1 (APEAL NO.8/2004) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 8 OF 2004 Bharatkumar Bhavarlal Pandiya ) (At present in Jail) ) residing at Shivkumar Dairy ) Vebhawani Building, N. Datta Road, ) Four Bunglow, Andheri (W), ) Mumbai ) ...Appellant. V/s The State of Maharashtra ) (At the instance of P.I. Nirmal Nagar ) Police Station) ) ... Respondent. --- Ms. Ameeta Kuttikrishnan, appointed as legal aid counsel for the appellant. Mr. P. S. Hingorani, APP for the State. ---- CORAM: V. M. KANADE & M.L. TAHALIYANI, JJ. DATE : 14TH NOVEMBER, 2011 ORAL JUDGMENT (Per V.M. Kanade, J.) 1. Appellant is the original accused No.1. He is challenging the judgment and order passed by the Additional Sessions Judge Greater Bombay dated 29/09/2003 whereby the appellant was convicted for the offence 2 (APEAL NO.8/2004) punishable under section 394 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and he was also convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and he was also convicted for the offence punishable under section 452 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years. Alongwith the appellant, three other accused were also also tried by the Sessions Court. However, the Sessions Court was pleased to acquit the original accused No.4 – Narayanlal Ganeshlalj Sharma and this Court in two appeals filed by original accused Nos. 2 and 3 was pleased to acquit the said original accused No. 2 Tulsiram Hiralal Sharma and the original accused No.3 – Ramasharay @ Kalya Kamlaprasad Yadav. 2. Prosecution case, in brief, is that one Dharamchand Jain was the owner of jewellery shop. He had employed the appellant (hereinafter referred to as “accused No.1” for the sake of convenience) on the recommendation of his brother Ashok who was earlier in his employment. Prosecution case is that Dharamchand Jain used to sleep in the shop and accused No.1 also used to sleep there. This shop was situated in Shantaram Bhat Chawl, Khar (East) Mumbai and the name of the shop was Laxmi Jewellers. The said shop was looked after by Dharamchand Jain and his son-in-law. According to the prosecution, on the night of 21/03/1996, 3 (APEAL NO.8/2004) Dharamchand Jain went to the shop at night for the purpose of sleeping there as one of the security measures of protecting the jewellery in the shop. Accused No.1 – Bharatkumar who was employed about 3 to 4 months before the incident also used to sleep in that shop alongwith Dharamchand Jain. According to the prosecution, the accused No.1 went to the house of Dharamchand Jain at 10.00 P.M. on 21/03/1996 and he carried his tiffin to the shop and, after some time, returned the empty tiffin and went back to the shop. On the next day, at about 5.00 A.M., one of the relatives of Dharamchand Jain made a phone call at his residence and gave an information that one of the family members of Dharamchand Jain expired at their native place in Rajasthan. Relatives of Dharamchand Jain tried to inform him by making a telephone call. However, since nobody picked up the phone, son of the deceased went to the shop. He noticed that front door was opened and when he went inside, he noticed that his father was lying in pool of blood and their servant - accused No.1 was not found in the shop. He also noticed that all the ornaments were removed from the shop. He, therefore, filed police complaint which was recorded at Nirmal Nagar Police Station. The offence was registered vide CR No.58/1996 against accused No.1. Police drew spot panchanama in the presence of panchas. Articles were seized. They have also seized one solid iron pipe which was used in the murder of Dharamchand Jain. The Investigating Officer arrested accused Nos. 1 and 2 near Bhayandar Railway Station while they were purchasing 4 (APEAL NO.8/2004) tickets. On interrogation, accused No.1 informed them that he would show the place where ornaments were kept and, accordingly, he took them to the residence of accused No.3 who produced a suit case in which jewllery which was stolen from the jewellery shop was kept. These articles were identified by the complainant. Muddemal articles were seized and panchanama was made. Certain articles were recovered at the instance of accused Nos. 2 and 3. An amount of Rs 2000/- was recovered at the instance of accused No.1. Police also collected finger prints from the said shop. The blood-stained clothes and the blood sample of the deceased were sent to Chemical Analyser. Charge was framed by the Trial Court. Accused pleaded not guilty to the said charge. Trial Court, however, convicted accused Nos. 1 to 3 but acquitted accused No.4. 3. Since the advocate appearing on behalf of the appellant was absent, we have taken assistance of the learned advocate Ms. Ameeta Kuttikrishnan, appointed as legal aid counsel for the appellant and who has made her submissions on behalf of the appellant. We have also heard the learned APP appearing on behalf of the State. With the assistance of the learned counsel for the appellant and the learned APP for the State, we have gone through the evidence on record and the judgment and order of the Trial Court. 4. Prosecution has established that death of deceased Dharamchand Jain was homicidal and Dr. Rajaram Marathe 5 (APEAL NO.8/2004) (P.W.9) who was examined by the prosecution has stated that the cause of death was due to head injury on the skull and that it was sufficient in the ordinary course of nature to cause death. 5. Prosecution examined P.W.1 – Surendra Dharamchand Jain who has given evidence about the fact that the accused No.1 used to sleep in the shop alongwith his father. He also identified jewellery which was recovered at the instance of accused No.1. P.W. 3 – Mahendrakumar Hiran has also deposed that accused No.1 was working with Dharamchand Jain and he used to sleep in the shop alongwith Dharamchand Jain every night. P.W. 1 and 3 have identified accused No.1 as a person who was working in their shop. Presence of accused No.1 in the shop on the night of the incident also has been established. P.W. 2 - Vaijnath Pandey was a banana vendor who used to do his business in front of Laxmi Jewllers. He has stated that on the night of 21/03/1996, at about 10.00 to 10.30 P.M, he met Dharamchand Jain in his shop and, at that time, Bharat Pandya was present in the shop and, thereafter, Dharamchand Jain told him that it was time to go to bed. He has stated that when he came out of the shop, the shutter of the shop was closed and both, Dharamchand Jain and Bharat Pandya were inside the shop. P.W. 2, therefore, corroborated version of P.W.1. 6. Accused No.1 was arrested on the next day along with 6 (APEAL NO.8/2004) accused No.2 at Bhayandar Railway Station and the arrest panchanama was prepared which is at Exhibit-31. Police also recovered a note from the shop in which it was stated that one person of Dharamchand Jain was kidnapped by the murderer and if Police complaint is filed, that person would be murdered. Police have taken the specimen signature of accused No.1 and the handwriting expert has give an opinion that handwriting on the said note was of accused No.1. The gold ornaments which were recovered also have been identified and, lastly, Chemical Analyser’s report discloses that the blood which was found on the clothes of the accused tally with the blood group of the deceased. 7. Prosecution, therefore, in our view has established its case beyond the reasonable doubt against accused No.1. Trial Court has given cogent reasons and has considered each and every piece of evidence on record and has rightly come to the conclusion that the case against accused is established beyond the reasonable doubt. Appeal is, therefore, dismissed. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.) 7 (APEAL NO.8/2004)