Ramprakash Ramprasad Yadav and Others vs The State of Maharashtra

V.K. Tahilramani, Acting C.J—Criminal Appeal No. 1108 of 2009 is preferred by the appellant-original accused no. 4 Ramprakash Ramprasad Yadav, Criminal Appeal No. 1145 of 2012 is preferred by appellant original accused no. 2 Kushalkumar Mohanram Arya and Criminal Appeal No. 764 of 2013 is preferred by appellant original accused no. 3 Sanjeev @ Sanju Ritalal Mirdha. For the sake of convenience, all the appellants will be hereinafter referred to as they were referred before the trial Court i.e. appellant - Kushalkumar Mohanram Arya will be referred to as accused no. 2, appellant- Sanjeev @ Sanju Ritalal Mirdha will be referred to as accused no. 3 and appellant - Ramprakash Ramprasad Yadav will be referred as accused no. 4. Since all these appeals are preferred against the very same judgment and order dated 6.8.2009 passed by the learned 1st Ad-hoc Additional Sessions Judge for Greater Bombay at Mumbai in Sessions Case No. 532 of 2008, these appeals are being disposed of by this common judgment.

By the said judgment and order, the learned Sessions Judge convicted all the appellants-original accused nos. 2, 3 and 4 under Sections 302, 397, 341 and 448 of IPC. For the offence under Section 302, each of the appellants has been sentenced to life imprisonment and fine of Rs. 5000/- in default R.I. for three months. For the offence under Section 397, each of the appellants has been sentenced to R.I. for seven years and fine of Rs. 2000/- in default R.I. for two months. For the offence under Section 341, each of the appellants has been sentenced to R.I. for six months and fine of Rs. 1000/- in default R.I. for two months. For the offence under Section 448, each of the appellants has been sentenced to R.I. for six months and fine of Rs. 500/-. All the substantive sentences were directed to run concurrently.

The prosecution case, briefly stated, is as under:

(i) Deceased Niruben Bhatt who was aged about 70 years at the time of the incident, was the sister of PW 1 Veenaben Pandya. Niruben was residing in Bungalow No. 15, Devpark Society at Juhu, Mumbai. Niruben was residing there along with her son, daughter-in-law PW 3 Radhika and their two children. However, on 25.4.2008 Radhika, her husband and their two children left for Europe. As Niruben was going to be alone in the house, PW 1 Veenaben i.e. sister of Niruben came to reside in the bungalow of Niruben on 23.4.2008. Niruben had four servants including the appellants. The servants used to reside in the house of Niruben.

(ii) The incident occurred on 4.5.2004. Niruben and PW 1 Veenaben were on the first floor of the bungalow and the servants were on the ground floor. At about 6.00 a.m. Niruben asked on phone whether tea was ready. Then Niruben went on the ground floor of the bungalow by lift. PW 1 Veenaben heard shouts of Niruben, hence, she went to the ground floor by the stairs. When Veenaben went to the ground floor, she saw the appellants assaulting Niruben with fist blows. Veenaben lay on the person of Niruben in order to save her, however, accused no. 3 Sanju and accused no. 4 Ramprakash pulled her. Accused no. 3 Sanju tied both the hands of Veenaben with nylon string and gagged her mouth with a piece of cloth. The other end of the string was attached to the handle of the lift. Accused no. 3 Sanju had the bunch of keys of the house of Niruben. Veenaben saw that Niruben was lying in injured condition. Niruben had injury on her head and blood was oozing from her nostril. Accused no. 3 Sanju showed Veenaben a knife. Accused no. 4 Ramprakash then went to the first floor with the bunch of keys. At that time, accused no. 3 Sanju continued sitting with the knife in front of Veenaben. Veenaben and Niruben remained in that condition for about two hours. Thereafter, Veenaben managed to remove cloth from her mouth. She started shouting. Thereupon, people broke glass of the window. Then original accused no. 1 Sameer who was inside the house, opened the door of the house. Then neighbours came and untied the hands of Veenaben. They found Niruben in an unconscious condition. Thereafter police came to the spot. PW 1 Veenaben lodged F.I.R. Thereafter investigation commenced. The dead body of Niruben was sent for post-mortem.

(iii) PW 8 Dr. Tasgaonkar conducted the post-mortem on the dead body of Niruben. He found 15 external injuries on the body of Niruben. Out of these 15 injuries, six injuries were contusions and rest were abrasions. Contusions were on the right hand and left zygomatic prominence of the mucosal surface of lower lip and on thighs of Niruben. In the opinion of Doctor, the death was caused due to smothering. After completion of investigation, the charge sheet came to be filed.

Charge came to be framed against the accused including the appellants under Sections 302, 397, 452, 458, 460 and 341 read with Section 34 of IPC. All the accused pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced in the present case, the learned Judge convicted and sentenced the appellants as stated in para 1 above, hence, these appeals. It may be stated here that the learned Judge acquitted the appellants of the offences under Sections 452, 458 and 460 of IPC, so also, the original accused no. 1 Sameer was acquitted of all the offences with which he was charged.

We have heard the learned counsel for the appellants and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, for the below mentioned reasons, we are of the opinion that the conviction and sentence under Sections 302, 397 & 341 of IPC imposed on the appellants deserves to be confirmed, however, all the appellants deserve to be acquitted of the offence under Section 448 of IPC.

The conviction is mainly based on the evidence of PW 1 Veenaben. Veenaben has stated that deceased Niruben was her sister. Niruben was residing in a bungalow at Juhu. On 23.4.2013 Veenaben came to the bungalow of Niruben. On 4.5.2008, she, Niruben and four servants were staying in the bungalow. She has stated that the appellants were servants of Niruben. On 4.5.2008 at about 6.00 a.m. she and Niruben woke up. They were on the first floor of the bungalow and the servants were on the ground floor. Niruben asked on phone whether tea was ready. Then Niruben went to the ground floor by lift. Veenaben has further stated that she heard shouts of Niruben, hence, she went to the ground floor by the stairs. When Veenaben went to the ground floor, she saw the appellants assaulting Niruben with fist blows. Veenaben lay on the body of Niruben in order to save her, however, accused no. 3 Sanju and accused no. 4 Ramprakash pulled her. Accused no. 3 Sanju tied both the hands of Veenaben with nylon string and gagged her mouth with a piece of cloth. The other end of the string was attached to the handle of the lift. Accused no. 3 Sanju had the bunch of keys of the house of Niruben. Veenaben saw that Niruben was lying in an injured condition. Niruben had injury on her head and blood was oozing from her nostril. Accused no. 3 Sanju showed Veenaben a knife. Accused no. 4 Ramprakash then went to the first floor with the bunch of keys. At that time, accused no. 3 Sanju continued sitting with the knife in front of Veenaben. Veenaben and Niruben remained in that condition for about two hours. Thereafter, Veenaben managed to remove cloth from her mouth. She started shouting. Thereupon, people broke glass of the window. Nothing has been elicited in the cross-examination of PW 1 Veenaben, which would cause us to disbelieve her testimony. We find her testimony inspires implicit confidence hence, we have no hesitation in relying on the same.

The evidence of PW 9 PSI Jayashree Jaykar shows that at 9.00 a.m. the Secretary of Devpark Society came to the police station and informed that from bungalow no. 15 of Devpark society, shouts were being heard, hence, she went to bungalow no. 15 in Devpark society. When she went inside the bungalow, she saw the complainant Veenaben lying near the lift. Her hands were tied with rope. Niruben was lying on the ground and her mouth was gagged by scarf. Her hands were tied by nylon rope. PSI Jayashree Jaykar removed the scarf from her mouth. Then she found that there was a ball of cloth in the mouth of Niruben. She then removed it and sent Niruben to the hospital. Thereafter she started writing F.I.R. of Veenaben, however, in the meantime, while she was scribing the F.I.R., she was informed that Niruben had expired.

The learned counsel for the appellants submitted that no case is made out under Section 302 of IPC because there is no evidence to show that the appellants intended to cause the death of Niruben or had the knowledge that the death of Niruben would be caused during the incident.

The evidence of PW 1 Veenaben clearly shows that all the appellants assaulted Niruben who was 70 years of age at the time of the incident. They assaulted her to such an extent that Niruben had injuries to her head and blood started oozing from her nostril. The evidence of PW 9 Jayshree Jaykar shows that a ball of cloth was put in the mouth of Niruben and thereafter her mouth was gagged with scarf. PW 8 Dr. Tasgaonkar who conducted the post-mortem, found the following external injuries on the dead body of Niruben:

"(1) Contusion over right zygomatic prominence, red colour, size 3 cm x 3 cm.

(2) Abrasion over right nostril, size 1/2 cm x 1/2 cm, red colour.

(3) Linear abrasion over right cheek extends from zygomatic region upto tragus, size 2 cm x 0.1 cm.

(4) Linear abrasion over right cheek / extending from right angle of mouth towards angle of mandible, intermittent, size 5 cm x 01. cm. red colour.

(5) Abrasion over right nostril, red colour, size 1/2 cm x 1/2 cm.

(6) Abrasion over left lower eyelid, red colour, size 1 cm. x 1 cm.

(7) Contusion over left zygomatic prominence, red colour, size 4 cm. x 4 cm.

(8) Linear Abrasion over left cheek / red colour, size 1 cm x 0.1 cm. near nostril

(9) Abrasion at left angle of mandible, size 2 cm x 2 cm red colour.

(10) Abrasion over lower lip, red colour, size 1 cm. x 1 cm.

(11) Contusion at mucosal surface of lower lip and upper lip, red colour.

(12) Contusion on left thigh anterolateral aspect, red colour, over area 6 cm x 4 cm x muscle deep.

(13) Contusion over right thigh, anterolateral aspect, red colour over area 10 cm x 5 cm x muscle deep.

(14) Contusion above left elbow, red colour, size 5 cm x 5 cm x muscle deep.

(15) Evidence of linear abrasion mark on left and right hand laterally, red colour of average size 6 cm x 1/2 cm."

Dr. Tasgaonkar found the following external injuries:

"(1) Contusion over right parieto-temporal region, red colour over area 6 cm x 6 cm.

(2) Contusion over occipital region centrally, red colour, size 6 cm x 5 cm.

(3) Contusion over haemorrhage in neck wall anteriorally above thyroid cartilage, size 3 cm x 3 cm red colour.

(4) Contusion in second intercostal space below clavicle on right side, red colour, size 2 cm x 2 cm.

(5) Haemorrhage in left cartoid artery above hyoid bone seen."

The evidence of PW 8 Dr. Tasgaonkar further shows that while pressing the mouth and nostril, the external injuries over the neck and face mentioned in post-mortem notes may be caused. In the opinion of Dr. Tasgaonkar, the cause of death was due to smothering. The fact that all the appellants assaulted a 70 years old lady and to such an extent that she started bleeding from the nose and thereafter put a ball of cloth in her mouth and then tied a scarf on her mouth shows the appellants had the intention to cause the death of Niruben. Even assuming they did not have the intention to cause death it can certainly be said that the appellants knew that the act of gagging a 70 year old lady who had received several injuries and was bleeding from the nose was so imminently dangerous that it must in all probability cause the death of the old lady. In both cases, the case would fall under Section 302 of IPC. Thus, we find no merit in the contention that this case would not fall under section 302 IPC.

The learned counsel for the appellants thereafter submitted that the evidence of PW 1 Veenaben cannot be relied upon because PW 9 PSI Smt. Jayakar has stated that when she entered bungalow no. 15, she saw the complainant Veenaben was near the lift. Veenaben''s hands were tied with rope. PW 9 PSI Smt. Jayakar has further stated that she found Niruben was lying on the ground, her mouth was gagged by scarf and her hands were tied. On removing the scarf from the mouth of Niruben, she found that there was a ball of cloth in the mouth of Niruben. Niruben was sent to the hospital. The learned counsel for the appellants-accused submitted that though Veenaben claims to be an eye witness to the incident and has stated that she was present when the incident occurred, she does not mention anything at all about the ball of cloth being put in the mouth of Niruben or Niruben being gagged by a scarf. As far as this contention is concerned, we would like to again advert to the evidence of PW 1 Veenaben wherein she has stated in paragraph 10 of her evidence that after her (Veenaben''s) hands were tied, she had not seen the further part of the incident. Thus, it appears that after the hands of Veenaben were tied, thereafter the ball of cloth was put in the mouth of Niruben and Niruben was gagged with a scarf. Thus, we do not find any such discrepancy between the evidence of PW 1 Veenaben and PW 9 PSI Smt. Jayakar so as to cause us to disbelieve the evidence of PW 1 Veenaben. Moreover, Veenaben had been staying in the house of Niruben since 23.4.2008 and the incident occurred on 4.5.2008. The appellants-accused being the servants of Niruben and as they used to stay in the house of Niruben, Veenaben had sufficient opportunity to observe them and to correctly identify all the appellants-accused later on.

As far as the appellant-accused no. 4-Ramprakash Yadav is concerned, the prosecution is relying on an additional circumstance of seizure of ornaments of family of deceased Niruben from accused no. 4-Ramprakash. PW 7 Mahesh is the panch witness who has deposed about this aspect. Mahesh has stated that on 9.5.2008 he was called by the police at Navjivan Society, Grant Road. The police informed him that they wanted to take search of accused no. 4 - Ramprakash. On search of accused no. 4 Ramprakash being taken, he was found in possession of one gold chain, four gold bangles, four gold rings, two chains one of which was of gold beeds.

PW 3 Radhika is the daughter in law of Niruben (deceased). PW 3 Radhika has stated that she was residing along with her husband, children and mother-in-law Niruben. Radhika has further stated that accused no. 1 Sameer, accused no. 2 Kushal Kumar and accused no. 3 Sanju were known to her. She has stated that on 25.4.2008 she left for Europe with her husband and two children. At that time, accused no. 1 Sameer and accused no. 3 Sanju were working in her house. Accused no. 2 Kushal was to join duty on 29.4.2008. She had met accused no. 2 Kushal on 20.4.2008 and settled his service terms. The servants used to stay on the ground floor of the house. On 22.4.2008 Veenaben came to their house. Veenaben had come to their house to stay with Niruben in the house as Radhika (PW 3) and her husband and children were going to Europe. Radhika has stated that their ornaments were kept in the cup-board. There were four gold bangles, gold ear rings, two gold rings, one gold chain, one necklace consisting of string, one silver ring and cash of Rs. 30,000/-. On 4.5.2008 they received a phone call that robbers had entered their house and the robbers had attacked Niruben, hence, on 5.5.2008 they returned back to Mumbai. They found that Niruben had expired. On verification of the articles in her cupboard, Radhika found that all the articles were lying in a scattered condition. She found that all the above mentioned ornaments and cash had been robbed. Radhika has identified four gold bangles and four gold rings shown to her, as well as bentex gold chain and necklace i.e. articles C, D, E and F respectively as belonging to them.

The learned counsel for the appellants submitted that no documents were produced by Radhika (PW 3) or any witness to show that these ornaments belonged to Radhika or the family of the deceased and hence, identification by Radhika of these ornaments, cannot be relied upon.

PW 3 Radhika has identified the stolen ornaments as belonging to her. The Supreme Court in Earabhadrappa Vs. State of Karnataka, AIR 1983 SC 70 : AIR 1983 SC 446 : (1983) CriLJ 846 : (1983) 2 SCC 330 has observed that "It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use". Thus just because no bills were produced, we see no reason to disbelieve the evidence of Radhika when she identified the articles as belonging to her.

The evidence on record shows that jewellery of the deceased was seized from accused no. 4 Ramprakash soon after the incident. The Supreme Court in the case of Gulab Chand Vs. State of Madhya Pradesh, AIR 1995 SC 1598 : (1995) 2 Crimes 188 : (1995) 5 JT 373 : (1995) 2 SCALE 623 : (1995) 3 SCC 574 : (1995) 3 SCR 27 : (1995) 2 UJ 201 upheld the conviction of the accused for murder and robbery only on the circumstance of recovery of articles of the deceased at the instance of the appellant. In the case of Baiju alias Bharosa Vs. State of Madhya Pradesh, AIR 1978 SC 522 : (1978) CriLJ 646 : (1978) 1 SCC 588 : (1978) SCC(Cri) 142 : (1978) 2 SCR 594 : (1978) 10 UJ 93 , the Supreme Court held that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well. In the said case, the accused was convicted for murder as well as dacoity. Similar view has been taken by the Supreme Court in the case of Sanjay @ Kaka Vs. The State (NCC.T. of Delhi), AIR 2001 SC 979 : (2001) CriLJ 1231 : (2001) 2 JT 461 : (2001) 1 SCALE 695 : (2001) 3 SCC 190 : (2001) 1 SCR 904 : (2001) AIRSCW 767 : (2001) 1 Supreme 692 . Similar view was taken by the Division Bench of this Court in its decision dated 20.11.2014 in the case of Shaligram @ Raju Rambahadur Thapa Vs. The State of Maharashtra in Criminal Appeal No. 728 of 2013 (Coram : Smt. V.K. Tahilramani and Shri. A.K. Menon, JJ.). The incident has occurred on 19.9.2009 and the seizure from accused Ramprakash has taken place on 2.10.2009 that is soon after the incident. Moreover, it is seen that in the present case, accused Ramprakash has not furnished any explanation in relation to articles of the family of the deceased which were found in his possession soon after the incident. Thus, recent and unexplained possession of articles which were robbed is another circumstance against accused no. 4 Ramprakash. In such case, the prosecution has succeeded in proving beyond any doubt that the commission of the murder and the robbery formed part of one transaction and the recent and unexplained possession of the stolen property by the accused no. 4 justified the presumption that it was him along with the other accused who had committed the murder and the robbery. The Supreme Court in Earabhadrappa Vs. State of Karnataka (supra) held that "this is a case where murder and robbery are proved to have been integral parts of one and the same transaction and "therefore the presumption arising under illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction." In the present case also, the murder of Niruben was committed and the ornaments were robbed.

The appellants-original accused nos. 2, 3 and 4 have been convicted under Sections 302, 397, 341 and 448 of IPC. On going through the evidence on record, we find that the prosecution has proved its case against all the appellants i.e. original accused nos. 2, 3 and 4 only in relation to the offences under Sections 302, 397 and 341 of IPC.

As far as the conviction of the appellants - accused nos. 2 to 4 under Section 448 of IPC is concerned, it is the prosecution case that the appellants were all residing in the house of Niruben at the relevant time, hence, it cannot be said that they had committed house trespass and therefore, it cannot be said that they committed offence under Section 448 of IPC i.e. house trespass and hence, the appellants deserve to be acquitted of the offence under Section 448 of IPC.

In the result, the following order is passed.

ORDER

(1) The conviction and sentence imposed on the appellants i.e. original accused no. 2 Kushal Kumar Mohanram Arya, accused no. 3 Sanjeev @ Sanju Ritalal Mirdha and accused no. 4 Ramprakash Ramprasad Yadav under Sections 302, 397 and 341 of IPC vide judgment and order dated 6.8.2009 passed by the learned 1st Ad-hoc Additional Sessions Judge for Greater Bombay in Sessions Case No. 532 of 2008 is confirmed.

(2) All the substantive sentences shall run concurrently.

(3) The conviction and sentence imposed on appellants accused no. 2 Kushalkumar, accused no. 3 Sanjeev and accused no. 4 Ramprakash under Section 448 of IPC is set aside. They all are acquitted thereunder.

(4) All the three appeals are partly allowed and are disposed of in the above terms.