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10] In this appeal, we have heard learned counsel for Accused
No.1 Ms.Naima Shaikh and learned counsel for Accused No.2
Mrs.Nasreen Ayubi. Both of them have challenged the impugned
judgment and order of the Trial Court on the count that apparently
there in no convincing, cogent and reliable evidence on record to
prove the guilt of the accused.
11] As per submission of learned counsel for Accused No.1, the
star witness for prosecution, namely, PW-12 Om, the eye witness to
the incident has totally exonerated Accused No.1 Rupa, his mother
from the involvement in the incident. He has implicated Accused No.2
alone. Despite that the prosecution has not declared him hostile and
therefore, the defence can very well take advantage of his evidence to
disprove the case of prosecution against Accused No.1. It is submitted
that there is absolutely no evidence to connect Accused No.1 with the
alleged incident as evidence of PW-12 Om goes to prove that Accused
No.1 was not present in the house at the time of incident as she has
gone to sleep in the house of her mother. Even as regards the call
detail records, it is submitted that the SIM Card was standing in the
name of the deceased and not in the name of Accused No.1. Therefore,
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
the call detail records also cannot connect the Accused No.1 to the
incident beyond reasonable doubt. It is urged that the recovery of
towel at the instance of Accused No.1 is disbelieved by the Trial Court
also. Moreover, the towel does not bear any blood stains.
12] In sum and substance, it is thus the submission of learned
counsel for Accused No.1 that there may be some scattered pieces of
incriminating circumstances against Accused No.1, but those
incriminating circumstances are not proved beyond reasonable doubt
by the prosecution. Merely on assumptions and suspicion, the
Investigating Officer has implicated her and the Trial Court has held
her guilt to be proved. Therefore, according to learned counsel for
Accused No.1, the impugned judgment and order of the Trial Court is
required to be set-aside qua Accused No.1.
13] As regards Accused No.2, it is submitted by his learned
counsel that, the opinion of the Handwriting Expert is not conclusive
against Accused No.2. The only incriminating material against him is
the evidence of PW-12 Om; however, considering his tender age and
the fact that he was a child witness who has exonerated his mother by
stating that at the time of incident his mother was not present in the
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
house, much reliance cannot be placed on the evidence of this witness.
According to learned counsel for Accused No.2, the possibility of this
witness being tutored cannot be ruled out. It is urged that otherwise
also the evidence of child witness needs to be accepted with lot of
caution and care and needs to be proved as that of sterling quality. In
this case, according to him, the evidence of PW-12 Om cannot
successfully pass this scrutiny to call it as of "sterling quality".
According to learned counsel for Accused No.2, therefore, the benefit
of doubt in this case cannot be denied to Accused No.2 also.
14] Per contra learned A.P.P. has supported the impugned
judgment and order of the Trial Court for the reasons stated therein
and also for the fact that the evidence of eye-witness PW-12 Om
clearly implicates Accused No.2 and the evidence of the call detail
records and the evidence of PW-9 Chetan Vyas, the owner of Hotel
Ganga, clearly proves the involvement of Accused No.1, coupled with
the medical evidence, proving that the injuries found on the dead body
of Vilas cannot be caused by a single person. Hence, according to
learned A.P.P., there is clinching evidence on record to prove the guilt
of both the Accused; therefore these appeals needs to be dismissed.
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
15] We have given our anxious consideration to the
submissions advanced by learned counsel for Accused Nos.1 and 2;
and learned A.P.P. and also perused the entire evidence on record
along with impugned judgment of the Trial Court and on perusal of
the same, we are of the considered opinion that the prosecution has
succeeded in proving its case against both the Accused beyond
reasonable doubt. Our reasons for arriving at this finding can be stated
as under;
16] In this case, the main reliance of prosecution is on the
evidence of PW-12 Om, the minor son of the deceased and Accused
No.1. He was residing along with them. At the time of giving evidence
in the Court, in the year 2012, he was 10 years old and therefore, it
follows that at the time of incident in the year 2011, he was about 9
years of age. After making preliminary enquiry about his
understanding as to whether he was able to give rational answers and
whether he was aware of the sanctity of the oath, the Trial Court has
administered oath to him. His evidence goes to prove that deceased
was his father and Accused No.1 was his real mother. He was residing
along with them at the given address where the incident has taken
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
place. He was also knowing Accused No.2, as Accused No.2 was doing
business of Cable Operator with his father. He used to address Accused
No.2 as Sunil Bhaiya.
17] About the incident, PW-12 Om has deposed that Accused
No.2 has throttled his father and killed him at night in their house.
According to his evidence Accused No.1, his mother, was at that time
in the house of her mother; which was situate behind their house. In
his cross-examination on behalf of Accused Nos.1 and 2, his evidence
is not at all shaken. He has denied suggestion that at the time of
incident, he was not at home and he had gone along with Accused
No.1 to the house of her mother. He has also denied that he was not
knowing Accused No.2. He has identified Accused No.2 in the Court
properly.
18] It may be true that PW-12 Om is a child witness and hence
his evidence needs to be scrutinized with care, but then there is
absolutely nothing in his cross-examination to disbelieve him, as
regards the involvement of Accused No.2 in the incident and the way
Accused No.2 has throttled the deceased.
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
19] It may also be true that PW-12 Om has not involved his
mother-Accused No.1 in the incident but then one can understand, it
may be because Accused No.1 is his mother and after this incident he
was very much residing in the house of the mother-Accused No.1. His
anxiety therefore to exculpate his mother cannot be denied. However,
it becomes difficult to accept that Accused No.1, if has gone to the
house of her mother for sleeping, would not take her minor son of 9
years of age with her. It also does not appear probable that, PW-12 Om
will stay at night in the house and will not accompany his mother to
the house of his grand mother.
20] In our considered opinion, the material piece of evidence in
this case is that of PW-9, the owner of Hotel Ganga Shri.Chetan Vyas.
According to his evidence on 26/10/2010 i.e. few months before
incident Accused Nos.1 and 2 had come to his Hotel Ganga, which is
situated in front of Jogeshwari Railway Station (East). They had made
entry in the register at serial Nos.75 and 76. They had signed against
this entry in the register and they were allotted one room. They had
posed themselves as husband and wife and stayed in the allotted room
for one day. He has identified both Accused Nos.1 and 2 in the Test
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
Identification Parade conducted by PW-4 Executive Magistrate Shri.
Arjun Tambe. He has also produced the relevant register of his hotel,
which was seized under panchanama Exh.39 in the presence of PW-8
panch Ajay Shukla.
21] As per evidence of PW-14 P.I. Bagwe, the specimen
handwriting and signatures of Accused Nos.1 and 2 were obtained in
presence of PW-13 panch Raju Thakur under panchanama Exh.49.
PW-14 P.I. Bagwe has sent this register and the specimen signatures of
Accused Nos.1 and 2 to PW-11 Handwriting Expert Shri. Sagar Juikar.
His evidence clearly goes to prove that as per his opinion, he found
similarity in the signatures of Accused No.1 in the register and the
specimen signatures.
22] As regards the handwriting of Accused No.2 in the said
register, though he could not arrive at any definite opinion, it is
pertinent to note that the address given in the said register is that of
Accused No.2, which is stated in the charge-sheet namely Ashtavinayak
Co-operative Housing Society, Building No.2A, Jogeshwari Vikroli Link
Road, Durga Nagar, Jogeshwari, Mumbai-60. Even the mobile number
written in the said register 9324534490 is that of Accused No.2, as can
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
be seen from the evidence of PW-6 the Nodal Officer Rajesh Gaikwad
from Reliance Communication, who has produced the necessary
certificate to that effect vide Exh.29.
23] Therefore, this evidence on record, in our opinion,
categorically goes to prove that both Accused Nos.1 and 2 had visited
Hotel Ganga belonging to PW-9 Chetan Vyas and stayed their for a
day, posing themselves as husband and wife. This evidence thus proves
their extra marital relations.
24] Learned counsel for Accused Nos.1 and 2 have tried to
point out some infirmities in the evidence relating to Test
Identification Parade conducted by PW-4 the Executive Magistrate but
then as per the well settled position of law, if the evidence relating to
Test Identification Parade is subjected to such minor scrutiny, then no
Test Identification Parade can be admissible in evidence as such
evidence is bound to suffer from minor defects.
25] Further corroboration to the prosecution case coming from
the medical evidence of PW-7 Dr.Pankaj Gajare. According to him,
following external and internal injuries were found on the body of the
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
deceased, when he conducted the autopsy:-
"External injury over head and face :-
1) Contusion size of 4.5 x 2 cm, seen over left forehead just
above eyebrow, reddish in colour.
2) Contusion size of 2.5 x 1 cm, seen over left forehead, 0.5
cm above injury no.1, reddish in colour.
3) Abrasion size of 2 x 1 cm seen over centre of forehead,
reddish in colour and superficial.
4) Contusion size of 4 x 3 cm seen over posterior surface of
right ear, reddish in colour, cut section extra vasated
blood seen.
5) CLW Size of 0.5 x 0.1 x 0.1 cm, seen over right mastoid,
reddish in colour.
6) Contusion size of 6 x 4 cm with swelling seen over right
occipital region, reddish in colour.
7) Size of 4.5 x 3 cm, seen over left mastoid, reddish in
colour, cut section extra vasated blood seen.
8) Contused left eye medially, blackish, swollen.
9) Abrasion size of 0.5 x 4 x 0.5 cm seen over left zyaomatico
maxillary region, just lateral to left nostril over area of 4
x 4 cm, reddish in colour.
10) Abrasion size of 1 x 8 cm seen over left nostril reddish in
colour.
11) Abrasion size of 3 x 2 cm seen over nasal bone, oblique
and reddish in colour.
External injuries over face :-
12) Contusion size of 4.5 x 2.5 cm, with swelling seen over
left upper lip, latgerally, reddish in colour.
13) Contusion Size of 3 x 1 cm, seen over left lower lip,
laterally reddish in colour.
14) Contusion 3 x 1 cm seen over lower lip centrally over
innner mucosal surface, reddish in colour.
15) Contusion size of 2 x 1 cm, seen over right lower lip,
laterally, reddish in colour,
16) Fracture dislocation of left lower 2nd bicuspid teeth.
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External injuries over Neck Region :-
1) Scratch (abrasion) size of 5 x 1.8 cm seen over right
lateral neck region, 3.5 cm below right angle of mondible
oblique, reddish in colour.
2) Abrasion size of 2.5 x 1 cm oblique seen over centre of
neck, below thyroid cartilage, reddish in colour.
3) Small abrasion 12 in numbers, size of 0.5 x 5 cm seen
over right side of neck, reddish and superficial.
External injuries over limbs:-
1) Contusion size of 2 x 1 cm round seen over right forearms,
dorsally, 11 cm above right wrist at lateral border,
reddish in colour.
2) Contusion size of 4 x 305 cm seen over right thigh
laterally 3 cm below, Anterior Superior illiac spine,
reddish in colour.
3) Contusion size of 3 x 1.5 cm, seen over left elbow,
laterally reddish in colour.
4) Contusion size of 1 x 1 cm seen over left forearm, dorsal
aspect, lateral border, 6.5 cm above left wrist, reddish in
colour.
Internal injuries over Head region:-
1) Haemorrhagic contusion size of 9 x 6 cm, reddish in
colour, seen over right frontal region.
2) Haemorrhagic contusion size of 3.5 x 3.5 cm, reddish in
colour, seen over right parietal region.
3) Haemorrhagic contusion size of 10 x 5 cm, reddish in
colour, horizontal seen over right tempo parieto occipital
region.
4) Haemorrhagic contusion size of 7 x 3 cm, reddish seen
over left frontal region.
5) Haemorrhagic contusion size of 9 x 4 cm, reddish, seen
over left temporal region.
6) Haemorrhagic contusion size of 7 x 3 cm, reddish, seen
over left occipital region, laterally.
7) Right and Left temporal muscle haemorrhages seen.
On Brain I following injuries found:-
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
1) Contusion size of 2 x 2 cm seen over right anterior
parietal lobe
2) Contusion size of 4 x 3 cm seen over right posterior
parietal lobe region lateral surface.
On dissection of neck region I following injuries found:-
1) Contusion size of 9.5 x 3 cm, seen over left sternoclcido
mastoid interior surface, reddish.
2) Contusion size of 4 x 2 cm, seen over right tonsillor region
just below right angle of monchible, reddish in colour.
3) Contusion size of 3.5 x 3 cm, seen over left tonsillar
region, just below left angle of manchible, reddish.
4) Contusion size of 3.5 x 1.5 cm seen over right laryn upper
surface, reddish in colour.
5) Contusion size of 1.5 x 1.5 cm seen over larynx left side
upper surface.
6) Fracture of lesser Cornu of hyoid bone on right side"
26] In the opinion of PW-7 Dr.Gajare, the cause of death was
due to throttling (unnatural). He has categorically opined that, it is not
possible for a single person to cause all the above said injuries. Even a
cursory glance to the number of injuries found on the dead body
makes it necessary to infer that these injuries are not likely to be
caused by a single person. Therefore, it follows involvement of more
than one person in the incident and Accused No.1 was also equally
involved therein.
27] Another material piece of evidence in this respect is that of
the spot panchanama, which is proved through the evidence of PW-3
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
panch Sanjay Mahadik and PW-14 P.I. Bagwe. It is pertinent to note
that on the dead body of the deceased, only one under pant was
found, whereas his shirt and pant were found to be just washed and
kept in the balcony for drying. The spot panchanama also reveals that
the pillow cover was also removed from the pillow and it was just
washed and kept for drying. Now at such an early hours of 6.30 a.m.
no one can found the clothes washed and kept them for drying in the
balcony. No explanation is also offered on behalf of the either Accused
No.1 or 2 in that respect. The C.A. Report Exh.59 clearly goes to prove
that this pillow cover was found stained with human blood. Even the
pillows were having the human blood stains. The clothes of the
deceased, Exh.16 and 17, were also found to be washed and they were
having the human blood stained thereon.
28] The crucial piece of evidence connecting both the Accused
in this case is the call detail records. The evidence of PW-6 Rajesh
Gaikwad, Nodal Officer from Reliance Communication proves that
Accused No.2 was having the SIM Card of Mobile phone number
9324534490. The evidence of PW-10 Yogesh Rajapurkar, Nodal Officer
of Airtel Mobile Company goes to prove that deceased was having two
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
SIM Cards of mobile numbers 9987455097 and 9967662652. The call
detail records of these two mobile phones goes to prove that there
were several calls exchanged between the mobile number of Accused
No.2 i.e. 9324534490 and mobile number of deceased 9967662652.
These calls are not only before the death of deceased but even after his
death in the night. Again there is no explanation offered by any of the
accused about these exchange of various calls on the mobiles of the
deceased and that of Accused No.2. It is pertinent to note that the
mobile phone record at Exh.43 shows that the last call was made from
mobile number 9324534490 belonging to deceased to Accused No.2's
mobile number 9967662652 on 11/04/2011 at 5.14 a.m.. This shows
that Accused No.1 was using the said mobile of the deceased, as
admittedly the deceased was already dead by that time.
29] Then there is also the evidence relating to subsequent
conduct of Accused No.1 . The evidence of PW-3 Sanjay Mahadik goes
to show that Accused No.1 had made call to him on 11/04/2011 at
about 6.30 a.m. to 6.42 a.m. from this very mobile number
9967662652. Then he immediately along with his wife went to the
spot. His wife, who is a staff nurse, checked the deceased and then
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
PW-3 Sanjay Mahadik called Dr. Tripathi, who examined the deceased
and declared him to be dead. When Dr. Tripathi said that police were
required to be called, Accused No.1 hesitated stating whether it was
necessary to call the police.
30] The evidence of PW-1 P.S.I. Sunil Khatpe also goes to show
that when he visited the spot, he found the conduct of Accused No.1
most unnatural, as she was giving very evasive replies.
31] As stated above, it does not appear probable that Accused
No.1 will leave the minor son alone in the house and go to the house
of her mother for sleeping. There is also no explanation as to who has
opened the door for Accused No.2 to give him entry in the house at
late hours. It is not suggested to PW-12 that he has opened the door
and Accused No.1 entered in the house. The panchanama does not
disclose that the door or window of the house was broken. It is also
not the case that Accused No.2 was residing in the same house.
Therefore, it necessarily follows that it is Accused No.1, who has
facilitated the entry of Accused No.2 in the house and then both of
them have committed the murder of the deceased.
osk CriAppeal-190-2014 with CriAppeal-1315-2012.odt
32] Thus, from the entire evidence on record, no other
inference but that of the guilt of both the accused can be drawn. In our
considered opinion therefore, the Trial Court has rightly held the guilt
of both the accused to be proved beyond reasonable doubt.
33] As a result, the Appeals hold no merit and hence, stand
dismissed.
34] As Accused No.1 Rupa Vilas Khot is on bail, her bail bonds
stands cancelled and on the request of learned counsel for Accused
No.1, the period of eight weeks is granted to her surrender to jail to
undergo the remaining part of sentence.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)
