Bombay High Court
Ajamali Soharali @ Ahmedali ... vs The State Of Maharashtra on 15 December, 2017
7. cri apeal 1239-13 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1239 OF 2013
Ajamali Soharali @ Ahmedali Ansari ]
Age - 20 Years, Occ. - Nil, ]
R/o. Noor Sizing near Meelan Petrol Pump, ]
In front of Siraj Hospital, Bhiwandi, ]
Dist. Thane. ]
Originally R/o. House No. 73, ]
Mohalla Bankar Gaon Bankar Tanna, ]
Uruwa Bazar, Dist. Gorakhpur, U.P. ]
(Confined as Convict No. C-5645, ]
Kolhapur Central Prison, Kalamba, ]
Kolhapur.) ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
(at the instance of Bhiwandi City Police ]
Station, Bhiwandi, Dist. Thane in C.R. No. ]
I-68 of 2010 tried in Sessions Case No. ]
254 of 2010 ] Respondent
• Mr. Murtaza Najmi a/w Ms. Sana Bundeally i/by
Mr. Ashish Mehta, Advocate for the Appellant
• Mrs. G.P. Mulekar, APP for the State
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : DECEMBER 15, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 10.10.2012
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passed by the learned Additional Sessions Judge-2, Thane in
Sessions Case No. 254 of 2010. By the said judgment and
order, the learned Session Judge convicted the appellant for
the offence punishable under Section 302 of IPC and
sentenced him to suffer imprisonment for life and fine of Rs.
1000/-, in default, R.I. for six months.
2. The prosecution case briefly stated, is as under:
(a) Deceased Yellava was residing with PW 1 Sushila
at Patlu Chawl, Hanuman Tekadi, Bhiwandi.
Yellava was doing business of prostitution. On
26.2.2010 at about 10.00 p.m., the appellant
asked Yellava for sexual intercourse. She told him
that he will have to pay Rs. 300/- if he wanted to
spend entire night with her. Accordingly, he paid
Rs. 300/- to Yellava. Thereafter, she told him that
he would have to pay Rs. 100/- more if he wanted
to spend the entire night with her. On account of
this, some exchange of words took place between
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the appellant and Yellava. On hearing the
exchange of words, Sushila went near Yellava and
the appellant and she told the appellant that he
would have to pay Rs. 400/- if he wanted to spend
entire night with Yellava. The appellant spoke
arrogantly with Sushila, hence, Sushila slapped
the appellant. Thereafter, the appellant sat there
for 10-15 minutes and then paid Rs. 100/- to
Yellava. Sushila then went to the other room to
sleep. In the morning, Sushila got up. She found
that the front door was open and Yellava was lying
dead beneath the bed with reddish and blackish
mark on her neck. Blood was oozing from the
mouth of Yellava. Sushila then lodged the FIR.
Thereafter, investigation commenced. After
completion of investigation, the charge sheet
came to be filed.
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3. Charge came to be framed against the appellant -
original accused under Sections 302, 380 and 404 of IPC.
The appellant pleaded not guilty to the said charge and
claimed to be tried. His defence was that of total denial and
false implication. After going through the evidence adduced
in this case, the learned Sessions Judge convicted and
sentenced the appellant as stated in paragraph 1 above,
hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the parties,
the judgment delivered by the learned Sessions Judge and
the evidence on record, for the reasons stated below, we are
of the opinion that the appellant committed the murder of
Yellava by strangulating her.
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5. The case is totally based on the circumstantial
evidence. We are of the opinion that the evidence of PW 1
Sushila is enough to conclusively prove that the appellant
committed the murder of Yellava. Sushila has stated that
Yellava was residing with her since 6-7 years prior to the
incident. Yellava was doing the business of prostitution. On
26.2.2010 at about 10.00 p.m., the appellant came to the
house of Sushila. He asked Yellava for sexual intercourse.
Yellava told him that he will have to pay Rs. 300/- if he
wanted to spend entire night with her. Accordingly, he paid
Rs. 300/- to Yellava. Thereafter, she told him that he would
have to pay Rs. 100/- more if he wanted to spend the entire
night with her. On account of this, some exchange of words
took place between the appellant and Yellava. On hearing
the exchange of words, Sushila went near Yellava and the
appellant and she told the appellant that he would have to
pay Rs. 400/- if he wanted to spend entire night with Yellava.
The appellant spoke arrogantly with Sushila, hence, Sushila
slapped the appellant. Thereafter, the appellant sat there for
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10-15 minutes and then paid Rs. 100/- to Yellava. The
appellant told that he would sleep with Yellava for sometime
after which he would go for watching a movie and thereafter,
he would return. Thereafter, the appellant along with Yellava
went in the room. Meanwhile, Sushila went to pan shop. She
returned back after sometime. Sushila then asked Yellava
whether the appellant was there with her. Yellava told that
the appellant had left but he will come back at 12 midnight.
At 11.30 p.m., Sushila heard voice of quarreling in the galli,
hence, she went there. She returned back at 12 midnight.
At that time, Yellava was sitting on ota of the house. Yellava
told that the appellant had come back and he was sleeping
in the room. On hearing the voice of Sushila, the appellant
also came out of the house. Sushila asked Yellava to have
dinner but Yellava told that she did not want to take dinner.
Then they went inside. Yellava then put a lock on the door
from inside.
PW 1 Sushila has further stated that in the morning at
about 6.00 a.m., when she came out of her room, she saw
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the entrance door was open. Thereafter, she searched for
Yellava. She saw the dead body of Yellava under the bed.
Sushila saw that blood was oozing from the mouth of Yellava
and there was reddish and blackish mark on her neck.
Sushila got frightened. Sushila then went to the Police
Station and lodged FIR. During the course of investigation,
Sushila was called to Adharwadi Jail for identifying the
appellant. She identified the appellant in the said test
identification parade.
Thus, the evidence of PW 1 Sushila shows that on the
night between 26.2.2010 and 27.2.2010, the appellant had
come to the house of Sushila and told Yellava who was
residing with her that he wanted to have sexual intercourse
with her. Some quarrel took place between Yellava and the
appellant in relation to the amount which was to be paid to
Yellava. The evidence of Sushila further shows that at 12
midnight, the appellant, Yellava and Sushila were in the
house. Sushila then went to her room to sleep. Thus, at that
time, Yellava and the appellant were sleeping in the room.
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In the morning, Yellava was found dead and the appellant
was not seen anywhere.
6. The evidence of Sushila ruled out the possibility of any
other person coming into the house for committing the
murder of Yellava. Moreover, there is nothing to show that
any one else had the motive to commit the murder of
Yellava. On the other hand, the evidence of Sushila shows
that the appellant had the motive to commit the murder of
Yellava in as much as Yellava had earlier agreed to spend
the entire night with the appellant for an amount of Rs.
300/-, however, thereafter, she demanded an additional
amount of Rs. 100/- on account of which altercation took
place between the appellant and Yellava.
7. Learned counsel for the appellant submitted that it is
very much possible that Yellava could have committed
suicide. He submitted that there is no medical evidence to
show whether the strangulation was caused on account of
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Yellava committing suicide by hanging herself or on account
of the appellant strangulating her and causing her death. He
submitted that the exact direction of the injury on the
reddish and blackish mark on the neck is not found on
record, hence, it is possible that it is a case of suicide and
the appellant has been falsely implicated in this case. To
support this contention, he placed reliance on the decision of
the Supreme Court in the case of Jose @ Pappachan Vs.
Sub-Inspector of Police, Koyilandy & Anr. 1 . He pointed
out that in the said case the doctor in categorical terms
conceded that he could not say as to whether it was a case
of suicidal or homicidal hanging, hence, the accused in the
said case was given the benefit of doubt and he was
acquitted.
In the present case, as stated earlier, the dead body of
Yellava was found under the bed. Her dead body was not
found in hanging condition in the house. Looking to the
circumstances in which the dead body of Yellava was found,
it rules out the possibility of suicide and it clearly points out
1 (2016) 10 SCC 519
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to a case of homicidal death. The inquest panchnama
clearly shows that there was reddish and blackish mark on
the neck of Yellava.
8. Learned counsel for the appellant further submitted
that the time gap when PW 1 Sushila saw the appellant with
Yellava and the dead body of Yellava being found is so big
that an inference can not be drawn that the appellant
committed the murder of Yellava. To support this contention,
he placed reliance on the decision of the Supreme Court in
the case of Nizam & Anr. Vs. State of Rajasthan 2. In the
said case, the deceased had left in the truck of the
appellants and the dead body of the deceased was found
after three days. It was, in these circumstances, the
Supreme Court observed that the gap between the time
when the deceased had allegedly left with the appellant and the
finding of the dead body is not so small as to draw an inference
against the appellant. It was further observed that in view of the
gap between the time when the deceased left in the truck of the
appellants and recovery of his body and also place and
2 (2016) 1 SCC 550
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circumstances in which his body was recovered, the
possibility of others intervening cannot be ruled out.
However, such are not the facts in the present case. The
appellant was seen with Yellava in the house in which Yellava
was residing. The appellant had come to spend the night
with Yellava. In fact, the appellant had paid Rs. 400/- to
Yellava to spend the night with her. At 12 midnight, Yellava
had locked the door of the house. At that time, the appellant
was very much in the house. In the morning, the dead body
of Yellava was found under the bed with reddish and blackish
marks on the neck and the door of the house was open and
the appellant had disappeared. As stated earlier, the facts in
the present case are not similar to the facts in the case of
Nizam (supra), hence, this decision would not be of any help
to the appellant.
9. The defence in cross-examination of PW 3 Police
Inspector Hiremath has brought on record Exh. 18 which is a
receipt in relation to purchase of a mobile phone. It is
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brought on record in the cross-examination that the receipt
is in the name of the deceased. The receipt Exh. 18 shows
the IMEI No. of the mobile phone as 358224022834018. PW
2 panch witness Kallappa has stated that when the appellant
was brought to the Crime Branch, at that time, one mobile
phone bearing IMEI No. 358224022834018 was found with
the appellant. The evidence of PW 4 API Paikar shows that
they arrested the appellant. At that time, they found one
mobile of Samsung company with him which was seized in
presence of panchas. The evidence of PW 3 PI Hiremath
shows that the receipt of the said phone stood in the name
of the deceased and the said phone was seized from the
possession of the appellant. This is one more factor which
shows the involvement of the appellant.
10. On going through the evidence in this case, we are of
the opinion that the prosecution has proved beyond
reasonable doubt that the appellant committed the murder
of Yellava by strangulating her. Thus, we find no merit in the
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appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
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