongwith other circumstances. 29. another significant aspect of the matter is that the body was found to be naked. underwear and pant of the accused were lying just near the body. other clothes on the body were not found nearby. there has been no investigation into the aspect as to why the clothes were removed and the body was made naked. the device of removing the clothes on the body is usually adopted by the culprits to avoid the identity of the dead body from being known. in the instant case, the accused remained with the dead body and disclosed its identity immediately on being asked by the police. how and why the dead body was in naked condition, has not been investigated into. this remains a mystery. 30. where the other clothes-that were supposed to be on the person of shaikh sattar had gone, has also not been investigated into. 31. where the assault on shaikh sattar had taken place, and whether it was at the very place where the dead body was found to be lying, is also not indicated. there is no evidence that attack had taken place inside the vehicle. no stains of blood, were said to have been noticed in the vehicle. 32. another curious aspect of the matter is that no stains of blood were found or noticed either on the clothes of the accused, or that of the deceased. considering the nature of injury sustained by the deceased one would expect the clothes-at least of the deceased-to be stained with blood, but whatever clothes of the deceased were found, did not contain any blood stains. 33. we also find that one more person by name, shaikh salam-brother of the present accused-was also accused and arrested in this case. investigating officer-shirish rathod (pw-10) has admitted this. apparently, the said person was discharged and not prosecuted. in the story put forth by the prosecution, what was the occasion to suspect and arrest the said shaikh salam, what was suspected to be done by him in respect of the present offence and what led to the belief of his not being involved in the matter (as indicated by the fact that he was not prosecuted), has not been stated by the investigating officer. it is clear, therefore, that the prosecution has not chosen to disclose certain features of the present case. being a case based on circumstantial evidence, all the relevant circumstances ought to have been placed before the court. non-availability of all the material facts from which an inference of guilt or innocence of an accused would be drawn, can lead to the danger of the court arriving at an incorrect conclusion. 34. in our opinion, there are various aspects of the matter on which no light has been thrown by the prosecution. apparently, the investigation was not done in proper and satisfactory manner. the accused was booked on the basis of the suspicion expressed by the father and brother of the deceased and no real efforts to clear the mystery appear to have been made. 35. in our opinion, merely because the accused and deceased were travelling together in the said vehicle, the explanation offered by the accused cannot be discarded. the 23 cria93. circumstances on which the reliance has been placed by the prosecution are, even if held to be proved, are insufficient to exclude the theory of innocence of the accused as put forth by the accused. 36. it is well settled that it is only when the circumstances satisfactorily established by the prosecution would be wholly inconsistence with the hypothesis of the innocence of the accused, that the accused can be held guilty of the offence in question. since such is not the case here, the accused was entitled to be acquitted. 37. the judgment of conviction recorded by the special judge is neither proper nor legal. 38. we, therefore, allow the appeal and set aside the impugned judgment and order of conviction dated 25.10.2010, recorded by the additional sessions judge-2, jalna, in sessions case no. 143 of 2009. 39. the appellant-accused, mr. shaikh kalam shaikh nabi, stands acquitted. he be set at liberty forthwith, unless required to be detained in connection with some other case. 40. fine amount, if paid, be refunded to the appellant.