Bombay High Court
Mayur Mulji Parmar And Anr vs The State Of Maharashtra on 6 May, 2016
Bench: V.K. Tahilramani
211 appeal 1151-09.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1151 OF 2009
1. Mayur Mulji Parmar. 38 yrs
2. Bharat Mulji Parmar, 35 yrs
of Bombay, adults,
Indian Inhabitants, res. at
Dharavi, Kumbharwada Tisriwadi,
by the side of Ram Mandir,
Dharavi, Mumbai 400 017 ..Appellants
versus.
The State of Maharashtra .
Through Mahim Police Stn.,
Mumbai, C.R.No.474 of 1999 ..Respondents
Mr. Shirish M. Gupte, Sr. Counsel, Mr. P.S.Pasbola i/b. Mr. Rahul
Arote for the Appellants.
Mr.H.J.Dedia, APP for the Respondent/State.
CORAM : SMT. V.K.TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
RESERVED ON : APRIL 20, 2016.
PRONOUNCED ON : MAY 6, 2016.
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JUDGMENT (PER ANUJA PRABHUDESSAI, J.)
1. The appellants are the original accused nos.1 and 3 in
Sessions Case No.275 of 2000, and shall be hereinafter referred to
as accused no1 and accused no 3. These accused have challenged
the impugned judgment and order dated 12.11.2009, whereby the
learned Session Judge, Mumbai convicted them for offences under
Section 302 r/w. 201 r/w 34 of IPC. They have been sentenced to
imprisonment for life and fine of Rs.1000/ each, in default R.I. for
one year for the offence under Section 302 r/w 34 IPC; and to suffer
R.I. for three years and fine of Rs.500/- each in default further R.I.
for six months for the offence under section 201 r/w 34 IPC.
2. The facts of the case in brief are as under:
On 23.10.1999, PW7 Dilip Herekar informed Mahim police, that a
suspicious looking gunny bag was lying on the footpath outside the
gate of BPT Quarters, Mahim. PW17 PI Suresh Angadi, PW8 Police
Constable Vishnu Ladkar and other police personnel visited the spot.
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They opened the gunny bag in presence of a pancha witness PW3
Ismail Mohd. Shaikh. The said bag contained a dead body of a
woman, about 22-25 years of age with hand and legs tied with a
nylon rope. The body was wrapped in a blue colour saree and a pink
colour bed sheet. There was a tattoo mark "Shree Ram" on the right
hand. There were several injury marks on the neck and stomach
and the body was partly burnt and smelt of kerosene. The inquest
and spot panchanama at Exh.13 was drawn by PW1 in presence of
PW3 Ismail Mohd. Shaikh and all the incriminating material was
seized under the said panchanama.
3. PW1 Raghvendra Thakur, being satisfied that the death was
homicidal, lodged the FIR at Exh.14 against unknown persons for
committing murder of the said unknown woman and further for trying
to destroy the evidence. He sent the body to Sion Hospital for post-
mortem. Dr.V.R.Dhapane, the then lecturer in forensic medicines, of
Sion Hospital conducted the postmortem over the body on
24.10.1999 and submitted the PM report at Exh.62 colly. He opined
that the death was due to Hemorrhagic shock following multiple
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wounds.
4. The investigation was taken over by PW19 Sr. PI Madhukar
Sankhe. Since the identity of the deceased was not revealed,
photographs of the body were published in news papers circulated in
Mumbai. PW19 also cross checked the missing complaints filed at
different police stations. One of such missing reports dated
24.12.1999 was lodged by the accused no.1, stating that his wife
Manjula was missing since 24.12.1999 at 5.30 a.m. The description
of said missing woman tallied with the description of the dead body,
hence the accused no.1 and his mother (the deceased accused
no.2) were called to identify the body. The accused no.1 and his
mother did not identify the body as that of Manjula. However, the
brother and the family members of the deceased Manjula identified
the body as that of Manjula.
5. Apprehending some foul play, the accused were placed under
arrest. There were injury marks on their person. The accused were
referred to Nagpada Police Hospital for medical examination. PW13
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Dr. Ashok Nandapure examined the accused; and recorded the
details of the injuries sustained by them and the other accused in the
certificates at Exh.47 to 56. He took blood samples of the accused
for blood grouping. The blood samples collected by this witness was
sent for CA Analysis. The CA reports at Exh. 52 and Exh.54 reveal
that blood of the accused no.1 was of 'A' group, and that of the
accused no.3 was of 'B' group.
6.
The investigating Officer, PW19 visited the house of the
accused in presence of panch witness PW4 Mulji Solanki. He
noticed that there were bloodstains on the walls, curtains, door etc.
Some hair and a piece of flesh was also found in the bathroom. All
the incriminating material, including a piece of cloth fiber and a nylon
rope found in the house were seized under the panchanama at
Exhibit 21.
7. In the course of interrogation, the accused no.1 made a
disclosure statement, pursuant to which one cane basket and knives
were recovered under panchanama at Exh.36 drawn in presence of
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PW6 Nishid Suvarna. The clothes of the appellants and a broken
mangalsutra of the deceased was recovered pursuant to the
disclosure statement made by the accused no.3 under panchanama
at Exh.44. The said clothes and the mangalsutra were forwarded to
CSFL, Mumbai for forensic examination.
8. Upon completion of the investigation, charge sheet was filed
against these accused, their mother Amrutaben (A2) and sisters
Pushpa (A4) and Hemlata Parmar (A5). The offence being Sessions
triable, the case was committed to the court of sessions. Charge
was framed and explained to the accused. The accused pleaded not
guilty and claimed to be tried. The prosecution in support of its case
examined 19 witnesses. Statements of the accused came to be
recorded under section 313 Cr.P.C. The defence of the accused
was that of total denial. The accused no.2 Amrutaben died during
the pendency of the trial and the proceedings were closed as
abated. The accused no 5 was held to be a juvenile and was
referred to JJB. The accused no.4 has been acquitted whereas
these accused have been held guilty and are convicted and
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sentenced as stated above. Being aggrieved by the said conviction
and sentence, the accused have preferred this appeal.
9. At the outset it may be mentioned that in the course of
arguments Mr. Gupte, the learned Sr. counsel for the accused had
brought to our notice that the findings recorded in the CA report,
which is the basis for conviction, were not put to the accused in the
statement under section 313 Cr.P.C. It was submitted that non-
questioning of the accused on this vital piece of evidence had
caused prejudice to the accused. Since the accused had raised the
plea of non compliance of Section 313 Cr.P.C. and had alleged
material prejudice, by order dated 7th April, 2016 this court directed
further examination of the accused under section 313 Cr.P.C.
Accordingly, the accused were examined under section 313 Cr.P.C
on findings of CA report.
10. We have perused the records and considered the submissions
advanced by Shri Gupte, the learned Sr. Counsel for the accused
and Shri Dedia the learned APP for the State. Undisputedly, there is
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no direct evidence connecting any of the accused with the
commission of the crime. The case of the prosecution is based upon
circumstantial evidence. In Krishnan v/s State represented by
Inspector of police (2008) 15 SCC 430, the Apex Court after
considering large number of its earlier judgments observed as
follows:
"This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence,
such evidence must satisfy the following tests:
(i)
the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(ii) those circumstances should be of definite
tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from
the conclusion that with all human probability the crime
was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence".
11. It is thus well settled that to convict a person on the basis of
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circumstantial evidence, all the circumstances relied upon by the
prosecution should be of conclusive nature and must be clearly
established. The chain of circumstances must be such as would
reasonably exclude the possibility of innocence of the accused and
should be consistent only with the hypothesis of the guilt of the
accused.
12. In the light of the above, we shall now consider whether in the
present case the prosecution succeeded in establishing the chain of
circumstances leading to an inescapable conclusion that the
appellant had committed the crime.
13. The testimony of PW7 Dilip Herekar reveals that on 23.10.1999
he had seen a suspicious looking gunny bag lying outside BPT
Quarters Gate, Mahim. PW7 informed PWI Raghvendra Thakur, PI,
attached to Mahim police station about the said gunny bag.
Thereupon PW1 went to the spot along with PW8 Police Naik Vishnu
Ladkar, PW17 Suresh Angadi and other police personnel. He
opened the gunny bag in presence of panch witness PW3 Ismail
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Mohd. Shaikh. The testimony of PW1, PW3, PW7, PW8 and PW17
vis-a-vis the panchanama at Exh. 13 reveals that the said gunny bag
contained a body of a woman aged about 20-22 years, wrapped in a
bed sheet and a saree. Her hands and legs were tied with a nylon
rope. There were no clothes over the body, her hair was cut, the
abdomen was cut and the internal organs were protruding out.
There were several injuries over the body. A tattoo mark "Shree
Ram" was seen on the right forearm. The body was partly burnt and
smelt of kerosene.
14. Being satisfied that it was a homicidal death, PW1 lodged the
FIR (Exh.14), pursuant to which crime no.474 of 1999 was
registered against unknown persons for the offences under Section
302, 201 of IPC. PW17 Suresh Angadi and PW19 Madhukar
Sankhe conducted further investigation. He seized all articles viz.
gunny bag, nylon rope, bed sheet, saree etc under panchanama at
Exh. 21, drawn in presence of PW4 Mulji Solanki. PW19 forwarded
the said incriminating material for CA analysis. The CA report at
Exh.81 reveals that the said saree, bed sheet, and the nylon rope
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were stained with human blood of 'B' group.
15. The inquest panchanama at Exh 17 was drawn in presence of
PW2 Mohd. Farooq and the corpse was sent to Sion Hospital for
postmortem. The prosecution has examined PW16 Dr. Mukesh
Shamrao Ghuge, who was attached as Lecturer at Forensic
Medicine, Sion Hospital, Mumbai. He has deposed that Dr. Dhakne,
who was also a lecturer in forensic department at Sion Hospital,
conducted the postmortem over the body of the said unidentified
woman. He had deposed that Dr. Dhakne had expired in a motor
accident in the year 2009. PW16 has further deposed that he had
worked with Dr.Dhakne for about 8-9 years and that he is conversant
with his handwriting as well as his signature. He has identified the
handwriting and the signature on the postmortem report at Exh. 62
colly, which was prepared by Dr.Dhakne.
16. PW16 has deposed that as per the postmortem report the body
was received in Sion Hospital mortuary on 23.10.1999 and that the
postmortem was performed on 24.10.1999 between 2.35 p.m. to
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4.30 p.m. As per the said postmortem report there were following
external injuries over the body:
i) Chop wound over left lateral aspect of neck.
ii) Chop wound over abdomen
iii) Chop wound on the right elbow flexer aspect.
iv) Chop wound on left elbow.
v) multiple incise wounds over forehead, face and
scalp.
vi) Chop wound on right forearm.
vii) incise wound on left palm
viii) incise wound on rt. leg above knee, below knee
viii) chop wounds on post aspect of knee, over
calf muscle, below knee, right ankle joint, left leg
above ankle jt. and
ix) abrasions over left shoulder and chest.
17. PW16 has deposed that the said injuries were ante-mortem
and fatal. He has deposed that Dr. Dhakne had opined that the
cause of death was because of shock due to multiple chop wounds.
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He has deposed that the said injuries could have been caused by a
sharp edged weapon. In his cross-examination, he has stated that
such injuries are not possible due to fall on a hard surface or a glass.
He has further stated that there were postmortem burns over the
body.
18. PW17 has deposed that he had made inquiries at the spot to
ascertain the identity of the said deceased lady, however, nobody
came forward to identify her. Since the identity of the lady was not
established, PW19 PI Madhukar Sankhe, got the news item as well
as photographs of the corpse published in various news papers and
news journals. He also crosschecked the missing reports at different
police stations. He has stated that he came across a missing report
no.105 of 1999 (Exh.75) lodged by Mayur Mulji Parmar (A1),
registered at Dharavi Police Station alleging that his wife Manjula
was missing from the house since 24.10.1999, 5.30 a.m. The
description of Manjula tallied with the description of the corpse. He
therefore called the accused no.1 and his mother (deceased A2) to
the police station to identify the body. He has deposed that the
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accused no.1 and his mother claimed that the body was not of
Manjula. PW19 thereafter called the brother and parents of Manjula
Parmar and showed them the belongings, which were recovered
from the gunny bag. One of the relatives of Manjula identified the
saree and sandals as of the deceased Manjula. PW19 thereafter
showed the body to the brother, father and other relatives of
Manjula. They identified the body as that of Manjula.
19.
PW14 Suresh Chawla is the brother of the deceased Manjula.
He has deposed that Manjula was his sister. She was engaged to
the accused no.1 in the year 1996 and that their marriage was
performed in the year 1997. PW14 has stated that on 24.10.1999 at
about 8 a.m. the father of the accused came to their house and told
them that Manjula had left their house at about 5 a.m to answer
natures call and that she had not returned. He has stated that the
father of the accused had told them that they were going to the
police station to lodge a missing report. He has stated that he and
his relatives searched for Manjula but they were unable to trace her.
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20. On 25.10.1999 at about 3.30 p.m. the accused no.1 told him
that he had received a phone call from the police station stating that
one dead body was found at Mahim. He has stated that the accused
no.1 had gone to the police station to identify the body. PW14 has
deposed that the accused no.1 had told the police that the body was
not of Manjula.
21. PW14 Suresh Chawda, has further stated that on 26.10.1999
he had seen a news report and a photograph of a dead body
published in the news paper "Mumbai Chowpher" and on seeing the
news report and the photograph he went to the police station along
with his aunt and told the police that the body was of Manjula. He
has stated that the police took them to Sion Hospital and showed
them the body. They identified the body as that of Manjula.
22. The evidence of PW11 Pramila Chawda, the sister-in-law of the
deceased indicates that on 24.10.99 at about 10 a.m. the father-in-
law of Manjula, had come to their house and informed them that
Manjula had left the house at about 5 a.m to answer nature's call
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and that she had not returned. She has deposed that she, her
husband and other family members searched for Manjula in nearby
locality from Churchgate to Borivali, but they could not trace her.
23. PW11 has stated that one of her neighbors had shown her
the newspaper "Mumbai Chowpher" in which a photograph of a dead
body was published. She has deposed that the photograph
appeared to be of Manjula. Hence, they went to Mahim Police
Station. The police showed them some photographs of a woman.
They confirmed that the body seen in the said photographs (exh.19
colly) was that of Manjula. She has stated that she was also shown
a saree and a pair of chappals which were found along with the
body. She has deposed that it was the same pair of chappals which
she had given to Manjula when she had come home for delivery.
She also identified the Saree, as the one given to Manjula at the
time of her engagement. Subsequently, they were shown the body
and that they identified the body as that of Manjula.
24. The above stated facts, which are not under serious challenge,
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amply prove that on 23.10.1999 the body of Manjula, the wife of the
accused no.1, was found in a gunny bag outside BPT gate, Mahim.
The death of Manjula was homicidal caused by multiple chop
wounds. The fact that there were postmortem burns also indicates
that an attempt was made to destroy the body and thus conceal her
identity.
25. The testimony of PW14 Suresh Chawda, reveals that since her
marriage Manjula was residing in her matrimonial house with the
accused no.1 and his family members including the accused no.2
herein, who is the brother of the accused no.1. He has deposed that
Manjula was treated well for about 4-6 months and thereafter her
mother-in-law (the deceased A2) started harassing and torturing
Manjula. He has stated that whenever Manjula visited her parental
home, she complained to them that the accused used to abuse,
assault and threaten to kill her. He has deposed that they had
reported the matter to the panch of their community. The members
of his community had intervened and advised the accused not to
harass Manjula. He has stated that thereafter Manjula seemed to
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be happy and it appeared that the problem was sorted out.
However, her happiness was short-lived as the accused no.1 and his
family members continued torturing and harassing Manjula. He has
stated in his cross-examination that he or his family members had
not lodged any complaint against the accused for harassing his
sister. He has stated that he had not personally seen the accused
harassing his sister Manjula and that he had learnt about the same
through Manjula. He has stated that he wanted to lodge a complaint
but his parents did not agree and hence he refrained from lodging a
complaint against the accused.
26. PW11 has also deposed that the marriage of Manjula and the
accused no.1 was solemnized in the year 1997 and since then
Manjula was residing in her matrimonial home along with the
accused no.1 and his family members. She has deposed that the
deceased Manjula was treated well for about six months since her
marriage. Thereafter the accused started harassing her. They would
taunt her for being poor, abuse and threaten to kill her. PW11 has
deposed that once when Manjula was about three months pregnant,
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she had told her that the accused had assaulted her and had also
threatened to burn her. She had further stated that Manjula had
also lodged a complaint at Dharavi P. Stn. The police registered the
said complaint as NC. However, they had called the mother-in-law of
the deceased Manjula and had instructed her not to harass Manjula.
27. PW 11 has further deposed that when she had gone to the
house of the accused to tell them that they could not trace Manjula,
the accused told her that they could continue the search but would
not find her. An omission has been elucidated as regards the
accused No.1 telling PW11 to continue search Manjula and that she
would not be found. PW11 has admitted that she had not stated in
her statement under section 161 of Cr.P.C. that the accused had
threatened to kill and burn Manjula. She has denied the suggestion
that the quarrel between the deceased Manjula and her in-laws was
only because of work or food. She has admitted that Manjula used
to come to her matrimonial home and used to complain about the ill
treatment. She has also stated her that her mother-in-law
(deceased A 2) used to harass her for not doing work and that her
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husband (A1) would not say anything to her. She has stated that
there used to be quarrel between Manjula and her mother-in-law
over trivial issues. She has admitted that they used to persuade
Manjula to return to her matrimonial home.
28. The prosecution has also examined PW15 Dattaprasad Nade.
He has deposed that on 26.9.1998 he was posted as SHO at
Dharavi Police Station. He has deposed that one lady by name
Manjula had come to the police station and lodged a complaint
alleging that her mother-in-law had abused and assaulted her. He
has deposed that he had registered the said NC complaint at
Exh.59. In his cross examination he has stated though he had not
investigated the crime, he had called said Amrutaben to the police
station and had advised her to maintain peace.
29. Learned Sr. counsel Shri Gupte has submitted that the
deceased had not lodged any complaint against these accused and
that her grievance was only against her mother-in-law. It is true that
the NC complaint at Exh.59 reveals that Manjula had complained
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only against the deceased accused no.2 and not against these
accused. However one cannot overlook the mindset of Indian
parents, specially from a poor strata of the society, who very often
disown their married daughters as 'paraya dhan' and thus compel
them to suffer marital violence silently and endlessly. Under such
circumstances, absence of a complaint does not presuppose a
happy married life.
30.
In the instant case, the evidence of PW11 and PW14 reveals
that the deceased was not happy in her marital home. She had
complained that she was being harassed and ill-treated by the
accused but every time she was persuaded to return to her marital
home. The evidence of PW14 also reveals that his parents had
dissuaded him from filing a complaint against the accused and his
other family members for harassing Manjula. It is thus obvious that
Manjula had no support from her family and she and her minor child
were entirely dependent on the accused no.1. Under these
circumstances, reluctance of the deceased to lodge a complaint
against the accused is not a ground either to disbelieve the evidence
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of PW11 and PW14 or to believe that all was well with her marital
life.
31. It is true that there are some omissions in the evidence of
PW11 specially as regards threats given to the deceased. As rightly
argued by learned APP Dedia, every omission or discrepancy does
not affect the credibility of the witness. As it has been held by the
Apex Court in State of Karnataka vs. Suvarnamma (2015) 1 SCC
299 much weight cannot be given to minor discrepancies which are
bound to occur on account of different perception, loss of memory
and other invariable factors. It is therefore, the duty of the Court to
ascertain the truth from the facts of the case. On going through the
entire evidence of PW11 whereof the opinion that the evidence of
PW11 inspires confidence and her evidence cannot be discarded in
its entirety on the basis of some stray omissions.
32. The evidence of PW11 and PW14 proves that the deceased
was harassed and subjected to cruelty. The evidence of PW11 in
particular proves that on the eve of her body being found Manjula
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had told her that her 10 month old son had broken the glass of the
refrigerator because of which her mother-in-law and sister-in-law
were angry with her. She has deposed that Manjula had further told
that her mother-in-law had also threatened her of more trouble once
her husband (A1) returns from work. She has admitted in the cross
examination that Manjula apprehended that the accused No.1 and
her father-in-law would shout at her because of breaking of the glass
of the refrigerator. She has stated that thereafter Manjula went to
her matrimonial home and that she never returned thereafter.
33. The evidence of this witness, clearly indicates that on
22.10.1999 the son of Manjula had broken the glass of the
refrigerator for which reason her mother-in-law (the deceased A-2)
and her sister-in-law had shouted at her and threatened her that she
would be in trouble once her husband (A-1) returns home. This
evidence has not been controverted and there is no reason to
disbelieve the same. The fact that Manjula had narrated the said
incident to PW11 gives a clear indication that she was apprehensive
and sensed trouble. This fact gains relevance as on the next
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morning the body of Manjula was found in a gunny bag on 23.10
1999.
34. The evidence of PW19 reveals that on 24.10.1999 accused
No.1, had lodged a missing report at Exh.75 at Dharavi Police Stn.
stating that Manjula was missing from the house since 24.10.1999
at 5.30 a.m. The accused no.1 has not denied the said fact in his
statement under Section 313 of Cr.P.C. The fact that the body of
Manjula was found on 23.10.1999 and was referred to Sion hospital
on the same day for postmortem clearly indicates that the accused
No.1 had lodged a false report that Manjula was missing since
24.10.1999. In Rameshbhai Mohanbhai Koli & Ors vs State Of
Gujarat on 20 October, 2010 the Apex Court has reiterated that " A
false plea taken by an accused in a case of circumstantial evidence
is an additional link in the chain of circumstances. [Vide Sharad
Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116
and Mehbub Samsuddin Malek & Ors. vs. State of Gujrat (1996)
10 SCC 480]."
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35. It is also pertinent to note that the evidence of PW19 proves
that the physical features of the said corpse tallied with the
description of the missing person given in the missing report dt.
24.10.1999 at Exh.75. Hence he had called the accused no.1 and
his family members to the police station to identify the body. His
evidence indicates that the accused had claimed that the body was
not of Manjula. Whereas the evidence of PW11 and PW14 reveals
that they had identified the deceased on the basis of her physical
features, tatoo mark as well as her belongings. The evidence of
PW1 who had informed the police about suspicious looking gunny
bag and who was present when the gunny bag was opened reveals
that the face of Manjula was recognizable. The evidence on record
therefore indicates that the body was not beyond recognition and the
same could be identified on the basis of physical features as well as
the tatoo mark on the forearm, and the belongings found along with
the body, despite which the accused had claimed that the body was
not of Manjula. The conduct of the accused in lodging a false
missing report and furthermore refusal to identify the body as that of
Manjula are the incriminating circumstances which are incompatible
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with the innocence of the accused.
36. PW19 had arrested accused on 27.9.1999. He had seen
some injuries on the person of the accused and hence he had
referred them for medical examination. PW13 Dr. Ashok Nandapure
examined the accused. The testimony of PW13 reveals that Mayur
Parmar (A1) had following injuries:
(i) linear abrasion over neck front left side oblique
blackish colour scab of size 5cmx4cm over sternal notch.
(ii) linear abrasion over right shoulder top vertically
oblique 4 cm in length blackish brown colour scan found.
37. PW13 Dr. Ashok Nandapure has further deposed that Bharat
Parmar (A3), had following injuries :
(i) incise wound over index finger right hand palm aspect
horizontal, at the distal end of middle phalnyx 2 x 0.2cm
skin deep brownish edges.
(ii) teeth bite mark on right middle finger dorsal aspect
three in number varying size of 0.2 to 0.1 cm blackish
brownish scab.
(iii) two teeth bite marks on index finger right hand
dorsal at the base of terminal phalnyx varying in size 0.2
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to 0.1 cm brownish blackish colour.
38. PW 13 has produced the medical certificate at Exh.47 and 49
respectively. The said medical evidence was brought to the notice of
the accused. Both these accused have not denied having sustained
injuries as stated by PW13 and have also not offered any
explanation about the injuries suffered by them. The nature of the
injuries suffered by the accused and non-explanation of the same is
an additional link in the chain of circumstances.
39. The testimony of PW19 reveals that he had visited the house
of the accused on 27.10.1999 along with PW4 Mulji Solanki and
another panch witness. He had seen blood stains on the walls, steel
utensils, curtains etc. He also noticed hair and a piece of flesh on
the door of the bathroom. He called a team of chemical analyser and
with the help of experts; he took the scrapings from the walls,
curtains, utensils etc. He has further deposed that he also found a
nylon rope of about 20 feet length in the house of the accused. All
the incriminating articles were packed, sealed and seized in
presence of panchas under panchanama at Exh.21. He has denied
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that the panchanama at Exh.21 was not drawn in the house of Mulji
in presence of the panch witnesses. He has also denied that the
said incriminating material was not seized from the house of Mulji.
40. PW4 who is one of the witnesses to the said panchanama has
deposed that on 27.10.1999 he was called by Mahim police and
requested to serve as a witness to the panchanama to be drawn at
the house of one Mulji. He accompanied the police to the house of
Mulji. He has stated that there were blood stains on the cupboard
and curtains in the sitting room, and steel tank and wall of the
kitchen. They also notice some hair and flesh (tissue) in the
bathroom. He has stated that the police seized all the said articles
including a piece of nylon rope and the saree fabric found in the
house. He has identified his signature on the panchanama at Exh.
21 as well as on the packets (Art. 19A colly. to Art.19F) in which
flesh/tissue, saree fibre, hair, scrapings, nylon rope etc. were packed
and sealed.
41. The learned Senior Counsel Shri Gupte has submitted that the
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recovery of nylon rope and other incriminating material from the
house is highly suspicious. He has further argued that there was
delay in forwarding the said articles for CA analysis. He therefore
submits that no credence can be given to such evidence.
42. It is pertinent to note that PW4 is a resident of the same
locality. His evidence indicates that his house is situated at a
distance of 200 ft away from the house of the accused. In his cross
examination he has stated that Mulji, the father of the accused, is his
brother-n-law. There is nothing on record to suggest that the
relations between this witness and the accused are strained. There
is nothing to suggest that he had any animosity towards the accused
or that he had any motive to level false accusations against them. In
short, no material has been elicited to discredit his testimony.
43. The testimony of PW4 which finds due corroboration in the
testimony of PW19 vis-a-vis the panchanama at Exh.21 proves
beyond reasonable doubt that visible bloodstains were seen at
different places in the house of the accused. The said scrapings as
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well as a nylon rope, hair and a piece of flesh and saree fibre found
in the house were seized from the house of the accused and the
same were packed and sealed separately. PW4 has identified his
signatures on the packets in which the said articles were labeled.
The CA report also reveals that the said articles were received in
sealed condition with intact seals. Hence we do not find anything
suspicious in the seizure of these articles from the house of the
accused.
44. The testimony of PW19 indicates that vide letter at Exh.80 he
had forwarded all the incriminating material seized by him in the
course of investigation for CA analysis. He has produced the CA
report at Exh.81. It may be mentioned that the prosecution has not
placed on record the C.A. report in respect of the blood group of the
deceased. Nonetheless, the CA report at Exh.81 reveals that the
bed sheet, saree, gunny bag, and all the articles found along with
the body were stained with human blood of 'B' group, which fact
sufficiently proves that the blood of the deceased was of 'B' group.
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45. A perusal of the CA report at Exh.81 reveals that the scrapings
on the wall of the sitting room, main door, steel tank were stained
with human blood of 'B' group. Similarly, the hair and tissue seized
from the bathroom door was human hair and tissue and both were
stained with blood of 'B' group. The CA report further reveals that the
blood found on the curtains was human blood. However, the blood
group report was inclusive. The CA report further reveals that the
nylon rope seized from the house of the accused tallies with the
nylon rope found on the body of the deceased in respect of hue,
design and physical dimensions. The CA report further reveals that
the fiber seized from the house of the accused tallies with the fibre of
the saree found on the body of Manjula in respect of hue and fibre
characteristics. There is nothing on record to indicate that the delay
in forwarding the articles to CFSL, Mumbai, has caused any
prejudice to the accused. Consequently, there is no reason to
discard the CA report.
46. Finding of human hair, tissue/flesh and blood stains of the
same group as that of the deceased, at several places in the house
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of the accused, as well as finding of a nylon rope of same hue,
design and physical dimensions as that of the rope found on the
body of the deceased, is a highly incriminating circumstance which
indicates that the offence was committed in the house of the
accused.
47. Learned APP Shri Dedhia has submitted that the accused have
denied all the incriminating circumstances without making any
attempt to clarify or explain such circumstances. Learned APP has
submitted that such denial provides a missing link for completing the
chain of circumstances. He has relied upon the decision of the Apex
Court in Joseph V/s.State of Kerala (2005) 5 SCC 1977 wherein
the Apex Court has held that falsity of the defence plea, false
answers given to Court, denial of circumstances instead of making
an attempt to explain or clarify the incriminating circumstances,
provides a missing link for completing the chain of incriminating
circumstances.
48. In State of Maharashtra v. Suresh, (2000) 1 SCC 471, it has
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been held that when the attention of the accused is drawn to such
circumstances that inculpate him in the crime and he fails to offer
appropriate explanation or gives a false answer, the same can be
counted as providing a missing link for completing the chain of
circumstances. Similar was the view taken in Jagroop Singh vs.
State of Punjab, (2012) 11 SCC 768, Alagupandi @
Alagupandian vs. State of Tamil Nadu, Munish Mubar vs. State
of Haryana (2013) 1 SCC (Cri.) 52.
49. In the instant case all the incriminating circumstances were
brought to the notice of the accused when they were questioned
under section 313 of the Criminal Procedure Code. The accused
have not given any explanation but have either feigned ignorance or
denied the circumstances. They have not even made an attempt to
explain or clarify the incriminating circumstances inculpating them
and connecting them with the crime. Total denial of such
circumstances coupled with failure to give explanation provides a
missing link for completing the chain of incriminating circumstances.
50. Learned senior counsel Shri Gupte has submitted that the
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provisions of section 106 cannot be invoked since the prosecution
has failed to establish that the applicant were present in the house
on the date of the incident. He has relied upon the decision of
Tomaso Bruno Vs. State of M.P. 2003 SCC (Cri) 54.
51. Section 106 of the Evidence Act and the illustrations appended
thereto read as under:
"106. Burden of proving fact specially within knowledge
- When any fact is specially within the knowledge of
any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention
other than that which the character and circumstances
of the act suggest, the burden of proving that intention
is upon him.
(b) A is charged with traveling on a railway without a
ticket. The burden of proving that he had ticket is on
him."
52. In Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC
404, the Apex Court has observed:
"9. This lays down the general rule that in a criminal
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case the burden of proof is on the prosecution and
Section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at
any rate disproportionately difficult, for the prosecution
to establish facts which are "especially" within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. The word
"especially" stresses that. It means facts that are pre-
eminently or exceptionally within his knowledge. If the
section were to be interpreted otherwise, it would lead
to the very startling conclusion that in a murder case
the burden lies on the accused to prove that he did not
commit the murder because who could know better
than he whether he did or did not. It is evident that that
cannot be the intention and the Privy Council has twice
refused to construe this section, as reproduced in
certain other Acts outside India, to mean that
the burden lies on an accused person to show that he
did not commit the crime for which he is tried. These
cases are Attygalle v. Emperor A.I.R. 1936 P.C. 169
and Seneviratne v. R. [1936] 3 All E.R. 36, 49. ...
10. xxxx
11. We recognise that an illustration does not exhaust
the full content of the section which it illustrates but
equally it can neither curtail nor expand its ambit; and if
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knowledge of certain facts is as much available to the
prosecution, should it choose to exercise due diligence,
as to the accused, the facts cannot be said to be
"especially" within the knowledge of the accused. This
is a section which must be considered in a
commonsense way; and the balance of convenience
and the disproportion of the labour that would be
involved in finding out and proving certain facts
balanced against the triviality of the issue at stake and
the ease with which the accused could prove them, are
all matters that must be taken into consideration. The
section cannot be used to undermine the well-
established rule of law that, save in a very exceptional
class of case, the burden is on the prosecution and
never shifts."
53. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10
SCC 681, the Apex Court has held as under:
"14. If an offence takes place inside the privacy of a
house and in such circumstances where the assailants
have all the opportunity to plan and commit the offence
at the time and in circumstances of their choice, it will be
extremely difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict principle of
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circumstantial evidence, as noticed above, is insisted
upon by the Courts. A Judge does not preside over a
criminal trial merely to see that no innocent man is
punished. A Judge also presides to see that a guilty man
does not escape. Both are public duties. (See Stirland v.
Director of Public Prosecution 1944 AC 315 quoted with
approval by ArijitPasayat, J.in State of Punjab v. Karnail
Singh 2003 Cri. LJ 3892 ). The law does not enjoin a
duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any
rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep
in mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
Illustration (b) appended to this section throws some
light on the content and scope of this provision and it
reads:
"(b) A is charged with traveling on a railway without
ticket. The burden of proving that he had a ticket is on
him."
15. Where an offence like murder is committed in
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secrecy inside a house, the initial burden to establish
the case would undoubtedly be upon the prosecution,
but the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to
give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away
by simply keeping quiet and offering no explanation on
the supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is no
duty at all on an accused to offer any explanation."
54. Similarly in Pritpal Singh v. State of Punjab (2012) 1 SCC 10,
the Apex Court, while considering the scope of section 106 India
Evidence Act, has reiterated that:
"53. In State of W.B. v. Mir Mohammad Omar [(2000) 8
SCC 382 : 2000 SCC (Cri) 1516 :AIR 2000 SC 2988] this
Court held that if fact is especially in the knowledge of
any person, then burden of proving that fact is upon him.
It is impossible for the prosecution to prove certain facts
particularly within the knowledge of the accused. Section
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106 is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt. But the section would apply to cases
where the prosecution has succeeded in proving facts
from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the
accused by virtue of his special knowledge regarding
such facts, failed to offer any explanation which might
drive the court to draw a different inference. Section
106 the Evidence Act is designed to meet certain
exceptional cases, in which, it would be impossible for
the prosecution to establish certain facts which are
particularly within the knowledge of the accused. (See
also Shambhu Nath Mehra v. State of Ajmer [ AIR 1956
SC 404 : 1956 Cri LJ 794] , Sucha Singh v. State of
Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717 : AIR
2001 SC 1436] and Sahadevan v. State [(2003) 1 SCC
534 : 2003 SCC (Cri) 382 : AIR 2003 SC 215] .) "
55. In the case of State of Rajasthan v. Kashiram (2006) SCC
254 the Apex Court has held that
"If the accused fails to offer an explanation on the basis
of facts within his personal knowledge, he fails to
discharge the burden cast upon him by section 106 of
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the evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable
explanation on the burden placed on him, that itself
provides an additional link in the chain of circumstances
proves against him. Section 106 does not shift the
burden of proof in the criminal trial which is always on
the prosecution. It lays down a rule that when the
accused does not throw any light upon facts which are
specially within his knowledge and which could not
support any theory or hypothesis compatible with his
innocence, the court can consider his failure to adduce
any explanation, as an additional link which completes
the chain."
56. It is thus well settled that Section 106 is designed to meet
certain exceptional cases where the prosecution is unable to prove
certain facts which are specially within the knowledge of the
accused. This section however does not absolve the prosecution
from discharging its initial burden of proving the guilt of the accused.
The burden to establish the basic factum probans is solely and
exclusively on the prosecution/State. It is from such established facts
that the court can infer and presume probability about existence or
non- existence of a further fact. It is only then that section 106 would
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apply to cases where the accused by virtue of his special knowledge
is required to offer explanation regarding such facts which are
preeminently and exclusively within his knowledge. Failure to offer
explanation of such facts specially within the knowledge of the
accused would authorize the court to draw a different inference. It
has also to be borne in mind that the said explanation is not tested or
evaluated on the highest parameter but preponderance of the
probability is the criteria applicable to the explanation of the accused.
57. The decision relied upon by the learned senior counsel Shri
Gupte is not applicable to the facts of the present case. In the
instant case, it is not in dispute that the deceased was residing in her
matrimonial home along with the accused and the other family
members. On 22nd October, 1999, her mother -in-law had shouted
at Manjula as her minor son had broken the class of the refrigerator.
She had told her that she would be in trouble once accused No.1
returns home. She had narrated the said incident to PW11 on the
same evening and thereafter she had returned to her matrimonial
home. On 23.10.1999, her body was found in a gunny bag outside
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the BPT gate and furthermore blood traces and other incriminating
material in the form of human hair and tissue stained with human
blood with same group as that of the deceased were found in the
house of the accused. Under such circumstances, only the accused
could have explained what had transpired within the confines of four
walls of their house after Manjula had returned to the Matrimonial
home on 22.10.1999 evening. The accused have failed to explain
the unusual situation that led to sudden disappearance of the
deceased from the matrimonial home as well as unnatural death of
Manjula. As stated earlier, the accused have also not explained the
above stated inculpating circumstance viz. finding of blood, hair,
tissue with same blood group as of Manjula in the house. Failure to
explain the special facts within their knowledge coupled with the
conduct of the accused provides for an additional link in the chain of
circumstances.
58. The prosecution has also relied upon following recoveries
made under section 27 of the Indian Evidence Act:
i) Discovery of place where the body was thrown.
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(panchanama Exh.69/69A )
ii) Recovery of broken mangalsutra of the deceased
and the clothes of the accused at the instance of A3
(Panchanama Exh.44/44 A)
iii) Recovery of a cane basket and two knives pursuant
to the disclosure statement made by the accused no.1.
(panchanama Exh. 36/36A)
59.
Learned Sr. Counsel Shri Gupte has submitted that the alleged
discovery of the place vide panchanama Exh.69/69A has no
evidentiary value as the place where the body was thrown was
already known to the police. He has further submitted that the
witnesses have not identified the clothes allegedly worn by the
accused and as such no reliance can be placed on the recovery of
clothes. He has further submitted that there is no evidence to prove
that the incriminating material allegedly recovered at the instance of
the accused were sealed and were kept iin the same condition till the
same were forwarded to CSFL, Mumbai. He therefore submits that
no reliance can be placed on the said recovery panchanama. In
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support of his contention he has relied upon the decision of the Apex
Court in Sattatiya @ Satish Rajanna Kartalla v. State of
Maharashtra (2008) 3 SCC 210; the decisions of this court in
Ashraff Hussein Shah v. State of Maharashtra 1996 Cri.L.J. 3147
and Deoraj Deju Suvarna v. State of Maharashtra 1994
Cri.L.J.3602.
60. The Apex Court in Anter Singh v. State of Rajasthan, (2004)
10 SCC 657, considered the scope and ambit of Section 27 of the
Indian Evidence Act and observed:
"16. The various requirements of the section can be
summed up as follows:
(1) The fact of which evidence is sought to be given must
be relevant to the issue. It must be borne in mind that the
provision has nothing to do with the question of
relevancy. The relevancy of the fact discovered must be
established according to the prescriptions relating to
relevancy of other evidence connecting it with the crime
in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of
some information received from the accused and not by
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the accused's own act.
(4) The person giving the information must be accused of
any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed
to.
(7) Thereupon only that portion of the information
which relates distinctly or strictly to the fact discovered
can be proved. The rest is inadmissible."
61. In Pandurang Kalu Patil Vs. State of Maharashtra (2002) 2
SCC 490, the Apex Court has observed thus:
"5. Even the recent decision in State of Maharashtra v.
Damu (2000) 6 SCC 269 this Court followed Pulukuri
Kottaya AIR 1947 PC 67 with approval. The fallacy
committed by the Division Bench as per the impugned
judgment is possibly on account of truncating the word
"fact" in Section 27 of the Evidence Act from the
adjoining word "discovered". The essence of Section
27 is that it was enacted as a proviso to the two
preceding sections (see Sections 25 and 26) which
imposed a complete ban on the admissibility of any
confession made by an accused either to the police or
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to anyone while the accused is in police custody. The
object of making a provision in Section 27 to permit a
certain portion of the statement made by an accused to
a police officer admissible in evidence whether or not
such statement is confessional or non-confessional.
Nonetheless, the ban against admissibility would stand
lifted if the statement distinctly related to a discovery of
fact"
62.
In Ashraf Hussain Shah (supra) the Division Bench of this
Court has reiterated the principles in Deoraj Deju Suvarna (supra)
as under:
"...in the case of Devraj Deju Suvarna Vs. State of
Maharashtra, reported in 1994 Cr.L.J.3602, after
considering a large number of authorities, has held
that not only should the prosecution adduce evidence
that after seizure the articles were sealed but should
also lead link evidence to the effect that till being sent
to the chemical analyst. They were throughout in a
sealed condition. This is done to eliminate the
suspicion that blood might not have been put on the
articles subsequent to the recovery and prior to being
sent to the chemical analyst".
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63. Reverting to the facts of the case, it is the case of the
prosecution that on 28.10.1999, while the accused no.3 was in
custody, he had volunteered to show the place wherein the body of
Manjula was thrown. The said panchanama allegedly under section
27 of the Evidence Act was drawn in presence of PW18. In this
regard PW18 and PW19 have stated that the accused no.3 had
taken them to BPT Colony and pointed out the place wherein the
body was thrown.
ig The said panchanama is produced at
Exh.69/69A.
64. It may be mentioned that the place where the body was thrown
was already known to the police. The information given by the
accused had not led to any discovery of fact and consequently the
said evidence is not admissible under section 27 of the Indian
Evidence Act and the learned trial Judge has rightly not relied upon
the same.
63. The testimony of PW19 reveals that on 29.10.1999, the
accused no.3 had volunteered to show the place wherein he had
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kept the broken mangalsutra of the deceased and the clothes worn
by him and the other accused as on the date of the incident. PW19
had recorded the said disclosure statement in presence of PW12
Aziz Shaikh. PW12 has confirmed the contents of the memorandum
statement at Exh.44. PW 12 has deposed that the accused No.3 led
them to his house at Kumbharwada, the father of the accused No.3
was present in the house. The accused No.3 took them near one
drawer and removed a bundle of cloths i.e two trousers, one T shirt,
one shirt, one blouse, one saree, Petticoat, two punjabi dresses and
one mangalsutra. He has deposed that the said articles were
packed and sealed in separate packets and that his signature was
obtained on each of the packets. He has identified the clothes
(Article 6 to 14) and the mangalsutra (Article 19 G). He has also
identified his signature on the envelopes / packets in which these
articles were packed and sealed. In his cross-examination, he has
stated that he is an electrician by profession. He has further stated
that he was deposing before the court for the first time, which
statement clearly rules out the possibility of this witness being a
stock witness. He has stated that the accused were not handcuffed
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at the time of the said panchanama. He has denied the suggestion
that the panchanama was already prepared and that nothing was
recovered in his presence.
64. PW 12 is an independent witness. Nothing has been
elucidated in his cross-examination to discredit his testimony. The
testimony of PW12 as well as of PW19 vis-a-vis panchanama at
Exh.44 / 44A proves that a broken mangalsutra and a bundle of
clothes i.e. two trousers, one T shirt, one shirt, one saree, one
blouse, petticoat, two punjabi suits were recovered pursuant to the
disclosure statement made by the accused No.3. The said articles
were separately packed, sealed and seized under the panchanama
at Exh.44A. His statement regarding sealing of the packets has
gone unchallenged.
65. The testimony of PW5 Sachin Dhanu reveals that on
30.10.1999 he was called at the police station and that the police
had opened one sealed packet in his presence. The said packet
contained a broken silver mangalsutra. He has deposed that the
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police had shown the said mangalsutra to PW14 Suresh, and that
PW14 had identified the same as that of his sister, the deceased
Manjula. The testimony of PW14 also reveals that he was called to
the police station about 2-3 days after identification of the body of
Manjula. He has stated that the police had shown to him one
mangalsutra. He has deposed that he had identified the said
mangalsutra as the one given to his sister Manjula by the
committee, which had performed mass marriage.
66. PW10 Velji Jethwa, was the Vice President of Prajapati
Sorthiya Kumbhar Samaj, which arranges and celebrates mass
marriages. He has deposed that on 6.2.1997 they had performed 67
marriages, including the marriage of accused no.1 with Manjula. He
has deposed that Prajapati Samaj had given a silver mangalsutra
with Ambamata pendent to Manjula. He has deposed that on
30.10.1999 the police had called him to the police station and had
shown to him one Mangalsutra. He had identified the said
Mangalsutra as the one given to Manjula on the date of her marriage.
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67. The evidence of PW14 and PW10 proves that the said broken
Mangalsutra recovered at the instance of the accused no.3 was of
the deceased-Manjula. It is also pertinent to note that the testimony
of said PW5 reveals that the said mangalsutra was resealed in his
presence under panchanama at Exh.34. The said mangalsutra was
forwarded for CA analysis. The CA report at Exh.81 reveals that the
mangalsutra was received in a sealed packet with intact seals. The
CA report further reveals that the said mangalsutra was stained with
human blood of B group, which was same as that of the deceased-
Manjula. The aforestated evidence amply proves that the accused
No.3 was in possession of the mangalsutra of the deceased and that
the said mangalsutra was stained with blood having same blood
group as that of the deceased. The accused no.3 has not offered
any explanation as to how he came in possession of the blood
stained mangalsutra of the deceased.
68. The evidence of these witnesses also indicates that some
washed clothes allegedly worn by accused No.3 and the other co-
accused were recovered at the instance of the accused no. 3. These
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clothes were also forwarded for forensic examination. The CA report
at Exh.81 indicates that a shirt (article 12) and trousers (Article 14)
were stained with human blood of 'B' group. The trousers and 'T'
shirt at (Articles 11) and (Article 13) were also stained with human
blood, however, the blood group results of the same were
inconclusive.
69. It is pertinent to note that apart from ladies apparel, two
trousers, a shirt and a T-shirt (Art.11 to14) were recovered under
panchanama at Exh. 44 and 44A. There is no evidence on record as
to which of these clothes at (Art.11 to14) were worn by the accused
no. 3. It is also to be noted that the accused No.3 had himself
sustained injuries and the C.A. report at Exh.54 reveals that his
blood was also of 'B' group. Under the circumstances, the possibility
of the clothes of the accused no.3 having been stained with his blood
cannot be ruled out. Hence, we are not inclined to rely upon this
circumstance to link the accused No.3.
70. Now coming to the recovery of the weapon and the cane
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basket, PW19 has deposed that on 5.11.1999 at about 2 p.m. the
accused no.1 had volunteered to show the weapons of offence i.e.
the knives as well as the cane basket. The said statement at Exh.36
was reduced into writing in the presence of PW6. The testimony of
PW6 and PW19 reveals that the accused no.1 had led them to a
loft of a godown at Kumbharwada, Dharavi. The accused no.1
produced one cane basket and two knives from the loft of the said
godown. PW6 has stated that the cane basket was stained with
blood. These witnesses have stated that the cane basket and the
knives were packed, labeled, sealed and seized under the
panchanama at Exh.36A. The said knives and the cane basket were
sent for chemical analysis. The CA report at Exh.81 reveals that the
cane basket was stained with blood of 'B" group whereas no blood
was detected on the knives.
71. It is pertinent to note that though PW19 has stated that he had
sealed the said cane basket and the knives, he has admitted in the
cross examination that it is not recorded in the panchanama at
Exh.36A that the said cane basket and the knives were sealed. It is
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also pertinent to note that the testimony of PW9, who has been
examined to prove that the deceased accused no.2 and the accused
no 3 were seen going from their house with a cane basket, has
stated in his cross-examination that he was shown the said cane
basket at the police station. This statement falsifies the contention
of the Investigating Officer that the cane basket was sealed on the
spot. Failure to seal the cane basket renders the CA report as well as
the testimony of PW9 inconsequential and irrelevant. Furthermore,
there is no other connecting evidence to prove that the said knives
and the cane basket were used for commission of crime.
72. Having analysed the evidence. we would like to recapitulate
and point-wise record the evidence adduced by the prosecution to
implicate and show that the accused were the perpetrators of the
offence in question. These circumstances are:-
1. Manjula was married to accused no.1 and since
her marriage in the year 1997, Manjula was residing in
her matrimonial home alongwith her husband (A1) and
his family members (including A3).
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2. Manjula was treated well for about six months but
thereafter she was harassed and subjected to cruelty.
3. Manjula had visited her parental home on the eve
of her body being foundand she had complained to
PW11 that her mother-in-law was angry with her
because her minor son had broken the glass of the
refrigerator and had further warned her that there
would be trouble for her once her husband (A1) returns
home.
On the very next day i.e. 23.10.1999, body of
Manjula was found in a gunny bag outside BPT gate at
Mahim.
5. Death of Manjula was homicidal.
6. The accused denied that the body was that of
Manjula despite the body being recognizable.
7. Accused no. 1 had filed a false report that Manjula
was missing since 24.10.1999.
8. The accused failed to give reasonable explanation
about abrasions and teeth bite on their person.
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9. Traces of human blood having same blood group
as of Manjula were found in the house of the accused.
10. Nylon rope, which tallied with the rope on the
body of Manjula was seized from the house of the
accused.
11. Human hair and flesh with same blood group as
Manjula seized from the house of the accused.
12. Blood stained Mangalsutra of Manjula with same
blood group as that of Manjula recovered at the
instance of A3.
13. The accused have not explained the above
incriminating circumstances.
14. The accused have not given any reasonable
explanation about the disappearance of Manjula from
the matrimonial house or cause of her death.
72. The circumstances established as above unmistakably show
that the appellant had committed murder of Manjula and thereafter
dumped the gunny bag containing her body outside BPT Gate. We
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see no reason to interfere with the judgment of the trial Court in
respect of conviction and sentence of the Applicant for offences
punishable under section 302 and 201 r/w. Section 34 of the IPC.
Hence, the appeals are dismissed.
(ANUJA PRABHUDESSAI, J.) (SMT. V.K.TAHILRAMANI, J.)
.
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