Anilkumar Chhotelal Yadav & Nagendrakumar Lalkrishor Kanojiya v. State of Maharashtra

1. The Appellants assail the Judgment and Order dated 30th March 2015 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.111 of 2012. By the impugned Judgment and Order, the Appellants are convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (‘IPC’), 1860 and are sentenced to suffer imprisonment for life and to pay a fine of Rs.20,000/- each, in default of which, to undergo imprisonment for a further period of six months. The Appellants are also convicted for the offence punishable under Section 392 read with Section 34 of the IPC for which they are sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- each, in default of which, to undergo imprisonment for the period of three months. Both the sentences are to run concurrently. The period undergone in jail till today is to be set off against the sentence of imprisonment.

2. The case of the prosecution is as follows: 2.[1] The informant, one Kamlesh Dinkarrai Thakkar (PW/1), is the younger brother of the deceased Shankar Thakkar. The deceased was engaged in embroidery business in a workshop no.16-A, Shivprabha Building, Ghatkopar, Mumbai. The deceased used to ordinarily leave his house for work at 10:00 am and return at 11:00 pm. 2.[2] On the fatal day, i.e. on 5th November 2011, the deceased left his house at approximately 12:00 noon to go to the workshop. His wife, Kunjan (PW/2), had gone to her parents’ house at Dombivali. The informant (brother of the deceased) called the deceased on his phone when he failed to return home at night, but his mobile phone was switched off. So, he called his wife who informed him that she had spoken to the deceased at 4:00 pm on his mobile phone. Thereafter, both the informant and Kunjan tried calling the deceased but his mobile phone was switched off. 2.[3] On the following day, when there was still no sign of the deceased, the informant went to his workshop only to find it locked. Once again, the mobile phone of the deceased came as switched off. November 2011, the informant once again went to the workshop at 10:00 am. Again he found it to be locked. He thus, inquired with one Kamal Thakkar (PW/7), owner of a shop adjacent to that of his brother’s, who informed him that the workshop was closed since Saturday, i.e. from 5th November 2011. The informant also inquired with other neighbours without any success of tracing his brother. When he went near the shop, again on 7th November 2011 there was a foul smell emanating from the workshop. The police were informed, who came to the workshop and broke open the lock. Upon opening the shutter of the workshop, the deceased was found lying dead in a pool of blood in his cabin floor with a cable wire tied around his neck and blood was seen having oozed out from his mouth and nose. There was a bleeding injury on the back of his head. Pieces of bricks stained with blood were lying on the floor and one coir rope was lying on the chest of the deceased. A chair was also seen overturned at the spot. 2.[4] Accordingly, FIR came to be registered on the complaint of Kamlesh Thakkar, brother of the deceased. Spot Panchnama and Inquest Panchnama were prepared and the body was sent for postmortem examination. The police seized a computer wire, which was tied around the neck of the dead body, pieces of blood stained bricks and blood stained clothes of the deceased. Blood samples were collected. The samples collected were sent to the Forensic Science Laboratory (‘FSL’) for analysis. Photographs of the scene of the incident were taken. Statements of the witnesses were recorded. Two persons out of four, working with the deceased were missing. These were the Appellants. The Police Inspector of the Ghatkopar Police Station collected the Call Details Record (‘CDR’) of the Appellants. The Appellant-Anilkumar was found to be staying at one lodge in a Lucknow, Uttar Pradesh. He was arrested and an Arrest Panchnama was prepared. Two mobile phones were seized from him under a Seizure Panchnama and he was brought to Mumbai. A pair of keys fitting the lock of the workshop of the deceased was recovered pursuant to the disclosure statement of the Appellant No.2 under Panchnama along with one piece of brown colour cloth stained with blood found at the spot of the incident. A note-book bearing entries of meals taken on credit by both the Appellants from the hotel owner was also seized. 2.[5] The probe revealed that a gold chain, ring, some amount in cash and the mobile phone of the deceased were stolen. The CDR and IMEI Number of the mobile phone of the deceased revealed that the same was being used by the Appellant No.2. He was traced in Gorakhpur, U.P. and was thus, arrested. Thus, both the Appellants were arrested under a Panchnama prepared by PSI Bansode in the presence of the police of the Special Task Force, Lucknow and Gorakhpur, respectively. The deceased’s mobile phone was seized from his possession and the Appellant No.2 was also brought to Mumbai. Pursuant to his disclosure statement, broken gold chain of the deceased was seized from a jeweler and blood stained clothes worn by this Appellant were also seized. They were sent to the FSL. 2.[6] On completion of investigation, charge-sheet was filed in the Court of Metropolitan Magistrate, 49th Court, Vikhroli, Mumbai, who committed the case to the Court of Sessions, Mumbai. 2.[7] Charges were framed on 25th June 2012 against the Appellants for the offences punishable under Sections 392, 302 read with Section 34 of the IPC at Exhibit 7. The charges were altered and framed afresh by the successor Judge on 26th March 2015 at Exhibit

83. The Appellants entered the plea of not guilty and claimed to be tried. 2.[8] In support of their case, the prosecution examined as many as 14 witnesses. The defence did not lead any evidence. The statements of the Appellants under Section 313 of the Cr.P.C. were recorded. The defence of the Appellants was that of total denial, innocence and false implication. The Additional Sessions Judge, Mumbai however, vide the impugned Judgment and Order, convicted the Appellants and sentenced as mentioned in paragraph number 1 above.

3. Mr. Manan Dave, learned counsel appeared for the Appellants and Ms. Sharmila Kaushik, learned APP represented the State.

4. The prosecution’s case is based on circumstantial evidence including the last seen theory. According to the prosecution, Kunjan, the deceased’s wife (PW/2) deposed that she received a call from the deceased at 4:00 pm from his mobile phone and she spoke to him. Her husband informed her that he had received Rs.50,000 from one party. Thereafter, she was not able to talk to him. She tried to contact him on his mobile phone but it was switched off. She also contacted her father-in-law and brother-in-law but they were also unable to reach him. Ultimately, on 7th November 2011, her husband was found dead in workshop. The crucial testimony of this witness was that she spoke to him on the phone on 5th November at 4:00 pm. Thereafter, one Mr. Pravin Jadhav, an employee of Hotel Anuradha (PW/8) who used to serve tea to the employees in the workshop deposed that he went to the deceased’s workshop at 4:00 pm on 5th November and saw the deceased in the workshop. He also served tea to the Appellants in the workshop. The prosecution thus, contends that the deceased and the Appellants were seen together in the workshop at 4:00 pm on the fateful day. Moreover, the prosecution also places reliance on the evidence of PW/7, a printing press owner, having his business opposite to the workshop of the deceased who stated that he saw the Appellants shut down the shutter of the workshop of the deceased at 5:00 pm on the said day. Some jewelry and cash was missing from the shop which was recovered from the jewelry shop of one Kailas Soni (PW/3). Thus, according to the prosecution, the deceased and the Appellants were last seen together in the shop at 4:00 pm on 5th November and thereafter the Appellants were seen closing up the workshop. This establishes that the time gap between the point of time that the Appellants and the deceased were last seen together and the deceased going incommunicado is so small that the possibility of a person any other than the Appellants having committed the crime is almost impossible.

5. The law pertaining to the key principles which guide the Courts to conclude the guilt of an accused in cases solely dependent on circumstantial evidence is well settled. In Sharad Birdhichand Sarda v/s State of Maharashtra[1], the the Supreme Court laid down the five golden principles to establish the guilt of an accused based on circumstantial evidence, which are as follows:- (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between ‘may be proved’ and “must be or should be proved”. 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.

6. The aforesaid principles in the Sharad Sarda’s case (Supra) have been consistently followed till date. In the present matter, the prosecution has based its case on the ‘last seen theory’ as one of the links in the chain of circumstantial evidence. The legal position on this aspect is also well settled. In the case of Karakkattu Muhammed. Basheer v. State of Kerala[2], the Apex Court followed the principles set out in the case of Ramreddy Rajesh Khanna Reddy and Another v. State of A.P. 3. Paragraphs 26 and 27 of the said decision read thus:-

7. Mr. Dave submitted that the Sessions Judge has not appreciated the defence of the Appellants and has erred in relying on the Recovery Panchnama at Exhibits 51 and 67. Further, according to him, in the facts and circumstances of the case and the sections of the law applied, the offences cannot fall under Section 302 and 392 of the IPC at the same time. He also states that the Appellant No.1 was in judicial custody and was not present during the recovery of articles and thus, assails the Panchnama prepared by the police. He thus, states that the prosecution has not proved the case against the Appellants beyond all reasonable doubt and thus, prays that the Appeal may be allowed.

8. Ms. Kaushik, learned APP took us through the testimonies of all the 14 witnesses. She submits that the prosecution has established all incriminating evidence against the Appellants by reliable and cogent evidence. The circumstances so proved by the prosecution forms a chain of events so complete that there can be no other hypothesis other than the guilt of the Appellants. She thus, urges the Court to dismiss the Appeal and confirm the impugned Judgment and Order.

9. We have heard both the counsels and perused the evidence with their assistance. The evidence of Kunjan (PW/2) is clear and establishes that she spoke to her husband on his mobile phone at 4:00 pm on the fatal day. Thereafter, the server in Hotel Anuradha, (PW/8) deposed regarding serving tea to the Appellants inside the workshop of the deceased also at 4:00 pm on the said day. He also deposed to having seen the deceased well and alive and watching TV in the workshop at that time. PW/8 further states that he also found the deceased and the Appellants present in the workshop after sometime when he went to collect empty tea glasses. Thus, the substantial evidence of PW/1 and PW/8 establishes that the deceased and the Appellants were together in the workshop between 4:00 pm and 5:00 pm.

10. Mr. Kamal Thakkar, (PW/7) also deposed as to the Appellants closing the shutters of the workshop at about 5:00 pm. His printing press is opposite to the workshop of the deceased. He stated that he saw the Appellants shutting the shutters of the workshop at 5:00 pm while he was standing outside the press. Thereafter, he affirmed that the shop of the deceased remained closed the following two days. Infact, there is no cross-examination on the aspect of PW/8 serving tea and had last seen the Appellants and the deceased together. Mr. Dave also fairly submitted that even during the trial, the presence of the Appellants in the shop at the relevant time was not seriously disputed by the defence. Thus, the prosecution has clearly established that the deceased and the Appellants were in the workshop from 4:00 pm to 5:00 pm at which point the Appellants were seen shutting the shop and thereafter the deceased could not be contacted by anybody.