10 Jun 2121
Case : Akbar Khan Ajmer Khan & Ors. v. State of Maharashtra Criminal Appeal No. 570 of 2014
Court : Bombay High Court
Bench : Justice Sadhana S. Jadhav & Justice N. R. Borkar
Decided on : 10 Jun 2121
Sections 302, 120-B r/w 34 of Indian Penal Code 1860
Brief Facts & Procedural History
1. Accused 1, Akbar Khan was married to Afsana Begum and he was working as Hawaldar in Light Regiment and was residing in Military Quarters, Deolali Camp, Nashik. His duty hours were from 6:30 AM to 1:00 PM and from 3 PM to 6 PM.
2. The incident in question occurred on 7 September 2012 when the wife of the accused was taken to Medical Hospital by Subhedar Prasad and Nursing Assistant, Naik Mehetre at about 6:30 PM. Deceased Afsana was found unconscious at her family quarters and her pulse could not be recorded. She was examined by major Satish Dhage-P.W.1 and he couldn't find any movement and also tried to revive but there was no response. Hence, he declared Afsana dead and P.W.1 stated that she was brought in dead condition. He addressed a letter to the police station reporting case of death and the certificate issued by P.W.1 mentions external examination that there were some multiple irregular abrasions on her anterior aspect of the neck, especially the middle of the neck region and there was blood stains and small abrasions around the mouth, cause of death was not known, according to P.W.1. At Devlali Camp, accidental death was registered at about 11:30 PM on 7 September 2012 at station diary and the prosecution examined 20 witnesses.
3. P.W.20-Investigating Officer, Anil Pawar, on the investigation, found some domestic articles scattered and pillows were lying down and he suspected the husband of the deceased to be the perpetrator.
4. The investigating officer realized that scene of theft was created in the house and he inquired the medical officer about the cause of death and medical officers noted that the cause of death is asphyxia due to throttling which was admitted by accused-1. Neighbour Hawaldar Hukum Singh-P.W.7 was also examined and he told that a lady teacher used to visit House of Hukum Singh to take tuition and that teacher had seen accused on his bicycle at about 4:30 to 4:45 PM and the senior of accused also called him as he had not reported on time. Based on all these suspicions, P.W.2 lodged the FIR at Deolali Camp, Police Station against accused-1 for offences punishable under section 302 of Indian Penal Code 1860.
5. Accused-2 is the nephew of accused-1 and on 22nd August, accused-1 went to Bhind, M.P. to meet his in-laws and has informed his nephew that he was in love with his sister-in-law and therefore intended to eliminate Afsana and they hired two boys, accused-3 and 4, who were willing to do this job and call records to substantiate this that accused number two and two other people were in Nashik between 11:00 AM to 4:00 PM on 7 September 2012. Therefore, Ad hoc District Judge-3 and Additional Sessions Judge, Nashik convicted the accused of the offence punishable under section 302, 120-B r/w 34 of Indian Penal Code 1860, against which the accused preferred an appeal before the honourable Bombay High Court.
Issue of the Case
Whether the trial court was right in convicting the accused based on circumstantial evidence only without any direct proof or evidence?
The Observations of the Court
1. The Honourable Bombay High Court noted that chains of the events which are established by the prosecution are as follows:
a. Accused-1 left the place of service at 12:15 PM under the pretext of attending the parent-teacher meeting.
b. He reached home and went to Deolali railway station to meet three people.
c. He did not receive a call from the seniors and received the 4th call and informed that a cycle was punctured and therefore there will be a delay in reporting to the job.
d. The main door was locked from inside and it was presumed that accused-1 has taken an exit from the house through the rear door at about 4:15 PM.
e. Photographs with Sitara and daily communication were established that he was in an intimate relationship with her sister-in-law.
f. The phone number used by Sitara was in the name of her father to camouflage their regular calls and conceal it from Afsana.
g. Soon after the accused left the house, his wife was found dead.
h. The cause of death was declared asphyxia due to throttling and smothering and there were neck injuries.
i. accused deliberately created a scene of theft in his house.
2. Ms. Saini who takes tuition didn't see anyone entering the house and neither rear door was broke open and thus there were two possibilities, either the accused has taken the aid of some other person to eliminate Afsana or after killing his wife he took an exit from the rear door.
3. The Honourable Bombay High Court discarded the contention of defense counsel that the trial of accused-1 is totally vitiated and matter has to be remanded to the concerned court according to Army Rules 1950 which talks about criminal cases affecting persons who belongs to armed forces for which they referred to Rule 3 and 4 which states that when a military official commits any crime then he is liable to be tried by Court Martial and magistrate shall not proceed, until and unless he is requested to do so by appropriate military authority and if magistrate is looking into the matter then in that case he should give a written notice to the commanding officer of the accused, and also referred to section (i) which talk about ‘active service’ and referred to the judgment of Supreme Court in Balbir Singh v. State of Punjab, 1995 SCC (1) 90, which has clarified the position of law with respect to section 70 of the Army Act, 1950 and Section 72 of Air Force Act, 1950 which is similar to section 70 of Army Act, 1950 and court noted down that it lays down a clear procedure that when a person is charged with the offense while on active service, he shall be deemed to be guilty of an offense and could be tried by Court Martial irrespective of the fact that victim was not subject to military, naval or Air Force law, and further referred to the judgment of Madan Lal v. Union of India, (2002) 10 SCC 185, where the Supreme Court held that in the light of section 70 of the Army Act, 1950, it is clear that when a person commits an offense against a person who is not subject to military, navel or Air Force law then he shall not be considered guilty under this act and cannot be tried by Court Martial and also refer to the judgment of Sandeep Sanjay Vithal v. State of Maharashtra, 2004 Cri. LJ 3678, where the apex court reiterated the same principle and further noted down that the bare reading of sections 69 and 70 of the Army Act, 1950 makes it very much clear that the matter is within the jurisdiction of Court Martial or not is dependent on the fact that the army personnel is “on active service” or not. Active service is defined as when a person is either attached or engaged in some military operation against an enemy or is attached to a force which is an occupation of a foreign country and merely because the person has joined the military services doesn't mean that he could be on the active service within the meaning of Army Act, 1950.
4. The Honourable Bombay High Court further noted down that the present case is a clear case of circumstantial evidence and refer to the judgment of the honourable Supreme Court in Sarbir Singh v. the State of Punjab, 1993 SCC Supp (3) 41, in which Supreme Court referred to the case of Reg. v. Hodge, [(1838) 2 Lewin 227], wherein it was said that the burden is on the prosecution to prove the chain of events and that chain must probe with all human probability that the offences committed by the accused but the court is also under a duty to consider all the chain of facts along with the motive which is pressed upon by the prosecution and also noted that existence of a motive is the very important factor in the process of presumptive reasoning in the case of circumstantial evidence.
5. The Honourable Bombay High Court finally came to the conclusion that circumstances clearly show that Afsana had died homicidal death at the hands of accused-1 and it was premeditated in such a way to prove it as a scene of theft and motive is also very clear from the evidence recovered that accused-1 wanted to marry his sister-in-law, Sitara by eliminating his wife and for accused-2 there is no material on record which establish the guilt and statement of accused-1 cannot be relied upon while in remand in police custody.
The Decision Held by the Court
1. Ad hoc District Judge-3 and Additional Session Judge, Nashik were right in convicting accused-1, and their order dated 23rd May 2015 is upheld.
2. Accused two is acquitted of all the charges