1 apeal26.04 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.26 OF 2004 Roshan Ali Noor Mohd. Shaikh ) an adult, Indian inhabitant, ) (Presently lodged in Kolhapur ) Central Prison at Kolhapur). ) .... Appellant. Vs. The State of Maharashtra ) (at the instance of Colaba Police ) Station, Mumbai vide their ) C.R.No. of 2000). ) .... Respondent. Mr.Murtaza M. Najmi i/b. Mr. M.S.Dehlvi, advocate for appellant. Mr. J.P.Yagnik, APP for State. CORAM:- P.V.HARDAS AND M.N.GILANI, JJ DATED:- APRIL 5, 2011 JUDGMENT M.N.GILANI,J: 1 This appeal arises out of the judgment and order of conviction and sentence passed by the Additional Session Judge, Greater Mumbai in Sessions Case No.184/2001, whereby the accused-appellant was convicted for the offences punishable under section 302, 451 r/w 34 and 392 of I.P.C. For the offence punishable under section 302 r/w 34 of I.P.C., he has been sentenced to suffer imprisonment for life and to pay fine of Rs.2000/- i.d. to suffer S.I. for 3 months; for the offence 2 apeal26.04 punishable under section 392 of I.P.C., he was sentenced to suffer R.I. for 7 years and to pay fine of Rs.1000/- i.d. to suffer S.I. for 1 month; for offence punishable under section 451 r/w 34 of I.P.C., he was sentenced to suffer R.I. for one year and to pay fine of Rs.500/- i.d. to suffer S.I. for 15 days. 2 Shorn of unnecessary details, facts giving rise to the present appeal are thus: One Mr. Raitan Satta-deceased aged about 48 years was occupying Flat No.F-23 in Khushrubaug Township, Colaba, Mumbai. PW-2 Villu Irani is the next neighbour of the deceased. She occupies the flat No.F-24. On 1/11/2000 at about 9 a.m. she knocked the door of the Flat No.F-23- but there was no response. Therefore, she suspected foul play and in turn informed one Dolly Irani and Jimmy Shroff. PW-1 Behram Khajotia, who is the Chairman of the Security Organisation, Khushrubaug Township on getting information visited the flat No.F-23 alongwith watchman and security supervisor. They found the door of the flat No.F-23 closed from inside but the door of the balcony was found open. PW-4 Mahesh Mishra, security guard made entry in the flat No.F-23 through the window and then opened the main door. On entering the flat, it was noticed that in the kitchen the dead body of Raitan Satta was lying in a pool of blood. Cupboards were found open. The articles were found lying scattered. Some wooden pieces, nails and wooden dust were found on the floor of the house. PW1 Behram sent message to Colaba Police Station. PW-20 P.I. Babar alongwith police party reached the spot at about 1.40 p.m. First Information Report was lodged by PW-1 Behram and on that basis offence bearing C.R.No. 3 apeal26.04 308/2000 was registered. Dog squad, finger print experts, photographers were summoned. Spot panchanama was drawn. Finger print expert PW-13 Mamta Paralkar reached the spot. One Mr. Palve was the photographer. PW-13 examined articles for possible finger prints. She could identify four articles like glass bottle, photo frame, hammer etc. Finger prints were developed and Mr. Palve, photographer took photographs of the developed finger prints. The spot panchanama was drawn in presence of panchas. Articles like hammer, wooden dust, wooden particles, nails were attached from the scene of offence. In all 31 articles were attached. Inquest was held over the dead body and it was dispatched for post mortem examination. 3 PW-14 Dr. Patil received the dead body on 1/11/2000 in the evening. On 2/11/2000 at about 10 a.m., he started conducting an autopsy over the dead body. Following injuries were noticed on the dead body. 1) incised wound on lateral part of Rt. eyebrow of size 5 cm. x 1 cm. x bone deep, directed obliquely with medial end upwards, c/o red coloured margins and base, c/o black(Rt.) eye. 2) Contused lacerated wound on (Rt.) temporal area of size 2 cm. x 1 cm. x bone deep, 8 cm. above (Rt.) ear and 15 cm. behind (Rt.) eyebrow. 3) Incised wound on (Lt.) temporal area of size 5 cm. x 1 cm. x bone deep situated 7 cm. above (Lt.) ear and 8 cm. behind (Lt.) eyebrow. 4) Contused lacerated wound on (Lt.) occipital area size 4 cm. x 1 cm. x bone deep, situated 8 cm. behind (Lt.) ear. 5) Incised wound on neck Lt. Side, posteriorly of size 5 cm. x 1 cm. x muscle deep, situated 8 cm. posterior to (Lt.) ear. 6) Stab wound on (Lt.) side of neck, 3 cm. below the (Lt.) angle of mandible, 5 cm. from adam’s apple, of size 2 cm. 4 apeal26.04 diameter and 8 cm. depth with track from Lt. to Rt. horizontally. 7) Stab wound on (Lt.) side of neck, situated 5 cm. below and posteriorly to injury no.6 of size 1 cm. diameter, circular in shape of depth 5 cm. track horizontal and towards (Rt.). 8) Stab wound on (lt.) side of neck, situated 4 cm. below and posterior to injury no.7 of size 15 cm. diameter, circular depth of 7 cm. with track directed towards (Rt.) horizontally. 9) Stab wound on Lt. side of neck of size 2 cm. diameter, circular in shape of depth 8 cm., track directed horizontally and towards (Rt.) situated 2 cm. posterior to injury no.8. 10)Circular abrasion on (Lt.) hypochondriac region of diameter 5 cm., reddish in colour. According to him, cause of death was Traumatic fracture of skull with intracranial haemorrhage with stab injuries of neck. 4 Statements of the witnesses were recorded. During interrogation of PW-5 Keshpratap Singh, it was revealed that on the earlier day of the incident i.e. on 31.10.2000 two carpenters had visited the colony. On the basis of the information received, the Police party headed by PW-19 API Patil was dispatched to village Belnenkia, which is in Tahsil Tulsipur, Utter Pradesh. On 3/11/2000 PW-19 API Patil reached to the house of father in law of the accused. Suspecting his role in the crime, he was arrested on the same day. Before panchas he was interrogated. He made disclosure statement, which resulted in recovery of 18 articles, which according to the prosecution were stolen from the house of the deceased. PW 19 API Patil reported back to Colaba Police Station on 6/11/2000 and accordingly necessary note of the investigation carried out by him was taken in the station diary. 5 apeal26.04 5 On 8/11/2000, accused was interrogated by PW-20 P.I. Babar. The accused led to the police party and panchas to the cigarette and confectionery stall of PW-11 Akhil Shaikh, which is in Nal-Bazar, Mumbai. From the wooden box lying beneath the stall, the accused took out plastic bag containing hammer and file. They were found stained with blood. They were attached and sealed on the spot. On 10/11/2000, the accused made disclosure statement, which resulted in recovery of blood stained clothes, which were kept in hut no.37 owned by PW-6 Fatima. It is the prosecution case that accused was a tenant in the hut of PW-6 Fatima. On 23/11/2000 muddemal articles were dispatched to chemical analyst. On 30/1/2001 identification parade was held. It is the prosecution case that PW 5 Keshpratap Singh and one other witness identified the accused no.1 as a person who had visited Khushrubaug colony on 31/10/2000. Finger prints which were developed from the photo frame found on the spot matched with the specimen finger prints of the accused. On 31/1/2001 the charge sheet was filed before the Metropolitan Magistrate, Mumbai alleging that the accused alongwith one S.K.Mishra-absconding accused in furtherance of their common intention committed murder of Raitan Satta on 31/10/2000 in the noon and decamped with the stolen booty. Till filing of the chargesheet and even thereafter, the accused No.2 could not be apprehended. The learned Metropolitan Magistrate committed the case to the Court of Session, Greater Mumbai. The additional Sessions Judge, Mumbai framed and explained the charge of the offences to the accused under sections 449 r/w 34, 450 r/w. 34, 451 r/w. 34, 452 r/w. 34, 394 r/w. 34, 392 r/w. 397 and under section 302 r/w. 34 of Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. His defence was 6 apeal26.04 that of denial. 6 The prosecution examined 20 witnesses to substantiate the prosecution case. The learned Additional Sessions Judge after analysing the evidence held that the circumstances relied upon by the prosecution have been proved beyond reasonable doubt. The learned Additional Sessions Judge further held that the circumstances proved by the prosecution unerringly point towards the guilt of the accused and therefore, he proceed to convict him as indicated above. 7 Learned counsel Mr. Najmi, appearing for the appellant-accused impugns the judgment and order of conviction and sentence on the following grounds: That the learned Additional Sessions Judge has not appreciated evidence in its right perspective. Various circumstances relied upon by the prosecution have not been proved beyond reasonable doubt. The learned Additional Sessions Judge ought not to have relied upon them to record finding of conviction against accused. The evidence as to the discovery of stolen articles, blood stained clothes and carpentry tools alleged to have been used as weapon of offence has been wrongly relied by the learned Additional Sessions Judge. The admission given by the witnesses that at the relevant time, the accused was handcuffed has been ignored by the learned Additional Sessions Judge. Non-examination of the photographer and non-obtaining specimen finger prints of the accused before the Magistrate ought to have been held as fatal to the prosecution case. Evidence to the identification of the accused being infirm and untrustworthy, should not have been relied upon by the 7 apeal26.04 learned trial Court. The circumstance that time of death of the deceased did not match with the time when the accused allegedly was present in the flat No.F-23, was not taken into consideration. In a nut-shell, his contention is that by placing reliance upon incredible and infirm testimony of the witnesses, the learned Additional Sessions Judge has wrongly held that various circumstances have been proved by the prosecution. The well settled principle, of convicting the accused by relying upon the circumstantial evidence, has been ignored by the learned Additional Sessions Judge, learned Counsel for the appellant- accused, urged. 8 The learned APP submitted that there is overwhelming evidence adduced by the prosecution to justify the conviction of the accused. According to him, the circumstances relied upon by the prosecution have been proved by adducing cogent and credible evidence and they unerringly point to the guilt of the accused. 9 The circumstances relied upon by the prosecution are : (i) The deceased was seen alive on 30/10/2000 at about 7 p.m. and thereafter on 1/11/2000 in the noon, his dead body was seen lying in his flat. (ii) Homicidal death of the deceased. (iii) The entry of the accused alongwith one other in the flat No.F-23 for doing carpentry work on 31/10/2000 at about 11.30 a.m. and accused and one other leaving Khushrubaug colony at about 4 p.m. (iv) The accused found in possession of the stolen 8 apeal26.04 property on 3/11/2000. (v) These are the same properties which were in possession of the deceased. (vi) Possession of the blood stained articles such as hammer and file and on that finding of blood stains of group-A, which is the blood group of the deceased. (vii) Recovery of the shirt stained with blood of group A, from the possession of the accused. (viii) Possibility of injuries found on the person of the deceased being caused by articles 4 and 5 i.e. hammer and file seized at the instance of the accused. (ix) Seizure of the pieces of wood, nails, wooden dust from the spot pointing to the fact that some carpentry work was done in Flat No.23. (x) Conduct of the accused in abruptly leaving his place of residence on the evening of 31/10/2000 and going to the place in U.P. Where his father in law resides on the false pretext of ailment of his son. (xi) Motive. 10 PW2 Villu Irani who is the occupant of flat no.F-24 deposed that the deceased was his next door neighbour. Her flat No.24 and flat No.23 were having common gallery. In the night intervening 31/10/2000 and 1/11/2000 at about 12.30 a.m. seeing that the balcony door was open, she knocked the door of the flat no.23 but there was no response. On the following morning i.e. on 1/11/2000 at about 9 a.m. she informed one Dolly Irani who stays on the first floor. In turn, Dolly informed to one 9 apeal26.04 Shroff and Mr. Shroff informed to PW-1 Behram. In cross-examination her statement that she had knocked the door of flat no.23 in the night intervening 31/10/2000 and 1/11/2000 has not been controverted. Her testimony is natural in the sense that after noticing the balcony door open, she had a reason to check as to why the door was kept open. Since it was mid night, she did not take further steps but in the morning at about 9 a.m. she again knocked the door and when there was no response, she went to first floor to inform one Dolly Irani. 11 PW-17 Gorakh Deshmukh is the flower vendor. At the relevant time, he used to give home delivery of the flowers to the inmates of Khushrubaug. The deceased was his customer. As usual on 30/10/2000 at about 7 p.m. he delivered flowers to the deceased. On the next day i.e. on 31/10/2000 he went to deliver flower packet to flat no.23. When he rang the door bell, nobody responded. Therefore, he left the floor packet outside the door. On 1/11/2000, he learnt that inmate of flat no.23 was murdered. Evidence of this witness has been criticized by the learned Counsel for the appellant-accused. It is submitted that he is got-up witness. Our attention is invited to the admission given by this witness that in the event of absence of inmate of the house, he used to leave the flower packet outside the door. In fact, he stated same thing in the examination-in-chief. To the next question he admitted that the flat of the deceased is either on third floor or 4th floor and its number might be 24. He further admitted that exactly he does not remember the flat number. It is pertinent to note that evidence of this witness was recorded on 19/9/2003 i.e. after about three years of incident. In this view of the matter, the learned Additional Sessions Judge was right in placing 10 apeal26.04 reliance on the evidence of this witness. Cumulative reading of the evidence of PW-2 Villu Irani and PW-17 Gorakh Deshmukh would show that on 30/10/2010 till 7 p.m. the accused was seen alive. 12 We consider it relevant to deal with the medical evidence on the point of time since death. PW-14 Dr. Ajay Patil who was attached to J.J.Hospital, Byculla, Mumbai had received the dead body at about 6.30 p.m. on 1/11/2000. On 2/11/2000 at about 10.30 a.m. he commenced post mortem examination, which was over at about 12.30 p.m. He was assisted by one Dr. N.C.Chavan. As regards probable time of death of the deceased, firstly, he deposed that probable time of death must be 18 to 24 hours reckoned from the time he examined the body. Then he corrected his version and clarified that after receipt of the dead body in the mortuary, it was kept in cold storage. This arrest the process of decomposition. Considering decomposition stage as well as storage period in a cold condition, according to him, the death must have occurred prior to midnight of 31/10/2000 and after midnight of 28/10/2000. Dr. Patil has noticed undigested food in the stomach and on that basis he concluded that the death must have occurred two hours after the last meal. In cross-examination he admitted that the temperature of the body was not mentioned in the post mortem report. Except this nothing was suggested to this witness about time of death. On external examination Dr. Patil noticed signs of early decompositional changes, face swollen, abdomen bloated, genitals bloated, tongue and eyes protruding out, foul smelling gas escaped with hissing sound on opening of the abdomen. There was evidence of marbling on arms, sides of upper abdomen and neck region. In order to interpret various 11 apeal26.04 decompositional changes noticed by Dr. Patil on the external examination of the dead body, we have made reference to the Mody’s Medical Jurisprudence & Toxicology, 22nd Edition, page 234. The relevant observations are: “From eighteen to thirty-six or forty-eight hours after death, the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distorted, the eyes are forced out of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils. Ultimately, the features become obliterated and unrecognisable. The abdomen becomes greatly distended; hence, on opening the cavity, the gas escapes with a loud explosive noise.” 13 From the above, it is clear that the time of occurrence cannot be fixed with precision merely based on the opinion recorded by the medical officer as well as the data reproduced in the text book of medical jurisprudence. It is settled law that they only set out certain broad indicators and show an alternative possibilities. The possibility of time of death from 18 to 36 or 48 hours which can be inferred based on the medical evidence is not inconsistent with the evidence of PW-2 Villu Irani and with the evidence of PW-17 Gorakh Deshmukh. We have therefore, no hesitation in coming to the conclusion that in all probabilities time of death of the deceased was after evening of 30/10/2000 and before morning of 1/11/2000. 14 Evidence of PW-14 Dr. Ajay Patil who had noticed as many as 10 fatal injuries on the person of the deceased is sufficient to hold that the 12 apeal26.04 deceased died homicidal death. He opined that injuries were ante- mortem and the cause of death was due to traumatic fracture of skull with intracranial haemorrhage with stab injuries of neck. He was shown muddemal article no.4 hammer and article no.5 file. He opined that external injuries no.6 to 9 described in column No.17 of the post-mortem notes Exh.34 are possible by such weapon. He further opined that external injuries No. 1 to 5 described in column No.17 of Exh.34 are possible by the instrument like file. In cross-examination, it was suggested that the injuries in question were not possible by the instruments like hammer and file. This he denied. 15 Now, we proceed to discuss the evidence of PW-5 Keshpratap Singh, Security Supervisor. He deposed that he is attached to Bombay Intelligence Security India Ltd. Firstly, he deposed about the neighbours of deceased suspecting foul play and informing PW-1 Behram. At about 1.45 p.m. he went to flat No.F-23. He then spoke about the security guard making entry through the window and spotting of the dead body of Raitan Satta in the kitchen in a pool of blood. Then he proceeded to state that on the previous day i.e. on 31/10/2000 he was on morning duty. At about 11.30 a.m. he noticed two workmen coming to Khushrubaug colony. He enquired with them. On eqnuiry with them, he learnt that they had come there to do carpentry work in Flat No. F-23. This witness categorically deposed that these persons used to work in F- block and hence, he knew them. He then allowed both of them to go to the flat No.F-23. At about 2 p.m. he saw both these carpenters leaving Khushrubag colony. While they were leaving, he had a talk with them. He had enquired as to whether they had finished their work. In the court 13 apeal26.04 this witness identified the accused as one of those two carpenters. He then deposed about attending identification parade in the Arthur Road jail. It is his version that he pointed out the accused during the identification parade. He was asked whether he had stated to the police that he knew the accused. In fact, at no point of time, this witness stated or it was his case that he knew the accused by name. What was known to him was the visit of two carpenters to flat No.F-23. Then it was suggested to this witness that on 31/10/2000 he was not on duty. He refuted the suggestion. Absolutely, nothing surfaced in the cross- examination to discredit his version. No doubt infirmities have been crept-in in holding of the identification parade. It was conducted in the month of 30/1/2001, where as the accused was arrested on 3/11/2000. There is no explanation forthcoming from the prosecution as to why such inordinate delay in conducting identification parade was caused. Reliance has been placed on the decision in case of Subhash and Shivshankar v/s. State of Maharashtra reported in AIR 1987 SC page 1222. In this case, test identification parade was held after delay of 4 months. It was held that such test identification parade looses its significance. In Vijay Dada saheb B v/s. State of Maharashtra reported in 2007(1) BCR (Cri.)717 similar view was taken by the Single Bench of this court. Our attention was invited to the provisions contained in Chapter I paragraph-16 of the Criminal Manual. It is the contention of the learned Counsel for the accused that the guidelines laid down for holding test identification parade have not been followed. Similar arguments were advanced before the learned Additional Sessions Judge, which have been dealt with by him in paragraph-22 of the judgment and admitted that there are lacunae in conducting the 14 apeal26.04 identification parade. For the aforesaid reasons, we are in agreement with the learned counsel for the accused that no implicit reliance can be placed on the test identification parade. 16 Now, the question arises is, whether the evidence of PW 5- Keshpratap Singh on the point of identity of the accused without it being tested by the test identification parade can be relied upon. The evidence shows that the accused and his other associate always used to come to Khushrubaug colony to do carpentry work. Therefore, he knew them by face. When they visited Khushrubaug colony on 31/10/2000 at about 11.30 a.m., he had talked to them. This appears natural as it was expected of him to accost the strangers, particularly, those not residing in the colony. During his duty hours i.e. at about 2 p.m. he saw the accused and his associate leaving the colony. At that time also he talked to them. In this view of the matter, this witness identifying the accused in the court being the substantive evidence, we do not find any hurdle in accepting the same. There are other circumstances, which corroborate his version like finding wooden particles, wooden dust and nails on the spot. 17 In the statement under section 313 circumstance of deceased residing in flat no.F-23, Khushrubaug Colony was put to the accused. His answer is : “I do not know if Raitan Satta was residing in flat No.F-23. I do not know him. I did carpentry work in Khushrubag about in the month of July 2000, but not thereafter.” In the latter part of his statement under section 313, the accused states that “Once I had worked in Khusrubag building. Once contractor had taken me for doing 15 apeal26.04 carpentory work in the month of July 2000. I do not know in which flat I did work at that time. I did not go to Khusrubag in the month of Oct 2000”. The answers given by the accused can be taken into consideration. However, that cannot take the place of proof, burden of which always lies on the prosecution. If there is admission of the accused in his