Mahesh Jagan Surti vs (The State) U. T. Of Daman And Diu
2017 Latest Caselaw 6437 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL NO.551 of 2015



      Mahesh Jagan Surti                               ]
      age about 32 years                               ]    Appellant
      residing at Saravali Jakat Naka                  ]    Original
      Surti Pada, Dahanu,                              ]    accused.
      District Thane, Maharashtra                      ]

                 V/s.

      The Union Territory Administration               ] Respondent
      of Daman and Diu                                 ] Original
      Through I/c Daman Police Station, Daman          ] complainant



      Mrs. Nasreen S.K. Ayubi, appointed advocate
      for the Appellant.
      Mrs. Poornima H. Kantharia, A.P.P., for the
      Respondent- U.T..



             CORAM : SMT. V. K. TAHILRAMANI &
                     DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : 22nd AUGUST, 2017.

ORAL JUDGMENT [Per: Dr. Shalini Phansalkar-Joshi, J.]

1. In this appeal, an exception is taken to the judgment

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and order dated 19th September, 2011 of Session Judge, Daman,

in Session Case No.13 of 2006; whereby the appellant is

convicted for the offence punishable under Sections 302 and 201

of the Indian Penal Code and sentenced to imprisonment for life

and to pay fine of Rs.2,000/-, in default to suffer R.I. for three

months, on the first count, and R.I. for three years and fine of

Rs.1,000/-, in default to suffer R.I. for one month, on the second

count.

2. Brief facts of the appeal can be stated as follows :-

P.W.1 Pravina is the wife of the appellant. They had

three daughters by name, Divya - aged 8 years, Nisha- aged 5

years and Khushi aged 1 ½ years. On 23.4.2006, they had gone

to a fair, near Mahalaxmi Temple, in the morning at about 9.00

a.m., on the scooter. After taking Darshana of "Mahalaxmi

Goddess", appellant took his daughters by name Divya and Nisha

towards giant wheel. P.W.1 Pravina had with her, the youngest

daughter Khushi. She waited for the appellant to return with their

two daughters. However, the appellant did not return. She took

search and returned to the house alongwith Khushi. She then

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informed about the same to P.W.5 Ravi Surti, the brother of the

appellant. The appellant, however, returned to the house, on the

next day, in the evening. On enquiry with the appellant about the

daughters, he gave evasive replies by stating that he met with an

accident in which both the daughters succumbed to the injuries.

However, on further confrontation, appellant admitted that he has

drowned his both the daughters in Arabian Sea and buried them.

3. In view of this information given by the appellant, he

was taken to Daman Police Station. There, complaint of P.W.1

Pravina came to be recorded vide Exh.52. On her complaint

C.R.No.93 of 2006 was registered. During the course of

investigation, at the instance of appellant, dead bodes of both the

daughters came to be recovered from the Forest land, near sea-

shore. As a part of further investigation, the spot panchnama was

made. Statement of witnesses were recorded and after

completion of due investigation, chargesheet came to be filed in

the court of Chief Judicial Magistrate, Daman.

4. On committal of the case to the Court of Sessions, the

trial Court framed charge against the appellant vide exh.5. The

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charge was read over and explained to the appellant to which the

appellant pleaded not guilty and claimed trial.

5. In support of its case, the prosecution examined in all

12 witnesses. The appellant also led the evidence of his brother-

in-law Navin Surti to prove his defence that at sea-shore, his

daughters went missing, he tried to trace them, but could not find

them and on the next day police showed him the dead bodies.

6. On appreciation of this evidence, the trial Court was

pleased to hold the guilt of the appellant to be proved beyond

reasonable doubt for both the offences punishable under Sections

302 and 201 of the IPC and convicted and sentenced him as

aforesaid.

7. In this appeal, we have heard learned counsel for the

appellant and learned APP for the Union Territory.

8. Learned counsel for the appellant has challenged the

finding of the trial Court, on the ground that there is absolutely no

evidence to connect the appellant with the death of his two

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daughters. It is submitted that neither the motive is proved nor

prosecution witnesses including P.W.1 Pravina, the wife of

appellant and P.W.5 Ravi-the brother of appellant, have supported

the prosecution case. It is urged that even the other witnesses

namely P.W.7 Dashrath Burkey, P.W.6 Vikram Dhodi have not

supported the prosecution case. It is submitted that the evidence

of defence witness, Navin Surti, who is the brother of P.W.1

Pravina, also goes to prove that after the daughters of appellant

went missing, appellant had come to him and both of them had

taken search of the daughters. Thus, it is submitted that the

prosecution has utterly failed to prove its case against the

appellant and hence the impugned judgment and order of the trial

Court needs to be quashed and set aside.

9. Per contra, learned APP has strongly supported the

impugned judgment and order of the trial Court by pointing out

that not only the circumstance of deceased lastly seen in the

company of the appellant is proved by the prosecution, but there

is also evidence of panch witness P.W. 2 Rajubhai Purohit and

P.W.12 Investigating Officer- PI Rohit proving recovery of the

dead bodies at the instance of appellant which were buried in the

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sand near the sea-shore. According to learned APP these two

incriminating circumstances are clinching the guilt of the appellant;

the trial Court had properly appreciated the entire evidence on

record and thereafter convicted the appellant. Therefore, the

appeal needs to be dismissed.

10. In the light of these rival submissions advanced by

learned counsel for appellant and learned APP, if the evidence on

record is to re-appreciated, then in this case the evidence of P.W.4

Dr. Suhas Solanki leaves no iota of doubt to prove that the death

of both, Divya and Nisha was on account of cardio respiratory

arrest due to asphyxia due to drowning. The appellant himself

has also not disputed the said fact. According to the case of

appellant, however, the drowning can be either accidental or

suicidal or homicidal. It is his case as made out in his statement

under Section 313 of Code of Criminal Procedure that while his

daughters were playing on giant wheel, he went to the Hotel for

drinking water, he returned within half an hour and found that his

daughters were missing, he tried to take search of them, but could

not succeed. On the next day, police took him to sea-shore and

showed the dead bodies of his daughters.

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11. Thus, the appellant is not disputing the fact that he

has taken his two daughters alongwith him for playing on the giant

wheel and thereafter they were not seen alive. It, thus proves the

case of prosecution that the two girls were last seen in the

company of the appellant. This fact is deposed to by P.W.1

Pravina also. Her evidence further proves that she waited at the

fair for sufficiently long time for appellant and her daughters to

return. However, as they did not return, she came back to house

and informed about it to P. W .5 Ravi, the brother of appellant. The

evidence of P.W.5 Ravi also proves that after P.W.1 Pravina

informed this fact to him, he and his brother Ashok took search of

appellant and the two girls and got the message about their

missing announced at the fair. Then they returned to the house

and again made inquiry with P.W.1 Pravina, but she told them

that appellant has yet not returned with the daughters. On the

next day in the evening as per evidence of P.W.1 Pravina, her

husband alone returned to house. When she made enquiry with

appellant as to what has happened to the daughters, he did not

give reply. Therefore, alongwith P.W.5 Ravi and the appellant, she

went to the police station where her complaint came to be

recorded. It may be true that she has not remained faithful to the

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complaint (Exh.52), lodged by her. She has denied the

incriminating portion marked "A" and "B" in the said complaint,

according to which the appellant has confessed of drowning his

two daughters in the Arabian Sea and thereafter burying them.

The contents of the complaint are proved on record through

evidence of P.W.8 PSI Mulla, who has recorded it. It may also be

true that P.W.5 Ravi - the brother of the appellant, has also not

supported the case of prosecution, but their evidence definitely

proves that both the girls were also last seen in the company of

the appellant and they took search of appellant and the girls on

that night as they did not return to the house on that night.

12. There is also another incriminating circumstance

proved on record, namely the recovery of the dead bodies at the

instance of the appellant. This recovery is proved through the

evidence of P.W.2 Panch Rajubhai Purohit and Investigating

Officer P.W.12 PI Rohit. As per their evidence, the appellant gave

disclosure statement expressing his willingness to show the place

where he has buried the dead bodies of his two daughters,

namely Divya and Nisha. He disclosed the place as little ahead of

Devka village in the seashore. The memorandum panchnama of

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his statement was made vide exh. 26. Thereafter the appellant

took the police and panchas to the said place, accompanied with

the Executive Magistrate. There, the appellant took them to the

spot and removed the sand and from the pit, he removed the two

dead bodies of his daughters which were wrapped in white cloth.

These bodies were seized under panchnama Exh.26. Some dried

flowers kept on the dead bodies were also seized under

panchnama.

13. In our considered opinion, these two incriminating

circumstances of deceased last seen in the company of the

appellant and the recovery of their dead bodies at the instance of

the appellant are of a conclusive nature to clinch the guilt of the

appellant coupled with appellant's own conduct and the false

explanation offered by the appellant that while his daughters were

playing on the giant wheel, he went to a Hotel for drinking water

and when returned, he found both the daughters were missing.

There are inherent inconsistencies in the explanation and hence it

cannot be accepted. If it is the case of the appellant that his

daughters were missing in his absence, then he should have

immediately rushed to his wife P.W.1 Pravina and made enquiry

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about his daughters. He could have also rushed to the police

station or nearby police chowky or the police persons present in

the fair to set the law in motion and to ensure that his daughters

are traced. However, the appellant has not taken any such steps.

He has even not returned to his house on that day or night to

verify whether his daughters were found. He returned only on the

next day in the evening. The first explanation put up by him was

that he met with an accident and his daughters succumbed to the

injuries sustained in the accident. Giving of such false explanation

is also one of the link in the circumstantial evidence against the

accused.

14. There is also no reason as to why if someone else

committed the murder or found dead bodies of these two girls

drowned accidentally, instead of informing the police, will wrap

those bodies in white cloth and also put flowers and bury them

near seashore. The inference is therefore, inevitable that it was

the appellant alone, who must have put his daughters to death

and disposed of their bodies in careful manner so that no one will

come to know about it. The only irresistible inference that can be

drawn from the circumstances proved on record is that appellant

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alone and no-one else can be the author of this crime.

15. In our considered opinion, therefore, the conviction of

the appellant, as recorded by the trial Court for the offences

punishable under Sections 302 and 201 of the Indian Penal Code,

being based on the proper appreciation of evidence on record, no

interference is warranted therein. The appeal, therefore, holds no

merit and hence stands dismissed.

[DR.SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K.TAHILRAMANI, J.]