Allowed

Irshad Yusuf Mulla and Anr. v. the State of Maharashtra

Bombay HC27 Apr 2015APEAL/346/2006

Case brief

AI extract

What is this about?

Alleged murder conspiracy and death-certificate forgery were not proved beyond reasonable doubt. The court found homicidal death unproved and the circumstantial chain incomplete. It allowed all four appeals, set aside the convictions and sentences, and acquitted all five appellants with benefit of doubt.

What did the court decide?

All five appellants acquitted; convictions and sentences set aside; fines refundable; bail bonds cancelled; jailed appellants to be released unless required in another case.

Irshad Yusuf Mulla and Anr. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2015)

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pdp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 346 OF 2006

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Irshad Yusuf Mulla

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Rakesh Jayram Walmiki. ... Appellants.

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(Orig. Accused Nos. 2 & 6)

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V/s.

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The State of Maharashtra.

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... Respondent.

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ALONGWITH CRIMINAL APPEAL NO. 421 OF 2006

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Smt. Sharda Natwarlal Soni. … Appellant. (Orig.Accused No.3)

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V/s.

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State of Maharashtra. … Respondent.

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ALONGWITH CRIMINAL APPEAL NO. 319 OF 2006

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Dr. Baburaj Sanjeeva Hegde.

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… Appellant. (Orig.Accused No.4)

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V/s.

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The State of Maharashtra. … Respondent.

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ALONGWITH CRIMINAL APPEAL NO. 752 OF 2009

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Ajay Sevaram Walmiki. … Appellant. (Orig.Accused No.8) V/s.

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The State of Maharashtra. … Respondent.

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Dr. Yug Mohit Chaudhary for Appellant No.2 in Criminal Appeal No. 346/06.

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Mr. Vipin Kamdi a/w. Mr. Rahul S. Kolnoorkar for Appellant No.6 in Criminal Appeal No. 346/06.

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Mr. Manoj Mohite a/w. Mr. Gul Atmaram Madnani for the Appellant in Criminal Appeal No. 421/06.

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Mr. A.P. Mundargi, Sr. Counsel a/w. Mr. M.S. Mohite a/w. Mr. Ashish Sawant i/b. Mr. D.U. Mirajkar and Ms. Alpa Javeri in Criminal Appeal No. 319/06.

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Mr. Abhaykumar Apte, appointed Advocate for the Appellant in Criminal Appeal No. 752/09

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Mrs. Sangeeta D. Shinde, APP for the State.

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CORAM : P.V. HARDAS &

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Dr. SHALINI PHANSALKAR-JOSHI, JJ.

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APRIL 30, 2015.

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ORAL JUDGMENT [ Per P. V. Hardas, J.]:-

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Criminal Appeal No. 346 of 2006 has been filed by Original Accused No. 2 – Irshad Yusuf Mulla and Original Accused No. 6 – Rakesh Jayram Walmiki. Criminal Appeal No. 421 of 2006 has been filed by Original Accused No. 3 – Sharda Natwarlal Soni. Criminal Appeal No. 319 of 2006 has been filed by Dr. Baburaj Sanjeeva Hegde - Original Accused No.4, while Criminal Appeal No. 752 of 2009 has been filed by Original Accused No. 8 – Ajay Sevaram Walmiki. Original Accused No.1 – Geeta Natwarlal Soni died after pronouncement of the Judgment by the trial court and,

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therefore, no reference is made to the conviction and sentence awarded to Original Accused No.1 – Geeta Natwarlal Soni.

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Original Accused No. 2 – Irshad Yusuf Mulla stands convicted for offence punishable under Sections 364 r/w 120B, 302 r/w 120-B, 201 r/w 120-B and 465 r/w 120-B of the IPC and is sentenced to RI for seven years and to pay fine of Rs.2000/-, in default of which to undergo further imprisonment for two months, imprisonment for life and to pay fine of Rs.1000/-, in default of which to undergo further RI for 15 days, RI for three years and to pay fine of Rs.2000/-, in default of which to undergo further RI for one month and RI for two years respectively. Original Accused No.3 – Sharda Natwarlal Soni stands convicted for offence punishable under Sections 364 r/w 120-B, 302 r/w 120-B and 201 r/w 120-B of the IPC and is sentenced to RI for seven years and to pay fine of Rs.2000/-, in default of which to undergo further RI for two months, imprisonment for life and to pay fine of Rs.1000/-, in default of which to undergo RI for 15 days and RI for three years and to pay fine of Rs.2000/-, in default of which to

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undergo further RI for one month respectively. Original Accused No. 4 – Dr. Baburaj Sanjeeva Hegde stands convicted for offence punishable under Sections 201 r/w 120-B, 465 r/w 120-B, 468 r/w 120-B, 471 r/w 120-B of IPC and 202 of IPC r/w 39 of Cr.P.C. and is sentenced to RI for three years and to pay fine of Rs.2000/-, in default of which to undergo further RI for one month, RI for two years, RI for three years and to pay fine of Rs.2000/-, in default of which to undergo further RI for one month, RI for three years and to pay fine of Rs.2000/-, in default of which to undergo further RI for one month and RI for six months respectively. Original Accused No. 6 – Rakesh Jayram Walmiki stands convicted for offence punishable under Section 302 r/w 120-B of IPC and is sentenced to imprisonment for life and to pay fine of Rs.1000/-, in default of which to undergo further RI for 15 days. Original Accused No. 8 – Ajay Sevaram Walmiki stands convicted for offence punishable under Section 302 r/w 120-B of IPC and is sentenced to imprisonment for life and to pay fine of Rs.1000/-, in default of which to undergo further RI for 15 days. The appellants/accused stand convicted and sentenced

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as afore-stated by the Additional Sessions Judge for Greater

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Bombay, by judgment dated 22^nd , 23^rd and 24^th February, 2006, in Sessions Case No. 742 of 2003. The appellants/accused by these appeals challenge their conviction and sentence. Since these appeals arise from the same judgment of the trial Court, these appeals are being decided by this common judgment.

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Facts, as are necessary for the decision of these appeals, may be stated thus.

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PW 37 – Sr. PI Zahid Mohd., who was attached to

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the Gaodevi Police Station, was in receipt of a report, lodged by PW 1 – Nouuroz Jilla on 23/3/2003. The report was reduced into writing at Exh. 33. On the basis of the said report, an offence vide Crime No.115 of 2003 was registered. PW 37 – Sr.PI Zahid Mohd. intimated the registration of the offence to his superiors and visited the BMC office at Nana Chowk and collected the photocopy of cause of death certificate, death report and statement in respect of death of deceased Adi Cursetji. He wrote a letter to PW 36 - Assistant Commissioner of Police Shashikant Gosavi. The said letter is at Exh. 154.

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PW 36 – Shashikant Gosavi, who was working as

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the Additional Commissioner of Police and Special Executive Magistrate at Gaodevi Division, received a letter from PW 37 – Sr. PI Zahid Mohd. In the said letter, permission was sought for entering the Parsi Cemetery and taking the dead body of deceased Adi Cursetji into custody in respect of Crime No. 115 of 2003 registered at the Gaodevi Police Station. PW 36 – ACP Gosavi accordingly granted the permission for taking into custody the dead body from the Cemetery and notice was issued to the management of the Parsi Panchayat, Doonger Wadi. On 24/5/2003, PW 36 – ACP Gosavi, along with PW 37 – Sr.PI Zahid Mohd. and the other police staff visited the Doonger Wadi. The dead body was collected and was thereafter kept in the herse van in the presence of panchas and PW 1 – Nouuroz Jilla. The dead body of deceased Adi Cursetji was identified by PW 1 – Nouuroz Jilla and in the presence of panchas, an inquest panchanama of the dead body was drawn. The inquest panchanama of the dead body of deceased Adi Cursetji is at Exh. 50.

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Meanwhile, PW 37 – Sr. PI Zahid Mohd., on

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registration of the offence, visited the flat on the first floor of the Kakad Estate, owned by Original Accused No.1 – Geeta Soni and deceased Adi Cursetji. In the presence of panchas, the scene of the incident panchanama was drawn at Exh. 35. On one chair, he found a notarized copy of the Will of deceased Adi Cursetji bearing the photograph of Adi Cursetji. The said photograph was identified by Yasid Jahiwala. Two bunch of keys were also found there. Under one chair, spectacles in brown frame were noticed lying. One receipt was also found, which was taken into custody. Exh. 136 is the copy of the Will, which was found at the scene of the incident, while Article 3 is the receipt, which was found there. On the same day, he recorded the statements of PW 10 - Arvind Jha and PW 11 – Jaya Mohite.

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After drawing the inquest panchanama of the dead body of deceased Adi Cursetji in the Tower of Silence, Doonger Wadi, the dead body was forwarded for postmortem examination. After the postmortem examination, the dead body was handed over back to the management of the Tower of Silence, Doonger Wadi. Statements of PW 20 - Parvez

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Wadia, PW 8 – Arti More and PW 25 – Chandrakant Pawar were recorded. Accused No.1 - Geeta Soni and accused no.2 – Irshad Mulla were arrested. Accused No.3 – Sharda Soni was also arrested on the same day.

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On 26/5/2003, statements of PW 27 – Rajendra

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Kunwar and PW 9 – Pandav Jha were recorded. The investigation was thereafter handed over to PW 41 – PI Ramchandra Mane.

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PW 41 – PI Ramchandra Mane, on being entrusted

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with the investigation, searched for the remaining accused at their residential houses and work places, but no trace of the accused was found. On 28/5/2003, statements of PW 3 – Prerna Shah and PW 5 – Bharati Narichane were recorded. On 29/5/2003, Original Accused No. 4 – Dr. Baburaj Hegde and Original Accused NO. 5 – Behram Dordi were arrested. On 31/5/2003, he seized the death certificate register from the J.C. Nursing Home, Worli in the presence of panchas under seizure memo at Exh. 107. The said register is at Exh. 108. On 5/6/2003, PW 41 – PI Mane directed API Vijay Kharie (PW

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to collect the marriage certificate of accused no.1 – Geeta and accused no.2 – Irshad. On the same day PW 28 – Daruyus Bajan produced a register maintained in the Parsi Doonger Wadi, including Parsi Panchayat bill book, consignment bill book, cause of death register and other documents. The said documents were seized under panchanama in the presence of panchas at Exh. 168.

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On 6/6/2003 PW 41 – PI Mane addressed a letter to the marriage officer, PW 29 – Raju Naik for sending affidavit of accused no.1 – Geeta and the affidavit of Kazi Rehamat Ali. Accordingly the said documents were produced before PW 41 – PI Mane and were seized in the presence of panchas. Exhs. 129 and 130 collectively are the said documents.

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On 7/6/2003, PW 41 – PI Mane arrested accused no.

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6 – Rakesh Walmiki. During custodial interrogation, on 10/6/2003, accused no.6 – Rakesh expressed his willingness to point out the place where a pillow was concealed. Accordingly, a memorandum was drawn in the presence of panchas at Exh. 72. Accused No. 6 – Rakesh led the police and

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the panchas to the flat in Kakad Estate i.e. the scene of the incident and produced a pillow from the bed room, which was seized in the presence of panchas under panchanama at Exh. 72A.

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On 14/6/2003 PSI Dilip Dhane (PW 38), after investigation, returned from Uttar Pradesh and produced panchanama and Rs.65000/- recovered from the mother of accused no.6 – Rakesh. He had also recorded the statements of PW 26 – Sayyad Khan and PW 34 – Kailasdevi Walmiki. On 18/6/2003, PW 41 – PI Mane recorded the statements of witnesses. On 20/6/2003, PW 41 – PI Mane received a letter from the Secretary of Sagar Darshan Co-operative Housing Society informing the ownership of Flat Nos. B-5 and B-6 in Kakad Estate. The said letter is at Exh. 169.

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On 22/6/2003, PW 41 PI Mane arrested accused no.7 – Dr. Umasevak Pal. During custodial interrogation, on 25/6/2003, accused no.7 – Dr. Pal expressed his willingness to point out the place where register had been kept. His memorandum was accordingly recorded in the presence of

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panchas at Exh. 170. Accused No. 7 – Dr. Pal led the police and the panchas to his Nursing Home at Worli and produced a register, which was seized under seizure memo at Exh. 170-A. On 26/6/2003, PW 41 – PI Mane recorded the statements of PW 6 - Hirji Nagarwala, PW 7 – Ikram Khan and on 28/6/2003 recorded the statement of PW 17 - Adeshir Vakil.

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On 2/7/2003, PW 41 – PI Mane addressed three letters to the Manager of Honkong Bank, Peddar Road Branch for giving information of the bank accounts of accused no.1 – Geeta and deceased – Adi Cursetji. The said letters are at Exh. 171 collectively. The reply to the said letters is at Exh.172. On 3^rd , 4^th and 5^th July, 2003, PW 41 – PI Mane collected the specimen signature of accused no.7 – Dr. Pal and on 8.7.2003 forwarded the same to the Hand Writing Expert under forwarding letter at Exh. 173. The report of the Hand Writing Expert is at Exh. 174.

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On 11/7/2003, one Keval Singh produced two attendance registers of Vinus Apartment, Worli Sea-face. The said registers were seized under panchanama at Exh.175. On

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14/7/2003, he had collected the copy of the accident register maintained at the Tardeo Police Station. The certified extract is at Exh. 176.

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Accused No. 8 – Ajay Walmiki was arrested by PW 40 – PSI Vikas Gondhale in Uttar Pradesh. Cash of Rs.20,030/-, a ring and watch were produced. On 8/8/2003, PW 41 PI Mane recorded the supplementary statement of PW 20 – Parvez Wadia and further to the completion of investigation, filed a charge-sheet on 17/8/2003.

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Postmortem on the dead body of deceased Adi Cursetji was performed by PW 18 – Dr. Vinod Agrawal. PW 18 – Dr. Vinod Agrawal conducted the postmortem on the dead body of deceased Adi Cursetji on 24/5/2003 from 12.40 p.m. On external examination, he noticed absence of rigor mortis, but the body was rigid. According to him, absence of rigor mortis would mean that death was more than 24 hours from the time of postmortem. He also noticed that signs of decomposition were advanced. On external examination, he noticed the following injuries :-

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(i) Skin over front of neck, starting from lower border of mandible upto both angles, then straight downwards upto upper chest (amanubrium sterni) missing. Edges were sharp clear, pale, no reddish or reddish brown discoloration. Skin as well as subcutaneous tissue muscles (anterior) wind pipe food pipe missing. Cervical vertebrae directly seen. Tagging of skin over inferior and right side.

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(ii) Reddish brown band over back of neck lower left 4 x 1 cm. parchment like. On out section, epidermal dermal region reddish brown.

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(iii) Reddish brown bands over back of neck upper right two parallel 4 x 1 cm. and 3 x 1 cm., hard to touch, on out section epidermal dermal region, reddish brown.

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(iv) Reddish brown spot back of neck lower middle 2 x 1 cm. hard and rough, on out section epidermal dermal zone reddish brown in colour.

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(v) Right ring finger and little finger over lateral

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aspect of terminal phalanx showing 1 x 1 cm. hard lesion, oval crateriform with raised sharp edges, colour pale, no blackening or sooting reddish brownish.

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According to him, Injury No.1 is a postmortem injury,while Injuries 2 to 5 were ante-mortem injuries. He has also opined that external injury no.3 was possible by a hard object coming into contact with that region with force. He has further opined, as likely, that if the upper part of the neck was pressed against the upper part of the sofa and neck was pushed forcefully.

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On internal examination, he noticed,

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Trachea was cut at level of upper sternal border, sharply edges sharp clean cut, no reddish brown discoloration, no clots or foreign body in trachea. Right (lateral third) of hyoid bone present, sharply cut pale, no reddish or reddish brown discoloration seen. Lungs were hard, grayish, no

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evidence of gross pathology or recent mechanical trauma perceived. Heart was pale, hard about 50 CC triable solid blood mass inside. Coronaries patent, albeit atheroscierotic narrowing of lumen by about 25% seen. No evidence of white fibrous tissue seen. Oesophagus was clean cut at level of upper sternal border, no reddish brown discoloration, no foreign body. Liver, pancreas, spleen, kidneys – they showed no evidence of gross pathology or mechanical trauma. Spinal cord absent. Vertical column showing evidence of natural dis-articulation.

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He collected the viscera and sent it for chemical analysis and Histo-pathology. He collected tissue and referred it for Histo-pathology. PW 18 – Dr. Vinod Agrawal accordingly reserved his opinion till the receipt of the report of Chemical Analyzer and Histo-pathology. The postmortem report is at Exh. 90.

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On receipt of the report of the Chemical Analyzer

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and Histo-pathology, at Exhs.91 and 92 respectively, he

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concluded,

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(i) that the exact cause of death cannot be

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ascertained;

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(ii) that the mode of death is asphyxia;

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(iii) that the manner of death is unnatural.

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On committal of the case to Court of Sessions, trial court framed charge against the accused, which was denied by them. Prosecution, in support of its case, examined 41 witnesses. The defence of the accused was of denial. The trial Judge, upon appreciation of the evidence of the prosecution, convicted and sentenced the appellants as aforestated. The appellants have, therefore, filed the present appeals questioning their conviction and sentence. The State has chosen not to file any appeal challenging the acquittal of the accused, who had been acquitted by the trial court. As pointed out by us above, Original Accused No.1 – Geeta died immediately after the pronouncement of the judgment by the trial court.

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We have heard Mr. A.P. Mundargi, learned

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Senior Counsel, Dr. Yug Mohit Chaudhary, Mr. Manoj Mohite, Mr. Vipin Kamdi, learned counsel for the appellants and Mr. Abhaykumar Apte, learned counsel appointed for appellant in Cri. Appeal No. 752 of 2009 and the learned APP on behalf of the State of Maharashtra. In order to effectively deal with the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses.

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Prosecution has examined PW 1 – Nouuroz Jilla, the first informant, who had lodged the FIR at Exh. 33. PW 1 – Nouuroz deposes that he was dealing with restoration of old clocks and watches since more than 10 years prior to the incident and was having his business workshop at Goregaon. According to him, he entertained his clients / customers at his residence as well as the place of work at Goregaon. PW 1 – Nouuroz further deposes that he knew deceased Adi Cursetji, who was also interested in old clocks and watches. Deceased, along with his wife Meru was residing in a bungalow situated

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at Worli Sea-face in 1999. Deceased Adi Cursetji thereafter

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sold the bungalow for about Rs.10 crores and purchased a new flat in Dil Pazir at Breach Candy, Mumbai for Rs.3.5 crores. Deceased Adi Cursetji had also purchased one more flat at Kakad Estate, Worli in the joint name of accused no.1 – Geeta Soni. According to PW 1 – Nouuroz, he was on visiting terms with deceased Adi Cursetji and his relations with him were excellent.

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PW 1 – Nouuroz further deposes that he was introduced to accused no.1 (deceased) – Geeta Soni by deceased Adi Cursetji himself at the watch shop i.e. the Well Known Watch House at Mumbai. Initially, accused no.1 – Geeta was introduced as a fellow collector of old watches and clocks and later on was introduced by deceased Adi Cursetji as a lover of animals. Deceased Adi Cursetji was also fond of animals like dogs and cats and accused no.1 – Geeta was also fond of animals. Accused No.1 – Geeta used to feed stray dogs and cats at least twice a day in the periphery of the compound of the building i.e. Kakad Estate. Accused no.1 – Geeta was residing in a flat on the first floor of Kakad Estate. Deceased Adi Cursetji had also purchased a new flat in the

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joint name of Geeta and the deceased next to the flat of accused no.1 – Geeta. Accused No.1 – Geeta was residing along with her mother, accused no. 3 – Sharda.

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According to PW 1 – Nouuroz, deceased Adi Cursetji owned three vehicles i.e. the Zen car, Santro car and one Mercedes. The two cars i.e. Zen and Santro were being used by accused no.1 – Geeta. In fact, the Santro car was in the name of accused no.1 – Geeta. The other cars were being driven by accused no.2 – Irshad, who was employed as a driver by deceased Adi Cursetji.

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PW 1 – Nouuroz further deposes that he learnt about a Will made by deceased Adi Cursetji when the subject of marriage of accused no.1 – Geeta with accused no.2 – Irshad came up. According to PW 1 – Nouuroz, he learnt about the marriage of accused no.1 with accused no.2 sometimes in April or May 2003. According to Nouuroz, this marriage was not attended by deceased Adi Cursetji since he had not been informed about the marriage. Deceased Adi Cursetji also did

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not approve the marriage of accused no.1 – Geeta with

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accused no.2 – Irshad. Deceased Adi Cursetji further learnt that accused no.1 – Geeta had purchased a separate room for accused no.2 – Irshad at Worli. This had infuriated Adi Cursetji and, therefore, he had given instructions to accused no.1 – Geeta not to permit accused no.2 – Irshad to drive any of his cars. Deceased Adi Cursetji had also instructed to accused no.2 – Irshad not to drive any of his cars.

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On 14/5/2003, according to PW 1 – Nouuroz, he was near the Well Known Clock House when he heard some commotion across the road. He also noticed a crowd which had gathered there. He, therefore, went near the said spot and noticed that there was an accident of one Maruti Zen car and a motorcyclist. He also noticed accused no. 2 coming out of the Maruti Zen car and assaulting the motorcyclist. At that time, the plain clothes policemen, who were present there, took accused no.2 – Irshad to the nearest police station. Deceased Adi Cursetji learnt about the incident and, therefore, went to the Tardeo Police Station. In the police station, there was an altercation between accused no.2 and deceased Adi Cursetji and accused no.2 tried to assault deceased Adi

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Cursetji in the police station. A complaint to that effect was lodged by deceased Adi Cursetji against accused no.2 in the police station and deceased Adi Cursetji had said that if anything happened to him, accused no.2 would be held responsible. On the next day in the evening, PW 1 – Nouuroz met deceased Adi Cursetji near the Well Known Clock House and during their talk, deceased Adi Cursetji disclosed that he had committed a mistake by putting the name of accused no.1 – Geeta as a joint holder in the flat at Worli and a nominee of the flat at Breach Candy. Deceased Adi Cursetji

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also disclosed to Nouuroz that a bank locker was held jointly with accused no.1 – Geeta and the key of the locker was with accused no.1 – Geeta and the original papers of the Zen and Santro cars were in the possession of accused no.1 – Geeta. PW 1 – Nouuroz, therefore, advised him to change the locker.

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On 17/5/2003, deceased Adi Cursetji had gone to the Well Known Clock House in the morning and at that time PW 1–Nouuroz was present at the shop. Deceased Adi Cursetji appeared to be very disturbed and up-set and disclosed to PW

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1 – Nouuroz that accused no.1 had refused to hand over the

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papers of the car and keys of the locker. Deceased Adi Cursetji thereafter consulted his Chartered Accountant, one Nipul Shah, who advised him to write a letter to the bank directing the bank not to permit the operation of the locker as the keys were missing. Deceased Adi Cursetji, therefore, went to the bank along with PW 3 – Prerna Shah, an Assistant of Nipul Shah on 19/5/2003. PW 1 – Nouuroz met Adi Cursetji in the evening of 19/5/2003 near the Well Known Watch House and was there till about 10.45 p.m. PW 1 – Nouuroz thereafter dropped Adi Cursetji at his residence at Breach Candy.

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On 21/3/2003 around 10 a.m. Nouuroz received a telephone call from one Abu Mitha informing him that accused no.1 was present near the Dil Pazir Building and there was some commotion near the Dil Pazir Building. Abu Mitha further informed PW 1 – Nouuroz that deceased Adi Cursetji had not returned home the previous night. Abu Mitha also informed Nouuroz that accused no.1 was showing a death certificate of Adi Cursetji stating that Adi Cursetji had died of heart-attack.

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On hearing this, PW 1 – Nouuroz, along with his friend Ikram

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reached the Dil Pazir Building and on reaching, made enquries with the watchman and thereafter went to the Parsi Doonger Wadi (Tower of Silence) at Kemp's Corner. From there, he learnt that the body of deceased Adi Cursetji had been brought to the Tower of Silence by three Hindus and out of them, one was accused no.1 – Geeta. On further enquries with the manager of the Tower of Silence, he learnt that deceased Adi Cursetji had not left any relatives behind him

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and that his wife had expired two years back. PW 1 – Nouuroz, therefore, suspected some foul-play and returned to the Dil Pazir Building and then went to the Gaodevi Police Station along with his friends Abu Mitha and Ikram Khan. On reaching the police station, he narrated the incident to the police officer of the Gaodevi Police Station. Accused No.1 – Geeta was also called at the police Gaodevi Police Station. Thereafter, a police party accompanied them to the Dil Pazir Building along with accused no.1 – Geeta. She was asked to open the flat and thereafter Nouuroz gave his condolences to the widow of deceased Adi Cursetji and enquired from her as to why she did not attend the funeral. Wife of deceased Adi Cursetji informed Nouuroz that she did not attend the funeral

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as accused no.1 refused to take her for the funeral and had promised her that accused no.1 would take her at about 5 a.m. Nouuroz also noticed that the telephone in the flat had been disconnected. Accused No.1 – Geeta had disclosed that deceased himself had disconnected the connections. The wife of deceased Adi Cursetji was a paralytic patient. According to

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Nouuroz she had disclosed to him that accused no.1 had assaulted her.

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On 21/5/2003 at about 10.30 p.m. Nouuroz

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received a telephone call from the Gaodevi Police Station and on reaching the police station, he accompanied the police to the Parsi Doonger Wadi (Tower of Silence). From there the police party and Nouuroz went to the office of the Municipal Officer, “D” Ward and obtained a copy of the death certificate. On the next day, he accompanied the police to the flat of deceased at Dil Pazir Building and the statement of Meru, wife of deceased Adi Cursetji was recorded. The police thereafter recorded the report of PW 1 – Nouuroz on 23/5/2003 at Exh. 33. On the next day, he identified the dead body of deceased

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Adi Cursetji in the Parsi Doonger Wadi (Tower of Silence).

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In cross-examination, he has admitted as true that the police had recorded his statement only on 23/5/2003. He has also admitted as true that he was in the company of the police from 21/5/2003 till his statement was recorded. He has also admitted that he had lodged his complaint on suspicion. He has also admitted that he knew deceased Adi Cursetji since October, 1999 and used to meet him at least once in a day and later on deceased Adi Cursetji became his friend since 2002. Nouuroz has admitted that he was aware that deceased Adi Cursetji was a rich person. He has also admitted that wife of deceased Adi Cursetji was old and sick. He has also admitted that deceased Adi Cursetji was not on good terms with his daughter Mrs. Meher Dalal.

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The following omissions have been elicited in the cross-examination of PW 1 – Nouuroz:-

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(a) He had not stated in his report at Exh. 33 that marriage of accused no.1 – Geeta with accused no.2 – Irshad was not attended by Adi Cursetji since he was not informed about

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the same.

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(b) He had not stated in his report that deceased Adi Cursetji learnt that accused no.1 – Geeta had purchased a separate room for accused no.2 – Irshad at Worli and this had infuriated Adi Cursetji and, therefore, he had instructed accused no.1 not to permit accused no.2 to drive any of his cars and that deceased Adi Cursetji had also instructed accused no.2 – Irshad not to drive any of his cars.

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(c) He had not stated in his report that on going near the scene of the incident, he had noticed that there was an incident between Maruti Zen car and a motorcyclist and had also noticed accused no.2 – Irshad coming out of the car and assaulting the motorcyclist. He had not stated in his report that at that time, the plain clothes policemen, who were present there, took accused no.2 – Irshad to the nearest police station.

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(d) He had not stated in his report that Adi

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Cursetji had informed Nouuroz that he had mentioned in the complaint that accused no.2 would be responsible if anything happened to deceased Adi Cursetji.

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(e) He had not stated in his report that Adi Cursetji had disclosed to Nouuroz that he had committed a mistake by putting the name of accused no.1 as a joint holder of the flat at Worli and a nominee of the flat at Breach Candy.

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(f) He had not stated in his report that Adi Cursetji had informed him that the original papers of the Zen and Santro cars were in the possession of accused no.1.

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(g) He had not stated in his report that Chartered Accountant of Adi Cursetji had advised him to write a letter to the bank directing the bank not to permit the operation of the bank locker as the keys were missing.

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(h) He had not stated in his report that deceased

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Adi Cursetji went to the bank along with one

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Prerna Shah on 15/5/2003.

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(i) He had not stated in his report that on 19/5/2003 he was in the company of deceased Adi Cursetji till 10.45 p.m.

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(j) He had not stated in his report that on 21/5/2003 at about 10 a.m. he had heard commotion near the Dil Pazir Building.

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(k) He had not stated in his report that one Abu

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Mitha informed him that accused no.1 was showing a death certificate of Adi Cursetji stating that Adi Cursetji had died of heartattack.

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(l) He had not stated in his report that the body of deceased Adi Cursetji was brought to Tower of Silence at Doonger Wadi by three Hindus.

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(m) He had not stated in his report that on his enquiry with the manager of the Tower of Silence he learnt that deceased Adi Cursetji had not left behind him any relatives and that his wife had expired two years back.

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(n) He had not stated in his report that the manager informed him that none of the Parsi volunteers of Doonger Wadi were present at the time of performing the last rites on the dead body of Adi Cursetji and that thereafter he along with Abu Mitha and Ikram Khan went to Gaodevi Police Station.

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(o) He had not stated in his report that at Dil Pazir Building, he learnt that Meru, wife of deceased Adi Cursetji and maid servant PW 11 – Jaya had been locked in one of the rooms of the flat in Dil Pazir Building.

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(p) He had not stated in his report that he narrated the incident at the Gaodevi Police Station and that accused no.1 Geeta had also been called at the Gaodevi Police Station.

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(q) He had not stated in his report that the police party then accompanied by Nouuroz and accused no.1 – Geeta went to the Dil Pazir Building and accused no.1 was asked to open the flat.

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(r) He had not stated in his report that he offered his condolences to wife of deceased Adi Cursetji and enquired from her as to why she did not attend the funeral.

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(s) He had not stated in his report that wife of deceased Adi Cursetji informed him that accused no.1 refused to take her for the funeral, but had promised that the wife of Adi Cursetji would be taken at about 5 a.m., but accused no.1 had not come.

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(t) He had not stated in his report that he noticed that the telephone connections in the flat were disconnected.

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(u) He had not stated in his report that accused no.1 – Geeta disclosed that the deceased himself had disconnected the telephone connections.

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(v) He had not stated in his report that wife of deceased Adi Cursetji had informed him that accused no.1 – Geeta had assaulted her.

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(x) He had not stated in his report about

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receiving the telephone call on 21/5/2003 from the Gaodevi Police Station and about identifying the dead body of deceased Adi Cursetji at the Parsi Doonger Wadi and thereafter obtaining the copy of the death certificate.

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(y) He had not stated in his report that on the next day he accompanied the police to the flat of deceased at Dil Pazir Building where the statement of wife of deceased was recorded.

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In further cross-examination, he has admitted that wife of deceased Adi Cursetji expired on 19/10/2003. After the death of Adi Cursetji, PW 1 – Nouuroz used to visit the widow of deceased almost daily who continued to be in a paralytic condition till her death. Wife of deceased Adi Cursetji had made a Will before her death and Nouuroz is one of the beneficiaries under the said Will. He has admitted that PW 11

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– Jaya is looking after the flat in Dil Pazir Building and that her salary is being paid by PW 1 – Nouuroz. In further cross-

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Prosecution has examined PW 3 – Prerna Shah, who deposes that in the year 2003 she was working as an Assistant in the Shah and Nair Company at Mumbai. The accounts of Adi Cursetji were looked after by one Nipul Shah, who was in-charge of the accounts. According to Prerna, she used to assist in the compilation of the accounts and income tax returns of deceased Adi Cursetji and in that connection used to visit deceased Adi Cursetji. Sometimes the deceased used to visit the office also. However, due to old age of the deceased and the sickness of his wife, it was necessary for Prerna to visit their residence for preparing the accounts and the income tax returns. According to her, when she had visited deceased Adi Cursetji, she had met accused no.1Geeta, who was introduced by deceased Adi Cursetji as a person who was being treated like his daughter and was also as a person who was a lover of animals. Deceased Adi Cursetji had also expressed his desire to form a charitable

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trust and, therefore, the office of PW 3 – Prerna had initiated

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the proceedings. On 17/5/2003, Prerna had telephonically informed deceased Adi Cursetji that the hearing had been fixed before the Charity Commissioner on 19/5/2003 at 11 a.m. Deceased Adi Cursetji, accused no.1 – Geeta and Nipul shah were to be the trustees of their trust. Accordingly, on 19/5/2003 she had gone to the house of deceased Adi Cursetji

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and from there along with deceased had proceeded to the office of the Charity Commissioner. Deceased Adi Cursetji had made enquries from the Charity Commissioner about procedure for deleting the name of one of the trustees. Thereafter Adi Cursetji requested PW 3 – Prerna to accompany him to the HSBC Bank of Peddar Road. From the bank, deceased Adi Cursetji had withdrawn some cash and had also made enquiries with the bank officials about procedure for deleting the name of accused no.1 – Geeta from the joint account and had also made enquiries about the opening of a new bank account. Thereafter Adi Cursetji and Prerna returned to the office since deceased Adi Cursetji wanted to meet Nipul Shah. Adi Cursetji had a talk with Nipul Shah and after sometime Prerna ws called in the chamber of Nipul Shah,

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who instructed her to prepare draft letters regarding deleting

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the name of accused no.1 – Geeta from the joint bank accounts as well as from the joint bank lockers and Prerna also instructed to fix an appointment of Adi Cursetji with his lawyer Ms. Bharati Narichane. Prerna accordingly prepared the letters and an appointment of Advocate Bharati Narichane was fixed for 4 p.m. on the next day. Prerna accompanied by Adi Cursetji immediately went to the Central Bank of India, Branch at Fort and Adi Cursetji submitted a letter to the Bank for deleting the name of accused no.1 – Geeta from the list of the authorized persons of the bank lockers. The bank officials, however, advised that signatures of all the trustees were required, but the operation of the locker could be stopped. Adi Cursetji accordingly made a correction in the letter and submitted it to the bank and instructed to bank officials to inform him in case accused no.1 – Geeta visited the bank for operating the locker. Said letter is at Exh. 43. Thereafter Prerna accompanied by the deceased went to the Union Bank of India, Fort Branch and deceased Adi Cursetji submitted a letter to the manager. Said letter is at Exh. 44. After submission of the letter, the deceased and Prerna returned to the office. Thereafter, Prerna accompanied the

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deceased to the Ballard Pier to the office of one J. N. Guzder, whom deceased Adi Cursetji wanted to be one of the trustees.

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On 20/5/2003, PW 3 – Prerna went to HSBC Bank and obtained the forms for opening of an account and then went to the residence of Adi Cursetji at Dil Pazir Building. The forms were filled up and thereafter she accompanied by deceased Adi Cursetji again went to the HSBC Bank. On account of some technical difficulty, the new account could not be opened. The bank manager informed deceased Adi Cursetji that the name of accused no.1 could not be deleted without the no objection of all the account holders. The Branch Manager suggested to deceased that standing instructions be issued that the balance standing in the existing six bank accounts should be transferred to the new account, which was in the name of deceased and his wife. Deceased Adi Cursetji also instructed the bank to stop payment of all cheques issued by accused no.1 – Geeta. Said letters are at Exh.45 Collectively, 46 and 47. The various forms and the letters submitted by deceased Adi Cursetji to the HSBC Bank are at Exh. 48 collectively.

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According to Prerna deceased Adi Cursetji had also discussed with his lawyer about changing the nomination of accused no.1 regarding the flat at Dil Pazir Building as well as other financial matters relating to accused no.1. At about 4.30 p.m. a telephone call was received from one Mr. Prakash of Union Bank of India informing the deceased that accused no.1 – Geeta Soni had visited the bank for operating the locker, but was not permitted on account of the instructions of the deceased. Adi Cursetji had also asked Prerna to accompany him on the next day to visit the Punjab National Bank, Worli. However, Prerna did not receive any telephone from deceased Adi Cursetji. Prerna, therefore, telephoned the residence of Adi Cursetji, but there was no response. She learnt thereafter that deceased Adi Cursetji had expired.

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In cross-examination, she has admitted that her statement had been recorded only once i.e. on 28/5/2003. Certain omissions have been elicited in the cross-examination of PW 3 – Prerna, (1) she had not stated in her statement that deceased had made enquiries with the Charity Commissioner

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about the procedure for deleting the name of one the

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trustees, (2) she had not stated in her statement that she was instructed to prepare letters regarding deletion of the name of accused no.1 – Geeta from the joint accounts as well as from the bank lockers and that she was instructed to fix an appointment with Advocate Bharati Narichane, (3) she had not stated in her statement that deceased Adi Cursetji had gone to the office of J. N. Guzder, whom he wanted to be one of the trustees.

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Prosecution has examined PW 5 – Bharati Narichane, who was a practicing Advocate having her office in Fort, Mumbai. According to her, in the year 2003, PW 3 – Prerna came to her office on 19/5/2003 in the afternoon, accompanied by an elderly Parsi gentleman (deceased), desired an appointment and enquired from Bharati if she was free. Bharati informed him that he could discuss the matter with her. The deceased informed her that he was busy and he would come tomorrow and, therefore, the appointment was fixed at 4 p.m. on 20/5/2003. On 20/5/2003 deceased Adi Cursetji came at about 4 p.m. accompanied by PW 3 – Prerna. The deceased expressed to PW 5 – Bharati his desire to make

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a Will by cancelling all previous Wills. Bharati, therefore, enquired from him to give copies of those previous Wills but deceased did not have the copies with him. The deceased talked generally and told Bharati that he would give the bank details subsequently. The deceased desired to give his property to his wife and wanted to create a trust for the benefit of animals as well as other charities. Deceased had also informed her that his adopted daughter had married somebody and deceased was not happy with the marriage and, therefore, he wanted to cancel the previous Will, which had been executed in favour of his adopted daughter. The deceased had also informed Bharati that there was no document regarding adoption. He had also disclosed to Bharati that he was trusting his daughter but not the outsider i.e. her husband and, therefore, he wanted to open joint account with his wife. According to Bharati the deceased and Prerna thereafter left. PW 5 – Bharati, however, could not prepare the Will as it was informed on the next day about his death. In cross-examination, certain omissions have been elicited, but those omissions do not touch the core of the testimony.

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Prosecution has examined PW 7 – Ikram Khan, who

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deposes that he had the business of repairing watches and was also selling the watches, having his shop at Gwalla Tank Warden Court Building, August Kranti Marg. His shop was styled as “Well Known Watch House”. According to him he and his younger brother Imran and other five employees were working in the shop. He has admitted that he knows PW 1 – Nouuroz Jilla, who used to visit his shop frequently. He has also admitted that he knew deceased Adi Cursetji who had been introduced to him by PW 1 – Nouuroz in 2001. Ikram

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further deposes that deceased Adi Cursetji used to visit the shop off and on and had a fancy for watches. Ikram used to repair the watches of Adi Cursetji. Adi Cursetji also used to purchase watches from PW 7 – Ikram. Deceased Adi Cursetji was mostly purchasing old clocks and grand-father clocks and sometimes new watches. Deceased Adi Cursetji used to pay in installments. Adi Cursetji began to come to his shop accompanied by accused no.1 – Geeta who had been introduced by Adi Cursetji to PW 7 – Ikram as also a “lover of watches”. Accused No.1 – Geeta also used to purchase watch

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from PW 7 – Ikram. Accused No.1 – Geeta used to tell PW 7 –

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Ikram to inform her uncle deceased Adi Cursetji about the price and deceased Adi Cursetji would pay the same. According to him accused no. 3 – Sharda, mother of accused no.1 – Geeta had some dental problem and therefore deceased Adi Cursetji had asked PW 7 – Ikram the name of a dental surgeon. PW 7 – Ikram had accompanied Sharda to Dr. Nagda, Dental Surgeon. Accused No.1 – Geeta and deceased Adi Cursetji used to come to his shop in a Maruti Zen car which was driven by accused no.2 – Irshad. According to Ikram, relations between accused no.2 – Irshad and deceased Adi Cursetji were not cordial because accused no.2 – Irshad used to drive the car very fast and in a rash manner. Accused No.1 – Geeta used to defend accused no.2 – Irshad. Accused No.2 – Irshad was residing somewhere in Mumbra.

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In April, 2000, deceased Adi Cursetji came to the shop of PW 7 – Ikram and informed PW 7 – Ikram that accused no.1 – Geeta had purchased a room for Rs.10 lacs, which was near her own residence. Adi Cursetji was worried as to from where accused no.1 – Geeta would manage the finances. Adi Cursetji had informed PW 7 – Ikram that Geeta had borrowed

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the said amount from one money lender at Andheri and that she would repay the amount in two or three months. The room had been purchased by accused no.1 – Geeta for accused no.2 – Irshad. On the next day, Adi Cursetji informed PW 7 – Ikram on telephone that he was disturbed and had also informed him that accused no.1 – Geeta had committed a mistake. Deceased Adi Cursetji, however, informed PW 7 – Ikram that he would personally come and explain what the mistake was. After sometime deceased Adi Cursetji telephoned Ikram and asked him to come to his residence at the Dil Pazir Building. PW 7 – Ikram accompanied by PW 1 – Nouuroz went to the residence of Adi Cursetji, who informed them that accused no.1 – Geeta had taken an oath that she and accused no.2 Irshad were married and that Adi Cursetji should not disclose this fact to anyone. Adi Cursetji further informed them that accused no.1 – Geeta was trying to commit suicide and, therefore, all of them should go to her residence at the Kakad Estate. Accordingly PW 7 – Ikram accompanied by PW 1 – Nouuroz and deceased Adi Cursetji went to the residence of accused no.1 – Geeta. On reaching the Kakad Estate, they noticed accused no.1 – Geeta moving in the compound of the

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building. Geeta had locked her mother inside the flat and mother of Geeta was shouting from the balcony that accused no.1 – Geeta had a bottle of poison and Ikram and others should stop her from consuming it. They accordingly stopped accused no.1 – Geeta and had a talk with her. Accused No.1 – Geeta informed them that deceased Adi Cursetji would not give money for her pets, though Geeta was fond of pets. Geeta therefore said that she would administer poison to all the cats and then poisoned herself. They convinced Geeta and accordingly returned. Deceased Adi Cursetji had indicated that accused no.2 should not drive his car and that he should not interfere in any thing. Deceased Adi Cursetji was against the relation between accused no.2 – Irshad and accused no.1 – Geeta. Adi Cursetji had informed accused no.1 that accused no.2 – Irshad should not drive his car.

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According to Ikram, on 14/5/2003 an accident had occurred opposite his shop. He along with PW 1 – Nouuroz went to see what had happened and noticed that accused no.2 – Irshad had dashed his Maruit Zen car against a scooter

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and there was a scuffle between him and the scooter driver.

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He accordingly returned to his shop and informed deceased Adi Cursetji about the incident. After informing Adi Cursetji, Ikram and his family members and PW 1 – Nouuroz had gone to see a movie and had received a call at the theater from Adi Cursetji asking them to come to the Tardeo Police Station. Accordingly, Ikram and PW 1 – Nouuroz went to the Tardeo Police Station and noticed deceased Adi Cursetji shouting at the top of his voice. Deceased Adi Cursetji informed them that accused no.2 had come to assault him and, therefore, he had lodged a complaint against accused no.2 – Irshad at the Tardeo Police Station. Adi Cursetji was apprehensive that accused no.1 – Geeta who had the duplicate keys of the car might drive his car and, therefore, asked one Abu Bakre to park the Zen car in his garage.

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After this incident, accused no.1 – Geeta had not come to the shop of PW 7 – Ikram, while deceased Adi Cursetji used to come twice or thrice in a week. Deceased Adi Cursetji was worried about marriage between accused no.1 – Geeta and accused no.2 – Irshad. Adi Cursetji had expressed that he had signed some paper in favour of accused no.1 –

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Geeta and would like now to change, otherwise accused no.2 would squander the money. On 19/5/2003, Adi Cursetji had come to the shop of PW 7 – Ikram at about 7 p.m. and appeared to be very disturbed. He informed PW 7 – Ikram that he would prepare certain documents and make some changes about the persons operating the lockers and the bank accounts. He accordingly wanted to prepare a letter. He had expressed that he had love and affection for accused no.1 – Geeta but was against her relationship with accused no.2 – Irshad. Though accused no.2 – Irshad had come to assault Adi Cursetji, accused no.1 – Geeta had defended Irshad and that had hurt deceased Adi Cursetji. Thereafter on 20/5/2003 there was no contact with deceased Adi Cursetji, though several attempts had been made to contact him on telephone. On 21/5/2003, Ikram and Nouuroz received a telephone call from Abu Bakre, who informed them that there was some commotion at the Dil Pazir Building and that Adi Cursetji had not come home in the night. PW 7 – Ikram accordingly informed PW 1 – Nouuroz and Ikram, therefore, went to the Dil Pazir Building. He noticed commotion in the compound of Dil Pazir Building. The persons who were assembled there were

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saying that deceased Adi Cursetji had expired and that accused no.1 – Geeta had shown certain documents regarding the demise of Adi Cursetji. PW 1 – Nouuroz, therefore, went to the Doongerwadi to enquire about the death of Adi Cursetji and on his return, confirmed that Adi Cursetji had expired. Since the wife of deceased Adi Cursetji was not allowed to see the dead body, PW 1 – Nouuroz reported the matter to the police. He then deposes about the arrival of accused no.1 – Geeta at the police station and later on going to the Dil Pazir Building where accused no.1 – Geeta opened the door of the flat with the key in her possession. On opening the door, they noticed wife of deceased Adi Cursetji and the maid Jaya inside the flat. Jaya, however, wanted to tell them something, but she could not, as she was surrounded by accused no.1 – Geeta and one Dr.Kabra. Accused No.1 – Geeta did not permit PW 1 – Nouuroz to stay in the flat along with the wife of deceased Adi Cursetji. On 23/5/2003, a complaint was lodged against accused no.1 – Geeta and the other accused.

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In cross-examination, he has admitted that his statement was recorded only once on 27/6/2003. He has

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admitted that PW 1 – Nouuroz used to visit his shop occasionally. He has admitted that he had no occasion to meet deceased Adi Cursetji at his residence prior to April, 2003. He has admitted that initially deceased Adi Cursetji had introduced accused no.1 – Geeta as his friend and after the marriage of Geeta, had introduced Geeta as his daughter. In further cross-examination, omissions have been elicited, (a) that he had not stated that accused no.1 – Geeta used to tell PW 7 – Ikram that he should inform Adi Cursetji about the price and that Adi Cursetji would pay Ikram the price of the watch, (b) he had not stated in his previous statement that since accused no.2 – Irshad used to drive the car fast and in a rash manner, the relations between accused no.2 – Irshad and

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Adi Cursetji were not cordial, (c) he had not stated in his previous statement that accused no.2 – Irshad was residing somewhere in Mumbra, (d) he had not stated in his previous statement that deceased Adi Cursetji did not want accused no.2 to drive is car, (e) he had not stated that on going to the police station, he had noticed deceased Adi Cursetji shouting at the top of his voice and that Adi Cursetji had informed them that accused no.2 – Irshad had come to assault him, (f) he had

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not stated in is previous statement that on going to the Dil Pazir Building, the people assembled there were stating that accused no.1 – Geeta had shown some document regarding the demise of Adi Cursetji at Kakad Estate, (g) he had not stated in his previous statement that PW 1 – Nouuroz had gone to Doongerwadi to enquire about death of Adi Cursetji and on his return confirmed that Adi Cursetji had expired.

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He has denied that PW 1 – Nouuroz had gone to Doongerwadi after visiting the police station. He was confronted with his previous statement at portion marked “A”, which he has admitted to have stated so. Omissions have been elicited that he had not stated that on going to the flat of deceased Adi Cursetji, they had noticed telephones disconnected. He has denied that statement of Jaya was recorded by the police. He was confronted with portion marked “B” from his statement to the effect that statement of Jaya was recorded. He has admitted the portion to have been correctly recorded. Omissions have been elicited that he had not stated in his previous statement that Jaya Mohite wanted to disclose something, but was surrounded by accused no.1 –

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Geeta and one Dr. Kabra. He has then admitted that PW 1 – Nouuroz had brought the Zen car of Adi Cursetji and had kept it in the garage of Abu Bakre.

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Prosecution has examined PW 6 – Hirji Nagarwalla, a Borker, who had business dealings with deceased Adi Cursetji. PW 6 – Hirji deposes that he was Real Estate Consultant, who is doing the business for the last 18 years. In respect of the property of Adi Cursetji at Worli, deceased Adi Cursetji had contacted PW 6 – Hirji along with Advocae Mr. Adi Vakil and later on deceased Adi Cursetji used to visit PW 6 – Hirji accompanied by a lady, whom he introduced as Geeta Soni. According to PW 6 – Hirji, accused no.1 – Geeta was introduced by Adi Cursetji as his friend. Adi Cursetji had sold the house through PW 6 – Hirji for Rs.10 crores. After payment of the money, the possession was handed over to the purchaser and deceased Adi Cursetji was residing in some flat at Worli. Deceased Adi Cursetji had purchased a flat in the Dil Pazir Building for Rs.3.40 crores.

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According to PW 6 – Hirji on 21/5/2003 he was

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present at his home at 8.30 a.m. and the watchman of the building brought a small paper on which the name of PW 6 – Hirji was written. The watchman told him to come to the Dil

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Pazir Building as wife of Adi Cursetji had called PW 6 – Hirji there. PW 6 – Hirji enquired from the watchman as to where Mr. Adi Cursetji was and received an answer that the watchman had not seen Adi Cursetji from the previous night. He attempted to telephone the residence of Adi Cursetji, but no one received the call. He accordingly informed Advocate Adi Vakil and Mr. Nipul Shah and informed them about the note which he had received and requested both of them to accompany him for finding out as to what the matter was. After arrival of Adi Vakil at his residence, PW 6 – Hirji and Adi Vakil proceeded to the Dil Pazir Building at about 10 a.m. and reached the Dil Pazir Buildng within ten minutes. They went to the flat of Adi Cursetji on the third floor and rang the door bell. There was a padlock on the door and nobody answered the door bell. They returned to the ground floor in order to see if there was any access to the flat. While they were exploring the access, they were informed by the watchman about arrival

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of accused no.1 – Geeta. They accordingly went to the flat

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again and rang the door bell. The door was opened by accused no.1 – Geeta and PW 6 – Hirji asked Geeta as to what the matter was. PW 6 – Hirji enquired from her as to where Adi Cursetji was. Geeta informed him that Mrs. Cursetji was sleeping and that Adi Cursetji had gone out since morning 7 a.m. and she did not know his whereabouts. PW 6 – Hirji informed her that he had received a note from Mrs. Cursetji and, therefore, wanted to see Mrs. Cursetji, but Geeta informed him that Mrs. Cursetji was sleeping and could not be disturbed. Accordingly PW 6 – Hirji and Advocate Adi Vakil then returned to the ground floor and were waiting for arrival of Mr. Nipul Shah. After arrival of Nipul Shah, they noticed accused no.1 – Geeta leaving the premises carrying some plastic bags in her hand. They asked accused no.1 – Geeta as to whether they could meet Mrs. Cursetji. Accused No.1 – Geeta informed them that the door was locked and nobody could get any access inside. Accused No.1 – Geeta had informed them that when she arrived, the door was not locked and, therefore, she had gained an entry in the flat. Accused No.1 – Geeta, however, requested Nipul Shah that she wanted

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to talk to him privately and Nipul Shah went along with Geeta

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at a short distance. Nipul Shah returned and informed them that accused no.1 – Geeta had informed him that Adi Cursetji had passed away on the previous night due to cardiac arrest / heart failure. Since it appeared to be extremely suspicious to them, they proceeded to the Gamdevi Police Station. PW 6 – Hirji then deposes about arrival of others at the police station and also about going to the BMC Office to verify the death of Adi Cursetji.

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PW 6 – Hirji then deposes that thereafter he received a call from Advocate Adi Vakil asking him to come to the Dil Pazir Building as the police had asked Geeta to open the flat. When PW 6 – Hirji reached the Dil Pazir Building, he noticed that the police had already arrived there. Wife of Adi Cursetji appeared to be shattered on account of the death of her husband and after they were convinced that Mrs.Cursetji was in the house and was alright, Hirji and others returned. He then deposes that his statement was recorded by the police on 26/6/2003.

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In cross-examination, he has admitted that it was

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the only occasion where he had received a note from Mrs.Cursetji. He has admitted that he had never spoken to her on telephone or had met her personally. He has admitted that the note might have been possibly thrown away by him. He has admitted that he had not produced it before the police. He had volunteered and had stated that when he had entered

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the flat of deceased Adi Cursetji, he had confirmed from Mrs.Cursetji about sending of the note. Certain omissions have been elicited that he had not stated in his previous statement, (1) that he had asked the watchman as to where Adi Cursetji was and the watchman had informed him that he had not seen Adi Cursetji from the previous night, (2) that he had informed Advocate Adi Vakil about receipt of a note from Mrs.Cursetji and about his attempting to contact her on telephone, (3) that he had rang the door bell, but no one had answered the door bell and had noticed a padlock and, therefore, return on the ground floor in order to see if there was an access from the rear side of the building, (4) that while

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they were going to the rear side of the building, they were informed by the watchman that accused no.1 – Geeta had arrived, (5) that, therefore, they returned to the flat and rang

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the door bell and that accused no.1 Geeta had informed him that she did not know the whereabouts of Adi Cursetji, (6) that he had seen accused no.1 – Geeta leaving the flat carrying some plastic bags in her hand and (7) that Nipul Shah informed them that accused no.1 – Geeta had informed him that Adi Cursetji had expired previous night due to cardiac arrest / heart failure.

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Prosecution has examined PW 17 – Ardeshir (Adi) Sarosit Vakil. According to him, deceased Adi Cursetji had no children and in 1990 he had expressed a desire to execute a Will. Deceased Adi Cursetji had executed a Will and had bequeathed all his property to PW 17 – Adi Vakil. Somewhere in 1999 or 2000, deceased Adi Cursetji used to move around with one lady, accused no.1 – Geeta Soni who was introduced to Adi Vakil by Adi Cursetji as his friend and “animal lover”. On 21/5/2003 PW 17 – Adi Vakil received a telephone call from PW 6 – Hirji who informed him on phone about receiving a note from Mrs. Cursetji through the watchman. PW 17 – Adi Vakil deposes on similar lines as that of PW 6 – Hirji. He further deposes that on 24/5/2005, he received a telephone

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call from the nephew of deceased Adi Cursetji by name Jahangir Dalal informing him that he wanted to speak to PW 17 – Adi Vakil. Sometime later, he came to the office of PW 17 – Adi Vakil accompanied by one Behram Dordi, Parsi Priest. Behram Dordi informed Adi Vakil that he had not received the amount for obsequial ceremony of deceased Adi Cursetji, though accused no.1 – Geeta Soni had promised to pay the same. The Priest then presented the bill for Rs.11,550/- and requested for payment. PW 17 – Adi Vakil informed him that he would give him a bearer cheque. PW 17 – Adi Vakil further deposes that his statement was recorded on 30/6/2003. The entry regarding payment of cheque in the passbook is at Exh. 86. In the examination-in-chief itself, he has admitted that Mrs.Cursetji had informed him that she had suffered a paralytic attack because of altercation with accused no.1 – Geeta and that accused no.1 – Geeta had physically assaulted her. In cross-examination, he has admitted that his relations with Adi Cursetji were cordial till his death. He has admitted that he was not aware that on 3/2/1992 Adi Cursetji had executed a Will. He has admitted that in 1990 deceased Adi Cursetji had disclosed to him that Adi Cursetji had

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bequeathed his property to PW 17 – Adi Vakil. He has admitted that he does not know that on 21/1/2002 Adi Cursetji revoked all his earlier Wills and executed a new Will. The photocopy of the Will is at Exh. X-2. He has admitted that he had met accused no.1 – Geeta when the negotiations for the sale of bungalow at Worli had commenced. He has admitted that he does not know if at the time of purchasing the flat at Dil Pazir Building, deceased Adi Cursetji had nominated accused no.1 – Geeta as his nominee. He was confronted with portion marked “A” to the effect that deceased Adi Cursetji had nominated Geeta Soni as heir of Adi Cursetji in respect of the flat at Dil Pazir Building. This witness has answered that he does not remember to have stated so to the police. He has admitted that accused no.1 – Geeta used to visit the house of Adi Cursetji frequently but was not doing any household work. He was confronted with portion marked “B” from his statement about accused no.1 – Geeta doing household work. He has denied to have stated so. He has admitted that when he had met PW 6 – Hirji in the morning of 21/5/2003, Hirji had not shown him the chit/note sent by Mrs.Cursetji. He has admitted as correct that since he had not seen the chit/note,

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he does not know as to what was written in it.

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Omissions have been elicited in his cross-

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examination that he had not stated in his previous statement about going to the flat of Adi Cursetji and finding the door locked with no one answering the door bell. Omissions have been elicited that he had not stated in his previous statement that accused no.1 – Geeta had not opened the door, but was talking with them through the metal grill door. Omission is also elicited that he had not stated in his previous statement that accused no.1 – Geeta informed them that Adi Cursetji would return within 15 minutes or half an hour. Omission is also elicited that he had not stated in his previous statement that Nipul Shah disclosed to them that Geeta had informed him that Adi Cursetji had died of heart-attack on the earlier night. Omission is elicited that he had not stated in his previous statement that he had telephoned PW 6 – Hirji to come to the Dil Pazir Building as the police had come to the Dil Pazir Building. He was confronted with portion marked “C” from his statement about recording the statement of wife of

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Adi Cursetji and Jaya Mohite in the presence of accused no.1 –

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Geeta and PW 6 – Hirji. He has admitted that he had no talk with either wife of Adi Cursetji or the maid servant Jaya Mohtie on 21/5/2003.

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Prosecution has examined PW 31 - Shrikrishna Gite, Joint Sub Registrar, who deposes that on 21/1/2002, the Will of deceased Adi Cursetji was registered in his office. Deceased Adi Cursetji had personally come for registering the Will. After registration of the Will, an entry was taken in the register maintained in the office. The copy of the Will dated 21/1/2002 (Article No.3) is at Exh. 136.

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As per the said Will, deceased Adi Cursetji had bequeathed his property to accused no.1 – Geeta Soni. In the Will at Exh. 136, it is stated that deceased Adi Cursetji considered accused no.1 – Geeta Soni as his daughter.

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Prosecution has examined PW 32 – Pratap Mutkule, Joint Sub Registrar, who had registered the first Codicil of deceased Adi Cursetji on 1/4/2003 to his Will dated 21/1/2002.

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The said Codicil dated 1/4/2003 is at Exh. 138.

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Prosecution has examined PW 30 - Firoz Sahahun,

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an Assistant Manager, Central Bank of India, to whom an application at Exh. 132 had been made by deceased Adi Cursetji for removing the name of accused no.1 – Geeta Soni from the locker register. Prosecution has also examined PW 14 – Rahimat Ali Shaikh, a Kazi, who had performed the marriage of accused no.1 – Geeta Soni with Irshad Yusuf Mulla. An affidavit had been produced before him that the bride, accused no.1 – Geeta had converted herself to Mohamedan religion. He had asked accused no.1 – Geeta if she accepted Islam religion and on her consent, read over the Kalma. Accused No.1 – Geeta, after her conversion was named as “Janu”. Accordingly, the Nikahnama was given to accused no.1 – Geeta. Exh. 78 is the certified copy of the marriage application, while Exhs.X, X-1 and X-2 are the copies of the affidavits and the marriage certificate. X-3 and X-4 are the passports of accused no.2 – Irshad and accused no.1 – Geeta Soni, while X-5 is the ration card of the witnesses. The Nikahnama is Article X-2. He has further deposed that after three days of the marriage, accused no.1 – Geeta had come to his office and had informed him that the marriage between

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her and accused no.2 had ended and, therefore, she had asked PW 14 – Rahimat Shaikh to hand over the copy of the Nikahnama. She had asked for a copy as she intended to tear the Nikahnama in the presence of her father. PW 14 – Rahimat Shaikh accordingly handed over the copy of the Nikahnama to accused no.1 – Geeta.

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Prosecution has examined PW 10 – Arvind Zha, a watchman at the Dil Pazir Building. PW 10 – Arvind Zha deposes that he was working as a watchman at the Dil Pazir Building from 1992. According to him there are normally two watchmen on duty in each shift. He has further deposed that the Dil Pazir Building consists of ground plus four floors having two flats on each floor. According to PW 10 – Arvind Zha, deceased Adi Cursetji was residing on the third floor with his wife Meru Cursetji and PW 11 – Jaya Mohite, a maid servant. He has also deposed that he knew accused no.1 – Geeta Soni, as she was visiting the flat of deceased Adi Cursetji, who was treating accused no.1 – Geeta as his daughter. He has also identified accused no.3 – Sharda, mother of accused no.1 – Geeta Soni. He has also identified accused no.2 – Irshad, who

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was driver driving the vehicle of Adi Cursetji and who had married accused no.1 – Geeta Soni.

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He deposes that on 20/5/2003 he was on duty at the main gate of the Dil Pazir Building from 8 a.m. to 9 p.m. At about 12.30 p.m. he noticed deceased Adi Cursetji and PW 3 – Prerna Shah going out of the building. He further deposes that at about 7 p.m. he had noticed deceased Adi Cursetji returning alone to the Dil Pazir Building. On the same day, at about 7.25 p.m. accused no.3 – Sharda enquired from PW 10 – Arvind about presence of deceased Cursetji in the house. Accused No.3 – Sharda thereafter went to the flat of deceased Adi Cursetji and after about 20 to 25 minutes deceased Adi Cursetji and Sharda came on the ground floor. Accused No. 3 – Sharda held the hand of deceased Adi Cursetji. One taxi had arrived at the gate. Accused No.2 – Irshad alighted from the taxi and opened the rear door of the taxi. Deceased Adi Cursetji and accused no. 3 – Sharda sat on the rear side of the taxi, while accused no.2 – Irshad sat on the front seat of the taxi. PW 10 – Arvind then deposes that he had not seen deceased Adi Cursetji alive thereafter.

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According to PW 10 – Arvind, on the next day in the

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evening at about 6 or 6.30 p.m. police from the Gamdevi Police Station accompanied by PW 1 – Nouuroz, Akram Khan, one Mitha and accused no.1 – Geeta Soni had come to the Dil Pazir Building and had gone upstairs. He has further deposed that on 21/5/2003 in the morning at about 7 a.m. he had noticed PW 11 – Jaya clapping from the balcony of the third floor flat in the Dil Pazir Building. On seeing PW 11 – Jaya, PW 10 – Arvind enquired from her as to what had happened. PW 10 – Arvind by gestures asked Jaya to telephone, but PW 11 –

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Jaya also gestured back to indicate that the telephone was not working. Jaya also gestured PW 10 – Arvind to come towards the rear side. PW 10 – Arvind also went on the third floor to the flat of deceased Adi Cursetji and had heard Jaya talking, but she was not audible. Even the voice of Arvind was not audible to Jaya. He, therefore, descended on the ground floor and noticed wife of deceased Adi Cursetji and Jaya standing in the balcony. Wife of deceased Adi Cursetji then threw an envelope from the balcony. Envelop was a sealed envelop with the address of the person written on the envelop. The person

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to whom that letter was addressed was PW 6 – Hirji

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Nagarwalla. By gestures, wife of deceased Adi Cursetji indicated to PW 10 – Arvind to deliver the envelop to PW 6 – Hirji Nagarwalla. Accordingly he had gone to the flat of Hirji Nagarwalla and had delivered the letter to Hirji Nagarwalla. He further deposes that on the same day at about 10.30 a.m. Geeta Soni had come to the Dil Pazir Building and had gone on the third floor. At about 11.45 a.m. PW 6 – Hirji Nagarwalla and PW 17 – Adi Vakil had also gone on the third floor. After about five minutes, both these persons came to the ground floor and stood besides PW 10 – Arvind. After sometime, Arvind noticed accused no.1 – Geeta leaving the Dil Pazir Building with some bags in her hand. PW 6 – Hirji Nagarwalla had indicated that he wanted to meet the wife of deceased Adi Cursetji. Geeta informed him that her uncle (deceased Adi Cursetji) had directed that nobody should meet his wife. After sometime both of them went away.

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In cross-examination, he has admitted that accused no.1 – Geeta Soni was visiting the building almost everyday, while accused no. 3 – Sharda was visiting deceased Adi Cursetji occasionally. He has also admitted that accused no.1

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– Geeta was looking after deceased Adi Cursetji and his wife. PW 10 – Arvind, however, corrected himself to state that he did not know as to what accused no.1 was doing after she went to the flat of deceased Adi Cursetji. He has, however, admitted that accused no.1 – Geeta was being treated like a daughter by deceased Adi Cursetji. He has also admitted that on several occasions, he had seen accused no.1 – Geeta and deceased Adi Cursetji going together.

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In further cross-examination, omissions have been elicited that he had not disclosed in his statement, (a) that on 21/5/2003, he came out and saw PW 11 – Jaya clapping from the balcony of the third floor flat, (b) that he saw in her direction and by gestures enquired from her as to what had happened and had gestured her to telephone him, (c) that by gestures PW 11 – Jaya indicated that the telephone was not working, (d) that PW 11 – Jaya gestured him to come to the rear side and thereafter he had gone to the third floor flat of deceased Adi Cursetji and had noticed Jaya talking through the closed door but her voice was not audible as also his voice

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was not audible to Jaya, (e) that he had seen wife of deceased

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Adi Cursetji and PW 11 – Jaya standing in the balcony and wife of deceased Adi Cursetji had thrown an envelop from the balcony, which was sealed, (f) that he read the address of the person to whom the envelop was addressed and the envelop was addressed to PW 6 – Hirji Nagarwalla, (g) that wife of deceased Adi Cursetji gestured him to deliver the letter to person whose address was mentioned on the envelop, (h) that he had given the letter to PW 6 – Hirji Nagarwalla, (i) that at about 11.45 a.m. PW 6 – Hirji and Adi Vakil had gone to the third floor and thereafter they stood besides him on the ground floor, (j) that PW 6 – Hirji informed accused no.1 – Geeta that he wanted to meet wife of deceased Adi Cursetji and that accused no. 1 – Geeta informed Hirji that her uncle had directed that till his return, nobody should meet his wife.

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He has admitted that he cannot read English and had got the address read from others. In further crossexamination, he has admitted that deceased Adi Cursetji was an old man and that PW 10 – Arvind also used to assist Adi Cursetji when he was not accompanied by any person. If deceased Adi Cursetji was accompanied by any person, that

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person used to assist him and also used to open the door of the car.

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Prosecution has examined PW 11 – Jaya Mohite, a maid servant who was working in the flat of deceased Adi Cursetji. PW 11 – Jaya deposes that she had been working as a maid servant about nine months prior to the incident. She has admitted that she was employed as a maid servant to work in the flat of Adi Cursetji by accused no.1 – Geeta Soni. She has also admitted that deceased Adi Cursetji was treating

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accused no.1 – Geeta Soni as his daughter, who was looking after the house of deceased Adi Cursetji. Accused No.1 – Geeta was visiting the house of deceased Adi Cursetji twice or thrice in a day. According to PW 11 – Jaya, accused no.1 – Geeta and her mother, accused no. 3 – Sharda, were residing in the flat at Kakad Estate. She deposes that on 20/5/2003 at about 7.30 p.m. accused no.3 – Sharda came to the house of Adi Cursetji and at that time deceased Adi Cursetji, his wife and PW 11 – Jaya were present in the flat. Accused No.3 – Sharda was present in the flat for about 15 to 20 minutes. According to Jaya, there was a quarrel between accused no.3 –

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Sharda and deceased Adi Cursetji. PW 11 – Jaya has candidly admitted that she does not know the reason for the quarrel, but accused no. 3 – Sharda was threatening deceased Adi Cursetji and forcing him to go along with her. Deceased Adi Cursetji was not willing to go with accused no. 3 – Sharda and, therefore, accused no. 3 – Sharda then took deceased Adi Cursetji along with her. Accused No. 3 – Sharda also threatened Jaya and wife of Adi Cursetji that they should not disclose anything to anyone. While leaving the flat, accused no. 3 – Sharda locked the door.

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In response to question from the Special Public Prosecutor, as to what happened during the night at about 12.15 a.m.?, PW 11 – Jaya deposed that accused no.1 – Geeta accompanied by one Dr. Kabra had come to the flat in Dil Pazir Building and accused no.1 – Geeta had informed wife of deceased Adi Cursetji that Adi Cursetji had died at Kakad Estate due to heart-attack. Meru, wife of deceased Adi Cursetji informed Geeta that she wanted to see the dead body of her husband. Accused No.1 – Geeta informed Meru that she would take her in the morning for seeing the dead body. Meru

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also instructed accused no.1 – Geeta to inform this fact to PW

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6 – Hirji Nagarwalla. According to Jaya, thereafter accused no.1 – Geeta disconnected the telephone connections in the house. Geeta then opened the cupboards and took the documents with her and went away.

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Jaya further deposes that in the morning at about 10.30 a.m., accused no.1 – Geeta had come in the flat by opening the lock. Meru had asked accused no.1 – Geeta to take her to see the dead body of her husband. Accused No.1 – Geeta informed Meru that she had taken the dead body of Adi Cursetji to Doongerwadi for performing the funeral in the night. Accused No.1 – Geeta again opened the cupboard and reconnected the telephone wires. She removed documents from the cupboard and put them in a bag. According to Jaya, accused no.1 – Geeta threatened her that if Jaya disclosed to anyone, Geeta would remove her from service. According to Jaya since she was frightened, she did not disclose this fact to anyone.

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Jaya further deposes that on 23/5/2003 at about

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10.30 a.m. a phone was received from accused no.1 - Geeta, who enquired from Jaya, if Jaya had received telephone call from anyone. Jaya informed her in the negative and Geeta instructed Jaya that in case phone was received from anyone, Jaya should not hand over the telephone to Meru. Geeta also instructed Jaya that in case anyone enquired about Adi Cursetji, Jaya should tell them that he had gone out. Jaya, however, told accused no.1 – Geeta that Jaya would not tell anyone as instructed by Geeta and on that accused no.1 – Geeta had threatened Jaya.

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In cross-examination, she has admitted that accused no.1 – Geeta was managing the house of deceased Adi Cursetji as her own and was doing all household work and paying electricity bills and was also doing purchasing etc. She has further admitted that Adi Cursetji and his wife Meru were old persons. She has further admitted that Adi Cursetji was purchasing medicines for himself and for his wife. Doctor was visiting the house of Adi Cursetji. She has also admitted that on several occasions Adi Cursetji used to go out with accused no.1 – Geeta Soni. She has admitted that on 21/5/2003, Geeta

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Soni accompanied by the police had come to the flat in the evening at about 3 to 4 p.m. and was present in the house along with the police for about 10 to 15 minutes. Jaya has admitted that during this period the police had interrogated her and Meru Cursetji. Jaya then admits as follows :-

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“During that period, I had not told anything to police what I disclosed today.”

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She has admitted accused no.3 – Sharda was not a frequent visitor. She was confronted with portion marked “A” from her statement, wherein she had stated that accused no.3 was also regularly visiting the house of Adi Cursetji. She has denied to have stated. She has admitted that accused no.1 – Geeta and accused no.3 – Sharda were like family members of Adi Cursetji. She has then admitted as correct that she could not understand the conversation between them, except that accused no.3 – Sharda had asked Adi Cursetji to come along with her. She has also admitted that she as well as Meru had intervened and Meru had asked Sharda as to where Adi Cursetji was being taken, but Sharda had not disclosed the

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place where Adi Cursetji was being taken. She has admitted in the cross-examination that she did not go to the balcony of the flat and instruct PW 10 – Arvind not to permit Sharda to take Adi Cursetji. She has admitted that she had cried out, but no one had come for help. She has admitted that she had not attached any importance to accused no. 3 – Sharda taking Adi Cursetji. An omission has been elicited that she had not disclosed in her previous statement that accused no. 3 – Sharda had locked the door. She has admitted that even Meru did not telephone anyone to inform them that Adi Cursetji had been taken by Sharda. She has admitted that on the night of 21/5/2003 when Geeta had disclosed to Meru that Adi Cursetji had suffered heart-attack, Meru had told Geeta that she had asked Adi Cursetji not to do so much running around, but he was not listening to her. An omission has been elicited that she had not stated in her previous statement that accused no.1 – Geeta had disconnected the telephone. She has denied

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to have stated portion marked “B” from her statement. She has admitted that she could not give any chit to the watchman because she cannot write. She has admitted that

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neither she nor Meru had come in the balcony in the night in

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order to give any chit to the watchman. She has then admitted that Meru Cursetji could walk in the home but she was bed-ridden. She has admitted that in the morning she did not call the watchman and inform him anything.

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It would thus be seen from the evidence of PW 11 – Jaya that the case of the prosecution that Jaya and Meru had frantically attracted the attention of PW 10 – Arvind and had thrown a chit to PW 10 – Arvind to be delivered to PW 6 – Hirji Nagarwalla is completely falsified by the evidence of PW 11 – Jaya. Jaya makes no reference to going in the balcony and attracting the attention of PW 10 – Arvind and about Arvind coming to the flat and Jaya attempting to speak to him through the closed door. Jaya makes no reference to Meru Cursetji throwing any chit from the balcony to PW 10 – Arvind. Jaya also makes no reference to the arrival of PW 6 – Hirji and PW 17 – Advi Vakil to the flat and they ringing the door bell. Curiously, PW 6 – Hirji Nagarwalla also could not produce the chit. The chit in the present case was a vital piece of evidence and PW 6 – Hirji deposes in a very casual manner that he may have thrown the chit. We, therefore, find that no reliance

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whatsoever can be placed on the testimony of these witnesses in respect of the chit. Omissions have been elicited in the cross-examination of Jaya about accused no. 3 – Sharda locking the door and also about accused no.1 – Geeta locking the door after leaving the flat. We further find that Jaya has admitted that most of her examination-in-chief dealing with the quarrel and taking of Adi Cursetji by accused no.3 – Sharda had not been informed by her to the police when the police had arrived at the flat. The evidence of these witnesses particularly PW 11 – Jaya Mohite, PW 6 – Hirji Nagarwalla and PW 17 – Adi Vakil appears to be highly artificial and very adroitly introduced at a subsequent stage and thus no reliance can be placed on this evidence.

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Prosecution has examined PW 9 – Pandav Jha, a watchman at the Kakad Estate. PW 9 – Pandav deposes that he was knowing accused no.1 – Geeta and her mother, accused no. 3 – Sharda, as they were residing at the Kakad Estate in a flat on the first floor. He has also deposed that he knew deceased Adi Cursetji as he used to visit the flat of accused no.1 – Geeta. According to him, accused no. 7 –

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Pappu Walmiki, accused no. 8 – Ajay Walmiki and accused no. 6 – Rakesh were working as sweepers in the Kakad Estate. He has also identified accused no.2 – Irshad, who was the driver of accused no.1 – Geeta Soni. He has also identified accused no.4 – Dr. Hegde, who had a clinic in front of the Kakad Estate.

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According to him on 20/5/2003 at about 9 or 9.15 p.m. while he was on duty, one taxi arrived at the gate of Kakad Estate. Accused No. 2- Irshad, accused no.3 – Sharda and deceased Adi Cursetji alighted from the taxi. Accused No.3 – Sharda held the hand of Adi Cursetji and had taken him inside, while accused no.2 – Irshad was following him. Accused No.1 – Geeta and accused no.3 – Sharda were residing in the flat on the first floor in “B” Block and accused no.3 – Sharda and accused no.2 – Irshad had taken Adi Cursetji to the flat on the first floor in Block “B” and about 10 O'Clock in the night accused no.6 – Rakesh Walmiki and accused no. 8 – Ajay Walmiki hurriedly went out of the gate of the Kakad Estate. Ten minutes thereafter accused no.1 – Geeta Soni also went out of the building. About ten minutes

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thereafter, accused no. 1 – Geeta Soni accompanied by accused no. 4 – Dr. Hegde came to the Kakad Estate and went to the flat in “B” Block. About ten minutes thereafter accused no.1 – Geeta Soni and accused no. 4 – Dr. Hegde went out of the gate of the Kakad Estate. In the same night, at about 2 O'Clock, an ambulance arrived at the Kakad Estate. Accused No.1 – Geeta Soni informed PW 9 – Pandav that her uncle was ill and, therefore, Pandav should open the gate. Pandav accordingly opened the gate and the ambulance halted in front of “B” Block. Adi Cursetji was taken on a stretcher and placed in the ambulance.

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In cross-examination, he has admitted that his statement was recorded at the Gamdevi Police Station on 26/5/2003. He has admitted that he had not disclosed to anyone what he had deposed till his statement was recorded on 26/5/2003. He has admitted that he knew accused no. 8 – Ajay Walmiki who was working as a sweeper and used to clean the premises in the morning. He had been employed by the society. Omission has been elicited that he had not stated in

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his previous statement that accused no.3 – Sharda and

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JT-APEAL 346.06 & CONNECTED APPEALS..sxw accused no.2 – Irshad took Adi Cursetji to Block “B”. He has admitted in cross-examination that while leaving the Kakad Estate in the night on 20/5/2003, Geeta Soni was in a hurry. Thereafter she had returned with Dr. Hegde. He has admitted that they were coming from the side of the clinic of Dr. Hegde. He has also admitted that he knew Adi Cursetji as he used to frequently visit the flat of accused no.1 – Geeta Soni and accused no.3 – Sharda. He had also seen them going out together on several occasions. He has admitted that he had not paid any special attention about entry of Adi Cursetji, Geeta Soni and Sharda on 20/5/2003 as they were usually going together. He has then admitted that “Adi Cursetji was old man. I did not feel anything on 20/5/2003 when Adi Cursetji was being taken by holding him as he was old man”. Omission has been elicited that he had not stated in his previous statement that Geeta Soni had disclosed to him that her uncle was ill.

¶394

The prosecution has examined PW 27 – Rajendra Kunwar, a watchman at the Kakad Estate. PW 27 – Rajendra has deposed that he was working as a watchman at the Kakad

¶395

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Estate and his duty hours were from 9 a.m. to 9 p.m., while the duty hours of another watchman Pandav Jha were from 9 p.m. to 9 a.m. According to him, Original Accused No. 8 – Ajay Walmiki and Pappu Walmiki were working as sweepers in the Kakad Estate. Accused No.6 – Rakesh Walmiki used to visit them. According to him, on 20/5/2003 at about 7 p.m. he had noticed Pappu Walmiki, accused no. 8 - Ajay Walmiki, accused no.6 – Rakesh Walmiki and accused no.1 – Geeta Soni going to the Kakad building. In cross-examination, he has admitted that Pappu Walmiki and Rakesh Walmiki used to visit every flat for sweeping the flats. He has admitted that the flat owners used to call them for work. In further cross-examination, he has admitted that as accused Rakesh Walmiki was working at the Kakad Estate, he used to visit Kakad Estate. On 26^th Ajay Walmiki was on duty. He corrected himself to state that neither Rakesh Walmiki nor Ajay Walmiki were on duty on 26^th .

¶398

Prosecution has examined PW 12 – Shashikant Land, a panch to a memorandum of discovery of accused no. 6 – Rakesh Walmiki relating to discovery of pillow. PW 12 – Shashikant deposes that on 10/6/2003 at about 5 p.m. when

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he was returned from the temple and was near the Bus Stop, one policeman met him near the police station and requested him to assist the police. Along with the policeman, PW 12 – Shashikant went to the Gamdevi Police Station and was introduced to PI Ramchandra Mane. PW 12 – Shashikant consented to act as a panch. In presence of PW 12 – Shashikant, accused no. 6 – Rakesh expressed his willingness to point out the place where a pillow had been concealed. The memorandum of accused no. 6 – Rakesh was accordingly recorded at Exh. 72. Accused No. 6 – Rakesh led the police and the panch to the flat at Kakad Estate in “B” Block and accused no. 6 took out a pillow from amongst the pillows lying on the bed. Said pillow was accordingly seized under panchanama at Exh. 72A.

¶402

At the out-set, we may point out that the pillow was never sent to the Chemical Analyzer and there is nothing incriminating about that particular pillow. The seizure of the pillow, consequent to the disclosure memorandum of the accused, in our opinion, is not an incriminating piece of evidence which incriminates the accused in the commission of

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the crime.

¶406

Prosecution has examined PW 13 - Abdul Rashid, a

¶407

Security Supervisor, working in the Central Investigation and Security Services. According to him Rakesh Walmiki (Accused No.6) was one of the watchmen. According to him Rakesh Walmiki, accused no.6, was on night duty on 19/5/2003. Rakesh Walmiki was to come on duty on 20/5/2003, but was absent when the attendance was taken. According to him, though accused no.6 – Rakesh was not present on 20/5/2003, he had surreptitiously signed the attendance register. He has identified the attendance register (Article 5) and has proved the entries at Exhs. 74 and 75 in Article 5, showing the absence of accused no. 6 – Rakesh.

¶408

Prosecution has examined PW 16 – Amal Tawake, a Receptionist working at the Ramada Plaza, Palm Grove Hotel, Juhu Beach, Mumbai. According to him, accused no.1 – Geeta Soni and accused no.2 – Irshad had occupied one room on 9/5/2003 and were registered as Mr. and Mrs. Irshad Mulla.

¶409

They, however, checked out in the night at about 10 p.m..

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Exh. 80 Colly. are registration form and the bills. This witness had identified accused no.1 – Geeta and accused no.2 – Irshad as the persons who had occupied the room. Prosecution has examined PW 15 – Ghanshyam, panch, relating to the seizure of the documents at Exh. 80 colly. from the hotel. The panchanama is at Exh. 81.

¶413

Prosecution has examined PW 21 – Smt. Anima

¶414

Kindoo, sister-in-law of the absconding accused no. 9 – Pappu Walmiki. PW 21 – Anima deposes that she was employed by Siraj Shahiwala and was working as a maid servant and residing in the house of Siraj Shahiwala. According to her, her elder sister Elizabeth was married to accused – Pappu Walmiki about five years prior to the incident. Pappu Walmiki is also known as Arvind Walmiki. She has also identified accused no. 6 – Rakesh Walmiki and accused no. 8 – Ajay Walmiki as relatives of accused no. 9 – Pappu Walmiki. According to her Elizabeth was suffering from T.B. and was affected with the disease about one and half years after the marriage. She has admitted that she had illicit relations with accused – Pappu

¶415

Walmiki and these relations developed after the illness of

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Elizabeth. Accused No. 9 – Pappu Walmiki was working at Kakad Estate as a sweeper. Accused – Ajay Walmiki and accused – Rakesh Walmiki were also working at the Kakad Estate along with Pappu Walmiki as sweepers. According to Anima, on 20/5/2003 at about 10.15 p.m. she has received a telephone call from Pappu Walmiki at the house of her employer Siraj Shahiwala. Pappu Walmiki informed her on phone to bring two plastic bags near the gate of Lady Ratan Tower building. She accordingly went to the appointed place, carrying two plastic bags. She met Pappu Walmiki, accused – Rakesh Walmiki and Ajay Walmiki near the gate of the building and handed over two plastic bags to Pappu Walmiki. Ajay Walmiki was also carrying plastic bags in his hand. A taxi had been called, which was parked nearby. Pappu Walmiki asked Anima to come with him in the taxi and, therefore, the three accused and Anima boarded the taxi. The taxi driver was told to drive near the famous studio near Race Course. When they reached that place, the accused told the taxi driver to alight from the taxi as they wanted to discuss some important things. The taxi driver alighted from the taxi and according to

¶419

Anima, all the three accused told Anima that accused no.1 –

¶420

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Geeta Soni had given a contract to them to kill Adi Cursetji and the contract was for Rs.3 lacs. All the three accused told her that they had killed Adi Cursetji when he was sitting on the sofa by smothering him with a pillow. All the three accused told her that they had done this on 20/5/2003 at about 9.30 to 9.45 p.m. and had got Rs.3 lacs from accused no.1 – Geeta. According to Anima, Ajay Walmiki removed the money, which was in a plastic bag, i.e. Rs. 80,000/-. and the remaining amount was kept in a plastic bag with Ajay Walmiki. The taxi driver was called and they told the taxi driver to drive

¶423

back to the Lady Ratan Tower. Near the Jijamata Nagar, accused no.6 – Rakesh Walmiki alighted from the taxi and when the taxi reached the gate of Lady Ratan Tower building, accused no. 9 – Pappu Walmiki told Anima to take the plastic bag, containing the money, with her. Since Anima was threatened, she took the plastic bag. Pappu Walmiki further instructed to her that he would come on the next day and would collect the money from her. According to Anima, since she was in love with him and was also frightened, she had gone to the Ratan Tower. Accused – Ajay Walmiki and Pappu Walmiki thereafter went away in the taxi.

¶424

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On 21/5/2003, in the morning at about 9 a.m. she received a phone call from Pappu Walmiki, who instructed her to bring the plastic bag, containing the money. Accordingly, Anima went to the ground floor, where Pappu Walmiki and Ajay Walmiki were standing and handed over the bag, containing money, to Pappu Walmiki. Since Anima was pregnant, she was taken to a doctor. Pappu Walmiki and Ajay Walmiki left her near Worli Naka Bus Stop and Pappu Walmiki told her that they would return within half an hour. After half an hour Pappu Walmiki alone came and took her to the doctor Mayur's Nirmal Clinic, where she was aborted. Pappu Walmiki paid the fees of the doctor and from there they went to the house of her sister Elizabeth. On 22/6/2003, Pappu Walmiki gave Anima Rs.10,000/- and told her that he wanted to go some village. 2-3 days thereafter she received a telephone call from Pappu Walmiki, who enquired from her if police had come enquirying for him. 2-3 days thereafter again she received phone call from Pappu Walmiki, who informed her that his people were worried because of what he had done. According to Anima, she had also received a phone call from

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aunt of Pappu Walmiki. Anima had also informed him that everyone was worried because of what Pappu Walmiki had done.

¶430

In cross-examination, she has admitted that she had disclosed the incident to her master Siraj Shahiwala, but does not remember the date. According to her, she had disclosed the incident about one week after Pappu Walmiki had left. According to Anima, Siraj Shahiwala had advised her to go to the police station and, therefore, she had gone to the

¶431

police station on the same day. Anima has admitted that till she went to the police station, her sister had not disclosed to her that the police were searching for Pappu Walmiki. She has admitted that Rs.10,000/- given to her by Pappu Walmiki had

¶432

been handed over by her to her sister Elizabeth. She has admitted that when she had returned to the flat, carrying the plastic bag containing money, mother of Siraj Shahiwala had enquired from her as to the contents of the bag and she had disclosed that the bag contained clothes of Pappu Walmiki. She has admitted that she spoke false as she love Pappu Walmiki. She has admitted that she love Pappu Walmiki even

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at the time when she had gone to the police station and even on the day on which her evidence was recorded. She has admitted that she had met Elizabeth after Pappu Walmiki had left and till 18/6/2003 had not disclosed to Elizabeth about the facts disclosed by Pappu Walmiki.

¶436

The learned counsel for the appellants/accused has rightly urged before us that no reliance whatsoever can be placed on the extra judicial confession alleged to have been made by absconding accused no. 9 – Pappu Walmiki to PW 21 – Anima. According to the learned counsel for the appellants, the entire evidence of PW 21 – Anima appears to be artificial. The learned APP has strongly relied on this piece of evidence in respect of the involvement of the other accused as well as the involvement of accused no. 9 – Pappu Walmiki.

¶437

The evidence of this witness certainly appears to be artificial in so far as the extra judicial confession is concerned. This witness met the accused near the gate of Ratan Tower. For no ostensible reason the accused made her sit in the taxi and took her at some distance and then

¶438

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disclosed the incident to her in the taxi. There was no earthly reason as to why accused would make this witness to sit in the taxi and go with them only for the sake of disclosing the

¶441

incident to her. Further more, it appears that there was no reason for the accused to have confessed the crime as at that point of time there was no finger of suspicion pointing towards

¶442

the involvement of the accused. There is no other corroborative piece of evidence which would corroborate the conduct of this witness in disclosing the incident immediately. Though this witness claims that she had disclosed the incident

¶443

to her employer Siraj Shahiwala, prosecution has not examined him. There is no other evidence on record which would even remotely corroborate the alleged extra judicial confession of the accused. An extra judicial confession by itself is a very weak piece of evidence which can be introduced in evidence after commencement of the investigation. Unless there is evidence which corroborates the extra judicial confession, the extra judicial confession by itself

¶444

is not sufficient for holding accused guilty. The extra judicial confession in the present case is shrouded in suspicious circumstances and in our opinion no reliance whatsoever can

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be placed on the testimony of PW 21 – Anima.

¶448

Prosecution has examined PW 23 – Hakimsing Saket, who was working as a cashier in the Atah Gramin Bank at Nagrala, District Atah (U.P). He deposes that mother of accused no. 6 – Rakesh Walmiki, by name Kailashidvi Jayram Walmiki had a savings bank account in the bank. On 9/6/2003, mother of accused no.6 came in the bank at about 11 a.m. and withdrew an amount of Rs.65,000/- from the account. After sometime, the police came and thereafter an amount of Rs.65,000/- was seized from the possession of mother of accused no.6. An admission was attempted to be elicited from this witness as to what was disclosed by mother of accused no. 6 during the questioning by the police. The answer given by the witness would obviously hit by the provisions of Section 162 of Cr. P.C. and, therefore, would be inadmissible in evidence.

¶449

Prosecution has examined PW 33 – Sudhirchandra Mishra, the Manager of the Etah Gramin Bank. This witness, during his evidence, produced the statement of the account of

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the savings bank account of mother of accused no.6. The statement along with the certificate is at Exh. 140. According to him on 27/5/2003 Kailashidevi deposited Rs.70,000/- in her account and on 5/6/2003 she had withdrawn an amount of Rs.5000/-. The withdrawal slip is at Exh. 142. On 9/6/2003 Kailashidevi had withdrawn Rs.65,000/- from her account and the withdrawal slip is at Exh. 143. Prosecution has examined PW 34 – Kailashidevi Walmiki, mother of accused no.6, who did not support the prosecution and was declared hostile. Nothing of substance has been elicited in the crossexamination of this witness which would assist the prosecution.

¶453

Prosecution has examined PW 24 – Shrinivas

¶454

Sharma, a panch to the arrest of accused no. 8 – Ajay Walmiki. According to this witness, accused no. 8 – Ajay was arrested and on his search Rs.20,030/- cash was found in a bag. The bag also contained one gold ring, chain, wrist watch and a cash memo for Rs.8,800/-. All the articles were seized under panchanama at Exh. 113.

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Prosecution has examined PW 35 – Jayantilal Jain, a

¶458

Jeweller, who had sold gold chain and ring to accused no. 8 – Ajay Walmiki. According to him on 21/5/2003 accused – Ajay had purchased a gold chain and gold finger ring for Rs.8810/and the amount was paid in cash. He has identified the cash memo at Exh. 150.

¶459

In respect of the above evidence regarding the involvement of accused no.6 – Rakesh Walmiki and accused no. 8 – Ajay Walmiki, we find that merely because accused no. 8 - Ajay Walmiki was possessing an amount of Rs.20,030/and had purchased a gold ring and chain worth Rs.8810/-, would not lead to an irresistible inference that the amount which was found in the possession of accused no. 8 – Ajay was part of the amount of money given by accused no.1 – Geeta as contract money for killing deceased Adi Cursetji. In the absence of any evidence relating to conspiracy and the involvement of these accused in the commission of the crime, mere seizure of the money from accused no. 8 or mother of accused no. 6, Kailashidevi having deposited Rs.70,000/- in

¶460

her account by itself is incapable of leading to an hypothesis

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about involvement of these accused in the commission of the crime. These circumstances, therefore, in our opinion, are not incriminating circumstances which would in any manner complete the chain of circumstances for pointing a finger towards the accused that these are the accused who have committed the crime. The pillow, which was seized allegedly at the behest of Original Accused No. 6 – Rakesh from the flat of Geeta Soni is also not an incriminating circumstance. The pillow had not been sent to the C.A. and there is nothing incriminating about that pillow. No saliva or in fact other incriminating material was found on the pillow cover and, therefore, the discovery of the pillow from the scene of the incident by itself or along with the other circumstances is not capable of leading to an inference of guilt of the accused.

¶464

Prosecution has examined PW 20 – Pervez Wadia, a Pall Berear, who was working at the Doongerwadi Tower of Silence. According to him, his nature of duties was to bring the dead body of a Parsi, who had died either in the hospital or at the home to the Tower of Silence at Doongerwadi. On bringing the dead body, Pervez used to bath the dead body

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after removing the clothes. He would then dress the dead body with new clothes and after the ceremony of prayer, the dead body is used to carry to a well in the Tower of Silence. According to him, since there are no vultures in the Tower of Silence, the solar rays falls on the dead body because of which the dead body decomposes. According to Pervez, on the night between 20^th and 21^st at about 1.30 a.m. a phone was received from Adi Cawasji, who called him to the office at Doongerwadi. He was given an address and told to bring the dead body of deceased Adi Cursetji. The address which was given was of Kakad Estate, Worli. According to him, he along with Noshi, Ratan, Dilshu and Yezdi went in a herse and reached the Kakad Estate at about 2.15 a.m. They went to the first floor of the Kakad Estate and noticed a lady Geeta Soni standing in the flat. Accused No.1 Geeta Soni took him to a room where an old lady and one person were present and pointed the dead body. The dead body was in a sitting position on a sofa. Accused No.1 – Geeta explained that there were no relatives and informed that Adi Cursetji was residing in the adjoining building. Pervez and others then wrapped the dead

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body in a bed-sheet. He noticed a reddish spot on the back of

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the neck. He had asked for a death certificate, which was given by accused – Geeta Soni.

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Pervez and others then took the dead body direclty to Doongerwadi and after removing the clothes, bathed the dead body and after offering prayers went back to his residence. He then deposes, “At that time the body was intact” (emphasis supplied).

¶473

Pervez further deposes that accused no. 5 – Behram Dordi was the Priest and was in Bungalow No.4. Pervez further deposes that he returned in the morning and took the dead body of Adi Cursetji from Bungalow No.4 at 9.30 a.m. and carried the dead body to a well and kept it on the platform of the well. He deposes that at that time, the dead body was naked. He further deposes, “At that time the dead body was complete” (emphasis supplied).

¶474

In cross-examination, he has admitted that when he bathed the dead body he had seen the dead body and there were no external injuries on the dead body. He has

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admitted that there was no injury on the dead body when he had kept the dead body on the Dokhma. He has admitted that Dokhma is under lock and key and no one can enter in the Dokhma. He has admitted as possible that when the dead body was kept in the Dokhma, there was no injury on the dead body, but injuries were noticed on the dead body when it was removed from the Dokhma. The injuries were possible due to burns or birds. He has further admitted as correct that the lady (accused no.1 – Geeta) had told him that there were no relatives of the deceased at present there. He corrected himself to state that the lady had said that there were no relatives.

¶478

In further cross-examination, an omission is elicited

¶479

that he had not disclosed in his previous statement about noticing a reddish spot on the back of the neck. He has admitted that non Parsis are not allowed to go inside and beyond Bungalow No.4 towards the Dokhma. He has admitted that the dead body is carried to Dokhma on a stretcher and a stretcher is made of metal strips.

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This witness has given two important admissions, one is that the dead body was intact when it was carried to Bungalow No.4 and was bathed and thereafter the dead body was intact when it was carried and placed in the Dokhma. An omission is elicited that he had not stated in his previous statement about noticing a reddish mark behind the neck of the dead body. Incidentally, it may be stated that accused no. 5 – Behram Dordi has been acquitted by the trial court.

¶483

Prosecution has examined PW 28 – Daruyus Bajan,

¶484

who was working as a cashier at the Tower of Silence, Doongerwadi. According to him his duties are to collect the consignment bills i.e. charges for keeping dead body in Dokhma, pay electricity charges and publish news about dead body in Mumbai Samachar and weekly newspaper Jam-AJamshedi. According to him, the news is published so that relatives of the dead person know about his death. According to Daruyus, on 21/5/2003 at about 8.15 a.m. he had received a telephone call from the main office of Doongerwadi i.e. from one of the Pall Bearers, who informed him about the death of Adi Cursetji. The Pall Bearer further informed that a non-Parsi

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lady and a non Parsi male person had come to pay the consignment bills and other charges. He accordingly instructed that a male person be sent for payment of consignment bills. The person, who came for payment, was Dr. Kabra. The total bill amount was Rs.1290/- and Dr. Kabra instructed PW 28 – Daruyus to prepare the bill in the name of accused no. 1 – Geeta. Daruyus, however, refused to prepare a bill in the name of non-Parsi. On the same day at about 9.30 a.m. accused no. 5 – Behram came to the office and informed him that none of the Parsi relatives of the deceased had come to collect the bills and, therefore, Daruyus should hand over the bills to him. According to Daruyus, he handed over the bills to him and accused no. 5 – Behram thereafter went away saying that he was not aware about the relatives of the deceased and would make enquiry about the relatives. According to Daruyus, as he was informed that neither Dr.Kabra nor Behram had any knowledge about the relatives of the deceased, he had not published news in the newspaper.

¶488

In cross-examination, an omission has been elicited

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that he had not stated in his previous statement that Dr.

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Kabra had disclosed that he had no knowledge about the relatives of the deceased.

¶493

Thus, the prosecution has led evidence and established that deceased Adi Cursetji, who was earlier owning a bungalow at Worli, had sold the said bungalow and from the sale proceeds had purchased a flat at the Dil Pazir Building. He was on extremely cordial terms with accused no.1 – Geeta Soni, who was herself a lover of animals and lover of watches. Initially, the relations between accused no.1 – Geeta and deceased Adi Cursetji were friendly, but thereafter Adi Cursetji developed affection for accused no.1 – Geeta and began to treat her as his daughter. In fact, deceased Adi Cursetji proclaimed that accused no.1 – Geeta was like his daughter and was treating her like his daughter. It appears that accused no.1 – Geeta was the frequent visitor to the house of deceased Adi Cursetji and was performing small chores for him. It further appears that she thus reciprocated the affection which was shown by deceased Adi Cursetji towards her. The relations were so cordial and were so affectionate that deceased Adi Cursetji permitted Geeta to

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operate his bank accounts as well as his lockers. Adi Cursetji had purchased a flat for Geeta in the Kakad Estate and had also purchased a flat for himself in Kakad Estate. Adi Cursetji also used to frequently visit Geeta Soni in her flat at Kakad Estate. Even accused no. 3 – Sharda, mother of accused no.1 – Geeta was a frequent visitor to the house of deceased Adi Cursetji. The relations, however, severed to some extent as accused no.1 – Geeta married accused no.2 – Irshad. Accused no.2 – Irshad had been employed as a driver to drive the cars of Adi Cursetji. It appears that Adi Cursetji had some reservations about accused no.2 – Irshad and, therefore, was not very happy at the prospect of accused no.1 – Geeta marrying accused no. 2 – Irshad. Probably accused no.1 – Geeta also realized her mistake and after her marriage was performed by PW 14 – Rahimat Shaikh, a Kazi, within three days she had asked PW 14 – Rahimat Shaikh to give her copy of the Nikahnama so that she could tear it in the presence of Adi Cursetji. It further appears that Adi Cursetji was not appeased and continued to dislike accused no.1 – Geeta's marriage with accused no.2. With the assistance of the Chartered Accountant and with the assistance of PW 3 –

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Prerna Shah, Adi Cursetji visited the banks and instructed the bankers not to permit accused no.1 to operate the lockers and the accounts.

¶500

The evidence of watchmen at the Dil Pazir Building

¶501

and at the Kakad Estate indicate that on the day of the incident accused no.3 – Sharda along with accused no. 2 – Irshad had gone to the Dil Pazir Building and had taken Adi Cursetji along with them to the Kakad Estate. Adi Cursetji was an aged person and was required to be assisted and this is deposed to by the watchmen. In fact, the watchmen did not find anything suspicious about Adi Cursetji being assisted by accused no. 3 – Sharda. The evidence does not satisfactorily indicate that Adi Cursetji was taken from the Dil Pazir Building

¶502

to the Kakad Estate against his will. If Adi Cursetji had been taken to the Kakad Esate against his will, there is no earthly reason as to why Adi Cursetji did not resist or cry out for help. There is no evidence on record to indicate that Adi Cursetji was unwilling to go along with them. We have already pointed out that the evidence of the maid servant i.e. PW 11 – Jaya Mohite is extremely suspicious. Her evidence that there was a

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quarrel between accused no. 3 -Sharda and Adi Cursetji and Adi Cursetji was taken against his will, does not appear to be correct. PW 11 – Jaya maintained a stoic silence and did not disclose the incident even when the police had arrived in the building and had interrogated her. In fact, there is evidence on record to indicate that her statement had been recorded on that day by the police, however, the said statement is not before the court. Be that as it may, we find that implicit reliance cannot be placed on the testimony of PW 11 – Jaya with regard to Adi Cursetji being taken against his will by accused no. 3 – Sharda as well as accused no.3 – Sharda placing a padlock on the door. There are consistent omissions in respect to the door being locked by a padlock. The evidence of PW 11 – Jaya further destroys the evidence of PW 6 – Hirji Nogarwala and PW 17 – Adi Vakil in respect of the watchman delivering a chit given by wife of Adi Cursetji. PW 11 – Jaya does not even vaguely refer to wife of deceased Adi Cursetji throwing a sealed envelop from the balcony of third floor for being delivered to PW 6 – Hirji.

¶506

The evidence of PW 9 – Pandav Jha as well as the

¶507

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JT-APEAL 346.06 & CONNECTED APPEALS..sxw evidence of PW 27 – Rajendra discloses that after Adi Cursetji was taken by Sharda Soni and accused no.2 – Irshad to the flat in Kakad Estate, accused no.1 – Geeta had rushed out from the gate of Kakad Estate after sometime and had returned, accompanied by accused no. 4 – Dr. Hegde. Dr. Hegde and Geeta Soni had come from the clinic of Dr. Hegde. The evidence further disclosed about the arrival of the ambulance van and the removal of the dead body of deceased Adi Cursetji.

¶509

It further appears that deceased Adi Cursetji had made it known that he wanted to disinherit accused no.1 – Geeta because of her marriage with accused no. 2 -Irshad. His displeasure at the marriage was apparent as he intended to execute new Will disinheriting accused no.1 – Geeta, who was a beneficiary under the earlier Will. The prosecution has alleged this as a motive for accused no.1 – Geeta Soni to have committed murder of deceased Adi Cursetji by hatching a conspiracy with the other accused. As pointed out by us above there is no evidence at all of conspiracy. At the most,

¶510

the prosecution has succeeded in establishing motive in the

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sense that deceased Adi Cursetji was displeased at the prospect of accused no. 1 – Geeta, whom he treated as his daughter, marrying accused no.2 – Irshad, who had been employed as a driver. On account of his displeasure, he had expressed his desire to disinherit accused no.1 – Geeta by executing a fresh Will. The most important question now, which we are required to address is, whether Adi Cursetji met a homicidal death and whether the prosecution has proved beyond doubt that deceased Adi Cursetji was murdered.

¶514

Accused No. 4 – Dr. Baburaj Hegde had issued the death certificate at Exh. 62. With regard to that, prosecution has examined PW 8 – Arati More, a Nurse, who was working at the J.C. Nursing Home, Worli. PW 8 – Arati More deposes that she was working as a Nurse at the J.C. Nursing Home, Worli from 3/6/2000 till 10/10/2004. The Nursing Home was owned by one Dr. Abhuyday Shah and about 10 or 13 Nurses were employed in the hospital, who were working in three shifts in the hospital. She further deposes that she knows accused no.7 – Dr. Pal (who had been acquitted by the trial court), who was working as the RMO in the J.C. Nursing Home in the night

¶515

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shift. She has also identified accused no. 4 – Dr. Hegde, who was a visiting Physician in the J.C. Nursing Home. According to her, on 20/5/2003, she was on duty from 8 p.m. till 8 a.m. of the next day. On that day i.e. on 20/5/2003 at about 10 O'Clock she was present in the reception room when one lady came in the reception room and enquired about the doctor. The lady did not disclose the name of the doctor and, therefore, Arati informed her that the doctor was busy attending a patient. On enquiry, she disclosed her name as Geeta Soni (accused no.1) and further disclosed that she was sent by Dr. Hegde to meet Dr. Pal. At about 10.45 p.m. when Dr. Pal was free, Arati disclosed to him that Geeta Soni had come. While Arati was talking with Dr. Pal, Geeta Soni came inside and thereafter Dr. Pal (Accused No.7) telephoned Dr. Hegde (Accused No.4). According to Arati More, Dr. Pal had given a missed call i.e. he had disconnected the telephone before it was received and thereafter Dr. Pal had received a telephone from Dr. Hegde. According to Arati More, she had received the call as she had lifted the receiver and had spoken to Dr. Hegde and on his instructions had handed over the receiver to Dr. Pal. She has admitted that she does not

¶518

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remember as to the conversation of Dr. Pal with Dr. Hegde. She further deposes that thereafter Dr. Pal asked her to bring a death certificate book which was subsequently filled by Dr. Pal. Dr. Pal also asked her to bring the stamp of Dr. Hegde and she gave the stamp of Dr. Hegde to Dr. Pal. Dr. Pal affixed the stamp of Dr. Hegde and signed the certificate. Dr. Pal instructed Arati More to obtain the signature of Geeta Soni on the carbon copy. The original certificate was given to Geeta Soni and since Dr. Pal declined to accept any fees, Geeta Soni went away. Death certificate is at Exh. 62. She was then asked as to when normally the death certificate is issued from the hospital and her answer was that death certificate was normally issued when the patient was admitted in the hospital. She has stated that Adi Cursetji had not been admitted nor had he died in the hospital.

¶521

In cross-examination, she has admitted that it was not necessary that Dr. Pal and Dr. Hegde were attending the J.C. Nursing Home only when she was on duty. She has admitted that they can attend the hospital at any time. She could not state if Dr. Pal and Dr. Hegde had examined Adi

¶522

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Cursetji in her absence in the J. C. Nursing Home. She has admitted that Dr. Pal and Dr. Hegde were also visiting other Nursing Homes, other than the J.C. Nursing Home. Arati More could not state if Adi Cursetji was their patient. She has then admitted in cross-examination that the police had not made any enquiry from her if Adi Cursetji had been admitted in the J.C. Nursing Home and whether he had been examined by Dr. Hegde or Dr. Pal.

¶525

Omission has been elicited that she had not stated

¶526

in her previous statement that initially accused no.1 – Geeta had not disclosed the name of the doctor nor had she stated in her previous statement that Dr. Pal had given a missed call. She had also not stated in her previous statement that she had lifted the receiver and on the instruction of Dr. Hegde had handed over the receiver to Dr. Pal. She had not disclosed in her previous statement that accused no.1 – Geeta had enquired about fees of Dr. Pal and Dr. Pal had declined to accept the fees.

¶527

She was shown the certificate from the death

¶528

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certificate book and was asked to state whether in the certificate it was stated that the deceased had died in the J.C. Nursing Home. She has admitted, on reading the certificate, that it was stated that the patient had died at house. She was also shown another certificate dated 30/3/2003 and was asked to state if the patient had died in the Nursing Home. She has admitted that in the certificate it was mentioned that the patient had died at home. She was also shown a certificate dated 10/4/2003 in which it was mentioned that the patient had expired at home. She has admitted that she could not state if there was any prohibition for issuing death certificates of patients who had not died at the J.C. Nursing Home. She has admitted that in Exh. 62, Dr. Pal had signed for Dr. Hegde. She was shown certificate no. 017955 in which Dr. Bhamare had signed for Dr. Hegde. She was also shown certificate no. 017957 in which Dr. Pal had signed for Dr. Raj Agarwal. In Exh. 62 it was stated that deceased Adi Cursetji, who was aged 73 years, had died due to cardio – respiratory failure with ischaemic heart disease with history of diabetes and hyper tension. Said certificate was signed by Dr. Pal for Dr.

¶531

Hegde.

¶532

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Accused No. 4 – Dr. Hegde in his 313 statement has

¶535

stated,

¶536

“Q. 22. Do you want to say anything more? A. On that day accd. no.1 visited to me and she was shouting that her uncle had chest pain and he has collapsed. Therefore, I went there alongwith her with my stethoscope, BP instrument and the emergency injections. I am attached to J.C. Hospital as a consultant therefore, on my instruction death certificate was issued by Dr. Pal since the deceased was my old patient and we can issue certificate if patient expired at home. On that day I had discussion on my cell phone with Dr. Pal. It was not a missed call but it was discussion. As I was busy in treating a very serious patient having chest pain I told Dr. Pal that I will call back to him after I finished that patient. Thereafter ten minutes when I called Dr. Pal he informed me that the lady by name Gita Soni is waiting for death certificate. I asked him to give phone to Gita Soni. She told me

¶537

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that as I know the old man has no children and any other relative, so I instructed Dr. Pal to give death certificate on my behalf. It is common practice to instruct the junior to give death certificate on behalf of consultant. Doctor's evidence is totally false and tutored. In post mortem report he has not mentioned the real cause of death. There is no co-relation between the findings in postmortem notes and the evidence which was given by him in the court. According to me it is the sudden cardiac

¶540

death of elderly patient of 73 years who had a uncontrolled diabetes of 435 miligrams blood sugar which I had seen one week before. The person has climbed up the first floor and collapsed.

¶541

I passed my MD in 1989. Till 1992 I was ICU In-charge in Hinduja Hospital. Around 6000 patients I have seen of ischaemic heart disease. I am attached to Kambala Hill and Breach Candey Hospital. I work from 10.30 a.m. to 2.30 p.m. and sees 70 patients a day. I have two staff one Assitt. Doctor Dr. Manish Patil and my receptionist. On

¶542

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20/5/2003 at about 9 O'clock I heard noise in my waiting room. When I came, I saw accd. no.1 shouting that uncle Curshetji has collapsed. I had seen Mr. Curshetji earlier as many times accd.no.1 and Curshetji visiting to me as I being a consultant. When I rushed to their residence I saw Mr. Curshetji

¶545

on Sofa. On examination I found him dead. On examination I found signs of no injury or any foul play. I told accused no.1 to come to my clinic with some relatives of deceased with accd.no.1. I asked police officers on my arrest to record the statements of my receptionist and Asstt. Doctor but they deliberately did not do so to falsely implicate me in this case.”

¶546

There is evidence on record to indicate that deceased Adi Cursetji was an aged person and was a heavy diabetic. The medical records obviously must be available at the residence of Adi Cursetji and the police had made no efforts at seizing the medical records or leading any evidence

¶547

to indicate that Adi Cursetji was not suffering from the

¶548

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ailments referred to by Dr. Hegde in his statement under Section 313. We may incidentally state that accused no. 7 Dr. Pal has been acquitted by the trial court.

¶551

The central question, therefore, remains, whether Adi Cursetji had died a homicidal death. In order to prove that Adi Cursetji had died a homicidal death, prosecution has examined PW 18 – Dr. Vinod Agrawal, who had performed the postmortem on the dead body of deceased Adi Cursetji. PW 18 – Dr. Vinod Agrawal deposes that he is M.D. In Forensic Medicine and was working as an associated professor from April 2000 in the J.J. Hospital and till date performed about 1000 autopsies. According to him, he commenced the postmortem on the dead body of Adi Cursetji on 24/5/2003 at about 1.40 p.m. On external examination he noticed that rigor mortis was absent and body was rigid. Absence of rigor mortis would indicate that the time of death was more than 24 hours from the time of postmortem examination. He noticed the signs of decomposition were advanced, meaning thereby that the time interval between death and examination must be approximately 3 to 4 days.

¶552

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On external examination, he noticed the following

¶555

injuries :

¶556

(i) Skin over front of neck, starting from lower border of mandible upto both angels, then straight downwards upto upper chest (amanubrium sterni) missing. Edges were sharp clear, pale, no reddish or reddish brown discoloration. Skin as well as subcutaneous tissue muscles (anterior) wind pipe food pipe missing. Cervical Vertebrae directly seen. Tagging of skin over inferior and right side.

¶557

(ii) Reddish brown band over back of neck lower left 4 x 1 cm. parchment like. On out section, epidermal dermal region reddish brown.

¶558

(iii) Reddish brown bands over back of neck upper right two parallel 4 x 1 cm. and 3 x 1 cm., hard to touch, on out section epidermal dermal region, reddish brown.

¶559

(iv) Reddish brown spot back of neck lower

¶560

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middle 2 x 1 cm. hard and rough, on out section epidermal dermal zone reddish brown in colour.

¶563

(v) Right ring finger and little finger over lateral aspect of terminal phalanx showing 1 x 1 cm. hard lesion, oval crateriform with raised sharp edges, colour pale, no blackening or sooting Reddish brownish.

¶564

He opined that injury no.1 was postmortem injury,while injury nos.2 to 5 were ante-mortem injuries. According to him external injury no.3 was possible by hard object coming into contact with that region with force. He has further expressed his opinion that it was likely if upper part of the neck was pressed against the upper part of the sofa and neck was pushed forcefully.

¶565

On internal examination, he noticed that the trachea was cut at level of upper sternal border, sharply edges sharp clean cut, no reddish brown discoloration, no clots or foreign body in trachea. Right (lateral third) of hyoid

¶566

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bone present, sharply cut pale, no reddish or reddish brown discoloration seen. Lungs were hard, grayish, no evidence of gross pathology or recent mechanical trauma perceived. Heart was pale, hard about 50 CC triable solid blood mass inside. Coronaries patent, albeit atheroscierotic narrowing of lumen by about 25% seen. No evidence of white fibrous tissue seen. Oesophagus was clean cut at level of upper sternal border, no reddish brown discoloration, no foreign body. Liver, pancreas, spleen, kidneys- they showed no evidence of gross pathology or mechanical trauma. Spinal cord absent. Vertical column showing evidence of natural disarticulation.

¶569

PW 18 – Dr. Vinod Agrawal collected the viscera and sent it for chemical analysis and Histo Pathology. He collected the tissues and sent them for Histo Pathology. He reserved his opinion till receiving the report of Chemical Analyzer and Histo Pathology. The postmortem report is at Exh. 90. On receiving the report of the C.A. as well as the report of the Histo Pathology examination, at Exhs. 91 and 92, he reached to the conclusions, (i) that the exact cause of death cannot be ascertained, (ii) that the mode of death is

¶570

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asphyxia and (iii) that the manner of death is unnatural.

¶573

He opined that the complete body was not available for postmortem examination as some of the parts of the body, which were present over the front of the neck, were missing. He opined that the examination of those parts was very essential in cases of violent asphyxial death and due to missing of the parts on the front of the neck, the exact cause of death could not be ascertained. He opined that those parts were not missing due to animal bites or maggots. He further came to the conclusion that the missing of the parts was deliberate and was done with the intention of causing disappearance of evidence of throttling or strangulation. He further came to the conclusion that since no injuries were found over the mouth or nostrils, it was difficult for him to give the exact cause of death, though the mode of death was asphyxia. According to him, it was a case of asphyxial death due to smothering. He further opined that the medical certificate of cause of death at Exh. 94, the carbon copy of which is at Exh. 62, was inconsistent with the findings found by him.

¶574

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In cross-examination, he has admitted that he had not inferred anywhere in the postmortem report regarding the mode of death when his opinion was reserved. He has also admitted that in the postmortem report at Column No. 18(a) there was no specific reference that the injuries were antemortem. He has admitted the presence of some maggots when he had examined the body. He has admitted that beaks of vulture and pariah kite bird are strong enough to tear human skin in a general way. He has admitted that he had seen Exh. 94/Exh. 62, a death certificate issued by accused no.4 – Dr. Hegde a day prior to his deposition in the court. He has admitted that no other medical record of the deceased was made available to him for his perusal. He has also admitted that previously he had not made any note that the deceased was not having hyper tension or diabetes.

¶577

In further cross-examination, he has admitted that asphyxia means deprivation of oxygen to all the tissues of the body. Petechial hemorrhage is one of the major manifestation of asphyxia. He has admitted that petechial

¶578

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hemorrhage over lung is called as Tardieu spots. Petechial hemorrhages are caused because of bursting of capillaries. He has admitted that he had not mentioned petechial hemorrhage in his postmortem report. He has admitted that no part of the lung was sent for Histo Pathological examination. He has admitted that in pathological examination report the word “petechial hemorrhage” is not used, but the word “echymotic patches” is mentioned. According to him, it is equivalent to petechial hemorrhages. He has then admitted that echymoses means bleeding and it

¶581

can be anywhere. He has also admitted as correct that if petechial hemorrhages are seen, it is necessary to be mentioned in postmortem report. He has agreed that in cases of mummification, a specific mention should be done only after histo pathological examination. He has admitted that the Histo Pathological report does not show the words infiltration or extravasation, but in the postmortem report the findings are mentioned about the same. He has denied the suggestion that the visual observation of echymotic patches was not supported by microscopic examination.

¶582

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¶584

He has admitted that he had not specifically

¶585

mentioned the age of the injuries in Column No. 17.

¶586

He has admitted as follows :

¶587

“I am aware of sudden cardiac death and coronary spasm. In case of coronary spasm, the coronary arteries suddenly go into spasm or contraction. But this happens only in those cases where already coronary arteries are already showing evidences of arterio sclerosis. Coronary spasm in cases of coronary arterio scierosis may cause sudden death. If death occurs immediately after myocardial infraction then no fibrous tissue would be seen in postmortem examination.

¶588

He has also given the admissions at paragraph 33, which are reproduced below :-

¶589

“Hypothetic sudden death would be caused because of metabolic derangement in the case of diabeties mellitus. Witness says but in this case no

¶590

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manifestations of diabeties mellitus or coronary arterio schlorasis which could lead to death were noticed. I do not agree that vitreous glucose determination is the only indicator for sudden death from diabetes metabolic deterangement. I partly agreed with the prepositions mentioned in Lions Medico Jurisprudence and toxicology. 11^th Edn. on page 818 that the Autopsy only vitreous glucose level is an accurate indicator of blood glucose at the time of death.”

¶593

Most importantly, he has given the following admissions at paragraph 36:

¶594

“36. In absence of any injury or evidences of poisoning etc. the assumption that the death is due to myocardial infraction in a patient who is 70 years old and is suffering from diabetes can be undertaken and reported to be climbing steps and collapsed.

¶595

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¶597

The evidence of the prosecution witnesses indicates that deceased Adi Cursetji was an elderly person over 70 years of age and was suffering from diabetes and was required to be given support while walking or climbing stairs.

¶598

In respect of his opinion, after probing crossexamination, this witness has admitted as follows:-

¶599

“....Witness volunteers that I am able to say that the manner of causation of asphyxia in this particular case is consistent with due to smothering. This is very tentative opinion.”

¶600

In further cross-examination, he has admitted that he did not remember if the suspected cause of death was informed to him prior to commencing the postmortem examination. He has admitted that after handing over the postmortem report, he had discussion with the Investigation Officer and had told him that he could not give opinion of the cause of death and that he shall have to wait for Histo Pathology report. He has admitted that after postmortem

¶601

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examination, he had discussion with Dr. Wase, head of the department of Forensic Department and Pathologist of JJ Hospital about his postmortem findings. He has admitted that

¶604

this discussion was immediately after the postmortem examination was over and prior to meeting the Investigating Officer. He has admitted that after discussion, it was ascertained that in the present case the exact cause of death cannot be ascertained and only the mode and manner can be commented upon. He has admitted as to whether the death was caused due to heart-attack or not, could be determined if

¶605

Histo Pathological examination of heart was done within a week after death. He has admitted that no specific request was made to him while conducting postmortem to rule out the death by ischaemic heart disease. He has admitted as true that the postmortem report does not refer to echymotic patches. He has admitted that except for cyanosis all the classical signs of asphyxia were present. He was confronted with the passage from the text book by Dr. Parekh in which it was stated, at page 184, 5^th Edition, that postmortem findings in death from asphyxia are characterized by (1) intense vinus congestion and cyanosis with pronounce lividity, (2) petechial

¶606

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hemorrhage and (3) cardiac dilation. The witness has answered that the passage cannot be read in isolation as the features may vary according to the mechanism of the form of asphyxia in each case. He has admitted that the presence of petechial hemorrhages are conclusive to diagnose asphyxia and they are very important. He was confronted with a passage from the text book by Lyons, 11^th Edition, page 974 that the Tardieu's spots may be possible in case of heart disease, paralysis, pneumonia and relapsing fever also along with deaths due to drowning, hanging and strangulation. He was asked whether petechial hemorrhages are often referred to as the Tardieu's spots. He was confronted with the passage from the text book by Dr. Parekh in which Tardieu's spots are referred as petechial hemorrhages. He was questioned whether petechial hemorrhages or Tardieu's spots were present in other causes of death and his answer was, only Tardieu's spots can be seen in other causes of death. We may incidentally point out at this stage that the pieces of lung had not been referred for Histo Pathological examination and

¶609

the examination of which would have revealed if there were

¶610

Tardieu's spots to indicate death other than asphyxial death.

¶611

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¶613

He has admitted that in the Toxicology Book by Dr. K.S. Narayan Reddy, 15^th Edition, there was reference in the book that petechial hemorrhages are known as Tardieu's spots.

¶614

He has agreed that in case the face was pressed by a pillow, the area around the nose and mouth may appear pale or white due to pressure with cyanosis of face. He has also admitted that these were absent in the present case as the postmortem was performed 3 to 4 days after the death. He has also agreed that in case of smothering the head and face will show intense congestion and cyanosis with numerous petechial hemorrhages in the skin and beneath conjuctiva. He further agreed that in case of smothering or suffociation, there would be blood stained frothy fluid present in air passages, mucus may be found at the back of mouth with slight acute emphysema and odema of lungs with scattered areas of atelectasis and congestions.

¶615

He has then admitted that the passage in the book by Dr. Modi, 23^rd Edition, page 595, “some times, it is not easy to state whether the death is due to suffocation, in as much as

¶616

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the signs of asphyxia may be altogether absent, or these signs may be present in death from epilepsy, tetanus, or strychnine poisoning. To come to a definite conclusion, it is, therefore, very essential to look for evidence of violence in the shape of external marks surrounding the mouth and nostrils or on inside the mucosal suface, or on the chest, or the presence of foreign bodies of Tardieu's spots that death occurred from suffocation, since they are found in deaths from apoplexy heart disease, and narcotic poisoning”.

¶619

He has then agreed to the question which is reproduced below:-

¶620

“Q. In a person about 75 years of age 25% blockage in lumen is more likely due to atherosclerosis of the artraries?

¶621

A. I agree with this. It is a physiological change.”

¶622

He has agreed that at the time of postmortem, no

¶623

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history of diabetes or heart ailment was suggested to him.

¶626

Exhibit 100 is a communication addressed by the

¶627

police to the medical officer containing several queries. The query at Sr. No.(f) is reproduced below:-

¶628

“Query No.(f) - What is the cause of death or the probable cause of death? Is it due to pressing of the pillow on the nose and the mouth of the deceased with the rear of neck resting on the metal frames sofa covered with cushion?”

¶629

Answer to this query, which is at Exh. 101, Item No. (f) is also reproduced below:-

¶630

“(f) The exact cause of death beyond any doubts cann't be conclusively arrived at, yet the possibility stated cann't be ruled out”.

¶631

Thus, it would appear that there are several areas which have not been probed by PW 18 – Dr. Agrawal while opining that deceased had died asphyxial death due to

¶632

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smothering. Pieces of lungs had not been referred for Histo Pathological examination which would have determined if there were Tardieu's spots. He has admitted that the pieces of the neck which are vitally important for determining asphyxial death were missing. A perusal of the evidence of PW 20 – Pervez, a Pall Bearer at the Doongerwadi clearly indicates that the body was intact when it was brought to Bungalow No.4 and was intact when it was carried from Bungalow No.4 to the Tower of Silence. Thus, the possibility of the piece of the neck being deliberately removed is not only remote but impossible. Moreover, PW 20 – Pervez had bathed the dead body and significantly had not noticed the injury behind the neck. The presence of the injury was extremely vital and curiously this witness had not referred to the injury when his statement was recorded. If the dead body was intact and there was no injury at the back of the neck, the finding arrived at by PW 18 – Dr. Agrawal falls to the ground. Apart from this reason, there are several infirmities to which we have adverted above, which makes it difficult to accept the findings of Dr. Agrawal. Even Dr. Agrawal in his evidence has admitted at paragraph

¶635

37 of his deposition, which has been reproduced above, that

¶636

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the manner of causation of asphyxia in this case was a tentative opinion. The reply of Dr. Agrawal at Exh. 101 also clearly indicates that he was not certain that deceased had been smothered and had died an asphyxial death beyond doubt.

¶639

The evidence of a medical officer has to be appreciated like that of any other ordinary witness. This is ultimately an opinion evidence based on certain factual data. If the insufficiency of the factual data is pointed out to the court, thus rendering the decision of the expert as doubtful, the court is not bound to accept the opinion of the expert merely because he is examined as an “expert”. Reference in his behalf may usefully be made to the judgment of the Supreme Court in Mayur Panabhai Shah vs. State of Gujarat [(1982) 2 SCC 396] . The Supreme Court in the said judgment, at paragraph 2 has held thus :-

¶640

“...... Even where a doctor has deposed in court, his evidence has got to be appreciated like the evidence of any other witness and there is no

¶641

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irrebuttable presumption that a doctor is always a witness of truth.......”

¶644

The Supreme Court in State of Haryana vs. Bhagirath and ors. [(1999) 5 SCC 96] at pagaraph 15 has held thus :-

¶645

“15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is consistent with probability the court has no liability to go by that opinion mere because it is said by the doctor. Of course, due weight must be given to opinions

¶646

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given by persons who are experts in the particular subject”.

¶649

Supreme Court in Shivappa and ors. vs. State of

¶650

Karnataka [(2008) 11 SCC 337] has held at paragraph 15 as follows :-

¶651

“15. Medical opinion is admissible in evidence like all other types of evidences. There is no hard-anfast rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct”.

¶652

Supreme Court in Gangabhavani vs. Rayapati

¶653

Venkat Reddy and ors. [(2013) 15 SCC 298] has held thus: -

¶654

“..... However, the opinion given by a medical

¶655

witness need not be the last word on the subject. Such an opinion is required to be tested by the

¶656

court. If the opinion is bereft of logic or objectivity,

¶657

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the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor....”

¶660

We, therefore, find that the evidence of PW 18 – Dr. Vinod Agrawal does not establish beyond reasonable doubt that deceased Adi Cursetji had been killed by smothering by a pillow. PW 18 – Dr. Agrawal was himself not sure about his opinion and, therefore, had used the expression that it was a tentative opinion. An accused cannot be convicted on the basis of tentative opinion. The opinion of the medical officer should establish beyond reasonable doubt that the deceased had died a homicidal death. If the prosecution has failed in establishing that the deceased had died a homicidal death,

¶661

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the certificate issued by accused no.4 – Dr. Hegde at Exh. 94/ Exh. 62 cannot be said to be a false or fabricated or a forged certificate. The evidence on record has not ruled out the possibility of deceased having died due to cardio respiratory arrest with ischaemic heart disease. The deceased was more than 70 years of age and was suffering from diabetes. He was a heavy diabetes as has been admitted by the prosecution witnesses. The deceased was required to be assisted either walking or climbing the stairs or getting out of the car. Further it does not appear that the accused had taken the deceased with an intention to commit his murder. It is ture that the deceased was annoyed and displeased at Original Accused No. 1 – Geeta Soni for marrying accused no.2 – Irshad. The deceased intended to make certain changes in his Will, thereby disinheriting accused no.1 – Geeta Soni. The evidence on record thus indicate that accused no. 3 – Sharda Soni had taken deceased from flat at Dil Pazir Building to the flat at Kakad Estate. However, the evidence on record does not establish conclusively that deceased Adi Cursetji had been taken by accused no. 3 – Sharda Soni against the will of the deceased. There is no evidence on record to indicate that the

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deceased had resisted the overtures of accused no.3 – Sharda in taking him to the Kakad Estate. The two watchmen also do not refer to any signs of any resistance being put-forth by the deceased when he was being taken. The evidence of PW 11 -Jaya Mohite, as pointed out by us, cannot be implicitly relied upon to indicate that any lock was put on the outer door to prohibit the entries in the flat at Dil Pazir Building. If the accused at all intended to commit murder of deceased Adi Cursetji, they would have lured him or taken him surreptitiously to a isolated place rather than the flat at Kakad Estate. The deceased had obviously been taken by the accused in order to either cox him or convince him not to change his earlier Will as probably accused no. 1 – Geeta was repentant of having married to accused no.2 – Irshad. In any event, the objective could not have been to commit murder of deceased Adi Cursetji. It is quite likely that due to the exertion, the tension and the excitement, the factors which trigger a heart-attack, proved to be fatal. The behaviour of accused no.1 – Geeta of immediately rushing out of the Kakad Estate and returning immediately with Dr. Hegde would certainly indicate the death of deceased Adi Cursetji due to

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heart-attack and not murder. If deceased had been killed by the accused, there was no ostensible reason for accused no.1 to hurrying out of the house and summon a medical aid. Mere establishing motive for the accused to commit the crime would not lead to an irresistible inference that it is the accused and the accused alone who have committed the crime. The other circumstances should be proved and established and should form a complete chain, thereby excluding the innocence of the accused and pointing to the irresistible conclusion that it is the accused and the accused alone who have committed the crime.

¶670

In the present case, as pointed out by us above, prosecution has utterly failed to prove that deceased Adi Cursetji died a homicidal death. The prosecution has also failed to prove that deceased Adi Cursetji had not died due to cardio respiratory arrest and that he was not suffering from diabetes or ischaemic heart disease. In the face of this evidence, therefore, in our opinion, the accused are entitled to be given the benefit of doubt.

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It further appears that accused no.1 – Geeta Soni is no more as she had died after the judgment was pronounced by the trial court. Consequently, the appeals have been filed by the other accused who have been convicted. The State had chosen not to file any appeal against the accused who have been acquitted. The appeals filed by the accused, therefore, deserve to be allowed.

¶674

Accordingly, Criminal Appeal No. 346 of 2006 is allowed and the conviction and sentence of the Appellants is hereby quashed and set aside and the Appellants are acquitted of the offence with which they were charged and convicted. Fine if paid by them be refunded to them. Since Original Accused No.2 – Irshad Yusuf Mulla is in Jail, he be released forthwith, if not required in any other case. Bail Bond of Original Accused No.6 Rakesh Jayram Walmiki stands cancelled.

¶675

Criminal Appeal No. 421 of 2006 is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which she was charged and convicted. Fine if paid by the

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Appellant be refunded to her. Bail Bond of Original Accused No.3 Sharda Natwarlal Soni stands cancelled.

¶679

Criminal Appeal No. 319 of 2006 is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine if paid by the Appellant be refunded to him. Bail Bond of Original Accused No.4 Dr. Baburaj Sanjeeva Hegde stands cancelled.

¶680

Criminal Appeal No. 752 of 2009 is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine if paid by the Appellant be refunded to him. Since he is in Jail, he be released forthwith, if not required in any other case. Fees payable to the learned Counsel appointed for the Appellant quantified at Rs.10,000/-.

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(DR.SHALINI PHANSALKAR-JOSHI, J.) (P.V. HARDAS, J.)

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Irshad Yusuf Mulla and Anr. v. the State of Maharashtra

Case brief

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Irshad Yusuf Mulla and Anr. v. the State of Maharashtra

Case brief

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What the court decided

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