*1* conf.3.10.judgment.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CONFIRMATION CASE NO.3 OF 2010 IN SESSIONS CASE NO.365 OF 2008 State of Maharashtra. ) At the instance of Santacruz ) Police Station vide there ) C.R. No.68/2008. )..Applicant/Complainant -Versus- Sandeep Sonu Maingade. ) Aged 30 years, Indian Inhabitant, ) Occ: Service, permanent resident of ) Post Bhoke, Mathwadi, ) Taluka & District : Ratnagiri. ) Maharashtra. )..Respondent/Accused WITH CRIMINAL APPEAL NO.607 OF 2009 Sandeep Sonu Maingade. ) Aged 30 years, Indian Inhabitant, ) Occ: Service, permanent resident of ) Post Bhoke, Mathwadi, ) Taluka & District : Ratnagiri. ) Maharashtra. )..Appellant/Accused -Versus- State of Maharashtra. ) At the instance of Santacruz ) Police Station vide there ) C.R. No.68/2008. )..Respondent ........... Mr.Y.S.Shinde, Additional Public Prosecutor, for the State. Mr.Khan Abdul Wahab, for the accused. .......... *2* conf.3.10.judgment.sxw CORAM : B.H.MARLAPALLE & A.M.THIPSAY, JJ. Date : 27 th & 28 th , April, 2011 . ORAL JUDGMENT (Per B.H.Marlapalle, J): 1 This reference has been made by the learned Additional Sessions Judge for Greater Bombay under Section 366 of the Code of Criminal Procedure as the sole accused Shri Sandeep Sonu Maingade has been awarded the death sentence, on his conviction under Section 302 of the Indian Penal Code. He has also been convicted and sentenced for the offence punishable under Section 392 of the Indian Penal Code in Sessions Case No.365/2008. The said order of conviction and sentence passed on 06.05.2009 has been challenged by the accused in Criminal Appeal No.607/2009 filed under Section 374(2) of the Code of Criminal Procedure. 2 As per the prosecution case, PW-1 Niraj S/o Dilip Randeri was originally residing in Flat No.602 of Garden Crest Building, West Avenue Road, Santacruz (West), Mumbai along with his parents and wife from the year 1982 onwards. However, due to some domestic reasons, PW-1 Niraj along with his wife shifted to Flat No.14, Seep Apartments, Sharli Rajan Road, Bandra (West), Mumbai-400050 and his *3* conf.3.10.judgment.sxw parents continued to stay at Flat No.602 of Garden Crest. His father Dilip was of about 72 years of age and his mother Varsha was around 70 years of age. Both of them had ailments and therefore, they had engaged the accused as a domestic help. Dilip Randeri was also a partner in the business along with his son PW-1 and even though PW-1 along with his wife had shifted from Flat No.602, he or his wife used to visit his parents frequently. Duty hours of the domestic help were from 7:00 a.m. to 10 p.m.. On 16.02.2008, PW-1 received a call from his paternal aunt Smt.Jayshriben Mehta to the effect that she was trying to contact her brother Dilip on his phone but there was no response. PW-1, therefore, called on the landline telephone number (26483787) at Flat No.602 as well as the mobile phone of his mother bearing number 9870478928 but there was no response. He, therefore, reached at Flat No.302 at about 7:30 p.m. on the same day and obtained the duplicate key from the house of Mr.Devang Mehta staying in the opposite Flat No.601 and opened the main door of Flat No.602. When PW-1 entered the flat, he noticed the dead body of his mother in the kitchen and in the dry balcony attached to the kitchen he noticed the dead body of his father. He did not find the accused in the flat. He, therefore, contacted the Police. PW-12 Shashikant Padave, PSI who was on the night duty on 16.02.2008 received the message on his mobile phone about the incident and therefore, he reached the spot around 8:30 p.m.. He recorded the complaint of PW-1 and obtained C.R. number from the *4* conf.3.10.judgment.sxw Santacruz Police Station as C.R. No.68/2008. He also obtained A.D.R. number i.e. 13/2008. He prepared the inquest-cum-spot panchanama at Exhibit-12 and sent the dead bodies for postmortem. He also collected some articles from the spot along with four curtains, one gold earing and one gold ring. He handed over the further investigation to Mr.Dhumal, PI. Simultaneously, a message was also given to the D.C.B., CID, Unit-9, Bandra (West). PW-13 Dilip Bhosale, PSI along with other Police personnel from the said unit and panch witnesses reached village Bhoke (Muthwadi), Taluka & District Ratnagiri on 17.02.2008 at about 4:00 p.m. and arrested the accused from his house. His personal search was taken and some gold ornaments were purportedly recovered from him. He was brought back to Mumbai on 18.02.2008 and was shown to be arrested under the arrest panchnama at Exhibit-22. On the same day, the accused was taken to Flat No.602, Garden Crest building where PW-1 Niraj was present and recovery of knife was made. The postmortem reports were received by the Investigating Officer and after completion of investigation, the charge-sheet was submitted. The charge was framed on 16.10.2008, after the case was committed to the Sessions Court. 3 The prosecution examined in all 14 witnesses to prove its case, which was based on the circumstantial evidence. PW-2 Chetan Shah, PW-7 Kukkuswamy Bokanargi, PW-8 Dilip Palav and PW-9 Shivaji *5* conf.3.10.judgment.sxw Bhosale were the panch witnesses. PW-3 Santosh Maingade was a friend of the accused, PW-5 Devang Mehta is neighbour and owner of Flat No. 601 in Garden Crest building and PW-6 Raju Kadam was the domestic help in the house of PW-5. By way of medical evidence, the prosecution examined PW-4 Dr.Nitin Barve, PW-10 Dr.Sharad Ruia and PW-11 Dr.Shivaji Kachare. PW-10 Dr.Sharad Ruia had examined the accused on 18.02.2008 and noticed some injuries on his person. The medical certificate at Exhibit-15 was issued on 07.03.2008 and the same was brought on record through the evidence of PW-4 Dr.Barve. Three Police Officers i.e. PW-12 Shashikant Padave, PW-13 Dilip Bhosale and PW-14 Nandkumar Dhumal were also examined. As noted earlier, PW-12 Padave had registered the FIR as per the complaint submitted by PW-1, PW-13 Dilip Bhosale had arrested the accused at his native village in Ratnagiri district and recovered some gold ornaments and other articles from his person and PW-14 Dhumal was the Investigating Officer. 4 It was submitted by Mr.Khan, the learned counsel for the defence that the prosecution had come with a concocted story against the accused and on the basis of planted evidence by the Police. He submitted that the chain of circumstances of the prosecution was never complete and it remained broken on multiple material circumstances and that the Trial Court committed grave and manifest errors in appreciating the prosecution evidence and some of the vital links in its chain of circumstances. Mr.Shinde, the learned APP, on the other hand, *6* conf.3.10.judgment.sxw has supported the order of conviction and sentence in toto. He contended that the accused first killed Dilip and his wife and robbed the gold ornaments and cash from the flat and ran away to his native place. These were sufficient circumstances to prove the complicity of the accused, as per the prosecution. 5 The prosecution in support of its case relied upon the following circumstances:- (a) The accused was the domestic help with the deceased and he was a full-time attendant from 7:00 a.m. to 10:00 p.m. and was in employment for more than 10 years. (b) The accused was not present in Flat No.602 on 16.02.2008 when PW-1 Niraj opened the said flat and noticed the dead bodies of his parents. (c) The arrest of the accused from his village on 17.02.2008 and recovery of gold ornaments along with cash from his person immediately on his arrest and the ornaments were identified by PW-1 as being that of his parents. (d) The accused had called his friend PW-3 Santosh Maingade on telephone in the night of 15.02.2008 and informed him to give message to his wife that he would not return home in the night as his master *7* conf.3.10.judgment.sxw would be going to Shirdi on the next day. Thus, he had done preparations to commit the crime. (e) Recovery of knife and pestle (metal rod) recovered from Flat No.602 on the basis of the statement made by the accused while in custody. (f) Burn injury suffered by the accused on his right palm. (g) The accused did not furnish any explanation regarding the said burn injury. 6 PW-11 Dr.Shivaji Kachare was the Medical Officer who had conducted postmortem on both the dead bodies and signed the P.M. notes at Exhibits-28 and 29 respectively. He also placed on record before the Trial Court the Histo Pathology report and C.A. reports. The defence admitted these reports and therefore, the prosecution had discharged PW-11. As per the postmortem report at Exhibit-28, deceased Dilip died due to 100% charcoal burn and head injury (unnatural death). As per the postmortem report at Exhibit-29, deceased Varsha died due to 70% charcoal burn and head injury (unnatural death). The postmortem reports, therefore, clearly indicated that both the victims died an unnatural death and their bodies were charred. 7 Before we proceed to deal with the prosecution case against the accused, we must note that PW-11 Dr.Shivaji Kachare was discharged on admission of postmortem reports. There is no medical evidence *8* conf.3.10.judgment.sxw placed on record about the probable time of death of both the victims. There is no clear medical evidence as to whether both the victims died of skull injuries and thereafter, their bodies were set on fire to destroy the evidence or they were first assaulted and then set on fire. At the same time, it also remained mystery as to whether they were set on fire or some chemical was used to burn them. 8 PW-1 Niraj Randeri in his depositions before the Trial Court was consistent with his complaint at Exhibit-10. He stated before the Trial Court that on 10.02.2008 at about 5:30 p.m. he met his parents and collected the key of the small car and left the flat. On 11.02.2008 he again visited his parents at about 8:30 p.m.. On 14.02.2008 he had talked to his parents on cellphone at about 7:30 a.m.. But, on 15.02.2008 there was no communication between him and his parents. While he was in his office on 16.02.2008, he received a call from his paternal aunt Smt.Jayshriben Mehta stating that she was trying to contact the deceased but there was no response. He, therefore, called on the landline telephone number 26483787 of his father as well as cell number 9870478928 of his mother, but there was no response. He, therefore, came to Flat No.602 at about 7:30 p.m. and collected the duplicate key from the house of PW-5 and opened the flat of his parents. He was shocked to see the dead bodies of his parents in the kitchen area. The dead bodies were burnt and he could not identify the dead body of his father as the face was completely charred. He searched for the *9* conf.3.10.judgment.sxw accused in the flat as well as outside the building, but he was not found. He dialed telephone number 100 so as to contact the Police and the Police arrived at the spot. His complaint was recorded at Exhibit-10. He also stated that he had suspected involvement of the accused in the crime. He further stated that on 18.02.2008, when he was at Flat No.602 at about 3:00 p.m., the Police along with the accused came there and the accused took out one knife from the second drawer of the trolley of kitchen platform, which was seized by the Police in presence of the Panchas. PW-1 Niraj further stated that on 19.02.2008 he was called at the Santacruz Police Station and when he reached there, one marriage string of gold, one pair gold ear pendulum, one diamond earring, one Rudraksha chain, one locket of Saibaba and one chain having Victoria photo were the ornaments shown to him along with cash of Rs.3500/-. He stated that those articles were of his parents and approximate weight of marriage string, Rudraksha necklace and gold pendulum was 25 grams each. 9 PW-12 Shashikant Padave, PSI was the Police Officer on the night duty and immediately on receipt of the message from the wireless van at about 8:10 p.m. on 16.02.2008, he visited Garden Crest building and went to Flat No.602. He met PW-1 and also noticed two burnt human bodies. He was told by PW-1 that the dead bodies were of his *10* conf.3.10.judgment.sxw parents. He recorded the statement of PW-1 and informed the Police Station and obtained C.R. number as 68/2008. He also did the inquest- cum-spot panchnama. He sent the dead bodies for postmortem. He stated that he had taken the photographs of the place of incident by calling the Police Photographer. But, there is no evidence in this regard. Panchnama at Exhibit-12 indicates that it was drawn between 22:10 to 23:40 hours on 16.02.2008. Though it has not been exhibited but there is a sketch map of Flat No.602 drawn and placed on record along with Exhibit-12. The sketch indicates that Flat No.602 was of two bedrooms, one living room and a kitchen. Both the dead bodies were lying in the kitchen and there were blood stains on the curtains in the bed room which were recovered and sent for chemical analysis. 10 In support of its case against the accused, the prosecution has relied upon the testimony of PW-3 Santosh Maingade, PW-5 Devang Mehta and PW-6 Raju Kadam in addition to the evidence of PW-1 Niraj. PW-3 Santosh Maingade was residing at Ganesh Hanuman Galli, Gazar Bandh, Santacruz (West) and was a domestic help and was friend of the accused. He stated before the Trial Court that he was employed with one Mr.Deepak Asrani as a domestic help and landline telephone number of his employer was 26605586. He was not knowing the name of the employer of the accused though he was aware that he was employed with a Gujarathi family. His working hours were between 7:00 a.m. to the midnight. He stated before the Trial Court that on 15.02.2008 at *11* conf.3.10.judgment.sxw about 9:30 p.m. the accused had talked to him on the land-line telephone number 26605586 and requested to give a message to his wife that in the night of 15th and 16th February, 2008 he would not return home as his employer was to depart to Shirdi early in the morning. PW-3 further stated that on 16.02.2008 he went to his house around 11:30 a.m. and Sunita, wife of the accused, informed him that the accused did not return and she had visited the Garden Crest building where the accused was not found. He further stated that he along with Laxman, brother of the accused, went to Garden Crest building between 4:00 to 4:30 p.m. and did not find the accused. He mad inquiries with the neighbours but no information could be gathered. The evidence of this witness proved that the accused was occupying the home in the neighbourhood of this witness and the accused was staying with his wife as well as brother. This witness has falsified the claim of PW-1 that the accused used to sleep in the staircase of the Garden Crest building in the night after completing his duty hours. At the same time, the prosecution did not bring on record the telephone number details to corroborate the evidence of this witness. The accused had called this witness in the night of 15.02.2008 at 9:30 p.m., he would have called from the landline telephone of his master i.e. telephone number 26483787. It was possible for the prosecution to bring on record the call details of both these telephones to corroborate the evidence of this witness that he had received telephone call in the night of 15.02.2008 at 9:30 p.m.. Thus, there is no corroboration to the *12* conf.3.10.judgment.sxw evidence of this witness except his words on the circumstance that the accused had called him to pass on a message to his wife that he would not return home in the night of 15th and 16th February, 2008. 11 PW-5 Devang Mehta is a businessman and occupant of Flat No.601 of Garden Crest building. As per this witness, his flat is diagonally opposite to Flat No.602 and between the two flats main door there is a passage of 7 to 8 feet. A duplicate key of Flat No.602 was kept with him by the deceased under instructions to give the same if required either to PW-1 or his wife or the accused. He further stated that on 16.02.2008 when he was in his office, at about 6:00 to 6:30 p.m., he received a telephonic call from PW-1 stating that nobody was picking the phone from his parent’s flat and nobody was opening the flat from inside and therefore, PW-1 requested this witness to come to Garden Crest building. PW-1 also informed him that the servant of the witness by name Raju Kadam was not handing over the key, therefore, PW-1 requested him to come home. PW-5 reached Garden Crest building and saw that the key was handed over to PW-1 by his servant and PW-1 opened Flat No.602. He went inside his flat and heard screams of PW-1 and therefore, he rushed to Flat No.602. After he entered the kitchen, he saw two dead bodies naked and burnt. He got scared and returned to his flat. Though the Trial Court has accepted this witness as reliable, we have no alternative but to discard him. It has not come in the *13* conf.3.10.judgment.sxw evidence of PW-1 that he reached Garden Crest between 6:00 to 6:30 p.m. on 16.02.2008 and demanded the duplicate key of Flat No.602 from Raju Kadam and he refused to pass on the same to PW-1. In fact PW-5 has contradicted his own evidence. At the threshold PW-5 stated that the duplicate key was given to him with specific instructions to give the same if it was required by PW-1 or his wife or the accused. It has not come in the deposition of PW-1 that on reaching Garden Crest building he demanded the duplicate key to Raju and he refused to hand over the same. Hence, PW-5 is a doubtful witness. 12 Now, coming to the evidence of PW-6 Raju Sitaram Kadam who was the domestic help of PW-5, he stated before the Trial Court that his working hours were between 7:30 a.m. to 10:30 p.m.. He also stated that PW-3 Santosh and Laxman, the brother of the accused used to visit the accused in Flat No.602 and therefore, PW-6 knew them. On 15.02.2008, he was on duty in Flat No.601 and he had seen the accused at 7:30 a.m. while he was putting the clothes for drying in the balcony and again at about 7:45 p.m. on the same day in the balcony and he had talked to the accused and the accused told that he was cleaning the flower pots. This witness further stated that he left Flat No.601 at 10:30 p.m. on 15.02.2008. On the next day, this witness reported for work at 7:30 a.m.. At about 9:30 a.m., Sunita wife of accused came to Flat No. 601 and inquired about her husband. He informed her that he was not knowing the whereabouts of the accused. At about 12:00 noon, PW-3 *14* conf.3.10.judgment.sxw Santosh also visited Garden Crest building and inquired about the accused. PW-3 also inquired whether the deceased had left for Shirdi and this witness told PW-3 that he did not know about the same. At about 4:00 to 4:30 p.m., Laxman, the brother of the accused also visited this witness and demanded the key of Flat No.602, but this witness refused to handover the key. He further stated that he received a call from PW-1 Niraj informing that there was no response from Flat No.602 when he called on the landline phone as well as on cell phone. He also informed PW-1 that earlier in the day PW-3 Santosh, Laxman and Sunita had also visited Flat No.602 and asked for the key but he did not handover the same. He further stated that finally at 7:30 p.m., PW-1 Niraj himself came to the flat and this witness handed over the key to PW-1 and returned to his flat. Thereafter, this witness heard screams of PW-1 and therefore, he went to Flat No.602 and saw two dead bodies lying in the kitchen. He got scared and returned to his master’s flat. (Continued on 28 th April, 2011) The prosecution has relied upon this witness in support of its theory of last seen. It is pertinent to note that PW-6 stated to have seen the accused at 7:45 p.m. in the balcony of Flat No.602 on 15.02.2008. The accused was the domestic help with the deceased on full-time basis and he was expected to be with the deceased till 10:30 p.m. on 15.02.2008 as per his duty hours and thereafter, he would leave Flat No.602. Thus, in the normal course the accused would remain in *15* conf.3.10.judgment.sxw Flat No.602 till about 10:30 p.m. and therefore, the prosecution cannot claim that PW-6 had last seen the accused in Flat No.602 at 7:45 p.m.. In our view, this is an inconsequential circumstance as the accused was expected to be in Flat No.602 normally till 10:30 p.m.. If the accused had conveyed through PW-3 that he would not return home in the night of 15th to 16th February, 2008, why would his family members visit Garden Crest building on 18th February, 2008 so as to search him, is a question which remained unanswered by the prosecution evidence. 13 PW-8 Dilip Palav was examined by the prosecution to prove the arrest of the accused from his village in Ratnagiri district on 17.02.2008 and recovery of gold ornaments on his person immediately on his arrest. It is the case of the prosecution that the accused had disappeared and he was arrested from his native village Bhoke in Ratnagiri district on 17.02.2008 and that would be an additional circumstance against the accused. PW-8 Dilip Palav stated before the Trial Court that on 17.02.2008 he was called by PI Mr.Ghosalkar in Police Station and was asked whether he would go along with him and the Police party for a long drive towards Ratnagiri. He agreed and accompanied the Police party which left for Ratnagiri along with one more witness. As per him, after reaching village Bhoke, the Police party told him that no villager was ready to act as a Panch and therefore, he was requested to act as such in C.R. No.68/2008. After parking the jeep at village Bhoke, the Police party and the witnesses *16* conf.3.10.judgment.sxw walked down to one house with manglori tiles roof and four doors. The Police entered in the said house in search of the accused and he was found in one of the rooms. The Police asked him his name, but at that time, he started running. He was taken in custody and disclosed his name as Sandeep. PW-8 identified the accused before the Trial Court as being the same person who was taken in custody from village Bhoke on 17.02.2008. He further stated that the Police took search of the accused and in his trouser pocket, one packet was found. The packet was opened by the Police and it contained one Mangalsutra, one chain having pendent of Queen Victoria, one necklace having Rudraksha and pendent of Saibaba. He also stated that one pair of earrings (zhumkas) and one Kudi (earring) having white studded stones were also recovered from the accused and the Police seized all these five/six ornaments in different packets. In the personal search of the accused, the Police also found seven currency notes each of Rs.500/- denominations from his shirt pocket. As per this witness, the Police also noticed some injuries on the arms of the accused and one of them was a fresh injury and they appeared to be burn injuries. This witness further stated that the arrest panchanama-cum- recovery panchanama (Exhibit-22) was drawn in his presence and he signed the same. He identified