Chhedilal vs The State of Maharashtra

V.K. Tahilramani, J.—The appellant-original accused No. 1 has preferred this appeal against the judgment and order dated 29th April, 2011 passed by the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No. 221 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 302, 307, 324 and 394 read with 397 of Indian Penal Code. For the offence punishable u/s 302 the appellant was sentenced to suffer life imprisonment and fine of Rs. 1000/-, in default, simple imprisonment for six months; for the offence u/s 307, the appellant was sentenced to rigorous imprisonment for seven years and fine of Rs. 1000/-, in default, simple imprisonment for six months; for the offence u/s 324 of Indian Penal Code, the appellant was sentenced to fine of Rs. 1000/-, in default, simple imprisonment for six months; and for the offence u/s 394 read with 397 of Indian Penal Code, the appellant was sentenced to rigorous imprisonment for seven years and fine of Rs. 1000/-, in default, simple imprisonment for six months. The learned Sessions Judge directed both the sentences under Sections 302 to run concurrently. The learned Sessions Judge directed that the sentence for the offence u/s 307 of Indian Penal Code shall commence after the substantive sentences awarded for the offence u/s 302, and the sentence under Sections 394 and 397 shall commence after the expiration of sentence for the offence u/s 307 of Indian Penal Code i.e. the learned Sessions Judge directed that the sentences u/s 307 and 394 read with Section 397 of Indian Penal Code shall run consecutively after both the sentences of imprisonment u/s 302 are over. The prosecution case, briefly, stated, is as under:

Deceased Prakash was the brother of PW-7 Ramvilas and deceased Sandeep was the son of PW-7 Ramvilas. Prakash, PW-4 Pankaj, PW-7 Ramvilas and appellant Shiva used to work in Anmol Laundry at Oshivara. The laundry was owned by PW-1 Suresh, Sandeep - the son of PW-7 Ramvilas was working in the shop adjoining Anmol Laundry. However, he used to sleep in the Anmol Laundry. PW-4 Pankaj, PW-7 Ramvilas, deceased Prakash and Sandeep and the appellant Shiva used to sleep inside Anmol laundry at night. PW-4 Pankaj had kept about Rs. 6500/- to Rs. 7000/- in two boxes. Deceased Prakash was intending to go to his village on 11th November, 2008 in the morning. Hence, he gave party to the others who used to sleep in the laundry. Deceased Prakash, PW-7 Ramvilas and the appellant drank liquor and PW-4 Pankaj consumed beer. Deceased Prakash had approximately an amount of Rs. 50,000/- with him as he was intending to go to his village on 11th November, 2008. There was an amount of Rs. 18000/- in the cash counter of the laundry.

(i) The incident occurred in the night of 10th November, 2008. After having food, PW-4 Pankaj, deceased Prakash, deceased Sandeep, PW-7 Ramvilas and the appellant Shiva slept in the laundry. PW-4 Pankaj got up as someone had jostled him. When he woke up, he saw appellant Shiva was armed with iron rod. The appellant Shiva gave blows on the right side of head of PW-4 Pankaj. PW-4 Pankaj became unconscious. He regained consciousness in Cooper Hospital. After discharge from the hospital, he went to the laundry. He found that, his money which were about Rs. 6,500/- to Rs. 7,000/- was robbed. So also his mobile phone of Nokia Company bearing Model No. 1650 was also robbed.

(ii) PW-7 Ramvilas also used to sleep in the said laundry along with Sandeep, Prakash, PW-4 Pankaj and the appellant Shiva. He was sitting outside the laundry at night. At about 11.00 p.m., deceased Sandeep came into the laundry after finishing his work. PW-7 Ramvilas also entered the laundry. He saw Prakash lying on the ground. Appellant Shiva was present there. PW-7 Ramvilas asked the appellant as to what has happened to Prakash. Appellant Shiva told PW-7 Ramvilas to keep quiet. Appellant Shiva gave PW-7 Ramvilas a blow with hammer on his head due to which PW-7 Ramvilas fell unconscious. In the morning when he regained consciousness, he found that Prakash, Sandeep and PW-4 Pankaj were lying in injured condition in the laundry, however, the appellant Shiva was not present there. The police then took PW-4 Pankaj, PW-7 Ramvilas, Prakash and Sandeep to Cooper Hospital. Prakash and Sandeep were declared dead and Pankaj was admitted in I.C.U. PW-7 Ramvilas was referred to K.E.M. Hospital.

(iii) PW-1 Suresh was the owner of Anmol Laundry. One Jagdish was looking after the accounts of the shop. One Jagjivan was the younger brother of Jagdish. At about 9.00 p.m., PW-1 Suresh and Jagjivan closed the shop. According to Suresh, deceased Prakash, PW-7 Ramvilas, PW-4 Pankaj and appellant Shiva were working in the said laundry. Suresh has stated that, the workers used to sleep in the laundry. Thus, PW-4 Pankaj, the appellant, deceased Prakash and PW-7 Ramvilas used to sleep in his laundry at night. Suresh has stated that Sandeep also used to sleep in his laundry. At 9.00 p.m. on 10th November, 2008 when he closed the laundry, deceased Prakash, PW-4 Pankaj, PW-7 Ramvilas and the appellant Shiva were present in the laundry. On the next day i.e. on 11th November, 2008 at about 9.00 a.m. he received message from Jagdish that he saw blood lying on the floor of the laundry. PW-1 Suresh then went to the laundry. On opening the shutter he found blood in the laundry, hence he closed the shutter and went to the police station. He returned along with police to the laundry. They went inside the laundry. They saw Prakash, Sandeep, PW-4 Pankaj and PW-7 Ramvilas lying in injured condition in the laundry. However, appellant Shiva was not present in the laundry. The ambulance was called. Then PW-1 Suresh carried the injured to Cooper Hospital. Prakash and Sandeep were declared dead. PW-4 Pankaj was admitted in I.C.U. and PW-7 Ramvilas was referred to K.E.M. Hospital. On that day, there was an amount of Rs. 18,000/- in the drawer of the laundry. That amount was lying in the drawer when PW-1 Suresh closed the laundry on the night of 10th November, 2008. The drawer was seen forcibly opened and the amount of Rs. 18,000/- was found missing from the drawer. The telephone receiver and workers'' records were also found missing. PW-3 Suresh lodged F.I.R. Thereafter investigation commenced. The appellant Shiva was arrested on 17th November, 2008.

(iv) During the course of investigation, mobile phone of Prakash, cash and blood stained shirt of the appellant were recovered under panchanama. After completion of investigation, the chargesheet came to be filed against appellant.

Charge was framed against the appellant original accused No. 1 u/s 302 for causing death of Prakash and Sandeep and u/s 307 for assaulting PW-4 Pankaj and PW-7 Ramvilas with deadly weapons. Appellant Shiva was also charged u/s 394 read with Section 397 of Indian Penal Code. Charge was framed against original accused No. 2 Shravankumar for the offence under Sections 201 and 212 of Indian Penal Code. Accused No. 2 Shravankumar was acquitted of all the charges. However, the learned Sessions Judge, after going through the evidence, convicted and sentenced appellant Shiva as stated in paragraph 1 above, hence this appeal.

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 appellant Shiva committed the murder of Sandeep and Prakash and also assaulted PW-4 Pankaj and PW-7 Ramvilas with deadly weapons and he also committed robbery of cash and mobile phone and while committing robbery he used deadly weapons.

PW-4 Pankaj and PW-7 Ramvilas are the injured witnesses. They speak of assault on them by appellant Shiva. No doubt, these two witnesses are not the eye witnesses to the actual assault on deceased Sandeep and deceased Prakash, however, the evidence of these two witnesses establishes that it was the appellant alone who could have assaulted Prakash and Sandeep and caused their death. The evidence of PW-4 Pankaj shows that he, Prakash, Sandeep, Ramvilas and appellant Shiva used to sleep inside Anmol Laundry at night. No other person was sleeping in the laundry at night time. In the morning of 11th November, 2008 PW-7 Ramvilas, Prakash, Sandeep and PW-4 Pankaj were all found in an injured condition and appellant Shiva was nowhere to be seen. PW-4 Pankaj had stated that on 10th November, 2008 at about 9.00 p.m. Anmol Laundry was closed. After closing of the laundry, appellant Shiva and Prakash cooked food for all of them. As Prakash was to go to his village the next day, he arranged party in the laundry. Ramvilas and appellant Shiva drank liquor and Prakash consumed beer. Then Prakash, PW-4 Pankaj, PW-7 Ramvilas, Sandeep and appellant Shiva slept in the laundry. Prakash and Ramvilas are brothers. Pankaj has stated that he woke up as he was jostled by someone. When he woke up, he saw that the appellant was armed with iron rod. The appellant gave blows with iron rod on the right side of head of Pankaj. Pankaj became unconscious. He regained conscious in Cooper Hospital. On regaining consciousness he realized that his money was stolen, so also his mobile phone was stolen. This witness has identified the iron rod with which he was assaulted by the appellant. He has stated that Art. "A" iron rod is the same with which he was assaulted. This witness has also identified appellant Shiva before the Court. As PW-4 Pankaj and appellant Shiva were both residing in the laundry along with PW-7 Ramvilas, Prakash and Sandeep, this witness knew the appellant very well and hence there would be no mistake in identifying the appellant as the person who assaulted him.

PW-7 Ramvilas was one of five persons who used to sleep in the laundry. He used to sleep in the laundry along with Prakash, Sandeep, PW-4 Pankaj and appellant Shiva. Prakash and Ramvilas were brothers and Sandeep was the son of Ramvilas. PW-7 Ramvilas stated that on 10th January, 2008 at about 9.00 to 9.30 p.m., appellant Shiva and PW-4 Pankaj were cooking food in the laundry. The laundry was closed. At about 11.00 p.m. Sandeep entered the laundry. Thereupon PW-7 Ramvilas also went inside the laundry. When he went inside the laundry, he saw Prakash was lying on the ground. Appellant Shiva was present there. He asked the appellant as to what has happened to Prakash. The appellant told PW-7 Ramvilas to keep quiet. Appellant Shiva then gave blow with hammer on the head of PW-7 Ramvilas due to which PW-7 Ramvilas became unconscious. Ramvilas regained consciousness on the next day morning. On the next day he saw Prakash, Sandeep and PW-4 Pankaj were lying in an injured condition in the laundry and appellant Shiva was not present there. Then police took him to the hospital. He has identified appellant Shiva before the Court as well as the hammer Art."B" being the same weapon with which he was assaulted by the appellant.

The evidence of PW-6 Ambalal shows that he had a general store which was adjoining Anmol Laundry. Deceased Sandeep was working in his shop. PW-6 Ambalal stated that Sandeep used to sleep in the laundry at night. He has stated that, on 11th November, 2008 he saw PW-7 Ramvilas, PW-4 Pankaj, Prakash and Sandeep lying in an injured condition in the laundry. This witness has further stated that appellant Shiva was working in laundry and was staying at night in the laundry. Thus, the evidence of this witness also shows that four persons were found in injured condition in Anmol laundry and though the appellant used to stay at night in the laundry, he was not seen by any one in the morning of 11th November, 2008.

PW-1 Suresh was the owner of laundry. He has stated that Prakash, PW-7 Ramvilas, PW-4 Pankaj and appellant Shiva were working in his laundry. One Jagdish (PW-3) was looking after the accounts of the laundry. Jagjivan is the younger brother of Jagdish. On 10th November, 2008 at about 9.00 p.m. PW-1 Suresh and Jagjivan had closed the laundry. On that day Prakash, PW-7 Ramvilas, PW-4 Pankaj and appellant Shiva were working in his laundry. The workers used to sleep in the laundry at night. This witness has stated that Prakash is the brother of PW-7 Ramvilas and Sandeep is the son of PW-7 Ramvilas and Sandeep also used to sleep in his laundry at night. PW-1 Suresh has stated that when he closed his laundry on 10th November, 2008, Prakash, PW-4 Pankaj, PW-7 Ramvilas and appellant Shiva were present in the laundry. On the next day i.e. on 11th November, 2008 at about 9.00 a.m. he received message on phone from PW-3 Jagdish that he saw blood lying on the floor in the laundry and Jagdish asked him to go urgently to the laundry. Hence PW-1 Suresh went to the laundry. On reaching the laundry he found that the locks of the main shutter were missing. He opened the main shutter. He found blood near counter of the laundry. PW-1 Suresh then closed the shutter and went to the police station. He then returned with the police to his laundry. They all went inside the laundry. He found Prakash, PW-4 Pankaj, PW-7 Ramvilas and Sandeep lying in injured condition in the laundry. Appellant Shiva was not present in the laundry. PW-1 Suresh found that articles were spread around in the laundry. Ambulance was called and the injured were taken to Cooper Hospital. Prakash and Sandeep were declared dead. PW-4 Pankaj was admitted in I.C.U. and PW-7 Ramvilas was referred to K.E.M. Hospital.

PW-1 Suresh has further stated that in the drawer of the laundry there was an amount of about Rs. 18,000/- when he closed the laundry on 10th November, 2008. He found that the drawer had been forcibly opened and the amount of Rs. 18,000/- was missing from the drawer.

Thus, the evidence of PW-1 Suresh also shows that two deceased i.e. Sandeep and Prakash and two injured i.e. PW-4 Pankaj and PW-7 Ramvilas and appellant Shiva used to sleep in the laundry of PW-1 Suresh. In the morning of 11th November, 2008 Sandeep, Prakash, PW-4 Pankaj and PW-7 Ramvilas were found lying in injured condition in the laundry and appellant Shiva who used to sleep everyday in the laundry was not seen there. Only five persons used to sleep in the laundry i.e. Sandeep, Prakash, PW-4 Pankaj, PW-7 Ramvilas and appellant Shiva. Four of them i.e. Sandeep, Prakash, PW-4 Pankaj and PW-7 Ramvilas were found lying in the laundry in an injured condition on 11th November, 2008 and appellant Shiva who also used to sleep in the laundry was not to be seen. PW-4 Pankaj as well as PW-7 Ramvilas have stated that appellant Shiva has assaulted them with deadly weapons. PW-7 Ramvilas has stated that when he entered the laundry he saw Prakash lying there. When he questioned the appellant, the appellant assaulted him with hammer on his left ear. The evidence of PW-4 Pankaj also shows that appellant Shiva assaulted him. As only five persons were sleeping in the laundry and four of them were found in injured and unconscious condition, it was obvious that appellant alone could have inflicted injuries on these four persons. As the appellant was the only person in the laundry except the four injured who were found in unconscious condition, it was for the appellant to explain how the four persons came to be injured. In such case, the accused has to explain how four of them sustained injuries and two of them died. In this connection, we may refer to Section 106 of the Evidence Act.

9a. 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 underlies Section 106 of the Evidence Act can be applied in cases when certain facts are especially within the knowledge of a person. In the State of Rajasthan Vs. Kashi Ram, 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.

The case of the prosecution is that PW-4 Pankaj was assaulted by the appellant with an iron rod on the head. PW-4 Pankaj has clearly stated so. His evidence is corroborated by the medical evidence. PW-10 Dr. Adakar has examined PW-4 Pankaj. PW-1 Suresh had stated that on opening the laundry he found that four persons were found in injured condition, one of them was PW-4 Pankaj. He took all the four injured to Cooper Hospital. PW-10 Dr. Adakar, who was the Medical Officer attached to Cooper Hospital, examined PW-4 Pankaj. He found following injuries on the body of PW-4 Pankaj:-

i) C.L.W. over right eyebrow, 3 cm x 2 cm x 0.5 cm.

ii) Injury to skull bone, right frontal.

iii) Right cheek contusion, 5 cm x 5 cm.

iv) Tear in right pinna, 3 cm x 0.5 cm.

PW-10 Dr. Adakar has stated that injuries are possible by hard and blunt object like hammer and iron rod. However, PW-10 Dr. Adakar has stated that PW-4 Pankaj was referred for XRay and it was found that he did not have any fracture. Thus, in view of the evidence of PW-4 Pankaj and the evidence of PW-10 Dr. Adakar, the prosecution has proved that offence u/s 324 of Indian Penal Code was committed by appellant Shiva in respect of PW-4 Pankaj.

The evidence of PW-7 Ramvilas shows that when he entered the laundry he saw Prakash lying on the ground. When he questioned appellant Shiva as to what has happened to Prakash, the appellant gave a blow with hammer on left ear of Ramvilas due to which Ramvilas fell unconscious. PW-7 Ramvilas was also taken by PW-1 Suresh to the hospital along with PW-4 Pankaj, Sandeep and Prakash. PW-9 Dr. Ugale examined PW-7 Ramvilas. He found following injuries on the person of PW-7 Ramvilas:-

i) C.L.W. left earpinna, 4 cm x skin deep and cartilage exposed.

ii) Swelling and tenderness present on left zygomatic region.

iii) Nasal bleeding present and nasal bone tenderness.

PW-9 Dr. Ugale has stated that injuries to PW-7 Ramvilas were possible by hard and blunt object like Art.A iron rod and Art.B hammer. Thereafter PW-7 Ramvilas was referred to K.E.M. Hospital. There PW-7 Ramvilas was examined by PW-12 Dr. Chiplunkar. Dr. Chiplunkar noted that history had been given of loss of consciousness and history of left ear and nasal bleeding. PW-12 Dr. Chiplunkar examined the patient Ramvilas and found following injuries:-

i) There was blood clots bilateral external auditory canal.

ii) There was 4 cm. x 2 cm. C.L.W over the left pinna, cartilage was exposed.

iii) 2 x 5 cm C.L.W. over the left preauricular area.

iv) On nasal examination there were blood clots in both the nostrils but there was no active bleeding.

v) Posterior pharyngeal wall was blood stained but no active bleeding. Left black eye.

PW-12 Dr. Chiplunkar has stated that the injuries to PW-7 Ramvilas were possible by hard and blunt objects like hammer and iron rod (Articles B and A). Dr. Chiplunkar has further stated that injury over pinna was grievous in nature as the cartilage was exposed which may lead to permanent disfigurement of pinna. Thereafter in K.E.M. Hospital, PW-7 Ramvilas was examined by PW-11 Dr. Mehta. PW-11 Dr. Mehta examined PW-7 Ramvilas. Thereafter PW-7 Ramvilas was referred for surgery.

The appellant has been convicted u/s 307 for causing the above mentioned injuries to PW-7 Ramvilas. No doubt, PW-12 Dr. Chiplunkar has stated that the injuries sustained by PW-7 Ramvilas were grievous in nature and they may lead to permanent disfigurement of pinna, however, it is pertinent to note that none of the doctors who examined PW-7 Ramvilas has stated that these injuries were sufficient in the ordinary course of nature to cause death if not treated expeditiously. Looking to the nature of injuries sustained by PW-7 Ramvilas and the medical evidence, in our opinion, the conviction u/s 307 cannot be sustained and the proper conviction ought to be u/s 326 of Indian Penal Code.

The prosecution is also relying on the evidence of panch witness PW-17 Vilas Lad who has stated about the recovery of cash and mobile phone at the instance of the appellant. PW-4 Pankaj has stated that, after he was assaulted by the appellant he became unconscious and later on when he verified, he found that his mobile phone was stolen. So also, his cash was stolen. PW-4 Pankaj has identified the mobile phone (Article "E") which was recovered at the instance of appellant Shiva. PW-17 Vilas - panch witness has deposed on the aspect of recovery of mobile phone and other articles at the instance of the appellant. A blood stained shirt which was on the person of appellant Shiva at the time of the incident was also recovered at his instance. PW-17 Vilas has stated that appellant Shiva made a statement that he will show the mobile, cash amount and his blood stained shirt which were kept by him with his friend at Jui Nagar and he was ready to show the said property. Accordingly, memorandum panchanama was prepared. Thereafter the appellant led the police and panchas to Jui Nagar. The appellant led them to one house. Knock was given on the door. The door was opened by Shrawankumar (accused No. 2). Appellant Shiva asked him to produce the property. Appellant Shiva then produced the property kept in a plastic bag which was kept in the cupboard. The property consisted of three mobiles phones of Nokia Company, cash of Rs. 8,130/- and one shirt having blood stains. The said property was seized and sealed. Thereafter panchanama Exh.30 was drawn. This property was sent to the Chemical Analyzer. The Chemical Analyzer''s report is at Exh.96. The shirt was found stained with blood of "B" group. The axe and the hammer which were found at the spot were also sent to the Chemical Analyzer and they were found to be stained with blood of "B" group. It is pertinent to note that Chemical Analyzer''s report Exh.94 shows that the blood group of deceased Prakash was "B" and as per Chemical Analyzer''s report Exh.97 the blood group of appellant Shiva is "O" group. Thus, the finding of blood stains of "B" group on clothes of the appellant is another incriminating factor which goes against the appellant.

On going through the record, we find that there is sufficient evidence to prove that the appellant committed the murder of Sandeep and Prakash and he caused injuries to PW-4 Pankaj and PW-7 Ramvilas. There is also evidence to prove that during the said incident the appellant robbed cash as well as mobile phone belonging to PW-4 Pankaj. In view of the above, the following order is passed:-

ORDER

The conviction and sentence under Sections 302 and 324 of Indian Penal Code is maintained.

The conviction and sentence u/s 307 is converted to Section 326 of Indian Penal Code and the appellant is sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 1000/-, in default, simple imprisonment for six months.

The conviction and sentence u/s 394 read with 397 of Indian Penal Code is also maintained.

However, all the substantive sentences of the appellant shall run concurrently.

Appeal is partly allowed in above terms.

Office to communicate this order to the concerned prison authorities and to the Appellant who is in jail.

At this stage, we must record our appreciation for Ms. Rohini Dandekar, Advocate appointed from High Court Legal Services Committee, Bombay to represent the appellants. We found that she had meticulously prepared the matter and she has very ably argued the matter. We quantify legal fees to be paid to her by the High Court Legal Services Committee at Rs. 3000/-.