1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 377 OF 2005 & 288 OF 2005 1] CRIMINAL APPEAL NO. 377 OF 2005 Appellant : Bahadur @ Kuwar Bahadur Mulchand Mishra (Orig. Accused No.1) C/4627, Central Prison, Nashik Road. //Versus// Respondent : The State of Maharashtra. WITH 2] CRIMINAL APPEAL NO. 288 OF 2005 Appellant : Mohd.Islam @ Chadi Mohd. Sukru (Orig. Accused No.2) Shikali, C/4628,Central Prison, Nashik Road. // VERSUS// Respondent : The State of Maharashtra. Miss. Ameeta Kuttikrushnan (appointed), for Appellants Mrs. A.S.Pai, Additional Public Prosecutor for State. 2 CORAM : D.D.SINHA & SMT.V.K.TAHILRAMANI, JJ. RESERVED ON : 14 th December,2010 DECLARED ON : 17 th June, 2011. JUDGMENT : (PER SMT. V.K.TAHILRAMANI, J. ) 1] Appellant/original accused No.1 Bahadur @ Kuwar Bahadur Mulchand Mishra has preferred Criminal Appeal No.377 of 2005 and Appellant/original accused No.2 Mohd. Islam @ Chadi Mohd. Sukru Shikal has preferred Criminal Appeal No. 288 of 255. Both these appeals are directed against the judgment and order dated 22.04.2004 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.434 of 2003. By the said judgment and order, the learned Sessions Judge convicted the appellants under Section 302 read with section 34 of Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- (Rupees Five Thousand Only) each, in default, rigorous imprisonment for one year. For the sake of 3 convenience, the appellant/original accused No.1 Bahadur @ Kuwar Bahadur Mulchand Mishra will be addressed as accused No.1 and the appellant/original accused No.2 Mohd. Islam @ Chadi Mohd. Sukru Shikal will be addressed as accused No.2. 2] The prosecution case briefly stated, is as under :- (i) In the year 2003, Complainant PW-1 Deoram Gangaram Jadhav was working as a watchman in Samaj Kalyan Hall, situated at Road No.5, Shivaji Nagar, Govandi, Mumbai. Marriages, cultural programmes, meetings etc. used to take place in the said Hall. The complainant PW-1 was residing in a quarter behind the said hall. He had two sons and two daughters. Deceased No.1 Deepak was the eldest son of the complainant who was aged about 18 years at the time of incident. (ii) PW-2 Eknath Rane used to do decoration work of the said Samaj Kalyan Hall. Both the accused were employees of PW-2 Eknath Rane. During the day time, they worked in the Samaj Kalyan 4 Hall, as both the accused did not have any separate place of residence, they used to sleep in the Samaj Kalyan Hall during the night time. Deceased Deepak also used to sleep in the hall due to paucity of place in his house. Accused used to visit the house of the complainant occasionally. Deceased No.2 Manohar Gaikwad was the son-in-law of the brother of the wife of the complainant. Name of the brother of the wife of the complainant was Rajaram Hate. Manohar was working at Byculla. His wife was residing at Mahad with his father Rajaram Hate. Manohar used to visit his wife at Mahad at certain intervals. Whenever, he was going to Mahad, he visited the house of PW-1 to enquire if they had any message for Rajaram Hate. On some of these occasions, Manohar used to stay at the house of the complainant during the night time. (iii) The incident occurred on the night between 05.03.2003 and 06.03.2003. On 05.03.2003 at about 9.30 p.m. Manohar Gaikwad came to the house of the Complainant as he was going to Mahad. At about 11.00 p.m., after having dinner, deceased No.1 5 Deepak and Deceased No.2 Manohar went to sleep in Samaj Kalyan Hall. Both the accused persons also went to sleep in the same hall. The complainant asked Deepak to lock the shutter of the hall from inside prior to sleeping. At about 12.00 midnight, as usual complainant Deoram took his round. On 06.03.2003 at about 05.30 a.m. as usual the complainant went to the hall. He noticed that the shutter of the hall was partly open from lower side. He called out to his son Deepak. He received no response from Deepak. Therefore, the complainant went inside the hall. He saw Deepak and Manohar were lying in a pool of blood. The necks of Deepak and Manohar had been cut. Both, accused No.1 and 2 were not to be seen. The complainant started shouting. People gathered at the spot. Thereafter, police also came to the spot of incident. Police recorded F.I.R. (exh. 11) of the complainant PW-1 Deoram Jadhav. iv] Both the dead bodies were sent for post mortem. PW-7 Dr. Shivaji Kachare performed the post mortem on the dead bodies of Deepak and Manohar. On examination of dead body of Deepak, 6 Dr. Kachare found the following injuries on his person :- 1. Incise deep penetrating wound at anterior of Neck region, horizontal,reddish. Both angles were acute. Total neck muscles were anteriorly ruptured. The blood vessels were ruptured. The larynx, trachea and bronchus were lacerated and broken. The size of injury was 16 cm. x 8 cm. x 6 cm. The corresponding injury to injury No.1 was that the upper part of both pleurae was ruptured. The larynx trachea and bronchie were ruptured and broken. There was evidence of fracture of cervical spine No. 1 to 4. 2. The second injury was incise like wound at left temporoparietal region. The size was 5 cm. x 3 cm. x bone deep. The wound was reddish and oblique. According to Dr. Kachare the injuries were ante-mortem. According to Dr. Kachare, the corresponding internal injury No.2 was as follows - 7 Injury under the skull was the haemorrhage at left temporoparietal region. The skull showed fracture on left temporoparietal bone, size 1 cm. x 1 cm.. The brain tissues were congested, oedematus, subarchnoid haemorrhages were seen. The Doctor opined that injury No.1 was sufficient to cause the death of the deceased, in ordinary course of nature. Injury No.1 is possible by the chopper (article 16). The injury No.1 shows that lot of force was applied during attack. Injury No.2 was possible by the weapon-iron rod (article 21). The death must have occurred instantaneously. The cause of death was haemorrhage and shock due to neck cut injury (unnatural). Injury Nos.1 and 2 were fatal according to Dr. Kachare. (v) On examination of dead body of Manohar, Dr.Kachare found the following injuries :- 8 Injury was a incised wound at left lateral of neck region. It was oblique, reddish, both the angles were acute. The size of the injury was 17 cm. x 5 cm. x 5 cm. On dissection, blood vessels were found ruptured. So also the muscles were ruptured. The larynx, trachea and bronchus at left lateral side were broken. The corresponding internal injury was as follows :- The larynx, trachea and bronchie was containing blood, one left lateral side ruptured. There was evidence of fracture of cervical spine No.3 and 4. In the opinion of Dr. Kachare, the cause of death was haemorrhage due to neck cut injury (unnatural). According to Dr.Kachare, the injury mentioned to the neck is sufficient in the ordinary course of nature to cause death of a person. The injury is possible by article 16-chopper and the injury was ante-mortem, fresh within twenty four hours. 9 (vi) After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3] Charge came to be framed against the appellants under section 302 read with section 34 of Indian Penal Code. Both of them pleaded “not guilty” to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. After considering the defence of the accused and the evidence led by the prosecution, the learned Sessions Judge convicted and sentenced the appellants/original accused Nos.1 and 2 as stated in para 1 above, Hence, these appeals. 4] We have heard the learned Advocate for the appellants/accused and the learned Additional Public Prosecutor for the State. We have perused the impugned judgment and order and the evidence on record. After carefully considering the matter, for the reasons stated hereinbelow, we are of the opinion that the judgment 10 and order of conviction and sentence does not call for any interference. 5] There is no eye witness in the present case. The entire prosecution case is based on circumstantial evidence. Where the entire case hinges on circumstantial evidence, great care must be taken in evaluating circumstantial evidence to ensure that the circumstances on which the prosecution relies are wholly consistent with the sole hypothesis of the guilt of the accused. When a case rests on circumstantial evidence, such evidence must satisfy oft- quoted tests viz: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should unerringly point towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of 11 any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence. 6] Legal principles with regard to circumstantial evidence in criminal trial have been explained by the Supreme Court time and again. A recent case in a long line of cases being Pawan and Ors. vs. State of Uttaranchal, 2009 (3) Bom. C.R. (Cri.) 194. In an earlier decision of the Supreme Court in the case of Shankarlal Gyarasilal Dixit vs. State of Maharashtra, 1980 Criminal Law Journal 325 : 1981 (2) SCC 35, the Supreme Court observed as under :- “ ….... It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple 12 expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. “ It needs to be emphasized that while evaluating circumstantial evidence, which of course has to be done carefully, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged and the circumstances so shown by the prosecution are compatible with no other reasonable hypothesis. Keeping these principles in mind, we have evaluated the evidence. 7] As stated earlier, the entire case is based on circumstantial evidence. The circumstantial evidence mainly consists of the circumstance of (I) the accused persons and deceased persons last being seen sleeping in the Samaj Kalyan Hall, they were the only persons, in the hall and in the morning both Manohar and 13 Deepak were found dead with their throats slit and the accused persons were not to be seen anywhere. (ii) After the incident, the accused were found absconding. (iii) Both the accused had the motive to murder Deepak and Manohar. In addition, as far as accused no.1 is concerned, the prosecution has also relied upon the circumstance of recovery of lock and key of Samaj Kalyan Hall at his instance. 8] The evidence of PW-1 Deoram Jadhav, who is the complainant in the present case, shows that he was working as a Watchman in Samaj Kalyan Hall. PW-2 Eknath Rane used to do the work of decorating the hall. The two accused were the employees of PW-2 Eknath Rane. They used to work in the Samaj Kalyan Hall during the day time. As the accused did not have any separate place of residence, they used to sleep in the Samaj Kalyan Hall during the night time. The residential place of PW-1 was just behind the Samaj Kalyan Hall. It was situated 5 to 6 ft. away from Samaj Kalyan Hall. As the residence of PW.1 was small, his son Deepak 14 (deceased No.1) used to sleep in the Samaj Kalyan Hall during the night time. Manohar (deceased No.2) was related to PW-1. He used to often visit the house of PW-1 when he was on his way to village Mahad. Very often when Manohar used to visit the house of PW-1, he stayed there at night time. The evidence of PW-1 shows that on the night of the incident also, Manohar had come to visit them and after having dinner, Manohar also went to sleep in the Samaj Kalyan Hall. The evidence of PW-1 clearly shows that on the day of the incident the two accused persons, Manohar and Deepak were sleeping in the Samaj Kalyan Hall. His evidence clearly establishes that only these four persons were sleeping in the Samaj Kalyan Hall at the relevant time. Moreover, his evidence shows that he had asked Deepak to lock the shutter of the Samaj Kalyan Hall from inside prior to sleeping. At about 12 midnight when he took a round he did not notice anything untoward. However, at 5.30 A.M. when he proceeded to the Hall, he saw that the shutter of the Hall was partly open from the lower side. When he entered into the hall, he saw that his son Deepak and his relative Manohar were lying in a pool of 15 blood. Their necks had been cut and the accused persons were not seen in the hall. 9] PW-2 Mr. Rane used to do the business of decorating the Samaj Kalyan Hall since the last ten years. He knew the accused nos. 1 & 2 as they were employed by him. They used to do the work of decorating the hall. This witness has further stated that, during the day time, both the accused were working in the said hall and at night time they used to sleep in the very same hall. He has stated that PW-1 used to reside with his family in the quarter adjacent to the hall and Deepak, the eldest son of Jadhav used to sleep in the Samaj Kalyan Hall at night. Due to scarcity of place in the house of Jadhav, the relatives of Jadhav also used to sleep in the hall. On 6.3.2003 at about 7 or 7.30 A.M. police came to his house. They enquired with him about the whereabouts of the accused persons. He told the police that the accused were sleeping in the Samaj Kalyan Hall. The police took him to the hall where he noticed that Manohar and Deepak were lying in a pool of blood with cut injury on their necks. 16 10] PW-3 Rupali is the niece of PW11 Deoram Jadhav. She had come to the house of Deoram Jadhav on 26.1.2003 on account of Cataract operation of her grandmother Anandibai. This witness has brought out the motive for the incident. Rupali has stated that accused No.2 Islam used to smile at her. About 4 or 5 days prior to the incident while she was washing clothes, Islam came to wash hands near her and he threw little water on her. Islam asked her whether she would marry him. She replied that she was already engaged and his religion is different from her religion. When Islam was talking to her, Deepak (deceased no.1) was standing nearby. Deepak advised her that she should not talk to Islam henceforth. On 1 st or 2 nd March, a function had taken place in the Samaj Kalyan Hall. There was a quarrel between Deepak and Islam. Islam said to Deepak that he will see him. At that time, Deepak told Rupali not to disclose about this incident to Deoram (PW.1), otherwise there would be a problem in the house. Thereafter Islam used to stare at Deepak with revenge. This witness has also stated that Deepak, Islam and Bahadur used to sleep in the hall every night. On 4.3.2003 at about 6 17 P.M. Manohar Gaikwad came to the house of Deoram. Manohar also went to sleep inside the hall. Rupali has stated that at about 1.30 A.M. she heard Manohar shouting from inside the hall. The shutter was closed and Bahadur was outside the hall. Bahadur asked Manohar why he closed the shutter. There were altercations between Manohar and Bahadur on the point of closing of shutter. Thereafter Rupali went inside the house and went to sleep. In the morning when she got up, she heard the cries of her relatives. When she went to the hall, she saw Deepak and Manohar lying dead with cut injuries on their neck and Islam and Bahadur were not found on the spot. Thereafter she proceeded to her native place. 11] The evidence of PW-1 & 3 establishes that both the accused persons as well as both the deceased were sleeping in the Samaj Kalyan Hall on the relevant night and next morning Manohar and Deepak were found murdered with cut injuries on their neck and both the accused were not to be seen. The evidence of PW-2 Eknath Rane also shows that Deepak and accused persons used to sleep 18 every night in the Samaj Kalyan Hall and if any relative visited PW-1 Deoram Jadhav, on account of paucity of place, the relative also used to sleep in the hall. 12] In addition to the above witnesses, the prosecution has examined PW.4 Shreedhar Pawar. This witness has stated that the accused persons were working with PW-2. Eknath Rane and they used to sleep in the Samaj Kalyan Hall. On 5.3.2003 at about 8.30 P.M. he had gone to the house of PW.1 Deoram. Thereafter Manohar Gaikwad came to the house of Deoram. After having dinner in the house of Deoram, Manohar, Deepak and the accused persons went to sleep in the hall. This witness slept in the open space outside the hall. Shreedhar has stated that persons who slept inside the hall locked the shutter from inside. At about 2 A.M. or so, he saw the accused persons coming outside the hall after opening the shutter. He thought that they must have gone for urination. Therefore, he went to sleep again. At 5.30 A.M. he got up on hearing the cries of wife of Deoram. He rushed to the hall and noticed Deepak and 19 Manohar lying in a pool of blood with cut injury on their necks. Thereafter he left the village in order to inform the other relatives. 13] The learned Advocate for the appellants submitted that the evidence of PW-3 Rupali who has mainly been examined on the point of motive cannot be relied upon because her statement was recorded belatedly. The learned Advocate pointed out that the incident has taken place on 6.3.2003, however, the statement of PW-3 Rupali was recorded only on 27.3.2003, i.e. after a gap of 21 days. She submitted that this shows that Rupali is a got-up witness, who has been examined by the prosecution in order to fill up the lacunae. 14] No doubt, the statement of Rupali is recorded on 27.3.2003 but we are of the opinion that this would not affect the credibility of this witness in any manner. Rupali was a young girl of about 19 years. She had come to visit Deoram Jadhav at Mumbai on account of the cataract operation of her grandmother. Rupali was not a resident of Mumbai but she was a resident of village Sav, Tq. 20 Mahad, District Raigad. After the incident, she was disturbed, therefore, on the next day, she proceeded to her native place. She returned to Mumbai on 27.3.2003 as she was called by the police and her statement came to be recorded on 27.3.2003 itself. We find that the prosecution has submitted reasonable and plausible explanation for the delay in recording her statement. We find that her testimony inspires confidence. Her testimony establishes motive for the incident as well as the fact that the accused persons and the deceased persons were the only persons sleeping in the Samaj Kalyan Hall on the night of the incident. It further establishes that on the next day morning Deepak and Manohar were found dead and the accused persons had disappeared. 15] The learned Advocate for the appellants submitted that even as far as PW-4 Shreedhar is concerned, his statement has been recorded belatedly and, therefore, no reliance should be placed on the evidence of this witness. She submitted that the statement of this witness was recorded about 5 to 7 days after the incident. Even 21 assuming that there is some delay in recording the statement of this witness, we find from the evidence of this witness that after the incident, he left the place in order to inform the other relatives. He returned back and immediately thereafter his statement came to be recorded. We find no reason to disbelieve the averment of this witness on this point. On the point of delay in recording statements of witnesses we may also refer to a decision of the Supreme Court in the case of Gunnana Pentayya @ Pentadu and Others .Vrs. State of Andhra Pradesh, 2008 ALL M.R.(Cri.) 254 (S.C.), wherein the Supreme Court relying on an earlier decision of the Supreme Court in State of Uttar Pradesh Vrs. Satish, (2005 AIR SCW 905) has observed that- “ If the point is raised that there was delay in recording the statement of a witness unless the investigating officer is categorically asked as to why there was delay in examination of the witness, the defence cannot take advantage therefrom.” 22 In the present case, no questions have been put to investigating officer in relation to delay, hence, no capital can be made of the fact that statement of witnesses were recorded belatedly. 16] From the evidence on record, we find that there is a sufficient material to show that the accused persons and the deceased persons were the only persons sleeping in the Samaj Kalyan Hall on the night of the incident. From the evidence of the witnesses, we find that it is established that, on the next day morning, Deepak and Manohar were found dead and the accused persons had disappeared. Thus, the prosecution has proved the circumstance that when last seen in the company of the accused the deceased were alive. It is pertinent to note that none of the accused persons have offered any explanation whatsoever as to how Deepak and Manohar who were sleeping in the same hall with them sustained injuries and died. 17] Section 106 of the Evidence Act provides that when any 23 fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Thus, if a person was in the company of the deceased, he must offer an explanation as to how the deceased died. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule when the accused does not throw any