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IN THE HIGH COURT OF BOMBAY AT GOA
C.V. BHADANG, PRITHVIRAJ K. CHAVAN, JJ.
Gracy Geeta Shetty - Appellant
Versus
State (Through Mormugao Police Station) - Respondent
Criminal Appeal No. 52 of 2017
Decided On : 03-02-2018
Indian Penal Code,1860 - Section 302 - Criminal Procedure Code,1973 - Section 313 - Evidence Act - Section 27 – Investigating – punishment - Prosecution cases horn of minor details may be stated thus That now deceased had lent to appellant by way of temporary accommodation - It is stated that about hours appellant trespassed into house of deceased and intentionally caused death strangulating her and slitting her neck and also committed robbery - On basis of complaint lodged by an offence came to be registered - During course of investigation Investigating Officer recorded spot panchanama of scene occurrence an inquest panchanama dead body was drawn dead body was sent for post mortem examination and statement of witnesses came to be recorded – Held, Court would now briefly deal with aspect of false defense - It is now well settled that false defensemen if established is not separate circumstance or link in chain of circumstances - If proved it can strengthen chain of circumstances if already established - Once court hold that circumstances are not established and they do not form any chain false defense even if proved would be inconsequential - Nonetheless court are also unable to accept finding by Sessions Judge that this is case where false defense by appellant can be said to be proved - Sessions Judge in Para has stated that claim appellant that mobile hand set was given by deceased to her is false explanation and is an additional link - Court find that such reasoning cannot be accepted - It can neither be said to be false explanation nor an additional link - Public Prosecutor has referred to answer given by appellant in reply to question no - Order to submit that this is false explanation - Here again court would tend to disagree - Question answer to it reads as It is further in evidence that she was knowing you prior you had borrowed sum - From his mother and you had returned only balance - was due from you to his mother - What have you to say - It is false - Contention is that appellant having claimed that mobile was given to her by deceased has indirectly admitted that she was knowing deceased - However while responding to question no she has denied that she was knowing deceased - Court find that question no - Essentially regarding appellant having burrowed - From deceased and having returned only remaining being outstanding - It is that part that has been replied as denied as being false - Statement has to be read as whole and there is nothing in reply to question suggest that appellant had denied that she was knowing deceased - Court thus find that prosecution has failed to bring home guilt of appellant on basis of circumstantial evidence led – Appeal allowed
C.V. BHADANG, J.
1. The challenge in this appeal, is to the conviction of the appellant for the offence punishable under Sections 302, 449 and 397 of the Indian Penal Code (IPC, for short). For the offence punishable under Section 302 of IPC, the appellant has been sentenced to undergo imprisonment for life with fine.
For the offence punishable under Section 449 of IPC, the appellant has been sentenced to undergo simple imprisonment for seven years and fine. Lastly, for the offence punishable under Section 397 of IPC, the appellant has been sentenced to imprisonment for seven years.
2. The prosecution case, shorn of minor details, may be stated thus: That, now deceased, Rukmini Kanse had lent Rs.10,000/- to the appellant by way of temporary accommodation. It is stated that on 10.06.2015, at about 10:15 hours, the appellant trespassed into the house of the deceased and intentionally caused death of Rukmini Kanse, by strangulating her and slitting her neck and also committed robbery. On the basis of a complaint lodged by Deepali Kanse (PW-1), an offence came to be registered with the Mormugao P.S. During the course of the investigation, the Investigating Officer, recorded the spot panchanama of scene of occurrence, an inquest panchanama of the dead body was drawn, the dead body was sent for post-mortem examination and the statement of the witnesses came to be recorded. The appellant, who is the neighbour of the deceased was arrested on 14.06.2015. It is the material prosecution case that while in custody, the appellant gave separate confessional statements on 15.06.2015 (Exhibit No. 29), 16.06.2015 (Exhibit No. 31) and 18.06.2015 (Exhibit No.38), thereby offering to discover certain articles, including the weapons and the blood stained clothes of the appellant, which were accordingly recovered.
3. The prosecution case mainly rests on these three recovery panchanamas (Exhibits 29, 31 and 38), under which, the appellant has discovered certain incriminating articles, under Section 27 of the Evidence Act. This includes a dual SIM mobile hand set of “Lava” make, which according to the appellant was given to her by the deceased and which the prosecution claims that it was used by the appellant with a SIM card standing in the name of the husband of the appellant.
4. It appears that during the course of the investigation, the Investigating Officer also obtained finger prints on certain articles found in the house of the deceased, however, there is no report of the finger print expert on record to show the complicity of the appellant in the crime. On completion of the investigation, a charge sheet came to be filed, which was eventually committed to the Court of Sessions.
5. The learned Sessions Judge framed a charge (Exhibit-9) against the appellant, for the offence punishable under Sections 302, 449 and 397 of IPC, to which, the appellant pleaded not guilty and claimed to be tried. The defence of the appellant, as elicited from the cross examination and the statement under Section 313 of the Code of Criminal Procedure (Cr.P.C., for short), is of total denial and false implication. At the trial, the prosecution examined as many as ten witnesses and produced the record of the investigation. The appellant neither entered into the witness box nor examined any defence witnesses.
6. The learned Sessions Judge found that the deceased suffered homicidal death at her house at Bogda, Mormugao on 10.06.2015 in the morning hours at 10:15 and it is the appellant, who intentionally caused her death, after trespassing in the house of the deceased and also committed robbery of gold ornaments and some cash. In that view of the matter, the learned Sessions Judge by impugned judgment dated 04.01.2017, convicted the appellant for the offence punishable under Sections 302, 449 and 397 of IPC and sentenced her as set out above. Feelin
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