Criminal Appeal Nos. 441 of 2005, 663 and 664 of 2014. Case: Futarmal Kapurji Borana and Ors. Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal Nos. 441 of 2005, 663 and 664 of 2014 |
| Counsel | For Appellant: Aniket Vagal, Adv. and For Respondents: H.J. Dedia, A.P.P. |
| Judges | V. K. Tahilramani, Actg. C.J. and Dr. Shalini Phansalkar Joshi, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Section 313; Indian Evidence Act, 1872 - Section 114(a); Indian Penal Code 1860, (IPC) - Sections 302, 392, 394, 395, 396, 449, 452 |
| Judgement Date | December 17, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
Dr. Shalini Phansalkar Joshi, J.
-
These three Criminal Appeals are arising out of the one and same Judgment and Order dated 23rd November 2004 in Sessions Case No. 270 of 2002 of Additional Sessions Judge, Greater Bombay; hence, they are being decided by this common Judgment. These Appeals are preferred by Original Accused Nos. 2, 3 and 4 and, for the sake of convenience, in these Appeals also, the Appellants are referred by their original nomenclature as "Accused Nos. 2, 3 and 4". By the impugned Judgment, they have been convicted for the offence punishable under Section 396 of IPC and sentenced to suffer R.I. for life and to pay fine of Rs. 1,000/- each, in default to suffer further R.I. for four months; for the offence punishable under Section 395 of IPC and sentenced to suffer R.I. for life and to pay fine of Rs. 1,000/- each, in default to suffer further R.I. for four months; for the offence punishable under Section 449 of IPC and sentenced to suffer imprisonment for life and to pay fine of Rs. 500/- each, in default to suffer R.I. for four months, with a further direction that all the substantive sentences of imprisonments are to run concurrently.
-
Facts of the Appeals can be stated, in brief, as follows:--
PW-1 Chetan Shah has been doing the wholesale business of jewellery in the name of 'K.K. Jewellers' along with his father at Kalbadevi on the Second Floor, above Heera Misthan in Room No. 5. On 11th October 2001, he attended the shop upto 7:45 pm, took the stock of gold ornaments, which were weighing about 2,300 gms., and kept those ornaments in the safe in drawers of the cupboard. He also counted the cash, which was of Rs. 1,00,000/-. He kept it in another Godrej cupboard. Further, he kept the key of safe in the drawer and the key of the drawer in the cupboard of front cabin. As usual, he carried with him the key of the front cabin cupboard and the main door of the shop. The spare key of the main door of the shop used to be with the deceased Premaram, who was working in the said shop as skilled labour. On that day, Premaram remained in the shop, when PW-1 Chetan left the shop in the night at about 7:45 pm.
-
On the next day, when PW-1 Chetan came to the shop, as usual, at about 12:30 pm, he found that the main door of the shop was locked only by its self-lock. He opened the door with the key with him, entered inside the shop and found all the articles therein lying scattered. The wooden cupboard and the Godrej Almirah was damaged and opened. The safe and drawers were also opened and all the gold ornaments were found missing from the shop. As he noticed that deceased Premaram was also not there, he phoned Jeevankumar Jain, his sister's husband, and also informed the said fact to his paternal uncle Kantilal Jain. Both of them came there within 10 to 15 minutes.
-
Kantilal Jain was having the shop adjacent to the shop of PW-1 Chetan and, there, the employees in both the shops used to sleep, as it was having the facility of kitchen, bath-room and latrine. Meanwhile, Premaram's brother Ruparam was also informed and he also rushed there. When Kantilal's shop was opened, they found the mattresses kept one upon another in disorderly manner. On looking carefully, they noticed the portion of the foot of a human being. On removal of the mattresses, they saw the dead body of Premaram with injuries on his chest and hands. His legs were tied with nylon rope from back side. His mouth was gagged with red cloth, whereas, his neck was compressed with clutch wire. The information was then, accordingly, given to L.T. Marg Police Station on phone.
-
On receipt of this information, PW-21 PSI Maruti Shinde, along with PW-25 ACP Anil Nalawade came to the spot of incident. There he recorded the complaint (Exhibit-18) of PW-1 Chetan Shah and on phone obtained Crime No. 253/2001, which came to be registered for the offences punishable under Sections 452, 392, 394 and 302 of IPC. Thereafter he made Inquest Panchanama (Exhibit-31) and sent the dead body for postmortem examination. PW-21 PSI Shinde then made the Scene of Offence Panchanama (Exhibit-33) of both the shops and collected some incriminating articles, which he deposited after returning to L.T. Marg Police Station in the Muddemal Property Room.
-
Further investigation of the case was taken over by PW-25 ACP Anil Nalawade. He recorded the statements of witnesses and from the statement of PW-2 Ram Yadav, the names of the Accused were transpired. On 15th October 2001, PW-22 API Ramchandra Dhawale arrested Accused No. 1 Chhagan and Accused No. 2 Laxman and seized from their possession various stolen articles and gold ornaments, like, two gold pendants from Accused No. 1 and one wrist watch of Titan Make and two gold pendants from Accused No. 2. The blood stains were found on the shirt of Accused No. 2 Laxman. These articles were seized under Panchanama. As abrasion marks of 3 to 4 days old were found on the chest of Accused No. 2 Laxman and Accused No. 1 Chhagan, both of them were referred for medical examination.
-
On 16th October 2001, PW-22 API Dhawale arrested Accused No. 3 Shankar. On his person also, 4 to 5 days old abrasions were found on his chest and hand. Hence, after the Arrest Panchnama (Exhibit-52), he was also referred for medical examination. On 17th October 2001, API Parab recorded the statement of PW-3 Venudas Vaishnava and seized stolen property produced by the said witness. On 19th October 2001, API Mallesh, who was assisting PW-25 ACP Nalawade, recorded the Memorandum Panchanama of Accused No. 1 Chhagan, which led to the discovery of stolen property. It was identified by PW-1 Chetan Shah on 20th October 2001. On 22nd October 2001, at the instance of Accused No. 3 Shankar, some more stolen property was discovered, which came to be seized in pursuance of Memorandum Panchanama (Exhibit-48) and Seizure Panchanama (Exhibit-48A).
-
On the basis of the information received, PW-25 ACP Nalawade sent PW-23 PI Tukaram Wahile to Bhuvneshwar. There, on 25th October 2001, Accused No. 4 Futarmal and Accused No. 5 Pradeep came to be nabbed. Their personal search was taken and they were arrested vide Panchanama (Exhibit-90). They were also referred for medical examination. They were produced at L.T. Marg Police Station on 27th October 2001. During custodial interrogation, Accused No. 5 Pradeep showed willingness to point out the place from where he has collected the clutch wire and also to point out the place where he had concealed stolen articles. Accordingly, the Memorandum Panchanama (Exhibit-42) was made and thereafter Accused No. 5 guided the Police and Panch to the room where PW-10 Rajendra Vichare was present and at the instance of Accused No. 5, he produced the key of the suite-case, in which various gold ornaments were kept. They were seized under Panchanama (Exhibit 42-A). On 7th November 2001, again at the instance of Accused No. 4 Futarmal, some more stolen gold ornaments came to be seized from PW-15 Hajarimal Gujar on 2nd November 2001 and on 13th November 2001, Test Identification Parades of Accused Nos. 1 to 3 and Accused Nos. 4 and 5 were held, respectively, by PW-16 Special Executive Officer Dushant Oza. The Postmortem Report (Exhibit-83) was received on 2nd January 2002. Hence, further to completion of investigation, PW-25 ACP Nalawade filed Charge-Sheet in the Court of Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, against the Accused.
-
On committal of the case to the Sessions Court, the Trial Court framed charge against the Accused vide Exhibit-6. The Accused pleaded not guilty to the charge and claimed trial, raising the defence of denial and false implication.
-
In support of its case, prosecution examined in all 25 witnesses and on appreciation of their evidence, the Trial Court was pleased to hold the guilt of all the 5 Accused to be proved beyond reasonable doubt and convicted and sentenced them, as aforesaid.
-
This Judgment of the Trial Court is challenged in these Appeals. As regards Accused No. 1 Chhagan, his Criminal Appeal No. 417 of 2005 came to be disposed of in pursuance of the finding that he was juvenile-in-conflict-with-law at the time of incidence and hence he was released from Jail on 21st July 2015.
-
As regards Accused No. 5 Pradeep, as per the Report submitted by the Superintendent of Nashik Road Central Jail, he is reported to be dead on 24th August 2008, while he was undergoing the sentence of imprisonment in Jail and was released on parole. Hence Appeal preferred by him, if any, stands abated.
-
In these Appeals, we have heard learned counsel for Accused Nos. 2 to 4 Mr. Vagal, who has challenged the Judgment of the Trial Court on the ground that the circumstances on which the prosecution has relied upon are not established satisfactorily beyond reasonable doubt, whereas, learned A.P.P. Mr. Dedia has supported the Judgment of the Trial Court with a fervent plea that prosecution has not only established the incriminating circumstances against Accused, but those circumstances are also of a clinching nature and no other inference, but that of the guilt of the Accused...
To continue reading
Request your trial