| SooperKanoon Citation | sooperkanoon.com/1102789 |
| Court | Mumbai High Court |
| Decided On | Mar-11-2013 |
| Case Number | Criminal Appeal No.994 of 2007 |
| Judge | THE HONOURABLE MRS. JUSTICE V.K. TAHILRAMANI & P.D. KODE |
| Appellant | Vishnukumar Buddhakumar Ranjit Kancha @ Nepali and Others |
| Respondent | State of Maharashtra |
Oral Judgment: (Smt. V.K. Tahilramani, J.)
This appeal is directed by the appellant-original accused against the judgment and order dated 12.07.2006 passed by the learned 3rd Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No.678 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 302 and 309 of IPC and sentenced him as follow:-
| Convicted Under | Sentenced to |
| Section 302 of IPC | Imprisonment for life and fine of Rs.500 IDRI for 3 Months. |
| Section 309 of IPC | S.I. for 15 Days. |
2. The prosecution case briefly stated, is as under:
(a) First Informant PW 1 Mithu was residing in a bungalow situated at 785, R.K. Market, Kamathipura, Mumbai. She used to conduct prostitution business from the said place. There were six girls staying in her bungalow who were also indulging in prostitution business. Some of them were PW 2 Meera, PW 3 Kavita and Kalpana (deceased). Each girl used to reside in a separate compartment in the house. The appellant was in love with Kalpana and he used to often come to the brothel to meet Kalpana.
(b) On 18.04.2005 at about 11.00 p.m., the appellant came to the brothel of PW 1 Mithu to meet Kalpana. At that time, PW 2 Meera and PW 3 Kavita along with others were present in the house. The appellant went to the compartment of Kalpana. Kalpana was in that compartment. At about 02.00 a.m., they all slept in their respective compartments. The appellant continued to remain in the compartment of Kavita. At about 05.00 to 05.15 a.m., PW 1 Mithu and others heard the shout of Kalpana, hence, they knocked on the door. The door was locked from inside and nobody opened the door. PW 1 Mithu then went to call the police. She saw two Police Constables on patrolling duty. She called them. The Police them removed one glass from the ventilator of the window and by putting the hand inside, unlatched the door of compartment and opened the door. On opening the door, they saw Kalpana lying in naked condition in a pool of blood on the ground. The appellant was also lying in naked condition on the ground. One knife was found in stabbed condition in stomach of the appellant. The Police then took Kalpana and the appellant to the hospital. Kalpana was declared dead. The appellant was examined by PW 6 Dr. Dhaigude. The Doctor made inquiry with the appellant whereupon the appellant told him that he was in love with one girl but she refused to stay with him, therefore, he lost his interest in life and he did the act. F.I.R. of PW 1 Mithu came to be recorded. Thereafter, investigation commenced. The dead body of Kalpana was sent for postmortem. PW 8 Dr. Meshram conducted the postmortem on the dead body of Kalpana. Doctor Meshram noticed the following injuries on the dead body of Kalpana:-
i. Stab injury over left chest anteriorly, 3 cms horizontal of size 4 x 1.5 cms. Margin sharp, medial end sharp and lateral end blunt, gapping, dark colour, the injury penetrates inside the chest cavity and further penetrates the myocardium of left ventricle of heart, blood clot seen.
ii. Stab injury over right chest anteriorly 2 cm., Lateral to midline at 4 intercostal space horizontal of size 5 cms. x 1.5 cms. The injury further extends externally laterally to total length of 10 cms., margin sharp, one end sharp (medial end) and lateral end blunt, gapping present, dark colour. The injury penetrates inside the chest cavity and further penetrates the lower lobe of right lung anteriorly, blood clot seen.
iii. Stab injury over left hyopochondrium 7 cm. From midline horizontal of size 4 cms x 1.5 cms. Margin sharp medial end sharp and lateral end blunt, gapping present dark colour, the injury penetrates the inside the abdominal cavity. The blood clot seen at places, intestine loop protrudes out.
iv. Stab injury over right lumber region, vertically / at 7 O'clock position, 9 cm from midline of size 4 x 1.5 cms., Margin sharp, medial end sharp and lateral end blunt, gapping present, dark colour, cavity deep, blood clot seen, intestine loop protrudes out.
v. Stab injury over the right inguinal region, 3 cms. from midline, vertically/ at 8 O'clock position of size, 5 X 1.5 cms. Margin sharp, medial end blunt and lateral end sharp gapping present, dark colour. The injury penetrating to abdominal cavity and further penetrating the loop of intestine, blood clot seen.
vi. Stab injury over supra suprapublic region, anteriorly 3 cms. above upper borders of cubic, symphysis, horizontal of size 5 cms X 1.5 cms., one end sharp and another end blunt, gapping present, margin sharp, the injury penetrates the abdominal cavity, blood clot seen.
vii. Laceration over right thigh anteromedially at upper 1/3 region of size 7 x 4 cms., skin deep, dark colour. viii. Laceration over right thigh anteriorly over middle 1/3 of size 10 x 4 cms, skin deep dark colour.
ix. Stab injury over left back 32 cms. Below left acromion process, 3 cms from midline of size 3.5 cms x 1.5 cms. horizontal, margin sharp, medial end sharp, lateral end blunt, gapping present, dark colour, cavity deep, blood clot seen.
x. Stab injury over right back 35 cms. below right acromion process 8 cms. from midline of size 3.5 cms. x 1.5 cms., vertically / at 4 O'clock position, margin sharp, lateral end sharp, medial end blunt gapping present, dark colour, blood clot seen. The injury penetrates to the cavity and further to right side of loop of intestine.
xi. Stab injury over left forearm above wrist joint 3 cms. posteriorly horizontal of size 4 x 1 cms., margin sharp, one end blunt and another end sharp medially, gapping present, dark colour, muscle deep, blood clot seen. xii. Stab injury over left hand posteriorly at base of thumb of size 4 cms x 1 cms., vertically / margin sharp upper end sharp, lower end blunt, gapping present, dark colour, muscle deep, blood clot seen.
xiii. Stab injury over right hand posteriorly 3 cms below right wrist joint horizontal of size 4 x 1 cms, margin sharp, medial end sharp, lateral in blunt, gapping present, dark colour, bone deep, blood clot seen.
xiv. Incised injury over left middle and index finger tips skin deep, tailing towards lateral side, dark colour.
Doctor Meshram found following internal injuries:-
i. Injury on the lower lobe of right lung anteriorly having the blood clot corresponds to injury No.(ii) above.
ii. Injury on the myocardium of left ventricle of heart having the blood clot corresponds with injury No.(i) above.
iii. Injury on the loop of intestine having blood clots corresponds with injury Nos.(iii) to (vi) and (x) above.
iv. Sharp cut of metacarpals of right hand posteriorly 3 cms below right wrist joint the margin show infiltration of blood corresponds with injury No.(xiii) above.
In the opinion of Dr. Meshram, cause of death was due to multiple stab injuries and all the above injuries are possible by sharp cutting weapon. According to Dr. Meshram, the above injuries are possible by weapon (Article 5). In his opinion, considering the depth of the injuries, force might have been used for stab injuries. According to Dr. Meshram, particularly injury Nos.(i) to (vi), (ix) and (x) are responsible for death of a person. In relation to rest of the injuries, Doctor Meshram stated that due to excessive bleeding, death may also be possible and It is not correct that all the above injuries can be self inflicted. After completion of investigation, charge sheet came to be filed.
3. Charge came to be framed against the appellant under Sections 302 and 309 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal.
4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant stabbed Kalpana with a knife and caused her death.
5. There is no eye witness in the present case and the case is mainly based on the circumstantial evidence. The evidence on record shows that only the appellant and deceased Kalpana were in the compartment together. The compartment was locked from inside. when the door of the compartment was opened, Kalpana and the appellant were found in a pool of blood. Kalpana had received many stab injuries of knife and the appellant was also lying on the ground in the compartment in injured condition. This has been stated by PW 1 Mithu, PW 2 Meera and PW3 Kavita. PW 1 Mithu was running a brothel at Kamathipura, Mumbai. PW 2 Meera, PW 3 Kavita, deceased Kalpana and three other girls were working in the said brothel. Kalpana was staying in the house of PW 1 Mithu since about two years prior to the incident. The appellant used to come often to the house of PW 1 Mithu to meet Kalpana.
6. PW 1 Mithu has further stated that on 18.04.2005 at about 11.00 p.m., the appellant came to the brothel of PW 1 Mithu to meet Kalpana. At that time, PW 2 Meera and PW 3 Kavita along with others were present in the house. The appellant went to the compartment of Kalpana. Kalpana was in that compartment. At about 02.00 a.m., they all slept in their respective compartments. The appellant continued to remain in the compartment of Kavita. At about 05.00 to 05.15 a.m., PW 1 Mithu and others heard the shout of Kalpana, hence, they knocked on the door. The door was locked from inside and nobody opened the door. PW 1 Mithu then went to call the police. She saw two Police Constables on patrolling duty. She called them. The Police them removed one glass from the ventilator of the window and by putting hand inside, unlatched the door of compartment and opened the door. On opening the door, they saw Kalpana lying in naked condition in a pool of blood on the ground. The appellant was also lying in naked condition on the ground. One knife was found in stabbed condition in stomach of the appellant. The Police then took Kalpana and the appellant to the hospital. Kalpana was declared dead. The F.I.R. of PW 1 Mithu came to be recorded.
7. The evidence of PW 2 Meera and PW 3 Kavita is on the same lines as that of PW 1 Mithu. Nothing has been elicited in cross-examination of any of these witnesses so as to disbelieve their testimony. We are of the opinion that their evidence inspires implicit confidence, hence, we have no hesitation in relying on the same.
8. The evidence of these three witnesses i.e PW 1 Mithu, PW 2 Meera and PW 3 Kavita is also corroborated by the evidence of PW 5 Police Constable More. This witness has stated that he was on duty at Kamathipura Beat No.2. On 18.04.2005, he along with Police Constable Bhosle were on night duty in that beat. PW 5 Police Constable More has stated that at 05.00 a.m., when he was on patrolling duty, one lady aged about 42 to 45 years met them near bungalow No.785 and informed that prostitute Kalpana and one customer were in compartment No.6 since night and they were not opening the door of that compartment. Then Police Constable More along with another Police Constable went to the bungalow. They found that the door of compartment No.6 was closed from inside. They knocked on the door but there was no response. Then, this witness broke open the glass of ventilator of the window above the door. Then, he put his hand inside and unlatched the door. On opening the door, they found Kalpana and the appellant lying in a pool of blood. No movement was seen from the lady, however, the male person was breathing and they found a knife in stabbed condition in the stomach of that person. Thus, the evidence of PW 1 Mithu, PW 2 Meera, PW 3 Kavita and PW 5 Police Constable More shows that Kalpana and the appellant were the only two persons in the compartment and the compartment was locked from inside. In such case, the appellant has to explain how they sustained injuries and Kalpana died.
9. In relation to the above, we may refer to Section 106 of the Evidence Act. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underlies Section 106 of the Evidence Act can be applied in cases when certain facts are especially within the knowledge of a person. In the State of Rajasthan Vs. Kashi Ram (2006) 12 SCC 254: (AIR 2007 SC 144), the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.
10. Motive for the incident has been brought out by the evidence of PW 6 Dr. Dhaigude. Doctor Dhaigude has stated that on 19.04.2005 at about 05.35 a.m., one person was brought to Nagpada Hospital. A knife was found in stabbed condition in his abdominal portion. The Doctor made inquiry with the person and the said person told him that he was in love with one girl and she refused to stay with him, therefore, he lost his interest in life and therefore, he has done so. This witness has identified the appellant as the very same person whom he had examined and who had made the statement before him. Not only the evidence of PW 6 Dr. Dhaigude brings out the motive but it also brings on record another circumstance i.e the appellant made an extra judicial confession to this witness.
11. Though, the case is based on circumstantial evidence, the circumstantial evidence is such that it leads to the inescapable conclusion that it was the appellant alone who caused the murder of Kalpana and thereafter, he tried to take his own life by stabbing himself with a knife. On going through the record, we find that there is sufficient evidence to connect the appellant with the crime. Hence, we find no merit in this appeal and proceed to pass the following order:-
ORDER
i. The appeal is dismissed.
ii. Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant-original accused.
12. At this stage, we must record our appreciation for Advocate Mrs. Rohini Dandekar who is on the High Court Legal Services Committee, appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.2200. The said fees be paid to Advocate Mrs. Dandekar within three months from today.