1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 736 OF 2000 Ranjit Bahaku Mukhiya (Yeravada Central Prison) Pune ... Appellant (Orig. Accused) V/s The State of Maharashtra .. Respondent Shri V.N.Kamble for the Appellant Smt. V.R.Bhosale,A.P.P. for Respondent CORAM CORAM CORAM:S.B.MHASE AND S.R.SATHE,JJ DATED DATED DATED>:7th Feb. 2006 JUDGMENT JUDGMENT JUDGMENT :- (Per S.R.Sathe,J) 1. The Appellant, accused in Sessions Case NO.1466 of 1995 has preferred this appeal against the judgment and order passed by the Court of Additional Sessions Judge, Greater Bombay, whereby, the accused is convicted and sentenced to suffer r/i for 10 years and fine of Rs.2,000/- in default r/i for 6 months for the offence 2 punishable under Section 449, 450 and 452 of IPC, r/i for 7 years for offence punishable under Section 394, rigorous impression for 10 years and fine of Rs.500/- in default r/i for 1 year for offence punishable under Section 376 of IPC and life imprisonment and fine of Rs.5,000/- in default r/i for 1 year for offence punishable under Section 302 of IPC. 2. The brief facts giving rise to this appeal are as under: . One Shreyas Sheth was residing in flat no.7, 3rd floor of Colaba Lands Co Op Hsg Scy along with his wife Jayshree and 2 children viz. son Chirag and daughter Bansari, aged about 13 years. Maid servant by name Bhikibai Okate was working with Sheth family since the birth of Bansari. There was another maid servant by name Laxmibai, who also used to work in their house. In June 1995 Sheth family had appointed one male servant by name Ranjit Mukhiya i.e. present accused. He also used to stay in the servant’s room along with Bhikibai. The accused was not regular in attending his duty and at times he used to go away without prior intimation and on that count warnings were given to him by Shreyas Sheth. He worked in the said family for a period of about 1 to 1- 1/2 months and thereafter in the last week of July 1995 or thereabout he left the job. 3 3. On 8-9-1995 after finishing dinner Bansari was sleeping in her bed room adjacent to servant’s room and kitchen, Chirag was sleeping in a balcony attached to drawing room and Jayshree was sleeping in master’s bed room. On that day at night Shreyas Sheth was playing cards with his friends till at about 2 to 2-30 a.m. Thereafter he went to kitchen took water from refrigerator and then went to bed. 4. On 9-9-1995 at about 5-30 a.m. one Ashok Shedge, known as Bhayya, was washing the car of his master in the campus of the said Colaba Land Co Op Hsg Scy. At that time he heard scream of a women from the third floor of building no.7. He therefore called watchman Mhaipat Thakke. He also heard the scream. Both of them therefore went to servant’s quarter of flat no.7 by spiral stair case. When they knocked the door of servant’s quarter they found that it was bolted from inside. As there was no response from inside both of them again went on the ground floor. They then went to the main door of flat no.7 and pressed the bell. However, there was no response. Hence both of them came down. On that day Mahipat Thakke was having night duty and as such he was to return home at 7-00 a.m. However, as he had doubt about the incident that had occurred, he again went upstair at the servant’s room of flat no.7. He found that door of the said room was slightly open. He, therefore, peeped through the said portion and 4 noticed that Bhikibai was lying in a pool of blood. He therefore immediately rushed to main door of flat no.7 and again pressed the door bell. Thereupon Shreyas Sheth and his wife awoke and opened the door. Mahipat told them that Bhikibai is lying in a pool of blood. He therefore went out of the flat and found that servant’s room was open and several persons had gathered there. As he wanted to go to the room of servant’s room through kitchen he went to kitchen but he noticed that door between the drawing room and kitchen was bolted from inside. He, therefore became panic and contacted his friend and immediately thereafter dialled phone no.100 for Police help. Police arrived at 7-40 a.m. Police then opened the door between drawing and kitchen room of his flat and when they went to the bed room of Bansari they found that she was also lying in a pull of blood on her bed and her throat was cut. The Police then recorded statement of watchman Mahipat Takke and same was treated as FIR. On that basis Police registered the offence at C.R.No.321 of 1995 for offences punishable under Sections 302 and 376 of IPC. Police then drew panchanama of the place of offence. While drawing the said panchanama they found that one Pendant of God Hanuman was lying in Bhikibai’s room. Another maid servant Laxmibai identified the said pendant as that of the accused. She told the Police that accused used to wear one locket around his neck and pendant of God Hanuman was in the said locket. Taking this clue Police started search for 5 accused. In the meantime Police drew Inquest panchanama and dead bodies were sent for post mortem. 5. During the said search of accused PSI Katkade received information that accused was near Bandra, he therefore, laid a trap and arrested accused at about 5-00 p.m. near telephone booth. At that time, Police found that accused was having one rexine bag with him. When Police took search of the said bag they noticed that there were several articles in the same. Police, therefore, attached all those articles in the presence of panchas and also drew arrest panchanama. When the accused was in the Police custody on 10-9-1995 he made a statement before the Police that he would point out knife and wrist watches of Bansari concealed by him. Accordingly Police drew the memorandum and then accused led Police and panchas to a building known as Sambhav Teerth at Haji Ali and pointed out that he had thrown the knife on the top of water tank through the small whole of adjoining wall. Police therefore reached to that spot along with accused and accused pointed out the knife (Suri Suri Suri) which was lying on the top of cement water tank. Police then attached the said knife. The accused then led police and panchas to 11th floor of the said building and took out one small box kept on the loft which was in the passage. From there he produced two wrist watches - one of Casio Company and other of Timex. Police attached all these articles under panchanama.Police then showed 6 these articles as well as the articles which were found in the rexine bag which was with the accused to witnesses viz. Shreyas Sheth, Jayshree Sheth and Laxmibai. All of them identified those articles as that of Bansari and Bhikibai. During the investigation Police engaged the services of Dog squad and dog sniffed the Pendant of God Hanuman which was lying in house of Bhikibai. However, no further useful information could be gathered with the help of the said dog squad. Police also took photographs of the place of offence and traced 4 finger prints in the room of Bhikibai. After the arrest of the accused he was sent to medical officer for his examination and at that time it was noticed that there were some minor scratches on the person of the accused and when doctor asked him about history, the accused practically gave confession, while disclosing as to how he received those injuries. Police recorded the statements of various witnesses and after completion of the investigation P.I. Abdul Rauf filed charge sheet against the accused. 6. Finding that the accused is charge sheeted for the offence punishable under Section 376 and 302 of IPC which are exclusively triable by the court of Sessions, the learned M.M. committed the case to Sessions Court, Greater Bombay. 7. The learned Additional Sessions Judge, framed charge Exh.1 and Exh.6 against the accused for the offences 7 mentioned above. All the charges were read over and explained to the accused. He pleaded not guilty and claimed to be tried. 8. In order to bring home the guilt of the accused, the prosecution examined as many as 23 witnesses consisting of : 1. PW 1 Tukaram D. Bansode, draftsman, who drew the sketch of the place of offence, 2. PW 2 Mahipat Thakke, watchman who first went to the place of offence after hearing the noise, 3. PW 6 Deepak Katkade, API, 4. PW 7 Shreyas Sheth, father of deceased Bansari, 5. PW 8 Manohar Masurkar, gold smith from whom Bhikibai had purchased her ornaments, 6. PW 9 Shaileshkumar Vora, from whose shop writ watch of Bansari was purchased. 7. PW 10 Dr.Shivaji Dound, who did post mortem on the dead bodies, 8. PW 11, Ashok Shedge, who heard the scream of a woman 8 at about 5-30 a.m. on the date of incident, 9. PW 12, Laxmi Raghuvir, maid servant of Sheth family, 10. PW 13, Dr.Baburao Damawale, who examined accused on 10-9-1995, 11. PW 15 , Chandrashekhar Kadam, Assistant Chemical Analyser 12. PW 16 Shriram Damodar, finger print expert 13. PW 17 PS.I. Barge, 14. PW 18 Firoz Shaikh, hand writing expert, 15. PW 19 Jayshree Sheth, mother of deceased Bansari 16. PW 20 Sr PSI Abdul Rauf, 17. PW 21 Dr. Bhanudas Desai, with whom the accused was serving after he left the family of Sheth, 18. PW 22 Ramchandra Okate, brother of Bhikibai, 19. PW 23 Dr.Rao, Chief DNA Finger Printing Lab,CDFD, And 4 panch witnesses, viz. 9 i. PW 3 Dinesh Varma, who acted as panch for attachment of articles found with the accused, ii PW 4 Shobhana Manjrekar, who was acted as pancha of place of offence, iii. PW 5 Dattaram Kadam, who acted as pancha for discovery of knife iv. PW 14 Sanjiv Vora who has acted as pancha while attaching the clothes of the accused. 9. The prosecution also produced various panchanamas and FIR Exh.20,Post mortem notes Exh.39, C.A. Reports Exhs 49, 50 and 50A, Finger Print experts Report Exh.51 etc. 10. As against this the accused did not examine any witness in his defence. From the suggestions put to the PWS and from the statement of the accused recorded under Section 313 of Cr.P.C., it appears that it is the contention of the accused that as he had left the job of Sheth family few months back he has been falsely involved in the offence. 11. After considering the evidence adduced by the prosecution, the learned trial Judge came to the conclusion that the prosecution has proved beyond reasonable doubt that the accused committed rape on 10 Bansari and murder of Bhikibai and Bansari. The learned trial Judge therefore passed the order of conviction and sentence as mentioned above. 12. Being aggrieved by the said order, the accused has filed the present appeal. In this appeal before us Shri V.N.Kamble, learned appointed Advocate for the Appellant has urged 3 points, firstly, he submitted that the learned trial Judge has not properly appreciated the evidence on record and has wrongly held that there was sufficient evidence to prove the offence of rape. Secondly, he canvased before us that the learned trial Judge ought to have considered the fact that there was no eye witness to the incident and prosecution had failed to establish chain of circumstances so as to prove beyond doubt that accused is involved in the offence in question. Lastly he submitted that even on the score of probabilities the evidence with regard to discovery cannot be believed because there is much distance between the place of offence and place where from the alleged discovery was made. It is difficult to believe that the accused would go to such a long distance and conceal the articles, and if at all he had concealed those two articles it cannot be believed that he would carry other articles with him. Hence he submitted that this is a fit case where benefit of doubt has to be given to the accused and accused be acquitted. 11 13. As against this, Smt. V.R. Bhosale, learned APP supported the judgment and order passed by the learned trial Judge. 14. The prosecution witness no. 2 Mahipat Takke who was then working as watchman in the Colaba Land Co Op Hsg Scy has stated that on 9-9-1995 at about 5-00 to 5-30 a.m. he heard screams of a woman and thereafter he had gone to third floor of the said building at flat no.7’s servants quarter along with Bhayya and knocked the door but there was no response and thereafter at about 7-00 a.m. he went to that room and he found that door of the said servant’s quarter was slightly open and when he peeped through, he found dead body of Bhikibai lying in a pool of blood. Even the prosecution witness PW 4 Shobhna Manjrekar, PW 6 Deepak Katkade, PW 7 Shreyas Sheth all have stated that on that day in the morning when they went in the room of Bhikibai as well in the bed room of Bansri it was noticed that their dead bodies were lying in pool of blood. From the evidence of PW 4 Shobana Manjrekar and panchanama of the place of offence it is very clear that throat of Bhikibai was found cut. So also of Bansari. So, even bear look at the dead bodies was sufficient to indicate that somebody had committed murder of Bhikibai and Bansari. 15. The prosecution has produced the post mortem report of Bhikibai as well as Bansari. Both the reports are 12 admitted by the defence. The prosecution has examined Dr.Dound at Exh.38. He has proved the post mortem report of Bhikibai and Bansari. The same are at Exhs 39 and 40 respectively. In the post mortem notes of Bhikibai in column no.17 it is mentioned that following injuries were found on her persons, "1) contusion on left side chest 3 cm x 1.5 cm 3 cm below the clavicle 2) incised wound on left hand palmer and surface at the base of index finger 2 cm x 0.5 cm bone deep 3) incised wound on left thumb dorsum on the middle phalanx of the size 0.5 cm 0.2 cm 4) incised wound on left knee joint medial aspect at the level of lower end of patella 2 cm x 1 cm muscle deep 5) incised wound on neck front and right later 1 side 5 cm behind the chin and just at the upper border of thyroids cartilage. Size of wound 16 cm long x 1.5 cm breath and 5 cm deep. The wound extending 4 cm left side and continued on right side and posterior aspect of right ear lobe, sterno mastoid muscle on both sides carotid sheath on both sides with carotid artery and jugular vain are seen cut through and through. Larynx and pharynx are seen cut completely a small cut mass seen on body of cervical vertebra 0.5 cm. in length. Thyroid cartiolage cut at the 13 upper border transversely 1.5 cm. length. The cause of death is shown as "Hemorrhage and shock due to cut throat injury". . Similarly in post mortem report Exh.40 the doctor has mentioned external injuries found on the person of Bansari. The same are as under : 1) incised wound on front side neck at the upper border of thyroid extending on both sides of neck, on right side 5 cm below and anterior to right ear lobe and 6 cm below and anterior to left ear lobe, length and wound 12.0 cm and breadth 1.5 cm just above the thyroid level on enquiry of injury both sterno mastoid muscles carotid sheath carotid artery, jugular vein, Nervas in carotid sheath are seen cut completely, larynx is seen cut with a tag of mucus membrane on post aspect. Hyoid bone is seen separated from the thryod cartilage due to cut. The doctor has also stated that those injuries are possible by weapon before the Court. So, from all this evidence the lower Court rightly held that prosecution has proved that death of Bhikibai as well as Bansari was homicidal. In fact it is not even the contention of the 14 defence that death of above two deceased is not homicidal. 16. The main and material question is whether the prosecution has proved beyond reasonable doubt that death of Bhikibai and/or Bansari was caused at the hands of accused before the Court. At the outset it must be mentioned that there is no eye witness to the incident. Not only that but nobody had seen the accused near the place of offence at the relevant time. The prosecution case is entirely based on circumstantial evidence. The law with regard to the circumstantial evidence is well settled. When there is no direct evidence and the whole case turns on circumstantial evidence it is well settled that circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. It is necessary for the prosecution to prove each and every circumstance and to show a complete chain and the said circumstances must unerringly point out the guilt of the accused and if it is so, then the court can base conviction on circumstantial evidence. So, let us find out whether the circumstantial evidence in this case is sufficient to prove the guilt of the accused beyond reasonable doubt. Shri Kamble, learned Advocate for the accused submitted that considering the gravity of the charge there should be strict scrutiny of the evidence and standard of proof required for conviction should be very high. For this 15 purpose he has placed reliance on a case Ashish Batham v/s State of Madhya Pradesh, AIR 2002 SC 3206 AIR 2002 SC 3206 AIR 2002 SC 3206. In this authority, the Apex Court has observed that graver the charge greater has to be the standard of proof. There lies long mental distance between may be true and must be true. this proposition is not disputed and cannot be disputed. So, keeping in mind this proposition we are scrutinising and analysing the evidence on record. In fact, this being a case of circumstantial evidence as observed in a case AIR 1963 SC 74 and AIR 2002 SC 3347, we have to be circumspect. 17. It is an admitted fact that in June 1995 the accused was working in family of Shreyas Sheth and at that time he used to stay along with Bhikibai in the servant room attached to the flat of Shreyas Sheth. The prosecution witness PW 7 Shreyas Sheth and PW 19 Jayshree Sheth have both stated that the accused was not working properly. He used to remain absent without any intimation and on that count they had warned him. They have also stated that accused was in habit of picking up money left unattended. He used to receive some telephone calls from his girl friend. Prosecution witness Laxmibai Exh.61 has also stated that at the relevant time she was working in the family of Shreyas Sheth and she was knowing Bhikibai as well as accused. She has further stated that at times Bhikibai had made a complaint to her about the conduct and behaviour of accused with her. All of them have also 16 stated that some time in the middle of July 1995 accused left the service of Shreyas Sheth and naturally he left the room of Bhikibai. All this evidence of prosecution is not at all shaken or shattered in the cross examination. There is absolutely no reason to disbelieve the same. Thus one thing is certain that prosecution has proved that few days prior to the incident accused was serving in the family of Shreyas Sheth and had left the service in July 1995. 18. It is the case of prosecution that Police got the clue for the accused due to the pendant of God Hanuman which was found lying in the room of bhikibai near from her dead body. At the time of panchanama of the place of offence the said pendant was noticed and it was also attached. The prosecution witness Shobhana Manjrekar who is an independent witness has clearly stated in her deposition at Exh.23 that on 9-9-1995 at about 9-50 a.m. when panchanama of the place of offence was drawn one pendant of God Hanuman was found lying in the said room and the same was attached by the Police. Not only that but she has also stated that when the said pendant was shown to prosecution witness Shreyas Sheth and Jayshree Sheth and Laxmibai, they all identified the said pendant as that of the accused. The above mentioned 3 witnesses have also clearly stated in their deposition that when accused was working with the said family they had seen him wearing one locket in which there was a pendant of 17 God Hanuman. So, as a result of the said pendant Police got suspicion about the accused and they started search and investigation in the matter. 19. It was tried to be argued on behalf of the defence that such pendant is easily available in the local market. There was no specific mark to identify it as that of the accused. Besides this as accused was admittedly residing in the said room for few days it may be that at that time he may have forgotten the said pendant at the site. However, it is pertinent to note that accused had left the service about 2 months prior to the incident. So, there was no reason for having such pendant on the day of incident and that too near the dead body. What is more to be noted is that it is not even suggested to any of the witnesses that Bhikibai or anyone else was wearing such pendant and as such there was possibility of Pendant lying there. In fact it is proved that pendant was found near the dead body of Bhikibai at the relevant time. It is worth to note that from the panchanama Exh.10 as well as from the evidence of API Katkade, it is clear that when accused was arrested there were some scratch and abrasion on his person and doctor Damawale Exh.44 has opined that the said injuries are possible due to nails. So, it suggests that at the relevant time there might be some resistance from Bhikibai and in that process pendant might have fallen down. Much is made about the fact that no thread was 18 found at the said place. However, we cannot ignore the fact that after the incident and panchanama of the offence, some persons had immediately entered the said room, thread being a small negligible item, it must have disappeared. So,merely because that thread was not found one cannot jump to the conclusion that story of the prosecution of finding pendant at that place is false. If really the prosecution wanted to plant the said pendant at that place then they would have taken care to plant with broken thread. So, there is no reason to disbelieve the prosecution evidence regarding the finding of pendant of God Hanuman in the room of Bhikibai and further its connection with the accused. 20. When Police made all efforts to search the accused, they came to know the whereabouts of the accused and they received the information that accused is at Bandra and as such Police went there to trace him and accordingly on 9-9-1995 at about 5-10 p.m. the accused was found near the shop of Satellite Communication,Bandra (West). Police therefore accosted him and they took his search