Saturday 27 September 2014

Whether it is mandatory to obtain fingerprint of accused in presence of Magistrate?



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 
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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 
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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 
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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 
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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 
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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 
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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 
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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., 
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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 
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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 
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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
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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 
ig
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 
ig
.
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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