JUDGMENT V.M. Kanade, J.
1. Appellant is the original accused. By this appeal the appellant/accused challenges the judgment and order passed by the Court of Sessions for Greater Bombay in Sessions Case No. 766 of 1997. By the said judgment and order dated 22nd September 1998 the Sessions Judge has convicted the appellant for an offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life and further imposed a fine of Rs. 5000/- and in default of payment of fine, the accused was to further undergo R.I. for three months. The appellant/accused was further found guilty for the offence punishable under Sections 394 and 449 of the Indian Penal Code and was sentenced to suffer R.I. for 5 years on both the counts and to pay fine of Rs. 1000/- and in default of payment of fine to further undergo sentence of one month.
2. Being aggrieved by the said judgment and order, the appellant has preferred this appeal. The brief facts, which are relevant for the purpose of this appeal, are as under :--
The case of the prosecution, in brief, is that on 15th March 1997 the accused committed a murder of Kaluram Gumaji Jain who was sleeping in the shop at that time and also committed robbery and stolen cash, gold and silver ornaments worth Rs. 92,000/- from the said shop M/s. D.B. Jewellers situated at Ashtavinayak Building, D.L. Marg, Chinchpokli, Mumbai. The prosecution case is that 'on the date of incident, Bhawarlal Kaluram Jain, who was the owner of the shop, left the shop at around 1.30 in the afternoon;. Before he left the shop, his wife Manjula had brought a tiffin for Mi. father Kaluram. Thereafter Bhawarlal and his wife left the shop while Kaluram remained in the shop, after closing the gates of the shop. The story of the prosecution is that P.W.4 Chhaganlal saw a person leaving the shop and the said person was wearing a red motor cycle helmet. Chhaganlal was suspicious and asked the name of that person. However, that person ran away on his motor cycle. He was chased for some time by some of the witnesses, however, he could not be apprehended. In the mean time Chaganlal went inside the shop and found that Kaluram was lying in an unconscious state and wire was wrapped around his neck. Thereafter the accused was arrested on 30th March 1997 and, the gold and silver ornaments were recovered at his instance. He was also identified by P.W 4 in the test identification parade which was held by the Special Executive Magistrate. Charge-sheet was filed against the accused. The trial Court, after appreciating the evidence on record, which was adduced by the prosecution, convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and for the offence punishable under Sections 394 and 449 of the Indian Penal Code.
3. The learned Counsel appearing for the appellant submitted that so far as the offence of murder is concerned, there was absolutely no evidence against the appellant. He submitted that the prosecution had relied upon the circumstantial evidence and that chain of circumstances, on which the reliance was placed by the prosecution, did not point towards the guilt of the accused. He further submitted that there was a delay in holding the identification parade. He also submitted that the guide lines, which have been laid down by the High Court in the Criminal Manual for the purpose of holding test identification parade, were not followed and, therefore, reliance could not be placed upon the said test identification parade. He submitted that even otherwise if was impossible for P.W.4, who has recognized the accused, to Identify his as the accused was wearing a helmet and P.W.4 had not given any description of the accused at that time nor did he give his name or physical features were also not disclosed by P.W.4. He submitted that therefore this entire evidence is liable to be discarded. He further submitted that so far as recovery of ornaments is concerned, the prosecution had not proved beyond reasonable; doubt that the ornaments were recovered at the instance of the accused. He further submitted that the or naments were recovered from a, scooter which was parked at Agripada and the said vehicle was a stolen vehicle and in respect of the said vehicle a case was pending in the Court. He submitted that on the ground of Issue estoppel benefit ought to have been given to the accused and, that the prosecution was estopped from relying on the said circumstance.
4. The learned APP appearing for the respondent/State, on the other hand, submitted that P.W.4 has stated in his cross examination that P.W.4 knew the accused and, that there was no further cross examination on this point by the defence. He submitted that there was no plausible explanation offered by the accused regarding recovery of gold and silver ornaments at his instance. He submitted that there was sufficient evidence brought on record which corroborates the role played by the accused in committing murder of deceased Kaluram and thereafter committing the said robbery. He submitted that the offence committed by the accused was a heinous offence.
5. We have given our anxious consideration to the submissions made by the learned Counsel appearing for the appellant and the learned APP appearing for the State/ respondent.
6. The submission of the learned Counsel appearing for the appellant on the point of Issue estoppel also cannot be accepted. Though a criminal case is pending regarding the stolen scooter in the Court, that does not disprove the fact of recovery of ornaments and cash at the instance of accused and, therefore, question of Issue Estoppel does not arise in this case. The question of issue estoppel would arise only if in a previous litigation in respect of the same issue an order has been passed in favour of the accused then in the subsequent case such issue cannot be allowed to be opened again. In the present case the case regarding the stolen scooter was still pending when the present case was decided by the trial court and even otherwise the fact of recovery of the ornaments from the scooter is not disproved because of the pendency of the case filed by a person who claimed to be the owner of the scooter which was allegedly stolen.
7. Considering the entire case on the point of identification of the accused, it is an admitted position that P.W.4 Chhaganlal is the only witness who is alleged to have seen the accused while he was leaving the shop and Admittedly the accused was wearing a helmet at that time. It is also admitted position that P.W.4 has not given any description of the accused, nor did he state his name in his statement before the police. He, however, has identified the accused in the test identification parade. P.W.4 in his cross examination has stated that the he knew the accused since he was working as motor mechanic in a nearby garage.
8. The prosecution has examined P.W.6, who is a panch witness, for the purpose of establishing the recovery of ornaments at the instance of the accused. In the recovery panchanama, golden ornaments in the form of 3 pair earnings; 5 pair butti; 3 finger rings; 1 pair jumka; 1 pendent; 1 bugdi and 1 chain were recovered and, white metal payals weighed about 2kg. 282 grams were recovered. The weight of the golden ornaments was about 51 grams 800 milligrams and the said gold was found to be of 23 carat gold. All these ornaments were recovered from a Blue coloured scooter MH-02F-7007 which was parked besides the foot path in front of Bombay Trunk Shop.
9. At the first blush though it appears that the evidence given by P.W.4 is not trustworthy, but considering the evidence in its totality, his evidence will have to be accepted. Firstly, because there is no cross examination of this witness regarding the statement which he has made in the cross examination that he was knowing the accused to be a person who was working in the motor garage. Since this is not disputed by the defence, it is possible that this witness had noted physical characteristics of the accused while he was leaving the shop and he was in a position to identify the accused even though he was wearing a helmet, Further in the test identification parade, all witnesses were also made to wear similar helmets and from amongst these persons P.W.4 identified the accused. This evidence is further corroborated by recovery which was made at the instance of the accused. All the ornaments were recovered in the original form at the instance of the accused from a scooter which was parked in front of the said shop. Even that ornaments, which were recovered, apart from being identified by the owner of the shop P.W.4 Bhawarlal, from his evidence it can be seen that he has stated in his evidence that he had told the police that the golden ornaments weighing about 50 to 60 grams were missing and cash amount Rs. 50,000/- was stolen and silver ornaments weighing approximately 2,5kg. were missing. The recovery; which is made at the instance of the accused tallies with the statement of P.W.I Bhawarlal in respect of weight and the description of the ornaments.
10. The prosecution has also examined P.W.3 Joseph Wilson Paul who was working as a Manager in Sun Hotel. He has stated in his evidence that on 15/3/97 at around 4.30 p.m. the accused went to his house with currency notes of Rs. 50,000/- and asked him to keep the said money and that he would return to collect the said amount. This witness has further stated that on 18/3/97 the accused demanded Rs. 13,000/- and he accordingly paid the amount of Rs. 13,000/-. The balance amount of Rs. 37,000/-, which were in the denomination of Rs. 100 and Rs. 50, was given by P.W.3 to the police and a panchanama of seizure of currency notes of Rs. 37,000/- was prepared. Therefore, this evidence of P.W.3 corroborates the fact that the accused after having decamped with the loot went to P.W.3 and kept an amount of Rs. 50,000/- with P.W.3 and, thereafter had returned after some time on 18/3/97 and had demanded Rs. 13,000/- out of the said amount. There is no reason to disbelieve the testimony of P.W.3 as he is an independent witness and, his evidence further corroborates the fact of recovery of cash amount and also the gold and silver ornaments at the instance of the accused. The accused has not offered any explanation regarding the fact of recovery of this amount at his instance. Thus, in our view, the prosecution has established beyond reasonable doubt that the accused had committed a robbery in the shop of P.W. 1; Bhawarlal Jain.
11. So far as the offence punishable under Section 302 of the Indian Penal Code is concerned, in our view, there is no evidence brought on record by the prosecution to indicate that the accused had committed the said offence. The prosecution has not relied on any other circumstance for the purpose of establishing the fact that the accused was responsible for the homicidal death of father of P.W. l Bhawarlal Jain. It is a well settled position in law that in the cases where the prosecution has relied on circumstantial evidence, each and every piece of circumstance has to be established and all these circumstances should, Unerringly point to the guilt of the accused, and that no other inference can be made from the circumstantial evidence which is brought on record. In the light of this well settled position of law, It will have to be seen, whether the prosecution has established beyond reasonable doubt that the accused had committed the murder of Kaluram Jain (Solanki).
12. In this regard the evidence of P.W. 1 and P.W.2 i.e. Bhawarlal and his wife Manjulal respectively does not assist the prosecution case in any manner. Admittedly, they had left the shop between 1.30 to 3 p.m. after the tiffin of lunch was given by P.W.2 to deceased Kaluram. The evidence of P.W. 3 also does not assist the prosecution case In this regard as he has stated in this evidence regarding the deposit of Rs. 50,000/- which was made by the accused at about 4.30 p.m. on the date of incident. P.W. 4 Chhaganlal also is not an eye witness to the incident of murder. He has merely stated that after he reached near the shop of Bhawarlal Jain he saw a person wearing helmet. He does not state that he had seen the accused inside the shop. Further the accused was not apprehended by P.W.4 and, according to P.W.4, he managed to escape. In his evidence he has stated that when he went inside the shop he found that Kaluram had blood stains on his face and on his clothes and that a black coloured wire was seen around his neck. P.W. 5 Gajendra Sanghvi has stated that the accused had kept his helmet in his shop on 29/3/97. This helmet was recovered at the instance of the accused on 1/4/97. P.W.6 Rajaram Jadhav is the panch witness who has been examined by the prosecution to establish recovery made at the instance of the accused. P.W.7 Narayan Gardas was the owner of Medical Stores situated at Kalachowki. The accused had demanded chloroform from him. But it was not immediately available in his shop and that after 4-5 days the accused again demanded chloroform from his and the accused informed him that the chloroform was required by his friend for using it to treat the plastic articles. P.W.8 Gajanan Pednekar was the owner of a shop known as Madhavrao Painter and he used to do the work of preparing sign boards. He has stated in his evidence that the accused had come to his shop and asked him to write a number on his new, scooter and accordingly he had painted the number MH-04-AD-7905 on the scooter of the accused. P.W.9 is the Special Executive Magistrate who conducted the test identification, parade. P.W. 10 Dagdu Kadam is the panch witness. He has stated in his cross examination that he was asked to put his signature on a document which was already prepared at Exhibit 20 Colly and 21. P.W. 11 Ravindra Shinde has stated in his evidence that he is a vegetable vendor and carrying on his business in the area of Ambewadi, Kalachowki. He was acted as a panch in respect of recovery of documents from Bajaj Chetak Scooter. Then prosecution has examined P.W. 12 Babhutmal Jain whose scooter had been stolen on 7/12/ 1996 and P.W. 13 Vijay Tasgaonkar who had performed Post mortem of deceased Kaluram Jain. The next witness is P.W. 14 Deepak Whagale who is a hand writing expert. And finally the prosecution has examined P.W. 15 Rolfie Periera - the Investigating Officer attached to Kalachowky Police Station.
13. From all this evidence, the prosecution has not been in a position to establish, in our view, that the accused had committed the murder of Kaluram Jain. Admittedly, there is no eye witness who has seen the accused committing the murder nor any circumstantial evidence worth the name on which reliance can be placed for the purpose of coming to the conclusion that the accused alone had committed the offence of murder of Kaluram. Merely because the articles were stolen from the shop of P.W. 1 Bhawarlal Jain, and were recovered at the instance of the accused, that by itself cannot prove the fact of offence of murder being committed by the accused. It is an admitted position that neither the blood stains were found on the clothes of the accused nor his finger prints were found at the scene of offence or on the person of the deceased, though P.W.4 had noticed blood stains on the face of deceased Kaluram and also on his clothes. The investigating officer has not sent the clothes of the deceased to the chemical analyser for analysis. Similarly, no blood stained clothes were recovered at the instance of the accused which could establish the presence of accused near the place where the deceased was found. Thus on the solitary instance of fact that the accused had committed offence of robbery itself would not automatically prove that he was also responsible for the death of Kaluram. It is well settled principle of law mere suspicion is not sufficient for the purpose of proving a fact and this fact has to be established by the prosecution by bringing on record legal proof of that fact. Thus, it is not possible to accept the prosecution Case that the accused had committed the murder of Kaluram Jain particularly when there is no iota of evidence in that regard. Benefit of doubt, therefore, will have to be given to the accused so far as the charge of murder of Kaluram Jain is concerned. The accused/appellant is, therefore, acquitted" of the charge of committing murder of Kaluram Jain. In the result we pass the following order: -
ORDER The Appeal is partly allowed.
The accused/appellant is convicted for the offence punishable under Sections 394, 499 of the Indian Penal Code and is sentenced to suffer R.I. for five years and also liable to pay fine to the tune of Rs. 1000/-and in default of payment of fine he shall suffer further imprisonment of one month.
The accused/appellant is, however, acquitted of the offence punishable under Section 302 of the Indian Penal Code.
The accused/appellant is in jail since 30/ 3/1997 and the period which he has undergone shall be set off against the sentence which is awarded by this Court. If the sentence which he has already undergone including remission which he is legally entitled to is more than five years, he shall be released forthwith unless he is otherwise required in any other case.
The order of the trial Court regarding disposal of Muddemal Property is confirmed.
Criminal Application No. 2314 of 2001 is for bail. It dose not survive In' view of the aforesaid order. It is disposed of.
Appeal is disposed of in the above terms.