- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 362 OF 1999 Gopalkrishna Chandraprasad Bhattaray..Appellant vs The State of Maharashtra .. Respondent Mr.Abhaykumar Apte Advocate for Appellant Mr.A.S.Gadkari A.P.P. for State CORAM : J.N.PATEL AND SMT ROSHAN DALVI, JJ DATE: 29 th June , 2006 ORAL JUDGMENT (Per Smt Roshan Dalvi, J) 1. The appellant (Accused no. 1) was charged with having committed the murder of one Rajendra ``Singh Shivnath Singh between 16.30 hours of 7/10 /1993 and 5.05 hours of 8/10 /1993 in Flat No.3- C, Oyster Apartments, Pilot Bunder Road, Colaba, Mumbai - 5 by strangulation and hitting the head with a hard substance punishable under section 302 IPC. 2. The appellant (Accused no. 1) was further charged with having committed robbery of the property - 2 - of one Chetan Joglekar during the aforesaid time and place and in the course of the said transaction and in the alternative to have committed theft of cash of Rs. 25,00,000/- during the course of the same transaction. 3. The appellant (accused no. 1) has been found guilty and convicted of the said charge and sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/- and in default to suffer further rigorous imprisonment for one year for the offence of murder and to suffer rigorous imprisonment for a period of 7 years and pay a fine of Rs.5000/- and in default to suffer further rigorous imprisonment for one year for the offence of theft of the property in possession of the master. The accused has also been convicted of the offence of robbery. The aforesaid sentences are directed to run concurrently. - 3 - 4. The accused no. 2 in the said case has been acquitted. There is no appeal therefrom. 5. The case of the prosecution is that one Janvi Investment Company had a flat in the aforesaid premises which was used as office-cum- guest house of the Company. The servants quarter was used as an office. In the aforesaid place the accused served as a cook. The deceased also served as a cook therein. They both lived in the kitchen of the flat. The Company dealt with share transactions and hence required the amounts payable in respect of their customers inter alia in cash. On 6/10 /1993 one of the officers of the company brought cash of Rs.25,00,000/- in two bags from Pune to Mumbai which was handed over to another officer who kept the cash in a drawer in a cupboard in safe custody in presence of the accused as well as the deceased who served there. The transaction having been through, one of the officers left the office. The other officer - 4 - stayed overnight in the said premises and left the next evening. The accused and the deceased continued to live in the flat after the officers had left. Hence, after office hours on 7/10 /1993 the accused and the deceased were alone in the flat. The accused left the flat in the early hours of 8/10 /1993 to hail a taxi. The watchman of the building one Dina Mangesh opened the gate of the building to let the accused go out of the compound of the building. The accused brought a taxi, went up the building and returned and went away in the same taxi. The deceased was not seen by the watchman. On the next day, when the officer arrived in the office at about 9.30 a.m. the main door of the flat was not opened in response to the bell. The milk bag was found lying on the floor outside the main door of the flat. The officer contacted one of the watchmen, one Sharma. The officer went to the rear door of the building in the servant's quarter to open it with the key he had. He could not open it since the door was locked from inside and hence rang the bell. He got no - 5 - response. He made the watchman Sharma enter the flat through the window. The officer and the other watchman, the said Dina Mangesh, went by the staircase to the main door of the flat. The watchman Sharma opened the door from inside. He was visibly frightened. He cried “ Mar dala, mar dala”. After the officer and the watchman entered in the flat, in they saw the deceased lying on the floor in a pool of blood. The police was contacted. The police arrived within 10- 15 minutes. F.I.R. was registered. Criminal investigation commenced. 6. The police recorded the statement of the officer who brought the cash from Pune as well as the officer who received the cash, the finance Manager of the company, the watchman of the building and got executed a spot- cum- inquest panchanama and a panchanama of finger prints and photographs at the scene of the crime. The police also recovered a black plastic bag containing two inland letters in the same - 6 - handwriting addressed to the accused by his sister and a pyjama containing some blood + spots from the place which was wet on a staircase of the building in the morning of 8/10 /1993. 7. The police ascertained the native place of the accused which was in Guwahati, Assam. The police recovered certain bank documents of the accused and informed the Manager of one of his banks, United Bank of India to report if a customer of the bank of the name of the accused attended the bank. 8. The accused came to be arrested in the premises of United Bank of India, Share Market Branch on 26/10 / 1993. The police have got executed the search panchanama upon arrest of the accused and a recovery panchanama upon the accused having made a statement before the panchas, on 26/10 / 1993. The police recovered inter alia cash of Rs.2,08,700/- from a safari suit case from room no. 9 of one Sainath - 7 - Pravasi Lodge at Kalyan. The police also recovered one gold ring, passport and driving licence of the accused. The police further recovered three passbooks of the accused of Central Bank of India A/c No.1132 opened on 21/4 / 1993 having balance of Rs.100/- , of United Bank of India A/c No.4371 having balance of Rs.500/- and post office savings A/c No.2837493 opened on 20/8 / 1992 having balance of Rs.2688.50, a railway ticket from Guwahati to Dadar dated 20/10 / 1993 and railway ticket from Kalyan to Jalpaiguri dated 30/10 / 1993, a bill for purchase of a bag of Rs.774/- and money purse of the company where the accused served. These recoveries were made under a panchanama Exhibit 32 dt 26/10 / 1993. 9. Upon arrest of the accused he was taken to his native place in Assam. The police interrogated the maternal uncle of the accused, the maternal uncle's grand son and then the brother- in-law of the accused. Upon statement of the brother- in-law made before the - 8 - panchas, the police recovered two suitcases of VIP and VIP Encore make from which were found his clothes, money and inter alia four blank cheques of Union Bank of India containing the signature of the deceased. These were recovered under a panchanama dated 6/11 /1993 Exhibit 30. 10. The police have thereafter obtained the post mortem report and C.A.'s report. The documents marked Exhibits 21 to 28 in evidence are admitted. 11. Upon the aforesaid charge, the prosecution examined 19 witnesses including 3 officers of the company, several panchas to prove the search and recovery panchanamas, officers of Banks and other Finance company to prove the transactions of the Accused in various financial institutions, corroborative evidence of persons present at the time of execution of panchanamas and 4 police officers. . - 9 - 12. In the statement of the accused recorded under section 313 of the Criminal Procedure Code, the Accused admitted that he was employed in the said company which had its office in Flat No.3- C, Oyster Apartments at Colaba,Mumbai as a cook. He is stated to been sent on forced leave by his employer. He was on leave on 6/10 /1993 when the cash transaction transpired. He had no occasion to go on the spot after the incident and hence he claimed no personal knowledge of it. In his statement he admitted as correct the fact that his employer dealt in business of shares and that the flat was used as a office cum guest house and consisted of two bed rooms a hall, kitchen and servant's room. 13. Amongst the prosecution witnesses are the three officers of the company. PW 1 is a caretaker cum officer who received shares on behalf of his employer as part of his business. He has deposed that the flat has two main doors; one for main door and other for - 10 - servants. The keys of the main door of the flat remained with the accused and the other cook, the (deceased). The keys of the door of the servants room which was used as the office, remained with him. 14. He has narrated the transaction that transpired on 6/10 /1993. One Anant Revle had brought cash of Rs.25,00,000 /- in a suit case and a bag having 25 packets containing Rs.1,00,000/- each. He opened examined and counted the same and kept in the bottom drawer of one wooden cupboard in the first bedroom of the flat. He locked the cupboard and kept the keys. He has deposed that both cook and the deceased were present at that time in that room. He stayed in the said flat overnight. On the next day 7/10 /1993 he went to his own residence at Thane. On 8/10 /1993 when he returned to the office premises in the said flat. A milk bag was lying outside the main door of the flat. He knocked on the door and there was no response. He rang the bell and found no response - 11 - and then went to the servant's room and tried to open it with the keys he had. He went to the ground floor and contacted the watchman Dina Mangesh. He was told that the accused had come to the flat by a taxi at 4.30 a.m. and left the place by the same taxi. He was told that the watchman had no knowledge about the other cook Rajendra. Another watchman one Sharma was also contacted. They contacted the flat on telephone and received no response and thereafter the watchman Sharma obtained a ladder and went into the flat by the window of the bathroom. He with Dina went to the flat by the staircase through the main door Sharma opened the main door from inside and was scared. He shouted “ mar diya mar diya “. The officer and the watchman Dina saw the dead body of another cook Raju. They also saw blood inside the flat and the accused was found missing. They contacted the police. Their statements were recorded. F.I.R. was lodged and a black plastic bag containing one pyjama and two inland letters were recovered. - 12 - 15. The witness has deposed that by a letter he was called to the police station on 18/11 / 1993 where he identified the three suitcases and five cheques and one D.D. of the company. 16. Almost without any material cross- examination with regard to the incident narrated by him, a case was put to him that the accused was not in the employment of the company and was falsely implicated. The other case was that the accused was not present when he counted the money and kept it in the cupboard. It is seen from the statement of the accused that the first case was incorrect. The fact that the accused was missing is admitted. 17. His evidence has been largely corroborated by the evidence of watchman Dina examined as PW 2. The watchman also deposed that the accused worked as a cook, a fact which is admitted by the accused in his statement under section 313 of the Criminal Procedure - 13 - Code. His evidence shows that at 4.30 A.M. on 8/10 /1993 the accused came to the main gate of the building and wanted to go out for bringing a taxi. The accused returned with a taxi after 10 minutes. After another 5 minutes he saw the accused leaving the building by the same taxi. 18. This material aspect has been deposed similarly by both the witnesses. This aspect shows presence of the accused in the company flat on the night between 7/10 /1993 and 8/10 /1993. It further shows that the accused left in the wee hours of the morning of 8/10 /1993 with the material which was not observed by the watchman. Had the accused left empty handed there would have been no need to go out of the building to hail a taxi to return to the compound of the building and to go away in the same taxi. However, since the accused was known to the watchman and served in one of the flats of the building as a cook he aroused no suspicion. Consequently, - 14 - after opening the main gate of the building the watchman did not even intently notice the acts of the accused. It is contended on behalf of the accused that the watchman has not deposed that the accused left with any bags or any other material to show that the accused had stolen the cash and made away with it. In fact, the evidence of PW 2 watchman is most natural and without any embellishment. It is dark at 5 A.M. in early October. The watchman had no occasion to examine the acts of the accused. In fact in the cross -examination of the watchman, he has deposed that whenever an employer wanted to engage a taxi, the servants used to bring taxi for them. The act is therefore seen to be shown as act creating no suspicion. Consequently, upon further cross examination the watchman has deposed that there was no occasion for him to ask cross questions to the accused when he told he was leaving the apartment to get a taxi. His evidence that it was the usual practice of the servants is therefore, most natural and deserves - 15 - complete acceptance. He has refuted the fact that he falsely deposed that the accused brought a taxi and left the building at 5 A.M. 19. Similarly the evidence of two witnesses about opening of the main door of the flat stands to reason. In all such flats the main door always has a latch. This flat was used as a office cum guest house. On many occasions, the officers would not be present in the flat during night hours. Two clerks alone lived in the flat. It is impossible to have such a flat without a night latch on the main door. The keys on the door of the servant's quarters remained with the PW 1. The keys of the main door remained with the cooks including the accused. Consequently, they were expected to open the door when the officers came to the office next morning. Hence, PW 1 has correctly deposed that he could not enter the flat when he was having no response upon he ringing the bell. The door was locked. The spot panchanama does not show any - 16 - stopper or aldrop on the inside of the door,. Hence, the main door had only a latch. Once the accused left the flat as deposed to by PW 2, the watchman, in early hours of 8 th October, 1993, the door was latched and could not be opened except from inside. The servant's door had a stopper from inside. Hence, evidence of PW 1 is that room was closed from inside and hence could not be opened. That evidence is corroborated by PW 2 who narrated what transpired when they tried to get entry in the company's flat when officers came in next day. 20. The evidence of these two witnesses gives a graphic picture of what transpired between 5 a.m. To 9.30 a.m. on 8/10 /1993 when the dead body of the deceased was found in the flat. 21. The deposition of PW 1 with regard to the transaction of receipt of Rs.25,00,000/- from the other officer Anant Revele has been corroborated by the said - 17 - officer in its entirety. These two evidences show the bringing of the cash in suit cases and a bag containing the amount, keeping it in the drawer of the cupboard and locking the same in presence of both the clerks in that room. The fact that the company admittedly deals in shares shows that such cash can be received in the normal course of its business. The evidence of PW 3 shows that cash of a larger amount was brought for the first time though cash of about two to three lakhs was similarly brought by some officers on earlier occasions. 22. The peculiar nature of the employment of the accused and the deceased as cooks residing in the said flat which was office cum guest house of the company, itself shows the kind of confidence and trust the employers reposed in them. Hence, the fact that they were present at the time of the transaction of the bringing of the amount by PW 3 and counting the notes and putting it in the cupboard by PW 1 also - 18 - appears to be in the normal course. For the one day thereafter when PW 1 chose to stay overnight in the said flat, nothing transpired. Next day, he left the flat to go to Thane where he resided. It was then that the incident happened. 23. PW 13 the Finance Manager of the company, has deposed that PW 1 looked after the guest house and office in the said company, the company's main office being in Pune. He has deposed that he had personally counted the money Rs.25,00,000 /- and kept it in 25 bundles of Rs.1,00,000 /- each. On the top of the note of each bundle, he had put his signature showing that the said bundle was counted by him in the ordinary course of business. Such an act also shows the usual course of conduct of persons dealing with transactions of shares. 24. He has deposed that on 18/11 / 1993 he was called by the police where he had identified 3 suit - 19 - cases with cash amount containing the currency notes recovered by the police. Some notes did bear his signatures. Without any material cross- examination of this witness also only case that was put to him on behalf of the accused was that he had not signed the currency notes and that the accused was not present in the office at the time of the incident. The case that the accused was forced to go on leave on 6/10 /1993 is not put to any officer. 25. Such is the oral evidence led by the prosecution for the incident that led to the offence with which the accused is charged. There is no eye witness to the offence since the accused and the deceased were only persons in the flat during that night. The evidence relating to the recovery of various documents is the complete pointer to the case of the prosecution, that it was the accused alone who could have committed the offences with with he is charged. - 20 - 26. The spot -cum- inquest panchanama, Exhibit 21 dated 8/10 /1993 which is an admitted document, shows various external injuries on the body of the deceased including the swollen eyes, the injuries on the forehead, swelling on the hand, and other parts of the body and he lying in a pool of blood. It further shows the bottom drawer of the wooden cupboard having a safety lock inside and a key-hole had a part of the plywood chipped showing that it was tampered with by someone. 27. The recovery panchanama Exhibit 34 also dated 8/10 /1993 shows recovery of a black plastic bag containing two inland letters and one pyjama proved by the panch PW 4. The letters are in Hindi language. The letters, contain the same handwriting. The letters addressed to the accused, show that they were sent by his sister. The pyjama containing the bloodstains has been sent to the C.A. The C.A. Report shows that the said pyjama at Exhibit 9 contained moderate number - 21 - of blood stains spread mostly in the front portion, as against the other articles Exhibit 1 to 8 which were of the deceased which are shown to have contained considerable number of blood stains at various places. The accused was found missing for number of days after the incident. The fact that he was missing is not denied. The accused has explained that he was on forced leave on the date of the incident. He admittedly never reported to office thereafter. 28. The evidence further shows that since the accused hailed from Assam, a police officer was despatched to his native place near Guwahati, Assam to apprehend him. He was however informed that the accused was found and arrested in Mumbai. The accused came to be arrested while attending his bank premises for depositing a large sum of money in his bank account in the premises of United Bank of India Share Bazar branch, Fort, Mumbai. Upon arrest of the accused a seizure panchanama Exhibit 37 was made. - 22 - 29. Under that panchanama currency notes of Rs.45541/- were recovered. Counterfoil of Dena Bank, Slip Book having Rs.60,000 /- deposited that day in A/c No.018394 @ 10 blank slips, counterfoil of United Bank of India Slip book showing Rs.20,000/- deposited that day in A/c NO.4371 @ 22 blank slips, Post Office Pass Book of A/c No.2837493 showing it having been opened on 26/9 / 1993 with a cash deposit of Rs.100/- and a Kalyan- CST Return Railway ticket of that day were also recovered. The recovery unmistakenly shows the various investments the Accused made on that day in his various accounts after travelling from Kalyan where he then lived, to South Bombay where he had his bank A/cs. 30. Upon his arrest, at the instance, of the Accused, several incriminating documents have been recovered and produced by the prosecution through the evidence of the panch PW 5 and corroborated by the evidence of PW 9. The accused led the police to - 23 - one Sainath Pravasi Lodge at Kalyan where he had reserved a room from PW 9 the owner of the lodge after the date of the incident. PW 9 deposed about how the room booked by the Accused whom he identified as Arun Kumar Deb from room no. 9 of the said lodge, inter alia a safari suitcase containing Rs.2,08,700/- a gold ring, 3 bank account documents of the accused, his passport, driving licence and two railway tickets and bill for purchase of a bag were recovered. 31. The bank pass book of United Bank of India shows A/c No.4371 of the Accused containing a paltry balance of Rs.500/- prior to the date of the incident. On the date of the arrest of the accused, Rs.20,000/- was sought to be deposited by the accused in that bank account, as can be evidenced from the counter- foil of the pay in slips recovered from the accused. 32. The other passbook is of Central Bank of India A/c No.1132 opened on 29/4 / 1993 containing a - 24 - meagre balance of Rs.100/- and a Post Office Savings Bank a/c No. 2834793 opened on 20/8 / 1992 containing a balance of Rs.2688.50. 33. The Purchase of a bag for Rs.774/- is a further incriminating document showing the mens