:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.254 OF 2006 CRIMINAL APPEAL NO.254 OF 2006 CRIMINAL APPEAL NO.254 OF 2006 Pradeep Vipul Goswami, ) Convict Prisoner ) No.C/3285, Kolhapur ) Central Prison, Kalamba,) Dist.Kolhapur. ) ..APPELLANT. (Orig.Accused) (Orig.Accused) (Orig.Accused) Versus Versus Versus The State of Maharashtra) .RESPONDENT. . . . Mr.A.G.Toraskar, Adv. appointed for the Appellant. Mr.P.S.Hingorani, APP, for the Respondent-State. . . . CORAM : F.I. REBELLO AND CORAM : F.I. REBELLO AND CORAM : F.I. REBELLO AND SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. DATED : APRIL 04, 2008. DATED : APRIL 04, 2008. DATED : APRIL 04, 2008. ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : . Through this Appeal, the appellant i.e. original accused has challenged the judgment and order dated 29th August, 2005 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.696 of 2003. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of Indian Penal Code and sentenced him to R.I. for life and to pay a fine of Rs.1000/-in default R.I. for one year. :2: 2. The prosecution case, briefly stated, is as under : . The appellant was married to deceased Stella. Stella was working with Thermax Company as a Receptionist. Thermax Company had one Guest House at Advent Building, 1st Floor, Flat No.14, Jagannath Peth Marg, Cuffe Parade, Mumbai. PW-3 Montu Prasad Yadav was working in the Guest House as Caretaker. PW-4 Unnikrishnan was also a employee of Thermax Company and he was residing at the said Guest House at the relevant time. Stella used to do the work of booking of Guest House of the Company. Hence she was known to PW-3 Montu Yadav who was Caretaker of the said Guest House. . On 27th June, 2003 Montu Yadav was present in Company Guest House. On that day, at about 5:15 p.m. Stella came with one person whom she introduced to Montu Yadav as her husband. Both of them sat down in the hall of the Guest House. Thereafter Montu Yadav offered them tea. Thereafter Stella requested Montu Yadav to open :3: one room in the guest house as she wanted to change her clothes. Accordingly Montu Yadav opened room No.1 of the Guest House for Stella and her husband. Thereafter, Stella and her husband went into the room. In the meanwhile, PW-4 Unnikrishnan came to the guest house and he was watching T.V. in the hall. PW-4 Unnikrishnan told Montu that husband of Stella was asking for cordless phone, hence Montu Yadav gave cordless phone to Stella’s husband i.e. the accused. The accused went into the room with the cordless phone. Within few minutes, he came out and he asked Montu Yadav to speak to PW-5 Girish Halbe on phone. PW-5 Girish enquired with Montu as to what happened whereupon Montu told him that he would enquire about what had happened. However, the accused took the phone from Montu. Montu Yadav found that the neck of Stella was cut-off and the accused had also sustained some injuries. Within short time, PW-5 Girish reached the Guest House. PW-3 Montu Yadav informed him that the accused had committed murder of Stella. One napkin and knife (Article 12) was found at the spot. Thereafter PW-3 Montu lodged a complaint. Investigation :4: commenced. After completion of investigation, the case came to be committed to the Court of Session. 3. The charge came to be framed against the appellant under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant, as stated in Para 1 above. Hence this Appeal. 4. We have heard Mr.Toraskar learned Advocate appointed for the appellant and Mr.Hingorani learned APP for the respondent-State. We have also perused the judgment and order passed by the learned Sessions Judge as well as the record in the present case. After carefully considering the matter, we are of the opinion that this Appeal deserves to be dismissed. 5. The evidence of PW-9 Dr.Vinod Agrawal clearly shows that Stella died a homicidal death. :5: Dr.Agrawal conducted the post-mortem. He found the following injuries on the body of Stella : (1) Incised wound, neck, base of jaw horicontal 11 X 3 cm. edges sharp from one sterno cleido mastoid to other tailing to right, skin, windpipe, foodpipe, jugular vein, carotid artery are cut completely. Situated above thyroid cartilage. (2) Incised wound 2" below xiphisternun just left of mid line 3 X 1 cm. edges sharp muscle deep. (3) Incised wound left 7th inter coastals space, interior axillary lying 3 X 1 cm. edges sharp muscle deep. (4) Incised wound left forearm upper 1/3rd lateral 8 X 3 cm. bone deep edges sharp. (5) Incised wound left forearm supero medial 1 X 1/2 cm. muscle deep edges :6: sharp. (6) Stab 4" below tip of left scapula 2 X 1 cm. edges sharp upto inter postal muscle. Cavity not reached. (7) Stab 5" to right of injury no.6 2 X 1 cm. edges sharp muscle deep. 6. According to the Doctor, the death was due to haemorrhage and shock due to the injuries mentioned in column No.17. PW-9 Dr.Vinod Agrawal has gone on record saying that all the injuries were possible by a weapon like knife. All these fact clearly establish that the death of deceased Stella is undoubtedly a homicidal death. We may also state here that it is nobody’s case that the death was either accidental or suicidal. The evidence on record shows that the dead body was lying in a pool of blood. The weapon of assault i.e. knife (Article 12) was also lying by the side of the dead body. Considering all these facts, we have absolutely no hesitation in coming to the conclusion that the death of Stella was a :7: homicidal death. 7. In view of the fact that the prosecution has established the death of Stella was a homicidal death, it is required to be seen as to whether the nexus between the accused and the homicidal death has been established or not by the prosecution. 8. There is no eye witness in the present case. However, the prosecution has relied upon the evidence of three witnesses i.e. PW-3 Montu Yadav, PW-4 Unnikrishnan and PW-5 Girish Halbe in order to establish the nexus between the accused and the death of Stella. 9. PW-5 Girish Halbe has stated that Stella was working as a Receptionist in Thermax Company. On 27th June, 2006 Stella asked his permission to leave early as she wanted to attend a marriage. The evidence of PW-3 Montu shows that Stella and the accused went to the Company’s Guest House. She introduced the person who was accompanying her as her husband i.e. present appellant. On :8: reaching the Guest House she asked PW-3 Montu Yadav to open one room for her so that she could change her clothes. Accordingly PW-3 Montu Yadav opened room No.1 and Stella and her husband both went into room No.1. After some time, PW-4 Unnikrishnan who was residing in room No.4 of the Guest House, reached there. Some time thereafter the accused came out of room No.1 and asked for a phone. As Montu Yadav at that time was inside the kitchen, PW-4 Unnikrishnan called housekeeper Montu Yadav and Montu Yadav then handed over one cordless phone to the accused. The accused then again entered into room No.1 in presence of PW-3 Montu and PW-4 Unnikrishnan. From the said cordless phone the accused contacted PW-5 Girish Halbe and told him that he is Stella’s husband, and that he had committed a mistake and he desperately urged Girish to come to the Guest House immediately. The said conversation which took place in Hindi is as under : "Mai Stella Ka Husband Baat Kar Raha Hun, Muzhase Kuch Galati Ho Gai Hai, Aap Church Guest House Me Aa Jaieye". When PW-5 Girish Halbe tried to ask him as to what happened, the accused refused to say anything at :9: that point of time. Girish then enquired with Montu as to what happened, whereupon Montu said that he will find out and inform him. Thereafter Girish reached to the Guest House and found Stella dead and the accused was also in the Guest House. 10. The evidence of PW-3 Montu Yadav, PW-4 Unnikrishnan and PW-5 Girish Halbe establishes that at the relevant time, the appellant was present in the company Guest House. In view of the fact that the alleged incident had taken place inside room no.1 of the Guest House, there is absolutely no possibility that anybody could actually witnessed the alleged commission of offence. The fact that the accused entered into room no.1 in the presence of Montu Yadav, the fact that the accused came out of room in presence of PW-4 Unnikrishnan and thereafter Montu Yadav handed over the cordless phone to the accused and then the entry of the accused into room no.1 in the presence of PWs.3 & 4 which is followed by the homicidal death of Stella, clearly establishes that these are absolutely strong circumstances which establish that the accused alone is the :10: person who committed the murder of his wife. 11. It is also pertinent to note that the evidence of PW-10 Dr.Meena Agrawal also establishes the fact that the accused had received two fresh injuries on his palm at the relevant time. True that those injuries must have been caused by weapon of assault but possibility is that there could be some resistance from Stella when she received the injuries and that could be the reason why the accused also must have received injury, though in minor in nature. The accused has furnished no explanation for the said injuries. Moreover, it is pertinent to note that the accused has admitted that he is the husband of Stella and that he had gone with Stella to the Guest House at the relevant time. However, though he was at the Guest House with her, the accused has not furnished any explanation as to how Stella died. He has not discharged the burden under Section 106 of the Evidence Act. This silence on the part of the accused would also go against him. 12. Admittedly, the accused is the husband of :11: deceased Stella, and it is also proved that he was present in the Guest House at the relevant time. It has been established beyond reasonable doubt that the accused was present along with his wife Stella at the relevant time and both of them were in room No.1 which was closed from inside. PW-3 Montu Prasad Yadav, the person had seen Stella entering into the room along with the accused. Thus, the accused was last seen in company of his wife Stella. They entered into room no.1 of the Company Guest House. Within minutes thereafter Stella was found dead. The weapon of assault was found near the dead body. Chemical Analyser’s report lends corroboration to the prosecution case. Looking to the evidence on record, we have no hesitation to reach the conclusion that it was the appellant-accused and the appellant-accused alone who committed the murder of Stella. 13. In the result the appeal is dismissed. The conviction and sentence dated 29th August, 2005 recorded by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.696 of 2003 is confirmed. The appellant is in jail. He shall :12: serve out the sentence. (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.) (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.) (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.)