Judgment:
A.R. Joshi, J.
1. Heard rival submissions on this Criminal Appeal preferred by appellant/orig.accused No.2 challenging the judgment and order of conviction dated 9th July, 2004 passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No.221 of 1999. In the said Sessions Case, initially two accused persons were tried â including the present appellant. Both the accused were convicted of the offence punishable under Section 302 read with Section 34 of IPC and they were sentenced to suffer imprisonment for life and to pay fine of Rs.5000/each, in default to undergo further sentence for one year each. Both the accused were also convicted for the offence punishable under Section 392 read with Section 34 and were sentenced to suffer RI for thre years each. They were also convicted for the offence punishable under Section 392 read with Section 397 and 34 of IPC and were sentenced to suffer RI for seven years each. They were also convicted for the offence punishable under Section 452 of IPC and sentenced to suffer RI for one year each. Both the accused were acquitted of the offence punishable under Section 37 read with Section 135 of Bombay Police Act. Set off was given to both the accused for the period they were in custody during the trial. Apparently original accused No.1 had not preferred any appeal, whereas present Criminal Appeal is preferred by original accused No.2.
2. The case of prosecution, in nutshell, is as under :
During the night between 25th and 26th October,1998 Dr. Jehangir Vajifdar, then aged about 80 years or so, was murdered at his residential house at Avabai Mansion, flat No.3, 1st Floor, Henri Road, Colaba, Mumbai. It was in fact robbery with murder and various valuable articles, such as Rolex wrist watch, tape recorder, camera, foreign currency etc. valued at more than Rs.2,75,000/, were robbed from the said flat. During the said robbery, knife was used as a weapon for causing death of Dr. Jehangir Vajifdar who was present in the flat. According to the case of prosecution PW1 Mrs. Farida Dubash was residing in flat No.5 in Avabai Mansion where the victim was residing in flat No.3. In other flats there were other tenants. On the night of 25th October, 1998 PW1 Mrs. Farida Dubash met the victim Dr. Jahangir. He was alone in the flat. Thereafter at 11:30 p.m. in the night victim had made a telephone call to PW1 Mrs. Farida Dubash and informed her that he was going out for âvisitâ to meet some patient and prior to his coming back if anybody comes to him then the information or message would be collected and be given to the victim after his arrival. On that night, PW1 Mrs. Farida Dubash tried to contact Dr. Jehangir on telephone placed at his flat No.3. Though the telephone bell rang for several times, nobody lifted the phone. After some time when son of PW1 went out, he had noticed that the door of flat No.3 was closed, but one light in the bed room was on. Son of PW1 returned back by 1:30 a.m. he noticed that lights in the bed room so also in the bath room of flat No.3 were on and he noticed that front door of the flat was closed. On the next day morning at 9:00 a.m. one patient of Dr. Jehangir (victim) contacted PW1 and informed that though he was trying to contact Dr. Jehangir on telephone, nobody is responding. On knowing this, PW1 directed her maid servant Rajeshri to see as to what had happened to Dr. Jehangir at his flat No.3. After some time, the maid servant returned and told that the door of the said flat No.3 was open. On this, PW1 went to the said flat and noticed Dr. Jehangir Vajifdar found lying in passage of the bed room in a pool of blood. She also noticed that the articles in flat No.3 were scattered and ransacked. Her complaint was recorded. Offence was registered. Inquest panchnama was conducted on the dead body of Dr. Jehangir Vajifdar. There were several wounds found on the body of the victim. Clothes on the person of the dead body were seized under panchnama. Dead body was sent for postmortem. Finger print experts were called. So also the dog squad was also called. Photographs of the dead body were taken. Spot panchnama was drawn. Statements of witnesses were recorded.
3. It is also the case of prosecution that during the course of investigation it was found out that two watchmen of the same building were absconding since the date of incident. Steps were taken to trace them out. It was revealed that said watchmen had gone to the native places. Accordingly two investigation teams were formed and they were sent to Rajasthan and Madhya Pradesh. On 5.11.1998 one team came from Rajasthan along with one watchman by name Omprakash (accused No.1). At thetime of apprehending said accused No.1, various articles and other property which were robbed from the flat of Dr. Jehangir Vajifdar, was seized. The seized articles were shown to complainant (PW1) and she identified these articles as belonging to the victim. Her further statement was recorded. During further investigation, accused No.1 Omprakash produced clothes and knife. Accordingly those articles were seized under panchnama.
4. It is also the case of prosecution that on revealing the name of accused No.2, i.e. another watchman of the said building, he was arrested on 9.11.1998 from Cooperage Ground, Colaba. Said accused No.2 is appellant in the present appeal. During interrogation of accused No.2, he indicated to make voluntary statement and subsequently procured clothes. Both the accused were sent for medical examination and their blood samples were taken for determining the blood group. During further interrogation of accused No.2, he allegedly made a statement to show the place from where he had purchased the knife and accordingly he showed the place of purchase of knife. During the investigation, it was revealed that immediately after the offence, both the accused had stayed in some lodge at Pune from 26th to 28th October, 1998 and accordingly statements of office bearers from the said hotel were recorded. Hotel register was taken charge of. According to the case of prosecution, apparently both the accused stayed in the hotel by taking different names as entered in the hotel register and their real names were not entered in the hotel register. After obtaining the CA report and on completion of investigation, chargesheet was filed against both the accused. Case was committed to the Court of Sessions and was tried and disposed of ending in conviction of both the accused.
5. Prior to discussing the arguments advanced on behalf of appellant/accused No.2, certain salient features of the case of prosecution can be mentioned. Entire case of prosecution is based on circumstantial evidence as to robbery and murder of victim Dr. Jehangir Vajifdar. Apparently following are the circumstances :
[i] Firstly, both the accused were working as watchman in the same building Avabai Mansion, Henri Road, Colaba, Mumbai and from the next day of the incident both were found missing from their job and appellant/accused No.2 was arrested on 9.11.1998 from Colaba.
[ii] Secondly, clothes of appellant/accused No.2 were recovered at his instance during the panchnama on 13.11.1998 and said clothes were having the blood of âBâgroup as per the CA report.
[iii] Thirdly, appellant/accused No.2 had purchased some clothes worth about Rs.472/on 27.10.1998.
[iv] Fourthly, both the accused resided in some hotel/lodge at Pune from 26th to 28th October, 1998, but booked the room on different names.
[v] Fifthly, appellant/accused No.2 showed the shop from where he had purchased the knife.
6. According to the case of prosecution, all the above referred circumstances are incriminating and pointing towards the guilt of appellant/accused No.2 as to his involvement in the offence of murder and robbery in connivance with accused No.1. At this juncture, it must be mentioned that according to the case of prosecution whatever articles robbed from the house of the victim were recovered at the instance of accused No.1 and not present appellant No.2. Bearing in mind this factual position, it is to be considered whether the circumstances mentioned above are so clinching and incriminating against appellant/accused No.2 so as to come to the conclusion that he was one of the robbers and assailants in the incident of robbery with murder.
7. So far as the first circumstance is concerned, appellant/accused No.2 was working as a watchman in the said building Avabai Mansion for long time. However was not attending the job since the next day of the incident. Though it is a factual position, this circumstance in itself in isolation cannot be taken as an incriminating circumstance though it raises a grave doubt about his involvement in the offence. On this aspect, it is submitted on behalf of appellant that appellant/accused had not left Mumbai and was staying in the same area till he was arrested on 9.11.1998 from some Colaba area. As such though according to the case of prosecution he was not available, his absence from job per se cannot be treated as guilty conscious, further argued.
8. So far as the second circumstance is concerned, according to the prosecution, blood stained clothes were recovered at the instance of appellant/accused No.2 on 13.11.1998 and this recovery was on alleged voluntary statement of appellant to produce clothes. However, the admitted fact is that the blood group of victim and also of both the accused is âB'. Further more the incident of assault and murder of Dr. Jehangir Vazifdar happened on the night between 25th October and 26th October, 1998 whereas clothes were recovered on 9.11.1998 i.e. about 14 days from the incident. Again considering the blood group âBâ of deceased and both the accused, this circumstance is required to be viewed with circumspection.
9. So far as third circumstance is concerned, according to the prosecution, appellant/accused No.2 had purchased clothes worth about Rs.472/on 22nd October, 1998 from Pune. However, the substantive evidence of PW10 a salesman from the shop do not mention any amount as to Rs.472/regarding purchase of clothes by appellant/accused No.2. Otherwise also mere purchase of clothes for that amount cannot be construed as the proof of involvement of appellant/accused No.2 in the murder. In other words, it would be far fetched to accept the theory of prosecution that from the robbed amount which has allegedly came to the share of appellant/accused No.2, he had purchased his clothes.
10. Regarding the fourth circumstance as to alleged stay of both the accused at hotel/lodge at Pune from 26th to 28th October, 1998, it must be said that the hotel register entry had not been proved and is still remained âXâ for identification. Moreover, as per the said entry the names mentioned are of different persons and not the names of present appellant/accused No.2 and original accused No.1. Moreover, there is no identification of the accused so far as any witness from the said hotel staff identifying them as to customers staying in the hotel from 26th to 28th October, 1998.
11. So far as the last circumstance of showing the shop from where the knife was purchased, it must be mentioned that both theses witnesses PW12 shopkeeper and W13 pancha did not support the case of prosecution and as such such alleged purchase of knife â which was allegedly used in the offence of murder cannot be treated as a circumstance incriminating against appellant/orig.accused No.2.
12. It must not be lost sight of the fact that though any of the above circumstances or all the circumstances create strong and grave suspicion against appellant/accused No.2, they are not sufficient to bring home the guilt of appellant/accused No.2 for the offence of robbery and murder for the reasons mentioned above, and more so when all the recoveries were from accused No.1 who was apprehended from his native place at Rajasthan and who was employed as a watchman in the said Avabai Mansion just few days prior to the incident.
13. In any event, we are of the considered view that the evidence brought before the trial Court was felling short of that standard which was required to establish the guilt of appellant/accused No.2 beyond reasonable doubt. In that event, the impugned judgment and order is required to be annulled and thus the appeal is required to be allowed. Hence, the order :
ORDER
I. Criminal Appeal No.706 of 2005 is allowed.
II. The impugned judgment and order of conviction dated 9th July, 2004 passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No.221 of 1999 is set aside. Appellant/accused No.2 is acquitted of the offence punishable under Sections 302 read with Section 34 of IPC, under Section 392 read with Section 34 IPC, under Section 392 read with Section 397 and 34 of IPC, and under Section 452 of IPC.
III. The appellant/accused No.2 be set at liberty, if not required in any other matter.
IV. If fine amount is already paid, it shall be refunded back to appellant/accused No.2.
V. Present judgment and order be communicated to the concerned jail authorities where the appellant/accused No.2 is presently lodged.
VI. At this stage, we wish to place on record our appreciation for the way in which Mr. Arfan Sait, learned appointed Advocate appearing for the appellant has conducted the matter. He was thoroughly prepared with the matter and he has very ably argued the matter. We quantify his fees to be paid by the High Court Legal Services Committee, Bombay at Rs.2500/( Rupees Two Thousand Five Hundred Only). The same to be paid to the learned Advocate Mr. Arfan Sait within a month from today.