Case: Darshan Hiru Shivdasani Vs. The State of Maharashtra

2. In order to effectively deal with the said appeal, it is necessary to reproduce the case of the prosecution.The case of the prosecution is that the complainant Smt. Sonia Hiru Shivdasani lodged a report with Oshiwara Police Station on 5th April, 2008, informing that her brother Darshan Hiru Shivdasani had committed murder of Kumari Payal Kamlesh Ganatra who is his legally wedded and wife whom, he had subsequently divorced, since it was revealed to him that she was having illicit relationship with another man. In the complaint, it was stated that she was residing in Flat No.315, Satpuda Building, Oshiwara Park, Link Road, Jogeshwari (West), Mumbai102 and she was also residing with her parents at Mayur Villa, Flat No.3, near Chandan Cinema, Juhu, Mumbai. She stated that she used to go for sleeping to Flat No.315, Satpuda Building, Jogeshwari, since the said flat belonged to her sister Twinkle and herand they were residing in Dubai since November, 2007. In the complaint, it was stated that she was knowing Payal Ganatra since one and half year and she was married to her brother Darshan Shivdasani. The complainant also stated that she was not informed about the said marriage. However, since last one month the relations of Payal and her brother Darshan were strained on account of fights between them and her brother had come to know that Payal had developed illicit relationship with some other man. It was also stated in the complaint that Payal had sent a notice to her brother in March, 2008 seeking divorce and therefore her brother was annoyed with her and in the same month they were divorced. It was stated in the complaint that on 4th April, 2008 at about 1:30 a.m. she had locked the flat in Satpuda building and left her for residential place and thereafter she had proceeded to Mahabaleshwar. The complainant had further stated that on 5th April, 2008 at around 6:00 p.m. when she returned to the said flat in Satpuda building and opened the door with her key, she noticed blood stains all over the hall and when she entered the bed room she saw that Payal was lying in a pool of blood and her clothes were drenched in blood and one chunri was tightly tied around her neck and she had suffered stab injury under her right breast and on her stomach, which was bleeding.3. Based on the said complaint, an FIR was registered at the Oshiwara Police Station vide C.R. No. 186 of 2008 against Darshan Hiru Shivdasani, the present appellant and the investigating machinery was set into motion. Shri Dattatraya Ganpat Sankhe (Police Inspector) attached to Oshiwara Police Station (PW No.17), visited the place of incident on receipt of a phone call at around 6:30 p.m. When PW 17 reached the spot, the complainant lodged the report which was scribed and registered as FIR and immediately the police personnel were sent in search of accused Darshan as he was specifically named by the complainant in the FIR. The Investigating Officer recorded the statements of witnesses and during investigation it was revealed to him from the complainant that she received the SMS from her brother Darshan and a team headed by PSI Kadam (PW No.15) was deputed to apprehend him at Pune. The accused was produced in Oshiwara Police Station on 9th April, 2008 and he was interrogated and arrested. The accused was produced before the Court and Investigating Officer secured police custody remand (PCR) of the accused and the further investigation was carried out. It is the case of the prosecution that after commission of the crime, the accused had concealed himself in a hotel at Kolhapur in the name of Raju Mathur and reported his address as Mira Road. The case of the prosecution is that the accused stayed in the hotel for two days and thereafter he transited to hotel Rajashri in Pimpri, Pune and again concealed his identity and recorded his name as Rahul Sharma in the hotel register. On the next day, while he was staying in the said hotel, a telephone call was received in the hotel from a woman informing hotel Manager that the customer who was booked in room No. 208 is ailing and he should be taken to the hospital and when the Manager (PW 12) Shri Ashok Bhere, entered the room, he saw a customer incondition, and heavily drunk he carried the said customer to Yashwantrao Chavan Hospital, Pimpri and admitted him. In the night, the Investigating team arrived at the said hotel and the Manager led the Investigating team to Yashwantrao Chavan Hospital. Thereafter, the police officers returned to the hotel and carried out a panchnama and recovered certain articles from the Room and they also recovered the log book from the said hotel.4. During the course of investigation, the report from the Chemical Analyser was obtained. The treatment papers of the accused persons were also received from the hospital. On completion of the investigation thewas filed in the competent Court and the Court of Sessions Judge for Greater Mumbai was entrusted with the trial of the offence punishable under Section 302 of the Indian Penal Code in Sessions Case No. 447 of 2008 against the accused/present appellant.5. The accused pleaded not guilty for commission of the offence with which he was charged and he claimed to be tried.6. On examination of the case of the prosecution, the learned Sessions Judge afforded an opportunity to the prosecution to bring home the guilt of the accused. The prosecution examined 18 witnesses. The statement of the accused under Section 313 of the Criminal Procedure Code (Cr.P.C.) was also recorded. The learned Additional Sessions Judge on examination of the witnesses and the material produced by the prosecution and on hearing arguments of the prosecution as well as the accused, delivered the judgment on 30th March, 2010 thereby convicting the accused under Section 302 of the IPC and sentenced him to suffer life imprisonment and to pay fine oflearned Additional Sessions Judge on the basis of the evidence produced before him arrived at the conclusion that the evidence which was brought by the prosecution against the accused is very specific and clinching in nature and irresistibly leads to the conclusion that the accused alone is guilty of commission of murder of the deceased Payal. The learned Additional Sessions Judge also concluded that each of the circumstance established by the prosecution indicates mens rea as each act of the accused was well planned and executed in a thoughtful manner. According to the learned Sessions Judge, the chain of circumstance was complete and it established the accused to be the person who killed Payal by a sharp edged, deadly weapon. By considering the case in its entirety, the Additional Sessions Judge convicted the appellant by the impugned judgment and being aggrieved by the said judgment the present appeal has been preferred on various grounds.7. It is urged in the appeal that the learned Trial Judge did not appreciate the material on record properly and the very link with respect to identity of the appellant was missing and the learned Judge has erred in appreciating the case which according to the prosecution is based on circumstantial evidence. The appeal is also filed on the ground that no motive has been proved by the prosecution for committing the murder of the deceased at the hands of the appellant and in the absence of test identification parade to identify the accused, whole case of the prosecution must fail. The appellant in the appeal has also alleged that the recovery of weapon of assault has not been sufficiently proved and the learned trial Judge has relied upon uncorroborated version of hostile witnesses and hence the conviction cannot be sustained.

Reasoning:
20. It is not in dispute that death of Payal is homicidal and the place where her dead body was found in Flat No. 315, Satpuda Building, Oshiwara Park. The prosecution did not have any direct evidence in the form of ocular evidence as to the said act of killing the deceased. However, the prosecution relies on the circumstantial evidence and based its case on the theory of last seen. The deceased was last seen in the company of the accused in the afternoon hours on the date of incident. PW No.18 Omprakash who is the watchman of the Satpuda building has deposed that the appellant had been to the flat at around 1:00 p.m. and had obtained the key of the said flat from the maid servant. The appellant was known to the said witness and he returned to the said flat with his wife, who was identified by the said witness as deceased Payal. The prosecution has proved that deceased accompanied the appellant to the said building after 1:00 p.m. and she was not seen alive thereafter. The prosecution relies upon the said circumstance of the deceased being last seen in the company of the appellant at a point of time which is very proximate to the point when her dead body was found at around 6:00 p.m. by the complainant. The prosecution has also relied upon the circumstance that the body was lying at a place where she had accompanied the appellant and it is only the appellant who had an access to the said flat along with the complainants sister who had come to the said flat but she did not return to the said flat till 6:00 p.m. after her departure from the said flat in the night of the earlier date. Thus, the prosecution has clinchingly established that it was the appellant who had an access to the flat and had an opportunity to cause death of the deceased in the said flat.21. The prosecution has based its case on circumstantial evidence and by cogent evidence brought on record has established the circumstances which are consistent with the hypothesis regarding guilt of the present appellant. The circumstances so established by the prosecution exclude every other hypothesis except the one that the deceased was killed by the appellant. The prosecution has established the chain of circumstance brought on record by the prosecution which do not lead to any other inference than the guilt of the accused. The evidence brought on record by the prosecution in relation to last seen together is completely established to show that the time gap when the deceased was last seen in the company of the accused and when she was found dead was so small but that the only inference that can be drawn is that it was the appellant who was responsible for death of deceased. In the present case, it is to be noted that the circumstances are sufficient to conclusively point out to the commission of murder of the deceased by the appellant and while dealing with the factum of last seen together it is well established by the prosecution that a close proximity exists between the event of the appellant last seen in the company of the deceased. The Honble Apex Court by applying the principles laid down by the Apex Court in the case of Hanumant Vs. State of Madhya Pradesh (AIR 1952 SC 343  ) laid down the principle which should be a guiding one in such case and the said principle is consistently following in the judicial hierarchy and still holds good."It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendencythey should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.A close analysis of the decius would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao BobadeAnr. v. State of Maharashtra, (1973) 2 SCC 793  ; where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions."(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.22. The Apex Court in the case of Sharad Birdichand Sarda Vs State of Maharashtra, (1984 4 SCC 116  ) has laid down the five golden principles which the number of cases based on circumstantial evidence. It would be appropriate to enumerate the said principles below. It held that the onus is on the prosecution to prove that the chain is complete and Apex Court laid down the conditions precedent, before conviction based on it to be fully established.1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;3. The circumstances should be of a conclusive nature and tendency;4. They should exclude every possible hypothesis except the one to be proved; and5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.23. Applying the said principle the Apex Court in a recent judgment in the case of Kishor Vs. State of Maharashtra, 2017 (3) SCC p. 716 has observed that last seen together circumstance does not by itself necessarily lead to inference that it was accused who committed crime but there must be something more to connect the accused with the crime and to point out the guilt of the accused and none else. As aforesaid, in the present case there is clinching evidence to point towards the involvement of the appellant in the commission of the crime.24. In the present case, the prosecution has led clinching evidence to point out the involvement of the appellant in the commission of the crime and we see no reason to interfere with the findings recorded by learned Sessions Judge. The prosecution has established the guilt of the appellant by leading cogent and trustworthy evidence. Considering the evidence led by the prosecution in the form of the subsequent conduct of the appellant, where he attempted to evade the arrest, is also a circumstance to complete the chain of events which lead to the guilt of the accused. Though we are aware of the position in law in relation to abscondance of a accused and that it by itself may not be a positive circumstance since an innocent person would also run away from the course of justice fearing the consequences but when such circumstance is coupled with other circumstances it assumes significance. The appellant has not only absconded to evade arrest but also concealed his identity and took shelter in the hotels far away from the place of the incident outside Bombay in fake name to avoid arrest. The appellant was unmistakenly traced as a customer who was admitted to the private hospital Yashwantrao Chavan Hospital, Pimpri. The learned counsel for the appellant has vehemently argued that test identification parade was not carried out to establish the identity of the accused. However, in our view, the court identification itself is good identification in the eyes of law and prosecution witnesses have identified the accused in the dock as the same person who had been to the hotel in Kolhapur and Pimpri and established the circumstance that it was the accused who had stayed in the said hotel by concealing his identity.25. The identity of the appellant is well established and merely because no test identification parade is conducted is no reason to break the chain against the appellant. In case of circumstantial evidence, the motive assumes great significance and importance and in the absence of such motive the Court would be put on guard and caution to scrutinize each piece of evidence very closely in order to ensure that mere suspicion or conjecture did not take place of proof. In the present case, the prosecution has also brought on record the motive of the appellant in causing the death of the deceased as they shared an estranged relationship and the accused/appellant was suspecting that the deceased was carrying illicit relationship after the divorce and this motive according to us was sufficient to commit the crime in the scenario of modern urban life, specifically when the ego of the appellant is hurt in discovering that the deceased who was once upon a time his wife, is leading a happy life and carrying illicit relationship with the PW No.2. Thus, the prosecution has also brought on record the motive in causing the death of the deceased.