PANDURANG DHONDU BHUWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE four appellants in this group of criminal appeals were original accused Nos. 2, 3, 4, and 5 in Sessions Case No. 28 of 1985 decided by the learned Additional Sessions Judge, Greater Bombay, on 8-4-1988. It was alleged that the present appellants, alongwith original accused No. 1, had committed an act of dacoity with murder on 7-10-1984 at flat No. 18, B/2 situate on the 18th floor of Woodlands buildings, Peddar Road, Bombay. It was alleged by the prosecution that five accused were instrumental in tying up, gagging and ultimately committing the murder of a sole inmate of the flat one Veerchand Dhanji Tajani at about 4 p. m. on the afternoon on that day. It was further alleged that after committing the aforesaid murder, the accused had ransacked the flat and that accused Nos. 2 to 5 had hurriedly left the building; whereas accused No. 1 was found in a tied condition near the entrance of the flat. According to the prosecution, one Dr. Shroff, who is a neighbour, had noticed original accused No. 1, who was a servant employed by Tajani, in a tied condition near the entrance of the flat and that he had informed the liftman, Suresh Mohite (P. W. 4), to bring this fact to the notice of the Security Officer. When Suresh Mohite informed the Security Officer. Bali (P. W. 1), he immediately came up and on entering the flat of Veerchand Tajani found him in tied condition on the bed. Since Veerchand Tajani was already dead, Bali lodged a complaint with the Police, who immediately came there and commenced their investigations. It is alleged that accused No. 1 was arrested on the same night and that the Police thereafter went in search of original accused Nos. 2 to 5, who are the present appellants, at their respective villages. The prosecution alleges that the four accused came to be arrested in quick succession and that a relatively large amount of property in the form of gold, jewellery and currency notes, etc. , was earlier discovered at their instance or recovered by the Police in the course of the investigations. The prosecution further alleges that the sister-in-law of the deceased and her son were shown the property that was recovered from accused Nos. 2 to 5 and that a greater part of this property, which was in the form of jewellery, has been identified by them. Ultimately, on completion of the investigations, accused Nos. 1 to 5 were put on trial. The learned Additional Sessions Judge, Greater Bombay, at the conclusion of the trial was of the view that there was no evidence against accused No. 1 and, consequently, acquitted him. As far as accused Nos. 2 to 5 are concerned, they were convicted of the offence of robbery punishable under section 392 read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. Accused Nos. 2 to 5 were further convicted of the offence punishable under section 302 read with section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life, the respective sentences to run concurrently. As regards the alternative charge under section 411 of the Indian Penal Code against accused Nos. 2 to 5, in view of the aforesaid conviction, the learned trial Judge dropped this particular charge.

(2.) THIS is essentially a case of circumstantial evidence in so far as admittedly there is no eye-witness to the incident. The evidence adduced by the prosecution falls under certain broad heads, the first of them being the evidence of certain witnesses on the basis of which the prosecution seeks to establish the presence of the present accused at the scene of offence. Thereafter there is the evidence relating to the discovery, recovery and seizure of the property by the Police and the simultaneous arrest of accused Nos. 2 to 5 from their respective native places, all of which has taken place in quick succession in the immediate days following the incident. Thereafter the prosecution has sought to rely also on the fingerprint evidence, particularly that of one of the fingerprints which is attributed to accused No. 2 and which, according to the prosecution, was found on a bottle in the flat of the deceased. The next head of evidence on which the prosecution relies in the identity of the jewellery and the property by the sister-in-law of the deceased, Mrs. Tajani, her son and one Zhaveri (P. W. 24), who is an approved valuer. Lastly, there is the evidence of the respective Police Officers who is an approved valuer. Lastly, there is the evidence of the respective Police Officers who have recounted the manner in which the investigation was conducted, the manner in which the accused were traced and arrested. They have deposed about the manner in which the property was retrieved and the other supportive evidence was gathered. It will be essential in the present case, in keeping with the well set law relating to circumstantial evidence, that this Court will have to examine each of the circumstances alleged against the accused and will have to come to the conclusion that the chain of circumstances, which consists of several links, indicates that every link has been properly established and that the chain of circumstances lead to only one irresistible conclusion which points to the guilt of the accused and to nothing else. This is all the more necessary because the accused in their defence have neither admitted their presence nor have they admitted any recovery of property at their instance. They have taken up a defence of total denial. In this view of the matter, the prosecution case will have to be established on its dependent footing in so far as the accused have admitted nothing.

(3.) AS far as the first head of evidence is concerned, the liftman, Suresh Mohite (P. W. 4) has deposed about what had happened on that afternoon. He states that the car lights of a vehicle belonging to one Mr. Apte, who resides on the 24th floor of that building, were found to be on and he was instructed to go up to the flat on the 24th floor and to inform Mr. Apte of this fact. He gives the time as 4 p. m. in the afternoon and states that he had gone to the flat at the instance of Bali (P. W. 1), the Security Officer, and that he conveyed the message at Mr. Aptes, flat on the 24th floor. Thereafter he pressed the lift button and got into the lift when it came to the 24th floor. He states that on the way down, the lift automatically stopped at the 19th floor and four young persons boarded the lift, out of whom one was carrying a bag. He specially states that these persons appeared to be frightened which is why his attention was probably specially drawn towards these persons and came to be focused on them to the extent that even one week later at the Police Station he has identified accused Nos. 2 to 5. Another incident occurred immediately thereafter, namely, that when the liftman came to the 18th floor, Dr. Shroff told Suresh Mohite (P. W. 4) that the servant of Mr. Tajani was lying in a tied condition outside the flat and that he should call the Security Officer. This was something unusual and out of the ordinary pattern and it is in all probability this circumstances of what transpired thereafter which made Suresh Mohite recall the fact that he had seen the four persons boarding the lift and leaving the building at that time and, furthermore, that their faces had got registered in his memory because of the fact that they appeared to be frightened. Suresh Mohite (P. W. 4) thereafter informed Bali (P. W. 1), who, in turn, came to the flat and discovered the inmate of the flat, Mr. Tejani, in a dead condition. Obviously news must have spread all around the building particularly when the Police were immediately called in and the most pertinent question which the liftman and the security staff must have been asked by every body, including the Police, was with regard to who were the persons seen entering and leaving the building around that time. The evidence of this witness has been seriously assailed by Mr. Kadam and Mr. Talekar, learned Counsel appearing on behalf of the appellants, in so far as they contend that Suresh Mohite was a liftman; that he had spent a very short time in the lift and that there was no special reason at all for him to have noticed or remembered the identity of the four persons. The second head of criticism is that even if Suresh Mohite had seen these persons that there was nothing exceptional about them and, furthermore, that no identification parade was held and, therefore, that the Court should discard his evidence, not on the ground that he is a liar but that it is inconsequential. Unfortunately, the matter does not rest there because, as pointed out earlier, Suresh Mohite has identified the four accused on the 19th October, 1984 when his statement was recorded by the Police and when these accused, along with other persons, were in the Police Station. He has also identified the accused in the Court. It is true that there is a minor discrepancy in his evidence in so far as he has stated that it was accused No. 4 who was carrying the bag in the course of his evidence; whereas the defence has brought it on record that he had told the Police that accused No. 3 was the person carrying the bag. This, in our opinion, is a very minor and insignificant infirmity and there is nothing that the defence has brought on record that can seriously assail the evidence of this witness. The incident has taken place in the day time. The accused has boarded the lift on the 19th floor that was close by to the place where the incident took place and an unusual incident had also occurred immediately thereafter when Suresh Mohite (P. W. 4) was informed about accused No. 1 being in a tied condition. A cumulative effect of these factors does lead us to believe that if the memory of this witness were such that he could point out the four accused not only to the Police but also in the course of the trial that his evidence on the point of identification and on the all important aspect of establishing the presence of the accused in the building at that time will have to be accepted.