Criminal Appeal No. 110 of 1998,Criminal Appeal No. 144 of 1998,Criminal Appeal No. 307 of 1998,Criminal Appeal No. 308 of 1998

28th March, 2012

Petitioner Counsel: Mr. R.M. DESHMUKH
Respondent Counsel: Mrs. V.A. SHINDE

Cases Cited:
Emperor Vs. Mayadhar Pothal, AIR 1939 Patna 577 [Para 19]
Ramprashad Makundram Rajput Vs. The Crown, AIR (36) 1949 Nagpur 277 [Para 19]
Sundarlal Vs. The State of M.P., AIR1954 SC 28 [Para 19]
The state Vs. Mohanlal and Anr., AIR 1958 Rajasthan 338 (Vol. 45, C. 112) [Para 19]
Lachhman Ram etc. Vs. State of Orissa, AIR 1985 SC 486 [Para 19]
Limbaji Vs. State of Maharashtra, 2002 ALL MR (Cri) 923 (S.C.)=2001 (10) SCC 340 [Para 19]
Darshan Singh Vs. State of Punjab, 2010 ALL MR (Cri) 622 (S.C.) [Para 19]
Sujit Gulab Sohatre & Ors. Vs. State of Maharashtra, 1996(3) ALL MR 439=1997 (2) Mh.L.J. 142 [Para 19]
Surinder Pal Jain Vs. Delhi Administration, AIR 1993 SC 1723 [Para 19]
State of Maharashtra Vs. Bharat Rambhau Sirsat & Ors., 2006 ALL MR (Cri) 826 [Para 19]
Jackaran Singh Vs. State of Punjab, AIR 1995 SC 2345 [Para 19]
Bharat Fakira Dhiwar Vs. State of Maharashtra, 1998 (1) Mh.L.J. 392 [Para 19]
Kashmira Singh Vs. The State of M.P., AIR 1952 SC 159 [Para 19]
Balwinder Singh Vs. State Punjab, AIR 1996 SC 607 [Para 19]
Babu Magbul Shaikh Vs. State of Maharashtra, 1993 (2) Mh.L.J. 1118 [Para 19]
Kali Ram Vs. State of H.P., AIR 1973 SC 2773 [Para 19]
Shankarala Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765 (1) [Para 19]
Hanuman Govind Nargundkar and anr. Vs. State of M.P., AIR 1952 SC 343 (1) [Para 19]
Palvinder Kaur Vs. The State of Punjab, AIR 1952 SC 354 [Para 19]
Jaharlal Das Vs. State of Orissa, AIR 1991 SC 1388 [Para 19]

JUDGMENT

T. V. NALAWADE, J. :- All the appeals are filed against the judgment and order of Sessions Case No. 76/1995, which was pending in the Court of Sessions Judge, Dhule. Criminal Appeal No. 110/1998 and 144/1998 are filed by the accused Nos. 2 to 4 against the conviction given to them. Accused Yogesh was convicted and sentenced for offence punishable under section 302 of Indian Penal Code ("I.P.C." for short). He is now dead. The remaining two appeals are filed by the State as accused Nos. 1, 3 and 4 are acquitted of the offence of murder. Both the sides are heard.

2. In short, the case of the prosecution can be given as follows :-

The deceased Madanlal Gotecha and his wife Gitadevi were parents of complainant Rekha Tiwari. Rekha Tiwari lives with her husband in Mumbai. The deceased were living on the second floor of the house of one Agarwal in Dhule City on rent basis. Accused No. 1 is a step brother of Rekha. Accused No. 2 was a son of accused No. 1 and accused No. 3 is also son of accused No. 1. Accused No. 4 is the wife of accused No. 1. The accused persons were living in a separate rented house in Dhule city. The accused were running one hotel in Dhule.

3. The deceased had stopped working due to old age. They had sold their property from Rajasthan and they had deposited the sale proceeds in the bank. The interest accruing on this amount was the only source of income for livelihood to the deceased. Rekha used to visit Dhule to see her parents. She knew that her mother was having gold ornaments like gold neckless of 3 tola, gold ear top having red stones, one gold nose ring. These ornaments were used to be on the person of Gitadevi. Accused No. 1 was demanding money from the deceased. He had demanded money through complainant Rekha also. He had said that he would take care and maintain the deceased, if the amount of Rs. 50,000/- is given to him. He had grievance that nothing was given to him by the deceased and everything was given by them to Rekha. The deceased were not sure about accused No. 1 and so they refused to give any amount to accused No. 1.

4. In the month of February 1995, accused No. 1 visited the house of Rekha and he was there for about 8-10 hours. When accused No. 1 left the house, Rekha noticed that her ornaments like four gold bangles, a ring of nose of gold and also the cash amount of Rs. 1,000/- were missing. She had suspicion as against accused No. 1 that accused No. 1 committed theft of these articles during his short stay. She informed about this suspicion to her parents and in turn, the parents asked some neighbours and relatives to make inquiry with the family of accused No. 1. After few days of the visit of accused No. 1 to Mumbai, Rekha went to Dhule, on 19.2.1995. She stayed there till 28.2.1995. During this stay, she visited the house of accused and when the talk with regard to aforesaid articles was opened, there was quarrel between Rekha and Gitadevi on one side and accused Nos. 3 and 4 on the other. During the quarrel, accused No. 3 gave threat to Rekha and her mother as they had taken suspicion against his father.

5. Rekha left for Mumbai at about 8.30 p.m. on 28.2.1995 and both the deceased had reached her up to railway station, Dhule. Thus, Rekha was in the company of deceased till 8.30 p.m. on that day. Sharad Gavali, milk vendor, used to supply milk to the family of deceased every day at about 8 a.m. He had supplied the milk on 28.2.1995. On the next morning, when he went to the house of the deceased at about 8.00 a.m., he noticed that the door of the staircase leading to the floor of the house of the deceased was in locked condition. On the subsequent morning also he noticed that the door was still in locked condition. He informed a lady by name Badimaa, who was living on the ground floor of building, about this condition of the house.

6. On 2.3.1995 at about 6.00 p.m. some persons of the locality of the deceased contacted police on phone and they expressed suspicion that Madanlal and his wife were probably dead, though their house was seen in locked condition. Police of City Police Station, Dhule went to the spot to ascertain the truth. In presence of panchas the lock of the door leading to the floor was broken and similarly the lock which was put on the house itself was also broken. The dead body of Madanlal and his wife were lying in two rooms of this floor. There were several injuries on the dead body and there was blood everywhere. The articles were seen in scattered condition. There were some articles like empty pouch of Gutkha, burnt cigarettes etc. One braslet was also found lying near the dead body in one room. Handkerchief, napkin and bunch of keys were also found in one room in suspicious condition. Photographs of this incident were taken and the panchanama of spot was drawn by the police.

7. Police called dog squad with dog handler. Smell of suspicious articles was given to the dog. The dog lead to accused No. 1, who was standing in the crowd which had gathered in front of the building. The panchanama of this incident was also prepared by police.

8. The inquest panchanamas were prepared and both the dead bodies were referred for P.M. examination. The doctor, who conducted the P.M. examination, gave opinion that both Madanlal and his wife died homicidal death.

9. On 3.3.1995 Rekha reached Dhule after learning about the incident. After learning about the particulars of the spot etc. she gave report to police and in the report, she gave the names of accused and details of the incident of theft which had taken place in her house from Mumbai. However, she did not express direct suspicion on appellants/accused in respect of murder of her parents. She informed that the aforesaid ornaments, which she used to see on the person of her mother, were not present on the dead body. On the basis of this report, the Crime at Cr. No. 71/95 was registered in City Police Station, Dhule. Rekha then collected the keys of the house from the police and she checked the other articles so as to ascertain, whether other articles were missing. Her supplementary statement came to be recorded in respect of other missing articles.

10. During the course of investigation, accused Nos. 1 to 4 came to be arrested. The evidence became available mainly as against accused No. 2 Yogesh. He gave statement to the police and on the basis of statement, weapon dagger came to be recovered. Blood stained clothes of Yogesh came to be recovered. One napkin having blood stains which was concealed by Yogesh came to be recovered. It transpired during investigation that the braslet which was lying on the spot belonged to Yogesh.

11. During the course of investigation, accused No. 3 gave statement to police that the aforesaid stolen ornaments of deceased were kept by them with one lady Indubai Badgujar, resident of Dhule. The accused took police to said lady and the said lady produced ornaments like two bangles (Patlees) of gold, one gold ring on which name Gitabai was inscribed, one neckless of gold and one nose ring of gold. They were as per the description given by Rekha. Sangeeta, daughter of Indubai, had prepared the list of these ornaments when the ornaments were kept by accused Nos. 3 and 4 in the custody of Indubai on 2.3.1995. The statements of these ladies also came to be recorded. These ornaments were shown to Rekha and she identified that ornaments as that of her deceased mother. Her one more supplementary statement came to be recorded. Some articles having blood stains which were recovered from the accused and the articles taken over during the investigation came to be sent to the C.A. Office. The P.M. reports came to be collected and the chargesheet came to be filed for the offences punishable under section 302, 392, 397, 411, 201, 120-B and 34 of I.P.C. All the accused denied the charges.

12. Prosecution examined in all 21 witnesses. The defence of total denial was taken by the accused. Accused Nos. 3 and 4, however, have contended that the aforesaid ornaments recovered at the instance of accused No. 3 from Indubai belonged to accused No. 4 and her family. The Trial Court has believed the evidence which was mostly against the accused No. 2 - Yogesh and he came to be convicted and sentenced for the offence punishable under sections 302, 392, 397 and also 201 of I.P.C. Accused Nos. 3 and 4 came to be convicted and sentenced for offence punishable under section 201 r/w. 34 of I.P.C. Accused No. 1 came to be acquitted of all the offences.

13. As the accused No. 2 Yogesh is dead and as most of the evidence given as against this accused is collected under section 27 of the Evidence Act, it need not be considered. The evidence as against accused No. 3 for the offence of murder is also circumstantial in nature. The evidence is given by Rekha (PW 1) that there was a quarrel and during quarrel threat was given by accused No. 3. The other circumstantial piece of evidence is recovery of stolen articles under section 27 of the Evidence Act at the instance of accused No. 3. There is also the evidence as against accused No. 4, as there is evidence of Indubai and her daughter Sangeeta. As against accused No. 1 only the evidence on motive is given that he used to demand money and he was feeling aggrieved as nothing was given to him. Though the Police Officer has given evidence on dog tracking, this evidence is not convincing in nature. The evidence shows that when inquest panchanamas were prepared, accused No. 1 was present near the dead bodies. After preparation of inquest panchanama, the dog squad was called. There is no supporting evidence in this regard. So the question arises, as to whether, only on the basis of motive and recovery of stolen ornaments at the instance of accused Nos. 3 and 4, they can be convicted for the offences punishable under section 302 and also 392 r/w. 397 of I.P.C. This Court holds the evidence as against accused No. 1 is not at all sufficient to draw any inference and so it is not discussed in detail.

14. Rekha (PW 1) had informed to police on 3.9.1995 itself that the ornaments which her deceased mother used to keep on person, were not present on the dead body. The description of the ornaments was also given. Substantial evidence is given on this fact by Rekha.

15. Panch witness Gopal (PW 7) has given evidence that accused No. 3 gave statement to police on 4.3.1995 in his presence that, he and his mother had kept the ornaments with one lady. Exh. 83, memorandum of statement of accused No. 3 is duly proved. Gopal has deposed that accused No. 3 took police and panchas to Badgujar Plots where the house of Indubai Badgujar is situated. He has deposed that Indubai handed over the ornaments which they had kept with her. He has given evidence that Indubai handed over the ornaments like two bangles (Patlees), one neckless (Poth), one gold ring and one nose ring of gold. The witness has deposed that a chit having a list of these articles of gold was also found kept with these ornaments. The ornaments are Articles 32 to 35 and the articles are identified by the panch witness in the Court. The seizure panchanama at Exh. 84 is consistent with the evidence given by the panch witness. Salunke (PW 21), the Police Inspector, who investigated the case and to whom the aforesaid statement was given by accused No. 3 has given similar evidence. Nothing could be brought on the record to create any doubt in respect of this evidence.

16. Indubai (PW 4) has given evidence that accused No. 3 and 4 were known to her as in the past for many years her family was living in the neighbourhood of the family of accused No. 4. She has deposed that on 2.3.1995 accused Nos. 3 and 4 had come to her and they had requested to keep the aforesaid ornaments in her custody for few days. Indubai has given evidence that they had informed that the ornaments were belonging to Rekha and her mother. She has deposed that her daughter Sangeeta (PW 3) prepared the list of the ornaments and the list was also kept with the ornaments. Sangeeta (PW 3) has given similar evidence and she has admitted that the chit which was recovered along with the ornaments was prepared by her. It is very surprising that accused Nos. 3 and 4 have admitted that they had kept these ornaments with Indubai. They have stated under section 313 of Criminal Procedure Code that there was some dispute in their family and for some time, they had kept the ornaments with Indubai. It was also submitted that the name Gitadevi, appearing on one gold ring in scribed condition was the name of daughter in law of accused No. 4. This defence does not appear to be probable in nature. There is nothing on record to support this defence. They have also taken defence that the ornaments were kept on 23rd February 1995. This defence is also not probable in nature. The statements of these witnesses were recorded by the police and there is substantive evidence of the two witnesses as against accused Nos. 3 and 4 that ornaments were handed over on 2.3.1995. There is no reason to disbelieve these two ladies.

17. For giving evidence on motive, Rekha has given the past history of quarrel. Some witnesses are also examined to show that in February 1995 a quarrel had taken place between Rekha on one side and accused Nos. 3 and 4 on the other. The dispute at that time was different and that quarrel took place due to suspicion expressed by Rekha in respect of her missing ornaments as against accused No. 1. It is not possible to infer that accused No. 1 had admitted before accused Nos. 2 and 3 of his act, though prosecution has given some evidence on the recovery of gold nuget on the basis of statement given under section 27 of Evidence Act by accused No. 1. It can be said that there was question of reputation of family and so the quarrel took place. When there are no other circumstances to corroborate the case of murder as against the accused Nos. 3 and 4, the aforesaid few pieces of circumstantial evidence cannot lead to inference that there was conspiracy amongst the accused No. 1 and his family members and everything was done in furtherance of that conspiracy, including the two murders.

18. The provisions of section 106 and 114 of the Evidence Act show that there is the discretion to the Court to draw inference available under section 114 of the Evidence Act. This Court holds that the only inference that can be drawn as against accused Nos. 3 and 4 is that they were the receivers of the property stolen from the house of the deceased. The act of handing over the custody of ornaments to Indubai is sufficient to prove their dishonesty, but this act was certainly not done with intention to make the evidence disappear. So, this Court holds that section 201 of I.P.C. is not applicable and section 411 of I.P.C. needs to be used as against accused Nos. 3 and 4. This Court has no hesitation to hold that it is not possible to convict the accused Nos. 3 and 4 for the remaining offences.

19. For the State following reported cases were cited.

(i) A.I.R. 1939 Patna 577 [Emperor Vs. Mayadhar Pothal]

(ii) A.I.R. (36) 1949 Nagpur 277 [Ramprashad Makundram Rajput Vs. The Crown]

(iii) A.I.R. 1954 SC 28 [Sundarlal vs. The State of M.P.]

(iv) A.I.R. 1958 Rajasthan 338 (Vol. 45, C. 112) [The state vs. Mohanlal and Anr.]

(v) A.I.R. 1985 SC 486 [Lachhman Ram etc. Vs. State of Orissa]

(vi) 2001 (10) SCC 340 : [2002 ALL MR (Cri) 923 (S.C.)] [Limbaji vs. State of Maharashtra]

For the accused following cases were cited :-

(i) 2010 ALL MR (Cri) 622 (S.C.) [Darshan Singh Vs. State of Punjab]

(ii) 1997 (2) Mh.L.J. 142 : [1996(3) ALL MR 439] [Sujit Gulab Sohatre & Ors. Vs. State of Maharashtra]

(iii) A.I.R. 1993 SC 1723 [Surinder Pal Jain Vs. Delhi Administration]

(iv) 2006 ALL MR (Cri) 826, State of Maharashtra Vs. Bharat Rambhau Sirsat & Ors.

(v) A.I.R. 1995 SC 2345 [Jackaran Singh Vs. State of Punjab]

(vi) 1998 (1) Mh.L.J. 392 [Bharat Fakira Dhiwar Vs. State of Maharashtra]

(vii) A.IR. 1952 SC 159 [Kashmira Singh Vs. The State of M.P.]

(viii) A.I.R. 1996 SC 607 [Balwinder Singh Vs. State f Punjab]

(ix) 1993 (2) Mh.L.J. 1118 [Babu Magbul Shaikh Vs. State of Maharashtra]

(x) A.I.R. 1973 SC 2773 [Kali Ram Vs. State of H.P.]

(xi) A.I.R. 1996 SC 607, [Balwinder Singh Vs. State of Punjab]

(xii) A.I.R. 1981 SC 765 (1) [Shankarala Gyarasilal Dixit Vs. State of Maharashtra]

(xiii) A.I.R. 1952 SC 343 (1) [Hanuman Govind, Nargundkar and anr. Vs. Staet of M.P.]

(xiv) A.I.R. 1952 SC 354 [Palvinder Kaur Vs. The State of Punjab]

(xv) A.I.R. 1991 SC 1388 [Jaharlal Das Vs. State of Orissa]

All these cases are on circumstantial evidence. Facts and circumstances of each and every criminal case are always different and there is the discretion to the Court under section 114 of the Evidence Act to draw inference. All the incriminating circumstances for the offence punishable under section 302 of I.PC. were as against accused Yogesh and he is dead. Considering the existence of the other probability as accused Yogesh was a brother of accused No. 3 and son of accused No. 4, this Court holds that the benefit of other probability needs to be given to the accused Nos. 3 and 4. It is already observed that there is no convincing evidence as against accused No. 1.

20. The Trial Court has sentenced the accused Nos. 3 and 4 with imprisonment for three years. The incident took place in 1995 and we are deciding the appeal in the year 2012. The accused No. 4 has reached the age of 60 years. Accused No. 3 was aged about 22 years at the relevant time. Yogesh was little bit younger to accused No. 3. Due to close relations, there is a possibility that ornaments were handed over to accused Nos. 3 and 4 and they showed their dishonest intention. It cannot be inferred that prior to handing over of the ornaments, they had any such intention. In view of these circumstances and probabilities, this Court holds that imposing sentence of imprisonment for the period undergone would be just and sufficient in this case. Accused No. 3 Girish was behind bars for about 11 months and accused No. 4 Basantibai was behind bars for one and half months. Thus, the appeals filed by the convicted accused need to be partly allowed and only for technical purpose the appeals filed by the State need to be allowed. So the order.

ORDER

1] Criminal appeal Nos.307/98 and 308/98 filed against accused no.1 Rajendraprasad Madanlal Sharma stand dismissed.

2] The appeals as against accused no.3- Girish and accused no.4 - Basantibai are partly allowed. The appeals of these convicted accused are also partly allowed.

3] The judgment and order dated 30/3/1998 passed by the Sessions Judge, Dhule in Sessions Case No.76/1995 convicting appellant - Accused no.3 - Girish Rajendraprasad Sharma and appellant - Accused no.4 - Basantibai Rajendraprasad Sharma for an offence punishable under Section 201 r.w. 34 of I.P.C. and sentencing them to suffer rigorous imprisonment for three years, is quashed and set aside. The appellants Girish and Basantibai are acquitted of the said charge.

4] Accused no.3 - Girish Rajendraprasad Sharma and Accused No. 4 - Basantibai Rajendraprasad Sharma stand convicted for the offence punishable under Section 411 r/w Section 34 of I.P.C.

Accused No.3 - Girish Rajendraprasad Sharma is sentenced to suffer imprisonment for the period already undergone and he is sentenced to pay fine of Rs.2000/- [Rs.Two thousand only]. In default to pay fine, he is to undergo Rigorous imprisonment for 3 months.

Accused No.4 - Basantibai Rajendraprasad Sharma is sentenced to suffer imprisonment for the period already undergone and she is sentenced to pay fine of Rs.5000/- [Rs.Five thousand only]. In default to pay fine, she is to undergo imprisonment for 3 months.

5] Fine amount is to be deposited within one month.

Ordered accordingly.