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2017 Supreme(Bom) 1343
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, SHALINI PHANSALKAR-JOSHI, JJ.
Mahesh Jagan Surti - Appellant
Versus
The Union Territory Administration of Daman and Diu - Respondent
Criminal Appeal No. 551 of 2015
Decided On : 22-08-2017
For the Appellant :Nasreen S.K. Ayubi, Advocate.
For the Respondent: Poornima H. Kantharia, A.P.P.
The main legal point established is that conclusive circumstantial evidence can lead to a conviction even in the absence of direct evidence.
Headnote:
Indian Penal Code - Conviction for Offences under Sections 302 and 201 - Summary of Acts and Sections: IPC Sections 302, 201
Fact of the Case:
The appellant was convicted for the offences under Sections 302 and 201 of the Indian Penal Code for drowning and burying his two daughters. The prosecution proved that the daughters were last seen in the company of the appellant and their dead bodies were recovered at his instance.
Finding of the Court:
The court found the appellant guilty based on conclusive evidence of the daughters being last seen with him and the recovery of their bodies at his instance. The court rejected the appellant's false explanations and concluded that he was the author of the crime.
Issues: The main issue was whether the prosecution could prove the appellant's involvement in the death of his daughters beyond reasonable doubt.
Ratio Decidendi: The court relied on the evidence of the daughters being last seen with the appellant and the recovery of their bodies at his instance as conclusive proof of his guilt.
Final Decision: The court upheld the appellant's conviction for the offences punishable under Sections 302 and 201 of the Indian Penal Code.
Shalini Phansalkar-Joshi, J.
1. In this appeal, an exception is taken to the judgment and order dated 19th September, 2011 of Session Judge, Daman, in Session Case No.13 of 2006; whereby the appellant is convicted for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default to suffer R.I. for three months, on the first count, and R.I. for three years and fine of Rs.1,000/-, in default to suffer R.I. for one month, on the second count.
2. Brief facts of the appeal can be stated as follows:-
P.W.1 Pravina is the wife of the appellant. They had three daughters by name, Divya - aged 8 years, Nisha- aged 5 years and Khushi aged 1 1/2 years. On 23.4.2006, they had gone to a fair, near Mahalaxmi Temple, in the morning at about 9.00 a.m., on the scooter. After taking Darshana of “Mahalaxmi Goddess”, appellant took his daughters by name Divya and Nisha towards giant wheel. P.W.1 Pravina had with her, the youngest daughter Khushi. She waited for the appellant to return with their two daughters. However, the appellant did not return. She took search and returned to the house alongwith Khushi. She then informed about the same to P.W.5 Ravi Surti, the brother of the appellant. The appellant, however, returned to the house, on the next day, in the evening. On enquiry with the appellant about the daughters, he gave evasive replies by stating that he met with an accident in which both the daughters succumbed to the injuries. However, on further confrontation, appellant admitted that he has drowned his both the daughters in Arabian Sea and buried them.
3. In view of this information given by the appellant, he was taken to Daman Police Station. There, complaint of P.W.1 Pravina came to be recorded vide Exh.52. On her complaint C.R.No.93 of 2006 was registered. During the course of investigation, at the instance of appellant, dead bodes of both the daughters came to be recovered from the Forest land, near seashore. As a part of further investigation, the spot panchnama was made. Statement of witnesses were recorded and after completion of due investigation, charge-sheet came to be filed in the court of Chief Judicial Magistrate, Daman.
4. On committal of the case to the Court of Sessions, the trial Court framed charge against the appellant vide exh.5. The charge was read over and explained to the appellant to which the appellant pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined in all 12 witnesses. The appellant also led the evidence of his brother-in-law Navin Surti to prove his defence that at sea-shore, his daughters went missing, he tried to trace them, but could not find them and on the next day police showed him the dead bodies.
6. On appreciation of this evidence, the trial Court was pleased to hold the guilt of the appellant to be proved beyond reasonable doubt for both the offences punishable under Sections 302 and 201 of the IPC and convicted and sentenced him as aforesaid.
7. In this appeal, we have heard learned counsel for the appellant and learned APP for the Union Territory.
8. Learned counsel for the appellant has challenged the finding of the trial Court, on the ground that there is absolutely no evidence to connect the appellant with the death of his two daughters. It is submitted that neither the motive is proved nor prosecution witnesses including P.W.1 Pravina, the wife of appellant and P.W.5 Ravi-the brother of appellant, have supported the prosecution case. It is urged that even the other witnesses namely P.W.7 Dashrath Burkey, P.W.6 Vikram Dhodi have not supported the prosecution case. It is submitted that the evidence of defence witness, Navin Surti, who is the brother of P.W.1 Pravina, also goes to prove that after the daughters of appellant went missing, appellant had come to him and both of them had taken search of the daughters. Thus, it is submitted that the prosecution has utte
