Appeal.809.15.doc

ATU

IN

IN

THE

THE

HIGH

HIGH

COURT

COURT

OF

OF

JUDICATURE

JUDICATURE

AT

AT

BOMBAY

BOMBAY

CRIMINAL

CRIMINAL

APPELLATE

APPELLATE

JURISDICTION

JURISDICTION

CRIMINAL APPEAL NO. 809 OF 2015

WITH

INTERIM APPLICATION NO. 1431 OF 2021

Mr. Radhe Zulidas Mandal,

Age: 23 Year, Occ. Labour,

Residing Post Rahina, Tehisl Thana,

Saharghat, Dist. Madhubani,

State – Bihar.

... Appellant

(Ori. Accused)

Versus

The State of Maharashtra,

(At the instance of Juhu Police Station)

... Respondent

(Ori. Complainant)

Mr. Murtaza N. Najmi, Appointed Advocate a/w. Ms. Davinder

Sabharwal, Advocate for Appellant.

Mr. H.J. Dedhia, APP for Respondent – State.

CORAM

:A.S. GADKARI &

MILIND N. JADHAV, JJ.

RESERVED ON

:19^th September 2022.

PRONOUNCED ON :20^th October 2022.

JUDGMENT (PER: MILIND N. JADHAV, J.)

.

This Appeal challenges the Judgment and Order dated

23.09.2014 passed by the learned Additional Sessions Judge, Greater

Bombay in Sessions case No.34 of 2012 for offences punishable under:

(i) Section 302 read with Section 34 of Indian Penal Code,

1860 (for short “IPC”) and sentencing him to suffer

imprisonment for life and pay fine of Rs.500/-, and in

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default, to suffer further rigorous imprisonment for

three months; and

(ii) Section 392 IPC and sentencing him to suffer rigorous

imprisonment for seven years, and pay fine of Rs.300/-

and, in default, to suffer further rigorous imprisonment

for two months; both sentences to run concurrently.

2.

Shorn of unnecessary details, facts which emerge from the

prosecution case are as follows:

2.1.

First informant, Ila Kantilal Mehta, PW-1 is the sister of

deceased Bharti Kapurchand Shah (for short “Bharti”). Bharti a widow

living alone hired two servants namely, (Radhe i.e. Appellant and one

Mukesh) eight days prior to the incident. On 08.09.2011, PW-1 visited

Bharti, saw one servant, a dwarf with dark skin complexion and upon

inquiry came to know that his name was Radhe (Appellant) and the

name of the other servant was Mukesh. That their working hours in

Bharti’s flat were 9:30 to 11:30 am, 3:00 to 4:30 p.m. and again from

9:00 to 10:30 p.m.

2.2.

On 11.09.2011 (Ganesh Visarjan day) at 10:00 a.m. husband

of PW-1 spoke to Bharti on phone. On the same day PW-1 called Bharti

on two occasions i.e. 9:30 p.m. and 12:30 a.m. (midnight), but she did

not answer or reply. Hence on 12.09.2011 PW-1 called PW-6, Hansika

Patel, neighbour of Bharti and told her that since Bharti was not

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responding to her calls. She should check on her well being. PW-6

after checking on Bharati’s door told PW-1 that the door bell was

switched off and it was locked from inside.

2.3.

PW-1 alongwith her husband reached Bharti’s flat, opened

the door with a duplicate key, entered inside and saw Bharti lying in

the bedroom with her mouth tied with a nylon table cloth and her

tongue protruding outside alongwith strangulation marks and slight

bleeding injuries. That her gold chain and gold bangles were missing.

PW-6 called and informed the police about the scene of offence. PW-1

lodged first information report (for short “FIR”) and thereafter

criminal law was set into the motion.

2.4.

PW-20 - ASI Shashikant Padwal, Investigation Officer (for

short “IO”) reached the spot of incident with a photographer. He

conducted Spot panchanama (Exh.21) in the presence of PW-4 Deepak

Nanubhai Painter and recovered articles namely, a blue bedsheet

(gown) (Article-A), Table Cloth (Article-C), Blue Bedsheet (Article-J),

a knife (Article-L) from under the washing machine, sealed envelope

containing bill/invoice (Article-H), diary with entry in it as “Radhe

servant start” (Article-D), Gujarati Newspaper “Janmabhoomi”

(Article-F) on which two mobile numbers were written. PW-20 carried

out Inquest panchanama (Exh.15) in the presence of two pancha

witnesses. He sent the dead body of Bharti to Cooper hospital, wherein

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the after-examination Doctor decla