Manoj Jaynarayan Yadav vs The State Of Maharashtra
2023 Latest Caselaw 9919 Bom

2023:BHC-AS:28230-DB
            NSK                                                                203-apeal-844-2016.doc



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO.844 OF 2016


            Manoj Jaynarayan Yadav
            516, Contractor Building, 1st Floor,
            Near Post Officer, New Mill Road, Kurla (W)
            Mumbai-400 070
            (At present lodged in Nashik Central Prison)                       ...Appellant

                      V/s.

            The State of Maharashtra                                           ... Respondent
            (Through Kurla Police Station)


            Mr.Sujit M. Satam, Appointed Advocate, for the Appellant.
            Mrs.G.P. Mulekar, APP for Respondent-State.


                                                 CORAM : A.S. GADKARI AND
                                                         SHIVKUMAR DIGE, JJ.

RESERVED ON : 27th JULY 2023

PRONOUNCED ON : 26th SEPTEMBER 2023

JUDGMENT : (Per Shri.Shivkumar Dige)

. Appellant-Original Accused has impugned Judgment and Order

passed by the Additional Sessions Judge, City Civil and Session Court,

Mumbai, whereby Appellant is convicted for the offence punishable under

Section 302 of Indian Penal Code ('IPC' for short) and is sentenced to suffer

life imprisonment and to pay fine of Rs.5,000/- in default, to suffer simple

imprisonment, (S.I.) for one month. The Appellant is convicted for the

offence punishable under Section 201 of the IPC and directed to suffer

NSK 203-apeal-844-2016.doc

imprisonment for one year and to pay fine of Rs.1,000/- and in default, to

suffer SI for 15 days. Appellant is also convicted for the offence punishable

under Section 182 of IPC and directed to suffer imprisonment for one

month and to pay fine of Rs.100/- and in default, to suffer SI for 7 days.

All the sentences are directed to run concurrently.

2. Brief facts of the case are as under:-

On 23rd April 2007, Appellant, Manoj Yadav lodged complaint

with Kurla Police Station, stating that, he himself and Kisanlal (Deceased)

were servants in house of Khayanchand Jain. He was working there from

25th June 2006. Whereas deceased Kisanlal, had joined since last fifteen

days.

2.1 On that day, at about 3.00 p.m. no one was present in house

except Appellant and Kishanlal, at that time two unknown person's barged

in the said flat, for theft, they assaulted Kishanlal with knife, he died on the

spot, they tried to assault Appellant and ran away.

3. Upon receiving report, police registered crime against two

unknown persons. During the investigation it was revealed that, Appellant

had filed false FIR and in fact, he himself had committed murder of

Kisanlal. Police arrested the Appellant, as per his Disclosure Statement

seized knife used in the crime.

4. After completion of investigation charge-sheet was filed against

the Appellant. The case was committed to the Additional Sessions Judge,

City Civil Court, Mumbai. Charges were framed against the Appellant

NSK 203-apeal-844-2016.doc

under above referred sections. He pleaded not guilty and claimed to be

tried. To prove its case prosecution has examined seventeen witnesses.

Statement of Appellant under Section 313 of Cr.P.C. was recorded. His

defence was of total denial.

Considering evidence on record and submissions of both

learned Advocates, the trial Court has convicted Appellant as referred

above.

5. We have heard Mr.Sunjit M. Satam, Appointed Advocate,

learned counsel for the Appellant and Mrs.G.P. Mulekar, APP for the

Respondent-State.

6. It is prosecution's case that, the Appellant had murdered

deceased, as deceased had threatened the Appellant that, he would tell his

secrets to landlady, due to it Appellant got angry and killed deceased.

7. The prosecution case is based on circumstantial evidence. It

has come on record that, when incident had happened, at that time only

Appellant and deceased were present in the said flat.

8. P.W.-1 Mahesh Niwatkar, PSI, Kurla Police Station, has stated

that, on 23rd April 2007 he received message from control room that, one

person resident of Flat No.516, first floor, Contractor Building, New Mill

Road, Kurla, Bombay was being assaulted by some persons, therefore he

went to the spot of incident. In the bed room he found one person was

lying in the pool of blood, and was dead. He called private photographer

and took photographs of it. At that time, Appellant was present there and

NSK 203-apeal-844-2016.doc

Appellant told him that, two unknown persons having turben and beard,

assaulted the deceased with knife and one of them also tried to assault him

and followed him in hall kitchen. On the statement of the Appellant this

witness registered FIR against two unknown person which is at Exhibit-9.

This witness examined the flat and seized articles, lying there.

9. P.W.-2, Mrs.Aruna Jain has stated that, she was residing on the

second floor and her in-laws were residing on first floor. It was duplex flat.

There are internal stairs from flat of her in-laws to her flat. As Appellant

wanted to go his native place her in-laws had engaged new servant i.e.

deceased. On 23rd April 2006 at about 3.00 p.m. she heard noise of

knocking, hence she came out from the bedroom and saw that, the

Appellant holding frying pan in his hand was rapidly coming to her room by

stairs. She was frightened. Hence, she closed the door, then Appellant

shouted "maar-dala maar-dala". Then she piped through window. She

opened the door and took the Appellant in her room. At that time, he was

frightened. She noticed blood stains on the frying pan. This witness called

her husband on mobile and told about the incident. Thereafter her husband

and some persons came to incident spot.

In cross-examination this witness stated that, she opened the

door as Appellant was continuously knocking the door. She saw from

window and ascertained that nobody was with the Appellant, hence she

opened the door. The said act was completed within one minute. From the

evidence of this witness it reveals that, incident had happened on first floor

NSK 203-apeal-844-2016.doc

and Appellant had come to second floor flat, holding frying pan in his hand

and his clothes were having blood stains.

10. P.W.-3-Dharamchand Jain, has stated that, on 23 rd April 2007 at

about 3.45 p.m. he received information about incident from his nephew.

He immediately went to his house. His father's flat was situated on first

floor, hence he went on the first floor, but door of the flat was closed from

inside. He knocked the door and gave call. But there was no response.

Then by the back side stairs he went to second floor where his nephew Lalit

stays. At that time, one Chappalwala and his driver Nandlal were with him.

While going to second floor on the way the Appellant met them. The

Appellant told them two unknown persons killed the deceased. The face of

Appellant was stained with blood, and he had bleeding injury on the finger

of his hand. Then they went to house of P.W.-2 from back stairs, they

noticed blood stains on the stairs and on the floor. In the hall nobody was

found. They checked all rooms of flat. In one room they found dead body

of deceased. There was cut injury on his neck and the body was in the pool

of blood. There were foot prints of blood in the hall and in the room of

Prakash and from it was appearing that, one person had effected entry in

the said room. From the staircase of first floor to ground floor there were

no footprints and blood stains. In cross-examination he denied the

suggestion that, from the ground floor stairs one can proceed to second

floor.

NSK 203-apeal-844-2016.doc

11. From the evidence of this witness it reveals that, immediately

after the incident he reached the incident spot and he found that main door

of the flat where incident happened was closed from inside. The Appellant

had informed the police that, two assailants barged in the flat and killed the

deceased by knife and there was pool of blood when one assailant pulled

Appellant in room, where deceased was murdered, Appellant had slipped

due to pool of blood and his clothes were soaked in said blood. Thereafter

one assailant chased him in hall and kitchen and tried to assault him. It is

significant to note that, this witness has specifically stated that, there were

footprints of only one person found in hall and other rooms. Had there

been two assailants the footprints of other persons must have been

appeared in the hall and other rooms or the assailant who followed the

Appellant in hall, kitchen and other room. It has also come on record that,

footprints and blood stains were not appearing on the stairs of first floor

going towards ground floor. It shows that no one had gone from the

staircase. The main door was locked from inside. The evidence of this

witness is corroborated by PW-5 Chappalwala, Vinayak Suryavanshi and

PW-6 Nandlal Pal, driver of Khamanchand Jain. P.W.4 Lalit Jain and P.W.-7

Chandraprakash Jain, have stated the same facts. P.W.-8 Devilal Gujar home

servant of P.W.4, was residing in his flat, has stated that about 5 to 6 days

prior to the incident the Appellant had informed this witness that, deceased

was not discharging his duties properly hence he told this witness to advice

deceased in Marwadi language, but this witness did not advice deceased.

NSK 203-apeal-844-2016.doc

In cross-examination this witness denied the suggestion that there was

dispute between him and Appellant. From the evidence of this witness it

reveals that, Appellant was not happy with deceased.

12. It has come in the evidence of PW-10 Firoz Ismail Maniar that,

Appellant made disclosure statement in his presence and as per his

disclosure statement he produced one knife used in crime, hidden by him in

tin sheet cabin of AC machine attached to bed room. The panchnamma is at

Exhibit-26 and 27.

13. It is significant to note that, CA reports at Exhibit-41 to 44,

shows blood stains found on the knife, which was recovered at the instance

of Appellant was of AB group, which was the blood group of deceased.

14. PW-17 Dilip Shivram Yadav, Investigating Officer has stated

that, after lodging report by the Appellant, FIR was lodged against two

unknown persons but in investigation it revealed that, the murder of

deceased was committed by the Appellant.

15. PW-12 Dr. Sunil Mohanrao Jawale, who conducted postmortem

of the deceased has stated that, he found following injuries on the dead

body of the deceased.

(i) An incised wound above thyroid cartilage 15 X 4 X 4 (cavity deep) Margins clean cut with minimal contusion at edges, reddish adematous cut on strenocleidemastold both sides, carotids, jugular and other neck structures with anterior pharyngeal wall and posterior pharyngeal wall.

 NSK                                                                        203-apeal-844-2016.doc



                     (ii)             An incised wound just below injury No.1 separated
                     by a thin layer 2 mm.             Finding same as above.              Both
                     horizontal.
                     (iii)            A stabbed wound at apigastiran, oblique one end

acute, bevelling, direction upward margins clean cut, reddish oedematom, on cut section surround tissue congested and injury communicate at liver medial border external injury. 1 and 1½ x 1 x cavity deep narrowed at liver. Liver shows purporting injury oblique.

                     (iv)             Incised wound left thumb medial 11/2 x ¼ x ¼
                     reddish regular edimaters.
15.1              Defense has not disputed about homicidal death of deceased, it

proves that, the death of deceased was homicidal.

16. It is contention of learned counsel for the Appellant that, there

was no eye witness the incident, except Appellant. The story told by the

Appellant that, at the time of assaulting Appellant the unknown assailant

had broken the TV and glasses of window was noticed by the prosecution

witnesses, when they visited the flat. It proves that, the story told by the

Appellant was true, but it is not considered by the Trial Court.

17. The learned counsel for Appellant has relied on the decision of

Apex Court in the case of Nandu Singh V/s. State of Madhya Pradesh1.

18. In our view, it appears from the evidence on record that, it was

a scene created by the Appellant to save himself from the crime of murder

of deceased. It has come in the evidence of witnesses that, main door of

the said flat was locked from inside. There was no other entry to the said 1 Criminal Appeal No.285 of 2022 (Arising out of Special Leave Petition (Crl.) No.7998 of 2021 decided on 25.02.2022

NSK 203-apeal-844-2016.doc

flat. The question remains when there was only one entry to go to the flat

where incident had happened, how the two assailants entered in the said

flat. It has come on record that, he was present with the deceased in the

said flat. No explanation was given by the Appellant in this regard.

Appellant is bound to explain the said fact as contemplated under Section

of 106 of Evidence Act. Appellant had informed that, when he was

watching assault on deceased, by two unknown assailant's, at that time one

assailant pulled him in bedroom, due to pool of blood he slipped and his

clothes were soaked in blood. As there was pool of blood in that room, the

clothes and feet of assailants must have been soaked by blood of deceased.

The Appellant had stated that one assailant followed him in other rooms to

assault him. It appears from record that, blood footprints of only one person

were appearing in the flat where the incident was happened. Had there

been other two persons their footprints must have been appeared in the

said flat or the bed room in which incident happened. No footprints were

found on stairs going towards ground floor from first floor. The flat where

the incident happened is situated in crowded place and many shops and

adjacent buildings are there. No one noticed two assailants coming in the

building nor going outside. When the witnesses heard the shouts of the

Appellant they immediately rushed towards the building. It means the

witnesses were present near the building when incident happened, but no

one noticed two assailants. It proves that, Appellant is the only person who

had killed the deceased.

NSK 203-apeal-844-2016.doc

19. It is the contention of the learned counsel for the Appellant

that, the two assailants had tried to assault him, due to which injury was

caused to the finger of his hand. It has come on record that, Appellant had

sustained injury to his finger and was referred for medical examination to

Nagpada Police Hospital. The medical report of injuries caused to

Appellant is at Exhibit-45. It shows there were abrasions on chin of

Appellant extending from lower lip and abrasion just above neck and right

calavice. In this report it is mentioned that blood oozing from the wound

and all the above injuries were fresh injuries caused within 12 hours. The

injury Nos.2 and 3 mentioned in the report are caused by human nails. It is

not the case of the Appellant that, the said assailant had come in contact

with him. The said nail injuries over his face must have been caused to him

by the deceased, while attempting to flee from the clutches of the

Appellant. The incise wound on his left index finger, was simply, skin deep.

It is not grievous injury, it shows it is self inflicted injury.

20. It is the contention of the learned counsel for the Appellant

that, the injuries caused to the deceased shows that it was caused by more

than one person. The Postmortem report shows that, four injuries were

caused to the deceased, his throat was cut by sharp weapon. The injuries

were horizontal and there was one stab injury to his liver and incise wound

to his left thump. It appears that, when deceased was sleeping, Appellant

had cut his throat with knife and gave stab injury. While escaping from the

clutches of Appellant, deceased had caused abrasions on his face by his

NSK 203-apeal-844-2016.doc

nails. Moreover, it has not come on record presence of other two assailants

in said flat. We do not see merit in contention that assault was made by

two unknown persons.

21. It is the contention of learned counsel for the Appellant that,

prosecution has not proved case against the Appellant beyond reasonable

doubt but trial Court has not considered this fact. As observed above, main

door of the flat where incident happened was closed from inside. There was

no other entry to enter in the said flat. There were no blood footprints of

other person's except one person. Abrasion's of human finger nails were

found on the face of the Appellant. The said injuries were fresh injuries.

The blood stains found on knife which was recovered at the instance of

Appellant matches with blood group of deceased. It proves that Appellant

murdered the deceased, as he was unhappy with him for the reason noted

earlier.

22. We have gone through the case laws cited by learned counsel

for the Appellant. The facts of cited cases and case in hand are totally

different and hence not applicable to present case.

23. In view of above, we pass following order.

ORDER

Appeal is dismissed.

       (SHIVKUMAR DIGE, J.)                                       (A.S. GADKARI, J.)