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Judgment
354 paragraphs · 7,858 wordsS.P. Tavade, J
The appellant-original accused has preferred this appeal to challenge the Judgment and conviction order passed against him by the learned
Additional Sessions Judge, Dindoshi in Sessions Case No.38 of 2013. The appellant is convicted for the offence punishable under section 302 of Indian
Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- in default to suffer simple imprisonment for six months. The
appellant is also convicted for offence under section 392 read with section 397 of IPC and sentenced to suffer Rigorous imprisonment for seven years
and to pay fine of Rs.2000/- in default to suffer simple imprisonment for three months.
The prosecution case unfold as under:
First informant Chetnaben Premji Vora is a daughter of deceased Nirmala Premji Vora. She was running a sugarcane juice stall near inorbit mall,
Malad. She was residing with her mother at Room No.8, Nemani Chawl, Malad (West), Mumbai. Informant used to visit her juice centre at 11.30 a.m
and used to return home at 11.30 p.m. Sometimes she used to return home for lunch.
On 4th November 2012 at about 11.30 p.m informant went to her shop. She did not visit her house for lunch. At the relevant time, one Mr.Balli was
working with informant. He used to clean sugarcane at her residence and then used to bring it in the shop. At 4.30 p.m. informant called her mother
and asked her whether the servant Mr.Balli had proceeded to the shop. Her mother replied that the work is not completed and hence Mr.Balli may
stay for some time and then he will attend the shop. On the same night at about 9.30 p.m to 9.50 p.m informant gave calls to her mother but there is
no reply from her.
Ultimately, at 11.30 p.m informant went to her house. The door of her house was closed but it was not latched from inside. She opened the door
and found her mother lying in the pool of blood. Knife was pierced in her chest and there was deep injury on her neck. Informant removed the knife
and threw the same in the room. She found two cupboards in the room were in open conditions and clothes therein were in scattered in the room.
Informant shouted for help. Her neighbours gathered in the house. One of them called Dr.Kabra who examined her mother and declared her dead.
Somebody called police in the room. The informant found one tooth in between sofa cum bed, she handed over the same to the police.
Accordingly, police made enquiry with the informant and others. Informant checked her cupboard and of her mother and she did not find a plastic
bag containing Rs.35,000/- as also a pot of ornaments having (1) one gold mug chain, (2) one gold chain, (3) Two gold bangles, (4) two gold bangles
(radium and gold plated). She also did not find coins of Rs.1000/-to 1100/- and imitation jewellery kept by her mother in a plastic bag containing two
bangles gold and silver plated, one bangle of artificial diamonds, one gold plated bangle, ten pairs of artificial bangles gold plated, three malas of
imitation jewellery, one necklace of imitation jewellery, one necklace of white pearls, one pair of ear ring and two pandles. Informant lodged FIR. The
dead body of Nirmala was sent to Post Mortem examination.
On the basis of FIR, crime was registered against the unknown person. On investigation, it was revealed that appellant was working with the
informant for about 2 months. He was addicted to liquor. Hence, he was removed from service. Informant had given the appellant a mobile phone but
he did not return the same. On the basis of call record, it appeared that the appellant was moving in the vicinity at the time of incident. One Mr. Patel
was supplying sugarcane to the appellant through his servant. On the day of incident, Patel had supplied sugarcane. The employee of Patel stated that
the appellant was moving in the area. Hence, police searched for the appellant. Ultimately, appellant was found at his native place in Rajasthan at
Udaypur. He came to be arrested and his mobile phone was seized.
During the investigation, the appellant made a disclosure statement and produced shirt and pant worn by him at the time of incident, gold and
imitation jewellery, coins, cash amount from the various persons from Rajasthan. The said articles were identified by the informant.
On completion of investigation, charge sheet came to be fled against the appellant in the Court of Metropolitan Magistrate, Borivali, Mumbai for the
offences punishable under sections 449, 397 and 302 of the Indian Penal Code. The offence being exclusively triable by the Court of Sessions, case of
the appellant was committed to the Court of Session at Dindoshi, Mumbai.
The charge was framed against the appellant. He pleaded not guilty and claimed to be tried. The defence of the accused is of total denial.
To prove the charge against the appellant (Exhibit-8), prosecution has relied on the evidence of as many as 17 witnesses. The appellant did not
lead any defence witness. On going through the evidence on record, the trial Court held the appellant guilty for the offence punishable under sections
449, 397 and 302 of the Indian Penal Code and convicted as above.
Heard Ms Jai Kanade, learned counsel for the appellant and learned APP for State. Learned counsel for the appellant submits that entire
prosecution rests on circumstantial evidence. The prosecution has not proved the chain of circumstances to prove the guilt of the appellant. She also
submits that other employee of informant Mr.Balli and her relative were also in the net of police. Mr.Balli was detained by police. One tooth was
found nearby dead body but the said was not of deceased or of the appellant. Therefore, there is possibility of involvement of third person committing
offence cannot be ruled out. She also submits that the theory of giving mobile phone by the informant to the appellant appears to be doubtful.
Therefore, CDR produced on record are not helpful to the prosecution. She submits that the appellant was wrongly convicted for the offences
charged against him. Hence, she prays for acquittal of the appellant.
On the other hand, learned APP submits that discovery of ornaments, blood stained cloths from the possession of the appellant unequivocally
proves involvement of the appellant in the crime. Similarly, he found lingering in the vicinity of scene of offence just prior to the incident. All
circumstances relied upon by the prosecution have proved against the appellant. Therefore, the findings of the trial Court are proper correct and there
is no need to interfere with the findings of the Trial Court.
To prove the charge against the appellant, the prosecution has relied on the following circumstances:
(i) homicidal death of deceased Nirmala
(ii) Theft of ornaments and cash of the deceased
(iii) Appellant was found in the locality on the day of incident.
(iv) Seizure of mobile phone of the appellant.
(v) Seizure of blood stained clothes as well as gold and imitation jewellery from the appellant.
(vi) Seizure of cash of Rs.21,000/-
Homicidal death of deceased Nirmala
To prove the homicidal death, the prosecution has relied upon evidence of informant Chetana (PW-1). She deposed that she was residing with her
mother at Room No.8, Nemani Chawl, Malad (West), Mumbai. She is running a sugarcane juice centre near In Orbit Mall. One Mr.Patel used to
supply her sugarcane from Goregaon. On the date of incident, one Mr.Balli was serving with her. He used to clean sugarcane and bring it to the juice
centre. She also deposed that the appellant worked with her for two months but as he was addicted to liquor. Hence, he was removed from the
service. The above facts are not disputed by the defence. So it can be said that the informant and her mother were residing at Room No.8, Nemani
Chawl, Malad (West), Mumbai. The appellant was her ex-employee.
Informant deposed that on 4th November 2012, she left her house at about 11.30 a.m. She did not visit her house for lunch, as there was rush of
customers. She called her mother at 4.00 to 4.30 p.m and made enquiry about servant Balli. Her mother replied that the work of Balli was not
completed and he would reach the shop after some time. Thereafter, in between 9.30 to 9.50 p.m, she called her mother twice or thrice but there was
no reply from her mother. She further deposed that at 11. 30 p.m she returned home. The door of the house was closed and the same was not latched
from inside. She opened the door and found her mother lying in the pool of blood and the knife was pierced in her chest. There was injury on the neck
of her mother. Informant removed the knife and thrown in the hall. The cupboards in the house were opened and some articles were lying scattered.
She shouted for help. Her neighbours gathered in the house. One of them called Doctor who examined her mother and declared her dead. Informant
lodged FIR. (Exh.-15).
The Investigating Officer Lonkar (PW-13) drawn Inquest panchanama in presence of Lata Parmar (PW-2). Lata Parmar deposed that on 5th
November 2012 police called her for panchanama in the house of the informant. She saw dead body. Police seized clothes of deceased and knife from
the spot under panchnama.
The dead body of Nirmala was sent to post mortem examination. Dr.Sanjay Kaniram Jadhav (PW-6) performed post mortem on the dead body of
the deceased. He noticed following external injuries in Column No.17 on the person of the deceased:
(1) an incise injury, horizontal placed just below Thyroid cartilage margins clean cut, reddish and odematus, measuring 12 cm X 3 cm X 2 exposing
clean cut muscle of anterolaterally.
(2) Splitting laryngeal cartilage with sharp edges. Blood and blood clot seen adhered the side. Major vessel of neck seen sharply cut bilaterally. This
injury was Ante Mortem.
Doctor deposed that Larynx, Trachea and Bronchi shows splitting injury. He also deposed that large vessels of neck were seen sharply cut on
both sides with blood clot in surrounding tissues. He opined that the cause of death shock due to throat injury. On completion of post mortem he
prepared a report (Exh.50). He also issued cause of death certificate (Exh.51). According to him injury on the neck caused instant death of the
deceased. The medical Officer has opined that seized knife (Article 11) could cause injuries sustained to the deceased. In the cross examination,
witness admitted that death of deceased is possible by assault of knife by its sharp side horizontally. Therefore, it is established that the deceased
Nirmala died homicidal death.
Theft in the house of the deceased
The informant categorically stated that on her arrival in the house, she found dead body of her mother. The cupboards in the house were opened
and the articles were scattered in the room. Police asked her to check the ornaments and cash amount. Accordingly, she checked the ornaments of
her mother. She found that a pair of gold patle (with platinum design), gold chain, gold ring, makhmala and gold bangle approximate value of the said
ornaments was Rs.2,80,000/- were missing. Similarly, coins of Rs.1000/- to 1100/- were also found missing from the house. Informant gave
description of missing ornaments in the FIR. In the cross examination, fact of missing of articles from the house of informant is not denied.
The prosecution has also relied upon the panch-witness to the scene of offence panchnama Guruvend Singh Jaswant Singh Chaddhat (PW-3). He
deposed that on 5th November 2012, he was called by police at the house of a lady by name Chetna Vora at at Room No.8, Nemani Chawl, Malad
(West), Mumbai. There was a dead-body of lady lying on the foor. One knife was also lying nearby dead body. Photographer was called by the police
who took photographs. He gave a description of the clothes wore by the deceased. He deposed that locker was open and cash and jewellery was
missing. The witness was extensively cross examined by the defence but there is nothing on record to shatter the evidence. By this evidence it is
established that PW-3 was personally present at 12.00 p.m to 12.30 p.m the relevant time of recording panchanama. So it can be said that the police
drew scene of offence panchnama in presence of PW-3 wherein it was revealed that cupboard was open and ornaments and cash as disclosed by
informant was missing. So theft of cash, ornaments from the house of informant is proved.
Appellant found in the locality of the day of incident:-
To prove the presence of appellant, the prosecution has relied on the evidence of Mr.Rajkumar Patiraj Choudhari (PW-14). He deposed that since
last four years from the date of incidence, he was delivering sugarcane to the informant. He was working with Patel Brothers. He knows informant.
She had sugarcane juice centre. On 4th November 2012 he went to the house of informant along with Binay, Sunil, Rajkumar Dhaval. He delivered
sugarcane a day of the incident. When he went there to deliver sugarcane one old lady was there whose age was about 60 to 65 years. He went to
the ground in front of the house of informant. He saw a boy wandering there. He knew the said boy as he had seen him in the sugarcane shop of
informant. On the next day of delivery of sugarcane, police recorded his statement.
In the cross examination, he admitted that he used to visit the shop as well as the house of informant for delivery of the sugarcane. For 4-5 times
he had visited the house of informant. He knew one boy having name Balli who was working in the sugarcane centre of informant. He had seen Balli
in the house of the informant. The said Balli used to clean sugarcane and provide the same to the juice centre. He admitted that he had seen a boy
wandering in the ground in front of the house of informant while delivering sugarcane. On the basis of said evidence, the learned Advocate submits
that the said fact is not mentioned in the previous statement of witness, therefore it is a omission but the said fact is not proved through Investigating
Officer. Therefore, alleged omission is not proved by the defence. We must observed here that there was no omission in respect of presence of
Appellant near the house of informant. The omission was in respect of the place. The witness had stated that he had seen appellant in front of gate of
the chawl. While giving evidence, he deposed that he saw appellant in the ground in front of the house of informant. Therefore, evidence of informant
remain unshaken because witness knew the appellant and he had seen him wandering in front of house of the informant. He identified the appellant in
the Court as the same boy wandering in front of the house of informant on the relevant day. The witness categorically stated that he was called by the
police in test identification parade. He deposed that he identified the appellant for in the test identification parade in the jail. So the witness has
identified the appellant in the Court as well as in the test identification parade.
To hold test identification parade the Investigating Officer PI Rajaram Dattatray Prabhu (PW-12) had written a letter to Nayab Tahsildar,
Borivali. Accordingly, Nayab Tahsildar Sindhu Umesh Khade (PW-11) visited Thane Central Prison. She took information of three witnesses who
were asked to identify the suspected accused. She called two panch witnesses and after completing formalities went to Thane Central Prison. She
also called six dummies. She asked the appellant to take position in row in between dummy persons. Accordingly, appellant stood in between the
dummy Nos.3 and 4. Thereafter, she called witness Sunilkumar Bhate Kurmi. He identified the appellant by touching him. The witness further
deposed that she asked the appellant whether he wants to change his clothes and position in the row but he has not shown willingness for the same.
Thereafter, she called witness Abhishek Kamdar but he did not identified the appellant. Thereafter, witness again asked the appellant to change his
clothes and position in the row but he has not consented to it. Thereafter, witness Rajkumar Patiraj Choudhari (PW-14) was called who identified the
appellant by touching his shoulder. The evidence of Executive Magistrate is denied by way of suggestion. No material is brought on record to shatter
her evidence. On going through the evidence of Executive Magistrate and witness Rajkumar Patiraj Choudhari (PW-14), it is established that
Rajkumar Patiraj Choudhari (PW-14) has identified the appellant in T.I.Parade. Therefore, identity of the appellant is established by the prosecution.
It is the case of the informant that appellant was working with her and she had given a mobile phone to him which he did not return. The said
mobile phone was having SIM No.9819811679. In the cross examination she admitted that the said SIM was purchased by her in her name but she did
not write to the service provider to disconnect the services of the said SIM. She does not remember the name of service provider of the SIM. But the
fact remains on record that the appellant was given a mobile phone with SIM card by the informant. The appellant came to be arrested on 7th
November 2012 under the panchnama (Exh.76). At the time of arrest mobile phone of Samsung company having SIM No.9619811679 was seized
from his possession. The Investigating Officer had called CDR of the said SIM from service provider Vodaphone.
To prove the CDR the prosecution has relied upon the evidence of Changdeo Haribhau Godse (PW-15). He deposed that on 23rd November
2012, he received a letter from DCP Zone No.11, Mumbai wherein he was requested to provide call details in respect of mobile No.9619811679 of
4th November 2012. Accordingly, he collected data and provided it to the Investigating Officer (Exh.98 to 100). It appears that the said phone was in
the name of Nirmala Vora (deceased). The CDR shows that 8 calls were made from the said phone from 5.00 pm to 7.58.30 p.m on 4th November
2012. The witness also gave tower location of the said phone for above period was near IBP Petrol Pump, S.V.Road, Malad West. It appears that the
holder of the mobile phone was within the vicinity of scene of offence. It is also established on record that mobile in question was seized from the
possession of the appellant at the time of his arrest. The said SIM was in the name of the deceased. The tower location of the said phone was within
the vicinity of scene of offence at the time of incident. So it can be said that the prosecution has established the presence of appellant in the vicinity
during the time of incident.
The seizure of blood stained clothes of the appellant, seizure of gold and imitation jewellery, seizure of cash amount of Rs.21,000/-and seizure of coins
of Rs.1100/- :-
The major link between the appellant and the crime is seizure of blood stained clothes and stolen articles. The Investigating Officer Mr.Chimaji
Jagannath Aadhav (PW-10) deposed that he received information of involvement of the appellant in the crime. Therefore, a team of Officers was
sent to Rajasthan headed by himself decided to visit Rajasthan. He contacted friend and relatives of the appellant. After getting permission to visit
Rajasthan, he along with staff proceeded to Rajasthan on 06.11.2012 at about 7.30 a.m by a jeep. He reached Udaypur Railway Station at about 7.00
p.m. A person who was along with him gave information that Appellant @ Pappu was in the vicinity of Udaypur Railway Station. They took search of
him along with Manoj Devda-brother of Appellant. Ultimately, Appellant was found in front of IBP Petrol Pump. He apprehended appellant and
brought him to Mumbai and presented before the senior Officers. Appellant was arrested and his mobile was seized from his possession. Accordingly,
a diary entry was made.
In the cross examination Mr.Aadhav (PW-10) admits that after registration of FIR, Crime Branch, Unit-11 also started investigation along with
Malad Police Station. He had enquired with 15 to 20 persons regarding alleged incident but the statements of the said persons were not recorded. He
also admits that he has taken search of the appellant, but no document or article was seized from the appellant during his investigation. They did not
prepared any panchnama at Rajasthan when the appellant was apprehended. He also admits that when the appellant was brought to Mumbai, his
personal search was taken wherein a cell phone was found. It was seized under panchnama. Sum and substance of the evidence of Mr. Aadhav
(PW-10) is that as per the instructions, he went to Rajasthan and apprehended the appellant with the help of brother Manoj Devda. Cell phone of the
appellant was seized and he was put under arrest.
Investigation was carried out by a Team of Officers; one of them was Mr.Manohar Ankush Harpude (PW-9). According to him, he was assisting
PI-Rajaram Dattatray Prabhu (PW-12) in above investigation of crime against the appellant. On 8th November 2012, during the course of
investigation, appellant wished to make a voluntary statement. Hence, he called two panchas viz.Sarfaraz Asif Bakali (PW-4) and Mr.Naresh
Pannalal Dave. In presence of panch witnesses, appellant made a voluntary statement that he would produce money, clothes and ornaments.
Accordingly, his statement was recorded which is at Exh.34. In pursuance of the statement of the appellant, he made a Station diary entry. He called
a private jeep and proceeded to Rajasthan along with PSI Kulkarni, P.N.Pote and Constable Shinde-Panch Witnesses and the appellant. They reached
to Udaypur Railway Station. He further deposed that they went to Gomati Police Station and gave a letter for help. Accordingly, two police personnel
were given for help. He deposed that as per the say of the appellant, he along with two constables of Gomati Police Station and panchas went to
village Kakroli. Appellant asked to stop the jeep. Accordingly, jeep was stopped. All of them alighted from the vehicle. Appellant took them towards a
nala which was near road. Thereafter, the appellant took them to a Babli Tree and removed a plastic bag from a bush near that tree. In that bag there
was a blue colour T-shirt and light blue colour Jeans Pant which was smeared with blood. The said clothes were sealed and seized and labelled in
separate bags.
He (PW-9) further deposed that the appellant further made a voluntary statement that he had kept Rs.21,000/- with a person from village Kakroli.
The appellant then called to Bhavarlal Mangilal Khatik (PW-8). The said Bhavarlal came and produced Rs.21,000/-. The said amount was consist of
42 (G.C.) Government currency note of denomination of Rs.500/-each. The said amount was seized, sealed in the packet and labelled. They have
affixed their signatures. He further deposed that the appellant asked him to sit in the vehicle and took him to Bhanin Taluka Kumbarghat, District
Rajsamad, Rajasthan. The appellant asked to stop the vehicle on National High Way No.8. He took the police party to a shop. He pointed out a person
in that shop. He told his name is Bhairuvlal Rukarji Kalal (PW-16). The evidence of Kalal (PW-16) was relied upon by the prosecution. He deposed
that on 6th November 2012 at about 12.00 p.m the appellant came to his liquor shop and took a liquor bottle of “Officers Choice†and gave him
Rs.80/- in change. He further deposed that the appellant told him that he has more coins with him and he wished to give him. Accordingly, he took
coins of Rs.1100/- in exchange gave currency notes to the appellant. He further deposed that on 9th November 2012, police from Malad Police
station, Mumbai came to his shop and made enquiry with him. The police asked him about the coins. Accordingly, he produced coins of Rs.1100/-. So
the prosecution has proved that at the instance of the appellant, Kalal (PW-16) has produced coins amounting to Rs.1100/-. Informant deposed that
the coins amounting to Rs.1100/- were stolen from her house.
Mr. Harpude (PW-9) further deposed that the appellant took him and police party to village Jawaliya, Taluka Amet, District Rajsamad, Rajasthan.
The appellant took the police party to his house. He removed one plastic bag from the corner of his house and gave it to him. The said bag was
containing ornaments and imitation jewellery. The bag was having lable as Meghraj Sweets, Namkin Dry Fruit, S.V.Road, Mumbai. He took
inspection of bag and found therein gold magmal, gold chain, two gold bangles and two patlya. All these ornaments were worth of around
Rs.3,20,000/-. The said plastic bag was seized (Article 16). The ornaments were marked at Articles 1 to 4. Similarly, imitation jewellery was
collectively marked as Article-7A and 7B. He further deposed that they seized the gold as well as imitation jewellery. The witness prepared detailed
seizure panchanama and obtained signatures of panch witnesses.
In the cross examination Mr.Harpude (PW-9) admits that the police personnel on duty make entries in the lock up register regarding movement of
the arrested person. He admits that an entry was made in the lock up register when the appellant was taken out and he was relodged the lockup. But
he was unable to give timings of taking out appellant from the lock up and lodging him into the lock up. He admits that panch Naresh Pannalal Dave
had acted as a panch witness in the other cases but other panch-witness Sarfaraz Asif Bakali (PW-4) was never acted as a panch witness prior to the
present case. He also admits that the vehicle used for traveling was belongs to mother of Panch witness Bakali (PW-4). He also admits that the
Constables from Gomati Police Station assisted him till the recovery of coins. He did not take help of local police station for seizure of gold ornaments.
The said admission has no significance because the appellant took the police party to the place of his residence which is of diferent jurisdiction of
police station. No doubt the Investigating Officer Mr.Harpude could have contacted the local police but he carried out the panchnama without the help
of local police. The fact remains on record that for seizure of clothes and coins and cash of Rs.21,000/-, local police were present. Therefore, contents
of seizure panchnama cannot be ignored.
To substantiate the evidence of the Investigating Officer, the prosecution has relied upon the evidence of Sarfaraz Asif Bakali (PW-4). According
to him, on 8th November 2012, he was called at Malad Police Station for panchanama. One person by name Girvar Singh @ Pappu Bhagwat Singh
Ghevda was present in the police station and he wanted to make a voluntary statement. Accordingly, he made a statement that he had kept ornaments
and money at his native place and he wish to show the said place. Accordingly, police prepared panchanama of the memorandum (Exh-34). The same
was signed by him and other panch witness and police. He further deposed that at about 10.00 to 10.15 p.m. memorandum of panchanama was
drawn. Police asked us to accompany them to the place which is likely to be shown by the appellant. Accordingly, he agreed and accompanied the
police party consisting of PSI Kulkarni, Police Officer Harpude, One Constable, panch Mr.Dave and the appellant in a Scorpio. He further deposed
that next date at about 4.00 to 4.30 p.m they reached Gomati Police Station. Some policemen from Gomati Police Station also accompanied them. The
appellant asked them to take the vehicle at Thakurli S.T.Stand. The appellant took them towards a bush where he had thrown the clothes. The said
clothes were seized and gave it to the police which were a T-shirt and a jeans pant. The Jeans pant was having blood stains. Mr. Bakali (PW-4)
further deposed that the appellant gave telephone number of person whom he had given a cash amount. Police called the said person on the said
number. Accordingly, a person by name Bhairulal Khatik (PW-8) came to the said place and handed over cash of Rs.21,000/-. It consists of 42
currency notes of Rs.500/- each in denomination. The said cash was also taken seized and sealed by the police.
Mr.Bakali (PW-4) further deposed that the appellant took the police to liquor shop. The appellant asked the person in the said shop to produce the
coins of Rs.1100/- given by him. The name of the said person was Mr.Kalal (PW-16). He produced coins of Rs.1100/-. Police took charge of the
same.
It has come in the evidence of Mr.Bakali (PW-4) that the appellant disclosed that he has kept the ornaments in his house and took the police party
to village Jawariya. Appellant asked to stop the vehicle near his house and proceeded to his house. He went inside the house and took out a carry bag
from the ground foor. The bag was containing ornaments and imitation jewellery. It consists of one Mugmal, one gold chain, two bangles, two patlya
and imitation jewellery. The said gold ornaments as well as imitation jewellery were seized under the panchnama. The panchnama was completed by
8.00 to 8.30 p.m. Mr.Bakali (PW-4) identified the T shirt and Jeans Pant, gold ornaments. He identified seized articles and the carry bag (Article 16).
He further deposed that on 20th November 2012 he was again called by Malad Police Station. He was taken to Paras Jain’s Jewellery Shop. The
ornaments were checked by the Jeweller. Thereafter, seized ornaments and imitation jewellery was resealed in his presence and panchnama was
prepared (Exh.37).
In the cross examination, he admits that he is having Scorpio Jeep. He lets out the said jeep on hire to others. He further admits that diesel was
filled in by police as the jeep was required for traveling. The investigating officer ought not to have hired the jeep of panch witness. It is fault of
Investigating Officer that apart the evidnece of panch witness is cogent and cognate.
Mr. Bakali (PW-4) He admits that Gomati Police Station is near about S.T.Stand Thakurli. The bushes under which clothes were seized were
visible from the road and the said place is accessible to all. The witness volunteered that bushes were towards North of Kunteshwar Kirana Stores.
On the basis of the said admission, learned counsel for the appellant submits that the place of alleged recovery of clothes is accessible to all.
Therefore, said recovery is not proper and legal. It is true that the witness stated that bushes under which the clothes were seized was accessible to
all but it was not visible from the road. It appears that it was a garbage place and there was trash thrown there. The appellant had personal knowledge
about concealment of bag near bushes and he pointed out the said place. The bag was not adjacent to road but was concealed in the bushes.
Therefore, admission of the witness has no legal significance.
Mr.Bakali (PW-4) also admitted that appellant gave telephone number of a person at Kakroli. Police called the said person by name Bhavarlal
Mangilal Khatik (PW-8). The said Bhavarlal came and produced Rs.21,000/-.
Mr.Khatik (PW-8) deposed that he had been to R.K.Hospital as his daughter was ill. He received a phone call from Girwarsingh @ Pappu from
Cell Phone No.9414788873 and he wanted to meet him. Accordingly, appellant came to him and gave Rs.21,000/- and told him that this amount should
be given to his family as and when he would direct him. The amount in the denomination of Rs.500/- each. He further deposed that on 9th November
2012 police came in R.K.Hospital and enquired with him whether appellant had given money to him. He told them that appellant had given Rs.21,000/-
and handed over the said amount to the police.
If the evidence of Mr.Khatik (PW-8) is considered, it appears that the appellant had given an amount of Rs.21000/- for handing over the same to
the family members of the appellant which he (PW-8) had handed over to police. Mr. Khatik (PW-8) was called by police when he was in
R.K.Hospital and enquired with him about his transaction with the appellant.
Mr. Khatik (PW-8) admits that he had stated to the police that appellant had given him Rs.21,000/- and told him to hand over to his family
members but he did not inform the family members of the appellant that he had received Rs.21,000/- from the appellant. He has not contacted the
family members of the appellant between 6th November 2012 and 9th November 2012. If the statement of Mr.Khatik (PW-8) is considered, it shows
that though the appellant had told him to hand over Rs.21,000/- to his family members, but only as per his instructions. So there is no question of
witness Khatik to contact family members of the appellant. Therefore, evidence of Khatik (PW-8) appears to be truthful. There is nothing unusual in
the transaction between the appellant and him.
It is the case of the Investigating Officer and panch witness Bakali that appellant took them to the shop of Kalal (PW-16) and at the instance of
the appellant, coins of Rs.1100/- were seized. To substantiate the said evidence the prosecution has relied upon evidence of Bhairulal Kalal (PW-16).
He deposed that on 6th November 2012 the appellant came to his liquor shop and purchased liquor of “Officer Choice†and gave him Rs.80/-
change. The appellant told him that he had more coins with him and he is willing to give the same to him. He took coins of Rs.1100/- and in exchange
paid currency notes to the appellant. Thereafter, appellant left the shop. He further deposed that on 9th November 2012, police from Malad Police
Station came to his shop along with the appellant. Police made enquiry with him. He stated the above facts to the police and handed over coins of
Rs.1100/-. He identified the coins seized in the case.
In the cross examination, witness admits that he alone work in the wine shop. He manage counter of the shop. The appellant was in his shop for
five minutes on the relevant date and gave coins of Rs.1100/-. He had not seen anything except coins with the appellant. He admits that he kept the
coins in the drawer. He might have spent about Rs.50/- or 100/-from those coins. He further admits that he gave currency notes to the police in
addition to coins. He admits that notes are not part of the seized coins. On the basis of the said evidence, learned Advocate submits that the police
have manipulated the seized articles. It appears that in addition to the seized coins, some notes were also seized from the witness but those notes are
not on record. It is true that the witness has categorically admits that he added some notes as he had used coins given by the appellant but the fact
remains on record that the appellant had given coins of Rs.1100/- to the witness Bhairulal in exchange he has given him currency notes. In the
examination-in-chief, witness has stated that he had returned coins of Rs.1100/- to police which was seized. He has identified the said coins. In the
cross examination, he gave admission that in addition to coins, he had given notes but the said admission has no significance. From the evidence of
Bhairulal, it is established that appellant has contacted him on 6th November 2011 and gave coins of Rs.1100/- which were stolen from the house of
the informant. Therefore, prosecution has proved the fact of recovery of coins at the instance of the appellant.
On the basis of evidence of IO Mr.Harpude and panch witness, it is established that the appellant in pursuance of voluntary statement produced
clothes, coins, cash amount of Rs.21,000/- and gold ornaments and imitation jewellery from his house at village Jawaliya, Taluka Amet, District
Rajsamad, Rajasthan.
In addition to the said evidence, prosecution has also relied upon the evidence of Babulal Devaram Balshi (PW-17). According to him (PW-17), he
is resident of village Dhanin which is situated at National Highway No.8. He works in Maa Trikal Hotel. On 6th November 2012 at about 1.00 p.m he
saw appellant in the hotel. The appellant made enquiry with him about goldsmith. He (PW-17) gave mobile number of Suresh Sonar. Witness further
deposed that appellant had a bag with him. There was something in the bag and the appellant wanted to sell the same. Appellant disclosed to witness
that he had gold in the bag. The appellant shown the bag, the witness saw something like gold. Witness identified the articles which he had seen in the
bag of the appellant viz gold ornaments. He further deposed that appellant left the hotel after taking phone number of the goldsmith. Police from
Maharashtra came to his hotel along with appellant. Police made enquiry with him and he disclosed facts to them.
In the cross examination, he admits that the appellant was in the hotel for 30 minutes having a bag with him. He identified the bag before the
Court. He also admits that appellant purchased wine bottle and then he came to his hotel. He did not see the ornaments by taking out of the bag. He
further admits that police disclosed him the acts done by the appellant. He admits that he signed the panchnama but the police did not disclose him the
contents of the same. On going through the evidence of PW-17 it appears that the appellant had contacted him for disposal of gold ornaments. The
witness had given phone number of gold smith. It is also established that the appellant had shown the contents of bag. The witness had cursorily seen
the bag and come to the conclusion that it consists of gold ornaments. The appellant had no inimical terms with witness Balshi. No animosity is brought
on record by the defence. Thus, the evidence of Balshi (PW-17) has inspired the confidence. So it is established that on 6th November 2012, appellant
was possessing the golden articles at his native place.
Seized golden ornaments were shown to the informant. She identified the same. It must be noted here that the informant had given description of
the gold ornaments stolen from her house in the FIR which was lodged immediately after the incident. So there is no possibility of any concoction. The
said ornaments were found in possession of the appellant. The appellant could not explain how he came in possession of the said ornaments.
Therefore, prosecution has proved the possession of gold ornaments and imitation jewellery with the appellant.
It is proved on record that at the instance of the appellant his T Shirt and Jeans Pant was seized under panchnama. Investigating Officer as well
as Sarfaraz Asif Bakali (PW-4) has categorically stated that the Jeans pant was stained with blood. The said clothes were sent to the Chemical
Analyser by the Rajaram Dattatray Prabhu (PW-12) along with letter (Exh.86) but the report of the Chemical Analyser is not on record. The fact
remains that the Jeans Pant of the appellant was stained with blood so it was incumbent upon him to explain as to why there was blood stains. Non
explanation of the appellant on the said point can be used against the appellant.
It is also established through the evidence of IO Shri Lonkar (PW-13) and Bharat Premji Dediyar (PW-5) that a tooth was seized from the house
of the informant but there is no material on record to establish how the said tooth was seized from the house of the informant. So the seizure of tooth
from the house of informant is called as a mystery.
Learned counsel for the appellant submitted that after incident, Investigating Officer had called dog squad. The dog was given smell of seized
knife and thereafter, the said dog went after the juice centre of the informant and then there was no head way. On the basis of the said fact, learned
counsel for the appellant submitted that Balli was working in the juice centre. He was found in the vicinity of the incident prior to the incident and after
the incident. Therefore, dog must have gone towards the juice centre. But we are not inclined to accept the said submission because the informant has
categorically deposed that after seeing knife pierced in the chest of her mother immediately she thrown the same in the room. Knife was handled by
the informant. Therefore, after taking smell of the knife, the dog must have went after the juice centre of the informant. It has also come on record
that Balli was available after the incident. No marks of violence in his body similarly his clothes were not found with blood stains. He was interrogated
by the police for 3 days. Therefore, the submission of the learned counsel for the appellant that Balli was also suspect of the crime cannot be
accepted.
The learned counsel for the appellant vehemently submits that even if it is proved that the appellant was found in possession of stolen articles, he
cannot be held guilty for charge under section 302 of the IPC and at the most, he will be held guilty under section 392 of IPC. To substantiate her
point, she relied on the ratio laid down by the Apex Court in the case of Limbaji and others vs. State of Maharashtra (2001) 10 SCC 340, wherein the
appellants were charged for the offence punishable under section 302 and 392 r/w section 34 of IPC. In the said case, incident had taken place in the
early hours of 30th May 1984. The appellants came to be arrested on diferent dates viz 1st June 1984 and 11th June 1984. Appellant Nos.1 and 2
made voluntary statement and produced gold ornaments of deceased on 7th June 1984, 15th June 1984 and 20th June 1984. Recovered articles were
identified by the relative of the deceased. The appellants were acquitted of the charge punishable under sections302, 392 of IPC but held guilty of the
offence under section 411 of IPC. In Appeal, this Court (Aurangabad Bench) held the appellant guilty of offence punishable under sections 302, 392
r/w section 34 of IPC and sentenced to suffer life imprisonment. The said Judgment and Order was challenged before the Apex Court. The Apex
Court held that there is reasonable scope for two possibilities and this Court is not in a position to know the actual details of the occurrence it is not
safe to extend the presumption under section 114 so as to find the appellants guilty of the offence of murder with the aid of section 34 IPC. While
drawing the presumption under section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a
cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim. Hence, the
Apex Court has convicted the appellants under section 394 of IPC and acquitted them of the offence under section 302 of IPC.
The learned Advocate for the appellants also relied upon the ratio laid down in the case of Sanwat Khan and Kaloo Khan vs State of Rajasthan
AIR 1956 SC 54. It was held that no hard and fast rules can be laid down as to what inference should be drawn from a certain circumstance. Where,
however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft
and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property
was the murderer.
The learned Advocate for the appellant also relied upon the ratio laid down by the Apex Court in the case of Gulab Chand vs. State of M.P (1995)
3 SCC 574, wherein it was held that murder and robbery forming integral parts of the same transaction, recovery of ornaments of the deceased from
the possession of the accused and his dealing with the ornaments immediately after the occurrence, accused not afuent enough to possess the said
ornaments and absence of explanation by accused regarding lawful possession of the said ornaments, presumption can be raised that the accused
committed both the murder and robbery.
In the present case, the prosecution has relied on the voluntary statement of the appellant led to the discovery of coins, cash amount, gold
ornaments and imitation jewellery. The said articles were mentioned in the FIR which was lodged immediately after the incident. The said articles
were identified by the informant. The incident had taken place in the evening of 4th November 2012. The appellant came to be apprehended at his
native place on 6th November 2012 and was brought to Mumbai. Thereafter, on 8th November 2012, he made a voluntary statement and produced
stolen articles from three diferent places. So it can be said that the appellant was found in person of stolen articles soon after the incident.
We must point out here that the appellant contacted Babulal Devaram Balshi (PW-17) at village Dhanin. It has come in his evidence that appellant
had shown him gold articles on 6th November 2012. The said articles were subsequently seized from the appellant. So it can be said that after the
incident, appellant went to his native place and showed gold ornaments to Babulal (PW-17). There is no animosity between the appellant and Babulal.
The distance between Mumbai to Dhanin is more than 1000 k.m. So it can be said that appellant left Mumbai immediately after the incident and
reached his native place. So it can be said that the appellant was found in possession of the gold articles immediately after the incident. Appellant also
produced his clothes which were stained with blood. Other circumstance against the appellant is that he was seen in the vicinity of the scene of
offence before the incident and during the time of incident.
Said fact is proved by the evidence of Mr.Rajkumar Patiraj Choudhari (PW-14) and CDR. In view of the above proved facts, the ratio laid down by
the Apex Court in the cases of Limbaji and others (supra) and Sanwat Khan and Kaloo Khan (supra) are not applicable to the facts of the present
case.
In view of the above discussion, we hold that the Trial Court has rightly convicted the appellant for offence punishable under sections 302, 392 r/w
section 34 of IPC. We do not find any merit in the Appeal and the same is dismissed.