Even otherwise according to Section 4 of
the Identification of the Prisoner’s Act, police is
competent to take fingerprints of the accused, but
it is only to dispel the suspicion as stated above,
it is desirable to obtain the same under the orders
of the Magistrate. In any event, thus, the said
Act do not preclude police from obtaining specimen
of the fingerprints.
CRIMINAL APPELLATE JURISDICTION
Bake @ Ramesh Bansi Yadav,
CRIMINAL APPEAL NO. 955 OF 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Versus
The State of Maharashtra
CORAM : SMT. V.K. TAHILRAMANI &
P.N. DESHMUKH,JJ.
PRONOUNCED ON : 20.03.2014
Citation;2014ALLMR(cri)3219
This appeal takes exception to the
judgment dated 29th
January, 2010, passed in
Sessions Case No. 918 of 2006, by the learned 4 th
Adhoc Addl.Sessions Judge, Borivali Division,
Dindoshi, Mumbai. Vide this judgment the appellant
came to be convicted for the offence punishable
under section 302 of the Indian Penal Code and is
sentenced to undergo life imprisonment and to pay
fine of Rs.5000/, in default, rigorous
.
ig
imprisonment for six months.
The appellant is also convicted for the
offence punishable under section 376/511 of the
Indian Penal Code and is sentenced to undergo
rigorous imprisonment for five years and to pay
fine of Rs.1000/, in default, rigorous
imprisonment for two months.
.
For the offence punishable under section
380 of the Indian Penal Code, the appellant is
convicted and sentenced to undergo rigorous
imprisonment for two years and fine of Rs.1000/,
in default, rigorous imprisonment for two months.
.
For the offence punishable under section
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201 of the Indian Penal Code, he is convicted and
sentenced to undergo rigorous imprisonment for one
year and to pay fine of Rs.1000/, in default,
rigorous imprisonment for two months.
2.
In brief, it is case of the prosecution
that P.W.1Gurunath Shenoy, the complainant was
ig
residing in Building No. 7, Flat No. 15,
Keshevendha Bhuvanendra Cooperative Housing
Society, Dahisar (E), Mumbai, with his wife and two
daughters, namely, Vasudha, the deceased aged 19
years and Namrata.
.
On 15.05.2006, the complainant left to
attend his office while his wife and younger
daughter had been to their native place in the
State of Karnataka, since 10 days prior to the
incident. It is case of the prosecution that after
the complainant left the house for his office at
around 8.30 p.m., the deceasedVasudha was alone in
the flat and she was having cell phone No.
9820820787 with her. The complainant returned back
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home at 9.00 p.m. However, he found that the door
bell was not responded and could notice that the
inner lights were switched off, therefore, with the
set of keys with him he opened his flat and
switched on the lights, when he noticed that
Vasudha was lying on the bed in the pool of blood
having her clothes stained with blood. He noticed
ig
Vasudha to have sustained bleeding injuries on her
stomach and neck. He also noticed that the salvar
on the person of the deceased was pulled down below
the waist. The complainant was thus shocked to see
his daughter in above condition and immediately
called his neighbourer P.W.10Dr.Ganesh Kamath, who
on examining Vasudha informed that Vasudha was
dead. In the short time, police arrived on the
spot and recorded statement of Gurunath. On the
basis of the said statement, offence came to be
registered against unknown person.
3.
According to case of the prosecution,
after the incident the cell phone of deceased
Vasudha was missing. During the course of
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investigation, inquest panchanama came to be drawn
The
and body was sent for postmortem.
bloodstained clothes of the deceased, bedsheet,
one handkerchief, one plastic water bottle, broken
knife with its handle came to be seized. Similarly,
police collected fingerprints from the blade of the
knife, wooden frame of the door and from sliding
.
for comparison.
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window frame and were sent to fingerprint expert
During the course of investigation the
Call Data Records (CDR) in respect of cell number
of the deceased were collected, where from it
revealed that from her cell some calls were made to
a place known as Akori, Dist. Mirzapur, (U.P.).
Accordingly, police team visited the said place and
interrogated P.W.16Bulbul Yadav, on whose phone
calls were made. P.W.16Bulbul Yadav informed that
the appellant had phoned him from Mumbai and
informed that the appellant was in the village,
since he was back from Mumbai. Police accordingly
searched for the appellant and apprehended him from
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Akori with the assistance of local police. The
appellant was brought to Mumbai and arrested under
panchanama. During interrogation the appellant
confessed to discover his bloodstained clothes.
The memorandum statement of the appellant came to
be recorded and in pursuance to it police seized
bloodstained clothes of the appellant. The
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statements came to be recorded and seized Muddemal
articles were forwarded for its analysis to the
.
Chemical Analyzer.
The Investigating Officer on the basis of
statements of the witnesses has also arranged for
test identification parade, wherein the appellant
came to be identified by P.W.2Krushnanand, P.W.3
Ramjiyut and P.W.12Prafulla Naik. In the meantime
the fingerprint expert’s report came to be
obtained, according to which the chance
fingerprints of the appellant matched with the
fingerprints found on the blade of knife seized
from the spot. On concluding the investigation,
the chargesheet came to be filed before the
learned Metropolitan Magistrate, Borivali, Mumbai.
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.
During the course of time, same came to be
committed before the learned Sessions Court for
trial. The charges framed against the appellant
are for the offences punishable under sections 449,
376, 302, 380 and 201 of the Indian Penal Code, to
which he pleaded not guilty and claimed to be
tried. The defence of the appellant is of total
.
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denial and of false implication.
Prosecution to establish the charges
levelled against the appellant, have examined as
many as 22 witnesses and on considering the
evidence on record, convicted the appellant as
aforestated. Hence, this appeal.
We have heard learned Counsel for the
4.
appellant and learned A.P.P. to effectively
evaluate the submissions advanced by both the
sides. We, with their assistance scrutinized the
evidence on record.
5.
P.W.1Gurunath Shenoy, the complainant and
father of the deceased has deposed that he is
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resident of flat No.15 in building No.7 situated at
Keshevendha Bhuvanendra Cooperative Housing
Society, Dahisar (East), Mumbai, since 1981, with
his wife and two daughters. On 15.05.2006, the
wife of the complainant and his younger daughter
Namrata had been to their native place, while he
along with his daughter Vasudha, the deceased were
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present in the flat. At about about 8.30 a.m. the
complainant left his house to attend his office at
Jogeshwari, where he was working as a Purchase
Executive in a pharmaceutical company. Before
leaving the house, he served breakfast to the
deceased and left at 8.30 a.m. The complainant
returned at 60 clock in the evening and before
leaving the office, he has telephoned on the cell
phone of the deceased. However, there was no
response, though the bell was ringing. According
to the complainant, his deceased daughter was
possessing cell phone No. 9820820787. He has
stated that he returned home at 9.00 p.m. and rang
the door bell. However, it was not responded and
thus entered flat by opening it with the keys in
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his possession. When he switched on the lights, he
was shocked to notice that his daughter Vasudha was
lying in the pool of blood on the bed having
sustained bleeding injuries on her abdomen, chest
and throat. He further noticed that her clothes
were removed up to thigh. He found one
handkerchief, one knife in broken condition having
ig
yellow coloured handle, plastic water bottle lying
on the spot. Inspite of his repeatedly calling
Vasudha, she did not respond in any manner. The
complainant, therefore, immediately called the
P.W.10Dr. Ganesh Kamath, who
neighbourer.
examined Vasudha and informed her to be dead. In
due course of time, police arrived and recorded
statement of the complainant. Treating the same as
F.I.R., police registered the offence.
6.
According to the complainant, on the
following day of incident he informed the Police
that the mobile phone of the deceased was missing,
which was of Nokia make having cell No. 9820820787,
which was gifted to her by one Vijay Bhatt, the
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neighbourer, before leaving to U.S. on 06.03.2006.
After the incident, the complainant also obtained
Email dated 15.08.2006 to this effect from Vijay
Bhatt.
.
In his evidence, the complainant
identified the salvar, kameez, underwear of the
deceased as well as plastic water bottle, steel
The complainant has admitted that in
7.
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blade knife, plastic handle and one handkerchief.
building No.7, there are 16 flats and that he had
not doubted any one who has committed the crime.
8.
The evidence of P.W.2Krushnanand Baitul,
the neighbourer is on the circumstances about his
seeing the appellant in the building on the day of
incident, as he has stated that on 15.05.2006,
when he returned back to his building at around
12.45 p.m. to 01.00 p.m., he saw one person, who
had worked about one day before for sliding window
work in his house, who was standing at the ground
floor. P.W.2Krushnanand had identified the
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appellant as the same person who has worked for two
days in his flat for sliding window work. As per
his further evidence on 06.06.2006, he had
identified the appellant in a test identification
parade held in Thane jail as the same person to
whom he had seen on the ground floor of the
In the crossexamination P.W.2Krushnanand
ig
.
building on the day of the incident.
denied that the appellant has never worked for
sliding window work in his house nor he has seen
the appellant in the building on 15.05.2006. He
has also denied to have not identified the
appellant in the testidentification parade held at
Thane jail.
9.
To establish the presence of the appellant
in the building on the day of incident, the
prosecution has further examined P.W.3Ramjiyut
Dixit, the Security Guard, who was posted at the
building on the day of incident wherein flat of the
complainant is situated, where the incident took
place. P.W.3Ramjiyut has stated that he was
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working as Security Guard at said building since
February, 2006 and was on duty on the day of
incident from 08.00 a.m. to 08.00 p.m. along with
Shailesh KolekarSecurity Guard. He stated that on
the day of incident at 01.00 p.m. one person to
whom he knew as a worker of one Chandawarkar,
entered the premises and informed him that he
ig
wanted to meet his contractor to collect his wages
and clothes, which he had kept in the building and
would come back in ten minutes. However, he did
not return till 01.30 p.m. to 01.45 p.m. He stated
that on his returning back, as said person had not
brought any clothes, he asked about it, to which it
was informed that since the contractor as well as
keys were not available, he could not collect the
same and left the place hurriedly. It is his
evidence that on the following day, he learnt about
the incident and further stated that on 06.06.2006
he has identified the appellant as the same person
in the test identification parade held at Thane
jail.
.
In the crossexamination P.W.3Ramjiyut
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admitted that it is his duty to take entry in the
register in respect of the persons visiting the
building stating therein their names, purpose of
visit and admitted that he has not taken any such
entry in respect of the appellant, when he entered
the building on the day of the incident, however,
we do not find such admission to be fatal to the
ig
prosecution in view of the fact that the evidence
of P.W.3Ramjiyut reveals that the person who
visited the building at 01.00 p.m. on the day of
the incident was known by this witness as a worker
working for Chandawarkar and has also also
voluntarily deposed in the crossexamination that
he had trusted the appellant when he came to the
building. In view of said evidence, we do not find
that the evidence by way of admission given by
P.W.3Ramjiyut in any way is fatal to the case of
prosecution. Said witness has denied that he has
not identified the appellant in the test
identification parade.
10.
On the aspect of presence of the appellant
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at the building on the day of incident, the
evidence of P.W.12Prafulla Naik also appears to be
material when she has stated that on 15.05.2006
i.e. on the day of incident at around 11.00 a.m.
one Umesh Lad with whom she was working as a maid
had left along with his wife and daughter to
Girgaon and on doing her work at around 12.45 p.m.,
ig
she left the place when she saw the appellant
wandering in the building, who had done the work of
sliding windows in the building. She stated that
prior to this, the work of sliding window was
carried out in the flat of Umesh Lad, which is
situated in the same building No.7. She has
further stated to have identified the appellant in
the identification parade held on 06.06.2006 at
Thane jail. Her evidence also establish that in
her statement she has given physical description of
the appellant. However, said evidence of her
identifying the appellant in the test
identification parade does not appear to be
convincing to be acted upon in view of her
admitting to have seen the appellant in the police
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station. In view of her admission as above, said
evidence only, to the extent of her identifying the
appellant needs to be discarded. However, rest of
her evidence establish the fact of her seeing the
appellant in the building on the day of incident,
who has done the work of sliding window in their
11.
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flat situated in building No.7.
On the material aspect of appellant
working on the job of sliding window in the
building wherein the flat in which the incident
took place is situated, prosecution has examined
P.W.8Ajay Roy, who has stated that he is in the
business of doing jobwork of sliding windows.
Since 28.04.2006 to 05.05.2006, he carried out said
work in flat No.16, which appears to be adjacent to
the flat of the complainant, since he has occupied
flat No.15 in the same building No.7. The said
witness also stated to have carried out similar
work in flat No.3 in the same building. Thus, from
his evidence, it reveals that the work of sliding
window was carried about 10 days prior to the
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incident in building No.7 of the complainant in
various flats. P.W.8Ajay Roy stated that he knows
the appellant since one year prior to the incident,
as he hailed from the same place which also
belonged to other workers.
.
In his crossexamination, Ajay Roy
admitted that while the work of sliding windows was
ig
in progress, the appellant was under his
supervision. In view of said admission, we find no
substance when it is suggested to him that the
appellant never worked for him. In the evidence of
this witness, it has come on record that P.W.9
Sudhir Rajbhar is also a contractor, who has stated
that he is doing the work of sliding windows since
six years in Mumbai and in April, 2006, he was
given contract of said work by one contractor –
Chandawarkar to carry out the job in the flat
situated in the building in Sudhindra Nagar. As
per the evidence of the complainant, the co
operative housing society wherein he possessed the
flat, where the incident took place is also in the
same nagar. P.W.9Sudhir further stated that during
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completion of this work, he left to his native
place for a family function and thus in his absence
the work was further continued by P.W.8Ajay Roy.
Above evidence of P.W.9Sudhir as such corroborates
the version of P.W.8Ajay Roy about his working on
contract with P.W.9Sudhir, who was working with
contractor – Chandawarkar and further corroborates
ig
with the evidence of P.W.3Ramjiyut, the Security
Guard who he stated that he has trusted the
appellant, when he entered the building to whom he
was knowing as worker of contractorChandawarkar.
Further evidence of P.W.9Sudhir reveals
.
about his return back from his native place on
06.05.2006, on which day he found the appellant
working with P.W.8Ajay Roy and further stated
about the appellant working with him till
11.05.2006. It is specific evidence of P.W.9
Sudhir that the appellant worked for sliding
windows in building No.7. It has also come in his
evidence that he knows the appellant and he had
worked with him.
.
Nothing material is elicited in the cross
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examination of this witness except for suggesting
12.
was working with him at any time.
that he has no document to show that the appellant
Evidence of P.W.2Krushnanand and P.W.3
Ramjiyut finds substantiated on the aspect of their
identifying the appellant in the test
ig
identification parade held on 06.06.2006 from the
evidence of P.W.13Ramzan Khan, S.E.O., who at the
request of investigating officer had held test
identification parade. He has stated that in the
second round the appellant chose to stand in
between dummy Nos.3 & 4 amongst six dummies
selected for testidentification parade and was
identified by P.W.3Ramjiyut Dixit. He has further
deposed that in the fourth round the appellant was
identified by P.W.2Krushnanand, when the appellant
was standing between dummies 5 and 6, though from
his evidence it appears that in the first round one
witness, namely, Shailesh Kelkar had also
identified the appellant, he is not examined.
According to evidence of the S.E.O., P.W.12
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Prafulla has also identified the appellant in the
testidentification parade, however, her evidence
does not find to be convincing as already stated
earlier, in view of the fact of her admitting that
before the testidentification parade was held, the
appellant was shown to her in the police station.
Evidence of S.E.O. establishes fact of his
.
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holding testidentification parade on taking
necessary precautions about his selecting dummies
who are similar to the physical description of the
appellant and on taking care to see that the
identifying witness has no chance to see the
appellant and had held the testidentification
parade confirming that except for himself, the
panchas and identifying witnesses, nobody was
present when it came to be held. The memorandum of
identification parade is on record at Exh.45.
13.
On considering the above discussed
evidence, the prosecution does appear to have
satisfactorily proved on record that prior to the
incident the appellant had worked for the job of
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sliding windows in building No.7, which was carried
by P.W.8Ajay Roy and P.W.9Sudhir, the supervisor
of the contractor respectively. The prosecution has
also established the fact of the appellant working
for the sliding windows in the flat No.16, in
building No.7, which is adjacent to the flat of the
complainant, who on the material date was in
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occupation of flat No.15 in the same building. The
above discussed evidence also established on
record, presence of the appellant inspite of
completion of work of sliding windows in the
building at around 01.00 p.m. on 15.05.2006, who
gained access to the housing society on the false
pretext to collect his wages and his clothes which
were in the building. There is no satisfactory
explanation putforth on behalf of the appellant on
any of the above material circumstances. In the
circumstances, we find said evidence to be
sufficient to establish that the appellant on the
day of incident had entered the building wherein
flat No. 15 occupied by the complainant is
situated.
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The evidence of P.W.4Dinesh Shukla and
14.
P.W.5Sadanand Shetty, both spot panchas, reveals
that on 16.05.2006 they acted as panch and visited
the flat which was found locked and sealed, which
was opened by the police and some photographs were
obtained on removing the paper affixed on the
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window. Both these witnesses stated to have seen
one knife in broken condition which was seized and
sealed and has identified as Article No.5 to be the
same broken knife. The said panchanama is effected
on 16.05.2006 from 11.00 a.m. to 11.50 a.m. vide
Exh.22.
Evidence of above witnesses is found
15.
substantiated from the evidence of P.W.7Shaila
Bhatt, who had visited the flat on the day of the
incident and had noted that one knife in broken
condition along with other articles was lying in
the flat.
16.
The evidence of P.W.20 P.Y. Bhoye, P.I.
established the investigation carried out by him,
when he has stated that on 15.05.2006 when he was
attached to Dahisar Police Station, as A.P.I. and
was on night duty, information was received about
murder of some girl in Sudhendra Nagar Society,
Dahisar (East) and therefore with his staff visited
the spot which was flat No.15 in building No.7 of
Keshevendha Bhuvanendra Cooperative Housing
Society, where one girl was found murdered lying
dead on the cot. He further stated that he got
inquest panchanama and spot panchanama prepared and
seized the articles. He has further stated that a
team of fingerprint expert arrived on the spot and
collected fingerprints, which were found on the
blade of knife, frame of wooden door and of sliding
window. He further stated that on following day on
16.05.2006, the investigation team entered the flat
after opening the seal and photographs were
obtained and knife which was found lying on the
spot was kept as it is, so that investigating team
would get the fingerprints without being disturbed
on obtaining photographs and thereafter the blade
and the knife were seized.
In the background of above evidence,
.
prosecution further relied upon the evidence of
P.W.11Sharad Shalu, the fingerprint expert. It
has come in his evidence that since 1991, he is
working as fingerprint expert and on the day of the
incident he was attached to Fingerprint Bureau,
State C.I.D., Pune and in the night of 15.05.2006
on receiving message from the control room visited
the spot with his staff and P.W.15P.I.H.G. Bane.
He stated that he noted one broken knife and from
its blade developed one chance print. He further
stated to have developed chance print from the
wooden frame of the door as well as from the frame
of sliding window. According to his evidence four
finger prints from the wooden frame door and one
fingerprint each from the sliding window frame and
the blade of knife respectively were collected and
preserved for photograph. According to his
evidence on 29.05.2006, his office received the
fingerprints for comparison and the photographs
were received in his office on 14.06.2006, which
was compared by P.W.15H.G. Bane, P.I., who
submitted his report to Dahisar Police Station on
17.
05.07.2006.
The above stated evidence on the point of
investigating team collecting the chance
fingerprints, preserving it and sending for
comparison to the fingerprint expert have been
further substantiated from the evidence of P.W.15
H.G.Bane,P.I., who at the material time was serving
as a fingerprint expert, CID, Mumbai. He has
stated that on 15.05.2006 on receiving message from
Dahisar Police Station, he has visited the spot
along with police staff in the midnight at 1 o
clock. P.W.20A.P.I. Bhoye was already present at
the spot and got chance fingerprint on the blade of
knife, wooden frame of door and frame of balcony
window, which was preserved. He further stated to
have obtained photographs of the said six
fingerprints and found two fingerprints were fit
for comparison, which were fingerprints found on
the blade of knife, which was found identical to
the left middle fingerprint of the appellant and
has accordingly gave his opinion vide Exh.49. On
considering the evidence discussed as above, we
thus found that out of these chance prints found
and collected by the fingerprint expert, one
fingerprint found on the blade of knife on
comparison was found tallying with that of the
appellant. There is nothing to discard evidence of
this witness, who even otherwise is not suggested
that he has never visited the spot nor found any
chance fingerprints. It is even not suggested that
the fingerprints found on the blade of knife stated
to be tallying with that of the appellant is not
that of the appellant. The above evidence thus
established the presence of the appellant on the
spot.
18.
The evidence of P.W.14Jaywant Shivalkar
H.C. Is on the aspect of his collecting
fingerprints of the appellant when he has stated
that on 27.05.2006, he was directed by his superior
officer to take fingerprint of the appellant, which
he collected and on 29.05.2006 submitted the same
to the Fingerprint Bureau, Crime Branch, Mumbai.
According to him, he has collected the fingerprint
of roll and palm of the appellant. In his cross
examination it has come on record that till the
date of incident he has obtained fingerprints of
about 500 accused since 2004. Nothing material is
brought on record to discard evidence of this
witness except for suggesting that he has not
collected the fingerprints of the appellant, which
is denied by him.
On this aspect the learned Counsel for the
.
appellant submitted that the evidence of P.W.14
Jaywant Shivalkar H.C. is silent on the point if he
had obtained fingerprints of the appellant on
obtaining permission from the Magistrate and has
thus relied upon the case of Mohd. Aman & Anr. Vs.
State of Rajasthan, AIR 1997 S.C.2960. It was a
case of homicidal death. The victim was alone in
the house and the house was found ransacked. The
only incriminating circumstance against one of the
accused was that his fingerprints were found on the
brass jug in the house of the deceased. The brass
jug was forwarded to the Fingerprint Bureau, who
opined that the chance fingerprints found on the
brass jug were identical to the specimen
fingerprints of the accused. However, in that case
said aspect was not considered in favour of the
prosecution observing that the prosecution failed
to establish that the seized articles were not
tampered with before they reached to the Bureau for
examination. However, this is not the aspect
involved in the appeal in hand. On the contrary
there is no suggestion to this effect to the
witnesses, nor that they have not collected the
chance prints from the knife nor to P.W.14
Shivalkar H.C., who had collected the specimen
fingerprint of the appellant.
.
The learned Counsel for the appellant had
also relied upon said authority on the aspect of
prosecution’s failure to establish if the
permission was obtained from the Magistrate before
specimen fingerprints of the appellant were
obtained. With reference to this, though the
specimen fingerprints of the appellant were
obtained on number of occasions, they were never
taken before or under the order of the Magistrate
in accordance with Section 5 of the Identification
of the Prisoner’s Act and thus it is observed that
to dispel any suspicion as to its bona fide or to
eliminate the possibility of fabrication of
evidence, it was imminently desirable that the
specimen of a fingerprint should be taken before or
.
under the orders of the Magistrate.
In the case in hand the evidence as
already discussed above, however, reveals that
there is no such case putforth to any of the
witness as submitted, about there not obtaining
prior permission of the Magistrate for obtaining
specimen fingerprints of the appellant. Moreover,
in the case of Mohd. Aman, reported supra, this was
the only incriminating circumstance against the
appellant. While in the case in hand there is
sufficient evidence to establish presence of the
appellant on the spot at the time of incident.
Even otherwise according to Section 4 of
the Identification of the Prisoner’s Act, police is
competent to take fingerprints of the accused, but
it is only to dispel the suspicion as stated above,
it is desirable to obtain the same under the orders
of the Magistrate. In any event, thus, the said
Act do not preclude police from obtaining specimen
of the fingerprints. Moreover, there is no
ig
challenge on this aspect, in the evidence of the
19.
Investigating Officer.
Apart from above circumstances, another
incriminating circumstance against the appellant is
the CDR. It has come in the evidence of the
complainant that the deceased was possessing cell
phone having its number as 9820820787 and had also
informed said fact to police during the course of
investigation that the said phone was found missing
after the incident. The investigating agency,
therefore, collected the CDR of said cell No. of
the deceased. In view of this the evidence of
P.W.18Bhagwati Singh of village Akori, Mirzapur
District, U.P., finds to be material when he has
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stated that he knows the appellant since his
childhood being from his village and has also
stated that he has telephone facility being
telephone No. 242473. He has stated that he also
has mobile handset and used to receive telephone
calls from the appellant. However, he has expressed
his inability as to who received telephone call
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made by the appellant. From the evidence of the
witness, thus it is established that the appellant
who at the time of incident was working in Mumbai
for earning his livelihood, had made phone call at
his native place to this witness, though according
to his evidence, he is not aware, who received the
telephone call made by the appellant. From his
evidence prosecution has established fact of
telephone call being received on his telephone from
the appellant.
.
Similarly evidence of P.W.17Akshata Bhatt
who on the day of the incident was residing in the
same housing society, established the fact of
deceased possessing cell phone No. 9820820787, as
it has come in her evidence that she used to talk
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with the deceased from her landline number or from
her cell on the cell of the deceased. She has
stated that on the day of the incident deceased
gave her call on her landline No. 28485216
informing that she would visit her to solve some
problem of Accountancy subject and they have
accordingly decided to meet at 04.00 p.m., however,
ig
she did not turn up. Here it is material to note
that, according to the evidence of the complainant,
at the time of incident, the deceased was studying
in Dahanukar College in Commerce stream and was
doing her Company Secretary course. As such, it is
found that deceased was to meet P.W.17Akshata for
seeking her help for solving some problems relating
to Accountancy. P.W.17Akshata further stated that
on the same day, she learnt about the incident.
.
With reference to the evidence of above
two witnesses, when evidence of P.W.21P.S.I.
Shinde is perused, he has stated that for the
purpose of investigation in this crime, he visited
Uttar Pradesh as per directions of his superior
officer and collected the CDR from the concerned
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mobile company, where from it revealed to him that
from the cell phone of the deceased one call was
made to Akori village in Mirzapur District, U.P.
He has stated that accordingly he visited Mirzapur
Police Station and on contacting the local police
station informed about the facts of the case and on
visiting village Akori contacted P.W.16Bulbul
ig
Yadav, on whose number phone call was made from the
phone of the deceased. As per his further
evidence, on his enquiry P.W.16Bulbul has informed
that the appellant made phone call to him from
Mumbai and also informed that the appellant at that
time was in the village. The investigating team
thus searched for the appellant and apprehended
him. P.W.21P.S.I. Shinde has placed on record the
CDR at Exhs.61 & 62. According to Exh.61, the name
and address of the owner of Mobile No. 9820820787
is shown as Ramkrushna Bhatt r/o. Sudhendra Nagar,
Dahisar (East), which corroborates with the
evidence of the complainant as well as of P.W.17
Akshata Bhatt, who had deposed that the deceased
was possessing cell phone which was given to her by
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Ramkrishna Bhatt, prior to his departing to U.S.
Exh.12 on record is the Email obtained by the
complainant to that effect from Ramkrishna Bhatt,
while as per Exh.62, the investigating agency was
supplied with the CDR of deceased, which also
refers to Cell No. No.9919239886, which is of
On perusal of the CDR details, it is noted
ig
.
P.W.16Bulbul Yadav.
that one phone call from the cell phone of the
deceased was made to P.W.18Bhagwati Singh on
15.05.2006 at 18.55 hours. This document thus
established beyond reasonable doubt that the
appellant after the incident took in his possession
the cell phone of the deceased and from said cell
phone made a call at his native village Akori in
U.P. to P.W.18Bhagwati Singh, after the incident
at 6.55 p.m.
.
The CDR also substantiated the case of
P.W.17Akshata where from it reveals that the
deceased prior to the incident had contacted this
witness on her landline phone No.28484286. In
fact, there appears to be regular conversation
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between them.
From the CDR it is, infact, found that on
.
the day of the incident on commission of crime, the
appellant had called on cell phone of P.W.16Bulbul
Yadav as many as five times. P.W.16Bulbul Yadav
did not support the case of the prosecution.
However, his evidence established that he is from
ig
village Akori, State of Uttar Pradesh and has cell
phone with its No. as 9919239886. Moreover,
prosecution has got proved on record contradictions
from the evidence of this witness at Exh.67 to 70.
No reason is putforth for P.W.21P.S.I. Shinde to
mention such fact in the statement of P.W.16
Bulbul.
In his evidence P.W.21P.S.I. Shinde has
.
stated that during the course of investigation on
his meeting P.W.16Babulal at his village Akori, in
Uttar Pradesh, it revealed to him, that from the
cell phone of the deceased the appellant had made
phone calls to him from Mumbai. Similarly, above
referred CDR also establish fact of appellant
contacting P.W.18Bhagwati Singh, on his landline
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phone, from the cell phone of deceased, after
Above discussed evidence, therefore,
.
commission of crime.
establish fact of the appellant having in
possession of cell phone of the deceased and using
the same to make phone calls at his native place
So far as the issue of apprehension of the
ig
.
after the incident.
appellant at Akori in U.P. is concerned, there is
no challenge to this fact of the prosecution case,
as it is nowhere suggested that the appellant was
not apprehended from village Akori. In the
circumstances, it was for the appellant to explain
the cause of his arrest. However, we do not find
any case putforth by the appellant on this point.
20.
Having considered the above evidence, we
thus find that when the evidence of P.W.21P.S.I.
Shinde, P.W.16Bulbul, P.W.17Akshata and P.W.18
Bhagwati Singh is considered with the CDR Exhs. 56
A & 56B along with letters issued by the mobile
company Exh.61 & 62, it clearly goes to show that
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on 15.05.2006 six calls were made by the appellant
after 5.30 p.m. from the cell phone of the deceased
.
to P.W.16Bulbul Yadav & P.W.18Bhagwati Singh.
Since we find no challenge by the
appellant to his apprehension by investigating team
at village Akori, we also find no explanation from
the appellant about his being in custody of cell
ig
phone No. 9820820787 belonged to deceased at the
time of incident nor any explanation is putforth
by the appellant about making phone calls from cell
No. 9820820787 after the incident. We also find it
material to note that the appellant has also failed
to give explanation of his calling P.W.16Bulbul
Yadav on his cell No. 9919239886.
Merely because the investigating agency
.
could not recover the cell phone, this do not doubt
the case of the prosecution, particularly when the
appellant has failed to explain the fact of his
being in possession of said phone and of his making
phone call from the said cell phone immediately
after the incident to his native place. All these
facts, therefore, clearly established involvement
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of the appellant in taking away the call phone of
deceased after the incident and using the same. In
the circumstances the possibility of the
appellant’s destroying the phone after making its
use in order to disappear the evidence cannot be
ruled out.
Apart from above circumstances, which
21.
ig
established the presence of the appellant at the
scene of offence beyond reasonable doubt, we find
that according to C.A. report, the semen having
group “AB” is found on the underwear of the
appellant and also on the bedsheet, on which the
deceased was found lying. It is material to note
that the semen having group “AB” is also found on
the kurta and underwear which was on the person of
the deceased. The C.A. report (Exh.38) thus
established that the semen of the appellant was
found on the clothes of the deceased as above. No
explanation is putforth by the appellant on this
material aspect.
.
As per the C.A. report (Exh.42), the blood
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group of the appellant is “AB”, while the blood of
the same group is found on the clothes of deceased
and on the bedsheet. All these circumstances
further established the presence of the accused on
the spot at the time of commission of the offence.
.
Considering the fact that the semen was
found on the clothes of the deceased as well as on
ig
the appellant as above, there was ejaculation. So
also according to the evidence of the complainant
it has come on record that the garments which were
on the person of the deceased were pulled down up
to her thigh. The postmortem report refers to
deceased sustaining five injuries including stab
injury on the abdomen just above umbilicus. Apart
from said injury, the deceased is also found to
have sustained one injury on her left thumb; said
injury establish fact of deceased resisting the act
of the appellant while committing rape upon her.
Said fact proves that there was intention and
preparation made by the appellant to commit rape on
the deceased, as he has removed the salvar of
deceased below her waist and there was ejaculation
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of semen. Considering the above evidence,
prosecution is found to have established beyond
reasonable doubt that the appellant having visited
flat of the deceased, committed rape upon her and,
we find that the appellant on deceased resisting
In a case based on circumstantial
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.
for the said act, committed her murder.
evidence, the settled law is that the circumstances
from which the conclusion of guilt is drawn should
be fully proved and such circumstances must be
Moreover, all the
conclusive in nature.
circumstances should be complete and there should
be no gap left in the chain of evidence. Further
the proved circumstances must be consistent only
with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.
22.
In view of above stated settled legal
principles, from all the material circumstances as
discussed above, prosecution is thus found to have
established beyond reasonable doubt all the charges
levelled against the appellant. Thus, we have no
hesitation to hold that prosecution has established
that the deceased had met with homicidal death. The
prosecution has also established that the victim
was raped before she was murdered.
.
We, therefore, do not find any merit in
SMT. V.K. TAHILRAMANI,J.]
[P.N. DESHMUKH,J.]
the appeal. Same is, therefore, dismissed.
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