Bombay High Court
Golu Mustak Khan vs The State Of Maharashtra on 24 March, 2021
Bench: S.S. Jadhav, N. J. Jamadar
apeal-166.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 166 OF 2015
Golu Mustak Khan,
R/o Gol Pahadiya Mehandiwale Sayyad,
Janakganj Police Station, Gwalior,
Madhya Pradesh, Appellant
[Now at Yerawada Jail, Pune.] ... (Orig. Accused No.2)
V/s.
State of Maharashtra
(Through Hinjewadi Police Station) ... Respondent
WITH
CRIMINAL APPEAL NO.731 OF 2015
Dilip Ravi Donge
Age : 24 years R/o. Gol Pahadiya
Mehandiwale Sayyed, Janakganj Police Station,
Gwalior, Madhya Pradesh, Appellant
[Presently lodged at Yerwada Central Prison] ... (Orig. Accused No.4)
V/s.
State of Maharashtra
(Through Hinjewadi Police Station)
vide C.R No.93/13 ... Respondent
WITH
CRIMINAL APPEAL NO.895 OF 2015
Guddu @ Lalla Bashir Khan,
Age about 25 years,
R/o. Gol Pahadiya, Mehandiwala Sayyed,
Janakganj Police Station, Gwalior,
Madhya Pradesh.
(At present lodged in Nashik Road Central Appellant
Prison, Nashik) ... (Orig. Accused No.3)
V/s.
The State of Maharashtra,
Through Police Inspector,
Hinjewadi Police Station, Pune ... Appellant
WITH
CRIMINAL APPEAL NO.952 OF 2015
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Jagjitkaur Nirmalsingh,
aged 34 years,
Occupation Nil, residing at Flat No.1001,
DSK Ranwara Society, Bawdhan, Pune.
Presently lodged in Yerwada Central Prison, Appellant
Pune. ... (Orig. Accused No.1)
V/s.
The State of Maharashtra,
Through Sr. Inspector of Hinjewadi Police
Station, Pune. ... Respondent
-------------------
Mr. Satyavrat Joshi, for the Appellant in Apeal/166/2015.
Mr. Nitesh Mohite, Court appointed Advocate for Appellant in
Apeal/895/2015.
Ms. Apeksha Vora for the Appellant in Apeal/731/2015.
Ms. P.P. Shinde - APP for the Respondent - State.
---------------------
CORAM : SMT. SADHANA S. JADHAV,
N.J. JAMADAR, JJ.
RESERVED ON : 11th DECEMBER 2020.
PRONOUNCED ON : 24th MARCH 2021.
JUDGMENT : Per Sadhana S. Jadhav, J.
1. The appellants herein take an exception to the Judgment
and Order dated 9th September 2014 passed by the Additional Sessions
Judge, Pune in Sessions Case No.479 of 2013 by which the appellants
herein are convicted for the offences punishable under section 302 r/w
34 of IPC and 120-B of IPC and sentenced to undergo RI for life and
fine of Rs.5,000/- each, in default to suffer RI for two years. Hence,
this appeal.
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2. Such of the facts necessary for the decision of this appeal
are as under:-
(i) The appellant (accused no.1) in Appeal No.952 of 2015 is
the sister of Paramjit Singh (deceased). That, Paramjit Singh was
working as Senior Software Engineer with Tech-Mahindra Company
and was residing on 10th Floor, Durvankur Building, DSK Ranwara
Society, at Bawdhan at Pune. Accused No.1 Jagjitkaur was staying with
Paramjit Singh and was looking after the house.
(ii) On 25th January 2013, the Police of Hinjewadi Police
Station received a phone call from Sahyadri Hospital, Kothrud and the
police was informed that Paramjit Singh was brought to Sahyadri
Hospital by Jagjitkaur in an unconscious state on that day and was
declared as dead before admission. On the basis of the said report, A.D.
No.24 of 2013 was registered on 26 th January 2013, the A.D. Inquiry
was entrusted with P.W.1 Gurudatta More.
(iii) In A.D. Inquiry, the Inquest Panchanama (Exh.20) was
conducted. While conducting the Inquest Panchanama, marks of
abrasion were seen on both sides of the neck. Similarly, there were
abrasions on the wrist, there were blackish blue marks on the back of
the deceased. After conducting autopsy, the medical officer had opined
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the "cause of death as asphyxia due to throttling". The Investigating
Officer Mr. Gurudatta More (P.W.1) had recorded the statements of
witnesses. It had transpired, that in the intervening night of 25 th and
26th of January 2013 the deceased was in the exclusive company of
accused no.1. She had not given any satisfactory explanation about the
injuries noticed on the dead body of Paramjit and moreover, the post-
mortem notes show that the cause of death was asphyxia due to
throttling. Hence, he had lodged FIR against the accused no.1 on 20 th
February 2013, on the basis of which Crime No.93 of 2013 was
registered at Hinjewadi Police Station for an offence punishable under
section 302 of IPC.
(iv) In the course of investigation of Crime No.93 of 2013, it
had transpired that the accused no.1 with the aid and assistance of
three persons namely, Guddu (Appellant in Criminal Appeal No.895 of
2015), Golu (Appellant in Criminal Appeal No.166 of 2015) and Dilip
Donge (Appellant in Criminal Appeal No.731 of 2015) were arrested
and charge sheeted for the offences punishable under section 302 r/w
34 of IPC and section 120-B of IPC. The prosecution has examined in
all 23 witnesses to bring home the guilt of the accused. The accused
no.1 has examined herself as defence witness.
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3. At the trial, the facts of the case as unfolded by the
prosecution are that deceased Paramjit Singh was afflicted with
bacillary migraine. He used to have vomiting, headache and sometimes
he used to suffer from imbalance as testified by P.W.15 - Dr. Hemant
Manjrekar who was attached to Dinanath Mangeshkar Hospital.
According to P.W.15 - Paramjit Singh was admitted in Dinanath
Mangeskar Hospital on 23rd January 2013. He was discharged on the
same day at about 1.00 p.m. He has candidly opined that there is no
possibility that Paramjit Singh would have committed suicide by
throttling his own neck. The original medical case papers of the
deceased are produced by P.W. 15 before the Court and are exhibited as
Exhs.63, 63A and 263G. That P.W.15 has identified accused no.1 in the
Court as the sister of the deceased who had accompanied him on 23 rd
January 2013.
4. On 24th January 2013 Paramjit Singh was taken to Om
Hospital by accused no.1 in an ambulance sent by P.W.14 - Dr. Ram
Chavan. The said ambulance was driven by P.W.6 - Marne. According to
P.W.14 - Dr. Chavan, Paramjit had arrived at the hospital at about 12.30
a.m. along with his sister. Paramjit was examined by P.W.14. The
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medical history of Paramjit was told to the Doctor by accused no.1.
P.W.14 had advised the patient to get admitted in the hospital.
According to P.W.14, the sister of the patient had disclosed to him the
unwillingness of the patient to get admitted as his regular treatment
was with P.W.15-Dr. Manjrekar at Mangeshkar Hospital. P.W.14 had
administered 'Emeset' injection to the patient due to which vomiting
had stopped and there were no symptoms of giddiness or any side
effects due to medicine 'Emeset'. Accused no.1 had requested P.W.14 to
administer a sedative as well, so that he could have a deep sleep.
5. P.W.6 - Vijay Marne was working as a Driver on ambulance
of Om hospital. According to him, in the intervening night of 24 th
January 2013 and 25th January 2013 at about 1.00 am P.W.6 was
directed to get a patient from DSK Ranwara Society, Bawdhan. When
he reached the site, he saw the patient and his sister walking towards
the ambulance and then they were taken to Om hospital. According to
P.W.6, the patient was not in a position to talk. He slept in the
ambulance. When they were about to sit in the car, three boys had
reached near the ambulance. They boarded the ambulance. On the
request of P.W.6, accused no.1 had taken the seat next to him in the
ambulance whereas the three boys had taken rear seat. P.W.6 was
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informed by accused no.1 that those boys were taking care of her
brother in Mangeshkar Hospital as well.
6. P.W.6 - Marne had been summoned by the police to
Yerwada Jail for identifying the three boys i.e. accused no.2 to accused
no.4, he had identified accused no.2 - Golu. According to him, he has
also identified another boy whom he identified in the Court as accused
no.4. It is reiterated in the cross-examination that the boys had
accompanied the patient and accused no.1 to the building.
7. The prosecution has examined P.W.5 - Yogesh Gaikwad, a
driver who was working with Wings Travel Company and was driving a
cab/taxi owned by Nitin Kharat. His cellphone number is 9552356034.
According to him, on 25th January 2013 at about 6.30 a.m. he was
informed by the company to reach a particular location at Bawdhan.
The taxi was booked in the name of "Varsha" and the cellphone
number of the said customer was 9405872061. He reached the said
location, three boys accompanied by customer "Varsha" had boarded
the taxi. Varsha had taken the front seat. As per the direction of
"Varsha" the taxi was driven towards Mangeshkar Hospital. On the way
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"Varsha" had stopped at IDBI ATM. She had withdrawn amount out of
which some amount was given to a boy with fair complexion.
Thereafter "Varsha" had directed P.W.5 to drop the boys near
Mangeshkar Hospital and she had departed from their company. P.W.5
had dropped the boys near Mangeshkar hospital. One of the boys had
made the payment. P.W.5 had tea along with the three boys after which
the boys had left.
8. On 1st March 2013 P.W.5 had led the Police to all the
locations from where he had picked the boys and accused no.1 and the
place where they were dropped. At the Test Identification Parade P.W.5
had identified accused no.2 and accused no.3. They were also
identified in the Court. He had also identified accused no.1 in the
Court as the customer "Varsha".
9. The prosecution has examined P.W.2 - Muktiraj Koirala and
P.W.3 - Prem Soni who were working as security guard in DSK Ranwara
Society. According to P.W.2, in the intervening night of 24 th January
2013 and 25th January 2013 at about midnight he had guided P.W.6 -
Marne to Building No.22 'Durwankur' in Flat No.1001. He had seen
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accused no.1 in the ambulance next to driver but had no occasion to
see anyone else.
10. On the same day at about 7.00 am, P.W.3 who was working
as watchmen informed P.W.2 that he was told by accused no.1 that her
brother was not well and therefore, she had called him to the flat.
P.W.2 along with another guard Dhanraj had been to Flat No.1001.
P.W.3 was in the flat along with accused no.1 and a lady friend of
accused no.1. Paramjit Singh had not responded to his call and was
lying still on his bed. Since Paramjit was motionless he was wrapped in
a bedsheet and was brought down by P.W.2 and P.W.3. Evidence of
P.W.2 and P.W.3 is consistent.
11. P.W.16 - Mr. Pande who claims to be a friend of Paramjit
had reached the spot and then Mr. Pande, the lady friend of accused
no.1 and accused no.1 had taken Paramjit along with them in the
Skoda Car of P.W.16.
12. The evidence of P.W.2 - Muktiraj Koirala and P.W.3 - Prem
Soni, Security Guards were also corroborated by P.W.7 - Navesha who
happens to be a friend of accused no.1. According to her, on 25 th
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January 2013 at about 7.00 am accused no.1 had telephonically
informed her that Paramjit had fallen ill, he was vomiting and hence,
needed to be taken to the hospital, she had requested P.W.7 to help her.
P.W.7 had obliged and reached the flat of accused no.1 immediately. In
the flat, she saw two security guards whereas accused no.1 was trying
to call the ambulance. Accused no.1 had then called a male friend i.e.
P.W.16 who had reached the spot within 30 minutes. The subsequent
events as deposed by P.W.2 and P.W.3 are corroborated by P.W.7. The
evidence of P.W.7 is corroborated by P.W. 16.
13. The autopsy on the dead body of deceased Paramjit singh
was performed on 25th January 2013 between 4.00 p.m. to 5.00 pm.
The postmortem notes are proved by P.W.11 - Vijay Jadhav. The
postmortem findings are as under :-
"4] In the said report (Exh.51) in column no.17, I have given
descriptions of external injuries found on the body of
Paramjitsingh. They are -
1) Contused abrasion present over left ala of nose of size
1cm. x 1 cm. red in colour.
2) Four contused abrasion present over left cheek each of
size 5 cm x 5 cm red in colour.
3) Nine contused abrasions present over left entero lateral
aspect of neck in an area of 6 cm x 5 cm. of size varying
from 5 cm x 5 cm to 2 cm x 5 cm red in colour.
4) Seven contused abrasions present over right enterolateral
aspect of neck in an area of 6 cm x 5 cm of size varying
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from 5 cm x 5 cm to 1 cm x 1 cm red in colour.
5) Therapeutic injection marks present over dorsums of
both writs.
Injuries no.1 to 4 are ante-mortem in nature and fresh. But
injury no.5 is postmortem in nature.
5] According to me, injuries nos.1 to 4 must have been sustained
by the deceased within 24 hours prior to postmortem
examination."
14. The doctors had opined that "the cause of death is
Asphyxia due to throttling". P.W.11 had testified before the Court as
follows:-
"The throttling, in my view, was with hands with sufficient
force. The external injuries no.1 and 2 found on the face may
occur due to struggle or by striking on hard and blunt object.
The external injuries at Sr.no.3 and 4 may occur due to
pressing of neck with sufficient force by hands."
The admissions in the cross examination are as follows :-
"If a person is tied by his hands and legs by a nylon rope
tightly, in that event, such injuries or marks of imprints of
nylon rope are bound to be there."
15. P.W.4 - Indrajitkaur, resident of Agra happens to be the
elder sister of deceased and accused no.1. According to her, on 25 th
January 2013 at about 7.00 am she was telephonically informed by
accused no.1 that there was bleeding from the ears and nose of
Paramjeetsingh and that she was taking him to Om Hospital which is
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closeby. She asked her to pass on the said information to Kamaljit who
happens to be the eldest sister amongst the four siblings. Accused no.1
had also insisted upon them to visit Pune immediately. Accordingly,
they all reached Pune on 26th January 2013 at about 6.00 pm. When
they were in transit, they were informed by accused no.1 about the
demise of Paramjit. According to PW4, when they reached Pune
accused no.1 had divulged to them that when Paramjit returned home
on 24th January 2013 she had served him "khichadi". That soon after
consuming "khichadi" he had started vomiting, his health had started
deteriorating so much that Paramjeet could not stand on his own foot.
He was taken to Om hospital in an ambulance, they returned to the flat
at 2.00 am, thereafter, Paramjit was restless. While he was watching
television she had gone to bed and when she woke up at 6.00.a.m she
saw that Paramjit was breathless, she could not get the ambulance
despite several frantic calls and therefore she called upon P.W.16 and
with the help of the watchmen and P.W.16 she could bring him to the
ground floor and she took him to the hospital in the car of P.W.16 and
at the hospital he was declared dead before admission.
16. On 27th January 2013, P.W.4 - Indrajitkaur saw the dead
body of her brother for the first time. She saw some marks on both the
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wrist, on his face and bruises on his neck. She saw a deep cut on his
right thigh and red and blue spots on his lower legs. Upon enquiry
accused no.1 had disclosed that said marks were due to insertion of
needle used for administering medicine and saline in the hospital. PW4
claims to have seen 7 to 8 marks of assault on the back of Paramjit. She
had taken photograph of the dead body on her cellphone as she was
not satisfied with the explanation offered by accused no.1. According
to her, the conduct of accused no.1 subsequent to the death of Paramjit
showed that she had no remorse nor grief.
17. Accused no.1 had accompanied PW4 to her house. PW4
had heard accused no.1 talking to some unknown person about the
sale of Flat No.1001, sale of the car of Paramjit Singh and the balance
amount in the account of Paramjeet Singh. She had made certain
future plan. That accused no.1 had made a frail attempt to delete the
images of the dead body of Paramjeet Singh from the cellphone of
P.W.4. That P.W.4 had passed on the photographs of dead body to
Hinjewadi Police station along with the I-card of deceased, diary and
medical case papers of the deceased. The same were seized by the
police on 1st March 2013 i.e. after the arrest of accused no.1 on 27 th
February 2013.
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18. That despite several calls from PSI More, accused no.1 was
not willing to visit Pune. She was staying at Datiya with her eldest
sister Kamaljit. P.W.4 had given the address of Kamaljit to P.W.1 PSI
More. Upon which P.W.1 caused her arrest from Datiya and brought her
to Pune. The supplementary statement of P.W.4 was recorded on 1 st of
March 2013. She was cross-examined as to whether the said disclosure
was made to the police in her previous statement, the same is marked
as an omission. P.W.1 - PSI More has failed to offer any plausible
explanation for the inordinate delay in lodging FIR.
19. It appears that accused nos.2,3 and 4 were arrested
consequent to disclosure made by accused no.1 in the course of
investigation.
20. Accused no.2 - Golu Mustak Khan and Accused no.3 -
Guddu alias Lalla Bashir Khan were arrested on 2 nd March 2013
whereas Accused no.4 was arrested on 5th March 2013.
21. In the personal search of accused no.1 the Debit Cards of
the deceased of IDBI and ICICI bank, Health Insurance Card were
seized. Similarly, a receipt of ATM showing withdrawal of an amount of
Rs.10,000/- on 25th January 2013 at 22:21:12 was seized along with
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three cellphones. The investigating agencies had called for the Call
Details Record of cellphone no.9405872061 from 1 st March 2012 and
the same is at Exh.83 collectively. The said CDR is proved by P.W.21 -
Ashish Kumar, the Junior Telephone Officer Working with BSNL. The
papers of investigation show that the said cellphone number was used
by Accused no.1.
22. Upon arrest of accused no.3 his cellphone was seized. His
cellphone number was 8223088237. The CDR of the said number was
also called for. It is proved by P.W.22 - Sachin Shinde, the Nodal Officer
of Idea Cellular Ltd. The said record is marked at Exh.94. According to
P.W.22 - Sachin Shinde, the said Mobile No.8223088237 was registered
in the name of Guddu Khan resident of Tarai Road, Gwalior. The date
of activation was 26th September 2012.
23. Upon perusal of CDR of both the numbers it is clear that
the accused no.1 and accused no.3 were constantly in touch with each
other ever since the date of activation. It is the specific case of the
prosecution that the cellphone no.8223088237 was activated in the
name of Guddu alias Lalla i.e. accused no.3 but the same was being
used by Golu (Accused no.2). Exh.105 shows that accused nos.2 and 3
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were in Pune since 21st January 2013. The tower location shows that
during the period 23rd January 2013 to 25th January 2013 the accused
nos.2 and 3 were at Bawdhan i.e. the residence of accused no.1 and
the deceased. The tower location of cell no.8223088237 is at Bawdhan
in the early hours of 25th January 2013. It is pertinent to note that
Exh.105 is admitted by the accused u/s 294 of the Cr.P.C at the time of
trial on 27th May 2014. It is, therefore, clear that the accused no.2 and
3 have admitted their presence at Bawdhan between 24 th and 25th of
January 2013. Needless to say that the fact admitted need not be
proved independently.
24. In the course of investigation, there is recovery of a nylon
rope and a plastic bag at the instance of Golu Mustak Khan which is at
Exh.41 and is proved through PW8 - Dashrath Shankar Chandere and
P.W.12 - Laxman Phanse. The railway tickets from Gwalior to Pune
dated 20th January 2013 and from Pune to Gwalior dated 26 th January
2013 and 1st March 2013 respectively were seized from the wallet of
accused Golu in their personal search.
25. P.W.18 - Trupti Patil is Nayab Tahasildar who conducted
Test Identification Parade on 8th May 2013 at Yerawada Central Prison,
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Pune. According to her, she has followed the rules contemplated under
Criminal Manual. P.W.6 - Marne and P.W.5 - Yogesh Gaikwad had
identified accused nos.2, 3 and 4 in the Test Identification Parade. The
said identification is not seriously challenged and P.W.18 has proved
the memorandum of Test Identification Parade which is at Exh.112.
26. PW19 - Nilesh Kharat is the owner of Maruti Eeco vehicle
which was plied by Yogesh Gaikwad on 25 th January 2013. According
to him, Yogesh Gaikwad drives the said vehicle since 5th October 2012.
27. P.W.20 - Pritesh Bhutada is employed as Supervisor with
Wings Travel Company. He has testified to the effect that Maruti Eeco
bearing Registration No.MH-12-FC-5721 is owned by PW19 and is
plied by the company. The generated copy of call detail records
maintained by the company show that on 25th January 2013 the
company had received a phone call from mobile no.9405872061 with
a request to send a taxi at 6.30 a.m to Durwankur, DSK Ranwara,
Bawdhan, Pune. The accused had admitted the said call record, hence,
it is marked at Exh. 76.
28. P.W.23 - Parshram Patil was entrusted with the investigation
of Crime No.93/2013 on 20th February 2013. According to him, he had
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deputed the police to fetch accused no.1 from Datiya (Madhya
Pradesh). On 21st February 2013 the accused no.1- Jagjitkaur was
brought to Pune. On 27th February 2013 she was arrested. On 1st March
2013 the complicity of accused nos.2 to 4 in commission of the murder
of deceased Paramjit has transpired in the course of investigation. On
5th March 2013, the accused no.4 was arrested. According to him, he
had conducted the investigation in accordance with law. The evidence
of investigating officer is not seriously challenged.
29. The accused no.1 has chosen to examine herself on oath.
According to her, Paramjit was like a father to her, he was suffering
from Migraine. She has testified that, on 24th January 2013, Paramjit
returned home at about 9.30 pm. He was suffering from vomiting. At
his request she had served "khichdi" to him, he also drank a glass of
juice but again vomited. He expressed his desire to visit Dr. Manjrekar
on the next day. While he was watching TV, he again suffered an attack
of migraine. He dashed his head on the wall. She then took him to Om
hospital. In the meanwhile, accused no.2 had called on Mobile
No.9405872061 and informed about his arrival at Pune. Her brother
had asked him to come to Om hospital. Paramjit had refused to get
admitted at Om hospital as he was taking treatment from
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Dr.Manjrekar. He was administered two injections. She had seen the
accused nos.2 to 4 near ambulance. The health of Paramjit had
improved. According to her, her cellphone no. is 9527410200 and
cellphone no.9405872061 was commonly used by her and her brother.
She had further deposed before the Court that after returning from Om
Hospital, her brother had juice along with accused nos.2 to 4. She had
retired to her room whereas accused nos.2 to 4 were talking to her
brother in the hall. At the request of her brother, she had dropped
accused nos.2 to 4 after paying Rs. 3,000 to 4,000/- which she had
withdrawn from the ATM card of her brother. When she reached home,
she saw that the door of the house was open. Her brother was lying
motionless on the cot and had not responded to her call. She,
therefore, called upon P.W.6 and P.W.17 and with their help had taken
her brother to Sahyadri Hospital where he was declared dead before
admission. It is admitted by her that she was talking to accused no.2
from 21st January 2013 to 27th January 2013. It is also admitted that
her brother had made arrangement for her marriage and had also
purchased gold ornaments for her. She had admitted that she had
knowledge about the bank account of her brother and she had access
to the Pass book and other financial transaction of her brother.
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30. That, the deceased had died because of a severe attack of
migraine. The learned counsel for the appellants submits that on the
instruction of her brother, accused no.1 had paid some amount to
accused no.2 to return to Gwalior. That, she has been falsely
implicated. It is further submitted that it is a case based on
circumstantial evidence and it is incumbent upon the prosecution to
establish the complete chain of circumstances. That the accused no.1
has examined herself as defence witness and due weightage has to be
given to her evidence on oath and needs to be considered on par with
the evidence of prosecution witnesses. It is submitted by the learned
counsel for the appellants that there is delay in lodging FIR, which
shows that a false case is concocted against the accused persons. It is
true that P.W.1 has not offered any explanation for the delay in
registration of crime, however, that by itself would not be fatal to the
prosecution.
31. The learned counsel for the appellants submits that the
relations between the accused no.1 and her deceased brother were
cordial and she had no motive to cause the death of her brother who
was taking care of her. No poison was detected. The learned counsel
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for the appellants further submits that accused no.1 has candidly
stated that her brother was like a father to her.
32. The deceased was lastly seen in the company of the
accused nos.1 to 4. That the accused nos.2 to 4 had joined the
company of the accused no.1 at Om hospital and soon thereafter,
Paramjit had met a homicidal death. That deceased was under sedation
from 1.00 a.m onwards. That, at about 6.30 a.m, the accused nos.2 to
4 had left the house of the accused no.1 and the deceased and soon
thereafter, the deceased had died. The cause of death was "asphyxia
due to throttling". The deceased was brought dead to the hospital and
the information was given to the police by Sahyadri Hospital. That,
there were bruises on the dead body of deceased Paramjit which were
noticed and noted in the inquest panchanama as well as the post-
mortem notes. There was no reason for accused no.1 to disclose to
P.W.6 that accused no.2 to accused no.4 were looking after her brother
while he was admitted in Mangeshkar Hospital. This would show that
she had a guilty mind as P.W.6 was not concerned with the same.
33. The arrival of accused nos.2 and 3 from Gwalior to Pune
is established by the seizure of railway tickets. They had arrived in
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Pune on 20th January 2013 and had departed from Pune for Gwalior
on 26th January 2013. The railway tickets were seized on 3 rd March
2013 at the time of their arrest.
34. The evidence of P.W.2 Sachin clearly establishes that the
cellphone no.8223088237 was registered in the name of accused
no.3. The call details record further establishes that the accused no.1
was constantly in contact with accused no.2. The same is admitted by
DW1 before the court.
35. The material adduced by the prosecution at the trial leaves
no room for doubt but to hold that the chain of circumstances is so
complete that there is reasonable ground to conclude that it is
inconsistent with the innocence of the accused. The accused no.1 has
examined herself on oath and has given several admissions as has been
discussed above. The admission coupled with the false explanation
offered by the accused would by itself be an additional link which
would complete the chain of circumstances. At this stage, it would be
appropriate to refer to the case of Deonandan Misra Vs. State of Bihar1.
The Apex Court, in this case, has held thus :-
1 1955 AIR 801
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"It is true that in a case of circumstantial evidence not only
should the various links in the chain of evidence be clearly
established, but the completed chain must be such as to rule
out a reasonable likelihood of the innocence of the accused.
But in a case like this where the various links as stated
above have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity to
the deceased as regards time and situation, and he offers no
explanation, which if accepted, though not proved, would
afford a reasonable basis for a conclusion on the entire case
consistent with his innocence, such absence of explanation
or false explanation would itself be an additional link which
completes the chain. We are, therefore, of the opinion that
this is a case which satisfies the standards requisite for
conviction on the basis of circumstantial evidence."
36. The horrendous death of a brother at the hands of a sister
is a stigma on the pure relationship between a brother and sister. It is
believed that one does not choose a family and a bond between
brother and sister is a Gift of God. The present case destabilises this
belief and shocks the conscience of the Court.
37. The submission of the learned counsel that the accused
no.1 had no motive to cause homicidal death of her brother and that
a false case is foisted upon her cannot be taken into consideration.
38. That absence of motive by itself is not sufficient to
exonerate an accused for the charges framed against him. Motive is an
inner urge that may force a person from doing an act or refraining
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from doing an act and an inference can be drawn on the basis of the
act which is actually committed. The Black's Law Dictionary defines
"motive" as under :-
"Motive. Something, esp. willful desire, that leads one to
act. - Also termed ulterior intent.
39. The Apex Court, while deciding the case of Nanubhai
Vastabhai Katariya vs. State of Gujarat2 has placed reliance upon and
considered the observations in the case of State of Uttar Pradesh
through Central Bureau of Investigation Vs. Dr. Sanjay Singh and Anr. 3,
which reads thus :
"18. At the highest, the prosecution can only suggest from the
circumstances what is or may be the motive for any
particular act. However, motive is not a sine quo non for
bringing the offence of murder or of any crime home to the
accused. At the same time the absence of ascertained
motive comes to nothing, if the crime is proved to have
been committed by a same person but to eke out a case by
proof of a motive alone - that too suspicion of motive
apparently tending towards any possible crime, is not only
a very unsatisfactory but also a dangerous process, because
circumstances do not always lead to particular and definite
inferences and the inferences themselves may sometimes
be erroneous."
40. As against this, the learned APP has submitted that the
transaction in which the deceased had died homicidal death would be
2. 1999 SCC Online Guj.235
3. AIR 1994 SCC 1701
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within the special knowledge of accused no.1 alone since she had
brought the deceased from Om hospital against medical advice. That, it
is admitted by accused no.1 in her deposition that she was constantly
in touch with the accused no.2 for almost three years prior to the death
of her brother deceased Paramjit and more particularly between 20 th
January to 26th January 2013. Accused nos.2 and 3 had left Pune on
26th January 2013 i.e. soon after the incident. The identity of all the
accused is established by the prosecution through P.W. Nos.2,3,5 and 6
and hence, according to the learned APP, the judgment of the trial
Court calls for no interference.
41. The conduct of accused no.1 during the prelude to the
death of her brother, her association with accused nos.2 to 4 in the
intervening night of 24th and 25th coupled with the false explanation
offered by her before the Court leads to the logical inference that the
accused no.1 had drawn a master plan to eliminate her brother for
the best reasons known to her alone, and she was aided and assisted
by accused nos.2 and accused no.3 in executing the plan. As far as
accused no.4 is concerned, the evidence against him is weak. The
witnesses have claimed to have identified him in Test Identification
Parade but the identity was not established. Moreover, there is no
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evidence that he was in contact with accused no.1 to accused no.3
prior to the incident. His association with accused nos.2 and 3 also
does not inspire confidence whereas the records show that accused
no.2 was using the phone of accused no.3 to communicate with
accused no.1. They had travelled from Gwalior to Pune and Pune to
Gwalior together during that period. The complicity of accused no.4
in executing the plan sketched by accused no.1 is doubtful. He,
therefore, deserves extension of benefit of doubt. All the
circumstances cumulatively and individually establish the guilt of
accused nos.1 to 3. Hence, we pass the following order.
ORDER
(i) The Criminal Appeal No.166 of 2015, Criminal Appeal
No.895 of 2015 and Criminal Appeal No.952 of 2015 are
dismissed;
(ii) The conviction and sentence of the appellants/accused
no.1, accused no.2 and accused no.3 passed by the
Additional Sessions Judge, Pune in Sessions Case No.479 of
2013 by judgment and order dated 9th September 2014 is
hereby confirmed;
(iii) Sentence of fine is maintained;
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(iii) Criminal Appeal No.731 of 2015 is allowed;
(iv) The appellant /accused no.4 in Criminal Appeal No.731 of
2015 is hereby acquitted of all the charges levelled against
him. Accused No.4 be released forthwith if not required in
any other case;
(v) Bail bonds of appellant - accused no.4 in Criminal Appeal
No.731 of 2015 shall stand cancelled;
(v) Appeals are disposed of in above terms;
(N.J. JAMADAR, J) (SMT. SADHANA S. JADHAV, J)
Digitally
signed by
Pallavi M.
Pallavi M. Wargaonkar
Wargaonkar Date:
2021.03.24
15:29:49
+0530
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