Bombay High Court
Rajeshkumar Kunjbihari Dwivedi vs The State Of Maharashtra on 27 October, 2015
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1289 OF 2007
Rajeshmukar Kunjbihaari Dwivedi
Age: 22 years, Occu: Security,
Residing at Enterprises Bldg.,
Ground Floor, Security Staff Room,
Mumbai Central (W), Mumbai.
(Nashik Central Jail) ..Appellant.
(Accused )
Vs.
State of Maharashtra
(at the instance of Gavdevi Police Station
Mumbai) ..Respondent.
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Mrs. Nasreen S.K. Ayubi, appointed Advocate for Appellant.
Ms. R.M. Gadhvi, APP for Respondent-State.
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CORAM: Smt. V.K. Tahilramani, Acting C.J. &
A.S. Gadkari, J.
Reserved On: 21st September 2015
Pronounced On: 27th October 2015.
JUDGMENT (Per A.S. Gadkari, J.):
1 The appellant, original accused has challenged the judgment and
order dated 31st August 2007 passed by the Additional Sessions Judge,
Sessions Court, Greater Mumbai in Sessions Case No.392 of 2003 thereby
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convicting the appellant under Section 302 of the Indian Penal Code and
sentenced him to suffer life imprisonment and to pay fine of Rs.500/-. In
default of payment of fine to further undergo rigorous imprisonment for
one month. The appellant has further been convicted under Section 449 of
the Indian Penal Code and sentenced him to suffer rigorous imprisonment
for 7 years and to pay a fine of Rs.300/- and in default of payment of fine
to further undergo rigorous imprisonment for 15 days. The appellant has
also been convicted for the offence punishable under Section 397 of the
Indian Penal Code and sentenced to suffer rigorous imprisonment for 7
years. The Trial Court has directed that all the sentences of imprisonment
shall run concurrently.
It is to be noted here that the co-accused Michel Chakravarty
Patel is absconding since the date of commission of offence and therefefore
the Trial Court has directed that the muddemal property which was seized
under panchanama (Exhibit 33-A) be handed over to the complainant on a
bond that he shall produce the same whenever ordered by the Court. It is to
be noted here that the Superintendent of Nashik Central Prison has
submitted a report through the learned APP stating that the appellant was
released on parole leave on 27.6.2008 for a period of 30 days and since
then he has not returned to the jail and is absconding. She further submitted
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that crime bearing no.00 of 2014 under Section 224 has been registered
against the appellant at Nashik Road Police Station.
2 The facts which can be enumerated from the record and are
necessary to decide the present appeal can briefly be stated thus:
(i) The date of incident in the present case is 17.3.2003 between 10
p.m. to 11.00 p.m. The deceased Smt. Ramaben Somani aged about 70
years was residing alone at flat no.404, 4th floor, C-Block, Ashish Building,
Tirupati Apartments, Bhulabhai Desai road, Mumbai. Her husband expired
on 16.7.1999. One Balu Pawar was working as domestic servant for Smt.
Ramaben. Son of Smt. Ramaben Mr. Ashok Chandrakant Samani (PW-1)
and daughter Ms. Yogini Sahita (PW-4) were residing separately in
Mumbai. That on 17.3.2003, between 10 to 11.00 p.m. the neighbour of
Smt. Ramaben namely Smt. Anjali Parekh found the door of flat no.404
partly open and she also heard the sound of flowing of water from the tap
and therefore she gave a message on phone to the security guard and asked
him to verify the same. As there was no response on the phone from Smt.
Ramaben, the said neighbour Smt. Anjali Parekh gave phone message to
her son Ashok (PW-1).
(ii) That Ashok (PW-1) along with his sister Ms. Yogini Sahita (PW-4)
rushed to the flat of Smt. Ramaben. They alongwith security guard Anil
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Ghuge entered the flat and found Smt. Ramaben lying in pool of blood in
the dining hall. They tried to shake Smt. Ramaben, but there was no
response. They ascertained the fact that Smt. Ramaben has expired due to
injury suffered by her. They thereafter found that the drawer of cupboard of
Smt. Ramaben was open and the house-hold articles were lying scattered.
They suspected that Smt. Ramaben was murdered for the purpose of theft
and the cash amount of Rs.2 lacs along with other articles were missing
from the said house.
(iii) The Police recorded the complaint of Ashok (PW-1) and
registered a crime bearing no.63 of 2003 under Sections 397 and 302 of the
Indian Penal Code. During the investigation, the police noticed two letters
sent by the courier which were lying near the dead body of Smt. Ramaben.
The police sent the dead body of Smt. Ramaben for conducting
postmortem examination. The Medical Officer informed that the cause of
the death Smt. Ramaben was due to "shock due to incised wounds and her
death was unnatural". During the investigation, the police found that the
appellant who was working with the Navshakti Security Force was on duty
upto 14th March 2003 at Tirupati Apartments and subsequently proceeded
on leave. Another witness PW-23 namely Dinesh D. Mishra, the supervisor
of Navshakti Security Force informed the police that though the appellant
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was not on duty on the date of incident i.e. 17.3.2003, he saw the appellant
entering the building of the deceased on that date. During the course of
investigation, the Investigating Officer arrested the appellant from his
native place in Allahabad District and brought him at Mumbai on
27.3.2003. The appellant when was in the police custody expressed his
willingness to discover the articles which he had robbed while committing
the offence from the room belonging to the absconding accused Michel
Chakravarty Patel.
(iv) Accordingly, articles belonging to deceased Smt. Ramaben were
discovered at the instance of appellant from the room belonging to
absconding accused Michel Chakravarty Patel. That the appellant was sent
for medical examination to the police hospital Nagpada where the doctors
obtained the hair from scalp of the appellant and also took his blood for
blood grouping. The said articles were sent for Forensic Laboratory for
examination. After receipt of the Chemical Analyzer's report and other
related documents, the police submitted charge sheet in the Court of
Metropolitan Magistrate, Mumbai.
(v) The learned Metropolitan Magistrate committed the said case to
the Court of Sessions in view of the Section 209 of Cr. P.C. After committal
of the said case, the Trial Court framed charge below Exhibit-2 on
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29.6.2004 for the offences punishable under Sections 449, 397, 302 of the
Indian Penal Code and under Section 37(1) read with Section 135 of
Bombay Police Act. The said charge was read over and explained to the
appellant in vernacular language. The appellant denied the charge and
claimed to be tried. The defence of the appellant was of total denial and
false implication. The appellant in his defence stated that the recovery
effected by the police under Section 27 of the Evidence Act was a false
recovery. The learned Trial Court after recording the evidence and after
hearing the parties to the said case, was pleased to convict the appellant by
the impugned judgment and order dated 31st August 2007.
3 Heard Mrs. Nasreen S.K. Ayubi, Advocate appointed for the
appellant and Ms. R.M. Gadhvi, the learned APP for the State and with
their assistance we have perused the entire record pertaining to the present
case.
4 With a view to prove the guilt of the appellant, the prosecution
in support of its case has examined in all 24 witnesses. After taking into
consideration the entire evidence on record, it is clear that the present case
is based on circumstantial evidence. It is the settled position of law that in a
case of circumstantial evidence the circumstances on which the prosecution
relies must be consistent with the sole hypothesis of the guilt of the
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accused. In a case resting on circumstantial evidence, it is incumbent for
the prosecution to prove each and every circumstance on which it proposes
to rely. The circumstances so proved should be of conclusive nature i.e.
they should have a definite tendency of implicating the accused. The
circumstances so established should form a complete chain which should
exclude every hypothesis of innocence and unquestionably point towards
the guilt of the accused. In other words the circumstances should be
conclusive i.e. accused and the accused alone has committed the crime.
5 In view of the aforesaid settled position of law now let us
analyze the evidence which is on record and adduced by the prosecution in
support of its case.
6 PW-1 Ashok and PW-4 Smt. Yogini are the son and daughter of
deceased Smt. Ramaben. PW-1 in his testimony has stated that deceased
Smt. Ramaben was his mother. He has three sisters. All the said three
sisters are married and are residing with their respective husbands since
their marriage. He was also residing separately. His mother was residing at
flat no.404, 4th floor, Ashish building. His mother was alone residing in the
said flat. There was a servant by name Balu (Malu) who was serving with
his mother. The said servant used to sleep outside the flat in the corridor of
the building during the night. That on 17.3.2003 at about 11.00 p.m. he
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received phone call from the neighbour namely Smt. Anjali Parekh and she
informed him that the entrance door of his mother's flat was half open and
the noise of water from the tap was being heard. She also tried to contact
his mother on intercom but there was no response. PW-1 therefore
contacted his elder sister Yogini Sahita and asked her to accompany her to
the flat of his mother. After reaching Tirupati Apartments they contacted
security guard namely Anil and thereafter PW-1, PW-4 and the said Anil
went to the said flat. After reaching the said flat, they noticed that the
entrance door was open and lock was also in open condition. They entered
in the flat and found that their mother was lying in the pool of blood in
living room (hall) of the said flat. They tried to shake her mother, however,
they noticed that there was no response and their mother was not alive.
They also found that the cupboard and other articles were ransacked.
Shortly thereafter within 15 minutes police came to the spot. His sister
namely Smt. Yogini Sahita (PW-4) was aware that Smt. Ramaben used to
keep Rs.2 lacs in cash in the cupboard and the said amount was found to be
missing. PW-1 and police also found that the cupboard from the 2 nd
bedroom was also ransacked. The police thereafter recorded his statement.
PW-1 has further deposed that fists of both hands of his mother were in tied
condition. During the search of the said house, the police found one saree
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having blood stains on it in the kitchen. The police prepared panchanama
of scene of offence. This witness has also identified the articles which were
belonging to the deceased Smt. Ramaben namely the clothes which were
on the person of the deceased Smt. Ramaben on the date of incident,
yellow metal necklace with white colour stones and ear-rings and one
white metal box with two small tortoises and one fish and one white metal
crocodile , one ladies wrist watch of Titan company having leather belt.
The said articles are Article 8 (colly.), Article-9 and Article-10 on record.
PW-1 has specifically stated that the said articles were in use of his mother.
He also identified the said white metal box with two small tortoises with
one fish and one crocodile which were in the use of his mother and were
kept in Devghar and his mother used to handle those articles at the time of
worship. PW-4 Smt. Yogini Sahita, the daughter of deceased Smt.
Ramaben and sister of PW-1 has also deposed in similar lines with that of
Ashok (PW-1). PW-4 has also identified the articles which are on record to
be of Smt. Ramaben i.e. her mother.
It is to be noted here that the aforesaid articles i.e. article nos.8,9
and 10 were discovered at the instance of appellant by effecting
panchanama under Section 27 of the Evidence Act, in the presence of
panch-witness Mr.Chandrakant S. Patil (PW-6). The said witness has
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proved the panchanama which is at Exhibit 33-A. In the cross-examination
of PW-1, PW-4 and PW-6, no material which is useful to the appellant has
been elicited at the instance of the appellant.
7 PW-7 Santnath D. Tiwari, the supervisor of Navshakti Security
Force is examined to show that the appellant was working in the said
company and was posted at Tirupati Apartments on 14.3.2003. This witness
has produced the attendance register and a pay slip which are at Exhibits 36
and 37 respectively. PW-5 is Hemant L. Mandare, a delivery boy attached
to Courier company namely S.K. Services Courier who on 11.3.2003
delivered two envelopes in the name of the deceased Smt. Ramaben which
were accepted and acknowledged by the appellant by signing on the same.
The said two envelopes were found in the living room where the dead body
of deceased Smt. Ramaben was lying. PW-9, PW-10 and PW-11 are the
witnesses to the panchanamas which are at Exhibits 44 to 56 wherein a
specimen signatures of the appellant were taken by the police which were
subsequently forwarded to the hand-writing export for matching the said
hand-writing with hand-writing which was on envelopes. PW-12 Mr.
Jaynat K. Aher, the hand-writing expert deposed that there was similarities
between the questioned documents and the signatures of the appellant
which were taken as specimen signatures. Thus, the prosecution has proved
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the circumstance that the appellant was on duty on 11.3.2003 and received
two envelopes by signing the same on behalf of the deceased Smt.
Ramaben. The prosecution has further proved by examining PW-7 that the
appellant was on duty at Tirupati Apartments upto 14.3.2003. The evidence
of PW-7 also discloses that the appellant was on duty at Tirupati
Apartments between 1.3.2003 to 14.3.2003 and proceeded on leave from
15.3.2003.
8 The prosecution has examined PW-23 namely Dinesh D.
Mishra, the supervisor of Navshakti Security Force who has stated that he
saw appellant entering the premises at Tirupati Apartments at about 9.45
p.m. on 17.3.2003. This witness had asked the appellant that 'you have
taken leave and where were you going'. The appellant had replied that he
had kept his uniform inside the said building and he was going to pick it up
and thereafter the appellant went inside the building. The appellant
returned after 45 minutes and upon being asked by PW-23 whether the
appellant had brought his uniform, the appellant replied in the negative and
left the place hurriedly. PW-23 further deposed that at about 10.45 p.m. on
the same day, he received a message on intercom that the door of the flat of
Smt. Ramaben was ajar. There was no response from inside. In the cross-
examination, no material which is useful to the appellant has been elicited.
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9 The next and most important circumstance on which the
prosecution has relied is that the scalp hairs of the appellant were found in
the fists of deceased Smt. Ramaben. PW-14 Dr. Vinod R. Agarwal who
conducted autopsy on the dead body of Smt. Ramaben has stated that he
retrieved scalp hairs from the fists of both hands of the deceased as the
hairs were clenched in the fists of the deceased. That the samples were
sealed and labelled and were handed over to the Investigating Officer for
sending the same to the Chemical Analyzer.
ig The Column 21 of the
postmortem notes also discloses that the hairs were removed from both the
hands separately. PW-16 is Dr. Abasaheb Chavan was the Medical Officer
then attached to Jagpada Police Hospital and had taken blood samples and
scalp hairs of the appellant on 3.4.2003. The Chemical Analyzer's report
which is at Exhibit 121 makes it very clear that the scalp hairs which were
found in the hands of deceased Smt. Ramaben Somani and that of the
appellant are similar. This is the most incriminating circumstance against
the appellant that the hairs from scalp of the appellant were found in the
fists of deceased Smt. Ramaben. The doctors who performed postmortem
examination had retrieved the said hairs while performing postmortem
immediately on 17.3.2003/18.3.2003 and the appellant was arrested after
considerable period i.e. 27.3.2003 from his native place. We find that this is
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the most important circumstance in the chain of circumstances which have
been put forth by the prosecution against the appellant.
10 The prosecution has examined PW-6 Chandrakant Patil in
whose presence the clothes of the appellant namely pant and shirt which
are article nos.13 and 14 respectively were discovered at the instance of the
appellant. The said articles were having blood stains on it. The Chemical
Analyzer's report shows that the blood group of the deceased Smt.
Ramaben was "AB" and the blood stains which were found on the clothes
of the appellant were of the blood group "AB". The appellant did not offer
any explanation about the finding of a human blood which is the blood
group of deceased on his clothes while recording his statement under
Section 313 of Cr. P.C. This is an important circumstance in the chain of
circumstances.
11 The prosecution has thereafter relied on the circumstance of
discovery of the incriminating articles from the appellant. PW-6
Chandrakant Patil, is also a panch-witness to the discovery panchanama of
the articles which were recovered at the instance of appellant from the
room of absconding accused Michel Chakravarty Patel by effecting
discovery panchanama under Section 27 of the Evidence Act at Exhibit 33-
A. The said articles which are article-8 (collectively), article-9 box and
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article 10 wrist watch of deceased Smt. Ramaben have been identified by
PW-1 and PW-4 as those of the deceased.
12 Thus, it is clear that the circumstances against the appellant are
namely (1) he was seen by PW-23 while entering into the building of the
deceased on 17.3.2003 at about 9.45 p.m., though he was on leave from
14.3.2003 from his duty, (2) finding of scalp hairs of the appellant in the
fists of the deceased at the time of performing the postmortem examination
and its matching with that of appellant by the Chemical Analyzer's report,
(3) finding of blood stains of the deceased on the clothes of the appellant
which are of "AB" group and which have been proved by the Chemical
Analyzer's report, and (4) the discovery of the ornaments and/or
incriminating articles belonging to the deceased at the instance of the
appellant in the presence of PW-6 and identification of the said articles by
PW-1 and PW-4 i.e. son and daughter of Smt. Ramaben.
13 Thus, after taking into consideration the entire evidence
available on record, we are of the considered opinion that the prosecution
has beyond reasonable doubt proved the circumstances which undoubtedly
form a complete chain and which also rules out the hypothesis that any
other person than the appellant is the perpetrator of the present crime.
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14 Thus after taking into consideration the entire evidence
available on record, the circumstances so proved by the prosecution are of
conclusive in nature i.e. they have definite tendency of implicating the
appellant. The circumstances so established are forming the complete chain
which exclude every hypothesis of the innocence of the appellant and
unquestionably point the finger of guilt towards him. In our opinion, the
circumstances which are emerging from the record are capable of only one
inference that the appellant has committed the present crime. The
circumstances adverted to, by us, completes the chain of circumstances and
the circumstances exclude every hypothesis of innocence of the appellant
and unquestionably points towards the guilt of the appellant.
15 We find no merits in the present appeal and is accordingly
dismissed.
16 Before parting with the present judgment, we may place on
record the efforts put in by the learned Advocate Mrs. Nasreen S.K. Ayubi
appointed by the Legal Aid Panel in preparing the concise notes of
evidence in tabular form while assisting the Court and we quantify her fees
at Rs.5000/- to be paid to her by the High Court Legal Services Committee.
(A.S. GADKARI,J.) (ACTING CHIEF JUSTICE )
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