Partly allowed

Raju @ Rajiv Basvaraj Gurav v. the State of Maharashtra

Bombay HC22 Aug 2013APEAL/925/2009

Case brief

AI extract

What is this about?

A teacher's murder, robbery and concealment led to confirmation of two accused's convictions. A third was acquitted of murder; his robbery sentence was reduced to eight years' rigorous imprisonment, while his disappearance-of-evidence conviction remained. The court declined to disturb the other accused's acquittals.

What did the court decide?

Accused no. 4 acquitted under Section 302 read with 34 IPC; life imprisonment for robbery replaced with eight years' rigorous imprisonment.

Raju @ Rajiv Basvaraj Gurav Vs the State of… — Murder and Culpable Homicide | Bombay HC (2013)

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vidya

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 925 OF 2009

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Raju @ Rajiv Basvaraj Gurav Age : 25 years, Occ. Nil R/o. Kakkeri, Taluka Khanapur, Dist. Belgaon, Karnataka State (Presently detained at Nashik Road Central Prison, Nashik) ... Appellant vs. The State of Maharashtra at the instance of City Ratnagiri Police Station ... Respondent a/w. CRIMINAL APPEAL NO. 239 OF 2010

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Bistappa Yallappa Bandargali Age : 28 years, Occ. Labourer R/o. Kakkeri, Taluka Khanapur, Dist. Belgaon, Karnataka State (Presently detained at Nashik Road Central Prison, Nashik) ... Appellant vs. The State of Maharashtra Through Police Inspector, Ratnagiri City Police Station ... Respondent a/w. CRIMINAL APPEAL NO. 274 OF 2010

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Imtiyaj Alias Chilya Dadapir Akshimani Age : 27 years, Occ. Labourer R/o. Kakkeri, Taluka Khanapur, Dist. Belgaon, Karnataka State (Presently detained at Nashik Road Central Prison, Nashik) ... Appellant

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... Respondent

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vs. The State of Maharashtra Through Police Inspector, Ratnagiri City Police Station

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CRIMINAL APPEAL NO. 401 OF 2010

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The State of Maharashtra Through Police Inspector, Ratnagiri City Police Station ... Appellant vs. 1.Dattu Basavraj Gurav Age : 27 years, R/o. Kakkeri, Taluka Khanapur, Dist. Belgaon, Karnataka State

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2.Ashok Balkrishna Lohar Age : 25 years, R/o. Murkhibai, Taluka Belgaon Dist. Belgaon, Karnataka State

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Fakir @ Fakru Bedar Somappa Thaiwar Age : 25 years, R/o. Kakkeri, Taluka Khanapur, Dist. Belgaon, Karnataka State

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4.Yankappa Halbasu Chatrabani & Thalwar, Age : 21 years, R/o. Anwal, Taluka Vijapur Dist. Ramdur, Karnataka State

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5.Allauddin A. Ajij Solkar Age : 40 years, R/o. 'D' Wing, Room No. 104, Mollatnagar, Ratnagiri. … Respondents (Original Accused nos. 3 & 5 to 8)

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Mrs. Nasreen S.K. Ayubi, Advocate appointed for the appellants in Cri.

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Appeal No. 925/2009 and Cri. Appeal No. 239/2010 and for respondent nos. 1, 2 and 3 (Original accused nos. 3, 5 and 6) in Cri. Appeal No. 401/2010.

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Mr. Murtaza M. Najmi, Advocate appointed for the appellant in Cri. Appeal No. 274/2010 (original accused no. 4).

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Mrs. V.R. Bhonsale, APP for the State/appellant in Cri. Appeal No. 401/2010 and state-respondent in connected matters.

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Mr. Sachindra B. Shetye a/w. Ms. Shriya S. Jadhav, Advocate for respondent no. 5 (original accused no. 8)

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CORAM: MRS. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ.

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AUGUST 22 , 2013.

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JUDGMENT (Per Mrs. Mridula Bhatkar, J.)

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Out of the four appeals, three appeals are preferred by the original accused nos. 1, 2 and 4 and the fourth appeal is preferred by the State challenging the acquittal of original accused nos. 3, 5, 6, 7

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and 8. The judgment and order dated 30^th April, 2009 passed by the Additional Sessions Judge, Ratnagiri is challenged in all these appeals. The learned Sessions Judge has convicted original accused

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nos. 1, 2 and 4 in three appeals for the offences of murder and robbery under sections 302 and 394 read with 34 of IPC and also for causing disappearance of evidence i.e. dead body under section 201 read with 34 of IPC. For the offence under sections 302 and 394 read with 34, all the three accused were sentenced to suffer life

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imprisonment. For the offence under section 201 read with 34, they were sentenced to rigorous imprisonment for three years.

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It is the case of the prosecution that one Anjali Anant Khedekar, deceased was a primary teacher in Zilla Parishad school at Ratnagiri. She was residing along with her husband and daughter in Ratnagiri. Every day she used to go to school by taking a short cut near Mestri Villa building to catch a bus. The incident has taken place on 14^th April, 2007 in the morning at around 6.30 a.m. On that day, Anjali left her house to attend the function in the school. She took her regular short cut to go to Mestri Villa bus stop. A construction work was going on near Mestri Villa. Many labourers, native of Karnataka State, who were doing masonry work on the site used to reside there temporarily. When Anjali reached near the construction site, accused no. 1 dragged her to the first floor. Accused nos. 1 and 2 tried to molest her and when she raised shouts, they throttled her by tying a binding wire around her neck and killed her. Accused nos. 3 to 7 were also present on the spot. After killing, they threw her body in the water tank of the building. Thereafter they again took out the body and wrapped it in a bedsheet and threw it in a septic tank on

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the ground floor. Before throwing her body in the septic tank, accused nos. 1, 2 and 4 removed the ornaments on the person of Anjali.

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When PW-21 Anant Shankar Khedekar found that his wife Anjali has not returned home till evening, he searched for her and at last went to Ratnagiri Police Station and gave a missing complaint of Anjali. The police registered missing report at 18/2007 (Exhibit 39) and started searching Anjali. But Anjali was not found till 6^th June, 2007.

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On 6^th June, 2007 in the midnight at about 00.05 hours, the police from Ratnagiri Police Station received phone call from one person who disclosed his name as Prakash Patil and states that he would inform about the missing teacher of Ratnagiri on the same day. The police made an entry in the diary accordingly. On 6^th June, 2007 at around 2.30 p.m. again a phone call was received from Prakash Patil informing that a dead body of missing teacher is in septic tank near Mestri Villa and the said body is thrown by accused no. 1 and other workers. Accordingly, an entry was made in the station diary.

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Pursuant to the said information, the police went near Mestri Villa and tried to find out the said septic tank. They came across a fresh construction around one septic tank and so they suspected. On removing the said construction, they opened the lid of the septic tank

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and found that a skeleton with long hair. The police drew inquest panchnama of the skeleton at Exhibit 38 in the presence of panchas. The police called the husband of Anjali PW-21 Anant Khedekar and recorded the statement of police constable PW-1 Suhas Harishchandra Shivalkar. PW-1 police constable Suhas Shivalkar lodged complaint at the police station against the accused. The FIR

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is marked at Exhibit 40. PW-29 I.O. Rajiv Muthane started investigation. He arrested accused no. 1 on the same day. Accused nos. 2 and 4 were arrested on 10^th June, 2007. Other accused nos. 3, 5 and 6 were also arrested. The police recorded the statements of witnesses. In the course of investigation, accused nos. 1, 2 and 4 showed their readiness to make statements in respect of ornaments and other articles of deceased Anjali. Pursuant to the statements

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made by accused nos. 1, 2 and 4 before the panchas, respective memoranda were recorded and thereafter on recovery of the gold articles, recovery panchnama was drawn. After completion of the

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investigation, police filed charge sheet in the Magistrate's Court and then the learned Magistrate committed the case to the Sessions Court.

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The learned Sessions Judge framed charge (Exhibit 10) against accused nos. 1 to 6 on 12^th March, 2008 and thereafter on 30^th May, 2008, accused nos. 7 and 8 were also added and charge was framed against them. Out of 8 accused, accused nos. 1, 2 and 4 were convicted and other accused were acquitted. Hence, these appeals.

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The case involves a very peculiar circumstances and evidence. The death of Anjali was not natural. It was a murder, which definitely could not have been detected, but for a human urge to speak the truth , the information was furnished to the police. PW-21 Anant Khedekar has deposed that the construction work was going on near Mestri Villa and that being a short cut, she used to go from Mestri Villa to reach the bus stop. On 14^th April, 2007 at 6.30 a.m. she left the house to go to school. She met her husband last at that time and thereafter she was not seen by anybody. Her husband approached the police on the same day and a missing report (Exhibit 39) was given. Anjali was not traced nearly for more than 1½

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month.

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From the evidence of PW-1 police constable Suhas Shivalkar and PW-29 I.O. Rajiv Muthane, the prosecution has brought on record that on 6^th June, 2007 at midnight at about 00.05 hours, a phone call was made in the police station by an unknown person. He disclosed his identity as Prakash Patil and informed that he would give details about missing of teacher from Ratnagiri. The police made an entry to that effect in the station diary . On the same day at about 14.30 hours, the person named Prakash Patil informed the police telephonically that a dead body of missing teacher from Ratnagiri is thrown in the septic tank by one Raju Basvaraj Gurav(accused no. 1) and his co-labourers. On querry by the police, the person named Prakash Patil disclosed the names of Bistappa Yallappa Bandargali (accused no. 2), Imtiyaz Dadapir Akshimani (accused no. 4) and Fakir Bedar Somappa (accused no. 6). Accordingly, station diary entry was made. Pursuant to the said information, the police went near Mestri Villa to take search. The police accordingly made station diary entry to that effect which is produced at Exhibit 124/1 and Exhibit 129/1.

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The finding of a skeleton in the septic tank, pursuant to the telephonic information received, is the most clinching circumstance in the entire evidence. It is stated by PW-1 police head constable Suhas Shivalkar and PW-29 I.O. Rajiv Muthane that after making station diary entry, the police party went to the area known as Mestri Villa. Near the dilapidated house of Mr. Jagtap, a septic tank was found. They noticed a fresh cement construction covering the septic tank. They therefore suspected and opened the lid of the septic tank. Foul smell was coming from the septic tank and they found some object in the tank. The object was removed from the tank in the presence of Executive Magistrate. It was a skeleton with long hair. Thus, on the basis of missing report given by PW-21 Anant Khedekar and as per the telephonic information given by one anonymous person named Prakash Patil, the police found a skeleton having long hair, which was undoubtedly of Anjali Khedekar. These circumstances are linked so closely and tightly with each other, that evidence is sufficient to hold the skeleton found in septic tank was none other than that of missing Anjali Khedekar. If the phone call would not have been received by the police on 6^th June, 2008, the missing case of Anjali till then was clueless.

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It was argued by the defence that PW-14 Prakash Patil in his examination did not say that he phoned the police on 6^th June, 2007 and disclosed about the body of missing teacher thrown in the septic tank by the accused. In the cross-examination Mr. Prakash Patil has denied that he had ever called up the police station to give information in respect of missing Anjali. This effort of learned counsel for the defence has failed to create in our mind any doubt either in respect of truthfulness of the police investigation pursuant to the telephonic information received by them from one person or the credibility of evidence of Prakash Patil. The recovery of skeleton itself corroborates the fact that police had received a true and correct information in respect of throwing of body of missing Anjali in the septic tank. Had the body not found in the septic tank pursuant to the information, then the truthfulness of the information given by anonymous person would have been definitely doubted and treated as false information. A test of truthfulness of the information is always on the finding of fact persuant to the information. It is correct that Prakash Patil PW-14 in his examination-in-chief did not say that he gave information to police in respect of throwing of body of Anjali in the septic tank. However, he not giving telephonic

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information to police on that night; does not falsify the case of the investigating agency that they did not receive any information from one person named Prakash Patil. It is obvious that some person gave information on telephone and disclosed his identity as Prakash Patil. An informant can take any name when he is communicating telephonically.

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A thread of disclosure of the identity by name Prakash Patil by the informant cannot be left untied. After going through the evidence of Prakash Patil, we are of the view that the person who informed the police and disclosed his name as Prakash Patil was fully aware of the incident as to how it occurred and he also knew that Prakash Patil is the one who had knowledge of the incident. Surprisingly, Prakash Patil is not a fictitious name but during the course of investigation, police did find Prakash Patil, a real person who was very much aware of the incident. Before discussing the evidence of Prakash Patil, it is necessary to consider the second portion of the information which is appearing in the station diary entry Exhibit 129/1.

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The informant did not stop by giving a limited information

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about the body of missing teacher thrown in the septic tank near Mestri Villa but he disclosed the name of the offenders. Thus, the communication of the names of offenders is another chinching circumstance which directly goes against the accused. Exhibit 129/1, the station diary entry, discloses that the informant told the police that the said body was thrown by Raju Basvaraj Gurav, original accused no. 1 and other workers. It is mentioned in the diary entry that the police constable, who has noted down the information, put query to the informant about the names of other workers. It was a specific query. Further noting discloses that the informant told the names of other workers as Bistappa Yallappa Bandargali (accused no. 2), Imtiyaz Dadapirakshimani (accused no. 4) and Fakir Bedar Somappa (accused no. 6), all residents of Belgaum. Thus, the person was fully aware about the incident and who has committed the crime. In respect of finding of the body, one more incriminating circumstance is added due to the place where the body was found. It is not the case that the body was found in the house or it was lying on the road. If the body is found lying in the public place, then any passer by might have seen the body and informed about it to the police. This is not the case in the present

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matter. The body was thrown in such a place which was not only unaccessible but it was a place where nobody can reach. Therefore, the body was not seen by anybody nearly for more than 1½ month. PW-1 police constable Suhas Shivalkar has stated that the police noticed some fresh cementing on one septic tank and on removal of that cement, they opened the lid of the tank and found a skeleton in the tank. Thus, the place where the body was thrown was definitely with an intention to conceal the body and with a view to disappear the evidence so that it should be clueless. The police would not have found the body in the absence of information. Thus, it was a very peculiar fact which was within the knowledge of the informant. This fact corroborates further disclosure of names of the offenders. The informant was specific while giving information about the names of offenders. The informant gave four names i.e. Raju Basvaraj Gurav (accused no. 1), Bistappa Yallappa Bandargali (accused no. 2), Imtiyaz Dadapir Akshimani (accused no. 4) and Fakir Bedar Somappa (accused no. 6). It was also communicated that all these persons are from Belgaum. This made a wide access to the police to reach to accused nos. 1, 2, 4 & 6.

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Now let us see evidence of PW-13 Suresh Nasappa Shivangudi. Evidence of PW-14 Prakash Patil and PW-13 Suresh shows that they knew each other. Both of them were working as mason at the site where the construction work was going on. He stated that in the month of June, 2007 PW-13 Suresh came to him. Prakash Patil knew accused nos. 1 to 6 as they were in the same occupation. PW-13 Suresh told PW-14 Prakash that accused no. 1 had committed murder of one woman. Prakash Patil made query to Suresh as to how he came to know. At that time, PW-13 Suresh told him that he knew this fact through accused no. 4. PW-13 Suresh has corroborated the evidence of Prakash Patil. He has stated that in the month of June, accused no. 4 Imtiyaz told him that he wanted to go to his village in Karnataka. At that time, Suresh enquired that how he would meet the expenses to go to village. Accused no. 4 told him that he was having two gold articles and by selling them, he would raise funds to go to his village. At that time, accused no. 4 disclosed that accused nos. 1 and 2 had taken one woman in the building near Mestri Villa. They tried to have forcible intercourse with her, but as she resisted and raised shouts, accused nos. 1 and 2 decided to kill her. Accused nos. 1 and 2 has throttled her by tying a wire around

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her neck. Thereafter, they removed the ornaments on her person and accused nos. 3 to 6 threw her body in the water tank in the same building. Thereafter, accused nos. 1 to 6 again removed that body from the water tank, wrapped it in a bedsheet and threw it in the septic tank. PW-13 Suresh has deposed that after this disclosure by accused no. 4 to him, he was scared. He went to PW-14 Prakash Patil on the same evening and narrated disclosure of accused no. 4 to Prakash Patil. PW-13 Suresh deposed that on the next day, Prakash Patil, he himself and Bhujan Mestri went to the place of work of accused no. 4 and they made queries to accused no. 4 about the incident. At that time, accused no. 4 produced one gold ring and ear tops.

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PW-14 Prakash Patil has corroborated evidence of PW-13 Suresh. Prakash Patil has deposed that Suresh narrated him that accused no. 4 has disclosed to him about the committal of murder by accused nos. 1 and 2, removing all ornaments and then throwing the body in the tank. He further corroborated that he along with Bhujang and PW-13 Suresh went to accused no. 4 and questioned him about the incident. At that time, accused no. 4 told Prakash

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Patil that accused nos. 1 and 2 have taken the woman on the 1^st floor and tried to have intercourse with her. But as she raised shouts, accused nos. 1 and 2 decided to kill her. Accused nos. 1 and 2 have throttled her neck by tying a binding wire around her neck. Thereafter, they removed the ornaments on her person and accused nos. 3 to 6 threw her body in the water tank in the same building. Then, accused nos. 1 to 6 again removed that body from the water tank, wrapped it in a bedsheet and threw it in the septic tank. Both the witnesses were cross-examined especially on the point that if they were aware of the incident and names of the offenders, then why they did not go to the police immediately and inform the police about the same. Both the witnesses stated that they were shocked and scared and therefore they didn't have any courage to go to police station and inform the police, so they kept mum. The evidence of these two witnesses reveals that three persons had knowledge from accused no. 4 as to how and who committed the murder of Anjali. Besides, PW-14 Prakash Patil and PW-13 Suresh, one more person i.e. Bhujang was also aware of these facts. There may be a possibility that out of these three persons, one must have informed the police as to who has committed the murder of Anjali and where the dead body

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was thrown. The person who had phoned obviously wanted to hide the real identity and, therefore, he gave the name of one Prakash Patil who was also fully aware of the incident and also the names of assailants. Thus, the person who informed the police had knowledge that Prakash Patil is aware of the names of assailants. Hence, we can safely say that out of these three persons, one might have informed the police about the murder of Anjali and where her body was lying.

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The case of the prosecution doesn't stand only on the circumstantial evidence but it has a support of main pillar i.e. evidence of eye witness PW-16 Arjun Maruti Wadar. PW-16 Arjun claims to be an eye witness who was also doing masonry work near Mestri Villa locality. He knew accused nos. 1 to 5 as they all were working together and residing in the shed at the site of work. It is an usual practice of the workers to construct a temporary shed at the site of construction work and to stay there. All these workers had come from Belgaum, Karnataka State. He deposed that on 14^th April, 2007 he had seen accused nos. 2, 3 and 5 near the water tank. He heard shouts of one woman in the morning from the upper floor of the building. She was crying. So, he along with accused nos. 2, 3

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and 5 went to the upper floor. Accused no. 7 was also there. He noticed that accused no. 1 had pressed her mouth by one hand and neck by another hand in the bathroom. That time there was nicker and brassiere on the person of that woman. By seeing this, he got frightened and came down. When he saw that woman, she was alive. He then went to the shed and sat there. At that time, accused no. 2 came in the shed and collected binding wire and again ran upwards. Then accused nos. 1 to 7 came to the shed after sometime. Accused no. 1 threatened him that he should not tell anything about the incident to anybody. Then accused no. 1 collected the ladder in the shed and went to the water tank. Accused nos. 2 to 7 followed him. He has stated that they wrapped the body of woman in one bed sheet. Then, accused no. 1 pelted stones on the skull of the woman three to four times. He stated that the said woman used to go from that route near Mestri Villa. He identified her photograph which had come in the newspaper. This eye witness PW-16 gives a clear picture as to what had happened on that day. He threw light on who has played which role. His evidence could not be destroyed by the defence in the cross-examination except few insignificant improvements.

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It was argued by the defence that the evidence of PW-13 Suresh and PW-14 Prakash Patil cannot be admitted in the evidence and cannot be given any weightage as the evidence is based on extra judicial confession of accused no. 4. His confession cannot be used against the co-accused. We make it clear that evidence of PW-13 Suresh and PW-14 Prakash Patil though has a foundation of extra judicial confession of accused no. 4, the case of prosecution mainly stands on the evidence of PW-16 Arjun, an eye witness, whose evidence is corroborated with the evidence of PW-13 and PW-14 and other circumstantial and documentary evidence like station diary entry 129/1. The eye witness has attributed a specific role to accused nos. 1 and 2. He has stated that it was accused no. 1 who had pressed the woman's mouth by one hand and neck by another hand in the bathroom. By seeing this, he got frightened and came down and at that time, that woman was alive. He then went to the shed and sat there. At that time, accused no. 2 came in the shed and collected binding wire and again ran upwards. Thereafter, the woman was dead. PW-13 Suresh and PW-14 Prakash Patil have deposed that accused no. 4 had disclosed that accused nos. 1 and 2 had throttled the woman with the help of binding wire. In fact the

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evidence of PW-16, eye witness, along with other circumstantial evidence completes the chain of the circumstance and evidence against accused nos. 1, 2 and 4 fully. The evidence of PW-13 and PW-14 make a concrete case against accused nos. 1, 2 and 4. Apart from this, the prosecution has tendered one major aggravating circumstance against accused nos. 1, 2 and 4 i.e. recovery of ornaments and identification of those ornaments by PW-21, husband of the deceased. As per the case of eye witness and evidence of PW13 and PW-14, accused nos. 1 and 2 have removed the ornaments from the person of deceased. The police have recorded memorandum panchnama of accused nos. 1, 2 and 4 and also recovery panchnama respectively.

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The prosecution has examined PW-17 Ramesh Nagale, who was working as a mason at Ratnagiri. He has stated that on 25^th April, 2007 accused no. 1 had contacted him at the site of his work and asked him whether he knew any goldsmith. PW-17 Ramesh knew one Nandakumar Karande who could have told him about the goldsmith. Accused no. 1 had disclosed him that he was in need of money for the marriage of his brother and so he wanted to mortgage

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gold ornaments of his wife. Thereafter, on 26^th April, 2007 at about 11.15 a.m. PW-17 Ramesh, accused no. 1 and Nandu Karande went to Vijay Akhade, who was working as a peon in District Sports office. Accused no. 1 told Vijay Akhade that he was in dire need of money and wanted to mortgage his wife's ornaments. Then Vijay Akhade took them to Chandrakant Sagavekar, who is goldsmithh at Maruti Mandir at Ratnagiri.

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The prosecution has examined PW-12 Chandrakant Sagavekar. PW-12 Chandrakant was running a jewellery shop in the name and style “Shrikrishna Jewellers” at Maruti Mandir, Ratnagiri. He has stated that on 26^th April, 2007 his friend Vijay Akhade came to the shop along with three unknown persons and introduced one of the unknown person as Raju Gurav (accused no. 1) and told that Raju Gurav wanted to sell his wife's ornaments for marriage of his brother. He agreed and told them that as the cash was not ready, they should come in the evening at 6 p.m. He stated that out of those three unknown persons, one was Mr. Nagale, second one was Karande and third was Raju Gurav. On 26^th April, 2007 at 6 p.m. accused no. 1 came with one gold mangalsutra, one gold chain and pair of ear

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chain. PW-12 Chandrakant paid Rs.28,900/- and kept the ornaments with him. He asked for the receipt. However, accused no. 1 told him that the receipt is in his native place. Then police had recorded his statement and he identified Raju Gurav. The police seized and sealed those articles in the presence of panch PW-11 Ramchandra Dhulap under the panchnama dated 30^th August, 2007. Those articles i.e. one gold mangalsutra, one gold chain and pair of ear chain are produced before the Court marked as Articles 34, 35 and 36 and the articles were identified by PW-21 Anant Khedekar (husband of deceased).

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The prosecution has examined PW-7 Mahadeo Gunphi, who has stated that he knew Bistappa Yellappa Bandgal (accused no. 2) prior to panchnama. Accused no. 2 had visited him with two gold bangles and asked him to keep those bangles with him. Hence, he retained the same. About three to four days prior to arrival of police, the witness received information that accused no. 2 was involved in some crime, therefore, he kept those bangles under the Laterite stone (Article 10). He produced those gold bangles to the police. The bangles (Article 32) were before the Court and identified by PW-21

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Anant Khedekar.

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PW-18 Pradip Rajaput was called by the police at the police station on 13^th June, 2007. He was there along with other panch Vaibhav. Accused no. 4 present in the police station told that he would produce one mangalsutra, ring, bangles and ear tops from the house. Accused no. 4 gave information in Hindi. The police drew memorandum marked Exhibit 77A. The police informed that accused was resident of Kakkeri, Karnataka State and so PW-18 Pradip along with other panch and police party went to Village Kakkeri, Karnataka State in police vehicle. The accused took them to his house. He took out one cloth bag and removed one mangalsutra out of the bag. The said mangalsutra was taken in custody and sealed under panchnama Exhibit 77B and is marked Article 27. The accused thereafter made statement that he would produce other articles from the goldsmith at Kakkeri. The said statement was recorded under Memorandum.

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The police examined PW-6 Pandurang Revankar who was running a jewellery shop by name “Shital Jewellers” at Ainawal, District Dharwad. He has deposed that the police from Ratnagiri had

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come to him along with accused no. 4 Imtiyaz. Eight days prior to the visit of police, Imtiyaj along with his uncle had come to him and he has purchased gold ornaments such as bangles, ear tops and ring for Rs. 14,400/- and gave that amount to Imtiyaz. The said bangles (Article 29), gold finger ring (Article 30) and ear tops (Article 31) were seized by the police.

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PW-30 API Dipak Madhale has deposed about the disclosure of the information by accused no. 4 in the presence of panchas in respect of hiding mangalsutra in the house and selling of gold rings, bangles and ear tops to the goldsmith. He has deposed about the visit of gold smith's shop and recovery of ornaments under panchnama. PW-21 Khedekar has identified all these ornaments and specifically deposed that his wife Anjali used to wear these articles and on 14^th April, 2007 all these ornaments were on the person of Anjali when she left home in the morning to go to school. This is a very consistent cogent evidence which connects accused nos. 1, 2 and 4 to the commission of offence.

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One more incriminating circumstance of recovery of key Art 16

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of the house of Anjali Khedekar from accused no. 2 confirms the guilt of the accused. PW-3 panch Rajendra Pawar has stated on on 9^th June, 2007 he was called by police at Ratnagiri police station, at that time, accused no. 2 showed his willingness to show the spot where he had kept the articles. So, the police prepared memorandum panchnama marked Exhibit 45A. Thereafter PW-30 PSI Madhale along with his staff, himself, accused no. 2 and another panch witness Pangarkar went to Mestri Villa. Accused no. 2 led them to a bathroom of one block at 1^st floor and took out a brown paper which was wrapped to a stone. Thereafter he again took them to the terrace of 'C' wing. He climbed the water tank, entered the tank and collected pencil lid, burnt pieces of rexin, some buttons and hooks, pieces of glass, burnt pieces of white cement bags and also one receipt in the name of Anjali. All the articles were seized under panchnama Exhibit 45B. He collected pieces of burnt purse (Article 11), cash memo-cum-receipt of Rs. 350/- (Article 12), pencil lead & button part (Article 11), Sonata make wrist watch (article 13), jodvi (Article 14), pair of footwear (Article 15) and key (Article 16).

¶93

The evidence of PW-2 Supriya is an another important piece of

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evidence. PW-2 has stated that on 15^th June, 2007 she has acted as panch at the time of demonstration of applying key (Article 16) to the lock on the door of the house of Anjali. From the sealed envelope, a key was taken out and applied to the lock on the door of the house of Anjali and it worked and the door was opened. The key was again packed and sealed and panchnama to that effect was drawn, which is marked Exhibit 43. Key (Article 16) was identified by PW-21, husband of the deceased. Thus, considering the entire evidence, we are of the view that the police, though initially were clueless, have collected all the available evidence and the same were tendered meticulously before the Court by the prosecution. We are of the view that the appreciation of evidence by the trial Court thereby holding accused nos. 1 and 2 guilty of the commission of offence of murder is correct.

¶96

The learned counsel for accused no. 4 submitted that though accused no. 4 had shared the gold articles which was on the person of Anjali, he did not participate in the offence of murder. He submitted that there is no evidence to that effect against accused no.

¶97

On perusal of evidence of PW-16, PW-13 and PW-14, who are the

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witnesses on the point of incident of murder, we find that the eye witness has not attributed any specific role of killing Anjali to accused no. 4. Though all the accused are charged for the offence punishable under sections 302, 394 and 201 read with 34 of IPC, it is necessary for the prosecution to show that all of them have shared the intention to commit the offence under each count. The prosecution with the help of PW-16, PW-13 and PW-14 have successfully produced evidence against accused no. 4 on other two counts but not under section 302 of IPC. Though murder, robbery, concealing and disappearance of evidence have taken place in a course of one transaction, yet it is necessary to establish that each one of the accused especially accused no. 4 had common intention with accused nos. 1 and 2 to kill Anjali. From the evidence of PW-16 as he has given the entire narration as he construed the scene of incident, we don't find any specific role attributed to accused no. 4 by eye witness. He has stated that accused nos. 2 to 7 were present, however, by mere presence it cannot be said that accused no. 4 have shared the common intention with accused nos. 1 and 2 to kill Anjali. So, we are inclined to give benefit of doubt to accused no. 4 in respect of charge under section 302 of IPC.

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The learned counsel for accused no. 4 while arguing on the charge of robbery under section 394 has submitted that after going through the evidence of eye witness PW-16 Arjun, PW-13 Suresh and PW-14 Prakash Patil, it reveals that Anjali was killed first and thereafter the ornaments on her person were removed. He submitted that the evidence shows that the accused did not have an intention to rob Anjali when she was dragged. The intention of accused nos. 1 and 2 was to molest her. However, as the accused found that she would disclose their identity if she is kept alive, she was killed and thereafter the ornaments on her person were removed by accused nos. 1 and 2. The learned counsel on the basis of this scenario has submitted that considering the ingredients of Section 392 and Section 404 of IPC, this offence cannot be called as robbery but it is an offence covered under section 404 of IPC which speaks of misappropriation of property possessed by deceased person at the time of death. He argued that therefore the accused be acquitted from the offence of robbery.

¶102

On going through Section 404 of IPC and examining the ingredients of the said section, we are unable to appreciate the

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submission of learned counsel for accused no. 4. Though initially the accused did not intend to rob Anjali, murder and subsequent act of removing ornaments and throwing away her body in the septic tank has taken place in a course of one transaction. The ornaments were

¶105

removed from the person of Anjali and accused nos. 1,2 and 4 have distributed those ornaments and kept it for their own purpose. Thus, initially there may not be any intention to take away the ornaments on the person of Anjali, the act of accused reveals that subsequently there was a common intention to rob her and take away the ornaments. This offence cannot be said to be under Section 404 but

¶106

it falls under Section 394. In support of this, we rely on the judgment of Division Bench of Madhya Pradesh High Court in Jamnadas Parashram vs. The State of Madhya Pradesh reported in AIR 1963 Madhya Pradesh 106. While dealing with the similar issue, the Division Bench has held that where murder and robbery are committed in the same course of transaction by the same persons, the offence would fall under section 392 and not under section 404, which reads as follows:

¶107

“This argument at first appeared attractive (and we may also

¶108

say that in another set of circumstances it may possibly be

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given effect to) but on a little reflection we find that where murder and robbery are committed in the course of the same transaction by the same person, the offence would fall under section 392 and not under Section 404. In that context, the word “person” cannot be so narrowly construed as to exclude the dead body of a human being who was killed in the course of the same transaction in which theft was committed. The matter would be different if a thing is stolen from a dead body apart from the transaction in which death occurred. In our opinion, therefore, the offence committed by Jamnadas is punishable under Section 392, Indian Penal Code, and not under Section 404 of the Code.”

¶111

Hence, we partly allow the appeal of original accused no. 4.

¶112

The learned Public Prosecutor in the appeal filed by the State against the judgment of acquittal of accused nos. 3, 5, 6, 7 and 8 has submitted that PW-16 Arjun, eye witness, has mentioned that he knew accused nos. 1 to 7. When he was taking bath at the water tank, he heard shouts and therefore he along with accused nos. 2, 3 and 5 ran upstairs. Accused no. 7 was also present there. He stated

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that when accused no. 1 collected ladder which was at the shed, accused nos. 2 to 7 followed him. They wrapped a bedsheet around the body of deceased. She submitted that this evidence shows that accused nos. 3, 5, 6 and 7 have also participated in the commission of an offence and so the order of acquittal is to be set aside.

¶115

We are unable to appreciate the submissions of learned Public Prosecutor on the point of participation of accused nos. 3, 5, 6 and 7. Though PW-16, eye witness, has stated about the presence of accused nos. 3, 5, 6 and 7, she has not specifically stated the role played by these acquitted accused. These accused might be there just as a spectators. They ought to have helped the deceased and rescued her. However, omission of not helping and rescuing the deceased is not an offence under IPC. Thus, the evidence of PW-16 is totally insufficient to hold accused nos. 3, 5, 6 and 7 guilty for the said offence. There is no evidence against accused no. 8. Therefore, we are of the view that no interference is required in the order and judgment of the learned Sessions Court. Thus, we pass the following order:

¶116

(i) Conviction of accused no. 1-Rajiv Basavraj Gurav and

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accused no. 2 - Bistappa Yallappa Bandargali under sections 302, 394 and 201 read with section 34 of IPC is confirmed.

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(ii) Accused no. 4-Imtiyaz @ Chilya Dadapir Akshimani is

¶120

acquitted from the offence punishable under section 302 read with 34 of IPC.

¶121

(iii) Accused no. 4-Imtiyaz @ Chilya Dadapir Akshimani is held guilty for the offence punishable under section 394 read with 34 of IPC. His sentence of life imprisonment is

¶122

set aside and he is sentenced to suffer rigorous imprisonment for 8 years.

¶123

(iv) Accused no. 4-Imtiyaz @ Chilya Dadapir Akshimani is held guilty for the offence punishable under section 201 read with 34 of IPC and the conviction is maintained.

¶124

Appeal is partly allowed.

¶125

(MRS. MRIDULA BHATKAR,J.) (MRS. V.K. TAHILRAMANI, J.)

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Raju @ Rajiv Basvaraj Gurav v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Raju @ Rajiv Basvaraj Gurav v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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