Darshan Hiru Shivdasani vs The State Of Maharashtra
2017 Latest Caselaw 8971 Bom

   1

Ladda
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL No. 368 of 2010.

                         Darshan Hiru Shivdasani,           APPELLANT.
                         aged 32 years, Indian Inhabitant,
                         Serviceman      by     profession,
                         permanent resident of Flat No.3,
                         Mayur Villa, Anandrao Dhewali
                         Road, Juhu, Mumbai No. 400
                         049. (Presently lodged at Nasik
                         Road, Central Prison in the above
                         matter)

                                       VERSUS

                         The State of Maharashtra,       RESPONDENT.
                         (at the instance of Oshiwara
                         Police Station through C.R. No.
                         186 of 2008)



   Ms. Naima Shaikh i/by Mr. Khan Abdul Wahab, Advocate for
   the Appellant.
   Mr. J.P. Yagnik, APP for the State.


                             CORAM : S.C. DHARMADHIKARI &
                                     SMT. BHARATI H. DANGRE, JJ.

                              RESERVED ON:        3 rd November, 2017.
                              PRONOUNCED ON: 23 rd November, 2017.

   JUDGMENT (PER: SMT. BHARATI, H. DANGRE,J)

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1 The present appeal is filed by the appellant being

aggrieved by the judgment delivered by the learned Additional

Sessions Judge, City Civil and Sessions Court, Greater Mumbai in

Sessions Case No. 447 of 2008 on 30 th March, 2010 thereby

convicting the appellant for commission of offence punishable under

Section 302 of the IPC and sentencing him to suffer life imprisonment

and to pay fine of Rs.10,000/-.

2 In order to effectively deal with the said appeal, it is

necessary to reproduce the case of the prosecution.

The case of the prosecution is that the complainant Smt.

Sonia Hiru Shivdasani lodged a report with Oshiwara Police Station

on 5th April, 2008, informing that her brother Darshan Hiru

Shivdasani had committed murder of Kumari Payal Kamlesh Ganatra

who is his legally wedded and wife whom, he had subsequently

divorced, since it was revealed to him that she was having illicit

relationship with another man. In the complaint, it was stated that

she was residing in Flat No.315, Satpuda Building, Oshiwara Park,

Link Road, Jogeshwari (West), Mumbai - 102 and she was also

residing with her parents at Mayur Villa, Flat No.3, near Chandan

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Cinema, Juhu, Mumbai. She stated that she used to go for sleeping to

Flat No.315, Satpuda Building, Jogeshwari, since the said flat

belonged to her sister Twinkle and her brother-in-law and they were

residing in Dubai since November, 2007. In the complaint, it was

stated that she was knowing Payal Ganatra since one and half year

and she was married to her brother Darshan Shivdasani. The

complainant also stated that she was not informed about the said

marriage. However, since last one month the relations of Payal and

her brother Darshan were strained on account of fights between them

and her brother had come to know that Payal had developed illicit

relationship with some other man. It was also stated in the complaint

that Payal had sent a notice to her brother in March, 2008 seeking

divorce and therefore her brother was annoyed with her and in the

same month they were divorced. It was stated in the complaint that

on 4th April, 2008 at about 1:30 a.m. she had locked the flat in

Satpuda building and left her for residential place and thereafter she

had proceeded to Mahabaleshwar. The complainant had further

stated that on 5th April, 2008 at around 6:00 p.m. when she returned

to the said flat in Satpuda building and opened the door with her key,

she noticed blood stains all over the hall and when she entered the

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bed room she saw that Payal was lying in a pool of blood and her

clothes were drenched in blood and one chunri was tightly tied

around her neck and she had suffered stab injury under her right

breast and on her stomach, which was bleeding.

3 Based on the said complaint, an FIR was registered at the

Oshiwara Police Station vide C.R. No. 186 of 2008 against Darshan

Hiru Shivdasani, the present appellant and the investigating

machinery was set into motion. Shri Dattatraya Ganpat Sankhe

(Police Inspector) attached to Oshiwara Police Station (PW No.17),

visited the place of incident on receipt of a phone call at around 6:30

p.m. When PW 17 reached the spot, the complainant lodged the

report which was scribed and registered as FIR and immediately the

police personnel were sent in search of accused Darshan as he was

specifically named by the complainant in the FIR. The Investigating

Officer recorded the statements of witnesses and during investigation

it was revealed to him from the complainant that she received the

SMS from her brother Darshan and a team headed by PSI Kadam (PW

No.15) was deputed to apprehend him at Pune. The accused was

produced in Oshiwara Police Station on 9th April, 2008 and he was

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interrogated and arrested. The accused was produced before the

Court and Investigating Officer secured police custody remand (PCR)

of the accused and the further investigation was carried out. It is the

case of the prosecution that after commission of the crime, the

accused had concealed himself in a hotel at Kolhapur in the name of

Raju Mathur and reported his address as Mira Road. The case of the

prosecution is that the accused stayed in the hotel for two days and

thereafter he transited to hotel "Rajashri" in Pimpri, Pune and again

concealed his identity and recorded his name as Rahul Sharma in the

hotel register. On the next day, while he was staying in the said hotel,

a telephone call was received in the hotel from a woman informing

hotel Manager that the customer who was booked in room No. 208 is

ailing and he should be taken to the hospital and when the Manager

(PW 12) Shri Ashok Bhere, entered the room, he saw a customer in

semi-conscious condition, and heavily drunk he carried the said

customer to Yashwantrao Chavan Hospital, Pimpri and admitted him.

In the night, the Investigating team arrived at the said hotel and the

Manager led the Investigating team to Yashwantrao Chavan Hospital.

Thereafter, the police officers returned to the hotel and carried out a

panchnama and recovered certain articles from the Room and they

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also recovered the log book from the said hotel.

4 During the course of investigation, the report from the

Chemical Analyser was obtained. The treatment papers of the

accused persons were also received from the hospital. On completion

of the investigation the charge-sheet was filed in the competent Court

and the Court of Sessions Judge for Greater Mumbai was entrusted

with the trial of the offence punishable under Section 302 of the

Indian Penal Code in Sessions Case No. 447 of 2008 against the

accused/present appellant.

5 The accused pleaded not guilty for commission of the

offence with which he was charged and he claimed to be tried.

6 On examination of the case of the prosecution, the

learned Sessions Judge afforded an opportunity to the prosecution to

bring home the guilt of the accused. The prosecution examined 18

witnesses. The statement of the accused under Section 313 of the

Criminal Procedure Code (Cr.P.C.) was also recorded. The learned

Additional Sessions Judge on examination of the witnesses and the

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material produced by the prosecution and on hearing arguments of

the prosecution as well as the accused, delivered the judgment on 30 th

March, 2010 thereby convicting the accused under Section 302 of the

IPC and sentenced him to suffer life imprisonment and to pay fine of

Rs.10,000/-.

The learned Additional Sessions Judge on the basis of the

evidence produced before him arrived at the conclusion that the

evidence which was brought by the prosecution against the accused is

very specific and clinching in nature and irresistibly leads to the

conclusion that the accused alone is guilty of commission of murder

of the deceased Payal. The learned Additional Sessions Judge also

concluded that each of the circumstance established by the

prosecution indicates mens rea as each act of the accused was well

planned and executed in a thoughtful manner. According to the

learned Sessions Judge, the chain of circumstance was complete and

it established the accused to be the person who killed Payal by a

sharp edged, deadly weapon. By considering the case in its entirety,

the Additional Sessions Judge convicted the appellant by the

impugned judgment and being aggrieved by the said judgment the

present appeal has been preferred on various grounds.

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7 It is urged in the appeal that the learned Trial Judge

did not appreciate the material on record properly and the very link

with respect to identity of the appellant was missing and the learned

Judge has erred in appreciating the case which according to the

prosecution is based on circumstantial evidence. The appeal is also

filed on the ground that no motive has been proved by the

prosecution for committing the murder of the deceased at the hands

of the appellant and in the absence of test identification parade to

identify the accused, whole case of the prosecution must fail. The

appellant in the appeal has also alleged that the recovery of weapon

of assault has not been sufficiently proved and the learned trial Judge

has relied upon uncorroborated version of hostile witnesses and

hence the conviction cannot be sustained.

8 We have heard the learned Counsel Ms. Naima Shaikh i/by

Shri Khan Abdul Wahab, Advocate for the appellant and Mr. Yagnik,

learned APP, for the State and perused the record of the court below.

The learned Counsel for the appellant would argue that

the prosecution case is based on circumstantial evidence and the

prosecution has failed to establish the chain of circumstance which

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would inevitably point towards guilt of the accused. According to the

learned Counsel for the appellant, the prosecution story has several

loopholes and according to her, the theory of last seen has been

wrongfully invoked to establish the guilt of the accused as the chain is

broken at several places and did not meet the test laid down by the

Apex Court in the case of Sharad Birdhichand Sarda Vs. State

of Maharashtra reported in AIR 1984 SC 1622. The learned

counsel would also contend that the prosecution has failed to

examine the crucial witnesses whose statements were recorded

during the course of investigation, namely, the driver of the deceased

and sister of the deceased namely Twinkle and one Babu whose

presence has been brought on record through the evidence of PW

No.7 Smt.Kunda Damre.

The learned APP would contend that the prosecution has

proved its case beyond doubt and urged to uphold the impugned

judgment. From the above the only point for determination in this

Appeal is whether the Trial court's Judgment of conviction and

sentencing the Appellant is valid, legal and proper.

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9 The case of the prosecution is based on circumstantial

evidence. The deceased Payal died an unnatural death and her body

was found lying in Flat No.315, Satpuda Building, Oshiwara Park.

The deceased Payal was resident of Vileparle locality and she was an

Interior Designer and serving in such capacity with Shri Milind Pai,

(PW No.5) who was an Architect. From the evidence brought on

record by the prosecution Payal was married to the appellant but the

marriage did not last and resulted into a decree of divorce. However,

in spite of divorce she was in constant touch with the appellant and

on the fateful day she had accompanied the appellant to the place of

incident, which was a flat owned by the sister of the appellant,

namely Twinkle.

The prosecution relies upon the following circumstances

to connect the appellant with the death of the deceased namely;

a) The appellant was married to the deceased but on account of discord and strained relations divorced the deceased.

b) That the deceased was in touch with the

appellant even after a decree of divorce

passed by the competent Court dissolving

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the marriage.

c) On the date of the incident, the appellant

visited the flat No.315 Satpuda Building,

Oshiwara Park at around 1:00 p.m. and

procured key of the said flat and obtained

access was seen by Watchman of the

building (PW No.18);

d) The appellant brought the deceased in the

said flat after 1:30 p.m. and the deceased

was last seen in the company of the

appellant by PW No.18;

e) The body of the deceased was found lying

in Flat No.315, Satpuda Building which

belong to sister of the appellant at around

6 p.m;

f) The appellant suffered injury on his right

forearm in the scuffle and was examined

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by doctor at Juhu who treated and

sutured the said injury and put bandage

on the same;

g) That the appellant stayed in hotel Atithi

in Kolhapur on 6/4/2008 at around 6:00

a.m. and signed the register maintained

by the Hotel as Rajiv Mathur and the

appellant is identified as a customer by

PW Nos.10 and 11;

h) The appellant stayed in hotel Rajashri in

Pimpri and checked in the said hotel at

around 4:00 a.m. in the name of Rahul

Sharma;

i) The appellant was taken to Yashwantrao

Chavan Hospital,Pimpri,Pune by the

Hotel Manager on receipt of a phone call

from a woman who informed that he

needed medical assistance;

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j) Recovery of articles and belonging to the

deceased from the hotel room where the

appellant has concealed himself.

k) The appellant was accosted by

investigating team in the said hospital

and brought to Oshiwara Police Station

and arrested. The arrest panchnama

mentions about an injury on his right

hand forearm which was a fresh injury;

10 The prosecution relies upon the evidence of PW No.18

Ompraksh to establish the fact that on the day of incident i.e. on 5 th

April, 2008 deceased Payal had accompanied the appellant to the

said flat. Evidence of PW No.18 Omprakash S. Kunwar who was

working as watchman supports the case of the prosecution and

according to this witness on 5th April, 2008 around 1:00 p.m. the

appellant went on the upper floor and returned back and informed

the said witness Omprakash that the key of the house is kept with the

maid servant and he will come back with the key. PW No.18 states in

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his deposition before the Court that thereafter Darshan returned

back with the key and went to the flat and came back after sometime

and paid Rs.20/- to him. The witness further states that appellant

Darshan informed him that he will bring his wife to the flat and he

should greet her by saying "Namaste". PW No.18 further states that

Darshanji returned along with the lady who was talking on cell phone.

This witness therefore establishes the presence of the

appellant in the said flat from 1:00 p.m. and intervening period he

was joined by the deceased. Prosecution witness No.18 had further

stated that in the evening when younger sister of Darshanji came in

the building and she opened the flat and the dead body of the lady

who had accompanied Darshanji was found lying in the said flat. This

witness has been examined by the prosecution to establish that the

deceased was last seen in the company of the appellant in the

afternoon on the date of the incident and thereafter she was not seen

alive by any person. PW No.18 has been subjected to rigorous cross-

examination by the counsel for the accused but from the cross-

examination it is reaffirmed that this witness was knowing the

appellant, though he was not resident of the building since he was

intermittently visiting the building. In the cross-examination he has

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admitted that he saw the deceased Payal for the first time in that

building and he had saluted to her and therefore he could identify the

body of the person lying in the flat of the building as the same lady

who had visited along with the appellant. The material testimony of

this witness to the effect that the deceased was last seen together in

the company of the appellant in the premises of Satpuda building, is

not shattered in any way in the cross-examination.

11 To establish the link and the fact that the deceased Payal

was in the company of the appellant on the fateful day in the

afternoon hours, the prosecution has also examined PW No.2 Pintu

who was working associate of the deceased since he was working with

the same architect to whom the deceased Payal was rendering

services. PW No.2 had thrown light on the personal life of the

deceased and had deposed that her marriage was performed with

Darshan before two years and she had instituted petition for divorce

against Darshan in the family Court at Bandra. He even deposed that

he had accompanied the deceased Payal to the court and has also

stated the reasons for the divorce as Darshan had performed another

marriage with one Nikky @ Tapaswini about six months after the

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marriage with the deceased. The said witness had an opportunity of

knowing the appellant who was introduced to him by the deceased as

her husband. PW No.2 has further deposed that on the date of the

incident, she had called the said witness and informed that she was

going to meet Darshan and even requested him to accompany her. On

that day this witness went to the office of his employer Milind, where

the deceased was employed and when he contacted the driver of the

deceased he was informed that Payal had gone to hotel Kalinga along

with the appellant Darshan. The said witness also deposed that hotel

Kalinga is in the same locality and just separated by a road and he

attempted to contact Payal on her mobile phone and she asked him to

wait and after sometime he was informed by Payal that she is in

Oshiwara but at that time the appellant snatched her mobile phone

and spoke on the phone with the said witness and said that Payal had

more love and affection with him and the phone was immediately

switched off. This witness further deposed that he made efforts to

contact Payal on her mobile phone unsuccessfully and therefore he

sent her a Sms stating that he would go to the police station as she

had not given the whereabouts. However, even after second Sms was

forwarded there was no response. The witness further deposed that

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he received phone call from the mother of deceased Payal that she

had not returned home and she enquired her whereabouts and after

sometime she asked her this witness to come home along with the car

and the driver of Payal where she informed that Payal was murdered.

Prosecution Witness No.2, though cannot be said to be a

witness who had seen Payal and deceased together but he is a witness

to the fact that the deceased was in the company of the appellant

after 3:00 p.m. and he had conversation with the appellant on the

phone of Payal after snatching the phone from her and he was the one

who switched off the phone, as a result, the said witness was unable

to contact Payal thereafter till her body was recovered. The said

witness throws light on the crucial aspect that though the deceased

was divorced from the appellant, she was meeting the appellant. On

the fateful day, she had accompanied the appellant and they were

together after 3:00 p.m. This witness has been also put to extensive

cross-examination and he gave the date of divorce as 7 th March, 2008

which appears to be not far away from the date of incident i.e. 5 th

April, 2008.

12 The prosecution has also examined PW No.5, the employer

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of the deceased Milind Pai who was the Architect with whom the

deceased was working as interior designer and co-ordinator for nine

months prior to her death. This witness has testified before the Court

that on the date of the incident she left the office at 2:30 p.m. as she

had finished her work. This witness further deposed that about 6:30

p.m. in the evening he received the phone call from the mother of the

deceased enquiring that where Payal had gone as she did not return

home and was not receiving the phone call. He further deposed that

when he called her mother at around 8:30 p.m. on that day of the

incident he was informed that Payal was no more. Though this

witness is not aware whether she was married with Darshan or when

she had obtained divorce, he deposed to the effect that when the

deceased joined the office, she had disclosed that she is a divorcee. As

an employer it cannot be expected that this witness was in much

knowhow of the personal life of his employee but he is an important

witness from the view point of prosecution who had deposed that on

the date of the incident, deceased had left the office at around 2:30

p.m. located at Juhu Link road Oshiwara Mumbai and she did not

return home on that day.

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13 The prosecution also examined one Smt.Kunda who was

working as a maid servant and taking care of flat No. 315, Satpuda

building owned by the sister of the appellant, Twinkle. This witness

has been declared hostile by the prosecution and has been

strenuously subjected to cross-examination. From the cross-

examination what is extracted by the prosecution is an admission

that she was in the flat in the afternoon from 1:00 p.m. to 2:00 p.m.

when she cleaned the flat and thereafter she left the flat. The

prosecution has also examined her son Jayesh as PW No.8 who has

stated that he was present at home at 2:30 p.m. and Darshan uncle

had came to their house and demanded the key of the flat and took

away the key. The said witness has identified the appellant Darshan

in the dock. However, in the cross-examination he deposed that he

did not recollect the date or day when he had handed over the key to

the appellant and he had not seen Darshan uncle any time before the

date of the incident.

14 The evidence adduced on record by the prosecution in the

form of witness No. PW No.2, PW No. 5 and PW No.18 establishes that

the deceased Payal had left her office located at Juhu Link road,

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Oshiwara at around 2:30 p.m. This fact is reaffirmed by PW No.2

Pintu who visited the office at around 3:00 p.m. and was informed by

the driver that the deceased had gone to hotel Kalinga, along with the

appellant which is in the same locality. The prosecution has

established through the evidence of PW No.2 Pintu that when he

contacted deceased on her mobile she informed him that she is in

Oshiwara and this witness also establishes the fact that the deceased

was in the company of the appellant since he had telephonic

conversation with him. The presence of the appellant and the

deceased together in Flat No.15 Satpuda Building is further

reaffirmed by PW No.18 who establishes the prosecution case that

initially the appellant visited the flat alone at about 1:00 p.m.,

obtained the key of the flat from the maid servant, opened the flat,

remained in the flat for 10/15 minutes and after sometime returned

to the said flat along with deceased Payal who was identified by this

witness as the lady whose body was found in the flat. The prosecution

has therefore brought clinching evidence on record that from 3:00

p.m. till her body was found by the complainant lying in the flat

No.315, Satpuda building around 6 O' clock, the deceased remained in

the flat where she was lastly seen in the company of the appellant.

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The burden therefore shifts on the accused / appellant to

show as to in what manner and at what point of time he lost custody

over the deceased person and when he parted with her company.

However, no explanation has come from the appellant to that effect

nor he has led any evidence to rebut the fact established by the

prosecution that the deceased was last seen in the company of the

appellant.

15 The prosecution has also adduced evidence in the form of

subsequent conduct of the appellant after the incident and that he

sought shelter outside the city of Bombay by concealing his identity,

in the fake name. The prosecution has also relied upon a

circumstance that the accused had sustained injury during the

incident on his forearm and has examined the Medical Practitioner

Dr Anand Pai (PW 14) whom the accused visited on the date of the

incident at about 6:00 p.m. PW No.14 Dr Anand Pal was examined by

the prosecution deposed that he is having his clinic at Juhu market

Mumbai and around 5th April, 2008 at about 6:00 p.m. Darshan had

been to his clinic for treatment since he had sustained injury on his

right hand on account of accidental fall. The appellant was examined

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by PW No.14 and he found bleeding injury on his right hand which

was treated by cleaning and suturing and by prescribing some

antibiotics. The said witness had identified the accused Darshan

present in the dock. Though the said witness in the cross-

examination states that he was not able to recollect the exact size of

the injury and the exact part of the right hand where the injury was

found, he admits that on examination of the patient he felt that it was

a defence injury.

16 The prosecution has further relied upon PW No.10 Sachin

Kumbhar and PW No.11 Balwant to establish that the appellant

concealed himself in hotel in Kolhapur and sought shelter in the said

hotel by giving a fake identity. PW No.10 Sachin Kumbhar has

deposed before the trial Court that he was working as housekeeper in

the hotel "Atithi" Kolhapur and on 6 th April, 2008 at about 6:30 p.m.

he was called at the counter of the hotel and asked to reach the

customer to Room No.206. The said witness states before the Court

that the customer was having a bandage on his right hand (right

wrist) and the name of the said customer was told by the hotel

Manager as Raju Mathur. The said witness identified the accused

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before the Court present in the dock as the same customer who had

visited hotel Athithi and stayed in the name of Raju Mathur. His

evidence is further corroborated by PW No.11 Balwant who is the

Manager of Hotel Atithi who deposed before the Court that one

customer booked Room No.206 by entering his name in the hotel

register in his own handwriting and he put his name as "Raju

Mathur" who stayed in the hotel for 2 days. He produced the register

of the hotel for the year 2008 and he also identified the accused

Darshan in the trial Court and stated that he is the same person who

stayed in the hotel for two days. These two witnesses have therefore

supported the prosecution case that in order to flee away from the

crime, the appellant had gone to Kolhapur and stayed in hotel from

6th April, 2008 in the name of Raju Mathur. Register of the said hotel

records an entry which according to PW No.11 was made by the

accused himself in his own handwriting and he also put his signature

as Raju Mathur. PW No.11 has identified the accused Darshan who

signed the register. In order to complete the chain, the prosecution

has further examined PW No.12 Ashok Bhere, Hotel Manager in

whose hotel the accused sought shelter from 8 th April, 2008 and

identified himself as Rahul Sharma who had come from Kolhapur.

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PW No.12 Ashok Bhere has deposed that he was working as Hotel

Manager in Rajashri Hotel, Pimpri, Pune and when he was present at

the counter at 4:00 a.m. a customer requested a room in the hotel and

made entry in the hotel register in his own handwriting and paid an

advance amount for stay in the hotel for two days. This witness PW

12 Ashok Bhere further deposed that in the morning he left the hotel

and returned in the evening at around 7.00/7:30 p.m. and enquired

about the hotel phone number which was supplied to him. PW No.12

further states that after about 15/20 minutes he received phone call

from a woman, that the customer in Room No.208 is ailing and she

made a request to take him to the hospital. It is further deposed that

when he went to Room No.208, the customer was lying in semi-

conscious condition and he was drunk and not in a position to talk. It

is further deposed that he called for an auto-rickshaw and with the

assistance of one employee of the hotel he carried the customer to

Yashwantrao Chavan Hospital, Pimpri, Pune and admitted him there.

This witness has identified accused Darshan, present in the dock, as a

customer, who had visited his hotel and stayed in Room No.208.

According to this witness, in the same night policemen arrived at his

hotel and made enquiry as to who stayed in Room No.208 and he took

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the police officials to Yashwantrao Chavan Hospital, Pimpri Pune and

showed them the customer in the hospital. According to this witness,

the policemen then returned to the hotel, prepared panchnama in

Room No.208 and he also produced the hotel register in which the

accused had entered his name as Rahul Sharma.

The aforesaid three witnesses PW No.10, 11 and 12

support the prosecution case about the conduct of the accused after

the date of the incident when he concealed his identity and lodged

himself in different names, initially at Kolhapur and subsequently at

Pimpri, Pune.

17 The chain of events is linked by the prosecution in the

form of evidence of PW No.10,11 and 12 to show that it is the accused

who stayed in hotel "Atithi" in Kolhapur from 6th April, 2008 and 7th

April, 2008, who subsequently came to hotel Rajashri in Pimpri at

around 4:00 a.m. on 8th April, 2008 and entered his name as Rahul

Sharma who was then taken by PW No.12 to Yashwantrao Chavan

Hospital, Pimpri and it is at this place when the policemen accosted

the accused from the said hospital. There is no dispute about the

identity of the accused person since the chain of evidence in the form

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of PW No.10,11 and 12 who referred to their customer as none else

than the appellant who was accosted by the police personnel while he

was admitted and being treated in Yashwantrao Chavan Hospital,

Pimpri. The chain of the events, demonstrate that after commission

of the offence with which the appellant was charged, he left Mumbai,

arrived at Kolhapur on 6th April, 2008, stayed at Kolhapur till 7th

April, 2008 and reached Rajashri hotel in Pimpri on 8 th April, 2008,

admitted to the hospital in Yashwantrao Chavan Hospital, Pimpri by

PW No.12 on 9th April, 2008 where he was traced by the Investigating

team where PW No.15 Jitendra Kadam PSI arrived and found that he

is the same accused to whom he was supposed to arrest in relation to

C.R. No. 186 of 2008 registered at Oshiwara Police Station. It is PW

No.15 who carried the accused from Pune to Mumbai at Oshiwara

Police Station where he came to be arrested on 9th April, 2008.

18 As per the prosecution, the accused came to be arrested

on 9th April, 2008 and the column no. 7 of the arrest panchnama

mentions that the arrested accused had a fresh injury on his forearm

of the right hand and the said wound was stitched. According to the

prosecution, the accused was referred for medical examination to

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Cooper Hospital, Mumbai by Oshiwara police station and was

examined by Dr. Prashant (PW No.13). The accused was examined

by the said PW No.13 and in his deposition before the Court he stated

that he had noticed a scar mark on his right forearm having 3 inches

in length though he was unable to give its dimension, witness had

deposed that the accused had given history of consumption of 30

tablets of Restyl 0.5 mg. The said prosecution witness has produced

the medical papers in relation to the accused person and described

him to be a chronic smoker and occasional alcoholic.

19 The another incriminating evidence against the accused

which is tendered before the Sessions Judge by the prosecution is

recovery of the weapon and also certain articles belonging to the

deceased which supports the case of the prosecution. PW No.15

Jitendra Kadam who had visited Rajashri Lodge at Pune and by

whom the accused was brought to Oshiwara Police Station had

carried out a search of the room in the said lodge where the accused

had stayed in the name of Rahul Sharma. The said witness has

deposed that on search of the room, he found two bags and in one bag

there was a knife, driving licence of the deceased and there was also

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one Ladies' purse with credit cards belonging to the deceased. The

said articles were seized in the presence of panch witness Mohd.

Usman who has been examined as PW No.9 by the prosecution. The

seizure panchnama Exh.37 is proved by the said witness and it

mentions about seizure of one stainless steel Suri with a bronze

handle with dry stains of blood, edge of which is 18 cms. The ladies

packet contained five credit cards in the name of the deceased and

also her driving licence. Recovery of the said incriminating articles

belonging to the deceased is a circumstance which points out to the

guilt of the accused since the deceased was last seen in the company

of the accused and the things which he was supposed to carry along

with her i.e. valet containing driving licence and credit cards were

recovered form the accused in a lodge at Pune. Further from the spot

certain articles were recovered in presence of panch witness Smt.

Sushila (PW 6) who is also panch on the inquest panchnama Exh.31

and it refers to presence of a knife which was seized during

investigation and the description of the knife is 18 cms in length with

11 cms black handle and 7 cms edge having blood stains. The said

knife was marked as Article 7 and sent for chemical analysis since it

was stained with blood. PW No.6 Sushila has proved the inquest

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panchnama along with the presence of knife at the spot and its

recovery from the said place. The said knife and the spear (Khanjir)

Article 15 were forwarded to the Chemical Analyser and the report

obtained from the Director of Forensic Science Laboratory, Kalina,

Mumbai, dated 10th November, 2008 i.e. Exh.57's proved by PW

No.17 reports that the said Article No. 7 and Article No. 15 were

having blood stains on the blade and the blood group detected on the

Article 7 and 15 is Group "A".

The prosecution has therefore placed sufficient evidence

on record to prove that the deceased Payal met with homicidal death

and to connect the accused to be the only person who caused said

death, the prosecution has relied upon the circumstantial evidence in

the form of witnesses who have conclusively proved that the

deceased was in the company of the accused immediately preceding

the time when she was found dead at 6:00 p.m. by the complainant.

The evidence of PW No.18 watchman the prosecution witness No.2

Pintu is sufficient to support the prosecution case that the deceased

was in the company of the accused on the fateful day. The spot of

incident is the flat belonging to the sister of the accused and the

deceased had no access to the said flat independently except through

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accused Darshan who had frequent ingress into the said flat as per

PW No.18. The complainant Sonal in her evidence has also admitted

that her brother used to visit the said flat by obtaining the key from

caretaker maid servant Smt. Kunda PW 7 who was declared hostile

by the prosecution since she did not support the prosecution case.

However, the prosecution has sufficiently proved that the accused

had access to the said flat and since the deceased was his wife whom

he had recently divorced had accompanied the deceased to the said

flat and two of them were last seen in the afternoon hours and

immediately after which the dead body of the deceased Payal was

found by PW No.1. The chain of events unfolded by the prosecution

amply demonstrate that it was only the accused who had an

opportunity to kill the deceased in the lonely flat where he had asked

the deceased to accompany and it has also come in the evidence of PW

No.2 that he was annoyed with Payal since she was conversing on

telephone with the said witness and had switched off the phone and

thereafter no phone call was made by the deceased. The prosecution

has also completed the chain by recovery of knife from the spot of

incident and Sura Article 15 which was seized from the Rajashri

Lodge at Pune where the accused had taken shelter after he

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attempted to escape the consequences of his act of killing the

deceased. PW No.4, Medical Practitioner who conducted the

postmortem on the deceased, had described the age of injuries within

24 hours and had deposed that the said stab injuries are possible by

weapon like "Khanjir/Sura", Article 15. PW No. 4 Dr Shantanu was

shown the weapon "Sura" (Khanjir) (Art.15) and he had

categorically deposed that the injuries on the body of the deceased

described on the postmortem could be possible by weapon

"Sura"/Khanjir" (Art.15) shown to him. Further incriminating

material which the prosecution has produced against the accused is

the recovery of articles belonging to the deceased Payal from Rajashri

Lodge, Pune and no explanation has come forth from the accused to

rebut the said prosecution case.

20 It is not in dispute that death of Payal is homicidal and the

place where her dead body was found in Flat No. 315, Satpuda

Building, Oshiwara Park. The prosecution did not have any direct

evidence in the form of ocular evidence as to the said act of killing the

deceased. However, the prosecution relies on the circumstantial

evidence and based its case on the theory of last seen. The deceased

was last seen in the company of the accused in the afternoon hours on

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the date of incident. PW No.18 Omprakash who is the watchman of

the Satpuda building has deposed that the appellant had been to the

flat at around 1:00 p.m. and had obtained the key of the said flat from

the maid servant. The appellant was known to the said witness and

he returned to the said flat with his wife, who was identified by the

said witness as deceased Payal. The prosecution has proved that

deceased accompanied the appellant to the said building after 1:00

p.m. and she was not seen alive thereafter. The prosecution relies

upon the said circumstance of the deceased being last seen in the

company of the appellant at a point of time which is very proximate

to the point when her dead body was found at around 6:00 p.m. by the

complainant. The prosecution has also relied upon the circumstance

that the body was lying at a place where she had accompanied the

appellant and it is only the appellant who had an access to the said

flat along with the complainant's sister who had come to the said flat

but she did not return to the said flat till 6:00 p.m. after her

departure from the said flat in the night of the earlier date. Thus, the

prosecution has clinchingly established that it was the appellant who

had an access to the flat and had an opportunity to cause death of the

deceased in the said flat.

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21 The prosecution has based its case on circumstantial

evidence and by cogent evidence brought on record has established

the circumstances which are consistent with the hypothesis

regarding guilt of the present appellant. The circumstances so

established by the prosecution exclude every other hypothesis except

the one that the deceased was killed by the appellant. The

prosecution has established the chain of circumstance brought on

record by the prosecution which do not lead to any other inference

than the guilt of the accused. The evidence brought on record by the

prosecution in relation to last seen together is completely established

to show that the time gap when the deceased was last seen in the

company of the accused and when she was found dead was so small

but that the only inference that can be drawn is that it was the

appellant who was responsible for death of deceased. In the present

case, it is to be noted that the circumstances are sufficient to

conclusively point out to the commission of murder of the deceased

by the appellant and while dealing with the factum of last seen

together it is well established by the prosecution that a close

proximity exists between the event of the appellant last seen in the

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company of the deceased. The Hon'ble Apex Court by applying the

principles laid down by the Apex Court in the case of Hanumant Vs.

State of Madhya Pradesh (AIR 1952 SC 343) laid down the

principle which should be a guiding one in such case and the said

principle is consistently following in the judicial hierarchy and still

holds good.

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency & they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.''

A close analysis of the decius would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra,

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(1973) 2 SCC 793; where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

22 The Apex Court in the case of Sharad Birdichand

Sarda Vs State of Maharashtra, (1984 4 SCC 116) has laid

down the five golden principles which the number of cases based on

circumstantial evidence. It would be appropriate to enumerate the

said principles below. It held that the onus is on the prosecution to

prove that the chain is complete and Apex Court laid down the

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conditions precedent, before conviction based on it to be fully

established.

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

23 Applying the said principle the Apex Court in a recent

judgment in the case of Kishor Vs. State of Maharashtra, 2017 (3)

SCC p. 716 has observed that last seen together circumstance does

not by itself necessarily lead to inference that it was accused who

committed crime but there must be something more to connect the

accused with the crime and to point out the guilt of the accused and

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none else. As aforesaid, in the present case there is clinching

evidence to point towards the involvement of the appellant in the

commission of the crime.

24 In the present case, the prosecution has led clinching

evidence to point out the involvement of the appellant in the

commission of the crime and we see no reason to interfere with the

findings recorded by learned Sessions Judge.

The prosecution has established the guilt of the appellant

by leading cogent and trustworthy evidence. Considering the

evidence led by the prosecution in the form of the subsequent conduct

of the appellant, where he attempted to evade the arrest, is also a

circumstance to complete the chain of events which lead to the guilt

of the accused. Though we are aware of the position in law in relation

to abscondance of a accused and that it by itself may not be a positive

circumstance since an innocent person would also run away from the

course of justice fearing the consequences but when such

circumstance is coupled with other circumstances it assumes

significance. The appellant has not only absconded to evade arrest

but also concealed his identity and took shelter in the hotels far away

from the place of the incident outside Bombay in fake name to avoid

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arrest. The appellant was unmistakenly traced as a customer who

was admitted to the private hospital Yashwantrao Chavan Hospital,

Pimpri. The learned counsel for the appellant has vehemently

argued that test identification parade was not carried out to establish

the identity of the accused. However, in our view, the court

identification itself is good identification in the eyes of law and

prosecution witnesses have identified the accused in the dock as the

same person who had been to the hotel in Kolhapur and Pimpri and

established the circumstance that it was the accused who had stayed

in the said hotel by concealing his identity.

25 The identity of the appellant is well established and

merely because no test identification parade is conducted is no

reason to break the chain against the appellant. In case of

circumstantial evidence, the motive assumes great significance and

importance and in the absence of such motive the Court would be put

on guard and caution to scrutinize each piece of evidence very closely

in order to ensure that mere suspicion or conjecture did not take

place of proof. In the present case, the prosecution has also brought

on record the motive of the appellant in causing the death of the

deceased as they shared an estranged relationship and the

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accused/appellant was suspecting that the deceased was carrying

illicit relationship after the divorce and this motive according to us

was sufficient to commit the crime in the scenario of modern urban

life, specifically when the ego of the appellant is hurt in discovering

that the deceased who was once upon a time his wife, is leading a

happy life and carrying illicit relationship with the PW No.2. Thus,

the prosecution has also brought on record the motive in causing the

death of the deceased.

26 Taking overall view of the matter and appreciating the

materials in their entirety and by analysing the evidence led by the

prosecution, we are of the view that the learned Sessions Judge has

rightly convicted the appellant and the conviction is based on

circumstances which are fully established beyond reasonable doubt

and are consistent, forming a complete chain, where all links in chain,

unerringly point to the guilt of the appellant.

27 In the aforesaid circumstances, we uphold the judgment

passed by the learned Sessions Judge and we dismiss the appeal filed

by the appellant. The appeal is hereby dismissed.

[SMT.BHARATI H.DANGRE,J.] [S.C. DHARMADHIKARI, J.]

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