Full Judgment Text
2022:BHC-AS:14455-DB
O-39-APEAL-916-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 916 OF 2017
Parvez Farukh Dalvi
Age- 32 years, Occ: Nil,
R/o. Surai, Tal.- Mhasla,
District – Raigad,
At present Nashik Jail …Appellant
Versus
State of Maharashtra
(through Shrivardhan Police Station)
Tal. Shrivardhan, District – Raigad,
(C.R. No. I-11/2015) … Respondent
……
Mr. Aniket Vagal a/w. Mr.Kunal Pednekar for the Appellant.
Mr. A.R.Kapadnis, APP for the Respondent -State.
……
CORAM : REVATI MOHITE DERE &
V. G. BISHT, JJ.
th
DATE : 29 June, 2022
JUDGMENT (PER: V.G.BISHT, J.)
1. This appeal has been preferred against the judgment
conviction and order of sentence passed by the learned Additional
Sessions Judge, Mangaon, District – Raigad in Sessions Case No. 22 o
2015 convicting the appellant-accused for the offence punis
under Section 302 of the Indian Penal Code (IPC) and sentencing him
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to undergo imprisonment for life and to pay fine of Rs.1
(Rupees One Thousand Only), in default, to further suffer simple
imprisonment for one month. However, the learned Addition
Sessions Judge acquitted the appellant-accused of the offen
punishable under Section 304-B of the IPC.
2. In short, the prosecution case runs as under :-
(a) Informant’s daughter, namely, Khairunisa Parvez
Dalvi (since deceased) was married to the appellant. It
th
is the case of the prosecution that on 6 March, 2015 at
about 9.30 pm., the brother-in-law of deceased called
informant and informed him that his daughter had been
to his house but did not return. However, informant-
father replied that the deceased had not come to his
residence. The informant alongwith his wife
immediately went to the matrimonial house of the
deceased, which was locked. From there, they went to
the house of in-laws of the deceased.
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(b) According to the prosecution, the informant later
on visited Masaba Police Station and from there went to
Shrivardhan Government Hospital and saw the dead
bodies of the deceased and grandson Abdul Aziz. The
informant lodged an FIR against the appellant, which
was registered by Shrivardhan Police Station under C.R.
No. 11 of 2015 for the offences punishable under
Sections 302 and 304-B of the IPC.
(c) The prosecution alleges that the appellant often
used to torture the deceased in order to compel her to
bring monies and also used to threaten to kill her.
Considering the conduct of the appellant, the informant
alleged that it was the appellant, who had killed the
deceased and his grandson with the help of some of his
associates at Shrivardhan beach by drowning them in
water.
(d) After registration of the above crime, the
investigation was taken up by PW-7 Maheshwar Reddy,
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the then Additional S.P. Gadchiroli. PW-7 investigating
officer got autopsy done over the dead bodies of the
deceased and her son, recorded statements of the
prosecution witnesses and also conducted Test
Identification Parade of the appellant. PW-7 investigating
officer also collected the Chemical Analyzer Reports,
CDR and CCTV footages. According to him, during the
course of investigation, it transpired that the appellant
had murdered both the victims i.e. wife and his son.
After completion of investigation, he forwarded the
chargesheet against the appellant-accused under Sections
302 and 304 -B of the IPC and the case was committed
to the Court of Sessions, Mangaon, District Raigad.
(e) To substantiate the charge against the appellant-
accused, the prosecution has examined as many as eight
witnesses and exhibited number of documents. The
accused was questioned under Section 313 of the Code
of Criminal Procedure (Cr.P.C.)about the incriminating
evidence and circumstances and the appellant-accused
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denied all of them as false and pleaded that a false case
has been filed against him and that on the ground of
suspicion, he has been arrested. According to him, he did
not commit the murder of his wife and son. Upon
appreciation of the oral evidence and the circumstances,
the trial Court convicted the appellant-accused for the
offence punishable under Section 302 of the IPC and
sentenced him in the manner stated hereinabove. Hence,
this appeal.
3. At the outset, Mr. Vagal, learned Counsel for the appellant-
accused, submits that the delay in filing the FIR has no
explained by the prosecution and therefore, on this ground alone, th
prosecution case is liable to be rejected. Learned Counsel then nex
submits that the only ground for conviction of the appellant is the
testimony of PW-6, who claimed of having seen the deceased person
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on 5 March, 2015 at about 5.00 p.m. in the company of
th
appellant and further claimed to have seen the dead bodies on 6
March, 2015 at 7.30 a.m. in the morning. However, according to the
learned Counsel, PW-6 was silent till the police approached him on
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th
11 March, 2015 for recording his statement. The said witness kept
mum for five days. He being the only witness ought to
approached police immediately. No reasons are assigned for
unreasonable delay in recording the statement of this witness and
therefore, his testimony is not above the board.
4. Learned Counsel then lastly submits that although th
prosecution claimed to have collected the CCTV camera, however,
CCTV footages were not produced before the Sessions Court. This
being so, the learned trial Court failed to appreciate the evidence
properly and wrongly recorded the finding of guilt, which is liable to
be quashed and set aside.
5. Mr. Kapadnis, learned APP, on the other hand, supported the
impugned judgment and order of conviction and would submit that
there being no merit in the appeal, the same is liable to be dismisse
6. We have carefully gone through the evidence of the prosecutio
witnesses with the help of the learned Counsel and the learned APP.
In our considered view, the prosecution has not been able to prove t
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guilt of the accused beyond all reasonable doubt. We propose to giv
reasons for the same.
7. Before adverting to the other evidence, we intend to appreciate
homicidal death first and then would like to go through the evidence
of other prosecution witnesses.
8. PW-5 Dr.Sadanand Sangram Bhise states in his evidence (Exhib
th
56) that on 8 March, 2015, he performed second autopsy over the
dead bodies of Abdul Aziz and Khairunisa. The cause of death of
Abdul Aziz was due to asphyxia due to drowning, whereas, according
to this witness, there were 23 injuries on the dead body of Khairunis
which are as under :
(1) First postmortem incision noted 52 cm in
length total 15 stitch starting from Manubrium
sterum to 5 cm above pubic symphysis.
(2) First postmortem incision noted 19 cm in
length. 7 stitch present over anterior part of frontal
bone region.
(3) Contusion of size 4X2 cm present over left
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side of chest below manimilary region, muscle
deep, dark red in colour.
(4) Contusion of size 1 X 0.5 cm present over
left side of nostril, muscle deep, dark red in colour.
(5) Contusion of size 2 X 1 cm over right
maxillary prominence, muscle deep, dark red in
colour.
(6) Contusion of size 1 X1 present over just
below right maxillary prominence, subcutaneous
deep, dark red in colour.
(7) Contusion of size of 1 X 0.5 cm present
over right lower lip, muscle deep dark in colour.
(8) Contusion of size 1 X 1 cm present over
right arm lower 1/3rd posteriorly, subcutaneous
deep, dark red in colour.
(9) Abrasion of size 0.5 cm in diameter present
over left breast lower lateral quadrant, red in
colour.
(10) Abrasion of size 0.5 cm in diameter below
the injury no. 9 dark red in colour.
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(11) Abrasion of size 1 X 1 cm present over
left side abdomen left hypochandrium, dark red in
colour.
(12) Abrasion of size 2 X 1 cm present over left
side abdomen left hypochandrium 3 cm below
injury no. 11, dark red in colour.
(13) Abrasion of size 1.5 X 1 cm present over 4
cm below and lateral to injury no. 12, dark red in
colour.
(14) Abrasion of size 3 X 0.5 cm present over
left lumber region oblique in direction, dark red in
colour.
(15) Contusion of size 3 X 3 cm present over
left side of chest wall infraclavicular region, dark
red in colour, muscle deep.
(16) Abrasion 0.5 cm over right infraclavicular
region dark red in colour.
(17) Contusion 1 X 1 cm over right elbow
cubital fosa subcutaneous deep, dark red in colour.
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(18) Two contusion of size 2 X 1 cm and 1.5 X
1 cm pressed over right shine of tibia middle 1/3rd,
muscle deep dark red in colour.
(19) Contusion of size 0.5 cm present over right
breast laterally, subcutaneous deep, dark red in
colour.
(20) Abrasion of size 1 X 1 cm and 2 X 1 cm
present over right side of chest, dark red in colour.
(21) Abrasion of size 0.2 cm in diameter over
right side of chest below 2 cm of injury no. 20,
dark red in colour.
(22) Abrasion of size 3 X 1 cm present over
upper lateral side of abdomen, dark red in colour.
(23) Abrasion of size 4 X 1 cm present over
upper lateral side of abdomen. Dark red in colour.
9. His evidence further shows that on examination of head, he
found the following injuries :
(1) There was under scalp contusion of size 14 X 11
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cm present over the right frontotemporal region. Scalp
deep dark red in colour.
(2) Under scalp contusion of size 12 X 9 cm present
over left fronto temporal region. Dark red in colour.
(3) Communicated fracture vault of skull dividing
into multiple pieces present at frontal and both parital
region. Pieces of fracture of bone has lacerated the
brain in frontal region and ports of bone fragments
found inside the brain.
(4) Laceration of meninges and brain at the site of
fracture area.
(5) Diffuse subdural and subarachnoid hemorrhages
present over both frontal parital and temporal region.
Dark red in colour.
(6) Patchy subarachnoid hemorrhage present over
base of brain and cerebellum, dark red in colour.
(7) Laceration of both frontal lobe anderiorly and
inferiorly, dark red in colour.
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10. The cause of death, according to this witness, was the head
injury with multiple blunt injuries over the body with asphyxia due to
drowning. As far as the death of Abdul Aziz is concerned, at this
stage, it cannot be held that whether the death was homicidal or
otherwise. However, it is apparent from the postmortem report of
deceased Khairunisa that she met a homicidal death. There is no
dispute on this count. This witness has proved the final cause of dea
of Abdul Aziz at Exhibit 62 while that of Khairunisa at Exhibit 63.
11. It is seemly to state here that the whole case of the prosecution
rests on the circumstantial evidence. Where a case totally hinges on
the circumstantial evidence, it is the duty of the Court to see that th
circumstances which lead towards the guilt of the accused have bee
fully established and they must lead to a singular conclusion that the
accused is guilty of the offence and rule out the possibilities which a
likely to allow the presumption of innocence of the accused.
1
12. In the case of Dharam Deo Yadav vs. State of U.P. the Hon'ble
Apex Court held as under :
1 2014 Cri. L.J. 2371 (S.C.)
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“Each and every incriminating circumstances must
be clearly established by reliable and clinching
evidence and the circumstances so proved must
form a chain of events from which the only
irresistible conclusion about the guilt of the accused
can be safely drawn and no other hypothesis against
the guilt is possible. Even when there is no eye
witness to support the criminal charge, but
prosecution has been able to establish the chain of
circumstances which is complete leading to
inference of guilt of accused and circumstances
taken collectively are incapable of explanation on
any reasonable hypothesis save of guilt sought to be
proved, accused may be convicted on the basis of
such circumstantial evidence.”
13. At the outset, we would like to make it clear that PW-1 Abdul
Rajjaq Ibrahim Tambe, informant (Exhibit 30), PW-2 Rashida Abdul
Razzak Tambe (Exhibit 40) are the parents of deceased Khairunisa.
Similarly, PW-3 Simin Sarfarz Khanjada (Exhibit 41) and PW-4 Sadaf
Vasim Murtuza (Exhibit 44) are the younger sisters of the deceased.
All these witnesses unisonly have deposed that the appellant used t
harass deceased and demand talaq or to pay him Rs. 7 lakhs.
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14. Incidentally, we may note here that the appellant-accused was
also charged under Section 304 -B of the IPC but came to be acquitt
by the learned Additional Sessions Judge inasmuch as the prosecutio
had failed to establish necessary essentials and requirements of Sec
304-B of the IPC. Therefore, the evidence of these witnesses cannot
be read with a sense of satisfaction.
15. Above all, if the FIR is read carefully, there is no allegation of
demand of dowry/ monies from the side of appellant-accused. This
finding is not at all assailed or challenged by the prosecution and
therefore, that finding of the acquittal under Section 304-B
attained finality.
16. According to the prosecution, PW-6 Nilesh Ganesh Sawant is a
star witness of the prosecution, who had seen the appellant-accused
the company of the deceased on the day of incident.
17. PW-6 Nilesh Ganesh Sawant states in his evidence (Exhibit 69)
that at the relevant time, he was entrusted with cleaning of the toile
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and bathrooms, which are adjacent to the sea beach of Shrivardhan
near Government Rest House. The Municipal Council Shrivardhan
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had allotted the said work to him. On 5 March, 2015 at about 4.00
p.m., he was outside the toilets at sea beach Shrivardhan. At about
5.00 p.m., one motorcycle rider alongwith one lady and one kid cam
at sea beach. The face of the said lady was open though she had
burkha. The motorcycle rider parked his motorcycle opposite to the
toilets and he alongwith the said lady and boy went towards the sea
beach.
th
18. It is his further evidence that on 6 March, 2015 at about 8.00
a.m., when he went to the toilets and bathrooms for cleaning, he
found people moving towards beach. He also went there and saw th
dead bodies of one lady and a kid. He remembered of having seen
that lady and boy on previous day alongwith the motorcycle rider.
th
is his further evidence that on 11 March, 2015, the police made an
enquiry with him and recorded his statement. He was also called at
District Sub-Jail Alibag, Tehsildar, Shrivardhan where in a t
identification parade, he identified the appellant-accused.
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19. The evidence of this material witness is fraught with infirmities
which are mainly thus. First of all, according to this witness, he had
seen the appellant -accused as a rider of the motorcycle and was ab
th
to identify him in test identification parade, which was held on 29
April, 2015 i.e. after more than one and a half month. Interestingly,
this witness has nowhere deposed in his substantive evidence that h
was able to capture the features, age, height and colour complexion
the appellant-accused when latter had parked the motorcycle oppos
the toilets. This witness maintains an eerie silence as to how he was
able to identify the appellant-accused after a period of more than on
and a half month.
20. Secondly, though this witness saw the dead bodies of
th
deceased Khairunisa and her son on 6 March, 2015, he did not
bother to go to the concerned police station and apprise of what
he had seen a day earlier to the incident. Rather he states in his
th th
cross-examination that since 6 March, 2015 till 11 March,
2015, he did not tell anybody that he had seen the appellant-
accused as a motorcycle rider and one lady and one small boy on
th
5 March, 2015 at about 5.00 p.m. at Shrivardhan beanch.
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21. This speaks in volume as to the conduct of this witness. This
witness had more than ample opportunity to inform the concerned
police station immediately or within a reasonable time as to what he
had witnessed a day prior to the incident. The delay of five days in
recording the statement and that too when the police approached
him, by all means should be frowned upon and needs to
questioned.
22. If, on the other hand, the evidence of PW-8 Baloji P
Nigudkar, Residential Nayab Tehsildar (Exhibit 75) is read carefully
and cautiously, then we see the prosecution in bad light.
23. According to this witness, she arranged the test identification
th
parade of accused on 29 April, 2015 with the help of six dummies.
She asked the appellant -accused whether he wanted to change his
clothes and after changing the clothes, the appellant-accused stood
between dummy accused Nos. 2 and 3.
24. It is her further evidence that accused was duly identified by
PW-6 Nilesh Ganesh Sawant. Accordingly, the memorandum
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panchnama was prepared and then she proved the panchnama at
Exhibit 81. The above said test identification parade is also not free
from blame for the ensuing reasons.
25. We have already pointed out from the evidence of PW-6 Nilesh
Ganesh Sawant that his evidence is absolutely silent as to the featur
age, height and colour complexion of the appellant-accused whom h
allegedly had seen a day prior to the incident.
26. What is disturbing is that even PW-8 Baloji Padma Nigudkar in
her evidence has nowhere deposed that having regard to the age,
height, colour complexion and features of the appellant-accused, sh
arranged dummies and it is only then and thereafter she conducted
test identification parade and asked the appellant-accused to stand
between dummies.
27. Thus, this being so, it could not have been possible for PW-6
Nilesh Ganesh Sawant to identify the appellant-accused and that too
after a lapse of period of more than one and a half month.
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28. Needless to say, we are not satisfied with the evidence of PW-6
Nilesh Ganesh Sawant qua test identification parade.
29. Even otherwise, we have given cogent and convincing reasons
doubt the testimony of PW-6 for more than one reason.
30. Apart from the above serious infirmities, we also note with
alacrity that though PW-7 investigating officer in his evidence claime
that CCTV footages were collected from the spot of incident but
those footages never saw day of light and admittedly we
produced before the learned Additional Sessions Judge. An adverse
inference on this count also needs to be drawn.
31. On re-appreciation of the evidence, the only inescapab
conclusion is that, it is the failure on the part of prosecution to prove
the guilt of the accused beyond all reasonable doubt. Wh
evidence brought on record in the form of circumstances
incapable of inference that it was the accused and accused alone, w
committed the murder of his wife. On a studied scrutiny
evidence on record, we are of the considered view that
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prosecution has not been able to prove that it was the accused alon
who authored the death of his wife and son.
32. In view of above, we pass the following order :
ORDER
i) The appeal is allowed;
th
ii) The impugned judgment and order dated 25 April,
2017 passed by the learned Additional Sessions Judg
Mangaon, District – Raigad in Sessions Case No. 22 of
2015 is quashed and set aside;
iii) The appellant is acquitted of the offence, with which
he is charged. The appellant is set at liberty forthwith, if
not required in any other case.
33. All concerned to act on the authenticated copy of this order.
V. G. BISHT, J. REVATI MOHITE DERE, J.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 916 OF 2017
Parvez Farukh Dalvi
Age- 32 years, Occ: Nil,
R/o. Surai, Tal.- Mhasla,
District – Raigad,
At present Nashik Jail …Appellant
Versus
State of Maharashtra
(through Shrivardhan Police Station)
Tal. Shrivardhan, District – Raigad,
(C.R. No. I-11/2015) … Respondent
……
Mr. Aniket Vagal a/w. Mr.Kunal Pednekar for the Appellant.
Mr. A.R.Kapadnis, APP for the Respondent -State.
……
CORAM : REVATI MOHITE DERE &
V. G. BISHT, JJ.
th
DATE : 29 June, 2022
JUDGMENT (PER: V.G.BISHT, J.)
1. This appeal has been preferred against the judgment
conviction and order of sentence passed by the learned Additional
Sessions Judge, Mangaon, District – Raigad in Sessions Case No. 22 o
2015 convicting the appellant-accused for the offence punis
under Section 302 of the Indian Penal Code (IPC) and sentencing him
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to undergo imprisonment for life and to pay fine of Rs.1
(Rupees One Thousand Only), in default, to further suffer simple
imprisonment for one month. However, the learned Addition
Sessions Judge acquitted the appellant-accused of the offen
punishable under Section 304-B of the IPC.
2. In short, the prosecution case runs as under :-
(a) Informant’s daughter, namely, Khairunisa Parvez
Dalvi (since deceased) was married to the appellant. It
th
is the case of the prosecution that on 6 March, 2015 at
about 9.30 pm., the brother-in-law of deceased called
informant and informed him that his daughter had been
to his house but did not return. However, informant-
father replied that the deceased had not come to his
residence. The informant alongwith his wife
immediately went to the matrimonial house of the
deceased, which was locked. From there, they went to
the house of in-laws of the deceased.
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(b) According to the prosecution, the informant later
on visited Masaba Police Station and from there went to
Shrivardhan Government Hospital and saw the dead
bodies of the deceased and grandson Abdul Aziz. The
informant lodged an FIR against the appellant, which
was registered by Shrivardhan Police Station under C.R.
No. 11 of 2015 for the offences punishable under
Sections 302 and 304-B of the IPC.
(c) The prosecution alleges that the appellant often
used to torture the deceased in order to compel her to
bring monies and also used to threaten to kill her.
Considering the conduct of the appellant, the informant
alleged that it was the appellant, who had killed the
deceased and his grandson with the help of some of his
associates at Shrivardhan beach by drowning them in
water.
(d) After registration of the above crime, the
investigation was taken up by PW-7 Maheshwar Reddy,
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the then Additional S.P. Gadchiroli. PW-7 investigating
officer got autopsy done over the dead bodies of the
deceased and her son, recorded statements of the
prosecution witnesses and also conducted Test
Identification Parade of the appellant. PW-7 investigating
officer also collected the Chemical Analyzer Reports,
CDR and CCTV footages. According to him, during the
course of investigation, it transpired that the appellant
had murdered both the victims i.e. wife and his son.
After completion of investigation, he forwarded the
chargesheet against the appellant-accused under Sections
302 and 304 -B of the IPC and the case was committed
to the Court of Sessions, Mangaon, District Raigad.
(e) To substantiate the charge against the appellant-
accused, the prosecution has examined as many as eight
witnesses and exhibited number of documents. The
accused was questioned under Section 313 of the Code
of Criminal Procedure (Cr.P.C.)about the incriminating
evidence and circumstances and the appellant-accused
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denied all of them as false and pleaded that a false case
has been filed against him and that on the ground of
suspicion, he has been arrested. According to him, he did
not commit the murder of his wife and son. Upon
appreciation of the oral evidence and the circumstances,
the trial Court convicted the appellant-accused for the
offence punishable under Section 302 of the IPC and
sentenced him in the manner stated hereinabove. Hence,
this appeal.
3. At the outset, Mr. Vagal, learned Counsel for the appellant-
accused, submits that the delay in filing the FIR has no
explained by the prosecution and therefore, on this ground alone, th
prosecution case is liable to be rejected. Learned Counsel then nex
submits that the only ground for conviction of the appellant is the
testimony of PW-6, who claimed of having seen the deceased person
th
on 5 March, 2015 at about 5.00 p.m. in the company of
th
appellant and further claimed to have seen the dead bodies on 6
March, 2015 at 7.30 a.m. in the morning. However, according to the
learned Counsel, PW-6 was silent till the police approached him on
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11 March, 2015 for recording his statement. The said witness kept
mum for five days. He being the only witness ought to
approached police immediately. No reasons are assigned for
unreasonable delay in recording the statement of this witness and
therefore, his testimony is not above the board.
4. Learned Counsel then lastly submits that although th
prosecution claimed to have collected the CCTV camera, however,
CCTV footages were not produced before the Sessions Court. This
being so, the learned trial Court failed to appreciate the evidence
properly and wrongly recorded the finding of guilt, which is liable to
be quashed and set aside.
5. Mr. Kapadnis, learned APP, on the other hand, supported the
impugned judgment and order of conviction and would submit that
there being no merit in the appeal, the same is liable to be dismisse
6. We have carefully gone through the evidence of the prosecutio
witnesses with the help of the learned Counsel and the learned APP.
In our considered view, the prosecution has not been able to prove t
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guilt of the accused beyond all reasonable doubt. We propose to giv
reasons for the same.
7. Before adverting to the other evidence, we intend to appreciate
homicidal death first and then would like to go through the evidence
of other prosecution witnesses.
8. PW-5 Dr.Sadanand Sangram Bhise states in his evidence (Exhib
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56) that on 8 March, 2015, he performed second autopsy over the
dead bodies of Abdul Aziz and Khairunisa. The cause of death of
Abdul Aziz was due to asphyxia due to drowning, whereas, according
to this witness, there were 23 injuries on the dead body of Khairunis
which are as under :
(1) First postmortem incision noted 52 cm in
length total 15 stitch starting from Manubrium
sterum to 5 cm above pubic symphysis.
(2) First postmortem incision noted 19 cm in
length. 7 stitch present over anterior part of frontal
bone region.
(3) Contusion of size 4X2 cm present over left
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side of chest below manimilary region, muscle
deep, dark red in colour.
(4) Contusion of size 1 X 0.5 cm present over
left side of nostril, muscle deep, dark red in colour.
(5) Contusion of size 2 X 1 cm over right
maxillary prominence, muscle deep, dark red in
colour.
(6) Contusion of size 1 X1 present over just
below right maxillary prominence, subcutaneous
deep, dark red in colour.
(7) Contusion of size of 1 X 0.5 cm present
over right lower lip, muscle deep dark in colour.
(8) Contusion of size 1 X 1 cm present over
right arm lower 1/3rd posteriorly, subcutaneous
deep, dark red in colour.
(9) Abrasion of size 0.5 cm in diameter present
over left breast lower lateral quadrant, red in
colour.
(10) Abrasion of size 0.5 cm in diameter below
the injury no. 9 dark red in colour.
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(11) Abrasion of size 1 X 1 cm present over
left side abdomen left hypochandrium, dark red in
colour.
(12) Abrasion of size 2 X 1 cm present over left
side abdomen left hypochandrium 3 cm below
injury no. 11, dark red in colour.
(13) Abrasion of size 1.5 X 1 cm present over 4
cm below and lateral to injury no. 12, dark red in
colour.
(14) Abrasion of size 3 X 0.5 cm present over
left lumber region oblique in direction, dark red in
colour.
(15) Contusion of size 3 X 3 cm present over
left side of chest wall infraclavicular region, dark
red in colour, muscle deep.
(16) Abrasion 0.5 cm over right infraclavicular
region dark red in colour.
(17) Contusion 1 X 1 cm over right elbow
cubital fosa subcutaneous deep, dark red in colour.
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(18) Two contusion of size 2 X 1 cm and 1.5 X
1 cm pressed over right shine of tibia middle 1/3rd,
muscle deep dark red in colour.
(19) Contusion of size 0.5 cm present over right
breast laterally, subcutaneous deep, dark red in
colour.
(20) Abrasion of size 1 X 1 cm and 2 X 1 cm
present over right side of chest, dark red in colour.
(21) Abrasion of size 0.2 cm in diameter over
right side of chest below 2 cm of injury no. 20,
dark red in colour.
(22) Abrasion of size 3 X 1 cm present over
upper lateral side of abdomen, dark red in colour.
(23) Abrasion of size 4 X 1 cm present over
upper lateral side of abdomen. Dark red in colour.
9. His evidence further shows that on examination of head, he
found the following injuries :
(1) There was under scalp contusion of size 14 X 11
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cm present over the right frontotemporal region. Scalp
deep dark red in colour.
(2) Under scalp contusion of size 12 X 9 cm present
over left fronto temporal region. Dark red in colour.
(3) Communicated fracture vault of skull dividing
into multiple pieces present at frontal and both parital
region. Pieces of fracture of bone has lacerated the
brain in frontal region and ports of bone fragments
found inside the brain.
(4) Laceration of meninges and brain at the site of
fracture area.
(5) Diffuse subdural and subarachnoid hemorrhages
present over both frontal parital and temporal region.
Dark red in colour.
(6) Patchy subarachnoid hemorrhage present over
base of brain and cerebellum, dark red in colour.
(7) Laceration of both frontal lobe anderiorly and
inferiorly, dark red in colour.
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10. The cause of death, according to this witness, was the head
injury with multiple blunt injuries over the body with asphyxia due to
drowning. As far as the death of Abdul Aziz is concerned, at this
stage, it cannot be held that whether the death was homicidal or
otherwise. However, it is apparent from the postmortem report of
deceased Khairunisa that she met a homicidal death. There is no
dispute on this count. This witness has proved the final cause of dea
of Abdul Aziz at Exhibit 62 while that of Khairunisa at Exhibit 63.
11. It is seemly to state here that the whole case of the prosecution
rests on the circumstantial evidence. Where a case totally hinges on
the circumstantial evidence, it is the duty of the Court to see that th
circumstances which lead towards the guilt of the accused have bee
fully established and they must lead to a singular conclusion that the
accused is guilty of the offence and rule out the possibilities which a
likely to allow the presumption of innocence of the accused.
1
12. In the case of Dharam Deo Yadav vs. State of U.P. the Hon'ble
Apex Court held as under :
1 2014 Cri. L.J. 2371 (S.C.)
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“Each and every incriminating circumstances must
be clearly established by reliable and clinching
evidence and the circumstances so proved must
form a chain of events from which the only
irresistible conclusion about the guilt of the accused
can be safely drawn and no other hypothesis against
the guilt is possible. Even when there is no eye
witness to support the criminal charge, but
prosecution has been able to establish the chain of
circumstances which is complete leading to
inference of guilt of accused and circumstances
taken collectively are incapable of explanation on
any reasonable hypothesis save of guilt sought to be
proved, accused may be convicted on the basis of
such circumstantial evidence.”
13. At the outset, we would like to make it clear that PW-1 Abdul
Rajjaq Ibrahim Tambe, informant (Exhibit 30), PW-2 Rashida Abdul
Razzak Tambe (Exhibit 40) are the parents of deceased Khairunisa.
Similarly, PW-3 Simin Sarfarz Khanjada (Exhibit 41) and PW-4 Sadaf
Vasim Murtuza (Exhibit 44) are the younger sisters of the deceased.
All these witnesses unisonly have deposed that the appellant used t
harass deceased and demand talaq or to pay him Rs. 7 lakhs.
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14. Incidentally, we may note here that the appellant-accused was
also charged under Section 304 -B of the IPC but came to be acquitt
by the learned Additional Sessions Judge inasmuch as the prosecutio
had failed to establish necessary essentials and requirements of Sec
304-B of the IPC. Therefore, the evidence of these witnesses cannot
be read with a sense of satisfaction.
15. Above all, if the FIR is read carefully, there is no allegation of
demand of dowry/ monies from the side of appellant-accused. This
finding is not at all assailed or challenged by the prosecution and
therefore, that finding of the acquittal under Section 304-B
attained finality.
16. According to the prosecution, PW-6 Nilesh Ganesh Sawant is a
star witness of the prosecution, who had seen the appellant-accused
the company of the deceased on the day of incident.
17. PW-6 Nilesh Ganesh Sawant states in his evidence (Exhibit 69)
that at the relevant time, he was entrusted with cleaning of the toile
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and bathrooms, which are adjacent to the sea beach of Shrivardhan
near Government Rest House. The Municipal Council Shrivardhan
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had allotted the said work to him. On 5 March, 2015 at about 4.00
p.m., he was outside the toilets at sea beach Shrivardhan. At about
5.00 p.m., one motorcycle rider alongwith one lady and one kid cam
at sea beach. The face of the said lady was open though she had
burkha. The motorcycle rider parked his motorcycle opposite to the
toilets and he alongwith the said lady and boy went towards the sea
beach.
th
18. It is his further evidence that on 6 March, 2015 at about 8.00
a.m., when he went to the toilets and bathrooms for cleaning, he
found people moving towards beach. He also went there and saw th
dead bodies of one lady and a kid. He remembered of having seen
that lady and boy on previous day alongwith the motorcycle rider.
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is his further evidence that on 11 March, 2015, the police made an
enquiry with him and recorded his statement. He was also called at
District Sub-Jail Alibag, Tehsildar, Shrivardhan where in a t
identification parade, he identified the appellant-accused.
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19. The evidence of this material witness is fraught with infirmities
which are mainly thus. First of all, according to this witness, he had
seen the appellant -accused as a rider of the motorcycle and was ab
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to identify him in test identification parade, which was held on 29
April, 2015 i.e. after more than one and a half month. Interestingly,
this witness has nowhere deposed in his substantive evidence that h
was able to capture the features, age, height and colour complexion
the appellant-accused when latter had parked the motorcycle oppos
the toilets. This witness maintains an eerie silence as to how he was
able to identify the appellant-accused after a period of more than on
and a half month.
20. Secondly, though this witness saw the dead bodies of
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deceased Khairunisa and her son on 6 March, 2015, he did not
bother to go to the concerned police station and apprise of what
he had seen a day earlier to the incident. Rather he states in his
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cross-examination that since 6 March, 2015 till 11 March,
2015, he did not tell anybody that he had seen the appellant-
accused as a motorcycle rider and one lady and one small boy on
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5 March, 2015 at about 5.00 p.m. at Shrivardhan beanch.
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21. This speaks in volume as to the conduct of this witness. This
witness had more than ample opportunity to inform the concerned
police station immediately or within a reasonable time as to what he
had witnessed a day prior to the incident. The delay of five days in
recording the statement and that too when the police approached
him, by all means should be frowned upon and needs to
questioned.
22. If, on the other hand, the evidence of PW-8 Baloji P
Nigudkar, Residential Nayab Tehsildar (Exhibit 75) is read carefully
and cautiously, then we see the prosecution in bad light.
23. According to this witness, she arranged the test identification
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parade of accused on 29 April, 2015 with the help of six dummies.
She asked the appellant -accused whether he wanted to change his
clothes and after changing the clothes, the appellant-accused stood
between dummy accused Nos. 2 and 3.
24. It is her further evidence that accused was duly identified by
PW-6 Nilesh Ganesh Sawant. Accordingly, the memorandum
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panchnama was prepared and then she proved the panchnama at
Exhibit 81. The above said test identification parade is also not free
from blame for the ensuing reasons.
25. We have already pointed out from the evidence of PW-6 Nilesh
Ganesh Sawant that his evidence is absolutely silent as to the featur
age, height and colour complexion of the appellant-accused whom h
allegedly had seen a day prior to the incident.
26. What is disturbing is that even PW-8 Baloji Padma Nigudkar in
her evidence has nowhere deposed that having regard to the age,
height, colour complexion and features of the appellant-accused, sh
arranged dummies and it is only then and thereafter she conducted
test identification parade and asked the appellant-accused to stand
between dummies.
27. Thus, this being so, it could not have been possible for PW-6
Nilesh Ganesh Sawant to identify the appellant-accused and that too
after a lapse of period of more than one and a half month.
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28. Needless to say, we are not satisfied with the evidence of PW-6
Nilesh Ganesh Sawant qua test identification parade.
29. Even otherwise, we have given cogent and convincing reasons
doubt the testimony of PW-6 for more than one reason.
30. Apart from the above serious infirmities, we also note with
alacrity that though PW-7 investigating officer in his evidence claime
that CCTV footages were collected from the spot of incident but
those footages never saw day of light and admittedly we
produced before the learned Additional Sessions Judge. An adverse
inference on this count also needs to be drawn.
31. On re-appreciation of the evidence, the only inescapab
conclusion is that, it is the failure on the part of prosecution to prove
the guilt of the accused beyond all reasonable doubt. Wh
evidence brought on record in the form of circumstances
incapable of inference that it was the accused and accused alone, w
committed the murder of his wife. On a studied scrutiny
evidence on record, we are of the considered view that
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prosecution has not been able to prove that it was the accused alon
who authored the death of his wife and son.
32. In view of above, we pass the following order :
ORDER
i) The appeal is allowed;
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ii) The impugned judgment and order dated 25 April,
2017 passed by the learned Additional Sessions Judg
Mangaon, District – Raigad in Sessions Case No. 22 of
2015 is quashed and set aside;
iii) The appellant is acquitted of the offence, with which
he is charged. The appellant is set at liberty forthwith, if
not required in any other case.
33. All concerned to act on the authenticated copy of this order.
V. G. BISHT, J. REVATI MOHITE DERE, J.
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