w w w . L a w y e r S e r v i c e s . i n



Sunil v/s The State of Maharashtra


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

    Criminal Appeal No. 357 of 2016

    Decided On, 02 July 2019

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE P.N. DESHMUKH & THE HONOURABLE MRS. JUSTICE PUSHPA V. GANEDIWALA

    For the Appellant: L.B. Khargade, Advocate. For the Respondent: M.H. Deshmukh, A.P.P.



Judgment Text

P.N. Deshmukh, J.

1. Challenge in this appeal is to the Judgment of learned Sessions Judge, Nagpur, dt.26.7.2016 passed in Sessions Case No.304 of 2015 whereby the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer life imprisonment and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for six months.

2. The case of prosecution can briefly be stated as follows:

Deceased Ruksana Bano was working as a Security Guard in day time on the Construction site of one Mohd. Ashraf Mohd. Aziz situated at Yashodhara Nagar, Nagpur. While appellant was working in Oxygen Cylinder Company situated near the Construction site. On 19.4.2015, deceased had dinner with PW7 Roshan Parveen Mohd. Ayub Sheikh. The deceased informed her that, as wife of appellant was not in his house, she had also brought meals for him and that the appellant was to come to have night meals in her house. Thereafter, on the following day, dead body of deceased was found at the site which was noticed by PW2 Iqbal Ahamad Khan, Security Supervisor who, therefore, gave information vide his Report (Exh.31) which was recorded by PW12 P.S.I. Suchita Uday Mandare, who was attached to Yashodhara Nagar Police Station and accordingly, she registered Marg No.19 of 2015 and investigated the same, during the course of which she visited the spot, drew Spot Panchanama and also seized bangle pieces under Panchanama (Exh.39). Further investigation was carried out by PW13 A.P.I. Vikrant Ashokrao Sarne, who, on 21st April, 2015, recorded statements of five witnesses and effected arrest of appellant on the same day under Arrest Panchanama (Exh.63) and seized clothes on his person under Seizure Panchanama (Exh.42). On 23rd April, 2015, Memorandum Statement of appellant is recorded vide Exh.43 and in pursuance to same, appellant discovered one coconut string in two pieces from the terrace of his house and seized mobile phone of deceased under Panchanama (Exh.44) from PW8 Sushila Bhalavi. Thereafter, the appellant was referred for his medical examination to verify if he was potent and for collection of his blood sample under Requisition memos (Exh.54 and 55 respectively). Query was made to PW10 Dr. Sachin Giri by forwarding Coconut string under requisition memo (Exh.67), which query was duly replied by the said Medical Officer. Seized muddemal articles were forwarded to Chemical Analyser under requisition memo (Exh.68). During the course of investigation, Attendance Register Sheet of appellant came to be seized under Seizure memo (Exh.72) from PW14 Vinodkumar Vishwanath Pande, who was working in the Company where the appellant was working. On completion of investigation, chargesheet is filed before the learned Judicial Magistrate, First Class, Nagpur. In the course of time, the case was committed to the Sessions Court for trial.

3. Charge (Exh.6) is framed against the appellant for the offence under Section 302 of the Indian Penal Code, which he denied and claimed to be tried. To establish the charge levelled against the appellant, prosecution in all examined 15 witnesses and had commenced its evidence by examining PW1 Sidhartha Chunnilal Gedam, PW7 Roshan Parveen, PW9 Sonu Punjabrao Dongre on the theory of last seen, PW2 Iqbal Ahamad Khan who gave information to police, upon which Marg was registered, PW3 Shahanaz Salim Ansari, Complainant/sister of deceased, PW4 Rambahadur Ratansingh Thakur on Spot Panchanama (Exh.39) and Seizure of articles from spot (Articles A, B and C), PW5 Sheikh Riyaz Ahamad Maifuz Ahamad who has proved Seizure panchanama of clothes of appellant (Exh.42), prepared Memorandum Statement (Exh.43) and effected seizure of mobile under Discovery Panchanama (Exh.44), PW6 Sheikh Afroz Mohd. Mustaq Sheikh on circumstance, PW8 Sushila Ramprasad Bhalavi from whom mobile of deceased came to be seized at the instance of appellant, PW10 Dr. Sachin Giri who had examined the appellant and issued Certificate (Exh.55), PW11 Alka Mohan Gaikwad who has received report (Exh.35) of PW3 Shahnaz/sister of deceased, upon which, she registered crime at Exh.36, PW12 P.S.I. Suchita Mandware, who had, on receiving information from PW2 Iqbal Ahamad Khan, registered A.D. No.19 of 2015, PW13 A.P.I. Vikrant Sarne Investigating Officer, PW14 Vinodkumar Pande who was working in the Company where deceased was working and has proved the Attendance Register Sheet and concluded the evidence on examining PW15 Dr.Harshwardhan Khushalrao Khartade, who has performed autopsy and proved Post Mortem note at Exh.81.

4. Statement of accused under Section 313 of the Code of Criminal Code is recorded. The accused did not examine any witness in support of his defence. On considering the evidence and documents on record, learned trial Judge convicted the appellant as aforesaid. Hence, this appeal.

5. Heard Mr.L.B.Khargade, learned Counsel for the appellant and Ms Mayuri Deshmukh, learned Additional Public Prosecutor for the State. It is submitted that the case of prosecution is based on circumstantial evidence and on the theory of last seen. However, prosecution has failed to establish circumstance which can lead to the only conclusion that the appellant alone is the author of crime. With regard to theory of last seen, it is submitted that the evidence of witnesses relied on by prosecution on the theory of last seen cannot be accepted since the same is not at all convincing and it is contended that, in view of evidence as aforesaid, no charge levelled against the appellant can said to be established as presence of appellant near the spot is natural since he, according to the case of prosecution itself, was working in the Company situated adjoining to the Construction site where the deceased was found dead. It is also contended that, in fact, according to further case of prosecution, on the fateful night, deceased had brought meals for the appellant since his wife was not in his house and as such, their relations were cordial and therefore, no motive can be attributed to the appellant to commit murder of deceased. In the circumstances, it is submitted that as there is no evidence establishing guilt of the appellant, the appeal be allowed.

6. Learned Additional Public Prosecutor, on the other hand, submitted that, from the evidence of witnesses relied on by prosecution on the theory of last seen, it is clearly established that, in the night intervening 19.4.2015 and 20.4.2015, appellant was in the company of deceased after 10.30 p.m., while the dead body was noticed by PW2 Iqbal Ahamad Khan in the morning on the following day and thus, prosecution, in that event, has established fact of appellant being in the company of deceased on the night of incident. It is thus submitted that, in view of provisions of Section 106 of the Indian Evidence Act, burden lies upon the appellant to explain under what circumstances death of Ruksana occurred, which burden has not been satisfactorily rebutted by the appellant. It is, therefore, submitted that, from the evidence of witnesses on the theory of last seen and other evidence as appellant's involvement in the crime is established, the appeal is prayed to be dismissed.

7. In the background of submissions advanced as aforesaid, we have perused the evidence of PW1 Sidhartha Gedam, which would reveal that he is working as a driver in the Oxygen Cylinder Company where the appellant was working and on 19.4.2015, at 11.00 p.m., after having dinner, when he was having walk with his friend PW9 Sonu Dongre, he saw the appellant in the house of deceased. His evidence is very specific of his identifying the appellant to whom he was already knowing as working in the same Company and had seen them together in the source of light of a bulb, which was lit in the hut. He further states that, in the morning, when he was proceeding out on work, he saw crowd in front of house of deceased where she was found dead.

8. In the cross-examination of PW1 Sidhartha Gedam, it has come on record that his working hours starts at 7.00 a.m. As such, from his evidence it is to be noted that dead body of deceased was found in the morning on 20.4.2015, at 7.00 a.m. Nothing is brought on record to doubt his evidence in his cross-examination. He has denied suggestion put to him that, in the night of incident, he had not seen appellant talking to deceased Ruksana in her hut.

9. Evidence of PW1 Sidhartha establishing appellant's presence with the deceased on the fateful night is further corroborated by evidence of PW7 Roshan Parveen when she deposed that she was also working as a Security Guard on the same site and in the night of incident at 8.30 p.m. was relieved by deceased who took charge of Security Guard at that time. However, since deceased had brought dinner for her, both of them had meals and deceased had informed her that she had also brought food for the appellant and he was to visit her hut to have meals as his wife was not in his house. She further states that, while she was to leave the hut, the appellant arrived and started talking to deceased and she left the place. She thereafter states that, on the next day, when she attended duty in the morning, she noticed that deceased was lying dead on the backside of her room, and therefore, went to PW2 Iqbal Ahamad Khan, Supervisor and gave information to him. In her cross-examination, though she claims to have stated to police in her statement that Ruksana, the deceased had brought tiffin consisting of four boxes, she is unable to assign any reason as to why said fact is not mentioned in her statement. This omission, however, does not find to be material at all since, in her further evidence, she admits that the deceased had brought sufficient meals consisting of vegetable, rice, dal and roti sufficient for 3 to 4 persons. As such, said omission is of no consequence. In fact, she also admits that, in the night of 19.4.2015, she and deceased took dinner together and the appellant did not have dinner in her presence. In fact, it has come in her evidence that, after she had her dinner, appellant arrived in the house of deceased, upon which she left. This witness has denied suggestion put to her that, in her presence, appellant had not come to the house of deceased. In view of above discussed evidence, presence of appellant in the house of deceased on the fateful night as stated by PW1 Sidhartha has been fully corroborated by PW7 Roshan Parveen on all material aspects.

10. Evidence of PW1 Sidhartha and PW7 Roshan Parveen is further found corroborated by PW9 Sonu Dongare, when he had deposed that, in the night of 19.4.2015, at 11.00 p.m., he along with PW1 Sidhartha were walking by the road while proceeding to pan shop, from about 40 to 50 ft. in the source of light, he saw appellant in the hut of deceased talking to her, and further deposed that, on the following day in the morning, when he was proceeding on his duty, he found deceased lying dead outside her hut. From his evidence, it has further come on record that PW9 Sonu is also working in the same Company where PW1 Sidhartha is working as a driver and knows appellant since he was working in the same Company as a helper. In that view of the matter, there is nothing to doubt evidence of any of these witnesses on the point of identification of appellant as all of these witnesses were knowing appellant since prior to incident, who was seen in the house of deceased on the fateful night. In fact, it has also come in the cross-examination of PW9 Sonu that PW1 Sidhartha is residing in his neighbourhood and there is a pan shop situated in their locality. In view of said fact, there is nothing to disbelieve that PW1 Sidhartha and PW9 Sonu were not proceeding together, towards the pan shop and as such, have not witnessed appellant in the house of deceased. In fact, such suggestion put to this witness is denied by PW9 Sonu.

11. On the above discussed evidence led by prosecution on its case of appellant having been seen in the company of deceased, we find it useful to rely upon the decision of the Apex Court in the case of Rishi Pal vs. State of Uttarakhan (2013 Cri.L.J. 1534) wherein reference is made to the case of Bodh Raj alias Bodha and Others vs. State of Jammu and Kashmir [(2002) 8 SCC 45], wherein the Apex Court held as under :

“The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.”

12. In the appeal in hand, from the above evidence, it is established that the deceased was in the company of appellant at 11.00 p.m. while her dead body was found lying on the same spot at 7.00 a.m. As such, it can definitely be held that the theory of last seen comes into play in the present case as there is absolutely no long gap between the period when the appellant and deceased Ruksana were last seen alive and when the deceased was found dead. In the absence of any other positive evidence, as such, possibility of some one else committing murder of deceased is totally remote.

13. We are conscious of the fact that the theory of last seen together itself is not conclusive proof establishing involvement of accused, but other circumstances surrounding the incident like relations between the accused and the deceased, enmity between them, recovery of weapon from the accused, non-explanation of death of deceased by the accused etc. may lead to presumption of guilt. As such, according to the said principles of law, the circumstances of last seen together does not by itself and necessarily lead to inference that it was the accused who committed the crime as there has to be something more establishing connectivity between the accused and the crime. Admittedly, in criminal prosecution initial burden of proof is on the prosecution to bring sufficient evidence pointing towards the guilt of accused. However, in the cases based on theory of last seen together, prosecution is exempted from proving exact happening of the incident as the accused himself would have special knowledge of incident and thus, would have to discharge burden of proof contemplated under Section 106 of the Indian Evidence Act.

14. In the evidence of PW1 Sidhartha and PW9 Sonu, presence of appellant in the hut of deceased in the fateful night on 19.4.2015, at 11.00 a.m. is established. In fact, their evidence establish that there was source of light in the hut due to which they could identify the appellant who was present in the house of deceased. There is no question of mistaken identity of appellant either by PW1 Sidhartha or PW9 Sonu as both of them were working in the same Oxygen Cyclinder Company as driver and helper respectively where the appellant had initially worked for a period of two months as helper. In that view of the matter, both these witnesses were knowing the appellant. In fact, it has also come in the evidence of PWSonu that distance from where they had seen the appellant was 40 to 50 ft. and has further deposed that both these witnesses on the next day morning found Ruksana lying dead. Evidence of PW2 Iqbal Ahamad Khan established deceased having noted by him after informed by PW7 Roshan Parveen lying in dead condition of which he immediately gave information to police. According to evidence of PW7 Roshan Parveen, when she was to attend her duty, her duty hours being from 8.00 a.m. to 8.00 p.m., she did not find Ruksana in her room, though Radio was on and thereafter noticed her lying dead in the back side of the room. Identification of appellant in the Company of deceased on the previous night at 11.00 p.m., as has come in the evidence of PW1 Siddhartha and PW9 Sonu, is substantiated when, in the evidence of PW7 Roshan Parveen, it has come on record that, during her presence in the house of deceased, appellant came to her house and after his arrival she left for her house. Thus, from the evidence referred as above, it is seen that the appellant and deceased were together in the room of deceased. In this view of the matter, Section 106 of the Evidence Act would come into play. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underline Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254 : AIR 2007 SC 144, the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.

15. Apart from the above evidence, appellant's involvement in this Crime is further established from the evidence of PW5 Sheikh Riyaz Ahamad Maifuz Ahamad, an independent panch witness, in whose evidence it has come on record that, in his presence, Memorandum Statement of appellant (Exh.43) is recorded on 23.4.2015 wherein he stated to disclose rope concealed on the roof of his house and mobile phone of deceased sold by him to PW8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him.

16. Thus, from above evidence, recovery of above articles at the instance of appellant is established. Said piece of evidence is worthy to be relied as nothing could be elicited in the cross-examination of PW5 Sheikh Riyaz. In fact, evidence of PW8 Sushila corroborates recovery of mobile phone of deceased sold to her by appellant when she has deposed that, on 20.4.2015 i.e. on the following day of incident, which date is very much significant in view of fact that appellant on the following day visited her house at 11.00 a.m. and sold mobile phone of deceased to her for Rs.750/- saying that he was in need of money, which mobile was purchased by PWSushila and three days thereafter, was seized by police from her house which she identified as 'Article8' produced before the trial Court. In fact, it has come in her cross-examination that she was knowing appellant even prior to purchase of mobile phone from him as they both belong to same State and used to meet in the market. In the background of above evidence, there is substance in the case of prosecution of appellant's selling mobile phone of deceased to PW8 Sushila and has further established that one Coconut String is discovered at the instance of appellant from the terrace of his house which is seized under Panchanama. In the light of above stated recovery of coconut string, evidence of PW10 Dr.Sachin Giri would reveal that, on his examining appellant on 27.4.2015, he was informed of strangulation of deceased as she refused to perform sexual act with him and on examining the appellant, he issued Medical Certificate (Exh.55) certifying the appellant to be potent capable of performing sexual intercourse. Said document also refers to rope by which victim is strangulated in the column of history of assault stated to him by the appellant.

17. PW15 Dr.Harshawardhan Kharate has deposed that he noted 16 external injuries over the body of deceased as mentioned in column 17 of the Post Mortem report which were ante mortem injuries. His evidence would reveal that injuries nos. 1 to 5 mentioned in column no.17 together with corresponding internal injuries mentioned in column no.20 were sufficient to cause death in ordinary course of nature. The cause of death is stated to be “due to strangulation”. Medical Officer has accordingly proved Post Mortem Report at Exh.81. There is no much dispute about unnatural death of deceased by strangulation as the defence of appellant is of total denial. While in Viscera report of deceased no poison is detected. Evidence of Dr.PW15 Harshawardhan is material with reference to recovery of coconut rope at the ins

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tance of appellant when said article was forwarded to the Medical Officer who, on verifying the same, has opined that the injuries mentioned in Column No.17 are possible by such rope and accordingly, issued Query Report (Exh.82). The above circumstance also points towards involvement of appellant in the present crime. According to C.A. report (Exh.23), rope is of coconut coir. 18. As already stated earlier, case of prosecution is based on circumstantial evidence and on the theory of last seen. There are no eye witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, it has been observed thus : “the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.” 19. Considering the evidence, thus, prosecution since is found to have established that the appellant was last seen in the company of deceased and since this assumes significance as the time period in between when the accused and deceased were seen together and when the deceased is found dead is minimum thus to exclude the possibility of involvement of any other person responsible to cause death of deceased which leads to the only conclusion that it is the appellant alone who is involved in the present crime. Having considering the aforesaid evidence, prosecution is found to have established its case beyond reasonable doubt. We, therefore, find no merits in the appeal and the same is, thus, dismissed.
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22-04-2019 Sunil Kumar Saxena Versus Export Inspection Council & Others High Court of Delhi
11-04-2019 Sunil @ Papu Versus The State of Karnataka, Represented by its Secretary, Home Department & Others High Court of Karnataka
10-04-2019 Sunil & Others Versus State of Maharashtra In the High Court of Bombay at Aurangabad
09-04-2019 Sunil Yadav Versus State of U.P. High Court of Judicature at Allahabad
01-04-2019 The Employees Provident Fund Organisation & Another Versus B. Sunil Kumar & Others Supreme Court of India
29-03-2019 Sunil Kumar Biswas Versus Ordinance Factory Board & Others Supreme Court of India
28-03-2019 United India Insurance Co. Ltd. through its Divisional Manager and authorised representative and Signatory, Jalgaon Divisional Office Versus Sunil & Others In the High Court of Bombay at Aurangabad
26-03-2019 Dr. Sankar Kumar Mondal Versus Sunil Kumar Roy West Bengal State Consumer Disputes Redressal Commission Kolkata
20-03-2019 Commissioner of Income Tax Delhi Versus Sunil Lamba High Court of Delhi
12-03-2019 Sunil John Mathew Versus K.L. Lency & Others High Court of Kerala
11-03-2019 Sunil Versus State By CPI, Banahatti High Court of Karnataka Circuit Bench At Dharwad
08-03-2019 MES No.243672 Shri Kh Sunil Singh Fitter, General Mechanic (High Skilled) & Others Versus The Union of India, Represented by the Secretary to the Government of India & Another Central Administrative Tribunal Guwahati Bench Guwahati
07-03-2019 Sunil Versus The State of Maharashtra In the High Court of Bombay at Nagpur
06-03-2019 K. Sunil Kumar Versus D. Prasobha Devi & Another High Court of Kerala
27-02-2019 Sunil Kumar Gupta & Others Versus State of Uttar Pradesh & Others Supreme Court of India
16-02-2019 Sunil Kumar Bande Versus Secretary to Government Education Department (Primary & Secondary Education) & Another High Court of Karnataka Circuit Bench OF Kalaburagi
11-02-2019 Sunil Kumar Versus Sambhu Singh High Court of Rajasthan
01-02-2019 Sunil Versus State High Court of Delhi
30-01-2019 Lataben Versus Sunil Bhikhabhai Patel High Court of Gujarat At Ahmedabad
25-01-2019 M.R. Sunil Raj & Another Versus Kristal Infrastructure Ltd., represented by its Director K.K. Namboothiri & Others Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
23-01-2019 Sunil Grover Versus Government of NCT of Delhi & Others High Court of Delhi
23-01-2019 Sunil Sudhakar Fegde & Another Versus Kishor Devram Rane & Others High Court of Judicature at Bombay
22-01-2019 Vandana Mimani Versus Sunil Jhawar High Court of Judicature at Calcutta
11-01-2019 Archita @ Anu Seth Versus Sunil Seth High Court of Delhi
11-01-2019 Archita @ Anu Seth Versus Sunil Seth High Court of Delhi
11-01-2019 Sunil Kumar & Another Versus State of J.K. & Others High Court of Jammu and Kashmir
10-01-2019 Sunil Gupta Versus Roots Corporation Limited High Court of Delhi
10-01-2019 Sunil Kumar Jain Versus Anju Choudhry & Others High Court of Chhattisgarh
10-01-2019 Pralhad Ganpat Salgar Versus Sunil Dilip Kakod High Court of Judicature at Bombay