Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2316 (BOM)

Shaligram v. State of Maharashtra

2014-11-20

A.K.MENON, V.K.TAHILRAMANI

body2014
JUDGMENT : V.K. Tahilramani, J. 1. The appellant original accused No. 1 has preferred this appeal against the judgment and order dated 16.6.2012 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No. 108 of 2009. By the said judgment and order the learned Sessions Judge convicted and sentenced the appellant under section 302, 397 and 449 of IPC. For the offence under section 302 the appellant was sentenced to imprisonment for life and fine of Rs. 1,000/- in default RI for six months. For the offence under section 397 of IPC the appellant was sentenced to imprisonment for seven years and fine of Rs. 1,000/- in default RI for six months and for the offence under section 449 of IPC the appellant was sentenced to imprisonment for ten years and fine of Rs. 1,000/- in default RI for six months. The prosecution case briefly stated is as under: "Deceased in present case is Saida. Saida was maternal aunt of PW 4 Mohd. Hussain Abdula Khan and she was sister of mother-in-law of P. W.I Noorjahan. Saida was also aunt of PW 2 Sadia. Saida was residing in Room No. 9 16, Shamim Bano Chawl, Joseph Patel compound, Near NTCC school, Malwani, Malad (W), Mumbai. Saida was about 65 years old. She was residing alone in the said room. It is the prosecution case that the appellant and co-accused were known to Saida and used to visit house of Saida. On 21.5.2009 there was birthday of son of PW 2 Sadia, therefore. deceased Saida had gone to the house of Sadia at Mira Road. On that day Sadia gave Saida Rs. 10,000/- as it was due to Saida from her. Saida wrapped that amount in one handkerchief and kept it in green colored plastic bag. Thereafter Saida went to house of P.W.I Noorjahan. At that time Noorjahan saw that Saida had Rs. 10,000/- with her which was tied in handkerchief. Thereafter at about 9.30 pm Saida, PW 1 Noorjahan and other relatives had gone to attend a marriage at Malwani. They returned back at about 1.15 am. Noorjahan and others left Saida near her house. On 22.5.2009 dead body of Saida was found in her house with injuries on her person. The articles were seen scattered and it was noticed that robbery had taken place in the house of Saida. Mohd. They returned back at about 1.15 am. Noorjahan and others left Saida near her house. On 22.5.2009 dead body of Saida was found in her house with injuries on her person. The articles were seen scattered and it was noticed that robbery had taken place in the house of Saida. Mohd. Hussain Khan, nephew of deceased Saida lodged FIR. Thereafter investigation commenced. The appellant came to be arrested. The articles belonging to the deceased and blood stained clothes of the appellant were recovered at the instance of the appellant. After completion of investigation, charge-sheet came to be filed. In due course the case was committed to the Court of Sessions." 2. Charge came to be framed against appellant original accused No. 1 and another accused i.e. original accused No. 2 under section 449, 397 and 302 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted original accused No. 2 of all charges. However, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above, hence this appeal. 3. We have heard the learned Advocate for the Appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the prosecution has proved the charges against the appellant beyond reasonable doubt. 4. The evidence of PW 4 Mohd. Hussain Khan shows that the appellant was known to deceased Saida. The appellant used to visit house of deceased and often had tea with her and watched TV. in the house of Saida. Learned A.P.P. pointed out that in such case the appellant would know that Saida possessed large number of ornaments and hence knowing that Saida was residing all alone he chose to commit robbery in her house and while doing so he committed murder of Saida. 5. The prosecution has relied on evidence of PW 6 Khalil Ahmed Shaikh to show that the appellant was seen near the house of deceased on the night of the incident. 5. The prosecution has relied on evidence of PW 6 Khalil Ahmed Shaikh to show that the appellant was seen near the house of deceased on the night of the incident. PW 6 Khalil Shaikh has stated that on the night of the incident there was programme of marriage of the daughter of Sayyad Anwar in a hall at Malwani. He had gone to attend the said programme. The programme was till 2 am. After 2 am while he was returning home with Aslam on motor bike, he saw the appellant near Joseph compound. Learned A.P.P. pointed out that the deceased was residing in Joseph compound. Thus, evidence on record shows that at odd hours of" the night that is somewhere at about 2.30 am the appellant was seen near the house of the deceased. 6. The second circumstance against the appellant is that the articles of deceased were recovered at his instance. To prove this circumstance the prosecution has relied on the evidence of PW 3 Sabdarali, who is the panch witness to the recovery of ornaments of the deceased at the instance of the appellant. Sabdarali has stated that on 26.5.2009 police called him to act as a panch. Sabdarali noticed that the appellant was in custody of police. The appellant made a statement before him. Thereafter the appellant led police and panchas to one house and from the said house the appellant took out two bags which were kept behind some boxes. There were jewellery articles and some other articles in those two bags. Out of articles recovered at the instance of appellants PW 3 Sadia, who is niece of deceased has identified necklace Article "A", bangles Article "B'" and two ear ornaments Article "C" as belonging to her aunt Saida. PW 12 Surendra Jain, who is a jeweller has stated that Saida was his customer and he knew Saida. Saida had purchased pendent from his shop and at that time he provided one box and one green coloured bag to her. He identified Article-8 as the box given by him to Saida. !t is pertinent to note that this box was recovered at the instance of the appellant. 7. The evidence on record shows that jewellery of the deceased was recovered at the instance of the appellant. He identified Article-8 as the box given by him to Saida. !t is pertinent to note that this box was recovered at the instance of the appellant. 7. The evidence on record shows that jewellery of the deceased was recovered at the instance of the appellant. The Supreme Court in the case of Gulab Chand v. State of Madhya Pradesh, AIR 1995 SC 1598 upheld the conviction of the accused for murder and robbery only on the circumstance of recovery of articles of the deceased at the instance of the appellant. In the case of Baiju @ Bharosa v. State of Madhya Pradesh, AIR 1978 SC 522 , the Supreme Court held that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well. In the said case, the accused was convicted for murder as well as dacoity. Similar view has been taken by the Supreme Court in the case of Sanjay @ Kaka v. State (N.C.T. of Delhi), 2001 AIR SCW 767. The incident has occurred on the night between 21st and 22nd May 2009 and the recovery has taken place on 26th May, 2009 that is soon after the incident. In the present case, it is seen that the appellant has not furnished any explanation in relation to articles of the deceased which were found in his possession soon after the incident. 8. The next circumstance against the appellant is that the clothes of the appellant which were worn by him at the time of incident came to be recovered at his instance vide panchnama Exhibit-32 and 33 P.W.3 Sabdarali has deposed on this aspect. 9. As stated earlier clothes of the appellant worn by him at the time of incident were recovered at his instance. The clothes were sent to chemical analyser. As per C.A. report Exhibit-25 shirt and pant of the appellant were found stained with human blood. 9. As stated earlier clothes of the appellant worn by him at the time of incident were recovered at his instance. The clothes were sent to chemical analyser. As per C.A. report Exhibit-25 shirt and pant of the appellant were found stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 : [2001 ALL MR (Cri) 764 (S.C.)], wherein it has been observed as under: "In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507 ) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant." 10. On going through the evidence on record we are of the opinion that there is sufficient evidence to connect the appellant with the crime. Thus, we find no merit in the appeal. The appeal is dismissed. 11. We quantify legal fees to be paid by the High Court Legal services committee to the appointed Advocate Mrs. Nasreen S.K. Ayubi at Rs. 5,000/-. Office to communicate this order to the concerned prison Authorities and to the Appellant who is in jail.