Bombay High Court
Iqlak Fakir Mohammad Shaikh vs The State Of Maharashtra on 16 November, 2015
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.249 OF 2009
Iqlak Fakir Mohammad Shaikh ]
Aged about 27 Yrs., Occ.: Repairing ]
R/at Yarkhan Complex, 416, ]
New Mangalwar Peth, Pune - 411 011. ]
[At present in judicial custody and ] .... Appellant /
lodged at Yerwada Central Prison, Pune] ] [Org. Accused No.1]
Versus
The State of Maharashtra ig ] .... Respondent
Mr. Sachin B. Chandan, Appointed
Advocate, for the Appellant.
Mr. H.J. Dedhia, A.P.P., for the Respondent-
State.
CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 16TH NOVEMBER, 2015.
ORAL JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
1. The Appellant / Original Accused No.1 in Sessions Case No.230 of
2006, who stands convicted by the Judgment and Order dated 15 th
January, 2009, passed by the Additional Sessions Judge, Pune, has
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preferred this Appeal challenging his conviction and sentence for the
offences punishable under Sections 302, 201 and 380 of the IPC. By the
impugned Judgment, Appellant is sentenced to suffer imprisonment for life
and to pay fine of Rs.5,000/-, in default to suffer S.I. for nine months for
the offence punishable under Section 302 of the IPC, whereas he is
sentenced to suffer R.I. for seven years and to pay fine of Rs.5,000/-, in
default to suffer S.I. for nine months for the offence punishable under
Section 201 of the IPC and R.I. for three years and to pay fine of
Rs.1,000/-, in default to suffer S.I. for three months for the offence
punishable under Section 380 of the IPC. All the substantive sentences
are to run concurrently and he is held entitled to set off for the period
already undergone in Jail from 8th January, 2006.
2. Facts, as are necessary, for deciding this Appeal may be stated as
follows :-
Deceased Dr. Gudrun was a German lady and was residing in the
Flat No.8 in "C" Building of Liberty Society at Koregaon Park, Pune. She
was acquainted with the family of PW-1 Dr. Farookh Wadia, PW-2 his
daughter Shirin Wadia and PW-3 his wife Statira Wadia. She was also
having acquaintance with PW-4 Dr. Tonny Panackal and PW-5 Mohan
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Agashe. She was not seen alive by these persons after 31 st December,
2005. Her maid-servant PW-6 Manisha Chavan has also lastly served in
the house of the Deceased on 31st December, 2005. Though she visited
the house of Deceased on 2nd January, 2006, and thereafter she found it
to be locked and closed. As all these witnesses neither heard from the
Deceased nor seen her after 31st December, 2005, they became
suspicious that something might have gone wrong with her. PW-1 Dr.
Farookh Wadia hence contacted PW-28 PI Mahendra Pardeshi of Bund
Garden Police Station and with his assistance, with the spare key, which
was lying with PW-3 Mrs. Statira Wadia, the flat was opened. Inside the
flat, they found the beheaded body of the Deceased lying in the bathroom
with the blood stains spread on the plastic curtains of the bathroom and its
walls. Her dead body was identified by PW-1 Dr. Farookh Wadia and PW-
3 Mrs. Statira Wadia. The Inquest Panchanama of the said dead body
was drawn vide Exhibit-42 by PW-26 API Vithal Shinde and the dead body
was referred for postmortem examination. However, before doing it, PW-8
Dattatraya Kulkarni clicked the photographs of the dead body and the
scene of offence. PW-9 Dr. Shreekant Chandekar conducted the autopsy
over the dead body on 8th January, 2006 and found seven chopped
wounds on the base of the neck and several stab injuries on the rest of
the body.
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3. PW-28 PI Pardeshi, in the meanwhile, recorded the complaint of
PW-1 Dr. Farookh Wadia vide Exhibit-27 and on the said complaint, C.R.
No.21 of 2006 came to be registered. He took over further investigation of
the case. On the spot of incident, he drew the Scene of Offence
Panchanama (Exhibit-68) and collected one cheque drawn on ICICI Bank,
Kondhawa Branch, Pune, having blood stains thereon. Further, he also
collected other blood stained articles from the spot like the mat, curtains
etc. The inspection of the said flat was taken in the presence of the
witnesses and it was transpired that from the said flat, one set of
computer of Samptron Make, one colour T.V. of Philips Make and one
Diskman of Sony Company were found missing. PW-2 Shirin and PW-3
Statira also disclosed that the silver bunch of keys, which Deceased used
to hang to her waist, was also missing from the dead body. Their
statements to that effect then came to be recorded.
4. On the same day, at about 9 pm, on the tip off, the Appellant came
to be arrested, when he came to the house of his brother-in-law at
Sunshine Tower, Koregaon Park. He was brought to the Police Station
and his search was taken. In the said search, one silver bunch of seven
keys was found. On the next day, it was shown to PW-2 Shirin, who
identified the same as belonging to the Deceased.
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5. Meanwhile, the Appellant was arrested under Panchanama (Exhibit-
70). At the time of arrest, some biting marks and injuries were found on
the hand of the Appellant and, therefore, he was referred for medical
examination. During custodial interrogation, the Appellant guided the
Police and Panchas to Mundhawa-Kharadi Bridge and from the river bed,
he produced one black bag containing two blood stained knives and the
head of the human being, with injuries thereon. They were seized under
Panchanama (Exhibit-98). The head was sent to Sassoon Hospital, Pune
and it was verified that it belonged to the dead body of the Deceased.
6. During the course of further investigation, at the instance of the
Appellant, the stolen articles, like, the computer, the T.V. and Diskman
came to be seized under Panchanama. The clothes of the Appellant were
also seized at his instance u/s. 27 of the Evidence Act, with blood stains
thereon. They were also sent to Chemical Analyzer.
7. As a part of further investigation, the statements of various
witnesses were recorded. It was found that the biting injuries found on the
hand of the Appellant were tallying with the dental impressions of the
Deceased. It was also revealed that the cheque drawn on the ICICI Bank
was from the account of the Appellant. In interrogation of the Appellant,
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the role of Accused No.2 Mohd. Shafi Mohd. Yakub Shaikh, from whom
the stolen TV was recovered, also transpired. Hence, he was arrested.
Thus, after completion of due investigation, Charge-Sheet came to be
filed in the Court of Judicial Magistrate, First Class, Pune on 3rd April,
2006. In due course, the case was committed to the Sessions Court.
8. The Trial Court framed charge against the Appellant vide Exhibit-2.
The Appellant pleaded not guilty and claimed trial, raising the defence of
innocence and false implication.
9. In support of its case, the Prosecution examined in all 28 witnesses
and on appreciation of their evidence, the Trial Court held the guilt of the
Appellant to be proved beyond reasonable doubt for all the offences
charged against him and convicted and sentenced him, as aforesaid.
Accused No.2 Mohd. Shafi Mohd. Yakub Shaikh was, however, acquitted
giving him the benefit of doubt.
10. This Judgment of the Trial Court is challenged in the present Appeal
by learned counsel for the Appellant, whereas, supported by the learned
A.P.P. In our considered opinion, before adverting to the rival submissions
advanced by them at bar, it would be useful to refer to the evidence on
record.
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11. This is a case of brutal murder of an old German lady of 79 years,
who was residing all alone in the flat. The case of the prosecution is based
on the circumstantial evidence alone and at the outset itself, we are
constrained to observe that the circumstances proved on record by the
prosecution in the present case are so strong and forbidding, forming a
chain so complete that no other inference but of the guilt of the Appellant
can be drawn from the proved circumstances on record. The
circumstances relied upon by the prosecution can be categorized as
follows :-
Recovery of beheaded body of the Deceased from her flat
12. The first and foremost circumstance relied upon by the prosecution
is that of the homicidal death of Deceased Dr. Gudrun. There is evidence
of PW-1 Dr. Farookh Wadia, PW-2 his daughter Shirin and PW-3 Statira,
his wife, which revealed that they did not hear from the Deceased since
31st December, 2005. As per evidence of PW-2 Shirin, Deceased was
lastly seen in her flat on 30th December, 2005. Thereafter, when she made
phone call to the Deceased on 2nd January, 2006, there was no reply. Upto
6th January, 2006, there was no information at all about the Deceased.
There is also evidence of PW-6 Manisha Chavan, who was working as
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maid-servant in the house of the Deceased that on 31st December, 2005,
Deceased had asked her to clean her another flat in "D" Building of Liberty
Society. Thereafter, on 2nd January, 2006, when she reported for her usual
work, she found that the flat of the deceased was locked from outside.
She waited there for 10 to 15 minutes and left. She again came on
Wednesday and Thursday, however, the flat was found locked.
13. The evidence of PW-1 to PW-3, Dr. Wadia and his family members,
reveal that as they did not hear from the Deceased for a long time, they
got suspicious, especially, when they came to know from Dr. Shanti Pappu
that Dr. Gudrun has not been to Chennai, where she was supposed to go.
Hence they informed the Police and then along with the Police, they went
to the flat of the Deceased. PW-3 Mrs. Statira Wadia was having the
spare keys, with which they opened the flat of the Deceased in the
presence of PW-28 PI Pardeshi and other Police Officers. There they
found the beheaded body of the Deceased lying in the bathroom. There
were some dry blood stains on the bathroom curtains and the walls.
Telephone wire of the flat was also cut off. The evidence of PI Pardeshi
also reveals that near the dead body, they found several articles, like, the
pamphlet of Vasundhara Herbal Beauty Saloon and Slimming Centre, one
wrist watch of golden colour, one blood stained napkin and, most
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importantly, one cheque drawn on ICICI Bank, Kondhawa Branch, Pune
having blood stains thereon were found. The photographs of all these
articles and the dead body were taken and then dead body was referred
for postmortem examination to Sassoon Hospital, Pune.
Homicidal Death
14. The evidence of PW-9 Dr. Chandekar, who was attached to
Sassoon Hospital, Pune and who has conducted the postmortem, reveals
that, on examination of the dead body, he observed that the changes of
decomposition were present; lividity was minimal and discolouration of
internal organs was also minimal, thereby indicating significant blood loss
from the body. On internal examination of chest, he found left infra
clavicular hemorrahge 3 x 4 cm, hyoid, thyroid were missing; lungs and
heart were also decomposed and no blood was present in the heart cavity.
15. He found on the dead body, as many as, twenty-two external
injuries, which were in the nature of incised and stab wounds along with
abrasions, with corresponding internal injuries.
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Recovery of the head and the knives at the instance of the
Appellant
16. Meanwhile, PI Pardeshi, on tip off, has arrested the Appellant on the
very same night and in the search of the Appellant, one silver bunch of
seven keys was recovered, which later came to be identified by PW-2
Shirin as belonging to the Deceased. During Police custody on the next
day, the Appellant gave a disclosing statement in the presence of the
Panch PW-21 Somnath Taru. His statement was reduced to Memorandum
Panchanama (Exhibit-97). Thereafter, the Appellant guided the Police and
Panchas to the Mundhawa-Kharadi Bridge. From the railings of the
Bridge, he showed the black bag, which was lying in the river-bed. Then
Appellant took the Police and Panchas to the end of the river-bed and
opened the said bag. There they found the head of a woman in one
compartment and two knives with blood stains thereon in another
compartment of the bag. These articles were seized under Panchanama
(Exhibit-98). The head was sent for postmortem examination.
17. PW-9 Dr. Chandekar has conducted the postmortem on the head on
9th January, 2006. On gross examination of head and neck portion of the
body, along with rest of the portion i.e. trunk and limbs, considering sex
complexion, size and proportion with reciprocally corresponding parts at
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site of separation, he has opined that both the parts, the trunk and the
head, were belonging to one and the same person i.e. the Deceased. He
found several incised wounds on the head part, which he has noted in the
Postmortem Report. De-composition was also present to some extent. He
referred the trunk and head to Anatomy Department for the purpose of
getting them identified and they were found to be of the same lady by
Anatomy Department also. According to Dr. Chandekar, the cause of the
death was "multiple injuries with evidence of alcohol consumption". He
has further opined that the incised and chopped injuries found on the body
of the Deceased were possible by sharp edged weapons, like, knives,
Article Nos.9 and 10, recovered at the instance of the Appellant. He has
further opined that the injuries found on the hands and forearms of the
Deceased were defence injuries, which might have been caused while
she was resisting the attack.
18. The only point on which evidence of Dr. Chandekar is challenged is
that, according to him, the decomposition process has just started as
regards the head part. Hence, it is submitted that if the death has
occurred on the night of 31st December, 2005 or on 1st January, 2006, then
the process of decomposition should have been completed by the time
postmortem examination was conducted on 9th January, 2006. It is
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submitted that Dr. Chandekar has admitted that the process of
decomposition of the head, if completed, would have resulted into the
peeling of the superficial skin, the dropping of scalp hair and liquefying of
eye balls. It is urged that, as none of these signs were present, in the
present case, it would be difficult to accept that the death had taken place
six to seven days prior to the recovery of the head. However, PW-9 Dr.
Chandekar himself has given explanation for the delay in the process of
decomposition of the head. According to him, cold atmosphere and
increased moisture of surrounding area had delayed the process of
decomposition. In the instant case, the head was found in the river-bed
and, secondly, it was the month of January; therefore, of biting cold.
Hence, naturally, as regards the head, the decomposition process was
delayed. It was on-going, though not complete. As deposed by him, only
in case of extreme decomposition, there can be the symptoms, like, the
peeling of superficial skin, dropping of scalp hair etc., which was not the
case herein.
19. As to the grievance of the learned counsel for the Appellant that the
evidence of the Panch PW-21 Somnath Taru reveals that at the time of
Memorandum and Recovery Panchanama of Appellant, the Appellant was
handcuffed by the Police and hence his statement recorded under Section
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27 cannot be said to be voluntary one, this grievance is without any legal
basis, in view of the law laid down by the Apex Court in Gurudeep Singh
@ Deep Vs. State (Delhi Administration), AIR 1999 SC 3646. In this
reported authority, the Apex Court has held that, "the fact of handcuffing of
accused or presence of another policeman in recording room with chain of
his handcuff in the hand or presence of armed guards outside the room
cannot be a ground to turn the confessional statement as made in-
voluntarily". The Apex Court held that such statement is admissible in
evidence.
20. In our opinion, the recovery of the head of the Deceased, along with
the knives, at the instance of the Appellant, in pursuance of the
memorandum statement given by him under Section 27 of the Evidence
Act, is more than a clinching piece of proof against the Appellant.
Absolutely, nothing is elicited either in the cross-examination of the
Investigating Officer or even in the cross-examination of the Panch PW-21
Somnath Taru to disbelieve them in any way. There is also no cross-
examination of PW-9 Dr. Chandekar to disbelieve the fact that the head
recovered at the instance of the Appellant was of the same lady i.e. Dr.
Gudrun, whose dead body was found in her flat.
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Presence of biting marks of injuries on the hand of Appellant
21. Another clinching piece of evidence against the Appellant is that of
the biting marks of injuries found on his hand at the time of his arrest.
There is evidence on record to that effect of PW-28 PI Pardeshi and the
Panch Witness PW-11 Khandu Shitole in whose presence the Appellant
was arrested on the very night. The Arrest Panchanama (Exhibit-70)
clearly refers to these biting injuries found on his hand. The evidence of
PW-20 Dr. Bhagwan Andhare proves that on 8th January, 2006, when
Appellant was referred to Sassoon Hospital for his medical examination,
he had given the history of human bite on 1 st January, 2006 at about 9:45
pm. On his examination, PW-20 Dr. Andhare found following injuries :-
(i) Healing tooth injury mark CLW on left hand thumb
2 x 1 cm, 2 cm x ½ cm dorsal aspect, base of
thumb one mark one palmer aspect ½ cm x ¼ cm
and on tip near base of nail 1 cm, black colour
mark.
(ii) Healing tooth mark on left hand index finger on
terminal inter phalangial joint one on medially and
one on laterally 1 cm x ¼ cm each.
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(iii) Tooth mark on left hand middle finger terminal
internal phalangial joint 1 cm x ¼ cm dorsaly.
(iv) Healed tooth mark left hand ring finger on terminal
inter phalangial joint. One on dorsal 1 x ¼ cm and
one on palmer aspect 2 x ¼ cm.
(v) Cut injury on the right hand index finger middle
phalangial 2 cm long two in number & ¼ cm broad
palmer aspect.
(vi) Cut injury on right hand palm thinar aspect in
between thumb and index finger 3 x ¼ cm into skin
deep.
(vii) CLW on right hand by pothinar region ¼ x ¼ cm.
(viii) Cut injury on right hand little finger terminal
phalans 2 cm long.
(ix) Abrasion on nose left side near eye 2 cm long, red
color.
22. According to him, Injury Nos.1 to 8 were caused within eight days of
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his examination. He has further opined that Injury Nos.1 to 4 could be
caused by the human teeth, whereas Injury Nos.5, 6 and 8 could be
caused by sharp object like knife. He has issued the medical certificate
accordingly vide Exhibit-93.
23. The evidence of PW-13 Dr. Vivek Pakhmode proves that in order to
verify whether biting injuries found on the hand of the Appellant were
possible due to the teeth of the Deceased, a panel of three Doctors was
formed, of which he was a member. They took the impressions of the
upper and lower jaws of the Deceased and they found that the biting
injuries appearing on the hand of the Appellant were tallying and were
possible by the teeth of the Deceased. It is clearly opined that all the
natural teeth, which might have caused these injuries, were present in the
jaw of the Deceased and these injuries could be caused due to biting
more than once.
24. There is absolutely no cross-examination of these witnesses to
challenge their evidence in any way. In our considered opinion, therefore,
the presence of the biting injuries on the hand of the Appellant, that too
caused by the human teeth of the Deceased, leaves again no manner of
doubt about the involvement of the Appellant in the offence, in the light of
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the fact that no satisfactory explanation has been offered by the Appellant
about the same.
25. There is also evidence of PW-14 Dr. Mukhatar Deshmukh, to whom
the Appellant has approached on 2nd January, 2006 with injuries on his
head and with a history that he has sustained those injuries in the quarrel
on the day of new year. He has given treatment to those injuries and the
medical certificate of the same is also produced on record at Exhibit-80.
This evidence again leads to no other inference but that of Appellant
sustaining injuries in the incident in question.
Recovery of stolen articles at the instance of Appellant
26. Another crucial piece of evidence is the recovery of the stolen
articles, again at the instance of the Appellant. There is evidence of PW-2
Shirin and PW-3 Statira proving that the Computer of Samptron Make,
Colour T.V. of Philips Make and Diskman of Sony Company were missing
from the house of the Deceased. Evidence of PW-28 PI Pardeshi goes to
prove that, during custodial interrogation with the Appellant, Appellant has
shown his readiness and willingness to produce these stolen articles. His
statement was reduced to Memorandum Panchanama (Exhibit-104) in the
presence of the Panch PW-25 Chandrakant Khamitkar. Thereafter, firstly,
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the Appellant guided the Police and Panchas to the house of his sister
PW-24 Rajiya Khan and at the instance of the Appellant, she produced the
Computer, which came to be seized under Panchanama. The statement of
PW-24 Rajia Khan was also recorded simultaneously. Further, the
Appellant guided the Police and the Panchas to the house of Accused
No.2 Mohd. Shafi Mohd. Yakub Shaikh, who, on the instructions of the
Appellant, produced the Colour T.V. of Philips Make along with its remote,
which came to be seized under Panchanama. Lastly, the Appellant guided
the Police and the Panchas to the house of PW-23 Vasim Tamboli, who
has produced the Diskman of Sony Company. All these three articles, i.e.
Article Nos.14, 15 and 16, which were seized from these witnesses under
Panchanama (Exhibit-105) were shown to the witnesses i.e. PW-1 to PW-
3, the members of Wadia family, and they have identified the same as
belonging to the Deceased. Thus, recovery of the stolen articles at the
instance of the Appellant, constitutes one more strong link in the chain of
circumstantial evidence connecting the Appellant to the offence.
27. The only ground on which the evidence relating to recovery of
stolen articles is challenged is that the Panch to the said Panchanama,
namely, PW-25 Chandrakant Khamitkar is a habitual Panch. In our
considered opinion, even if the evidence of the Panch is excluded from
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consideration, it will not affect the recovery evidence in any way. The legal
position relating to it is very well settled and time and again it is held that
there is absolutely no reason to disbelieve the evidence of the
Investigating Officer on this aspect. The law nowhere provides that there
has to be independent evidence of the Panch Witness to prove the
recovery evidence under Section 27 of the Evidence Act. If at all any
authority is required for this legal proposition, then one can safely place
reliance on the observations of the Apex Court in the case of State
Government of New Delhi Vs. Sunil, 2000 DGLS 1678, wherein the
Apex Court has held that, it is a fallacious impression that when recovery
is effected pursuant to any statement made by the accused, the document
prepared by the Investigating Officer contemporaneous with such
recovery must necessarily be attested by independent witnesses.
According to the Apex Court, the Court has to consider the evidence of
the Investigating Officer, who deposed to the fact of recovery based on the
statement elicited from the accused, on its own worth. As per Apex Court,
it is an archaic notion that actions of the Police Officer should be
approached with initial distrust. It was observed that, "when a Police
Officer gives evidence in Court that certain articles were recovered by him
on the strength of the statement made by the accused, it is open to the
Court to believe the version to be correct if it is not otherwise shown to be
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unreliable. It is for the accused through cross-examination of the
witnesses or through any other materials, to show that the evidence of the
Police Officer is either unreliable or at-least unsafe to be acted upon in a
particular case".
28. The same legal position is reiterated by our own High Court in the
case of Satyaprakash @ Suresh Shankar Dahiwale Vs. State of
Maharashtra, 2007 ALL MR (Cri.) 2451, wherein in the context of Section
27 of the Evidence Act, it was held that, "recording of confessional
statement of accused in the presence of independent witness is a rule of
prudence and not a legal requirement. In appropriate case, it is
permissible to rely on the evidence of the Investigating Officer unless it is
shown that he acted in a biased manner".
29. If these legal propositions are kept in mind, then whether the
independent witness was available or not at the time of recording the
statement of the Accused or at the time of recovery of articles at his
instance under Section 27 of the Evidence Act and whether the Panch
who has signed on the Memorandum and Recovery Panchanama, is
ultimately found to have acted in other Panchanamas also and hence his
evidence is excluded from consideration, the fact remains that the
evidence of Investigating Officer, in this case of PW-28 PI Pardeshi, has to
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be judged on its own worth. It cannot be discarded merely because the
Panch is found to be habitual one. In this case, we do not find that
Defence has succeeded in eliciting anything worth the name in the cross-
examination of PW-28 PI Pardeshi to discredit him or to suspect his
evidence in any manner so as to show that he has acted in a biased
manner.
30. As regards the submission advanced by learned counsel for the
Appellant that PW-24 Rajiya Khan and PW-23 Vasim Tamboli, both have
not supported the prosecution case and, therefore, the recovery evidence
is suspect, this submission also cannot hold any worth for the simple
reason that PW-24 Rajiya Khan is the sister of the Appellant, whereas,
PW-23 Vasim Tamboli is closely associated with the Appellant and that is
why the Appellant has given them the stolen articles. Hence, their turning
hostile cannot make any dent in the prosecution case.
Recovery of silver bunch of keys
31. As stated above, even the silver bunch of seven keys, which was
seized from the possession of the Appellant at the time of his arrest,
(under Panchanama Exhibit-70), was also properly identified as belonging
to the Deceased by PW-2 Shirin. Not only that, but the Investigating
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Officer has even confirmed that the keys in the said bunch were that of the
locks of the flats belonging to the Deceased. The evidence of the Panch
PW-11 Khandu Shitole and PI Pardeshi goes to prove the said
circumstance beyond reasonable doubt.
Finding of blood-stained cheque of Appellant at the scene of
offence
32.
The plea of Appellant that he is falsely involved in the case is
completely demolished by the presence of the blood stained cheque
found at the scene of offence near the dead body. The Panchanama of
the scene of offence (Exhibit-68) establishes that the signed cheque
drawn on ICICI Bank for the amount of Rs.20 lacs was seized from the
spot and it was having blood stains thereon. The evidence of the Panch
Witness PW-10 Ashok Deshmukh and PI Pardeshi is clear to that effect.
33. The prosecution has also examined PW-19 Mr. Akhatar Shaikh, the
employee of ICICI Bank to prove that the said cheque was from the
Cheque-Book issued in the name of the Appellant. The Appellant has not
explained as to how the said cheque reached to the scene of offence.
34. The presence of this cheque at the scene of offence also proves the
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motive, as alleged by the prosecution against the Appellant. As per
prosecution, the Deceased wanted to sell her another vacant flat in "D"
Building in Liberty Society and Appellant has approached her for the
purchase of the said flat with the cheque. But then finding her all alone
and with an intention to grab her property, he has assaulted her
mercilessly. There is further evidence of PW-15 Dilip Thakur, who was
working as Estate Agent, to whom the Deceased had told to search for the
purchaser of the flat and had given the key of the said flat to him on 24 th
and 25th December, 2005. Further, there is evidence of PW-12 Priti
Acharya, who had approached the Estate Broker Ibrahim and Ibrahim has
sent the Appellant along with this witness to show the flat in "D" Building of
Liberty Society. As per her evidence, the said flat belonged to German
lady, the Deceased in the case, and the present Appellant has shown the
said flat to her.
35. The evidence of PW-18 Abdul Inamdar, who was working as
'Supervisor' in Liberty Society, also goes to prove that the Deceased was
residing in Flat No.C-1 in the Liberty Society. She was having another flat
in the said Society in "D" Building, which she wanted to sell.
36. On the instructions of the Deceased, he has shown the said flat to
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the Estate Agents, namely, one Saroj and Ibrahim. Ibrahim was working
as Real Estate Agent in Koregaon Park and Ibrahim had shown the said
flat of Deceased to one customer through his brother-in-law i.e. the
Appellant.
37. In our considered opinion, this evidence is more than sufficient to
prove not only the involvement of the Appellant but also the motive on his
part to do away with the Deceased. For the sake of argument, if it is
assumed that the evidence as regards the motive is not clearly spelt out,
even then the fact remains that the motive is something which is within the
exclusive knowledge of the Accused and, therefore, the prosecution
cannot be expected to bring full proof evidence about the motive.
Moreover, again even assuming that motive is not established beyond
reasonable doubt, it is only one aspect of the prosecution case. When all
other circumstantial evidence is of a clinching nature, motive pales into
insignificance and can hardly become a deciding factor to tilt the balance
in favour of the Accused.
Blood stains of Deceased on clothes of Appellant
38. The prosecution, in the present case, has also relied upon the C.A.
Report (Exhibit-60), which prove that the human blood of "A" group was
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found on the shirt, pant and right shoe of the Appellant. The articles which
were found at the scene of offence, namely, the mat, the pamphlet, the
cheque, the wrist watch, even the curtains, were also found to be having
the human blood of "A" group, which was of Deceased. Appellant has not
offered any explanation as to how the stains of blood group of the
Deceased were found on his clothes. The said clothes were recovered
again at his instance under Section 27 of the Evidence Act, when he has
guided the Police and Panch to his house and produced the plastic bag
from his bathroom containing his clothes and the shoe, which came to be
seized under Panchanama.
39. Here in the case, therefore, there is ample and conclusive evidence
on record to prove the guilt of the Appellant beyond reasonable doubt.
Each and every circumstance alleged and proved by the prosecution, with
the help of cogent evidence, is individually also sufficient to seal the fate
of the case. The chain formed by these circumstances is so complete that
there is no other alternative but to hold that the Appellant and Appellant
alone is guilty of the offences charged and proved against him. The Trial
Court has, therefore, rightly convicted the Appellant. Appeal, hence, holds
no merit and, hence, stands dismissed.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [ACTING CHIEF JUSTICE]
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