{"id":27812,"date":"2011-09-06T00:00:00","date_gmt":"2011-09-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raju-balaram-gujrathi-vs-state-of-maharashtra-on-6-september-2011"},"modified":"2018-01-20T18:35:45","modified_gmt":"2018-01-20T13:05:45","slug":"raju-balaram-gujrathi-vs-state-of-maharashtra-on-6-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raju-balaram-gujrathi-vs-state-of-maharashtra-on-6-september-2011","title":{"rendered":"Raju Balaram Gujrathi vs State Of Maharashtra on 6 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Raju Balaram Gujrathi vs State Of Maharashtra on 6 September, 2011<\/div>\n
Bench: D.D. Sinha, A. R. Joshi<\/div>\n
PPD\n\n                                          1\n                                                                  APEAL.746-04\n\n\n\n\n                                                                                \n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                     CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                        \n                       CRIMINAL APPEAL NO.746 OF 2004\n\n\n\n\n                                                       \n      Raju Balaram Gujrathi,                        ]\n      Aged about 42 years                           ]\n      Hindu, residing at 29-E,                      ]\n\n\n\n\n                                           \n      Singhania Bldg. Ground                        ]\n      floor, Balaram Street, ig                     ]\n      Mumbai 400 007.                               ]\n      [The appellant is undergoing                  ]\n      sentence imposed upon him                     ]\n                           \n      at Nasik Jail.)                               ] ..APPELLANT\n                                                    [Orig.Accused]\n                 Versus\n      State of Maharashtra                          ]\n          \n\n\n      (at the instance of D.B. Marg                 ]\n      Police Station).                              ] ..RESPONDENT.\n       \n\n\n\n                                       ..........\n      Ms.Pooja Bhojne, Advocate for the Appellant.\n \n\n\n\n\n      Mrs.U.V. Kejariwal,  A.P.P.  for the State. \n                                          ..........\n\n\n\n\n\n                              CORAM :    D. D. SINHA AND\n                                           A .R. JOSHI, JJ.\n<\/pre>\n
                               DATE OF RESERVING THE
\n                               ORDER   :    24TH  JUNE, 2011.<\/p>\n
\n\n                               DATE OF PRONOUNCING THE \n                               ORDER   :     06th SEPTEMBER, 2011\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 17:42:05 :::<\/span>\n                                                 2<\/span>\n                                                                         APEAL.746-04\n\n\n\n\n    ORAL JUDGMENT (PER A.R.JOSHI,J.) :\n\n\n\n\n                                                                                       \n                                                               \n<\/pre>\n
    1.       Present Criminal Appeal is preferred by the appellant\/accused <\/p>\n
    challenging   the   order   dated   2nd  &   5th  April,   2004   passed   by   the <\/p>\n
    Additional Sessions Judge of City Civil & Sessions Court in Sessions <\/p>\n
    Case No.308 of 2003. By the impugned judgment and order, present <\/p>\n
    appellant\/accused  was   convicted  for  the  offences  punishable   under <\/p>\n
    Sections   449,   392,   394,   397   &   302   of   Indian   Penal   Code.   For   the <\/p>\n
    offence  punishable  under  Section  449  of  IPC,  he was sentenced to <\/p>\n
    suffer  R.I.   for  10  years  and  fine  of  Rs.1000\/-,  in  default,   to  suffer <\/p>\n
    further R.I. for 1 year. For the offence punishable under Section 392 <\/p>\n
    r\/w. S.397 IPC he was sentenced to suffer R.I. for 7 years and to pay <\/p>\n
    fine   Rs.1000,   in   default,   to   suffer   further   R.I.   for   1   year.   For   the <\/p>\n
    offence punishable under Section 394 IPC, he was sentenced to suffer <\/p>\n
    R.I. for 7 years and to pay fine of Rs.1000, in default, further R.I. for <\/p>\n
    1   year.   For   the   offence   punishable   under   Section   302   IPC,   he   was <\/p>\n
    sentenced to suffer imprisonment for life and to pay fine of Rs.1000\/-.\n<\/p>\n
    The substantive sentences were directed to run concurrently. Set-off <\/p>\n
    was given to the appellant\/accused for the period he is in custody i.e. <\/p>\n
    since the date of his arrest on 20.2.2003.\n<\/p>\n
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                                                                      APEAL.746-04<\/p>\n
     2.      In   order   to   appreciate   the   rival   arguments,   the   case   of   the <\/p>\n
     prosecution, in nutshell, is narrated as under :-\n<\/p>\n
                On   26.1.2003   at   about   8:00   a.m.in   Singhania   Building,   B <\/p>\n
    Block, Grant Road (E), Mumbai -7, the deceased Smt.Manjula Shah <\/p>\n
    was found dead in her flat and was in pool of blood. The incident took <\/p>\n
    place between 7:30 a.m. to 8:00 a.m.   on that morning and it was a <\/p>\n
    case of house-trespass by the assailant and robbery of valuables like <\/p>\n
    gold   jewelery.   During   the   said   incident,   there   was   assault   on   the <\/p>\n
    woman and in which she died.\n<\/p>\n
     3.      On the fateful morning at about 8:15 a.m., the maid servant <\/p>\n
     (PW-10) who used to work in the flat of the deceased woman, found <\/p>\n
     that Smt.Manjulaben  was lying in the flat in pool of blood and thus <\/p>\n
     sensing seriousness of the situation, she rushed to the house of one <\/p>\n
     Ramesh Shah – brother of the deceased. At the house of Ramesh Shah <\/p>\n
     she found Mehul Shah – son of Ramesh Shah. She informed him that <\/p>\n
     Manjulaben  was lying in a pool of blood in her flat. The said Mehul <\/p>\n
     Shah (PW-1) informed his other relatives and went to the flat of his <\/p>\n
     aunt Manjulaben. After noticing the situation and seeing Manjulaben <\/p>\n
     in   a   pool   of   blood   and   finding   that   the   cupboard   was   open   and <\/p>\n
     various   articles   were   ransacked,   he   went   to   the   D.B.   Marg   police <\/p>\n
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    station and informed the Officer on duty. His statement was recorded <\/p>\n
    by   the   police   and   it   was   treated   as   the   First   Information   Report <\/p>\n
    (Exh.6). Offence was registered against the unknown assailants for <\/p>\n
    various   offences   of   house-trespass,   robbery   etc.   and   also   for   the <\/p>\n
    offence of murder during commission of such robbery.\n<\/p>\n
    4.      PW-8 PI Shri Shyam Laxman Dhanavade was on duty at D.B.\n<\/p>\n
    Marg   Police   Station   on   that   morning.   He   accompanied   the <\/p>\n
    complainant   (PW-1)   along   with   other   police   staff   to   the   place   of <\/p>\n
    offence.   He   called   the   local   medical   officer   and   ascertained   that <\/p>\n
    Manjulaben  was dead. He recorded the FIR as per the information of <\/p>\n
    complainant Mehul Shah (PW-1). Inquest-cum-spot panchnama was <\/p>\n
    conducted   on   the   spot.   Photographs   of   the   situation   were   taken <\/p>\n
    showing that various articles were lying scattered and the cupboard <\/p>\n
    was open. Photographs of the dead body were also taken. During the <\/p>\n
    investigation,   blood   stained   clothes   of   the   deceased   were   taken <\/p>\n
    charge of. Also during investigation locks of hairs which were found <\/p>\n
    in   both   the   fists   of   deceased   Manjulaben     were   taken   charge   of.\n<\/p>\n
    Various other articles were also taken charge of. Other samples were <\/p>\n
    collected. Dead body was sent for postmortem and postmortem report <\/p>\n
    was subsequently obtained, which is Exhibit-14.\n<\/p>\n
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                                                                     APEAL.746-04<\/p>\n
    5.      During the investigation, fingerprint expert Shri Hemchandra <\/p>\n
    Bane (PW-7) was called. He took various chance prints and started his <\/p>\n
    work. Admittedly, till about 20th February, 2003 there was no trace of <\/p>\n
    the   assailants   though   probably   the   investigation   was   going   on.\n<\/p>\n
    According   to   the   prosecution   only   on   19.2.2003   there   was <\/p>\n
    breakthrough  in the said case. This was by way of revelation made by <\/p>\n
    the   present   appellant\/accused   by   way   of   his   alleged   extra-judicial <\/p>\n
    confession   before   one   Ramesh  Shah  (PW-3)  (brother  of  deceased).\n<\/p>\n
    According   to   PW-3,   the   present   appellant\/accused   who   was <\/p>\n
    admittedly   working   as   servant   with   deceased   Manjulaben,   made <\/p>\n
    extra-judicial confession mentioning that he had done away with the <\/p>\n
    deceased   for   the   purpose   of   getting   money.   Allegedly,     the <\/p>\n
    appellant\/accused confessed and gave all the detailed narration as to <\/p>\n
    how the event happened on the fateful morning and how he assaulted <\/p>\n
    and killed Manjulaben. Though, allegedly such revelation was made <\/p>\n
    by the present   appellant\/accused on 19.2.2003 before PW-3, PW-3 <\/p>\n
    went   to   D.B.   Marg   police   station   on   the   very   next   date   i.e.   on <\/p>\n
    20.2.2003,   but   statement   of   said   PW-3   was   recorded   only   on <\/p>\n
    24.2.2003 and not earlier.\n<\/p>\n
    6.      It   is   also   case   of  the   prosecution  that   on   20.2.2003   present <\/p>\n
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\n                                                                      APEAL.746-04<\/p>\n
    appellant\/accused was put under arrest on the premise that he had <\/p>\n
    made   extra-judicial   confession   before   PW-3   on   earlier   date   i.e.   on <\/p>\n
    19.2.2003. In spite of such arrest on 20.2.2003, there was no further <\/p>\n
    progress in the investigation, moreover, there was no search of the <\/p>\n
    residence   of   the   appellant   who   was   residing   in   the   vicinity   of <\/p>\n
    residence   of   the   deceased  in   fact   at   the   back  of  the   said   building, <\/p>\n
    under the staircase.\n<\/p>\n
    7.<\/p>\n
             According to prosecution, on 24.2.2003 the appellant\/accused <\/p>\n
    made a voluntary statement to produce the weapon of assault and <\/p>\n
    stolen   articles.   Accordingly,   memorandum   panchnama   was   drawn <\/p>\n
    calling  the panch  witnesses including  PW-6  Adi  Modi.  Allegedly,  in <\/p>\n
    furtherance   of   the   said   memorandum   panchnama   (Exh.18),   the <\/p>\n
    appellant\/accused led police party   and panchas to his house in the <\/p>\n
    same Singhania building where the deceased was residing. From his <\/p>\n
    house, he produced the knife, his shirt and his pant. Those articles <\/p>\n
    were taken charge of by the police. Thereafter the appellant\/accused <\/p>\n
    took the police party and panchas to the pump-house near his room.\n<\/p>\n
    He opened the door of pump-house by obtaining key from his brother <\/p>\n
    and after unscrewing the switch-board of electric supply, took out one <\/p>\n
    carry-bag   and   produced   the   jewelery   items   –   apparently   six   items <\/p>\n
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    made of gold and eight items of Bentex Brand and one small glass <\/p>\n
    made   of   Silver   metal.   Goldsmith   was   called   and   the   articles   were <\/p>\n
    valued. The value was taken as Rs.45,000\/-. Said articles were taken <\/p>\n
    charge of under the panchnama (Exh.18-A).\n<\/p>\n
    8.       It is also case of the prosecution that the accused showed one <\/p>\n
    shop   from   where   he   had   purchased   some   articles   by   paying <\/p>\n
    Rs.2419\/-.   Accused  also   took   the   police   party   and  panchas   to  two <\/p>\n
    persons   mentioning   that   he   had   taken   loan   amount   from   the   said <\/p>\n
    persons   and   had   repaid   the   said   loan.   According   to   prosecution, <\/p>\n
    detailed   panchnama   was   drawn   and   respective   amounts   were <\/p>\n
    recovered from the shopkeeper  and two other persons. Allegedly, an <\/p>\n
    amount of Rs.2419\/- was recovered from the shopkeeper and amount <\/p>\n
    of   Rs.14,000\/-   &   Rs.10,000\/-   was   recovered   from   the   said   two <\/p>\n
    persons under the panchnama. According to the prosecution, the said <\/p>\n
    amount was from the cash amount robbed by the accused from the <\/p>\n
    house of the deceased.\n<\/p>\n
    9.      During the investigation, statements of various witnesses were <\/p>\n
    recorded   including   statement   of   maid-servant   (PW-10),   her   minor <\/p>\n
    daughter   (PW-9),   a   milkman   (PW-11)   and   on   completion   of <\/p>\n
    investigation chargesheet  was filed and the matter was committed to <\/p>\n
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\n                                                                       APEAL.746-04<\/p>\n
    the   Court   of   Sessions.   Finding   the   circumstantial   evidence   alleged <\/p>\n
    against the accused, sufficient to bring home the guilt for the offences <\/p>\n
    charged, the accused was convicted by the Sessions Court and it is the <\/p>\n
    order which is challenged in the present Appeal. Admittedly, since the <\/p>\n
    date of arrest i.e. since 20.2.2003 till date the appellant\/accused is in <\/p>\n
    custody.\n<\/p>\n
    10.          Prior   to   discussing   the   rival   arguments,   certain   admitted <\/p>\n
    position is mentioned as under :-\n<\/p>\n
          [i]      The   entire   case   of   the   prosecution   is   based   on <\/p>\n
                   circumstantial evidence. The circumstances being accused
\n                   producing the weapon of offence, his blood stained clothes <\/p>\n
                   and the stolen jewelery and cash amount.\n<\/p><\/blockquote>\n
          [ii]     There   was   alleged   extra-judicial   confession   given   by   the
\n                   appellant\/accused   to   PW-3   Ramesh   Shah,   made   on
\n                   19.2.2003   and   till   that   time   there   was   no   clue   for   the <\/p>\n
                   investigating agency regarding the assailants. In fact, there
\n                   was   no   suspicion   raised   about   the   appellant\/accused   by
\n                   anybody.\n<\/p><\/blockquote>\n
          [iii] The   appellant\/accused   was   at   times   used   to   work   as   a
\n                   servant   in   the   house   of   the   deceased,   though,   was   no
\n                   permanent servant. Admittedly, he was frequently visiting
\n                   the house of the deceased for some sundry work and was
\n                   well   acquainted   with   the   relatives   of   deceased   including <\/p>\n
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\n                                                                   APEAL.746-04<\/p>\n
                PWs-1, 2 & 3.\n<\/p><\/blockquote>\n
          [iv] Admittedly,   death   of   the   deceased   Manjulaben     was <\/p>\n
                homicidal and due to the injury sustained mainly on her <\/p>\n
                neck   and   other   parts   of   the   body   due   to   sharp   edged
\n                weapon.\n<\/p><\/blockquote>\n
    11.      Bearing in mind the above admitted position and considering <\/p>\n
    the case of the prosecution mainly based on the alleged extra-judicial <\/p>\n
    confession and circumstance as to recovery of weapon of assault and <\/p>\n
    stolen articles at the instance of appellant\/accused, much is argued <\/p>\n
    on behalf of the appellant by learned Advocate Ms.Pooja Bhojne on <\/p>\n
    these   aspects.   The   substantive   evidence   of   PW-3,   PW-6   recovery <\/p>\n
    panch,   and  PW-7  a  Fingerprint  Expert,   is  required to  be   construed <\/p>\n
    with care and caution. The substantive evidence of other witnesses is <\/p>\n
    not of much significance in the present case considering the admitted <\/p>\n
    position   mentioned   above.     Said   other   witnesses   are   PW-1 <\/p>\n
    complainant Mehul Shah, PW-2 another relative of the deceased Shri <\/p>\n
    Hasmukh Jain and PW-4 Dr.Agrawal, who performed the postmortem.\n<\/p>\n
    At this stage, it must be mentioned that the homicidal death of the <\/p>\n
    deceased   is   not   in   question,   considering   the   evidence   of   PW-4 <\/p>\n
    Dr.Agrawal, who found injuries on the dead body, which were ante-\n<\/p>\n
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                                                                   APEAL.746-04<\/p>\n
    mortem.\n<\/p>\n
    12.       Other witnesses are PW-6 panch witness for scene of offence <\/p>\n
    and inquest panchnama, PW-8 Investigating Officer, PW-9 minor girl <\/p>\n
    Miss.Pratiksha Hate, PW-10 maid servant of Manjulaben, mother of <\/p>\n
    PW-9 and PW-11 a milk vendor. According to PW-9 Pratiksha Hate she <\/p>\n
    stayed at the house of the deceased on the earlier night and left the <\/p>\n
    house   at   7:30   a.m..   According     to   PW-10   maid   servant,   when   she <\/p>\n
    reached the house of the deceased in the morning at about 8:15 a.m. <\/p>\n
    she saw the dead body of victim Manjulaben lying in a pool of blood.\n<\/p>\n
    According to PW-11 milkman he was at the flat of the deceased at <\/p>\n
    about 8:00 a.m. and had knocked the door of the flat but nobody <\/p>\n
    opened it.\n<\/p>\n
    13.       As mentioned above, the case is based only on circumstantial <\/p>\n
    evidence and said circumstances are as under :-\n<\/p>\n
                 (i)    alleged extra-judicial confession  of the accused
\n                        made before PW-1;\n<\/p><\/blockquote>\n
                 (ii)   recovery   of   weapon   of   assault,   blood   stained
\n                        clothes, stolen articles and cash amount at the
\n                        instance of the accused;\n<\/p><\/blockquote>\n
                 (iii) finding of  chance  print  of the  accused  on  the
\n                        cupboard in the flat of the deceased.\n<\/p><\/blockquote>\n
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                                                                   APEAL.746-04<\/p>\n<\/blockquote>\n
    14.       At   this   juncture,   from   the   substantive   evidence   of   the <\/p>\n
    Investigating Officer (PW-8) it is an admitted position that there is <\/p>\n
    nothing brought on record as to what was the investigation from the <\/p>\n
    date of offence till arrest of the appellant\/accused. It is also admitted <\/p>\n
    position that though allegedly the hair samples found in the fists of <\/p>\n
    the deceased and hair samples of deceased and accused were sent for <\/p>\n
    C.A.,   there   was   no  report   forthcoming.   Moreover,   though   allegedly <\/p>\n
    said   samples   were   sent   for   DNA   test   and   also   an   amount   of <\/p>\n
    Rs.10000\/-   was   paid   for   such   analysis,   said   DNA   report   is   not <\/p>\n
    produced during the trial and there is nothing on record as to what <\/p>\n
    had happened to such DNA test. It is also an admitted position that <\/p>\n
    though allegedly the fingerprints of the appellant\/accused were taken <\/p>\n
    for   sending   to   the   Fingerprint   Expert   for   comparison   with   chance <\/p>\n
    prints, no panchnama was drawn. It is also an admitted position that <\/p>\n
    the jeweler, who was allegedly called for valuation of the ornaments <\/p>\n
    allegedly recovered at the instance of the appellant\/accused, is not <\/p>\n
    examined   nor   his   statement   was   recorded.   It   is   also   an   admitted <\/p>\n
    position   that   two   persons   who   allegedly   gave   loan   to   the <\/p>\n
    appellant\/accused and from whom respective amounts of Rs.14000\/-\n<\/p>\n
    &   Rs.10000\/-   were   recovered,   were   not   examined;   so   also   their <\/p>\n
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    statements were not recorded.  This factual position is emerging from <\/p>\n
    the substantive evidence of Investigating Officer (PW-8). It is to be <\/p>\n
    ascertained whether the case of the prosecution as to alleged extra-\n<\/p>\n
    judicial   confession   and   recovery   of   the   weapon   of   assault   and <\/p>\n
    jewelery and cash, has been established by prosecution.\n<\/p>\n
    15.      During the arguments, learned Advocate Ms.Pooja Bhojne for <\/p>\n
    the   appellant\/accused  pointed  out   that   the   substantive   evidence   of <\/p>\n
    PW-3 do not in any way inspire confidence so as to place assurance on <\/p>\n
    the   alleged   extra-judicial   confession   made   by   the   present <\/p>\n
    appellant\/accused before him. It is also argued that identification of <\/p>\n
    the jewelery items by PW-3 as the jewelery items belonging to the <\/p>\n
    deceased, is also doubtful and cannot be accepted in as much as there <\/p>\n
    is no description of any of such items given by PW-3 while giving his <\/p>\n
    statement to the police. More so, when such statement was recorded <\/p>\n
    on   24.2.2003   and   by   that   time   the   ornaments   were   already   in <\/p>\n
    possession of the police. While analyzing this argument, the conduct <\/p>\n
    of PW-3 Ramesh Shah as spelt out from his substantive evidence is <\/p>\n
    significant, according to him only on 19.2.2003 in the evening the <\/p>\n
    appellant\/accused confessed before him and narrated the details as to <\/p>\n
    how  he  entered  the  house  of Manjulaben,  how he  had done  away <\/p>\n
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    with her and stolen the jewelery articles. On careful perusal of the <\/p>\n
    substantive evidence of PW-3, it is revealed that on such revelation <\/p>\n
    from the accused on 19.2.2003, immediately on the next day he went <\/p>\n
    to   the   police   station.   However,   admittedly     his   statement   was   not <\/p>\n
    recorded.   At   the   cost   of   repetition,   it   must   be   mentioned   that <\/p>\n
    according to police, his statement was recorded on 24.2.2003 and on <\/p>\n
    that   day   he   was   shown   the   jewelery   allegedly   recovered   at   the <\/p>\n
    instance of the accused and which he identified as belonging to the <\/p>\n
    deceased. PW-3 is   silent as to why he did not give his statement to <\/p>\n
    the police immediately after 19.2.2003. He did not state that he was <\/p>\n
    in   shock   due   to   revelation   made   by   the   accused.   As   against   such <\/p>\n
    factual   position,   the   substantive   evidence   of   PW-8   Investigating <\/p>\n
    Officer is to the effect that PW-3 informed him regarding the extra-\n<\/p>\n
    judicial   confession   made   by   the   accused   and   on   knowing   such <\/p>\n
    revelation on 20.2.2003, the accused was put under arrest. According <\/p>\n
    to   the   I.O.   PW-8,   PW-3   came   and   informed   him   regarding   the <\/p>\n
    confessional statement of the accused and apparently on hearing such <\/p>\n
    extra-judicial confession, PW-3 became unconscious  and admitted in <\/p>\n
    the hospital on 19.2.2003. This variance in the substantive evidence <\/p>\n
    of PW-3 & PW-8 is of much significance  which  leads  us  to  doubt <\/p>\n
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    whether   there was any extra-judicial confession by the accused on <\/p>\n
    19.2.2003   and   whether   there   was   any   hospitalization   of   PW-3   on <\/p>\n
    knowing such shocking revelation and as to whether it was the cause <\/p>\n
    for PW-3 not to immediately give his statement to the police earlier to <\/p>\n
    24.2.2003.   In   other   words,   it   must   be   mentioned   that   such   story <\/p>\n
    developed   by   the   prosecution,   definitely   creates   a   doubt   as   to   the <\/p>\n
    authenticity of theory of extra-judicial confession and further recovery <\/p>\n
    of the ornaments and cash amounts.\n<\/p>\n
    16.       On  the aspect  of  authenticity or  otherwise  of extra-judicial <\/p>\n
    confession,   following   authorities   are   cited   on   behalf   of   the <\/p>\n
    Appellant :-\n<\/p>\n
               [i]     AIR 1982 SUPREME COURT 1595<\/p>\n
                       [Heramba Brahma and another Vs. State of Assam]<\/p>\n
               [ii]    1999 SUPREME COURT CASES (Cri) 12<\/p>\n
                       [Dwarkadas Gehanmal Vs. State of Gujarat.]<\/p>\n
    17.       Coming to the second argument as to alleged recovery at the <\/p>\n
    instance of the appellant\/accused which is in fact the most substantial <\/p>\n
    evidence which has been greatly relied upon by the trial Court, there <\/p>\n
    are various infirmities and improbabilities i.e. to say the conduct of <\/p>\n
    the   appellant\/accused   in   keeping   the   weapon   of   offence   that   also <\/p>\n
    blood   stained   and   keeping   his   blood   stained   shirt   &   pant   at   his <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 17:42:05 :::<\/span>
\n                                             15<\/span>
\n                                                                    APEAL.746-04<\/p>\n
    residence appears to be improbable. Though, as argued on behalf of <\/p>\n
    the State, it can be stated that conduct of a particular person cannot <\/p>\n
    be predicted as to how he will react in given set of circumstances, still <\/p>\n
    considering that the said articles i.e. knife and blood stained clothes, <\/p>\n
    per se incriminating if such position is established, are the articles of <\/p>\n
    such   a   nature  that  any prudent  man  would  try  to  get  rid  of  them <\/p>\n
    much less keeping them at his own house. This aspect is to be viewed <\/p>\n
    in juxtaposition of the circumstances as to the jewelery items were <\/p>\n
    allegedly   found   in   the   pump-room   and  inside   the   electric   box   and <\/p>\n
    admittedly the pump room was accessible to other persons apart from <\/p>\n
    the appellant\/accused. The recovery of the ornaments and also the <\/p>\n
    alleged  cash  amount  is   again   required  to  be  viewed  in  view  of <\/p>\n
    the     admitted    position     and    attaining    circumstance,     such       as, <\/p>\n
    non-examination   of   the   jeweler   who   was   allegedly   called   for <\/p>\n
    valuation and non-examination of two persons from whom allegedly <\/p>\n
    the cash amounts Rs.14000\/- & Rs.10000\/- were recovered.\n<\/p>\n
    18.       Considering the effect of evidence of panch witness (PW-6) as <\/p>\n
    to alleged recovery at the instance of the appellant accused and the <\/p>\n
    evidence  of PW-3 & PW-8, in our considered view the Sessions Court <\/p>\n
    had fallen in an error in accepting such recovery as proved, thereby <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 17:42:05 :::<\/span>
\n                                              16<\/span>
\n                                                                      APEAL.746-04<\/p>\n
    holding the accused guilty for the offence of robbery and murder.\n<\/p>\n
    19.       On the point of circumstantial evidence by way of recovery of <\/p>\n
    articles, following authority is cited on behalf of the appellant :-\n<\/p>\n
               [i]     (2008) 3 SUPREME COURT CASES 210\n\n\n\n\n                                                           \n                       [Sattatiya alias Satish Rajanna Kartalla\n                           Vs.\n                       State of Maharashtra]\n\n\n\n\n                                              \n<\/pre>\n
               Pointing out the ratio propounded by the said authority, it is <\/p>\n
    submitted that in order to determine the genuineness of the recovered <\/p>\n
    articles, it is relevant to consider what is the nature  of place from <\/p>\n
    which   the   articles   are   recovered.   In   our   opinion,   recovery   in   a <\/p>\n
    particular matter is to be considered whether acceptable or not, only <\/p>\n
    on   the   facts   of   the   particular   case.   In   that   view   of   the   matter, <\/p>\n
    considering the alleged recovery of knife and clothes of the appellant\/<\/p>\n
    accused from his house that also after about a month and recovery of <\/p>\n
    the ornaments from the electric box situated inside the pump-room –\n<\/p>\n
    a  public place, are the significant aspects creating a reasonable doubt <\/p>\n
    whether there was such recovery at the instance of the appellant. This <\/p>\n
    is   more   so   when   the   jeweler   who   allegedly   valued   the   recovered <\/p>\n
    articles and the two  persons  who had allegedly given    loan  to the <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 17:42:05 :::<\/span>
\n                                              17<\/span>
\n                                                                      APEAL.746-04<\/p>\n
    appellant, were not examined by the prosecution.\n<\/p>\n
    20.       Lastly,  it  is  argued on  behalf of  the  appellant that  another <\/p>\n
    circumstance as to finding of chance fingerprint of the appellant on <\/p>\n
    the   cupboard   is   the   evidence   which   is   not   beyond  doubt.   In   other <\/p>\n
    words, it is submitted that though PW-7 – a     fingerprint expert has <\/p>\n
    been examined on this count, still the fact remains that admittedly no <\/p>\n
    panchnama   was   drawn   by   the   Investigating  Officer   while   allegedly <\/p>\n
    taking   the   specimen   fingerprints   of   the   accused.   This   position   has <\/p>\n
    been accepted by the Investigating Officer (PW-8). On this aspect as <\/p>\n
    to   voluntariness     of   the   accused   for   taking   his   fingerprints   or   his <\/p>\n
    handwriting, following authorities are cited before us :-\n<\/p>\n
               [i]     AIR 1986 PUNJAB AND HARYANA 174<\/p>\n
                       [Sheo Narain & Anr.. Vs. Rawat & Ors.]
\n               [ii]    AIR 1952 TRAVANCORE-COCHIN 482 [FB]
\n                       [State Vs. Parameswaran Pillai]<\/p>\n
    21.       By pointing out the ratios of the above cited authorities, it is <\/p>\n
    submitted   that   the   accused   cannot   be   compelled   to   give   evidence <\/p>\n
    against   himself   and   consequently   without   there   being   anything   on <\/p>\n
    record as to authorization from the Court, the procedure adopted by <\/p>\n
    the   police   of   taking   fingerprint   specimen   of   the   accused   raises   a <\/p>\n
    doubt. Considering the submission and the ratios propounded by the <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 17:42:05 :::<\/span>
\n                                               18<\/span>
\n                                                                       APEAL.746-04<\/p>\n
    above   authorities,   suffice   it   to   say   that   in   the   present   matter   the <\/p>\n
    procedure, adopted by the Investigating Agency for establishing that <\/p>\n
    the fingerprint of the accused were found on the cupboard, do not <\/p>\n
    inspire confidence. Otherwise also considering the accepted position <\/p>\n
    that   at   times   the   appellant\/accused   was   visiting   the   house   of   the <\/p>\n
    victim and was doing some sundry work as a servant by way of casual <\/p>\n
    help, the evidence of fingerprint, as alleged by the prosecution, will <\/p>\n
    not be of much significance so far as establishment of the guilt for the <\/p>\n
    offence of robbery and murder is concerned.\n<\/p>\n
    22.       In   view   of   the   above   discussion,   it   must   be   said   that   the <\/p>\n
    Sessions Court had fallen in an error in accepting the evidence of the <\/p>\n
    prosecution witnesses sufficient to bring home the guilt of the accused <\/p>\n
    for the offences charged. Consequently the impugned judgment and <\/p>\n
    order is required to be interfered and the same is set aside resulting in <\/p>\n
    acquittal of the appellant\/accused. Hence, the order :-\n<\/p>\n
                                        :: O R D E R ::\n<\/p>\n
      i. Criminal Appeal No.746 of 2004 is allowed;\n<\/p>\n
      ii. Impugned   judgment   and   order     dated   2nd  &   5th  April,   2004 <\/p>\n
          passed by the Additional Sessions Judge of City Civil & Sessions <\/p>\n
          Court, Bombay in Sessions Case No.308 of 2003 is set aside.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 17:42:05 :::<\/span>
\n                                        19<\/span><\/p>\n
                                                                APEAL.746-04<\/p>\n
    iii. Appellant\/accused be released from jail, if not required in any <\/p>\n
        other matter.\n<\/p>\n
    iv. If fine amount is already paid by the accused, the same shall be <\/p>\n
        refunded to him.<\/p>\n
\n\n\n\n\n                                                     \n     \n\n                                              (D.  D. SINHA, J.)\n\n\n\n\n                                        \n                         ig                          (A. R. JOSHI, J.)        \n                       \n      \n   \n\n\n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 17:42:05 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Raju Balaram Gujrathi vs State Of Maharashtra on 6 September, 2011 Bench: D.D. Sinha, A. R. Joshi PPD 1 APEAL.746-04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.746 OF 2004 Raju Balaram Gujrathi, ] Aged about 42 years ] Hindu, residing at 29-E, ] Singhania Bldg. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-27812","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRaju Balaram Gujrathi vs State Of Maharashtra on 6 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/raju-balaram-gujrathi-vs-state-of-maharashtra-on-6-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raju Balaram Gujrathi vs State Of Maharashtra on 6 September, 2011 - 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