JUDGMENT
Kakade, J.
1. The accused has preferred this appeal against the judgment and order dated 30.12.1998 passed by the learned Additional Sessions Judge, Thane in Sessions Case No. 9 of 1997 wherein he was convicted and sentenced under various counts i.e. for offence punishable under Section 449 of IPC and he was sentenced to suffer R.I. for seven years and to pay fine of Rs. 500/= in default to suffer R.I. for two months, for offence punishable under Section 302 of IPC he was sentenced to suffer life imprisonment and to pay fine of Rs. 1000/= in default to suffer R.I. for four months and for offence under Section 392 r/w 397 of IPC was sentenced to suffer R.I. for seven years and to pay fine of Rs. 500/= in default to suffer R.I. for two months. All the substantive sentences were directed to run concurrently.
2. The facts giving rise to the present case, in brief, are thus –
3. The deceased Isamuddin Mulani was having chicken shop in Vashi Mini Market Sector No. 9. Accused was related to deceased and he is cousin grand-son of the deceased in relation. Accused was doing business of selling eggs by sitting by the side of chicken shop of deceased Isamuddin. Chicken Shop of deceased was having timing from 8.30 a.m. to 10.00 p.m. Deceased Isamuddin had three servants at his chicken shop viz. Mushtak Babar Qureshi, Hamid and Bashir.
In the month of April 1996 accused had kept an amount of Rs. 25,000/= with the deceased Isamuddin. However, Isamuddin subsequently refused to return the said amount of accused despite his repeated demands. In the month of May 1996 family members of deceased had gone to his native place and hence Isamuddin was alone residing at his residential house at Vashi. During the night of 15.5.1996, it is the prosecution case, accused with an intention to commit murder of deceased and commit the robbery at his house remained in the house of deceased and on 16.5.1996 at about 4.00 a.m. accused committed murder of Isamuddin and looted an amount of Rs. 2900/= from the cupboard from the house after putting lock to the house from outside and by throwing the key on the terrace of residential house of Isamuddin.
On 16.5.1996 when servants of Isamuddin namely Mustak Qureshi, P.W.1, Hamid and Bashir as usual went to the shop at about 8.30 a.m. but shop was closed and therefore, they went to the house of Isamuddin and found that it was locked from outside. As the delay was being caused in opening the chicken shop one of the servant i.e. Mushtak Qureshi took a key maker and went to the residential house of Isamuddin and got opened lock from him. When Mushtak entered the house he found that his master was lying in the pool of blood on the floor and he had also noticed that incised wounds on the neck and other parts of the body of the deceased Isamuddin. Mushtak immediately approached the police station at Vashi at about 1.30 p.m. and lodged his complaint. P.I. Budwant recorded the complaint against some unknown person at that time and registered the offence under Section 302 of the IPC. P.I. also paid the visit to the place of incident and prepared inquest panchanama and dead body was sent for post mortem examination. The panchanama of place of incident was also prepared, wherein one knife lying in bucket containing water, one sickle stained with blood, one blood stained towel, handle of cupboard, lock etc. came to be seized as they were blood stained. Clothes of the deceased also came to be seized under panchanama and all the articles were sent to C.A. for examination, whose report was received and is part of the record. Search was made for the culprit but he was not found till 25.5.1996. Accused came to be arrested on 26.5.1996 and thereafter investigating officer made recovery of key of the lock of house of deceased in presence of panchas on disclosure statement of accused by preparing seizure panchanama. The Investigating Officer also made recovery of blood stained clothes of accused in presence of panchas on the disclosure statement made by the accused. On 27.5.1996 the recovery of looted amount of Rs. 2900/= was also made at the instance of the accused under panchanama. Statement of witnesses also came to be recorded and on completion of the investigation the chargesheet was sent to the court of law. The learned magistrate committed the case to the court of Sessions.
4. The learned Addl. Sessions Judge framed the charge against the accused to which he pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence at length, on which basis the learned trial court came to the conclusion that it was sufficient to bring home the guilt and accordingly passed an order of conviction and sentence in aforesaid manner.
Hence the appeal.
5. We heard Ms. Savita Suryavanshi the learned counsel for the appellant and Ms. Kejariwal, the learned APP for the State at length. We have also perused the entire evidence on record.
6. At the outset it may be noted that the entire prosecution case is rested on circumstantial evidence and those circumstances are viz. (i) recovery of the key of the lock of house of deceased Isamuddin was made on the disclosure statement of accused, (ii) recovery of stolen amount of deceased was made on the disclosure statement of accused, (iii) recovery of blood stained clothes of accused which was made on the disclosure statement of accused, (iv) detention of blood of the group of deceased on the seized clothes of accused and on the other seized article including weapon of the crime, and (v) Motive – accused committed robbery and took away the amount of Rs. 2900/= from the house of the accused for committing that robbery accused committed the murder of deceased Isamuddin.
7. In order to assess the entire evidence on record we must first peruse the evidence of P.W. 1 Mustak. From his evidence three material things are established, firstly it is established that accused was doing his business of selling eggs by sitting by the side of shop of the deceased and hence accused was knowing the deceased very well, infact they were relative of each other. Second aspect is established from his testimony is that at the relevant time and occurrence of the incident the deceased was residing in his house as his family members had gone to his native place, obviously to the knowledge of the accused. The third aspect is established to the effect that murder of Isamuddin had taken place between the night of 15.5.1996 and 16.5.1996 inside the residential of the deceased and murderer of deceased Isamuddin had gone out after putting lock on the door of the house from outside. It has also come in the evidence that since Isamuddin did not come to the chicken shop as usual in the next morning, P.W. 1 Mushtak, with intention to avoid further delay in opening the shop went to the house of the deceased and found it was locked from outside and therefore, he contacted key-maker and got opened the door and found dead body of deceased inside the house lying in pool of blood and subsequently contacted the police. Similarly the testimony of P.W.5 Abdul Karim shows that on the earlier day i.e. at about 10.00 p.m. on 15.5.1996 he had refunded an amount of Rs. 1000/= out of hand loan amount of Rs. 2000/= taken by him to the deceased and that amount was consisting a bundle of 100 currency notes of denomination of Rs. 10/= each with bank slip. Therefore, the evidence of Abdul Karim shows that deceased had received amount of Rs. 1000/= which was given by him with a bank slip.
On this background testimony of P.W.6 Sambhaji and P.W.8 Eknath Budwant, is required to be noted. They are the panch witnesses and disclosure statements of accused, Ex.23, is made in their presence. The recovery panchanama of key, Exh.22, is also made in their presence and the accused had led the police in presence of these two witnesses to the place where from the key was found. The perusal of their evidence vis-a-vis the testimony of the Investigating Officer shows that the entire evidence regarding recovery of key at the instance of the accused is reliable and trustworthy and therefore, the test of Section 27 of the Evidence Act and has to be accepted. Moreover, the key is also found to be fitting to the lock which was taken away from the door of the deceased and therefore, there is no any doubt that the key which was found at the instance of the accused was the key of the lock which was put from outside on the door of deceased, which was got opened by witness Mustak through a key-maker. Recovery panchanama of the key, Exh.22, also discloses that one of the seized key was of Godrej lock bearing number as 563847 and the recitals of panchanama discloses that seized lock from the place of incident was also of Godrej Company having similar number. This being the position is the evidence of seizure of key provides vital link between the accused and the crime.
8. Similarly the evidence of recovery of stolen money of deceased also found to be reliable. The testimony of witness Sanjeev Patil, P.W.3 and Eknath Budwant, P.W.8, shows that the recitals from the disclosure statement of accused Exh.10 and recovery panchanama of money relevant are found to be trustworthy. Recovery of the amount of Rs. 2900/= consisting of one bundle of 100 currency notes each of denomination of Rs. 10/= with slip of Vijaya Bank and 38 currency notes of denomination of Rs. 50/= from the flush tank from the common latrine situated near the vegetable market of Vashi were seized at the instance of the accused and perusal of this evidence, especially when the currency note bundles with Vijaya Bank Slip, leaves no doubt whatsoever that it was the amount taken away by the accused from the custody of the deceased after commission of murder. Also the testimony of Abdul Karim, P.W.5 has established that he had given the amount of Rs. 1000/= in consisting a bundle of 100 of denomination of Rs. 10/= with Vijaya Bank Slip on him to the deceased at about 10.00 p.m. on 15.5.1996, therefore there cannot be any doubt whatsoever that this evidence of recovery of the amount is one of the links connecting the accused with the crime.
9. Next circumstance is of blood stained clothes of the accused, those were recovered vide disclosure statement of the accused Exh.27 and recitals from recovery panchanama of the Clothes Exh.23 were corroborated by testimonies of P.W.8 Eknath Budwant and P.W.10 Dashrathsingh Bagga. These testimonies also shows that accused made disclosure as a result of which the blood stained clothes were recovered. The testimony of both the said witnesses are found to be reliable and therefore, the evidence in that regard is found to be trustworthy. Moreover, the C.A. Reports do show that the blood group of the deceased was “A” and blood stains detected on the clothes of the accused were of the same blood group. This piece of evidence is cogent because the blood of the accused is found to be of “O” group and therefore, it cannot be any doubt that the blood stains on the clothes of the accused and none else.
10. The entire evidence on record had also provided that evidence regarding the motive of accused is committing murder of the deceased. It has come in the evidence that accused had given an amount of Rs. 25000/= to the deceased, but deceased was denying to return the amount which was apparent reason for the accused to commit the impugned offence.
11. It is well established legal principle that in the cases resting upon circumstantial evidence, such evidence should satisfy three tests: (1) the circumstances from which an inference of guilt was sought to be drawn, should be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and (3) the circumstances, taken cumulatively, should form a chain so complete that there was no escape from the conclusion that within all human probability the crime was committed by the accused and none else. If these tests are applied to the facts involved in the present case, there is absolutely no doubt that the author of the crime is accused and none else.
12. For the reasons recorded above we conclude that the reasoning adopted and findings recorded by the learned trial judge are just, legal and proper and therefore would brook no interference.
In the result the appeal stands dismissed.