Dacoity and murder at a jewellery shop resulted in convictions under Sections 395, 396 and 449 IPC. The court dismissed all three appeals, upheld proof of guilt beyond reasonable doubt, and confirmed the convictions and concurrent life sentences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2005
Futarmal Kapurji Borana ] Aged about 22 years, ] R/of Room No.37, Bldg. No.12, ] Funaswadi, Parsi Agiary Lane, ] …. Appellant / Charni Road, Mumbai – 400 002. ] (Org. Accused No.4)
Versus
The State of Maharashtra ] Through L.T. Marg Police Station ] …. Respondent
ALONG WITH
CRIMINAL APPEAL NO.663 OF 2014
Laxman Baburamji Parihar ] Age – 34 years, ] R/of Jana, Post Balpara, PS Sumerpur, ] .… Appellant / Dist. Pali, Rajasthan. ] (Org. Accused No.2) Versus The State of Maharashtra ] Through L.T. Marg Police Station ] …. Respondent
AND
CRIMINAL APPEAL NO.664 OF 2014
Shankar @ Sanjay Mangilal Rawal ] Age – 23 years, ] R/at Thomas Chawl, R. No.4, ] Ban Dongri, Kurar Village, ] Malad (E), Mumbai – 400 097. ] And ] Dist. Shiroi, Viyyajawal, ] .… Appellant / Tehsil – Shivgankar, Post – Mandar. ] (Org. Accused No.3) Versus The State of Maharashtra ] Through L.T. Marg Police Station ] …. Respondent
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Mr. Aniket Vagal for the Appellants / Original Accused Nos.2, 3 and 4.
Mr. H.J. Dedia, A.P.P., for the Respondent / State.
CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. & DR. SHALINI PHANSALKAR-JOSHI, J.
RESERVED ON : 11TH DECEMBER 2015. PRONOUNCED ON : 17TH DECEMBER, 2015
JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
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imprisonment for life and to pay fine of Rs.500/- each, in default to suffer R.I. for four months, with a further direction that all the substantive sentences of imprisonments are to run concurrently.
PW-1 Chetan Shah has been doing the wholesale business of jewelery in the name of 'K.K. Jewellers' along with his father at Kalbadevi on the Second Floor, above Heera Misthan in Room No.5. On 11th October 2001, he attended the shop upto 7:45 pm, took the stock of gold ornaments, which were weighing about 2,300 gms., and kept those ornaments in the safe in drawers of the cupboard. He also counted the cash, which was of Rs.1,00,000/-. He kept it in another Godrej cupboard. Further, he kept the key of safe in the drawer and the key of the drawer in the cupboard of front cabin. As usual, he carried with him the key of the front cabin cupboard and the main door of the shop. The spare key of the main door of the shop used to be with the deceased Premaram, who was working in the said shop as skilled labour. On that day, Premaram remained in the shop, when PW-1 Chetan left the shop in the night at about 7:45 pm.
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by its self-lock. He opened the door with the key with him, entered inside the shop and found all the articles therein lying scattered. The wooden cupboard and the Godrej Almirah was damaged and opened. The safe and drawers were also opened and all the gold ornaments were found missing from the shop. As he noticed that deceased Premaram was also not there, he phoned Jeevankumar Jain, his sister's husband, and also informed the said fact to his paternal uncle Kantilal Jain. Both of them came there within 10 to 15 minutes.
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L.T. Marg Police Station in the Muddemal Property Room.
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were referred for medical examination.
Shankar. On his person also, 4 to 5 days old abrasions were found on his chest and hand. Hence, after the Arrest Panchnama (Exhibit-52), he was also referred for medical examination. On 17th October 2001, API Parab recorded the statement of PW-3 Venudas Vaishnava and seized stolen property produced by the said witness. On 19th October 2001, API Mallesh, who was assisting PW-25 ACP Nalawade, recorded the Memorandum Panchanama of Accused No.1 Chhagan, which led to the discovery of stolen property. It was identified by PW-1 Chetan Shah on 20th October 2001. On 22nd October 2001, at the instance of Accused No.3 Shankar, some more stolen property was discovered, which came to be seized in pursuance of Memorandum Panchanama (Exhibit-48) and Seizure Panchanama (Exhibit-48A).
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October 2001. During custodial interrogation, Accused No.5 Pradeep showed willingness to point out the place from where he has collected the clutch wire and also to point out the place where he had concealed stolen articles. Accordingly, the Memorandum Panchanama (Exhibit-42) was made and thereafter Accused No.5 guided the Police and Panch to the room where PW-10 Rajendra Vichare was present and at the instance of Accused No.5, he produced the key of the suite-case, in which various gold ornaments were kept. They were seized under Panchanama (Exhibit 42-A). On 7th November 2001, again at the instance of Accused No.4 Futarmal, some more stolen gold ornaments came to be seized from PW15 Hajarimal Gujar on 2nd November 2001 and on 13th November 2001, Test Identification Parades of Accused Nos.1 to 3 and Accused Nos.4 and 5 were held, respectively, by PW-16 Special Executive Officer Dushant Oza. The Postmortem Report (Exhibit-83) was received on 2nd January 2002. Hence, further to completion of investigation, PW-25 ACP Nalawade filed Charge-Sheet in the Court of Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, against the Accused.
false implication.
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on appreciation of their evidence, the Trial Court was pleased to hold the guilt of all the 5 Accused to be proved beyond reasonable doubt and convicted and sentenced them, as aforesaid.
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Trial Court with a fervent plea that prosecution has not only established the incriminating circumstances against Accused, but those circumstances are also of a clinching nature and no other inference, but that of the guilt of the Accused can be drawn from those circumstances. In our considered opinion, before adverting to the rival submissions advanced by them, it would be useful to refer to the evidence on record.
External Injuries :
One ligature mark seen encircling left wrist over flexor
aspect and lateral part of extensor aspect measuring 15 cm x 0.05 cm.
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One ligature mark seen on let forearm measuring 5
cm above wrist over flexor aspect and lateral part of extensor aspect, measuring 15 cm x 0.5 cm.
Two ligature marks seen (i) on left ankle and (ii) above lateral aspect of flexor part, both measuring 9 cm x 0.5 cm.
One ligature mark seen above right ankle lateral aspect admeasuring about 6 cm x 0.5 cm.
Ligature mark seen at the root of neck, below thyroid cartilage transverse encircling around the neck half cm in width, grooved in front and lateral aspect. Width is broader at back about one cm. Brownish colour. Haemorrhages seen around ligature marks, right lateral aspect and back. When neck is extended, ligature is 8 cm below chin and 4 cm below angle of mouth, when stretched to opposite side.
Internal Injuries :-
On dissection of neck anteriorly and posteriorly in
layers, haemorrhages seen in right submandibular
region – platysma.
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ligature mark.
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the gate of their building. They sat there for two – three minutes. Then they crossed the road and sat at the other side of the road in front of their building. After some time, again they came to the gate of their building. It was around 11 to 11:15 pm. At that time, he even talked with Accused No.4 Futarmal as to why he was not seen for many days. He has made enquiry with Accused No.4 Futarmal as to what he was doing and where he was working and Accused No.4 Futarmal told him that he was working as Commission Agent. At that time, he also saw those four persons, who were discussing among themselves, and then all the five of them entered inside the building, whereas, he himself went to his shop. On the next day, when he came to know about murder in the K.K. Jeweller's shop and Police made enquiries with him, he has narrated this entire incidence of seeing Accused No.4 Futarmal along with four other persons entering inside the building on that night. He also gave description and particulars of those four persons and Accused No.4. Thereafter, in the Test Identification Parade held by PW-16 SEO Dushant Oza on 2nd November 2001, he has identified Accused Nos.1, 2 and 3 and on 13th November 2001, he has identified Accused Nos.4 and 5. He has given evidence in detail about the Test Identification Parades.
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Dushant Oza. According to him, on 2nd November 2001, he held Test Identification Parade in two parts, as three Accused persons were to be identified. In the first round, two suspects, i.e. Accused No.1 Chhagan and Accused No.2 Laxman, were placed and in the second round, Accused No.3 Shankar was placed. PW-2 Ram Yadav had identified all the three Accused in two rounds of Test Identification Parade. Further Test Identification Parade was held by him on 13th November 2001, in which PW-2 Ram Yadav identified Accused Nos.4 and 5.
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the evidence of this witness clearly goes to prove that he had sufficient opportunity to observe these five persons. Out of them, he was knowing Accused No.4 Futarmal very well; since prior to the incident as Accused No.4 Futarmal used to work in the shop of PW-1 Chetan Shah. As regards remaining Accused, at the first occasion, at 9:45 pm, he might have seen the Accused from a distance of 11 to 20 feet, but, as his evidence discloses, on the second occasion, at 10:45 to 11 pm, on the very night, he saw them from a very close distance as he has made enquiries with Accused No.4 Futarmal as to where he was working and why he was not seen for so many days. As per his evidence, at that time, Accused No.1 Chhagan and other three Accused were very much present there, discussing among themselves. His evidence also reveals that there was sufficient street-light for him to know their features and to remember them. He has given the description, including complexion of the Accused, in his statement recorded by Police and he has also identified them properly in the Test Identification Parades held immediately on 2nd November 2001 and 13th November 2001 i.e. within a period of one month from the date of incident. Not only that, he has identified them properly in the evidence before the Court also.
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precautions while conducting them. According to learned counsel for the Accused, Panchas were brought by the Police, then the dummies used for the two rounds of Test Identification Parades, held on 2nd November 2001, were the same. Those dummies were also not of the same age group and hence the evidence relating to the Test Identification Parades cannot be held admissible. To substantiate his submission, learned counsel for the Accused has relied upon Mahesh Rohidas Kinalkar & Ors. Vs. State of
Goa, 2005 (2) Bom.C.R.(Cri.) 670 .
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The evidence of Magistrate gave the impression that Parade was organized not in the orderly but in chaotic manner and hence it was held that the identification of Accused in such Test Identification Parade cannot be relied upon.
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made himself acquainted with those guidelines from his senior colleagues. As per the guidelines, in one Test Identification Parade, he has put only two Accused and fourteen dummies. The entire procedure for conducting the Test Identification Parade was as per the procedure laid down in the Criminal Manual. It is recorded in the Memorandum Statement and his cross-examination does not reveal that any fatal lapses were committed by him in conduct of Test Identification Parades.
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is ample other evidence on record which goes to connect and implicate the Accused with the offence. The first piece of evidence in this respect, on which the prosecution is placing reliance, is that of the evidence of Finger Print Expert PW-17 Arun Shinde. According to his evidence, on 12th October 2001, he was called by L.T. Marg Police Station at the scene of crime to take the search of finger prints. There PW-21 PSI Shinde was present at the spot. He examined the various articles found at the scene of crime and with the help of finger print development powder, he found chance palm prints on the sunmica of the table drawer and two chance finger prints on the internal part of the door of the safe. He also got one chance finger print on the side of small steel cupboard, which was broken. On the receipt of the specimen finger prints of the Deceased, PW-1 Chetan Shah and that of the Accused persons, he compared those chance finger prints with the specimen finger prints and found that those chance finger prints were that of Accused No.1 Chhagan, Accused No.2 Laxman and Accused No.3 Shankar. He further found that the chance finger prints on the internal part of the door of the safe was found to be identical with the middle left finger print of Accused No.4 Futarmal. The chance palm print was also found to be identical with the left hand palm print of Accused No.4 Futarmal. His expert opinion, along with the photographs of the chance finger prints, specimen finger prints and palm
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prints, are produced on record at Exhibits 74 and 75. There is hardly any cross-examination of this witness. Thus, the presence of the finger and palm prints of the Accused at the scene of offence necessarily and unequivocally establishes their involvement in the crime, in the absence of any explanation offered by them about it.
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Laxman at the scene of crime. No explanation is offered by Accused No.2 Laxman about the same.
Dhawale goes to prove that, on 15th October 2001, i.e. within three days from the date of incident, Accused Nos.1 and 2 were arrested. At that time, personal search of Accused No.1 Chhagan was taken and two gold pendents were found. In the personal search of Accused No.2 Laxman also, two gold pendents and one wrist watch of Titan Make were found. All these articles were seized, including the blood stained shirt of Accused No.2 Laxman. The evidence of PW-1 Chetan Shah, the Complainant, proves that he has identified these four gold pendents (Article No.4), as belonging to him as there was mark of their shop on the said gold pendents. He has also identified the wrist watch of Titan Make (Article No.3). The said Seizure Panchanama is produced on record at Exhibit-40.
the instance of Accused No.1 Chhagan, like, 4 ear rings, 22 ear tops in pursuance of the Memorandum Panchanama of the disclosure statement
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given by him vide Exhibit-28. The evidence PW-12 Devraj Gaude and PW-25 ACP Nalawade further goes to prove that, during custodial interrogation, Accused No.3 Shankar gave a disclosing statement that he has sold the stolen gold ornaments (screws) to one person at Vitthalwadi, Kalbadevi and he would point out the said person. His statement was reduced to Memorandum Panchanama (Exhibit-48). Thereafter, Accused No.3 Shankar guided them to the stall of PW-11 Naresh Patil, who, at the instance of Accused No.3 Shankar, produced the metal screws used for ear-studs and ear-tops. They came to be seized under Panchanama (Exhibit 48-A).
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These screws were identified by PW-1 Chetan Shah in his evidence before the Court as belonging to his shop.
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wanted to go to Bhayander to collect the payment. He requested this witness to keep his suite-case at his telephone booth and he would collect it while returning from Bhayander after about one hour. According to this witness, he allowed Accused No.4 to keep his suite-case at his telephone booth. Accused No.4, however, did not return on that day. On the next day, Accused No.4 phoned this witness at about 8 am and confirmed that the suite-case was still with him and further asked him to keep it safely. Then, on 7th November 2001, when Police came to his telephone booth, along with Accused No.4, he produced the suite-case. At that time, he noticed that there were sachets of gold ornaments in pieces of shirt.
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Nos.1 and 2 on 15th October 2001 and at that time, he not only found that the shirt on the person of Accused No.2 was having blood stains, but on removal of clothes on their person, he noticed abrasion marks of 3 to 4 days old on the chest of Accused Nos.1 and 2. These injuries are also noted in the Arrest Panchanama (Exhibit-40). On the next day, i.e. on 16th October 2001, he has arrested Accused No.3 Shankar and on his chest and hand also, abrasion marks of 4 to 5 days old were found. They are noted in the Arrest Panchanama (Exhibit-52). All these three Accused were referred for their medical examination and as per evidence of PW-20 Dr. Kalyani Joshi, on 16th October 2001, she has examined Accused Nos.1 and 2 with the history of injuries and on their examination, she found abrasions on their chest. As regards Accused No.2 Laxman, she found one healing linear abrasion on left side of lower back, admeasuring 3 cm x 0.1 cm and another similar abrasion lower to above abrasion, admeasuring 0.1 cm x 0.1 cm. She also noticed one healing abrasion, admeasuring 0.2 cm x 0.2 cm, on left side of lower back, lower to above said two abrasions. She had issued his Injury Certificates and also the O.P.D. Papers vide Exhibit-96. In her opinion, these injuries were possible in case victim tries to resist blows of assailants.
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hand, admeasuring 5 cm and one healing abrasion over upper part of chest. According to her opinion, these injuries were also possible when the victim was resisting the assault on him and such injuries are selfdefence injuries by the victims. They can be caused by finger nails. Accused Nos.2 and 3 have not offered any explanation for the presence of these injuries on their person, which again necessarily leads to resistible inference of their involvement in the incident.
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that subsequent thereto, they were again sealed. To substantiate his submission, the learned counsel for the Accused has relied upon the two authorities that of Tulshiram Bhanudas Kambale & Ors. Vs. State of Maharashtra, 2000 CRI.L.J. 1566 , and Amarjit Singh alias Babbu Vs. State of Punjab, 1995 Supp. (3) SCC 217 .
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in the present case, as the dead body was found in the adjoining room and not in the room where dacoity took place and, therefore, the Accused cannot be held liable for the murder of Premaram. The learned counsel for the Accused has, in support of his submissions, relied upon Laliya & Ors. Vs. State of Rajasthan, AIR 1967 Rajasthan 134, and Raghunath Dey & etc. Vs. The State, 2003 CRI. L.J. 4592 . In the first case, after the dacoits looted the booty, the villagers chased them, then in the encounter, that took place at some distance, one person received the injuries and succumbed to those injuries. Hence, the argument was advanced that the transactions of dacoity and murder were different as both the incidents had happened at different places. However, this argument was rejected by
the High Court and it was held that, where the dacoits, by hot pursuit, immediately after commission of the loot, were overtaken at a short distance and there was an encounter between the dacoits and pursuers
and the dacoits had not abandoned the entire booty before the murder
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was committed, the transaction of encounter and murder were not separate and distinct from the dacoity and as such the “murder was committed while committing dacoity” .
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considering that the Accused were found to be in possession of the stolen property, immediately after the incident, within a short gap of time of 2 to 3 days. No explanation being offered by the Accused for the possession of such a huge quantity of gold ornaments, the presumption under Section 114(a) of the Evidence Act needs to be invoked for proving the offence under Section 396 of IPC.
to prosecution case, were different one. Accused Nos.5 and 6 were guarding at the gate of the building and Accused No.7 passed on the information to Accused No.5, who executed the plan. Accused No.7 was
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not present on the spot. Hence, it was held that there was no meaning in putting all 66 questions to each of the Accused. As against it, in the present case, the role of all the Accused persons is identical. At-least, no material is brought on record to show that they had played any different role.
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bringing to the notice of this Court that any incriminating material was not put up to them and it has resulted into causing prejudice to them in their defence and thereby resulted in failure of justice. In such situation, the above said authority is also not applicable to the facts of the present case.
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Accused beyond reasonable doubt. The Appeals, therefore, hold no merit, hence, stand dismissed, confirming the conviction and sentence of the
Accused, as recorded by the Trial Court.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [ACTING CHIEF JUSTICE]
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CERTIFICATE
Certified to be true and correct copy of the original signed judgment.
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3 issues framed by the court
Did the circumstantial evidence establish the appellants' involvement in the dacoity and murder beyond reasonable doubt?
Did the murder and dacoity form one transaction under Section 396 IPC despite the body being found in an adjoining room?
Did identical questions under Section 313 Cr.P.C. prejudice the accused and vitiate their convictions?
Colour shows how this judgement treated each authority
Mahesh Rohidas Kinalkar & Ors. Vs. State of GoaDistinguished¶104
Mahesh Rohidas Kinalkar & Ors. Vs. State of Goa, 2005 (2) Bom.C.R.(Cri.) 670 · Who else cites this
State of Maharashtra Vs. SureshRelied on¶112
State of Maharashtra Vs. Suresh, 2000 SCC (Cri.) 263 · Who else cites this
Tulshiram Bhanudas Kambale & Ors. Vs. State of MaharashtraDistinguished¶157
Tulshiram Bhanudas Kambale & Ors. Vs. State of Maharashtra, 2000 CRI.L.J. 1566 · Who else cites this
Amarjit Singh alias Babbu Vs. State of PunjabDistinguished¶157
Amarjit Singh alias Babbu Vs. State of Punjab, 1995 Supp. (3) SCC 217 · Who else cites this
Ahmad alias Ahmad Chakri & Ors. Vs. The State of MaharashtraDistinguished¶158
Ahmad alias Ahmad Chakri & Ors. Vs. The State of Maharashtra, 1994 CRI.L.J. 274 · Who else cites this
Laliya & Ors. Vs. State of RajasthanApplied¶168
Laliya & Ors. Vs. State of Rajasthan, AIR 1967 Rajasthan 134, · Who else cites this
Raghunath Dey & etc. Vs. The StateReferred¶162
Raghunath Dey & etc. Vs. The State, 2003 CRI. L.J. 4592 · Who else cites this
Swapnali @ Sapana Sharad Mahadik Vs. The State of MaharashtraDistinguished¶173
Swapnali @ Sapana Sharad Mahadik Vs. The State of Maharashtra
Shivaji Vs. State of MaharashtraRelied on¶178
Shivaji Vs. State of Maharashtra, 1973 SCC (Cri.) 1033 · Who else cites this
5 provisions across 3 enactments
Futarmal Kapurji Borana
Laxman Baburamji Parihar
Shankar @ Sanjay Mangilal Rawal
The State of Maharashtra
V.K. Tahilramani
Shalini Phansalkar-Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
