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Bombay High Court
Saiyyad Musaddik Vahiduddin Kadri @ … vs The State Of Maharashtra on 23 April, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
Digitally signed
by SHAGUFTA
SHAGUFTA QUTBUDDIN
2025:BHC-AS:18227-DB
PATHAN
QUTBUDDIN
Date:
PATHAN 2025.04.23 APEAL-1025-2019.doc
17:19:08
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1025 OF 2019
Saiyyad Musaddik Vahiduddin Kadri @
Imran Mansuri Hasani,
Age: 58 years, Occ.: Nil,
R/o. 1603, Zainab Manzil, Khadia Street,
Two Tank, Mumbai-400 008
Presently in Yerwada Central Prison,
... Appellant
Pune
Versus
The State of Maharashtra
Through Mira Road Police Station ... Respondents
Mr. Tehwar Khan Pathan a/w Mr. Khan Ishrat Ali Azhar Ali and
Mr. Mohammad Ahmed Khan for the Appellant
Mrs. P. P. Shinde, A.P.P for the Respondent-State
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 26th MARCH 2025
PRONOUNCED ON : 23rd APRIL 2025
JUDGMENT (Per Revati Mohite Dere, J.) :
1 By this appeal, the appellant has assailed the judgment
and order dated 28th March 2019, passed by the learned
Additional Sessions Judge, Thane, in Sessions Case No.29/2013,
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convicting him for the offence punishable under Section 302 of
the Indian Penal Code (‘IPC‘) and sentencing him to suffer
imprisonment for life and to pay a fine of Rs.5,000/- in default, to
suffer rigorous imprisonment for one month.
2 The facts as are necessary to deal with the case are-
It is the prosecution case that between 8:00 p.m on
14th August 2003 and 7:35 a.m on 15 th August 2003, the
appellant committed the murder of one scrap vendor-Julfikar
Umarkhan with a weapon or sharp edged knife and be-headed the
said person and set him ablaze by pouring kerosene or a like
substance. The body of the person was found in a bathroom in a
flat, being Flat No. 302 of Sai Aashiyana Co-op. Society, A-Wing,
Mira Road, Thane. It is further the prosecution case that the said
act was done by the appellant to conceal his identity, by showing
that he was murdered. The object/motive was to avoid court
proceedings and cases which the appellant was facing.
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The act came to light, when the neighbours saw
smoke billowing out of the said flat. Fire-brigade was called and
the fire in the bathroom was doused. A headless dead body was
found in the bathroom. On inquiry, it was learnt that the flat
belonged to Saiyyad Zuber Kadri, who was residing in Saudi.
Inquiry also revealed that Saiyyad’s brother-Musaddik (appellant)
was residing in the said flat for about a year, alone, and that the
appellant’s another brother was residing in a nearby building. It
appears that in the inquiry, the appellant’s brother-Mansoor Kadri
had disclosed to the police that his brother was staying in the flat
in question. PW2-Avinash Bhamare, PI attached to Mira Road
Police Station, Mumbai, lodged an FIR vide C.R. No. 169/2003
(Exhibit 30) as against unknown person. Spot panchanama and
inquest panchanama were done and after investigation, the
police filed an `A’ Summary report in 2005 as the perpetrator of
the crime, could not be found.
It is the prosecution case that the petitioner after
committing the said act in 2003, went to reside at Malegaon from
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2003 to 2006 and thereafter to Hyderabad between 2006 to
2010, to avoid his arrest.
It appears that the appellant was arrested on 6 th
October 2010 by ATS, Mumbai (Kalachowky) in C.R. No.
23/2010 for the alleged offences punishable under Sections 3, 25
of the Indian Arms Act. It is during the appellant’s interrogation
in the said case, that the police discovered that the appellant had
killed someone in 2003 and portrayed to the police that it was he,
who was killed and that the same was done by the appellant, to
avoid facing prosecution in cases registered against him. Pursuant
thereto, the police re-opened the case i.e. C.R. No.169/2003
since an `A’ Summary was filed in the said case. The appellant
came to be arrested in the said case and was remanded to custody
in C.R. No. 169/2003. After investigation, charge-sheet was filed
in the said case against the appellant for the alleged offences
punishable under Sections 302 and 201 of the IPC in the District
and Sessions Court, Thane, on 7th January 2013.
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Since the offence under Section 302 of the IPC was
triable by the Court of Sessions, the case came to be transferred
to the Court of Sessions for trial.
Charge came to be framed against the appellant, to
which, he pleaded not guilty and claimed to be tried.
The prosecution, in support of its case, examined as
many as 14 witnesses- PW1-Kayamuddin Fakir Mohd. Shaikh,
who drew the spot panchanama and inquest panchanama, which
are at Exhibits 21 and 22; PW2-PI Avinash Bhagwan Bhamare,
the first informant who came to the spot on 15 th August 2003, on
learning of smoke coming out from the flat in question. PW2-
Avinash lodged the FIR (Exhibit 30); PW3-Mohd. Kuber Alam
Sadik Husein, who had seen the appellant a week or two prior to
the incident in the said flat, owned by the appellant’s brother;
PW4-Mohammad Afzal Haji Mohd. Akbar Shaikh, who had
learnt that the dead body was of the appellant; PW5-Nafis Ahmed
Nasiruddin Bhaldar, the President of the Society in which the flat
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was situated; PW6-Mohd. Faruk Shaikh Hasan Mohd, who saw
the smoke billowing from the flat owned by the appellant’s
brother; PW7-Dr. Ramchandra Mhasu Dhotre, who issued the
Death Certificate (Exhibit 50) and the post-mortem report
(Exhibit 51); PW8-Dr. Mohammed Ismail Mehndi Hasan Ansari,
ENT Surgeon who performed septoplasty on the appellant on
26th August 2003; PW9-Riyaz Pasha Patel. For what purpose the
said witness was sought to be examined by the prosecution, is far
from clear. Infact, since the said witness deposed in his
examination-in-chief that he did not know the accused person
before the Court, the said witness ought to have been cross-
examined by the Prosecutor and declared the said witness as
hostile. However, the same has not been done. PW10-Waqar
Ahmed Mohd. Yusuf, who had seen the appellant in the hospital
of PW6-Mohd. Faruk Shaikh in 2003 (Infact, nothing has come
on record to show that PW6 owns a hospital. It appears that
PW6 has a chicken shop). He has stated that the appellant
introduced himself as Imran Kadri; PW11-Bhimrao Savale Tele,
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API who signed the spot panchanama and inquest panchanama at
Exhibits 21 and 22 respectively. The said officer handed over the
investigation to PI Shyamkumar Nipunge; PW12-PI Shyamkumar
Bhikaji Nipunge, who recorded the statements of witnesses,
collected fingerprints, prepared panchanama and did
correspondence with the Chemical Analyser (CA) for DNA
testing; PW13-Rajendra Sopanrao Ghule, Sr. PI, the subsequent
Investigating Officer, who collected the Call Detail Records of the
appellant and his relatives and sent the same to the Forensic
Science Laboratory; and PW14-Mustak Ahmed Shaikh Sadar, Sr.
PI who filed an `A’ Summary report in the year 2005, which was
later re-opened in 2010.
The defence of the appellant was that of total denial
and false implication.
After recording the 313 statement of the appellant
and after hearing the learned counsel for the respective parties,
the learned Judge convicted the appellant as stated aforesaid in
para 1 of the judgment.
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3 At the outset, we may note that the prosecution case
rests entirely on circumstantial evidence. The law relating to a
case resting on circumstantial evidence is well settled. The Apex
Court in the case of Hanumant Govind Nargundkar vs. State of
Madhya Pradesh1 in para 12 has observed as under:
“12. It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as
to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and
it must be such as to show that within all human probability
the act must have been done by the accused…….”
4 Similarly, in Sharad Birdhichand Sarda vs State of
Maharashtra2, the Apex Court has held that the onus is on the
prosecution to prove that the chain of circumstance is complete
and that falsity or untenability of the defence set-up by the
accused, cannot be made the basis for ignoring any serious
1 1952 SCR 1091 : AIR 1952 SC 343 : (1952) 2 SCC 71
2 (1984) 4 SCC 116
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infirmity or lacunae in the case of the prosecution. The Apex
Court in para 153 then proceeded to indicate the conditions
which must be fully established before a conviction can be made
on the basis of the circumstantial evidence. The same are as
under:
“(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ‘must or should’ and not ‘may be’
established. There is not only a grammatical but a legal
distinction between ‘may be proved’ and “must be or should
be proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra3 where the following
observations were made: [SCC para 19, p. 807 : SCC (Cri)
p. 1047]
Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between ‘may be’ and ‘must
be’ is long and divides vague conjectures from sure
conclusions.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
3 (1973) 2 SCC 793
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(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.”
5 Thus, in a case of circumstantial evidence, the onus is
on the prosecution to establish the incriminating circumstances, by
adducing reliable, cogent and legally admissible evidence. The
circumstances so proved must form a complete chain of evidence,
on the basis of which, no conclusion other than the one of guilt of
the accused can be arrived at.
6 We have given our anxious consideration to the
submissions advanced by the learned counsel for the appellant and
learned A.P.P for the State and after going through the evidence on
record, and keeping in mind the cardinal principles to be
considered in a case resting on circumstantial evidence, we find
that in the present case, the prosecution has failed to prove the
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circumstances against the appellant, beyond reasonable doubt, for
the reasons spelt out herein-under.
7 The fact, that a be-headed body was found in the flat in
question on 15th August 2010, the same is not seriously disputed
by the appellant. The only question that arises for consideration
is, who was responsible for the same and whether the prosecution
has proved its case, by adducing cogent, legal and admissible
evidence on record, that it was the appellant and the appellant
alone, who was responsible for the injuries caused to the person
who was found in the flat.
8 At this juncture, we may note, that the prosecution has
not been able to establish the identity of the person who was
actually found dead in the flat, although, it is the prosecution
case,that the person was one scrap vendor-Julfikar Umarkhan.
Although, the charge against the appellant is that of having
committed the murder of Julfikar Umarkhan, the prosecution has
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not brought on record any evidence to show that the dead body
was that of Julfikar Umarkhan, inasmuch as, no witness has been
examined to show that the said person was missing since that day.
Neither has the prosecution examined the relatives of Julfikar
Umarkhan. Infact, on what basis, the prosecution has claimed that
the dead body was of one Julfikar, is not clear, as no evidence has
been adduced by the prosecution in this regard.
9 Be that as it may, the prosecution relies essentially on
two circumstances qua the appellant i.e. alleged last seen theory
and the fact that the appellant was staying in the flat in question
i.e. Flat No. 302 of Sai Aashiyana Co-op. Society, A-Wing, Mira
Road, Thane.
10 As far as the evidence of last seen is concerned, the
prosecution seeks to place reliance on the evidence of PW3-Mohd.
Kuber Alam Sadik Husein; PW4-Mohammad Afzal Haji Mohd.
Akbar Shaikh; PW5-Nafis Ahmed Nasiruddin Bhaldar; and PW6-
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Mohd. Faruk Shaikh Hasan Mohd.
11 PW3-Mohd. Kuber Alam Sadik Husein, in his evidence,
deposed that the appellant was residing with his family on the 3 rd
floor of Sai Aashiyana in Flat No. 302; that the said flat was
owned by appellant’s brother-Saiyyad Musaddik; that he was
residing there, for about one year prior to the incident; that the
appellant would not talk to anybody and that he had seen the
appellant a week or two before the incident and had not seen him
thereafter. The said witness was residing in the very same building
in Flat No. 104. According to PW3-Mohd. Kuber, on 15 th August
2003, after Namaaz, he came and slept at home at 6:00 a.m; that
one Dhanbahaddur knocked on his door at about 7:30 a.m and
asked him to come on the third floor; that he went on the third
floor and saw the fire-brigade personnel and police present at the
spot, that smoke was coming out from Flat No.302; and that the
police entered the room and saw one dead body. The said
evidence which has come in the examination-in-chief, at the
highest, would reveal that he had seen the appellant a week or two
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before the incident and not thereafter. There is no evidence
whatsoever to show that the appellant was last seen with the
deceased.
12 PW4-Mohammad Afzal Haji Mohd. Akbar Shaikh, in
his evidence, has stated that he resides in Sai Aashiyana Society in
Flat No. A-402 since 2003; that the appellant was residing on the
third floor; that one dead person was found inside the said flat on
15th August 2003; that there was rumour that the dead body was
that of the appellant and that the head was cut from the torso.
The said witness has further stated that he learnt after a couple of
years that the dead body was not of the appellant; and, that he
learnt, that the appellant had committed a murder in the flat, to
conceal his identity. The said evidence does not, in any way,
further the prosecution case and cannot be said to be last seen
evidence.
13 PW5-Nafis Ahmed Nasiruddin Bhaldar has deposed
that he is residing in Flat No. A-301 at Sai Aashiyana for about 22
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years; that appellant’s brother had a flat bearing No. A-302; that
the appellant and his wife had come to reside in the said flat in
2002; and that thereafter, the appellant’s children and wife started
residing elsewhere and the appellant was residing alone. PW 5-
Nafis Ahmed has further stated that on 15 th August 2003, his
neighbour Khayyam informed him at about 6:45 a.m that smoke
was coming out from Flat No. 302; that a fire-brigade came there
and that one headless body was found in the said flat. He has
stated that the appellant’s brother came there and informed that it
was the appellant’s dead body. He has further stated that he
learnt that the appellant was arrested in a bomb blast case in 2010
and that he had done the act in 2003, only to conceal his identity.
The said evidence also cannot qualify as last seen and as such,
cannot be considered.
14 PW6-Mohd. Faruk Shaikh Hasan Mohd., in his
evidence, has stated that he was residing on the second floor at Sai
Aashiyana Building; that on 15th August 2003 at 6:00 a.m, he
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heard shouts and went on the third floor; that he saw smoke
coming out of Flat No. 302; that there were policemen and fire-
brigade personnel; and that there was one dead body found in the
room. He has stated that the appellant was residing in the said
flat. This is all what the said witness has deposed. This evidence
also cannot be termed as ‘last seen evidence’. Last seen evidence
means evidence of witnesses which reveal that the deceased was
last seen in the company of the accused. This is not the case here.
None of the witnesses had seen the deceased with the appellant.
15 Admittedly, there is no recovery of either any
weapon/clothes of the appellant or the head of the deceased
person.
16 As far as PW8-Dr. Mohammed Ismail Mehndi Hasan
Ansari, ENT Surgeon is concerned, he was examined by the
prosecution to show that the appellant had gone to his clinic on
26th August 2003 for his nose surgery. The said witness, in his
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examination-in-chief has stated that the appellant had disclosed
his name as Imran Abdulla Shaikh and that he had come from
Janjira Murud, Raigad. PW8-Dr. Ansari has further deposed that
the accused had nasal obstruction and headache, pursuant to
which, he performed septoplasty on the appellant on 26 th August
2003 and after surgery, the appellant had come for follow-up
treatment to him upto 2006. There is nothing in the said
evidence to show that the septoplasty was done on the appellant
resulting in any change in his facial features or to disguise his
identity. It is not even the prosecution case, that the appellant had
changed his facial features to prevent his identification. Thus, the
evidence of PW8-Dr. Ansari, does not, in any way, further the
prosecution case.
17 The evidence of PWs 3 to 6 is also relied upon by the
prosecution to show that the appellant was residing in the flat in
question and therefore, according to the prosecution, the burden
would lie on the appellant of proving the fact, especially within
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his knowledge (Section 106 of the Evidence Act). It is the
prosecution case that the evidence of PWs 3 to 6 clearly shows
that the appellant was residing in the said flat at the relevant time
and that the appellant had failed to give any plausible explanation
to show to the contrary i.e. that he was not residing in the said
flat.
18 The Apex Court in the case of Nagendra Sah vs. State
of Bihar4, in paras 22 and 23 has observed as under:
“22. Thus, Section 106 of the Evidence Act will apply to
those cases where the prosecution has succeeded in
establishing the facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts which are within the special
knowledge of the accused. When the accused fails to
offer proper explanation about the existence of said
other facts, the court can always draw an appropriate
inference.
23. When a case is resting on circumstantial evidence, if
the accused fails to offer a reasonable explanation in
discharge of burden placed on him by virtue of Section4 (2021) 10 SCC 725
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APEAL-1025-2019.doc106 of the Evidence Act, such a failure may provide an
additional link to the chain of circumstances. In a case
governed by circumstantial evidence, if the chain of
circumstances which is required to be established by
the prosecution is not established, the failure of the
accused to discharge the burden under Section 106 of
the Evidence Act is not relevant at all. When the chain
is not complete, falsity of the defence is no ground to
convict the accused.”
19 It appears that the learned trial Judge has convicted
the appellant relying greatly on the fact, that the appellant had
not afforded any explanation to show that he was not residing in
the flat in question. It is well settled that the prosecution cannot
absolve itself from proving the initial burden cast upon them i.e.
of proving its case beyond reasonable doubt against the appellant.
It is only when the chain is complete that Section 106 of the
Evidence Act can be invoked as an additional link to the
circumstances which have already been proved by the
prosecution. Failure to offer a reasonable explanation in
discharge of the burden placed on the appellant by virtue of
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Section 106 of the Evidence Act, can only be considered as an
additional link to the chain of circumstances. When the
prosecution itself has failed to prove the circumstances and its
case beyond reasonable doubt qua the appellant, failure of the
accused to discharge his burden under Section 106 of the
Evidence Act, would not be relevant.
20 Admittedly, the prosecution has not examined the
appellant’s brother, who disclosed that the appellant was residing
in his flat. Infact, considering the prosecution case, the
appellant’s brother could have been well made an accused, as
being part of the conspiracy to conceal the identity of the
appellant, however, no investigation appears to have been carried
out on the said lines.
21 Admittedly, the prosecution has not brought on
record any material to show that there were any pending cases in
2003 for the appellant to commit the said offence. Thus, the
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motive alleged by the prosecution that the appellant had
committed the said act to conceal his identity, pales into
insignificance. Even the report of the CA and the DNA report
are inconclusive and do not in any way, further the prosecution
case.
22 Having perused the record, we are at pains to observe
that though the police had collected material i.e. to show cases
prior to 2003 pending qua the appellant i.e. 7 cases; 2 under
TADA (cases of 1994) and 5 cases under the provisions of IPC
and under the Arms Act, the Prosecutor failed to bring the said
evidence on record through any of the witnesses. The said
evidence would have atleast helped the prosecution to some
extent to show the motive for the appellant to commit the act in
question i.e. murder of a person, for concealing his identity. The
Prosecutor has failed in his duty to bring the same on record,
despite the evidence being available on record and having been
collected by the police. The prosecutor ought to have been
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vigilant whilst conducting the case, which we find, he has not. It
is pertinent to note that it is the duty of the prosecutor to
minutely go through the charge-sheet; examine the witnesses and
bring all material on record collected by the prosecution in
support of their case. We are afraid that the prosecutor has
conducted the case extremely casually and has failed in his duty
to bring on record the material collected by the police, to show
the motive for the appellant to commit the said act. Infact, even
the examination-in-chief has not been properly conducted nor has
the witness (PW9) been declared hostile, despite he not having
supported the prosecution case.
23 Considering the evidence as stated aforesaid, we find
that the prosecution has failed to prove the incriminating
circumstances against the appellant. The benefit of the same will
have to be given to the appellant. Accordingly, we pass the
following order:
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ORDER
(i) The appeal is allowed;
(ii) The judgment and order dated 28th March
2019, passed by the learned Additional Sessions Judge,
Thane, in Sessions Case No.29/2013, convicting and
sentencing the appellant, 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. Fine amount, if
paid, be refunded to the appellant.
24 Appeal is disposed of accordingly.
25 In the peculiar facts, we deem it appropriate to send a
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copy of this order to the Director of the Prosecutions to take note
of the same against the prosecutor, who conducted the said case.
Registry to send a copy of the impugned judgment dated 28 th
March 2019, passed by the learned Additional Sessions Judge,
Thane, in Sessions Case No.29/2013, the evidence of all witnesses
along with a copy of this judgment.
26 All concerned to act on the authenticated copy of this
judgment.
DR. NEELA GOKHALE, J. REVATI MOHITE DERE, J.
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