1 cri.appeal no.652-518-627 of 2004 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 652 OF 2004 Shri. Rafik Babu Shaikh, aged 23 yeas, residing at Kharade Colony, Karad at present in Satara Jail. ... Appellant Versus The State of Maharashtra, (At the instance of Umbraj Police Station, Satara) ... Respondent WITH CRIMINAL APPEAL NO. 518 OF 2004 Shri. Shantanu Sitaram @ Anil Divekar, aed about 24 years, residentof 38/39, Somwar Peth, Karad, District Satara (In Jail custody at Satara). ... Appellant Versus The State of Maharashtra ... Respondent WITH CRIMINAL APPEAL NO. 627 OF 2004 Deepak @ Ganesh S. Patil, aged about 19 years, resident of 23/24, Somwar Peth, Karad, Dist. Satara (At present in Dhule Jail) ... Appellant Versus 1. The State of Maharashtra 2 cri.appeal no.652-518-627 of 2004 (At the instance of Umbraj Police Station, Satara), 2. Sambhaji Mane, Rajhans Khatav, Taluka Khatav, Dist. Satara ... Respondents Mr. Abhaykumar Apte, Advocate appointed for appellant in Criminal Appeal No. 652 of 2004. Mr. Vishal Kolekar for appellant in Cri. Appeal No. 518 of 2004 and 627 of 2004. Mr. P.S. Hingorani, A.P.P. for State. CORAM : NARESH H.PATIL & K.U. CHANDIWAL,JJ. DATED : JULY 21, 2011 JUDGMENT (Per K.U. Chandiwal,J.): 1. The original accused no. 1 to 3 have by these three appeals questioned the conviction and sentence recorded by the learned Additional District Judge, Satara in Sessions Case No.135 of 2001 by judgment dated 4th March, 2004, convicting them to suffer R.I. for life and to pay fine for the offence punishable under section 302 read with 34 of I.P.C. to suffer RI for three years and fine for offence under section 201 read with 34 of I.P.C. and for 3 years and fine for offence under section 120B of Indian Penal Code. The substantive sentences to run 3 cri.appeal no.652-518-627 of 2004 concurrently. 2. The appellant Shantanu married deceased Supriya on 28.4.1999, which was initially a love affair, turned into an arranged marriage from both sides. During the wedlock, Supriya delivered female child who was 8 months old on the date of incident dated 23.12.2000. The deceased Supriya during her stay with her parents disclosed about the conduct of the accused/appellant Shantanu (her husband), that he returns late in night, consumes liquor and has illicit relations with other ladies. 3. On the fateful night at about 8.30 p.m. Shantanu came to parental home of Supriya with his car and insisted that they would go out for taking round and took her for the drive along with daughter Mrunal. Supriya was even not allowed to change her attire as she was on gown, but at the instance of Shantanu she hurriedly joined him. Since the couple did not come in expected time, the estranged parents of Supriya contacted parents of Shantanu to know whereabouts of the couple. However, they informed that they have not yet returned. At 11 pm Bhalchandra Phadnis, father of Supriya received a phone message from the house of Shantanu that in the area of Shamgaon village, the couple has been robbed in the vehicle itself. Consequently, father, along with 4 cri.appeal no.652-518-627 of 2004 Shantanu's brother Kalyan, one Manohar drove in trax for the area of Shamgaon village. At about 11.45 to 12.00 in the midnight and reached the spot where the fiat car was found. The police and some villagers had already assembled. Supriya had ligature marks at her neck near throat, her tongue protruded. Her ornaments were robbed. She was dead. Bhalchandra was informed that Shantanu being injured has been shifted to Krishna Hospital for treatment. The parents were worried about the infant Mrunal. Inquest of dead body was drawn and after post mortem, it was cremated. 4. The police officers were under the impression of offence of robbery as was projected by Shantanu. The spot panchanama (Exh. 103) was drawn. The vehicle was away from tar road at 450 ft. of the ghat (hillock). The blood stained earth, simple earth, one pair of chappals, yellow cloth piece normally used for cleaning the vehicle, one piece of such yellow cloth near car was taken charge. The investigator contacted the accused Shantanu at Krishna Hospital at 1.30 am. His apparels were taken charge under panchanama Exh. 61. The apparels of deceased were taken charge under panchanma Exh. 62 which contained pink colour gown, white petticoat, multi colour under wear. On 26.12.2000 the investigator collected post mortem report. The samples of vomiting 5 cri.appeal no.652-518-627 of 2004 detected in the car were collected under panchanmaa Exh. 63. The seized items were sent under a forwarding letter to the office of Chemical Analyzer. Till this stage of investigation, the investigator could not trace the suspects. However, since Shantanu informed that robbers were 3 in number of the age group of 20 to 27 years, with jean pant, search was made. On 28.12.2000 the accused Shantanu was interrogated as he was discharged from the hospital. During investigation it revealed that gold ornaments on the person of Supriya consisted of two gold bangles (patlis), 4 gold bangles, one Mangalsutra, one chain, two ear rings, one gold badam of aum shape, one wrist watch, while Rs. 1000/- was allegedly robbed from Shantanu as stated by him. 5. On 29.12.2000 Investigator Mhase called Shantanu to police station and interrogated him. However, the accused could not give correct and coherent account of the events in sequence, his replies were irresponsible and evasive. It was also revealed that inspite of his wife traveling, Shantanu allegedly gave lift to two persons. PSI Mhase suspected this conduct as accused could not offer explanation as to why for, the accused has gone with his wife at such lonely place at Shamgaon Ghat, 18-20 km away from Karad. The Investigator also 6 cri.appeal no.652-518-627 of 2004 found the explanation of the injuries sustained by Shantanu was not satisfactory. 6. Due to consistent interrogations, accused Shantanu on 30.12.2000 at about 1.30 am broke down and disclosed the events in sequence as to how he planned to eliminate Supriya by taking assistance of his close aide accused no. 2. Rafique and accused no. 3 Dipak @ Ganesh. Consequently accused Shantanu, Rafique and Deepak were put under arrest in the morning at 4.45 a.m. on 30.12.2000. Rafique is rickshaw driver ferrying bakery items of accused Shantanu to the destination. Deepak was unemployed and was sitting at bakery of Shantanu. 7. The investigation revealed some of the ornaments of deceased to be with Rafik, who has in turn handed over the same to his wife Nilopher, the absconding accused. She had mortgaged/pawned few of them with Dapoli Urban Coop. Bank and availed of loan. 8. On 31.12.2000 the accused no. 3 Deepak was interrogated. Based on his disclosure statement Exh. 117, near villaghe Koparde, near tar road of Masur to Karad, handgloves, handkerchief partly burnt were traced with ashes. A battery was taken charge from the Eastern side of 7 cri.appeal no.652-518-627 of 2004 the road. Apparels of accused Deepak, rope used in commission of offence were taken charge under panchanama. Fiat car (MH 10 0236) was seized as was produced by the father of Shantanu (Exh. 65). Statement of various witnesses were recorded. Injury certificate of Shantanmu was obtained. stick used in commission of offence was taken charge at the behest of accused no. 2 Rafik (panchanam Exh. 93). Two pieces of nylon ropes, one knife with blood stains was taken charge. Since incriminating material was collected at the instance of wife of accused no. 2 namely Nilopher, she was arrayed as accused no. 4. A map of place of incident was drawn (Exh. 68). The medical officer on 8.3.2001 opined that ligature mark found on the neck of the deceased could be possible with nylon rope (Exh. 98). The seized gold ornaments were mixed with identical ornaments and in the presence of Executive Magistrate, the parents identified them to be belonging to Supriya. After completion of entire investigation, chargesheet against accused/appellant was filed before the learned Judicial Magistrate, First Class and it was committed to the learned Sessions Judge at Satara. 9. Charge below Exh. 46 was explained to each of the accused appellant. The accused pleaded not guilty to the charge in their respective pleas (Exh. 47, 48 and 49). PW 6 and few villagers, 8 cri.appeal no.652-518-627 of 2004 checked Supriya, felt warmness in her body, felt that she was alive but unconscious. She had two ligature marks around her neck. Her eyes were closed. Mouth was open. Few persons stayed and complainant Sambhaji returned to Shamgaon, to ensure back journey to Shamgaon Ghat with accused Shantanu and his daughter Mrunal to the spot of incident by a jeep. By the time they reached near the vehicle fiat car, with Shantanu and Mrunal, it revealed that Surpiya was dead. Consequently Shantanu and his daughter Mrunal were taken to Masur Police out post. The accused was sent to Masur Primary Health centre and then to hospital at Karad. In the meantime, based on communication of robbery and murder, the police officer Mhase of Umbraj police station rushed to the spot of incident. 10. The defence of accused No. 1 Shantanu is of total denial and false implication by the police in order to avoid criticism of non-detection of crime. The witnesses have deposed against him due to fear and pressure of police. He had nothing of the strained relations with his wife Supriya nor she complained it at any time. He always used to take Supriya for drive in his car and in consequence on the fateful night also he took Supriya and their daughter Mrunal to Gajanan Housing Society at Oglewadi Road and then upto Ghat which according to him was a 9 cri.appeal no.652-518-627 of 2004 routine travel. The accused reiterated that on the fateful day three unknown persons stopped his car by giving signal by raising hands to stop. The said unknown persons told him that their friend has met with an accident in the ghat and requested him to give lift in his car and therefore, he allowed them to occupy the back seats. Thereafter when his car went ahead for some distance, said unknown persons sitting behind him threatened him with a knife and asked him to drive and take the car as stated by him and accordingly he drove ahead the said car. When they reached in the Shamgaonghat, the said unknown persons asked him to take the car to the way side and after the car stopped at the way side place, he was assaulted on his head from back side with some weapon. Due to that he received bleeding head injury and his blood sprinkled and fell on the hinges. A wrist watch and Rs. 1000/- were snatched. At the same time, person who was sitting on the backside of his wife, put noose around his wife's neck and tightened the said noose. He opened the door while those three unknown persons were still in the car and came out of the car with his daughter Mrunal and ran towards Western side. Then towards back side. He along with his daughter ran to the Eastern road and waived to one motorcycle rider but the said motorcycle did not stop. A truck arrived thereafter and he stopped the 10 cri.appeal no.652-518-627 of 2004 said truck by waiving with hands and requested its driver to help him and travelled in the said truck upto Shamgaon. 11. The defence of accused no. 2 Rafik is also of total denial and false implication by the police. He claims, Nilopher stayed with him for few days but was not aware of her activities. Accused no. 3 Deepak also had defence of total denial and false implication by the police. He asserted that the prosecution witness has stated against him under pressure due to fear of police. He is not concerned with the offence. 12. We have extensively heard three learned defence counsel representing individual accused appellant and the learned A.P.P. We have read the entire evidence, Perused original documents. Following points arise for our consideration : 1. Whether Supriya Shantanu Divekar died homicidal death? 2. Whether the prosecution proved that accused nos. 1 to 3 in furtherance of their common intension on 23.12.2000 in Shamgaonghat in the area of village Shamgaon, Taluka : Karad, District Satara causing death of Supriya knowingly and intensionally that it was imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and committed such act thereby 11 cri.appeal no.652-518-627 of 2004 incurring risk of causing death to Supriya, punishable under section 302 read with 34 of Indian Penal Code. 3. Whether the prosecution has proved that with intention to screen themselves from legal punishment, the accused attempted disappearance of evidence punishable under section 201 read with 34 of Indian Penal Code? 4. Whether the prosecution proves that preceding one month from 23.12.2000 at Karad, accused nos. 1 to 3 planned to do illegal act of voluntarily and intensionally causing death of Supriya, wife of accused no. 1 Shantanu punishable under section 120B of Indian Penal Code? 5. What order? FINDINGS POINT NO. 1 Yes POINT NO. 2 Proved. POINT NO. 3 Proved. POINT NO. 4 No. POINT NO. 5 As per final order. REASONINGS 13. The prosecution case rests on circumstances. In order to establish the guilt of the accused, 30 witnesses are examined by the prosecution as under : Witness No. Name of witness Particulars PW 1 Pramod Sheth Manager of Dapoli Urban Coop. Bank Loan grant to Accused no. 4 Nelophar by mortgaging gold in bank. PW 2 Shantaram Shinde Panch for gold ornaments seized at Dapoli Urban Coop. Bank. 12 cri.appeal no.652-518-627 of 2004 PW 3 Bhagyashri Phadnis Mother of deceased. PW 4 Shankar Jagdale Panch - for recovery from Rafiq Shaikh at his residence. PW 5 Vasant Khandelwal Goldsmith-Father of deceased purchase gold ornaments from his shop PW 6 Sambhaji Mane Complainant-Not a Eye witness PW 7 Ashok Choudhari PSI - Recorded the FIR PW 8 Dattatray Parve Panch- Hostile for recovery of stick and rope PW 9 Makarand Mukhedkar Goldsmith- father of accused no. 1 purchased gold ornaments from his shop PW 10 Dhondiram Jadhav Doctor (Cottage Hospital Karad)- Conducted postmortem and gave treatment to accused no. 1. PW 11 Mahendra Bhuvad Worker of Petrol Pump - Accused no. 2 had been to Petrol pump with rickshaw to get petrol for rickshaw. PW 12 Avinash Sankpal Panch-Fiat car - seizure PW 13 Uday Gizare Priest - He performed the marriage of deceased and accused no. 1 and stated that accused no. 2 and 3 were in company with accused no. 1. PW 14 Ram Bhise He heard about the plan in hotel where accused no. 1 to 3 planned to murder Supriya on 22.12.2000 at Prajakta Hotel situated at Karad Koparde Road at around 1.00 pm. PW 15 Mahesh Devale Panch - specimen signature of accused no. 4 was taken before him. PW 16 Sanjay Mulik Clerk of Court who acted as Special Judicial Magistrate for identification of parade of gold ornaments. 13 cri.appeal no.652-518-627 of 2004 PW 17 Siddeshwar Kaddare Panch - Rs.6000/- recovered from accused no. 4 (Nilopher). PW 18 Rajaram Chavan Panch - Hostile for accused no. 3 shown battery, hand gloves and handkerchief. PW 19 Ruknuddin Parkar He put his signature on document identified accused no. 4 for the bank from where accused no. 4 had taken gold loan. PW 20 Popat Patil Panch- Test of identification parade of ornaments. PW 21 Kisan Yadav Panch - Disclosure made by accused no. 2 while producing articles to police officer. PW 22 Santosh Shete Photographer - He had taken photo of accused no. 2 while producing articles to police officer. PW 23 Balasaheb Chavan Panch - for accsued no. 3 shown battery, hand gloves and handkerchief and cloths from his residence on 31.12.2000 Exh. 117 dt. 31.12.2000 at instance of accused no. 3 recovered battery, handgloves etc.. PW 24 Mahadeo Chavan Photographer for events of panchanama (Exh.117). PW 25 Pandharinath Bahirat Head Constable carried muddemal to Pune for C.A. PW 26 Pralhad Patil Police Patil - provided lady panch for inquest panchanama. PW 27 Dipak Pandit Handwriting Expert concerning bank documents produced by PW 1 purportedly executed by Nilopher and sample admitted ..... (Exh. 145/147) PW 28 Shrirang Gaikwad Police Head Constable - carrying muddemal to Pune for C.A. PW 29 Bhalchandra Phadnis Father of deceased 14 cri.appeal no.652-518-627 of 2004 PW 30 Kondibhan Mhase Investigating Officer 14. At the outset we must observe that though this is a case of circumstantial evidence, the I.O. conducted detailed investigation and to the best of his ability he collected all material to establish the guilt of the accused appellants. Suspicion in the mind of PW 30 Investigator raged due to the fact that in near past or in December, 2000 no robberies had taken place in Shamgaonghat, nor it was known as notorious spot for the decoits. The ring of suspicion pointed needle to accused Shantanu due to his unsuitable replies and indigestible behaviour to take at odd hours his wife in gown to destination of 18 km away from Karad. PW 26 Pralhad Patil is police Patil of Shamgaon. He had visited the spot in the late night of 23.12.2000. He asserts Shamgaon is 19 km away from Karad. If one has to travel from Karad to Shamgaon, he has to cross villages Gajanan Society, Oglewadi, Karavadi, Chinchacha Mala etc. Village Shamgaon is at the distance of 1.5 km. from the place of incidence and one has to travel from the area of ghat (hills). He confirm the incident in question was the only mishap in the area of Shamgaon from 1975 till 2000. There is no place of sight seeing on the road. The temple is situated at centre area of ghat in the depth of 100 ft. in the area of valley. Curiously it is not the case 15 cri.appeal no.652-518-627 of 2004 of the accused that he had gone for glimpse of Mahadeo temple. 15. The suspicion to character of accused Shantanu nursed by Supriya is highlighted by estranged parents PW 3 Bhagyashri and PW 29 Bhalchandra. The family of accused and of Supriya are affluent and known in the area of Karad. In the marriage, parents of Supriya gifted several gold ornaments as part of love and affection to Supriya. These gold ornaments were of daily use which in natural parlance were on her body. Supriya was not sailing well due to dubious characteristics developed by Shantanu and she even insisted her father to search for a job in a bank since she was M.Com. and computer expert. This shows her mental set up of frustration, she remain at parental abode due to stressful atmosphere. The circumstances illustrates, Supriya has became obstacle in the vagabond, wayward behaviour and conduct of the accused and he systematically engineered a well knit plan to eliminate her under proper preparation by taking assistance of his close aide accused nos. 2 Rafiq and accused no. 3 Deepak. The defence taken by the accused no. 1 that he does not know accused nos. 2 and 3 is belied by the witnesses and even accused nos. 2 and 3 did not dispute acquaintance with accused no. 1. 16 cri.appeal no.652-518-627 of 2004 16. The evidence of above two witnesses coupled with the version of Dr. Jadhav PW 10, post mortem notes at Exh. 97, inquest panchanama Exh. 57, leaves no doubt that the death of Supriya was unnatural and homicidal. The medical report of Dr. Chivate who held autopsy, demonstrate the following injuries on the body of deceased : (1) Ligature mark on anterior aspect of neck on thyroid cartilage upper 1/3 going midline, horizontally on either side crossing midline marging towards right side measuring about 11 cm x 3/4th cm red in colour. (2) Ligature mark below cricoid cartilage 2 cm below injury no. 1 going horizontally on either side encircling lower part of neck cricold cartilage measuring 25 cm. 3/4th cm red in colour cut section of both ligature mark shows white glistering. Parchment paper like band haematoma on both side present neck venus full of blood. (3) Contusion 1/2 below injury no. 2 on right side 2.5 cm x 0.5 cm red in colour. (4) Contusion on post part of neck L/3 left side 1.5 cm x 1 cm red in colour. (5)Abrasion on post part of neck right on trapozious muscle lower part of neck, 2 in number 1/2 cm apart from each other measuring 1 cm - 0.75 cm red in colour. (6) Abrasion on lower end of left ear lobule 1/2 cm x 1/4 cm red in colour. 17. In the opinion of the Medical Officer, the injury nos. 1 and 2 are caused by soft flexible elongated material and injury nos 3 to 6 are 17 cri.appeal no.652-518-627 of 2004 caused by hard blunt object. The death was caused due to asphexia due to strangulation. Dr. Jadhav PW 10 has opined the rope can be an instrument used for strangulation. Hence, we hold that the death of Supriya was homicidal and unnatural. This answers point no.1 in the affirmative. POINT NOS. 2 TO 5 : 18. The tenor of evidence, cross examination, illustrate accused No. 1 Shantanu, inspite of strained relations went to matrimonial home and insisted Supriya to join him hurriedly without allowing her even to change her apparels. This shows his haste and the mind set up. He wanted to avoid queries of brother and parents of Supriya though at the material time at 8.30 p.m. they were in the house but in other rooms. Before the brother or PW 29 father could realize foul design, the accused successfully sneaked Supriya in his fiat car. Bhagyashri PW 3 could not dream that her son in law would go to such extreme stage as the bickering between Supriya and Shantanu was normal matrimonial wear and tear of life. With a hope of fast re-union of the couple, she has apparently allowed her daughter to join the accused unmindful of the written and waiting fate. 18 cri.appeal no.652-518-627 of 2004 19. Accused Shantanu waived hands to PW 6 Sambhaji at 10.30 pm in the ghat. PW 6 did not stop his motorcycle and went ahead to S.T. stand at Shamgaon village. The accused followed him in a truck at the said place with his daughter in an injured condition. PW 6 and his friends on reaching the spot found Supriya in gasping condition unconscious. They thought that she could survive and consequently she was lifted from the front seat of the car. Later she collapsed to the injuries. In normal circumstances, even if there was brutal attack on the couple, it is hardly conceivable that husband could leave the place leaving his credulous, undefended wife at the mercy of unknown persons in injured condition. The accused could deal with the brutalities in the same retort, but he surrendered by making a show and ran away from the spot, that too without offering resistance, as part of a game plan. The Investigator and the spot panchanama does not support the version of the accused of suffering any assault from the intruders on front portion of his body as no blood stains were found near driver seat. It is curious, the accused could knew that his blood after the assault has sprinkled to the hinges of the rear gate of the car. The stick which was recovered at the instance of accused no. 3 Deepak had blood stains (Exh.93). The nature of assault by such stick in all possibilities could not be fatal and 19 cri.appeal no.652-518-627 of 2004 knowingly such weapon of assault was chosen to propagate and magnify the events. The injuries of accsued no. 1 were simple. PW 6 was totally new to the accused. He has no reason to