( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CONFIRMATIN CASE NO.1 OF 2007 CONFIRMATIN CASE NO.1 OF 2007 CONFIRMATIN CASE NO.1 OF 2007 The State of Maharashtra .. Appellant V/s Dnyaneshwar Haribhau Kulal .. Respondent WITH WITH WITH CRIMINAL APPEAL NO.464 OF 2007 CRIMINAL APPEAL NO.464 OF 2007 CRIMINAL APPEAL NO.464 OF 2007 Dnyaneshwar Haribhau Kulal .. Appellant V/s The State of Maharashtra .. Respondent Mr.A.R.Patil, APP for the State. Mr.Rajan Salvi, for the Respondent in Confirmation Case No.1/2007 and for the Appellant in Criminal Appeal No.464/2006. CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & CORAM : DR.S.RADHAKRISHNAN, & SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. DATE OF RESERVING JUDGMENT: 5TH OCTOBER, 2007 DATE OF RESERVING JUDGMENT: 5TH OCTOBER, 2007 DATE OF RESERVING JUDGMENT: 5TH OCTOBER, 2007 DATE OF PRONOUNCEMENT OF JUDGMENT: 11TH JANUARY, 2008 DATE OF PRONOUNCEMENT OF JUDGMENT: 11TH JANUARY, 2008 DATE OF PRONOUNCEMENT OF JUDGMENT: 11TH JANUARY, 2008 JUDGMENT : (Per Dr.S.Radhakrishnan, J.) JUDGMENT : (Per Dr.S.Radhakrishnan, J.) JUDGMENT : (Per Dr.S.Radhakrishnan, J.) 1. The above confirmation case has been filed by the State of Maharashtra seeking confirmation of death penalty imposed upon the Accused Dnyaneshwar Haribhau Kulal by the learned Sessions Judge, Satara, by his judgment and order dated 18th November, 2006 for the offence punishable under Section 302 of the Indian Penal Code. Over and above, the accused is also convicted for two years rigorous imprisonment and to pay a fine of Rs.1000/- and in default six months R.I. for the offence punishable under Section 201 of the Indian Penal Code. As provided under Section 366 of the Cr.P.C. the proceedings have been submitted to this Court for ( 2 ) confirmation of the death penalty. The Appellant/ Accused in the above Criminal Appeal No.464 of 2006 has challenged the above judgment and order dated 18th November, 2006 convicting him and sentencing him to death. 2. The brief facts of the case are that P.W.7- Tanaji, the complainant is the resident of Kulal Vasti, Taradgaon, Taluka Phaltan, District - Satara and his father deceased Dhondiram was residing with him. They formed a joint family consisting of his brother Genba (P.W.5), their mother, their wives and children. Deceased Dhondiram had a cousin brother by name Haribhau who expired in 1972 and the present Accused is the son of Haribhau. It is the case of the prosecution that deceased Dhondiram used to go to Satoba God situate at Talewadi, Taluka Maan, and that the Accused Dnyaneshwar was under the impression that deceased Dhondiram used black magic due to which his father Haribhau expired. There used to be quarrels between them on many occasions and for about two years prior to the incident, on 3.9.2004 Genba (P.W.5) gave a missing report of Dhondiram, thereafter on the basis of FIR given by complainant Tanaji (P.W.7), criminal case bearing No.64/2004 for the offence under Section 302 & 201 of the Indian Penal Code was registered against the Accused-Dnyaneshwar. It is the case of the prosecution that Somnath Javale (P.W.12) who was working as A.P.I. ( 3 ) at Lonand at the relevant time visited the spot alongwith the photographer and the dead body of the deceased was identified by the complainant Tanaji and others to be that of Dhondiram. Thereafter the dead body was sent for post mortem report by the Investigating Officer. The clothes of the deceased were seized under the panchnama. Thereafter on 27.10.2004 on an information being received that there was a skull and other articles lying in the field of Jotibacha Inam, the Investigating Officer visited the said spot and prepared the inquest of the skull. Thereafter the skull was sent to the anatomy department of B.J.Medical College, Pune, and the said medical College had reported that the skull was that of a male person. It is the case of the prosecution that on 12.4.2005 the absconded accused was arrested, and when he was in the police custody he gave a memorandum , and on that basis the sickle and his clothes were seized. Statements of different witnesses were recorded. The seized articles were sent to the Chemical Analyser for analysis, the further investigation was carried out, and therafter, the Investigation Officer after coming to the conclusion that there was a prima-facie case against the Accused, he filed a chargesheet in the Court of J.M.F.C. The learned Magistrate committed the case to the Sessions Court for Trial. It is the case of the prosecution that the accused pleaded not guilty to the charge and claimed to be tried with a defence that of total denial. ( 4 ) 3. The prosecution appears to have examined in all 12 witnesses consisting of panchas (P.W.1, 2 and 4), Complainant (P.W.7), his brother (P.W.5), villagers (P.W.3 and 11), Dashrath (P.W.6) before whom the accused made an extra judicial confession and eye witness, doctors (P.W.8 and 9) circle officer who prepared the map (P.W.10) and the investigating officer (P.W.12). The Accused appears to have admitted the documents at Exhibits 7 to 15 and other documents before the trial Court, such as spot panchanama, inquest panchanamas, recovery panchanamas under Section 27 of the Indian Evidence Act, complaint, missing report and C.A.Certificates. 4. Mr.A.R.Patil, the learned APP appearing for the State has strongly argument for confirmation of the death penalty on the Accused. According to him the accused has committed pre-planned, calculated and cold-blooded murder. The learned APP has fully justified the judgment of the learned Sessions Judge and has pointed out following aggravating circumstances in this case which have been recorded by the learned Sessions Judge in paragraph No.59 of the judgment, warranting thereby the imposition of the death sentence:- (a) That the accused had murdered Dhondiram after ( 5 ) previous planning, namely, he got his sickle sharpened about five days earlier to the incident and in the morning of the incident the accused had been to the house of Dhondiram, threatened him in presence of his relatives that he will kill him. (b) That the crime was of extreme brutality namely, the head was removed from the body completely, with the help of sickle-article 10. It was kept in a gunny bag and was carried from place to place. (c) That the murder involves exceptional depravity namely, pulling the head out of the gunny bag by holding hair of the head, showing it to Dashrath and threatening him with the same consequences, if he speaks out to other. (d) That the conduct of the accused cutting of the neck of the she-goat before Dashrath to demonstrate how he cut the head of Dhondiram. (e) That even though there were talks to settle the effect of black magic by arranging Jatra, the accused committed murder. (f) That Dhondiram was elderly man and was Malkari (that he had taken Diksha of God Vithoba). ( 6 ) (g) That the accused absconded from the native place, for about six months. (h) That the accused committed murder when he was on bail in another murder case filed against him. 5. Referring to the observations of the learned Sessions Judge in paragraph No.60 of the Judgment, the learned APP has submitted that there are no mitigating circumstances at all relating to the accused. The learned APP has further submitted that the accused in his statement recorded u/s.313 of the Cr.P.C. has accepted all the circumstances, which are against him and establishing his guilt. According to the learned APP, even in the cross-examination of the prosecution witnesses no circumstances had come on record to mitigate the gravity of the crime. 6. The learned APP has strongly submitted that the imposition of death penalty by the learned Sessions Judge in the instant case is fully justified because the instant case falls in the category of "rarest of rare". According to him the murder was cold blooded, gruesome and heinous, because the accused had pre-planned such a heinous murder. The accused had got the sickle sharpened five days prior to the incident, he used that sickle for severing of the head of Dhondiram, the head ( 7 ) was then put in a gunny bag along with other articles and was carried out on a horse in a field. Over and above, it was shown to Dashrath and had also threatened him not to speak to others otherwise he would face the same consequences. The learned APP therefore submits that all these facts can be said to be special reasons which would warrant the capital sentence alone. In support of his submission, the learned APP has strongly referred to and relied upon the judgment of the Supreme Court in the case of Mahendra Nath Das alias Gobinda Das Mahendra Nath Das alias Gobinda Das Mahendra Nath Das alias Gobinda Das V/s.State of Assam - AIR 1999 SC 1926 V/s.State of Assam - AIR 1999 SC 1926 V/s.State of Assam - AIR 1999 SC 1926, (on which the learned Sessions Judge has also placed reliance in paragraph No.61 of his judgment). In the aforesaid case of Mahendra Nath Das Mahendra Nath Das Mahendra Nath Das, the observations of the Supreme Court in paragraph Nos.14, 15 and 16 of the judgment while upholding the death sentence are very relevant, which read as under; "14. Now coming to the facts of this case the circumstances of the case unmistakably show that the murder committed was extremely gruesome, heinous, cold-blooded and cruel. The manner in which the murder was comitted was atrocious and shocking. After giving blows with a sword to the deceased when he fell down the appellant amputated his hand, severed his head from the body carried it through the road to the police station (majestically as the trial Court puts it) by holding it in one hand and ( 8 ) the blood dripping weapon on the other hand. Does it not depict the extreme depravity of the appellant? In our view it does." "15. The mitigating circumstances pointed out by the learned Counsel for the appellant are, though the appellant himself did not state any mitigating circumstances when inquired about the same by the learned Sessions Judge, that the appellant is a young man of 33 years and having three unmarried sisters and aged parents and he was not well at that time. These circumstances when weighed against the aggravating curcumstances leave us in no doubt that this case falls within the category of rarest of rare cases. The trial Court has correctly applied the principles in awarding the death sentence and the High Court has committed no error of law in confirming the same." "16. On these facts, declining to confirm the death sentence will, in our view, stultify the course of law and justice......." 7. The learned APP for the State has also referred to and relied upon the judgment of the Supreme Court in the case of Sushil Murmu V/s.State of Jharkhand - (2004) 2 Sushil Murmu V/s.State of Jharkhand - (2004) 2 Sushil Murmu V/s.State of Jharkhand - (2004) 2 SCC 338. SCC 338. SCC 338. The facts of this case were that the accused had killed a nine year old child of another person, ( 9 ) sacrificing before Goddess Kali in a most brutal and diabolic manner for personal gain and to promote his fortunes by pretending to appease the deity. The accused at that time was also facing trial in another case involving similar accusations. The Supreme Court held that it was an illustrative and most exemplary case to be treated as the "rarest of rare cases" in which death sentence is and should be the rule, with no exception whatsoever. The Supreme Court has also observed that the superstition cannot and does not provide justification for any killing, much less a planned and deliberate one, and the death sentence was upheld by the Supreme Court. The observations of the Supreme Court in paragraph No.22 of the judgment are relevant which read as under:- "22. A bare look at the fact situation of this case shows that the appellant was not possessed of the basic humanness and he completely lacks the psyche or mindset which can be amenable for any reformation. He had at the time of occurrence a child of the same age as the victim and yet he diabolically designed in a most dastardly and revolting manner to sacrifice a very halpess and helpless child of another for personal gain and to promote his fortunes by pretending to appease the deity. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless child’s head was ( 10 ) severed. Even if the helpless and imploring face and voice of the innocent child did not arouse any trace of kindness in the heart of the accused, the nonchalant way in which he carried the severed head in a gunny bag and threw it in the pond unerringly shows that the act was diabolic of the most superlative degree in conception, and cruel in exception. The tendency in the accused and for that matter in anyone who entertains such revolting ideas cannot be placed on a par with even an intention to kill someone but really borders on a crime against humanity indicative of the greatest depravity shocking the conscience of not only any right-thinking person but of the court of law, as well. The socially abhorrent nature of the crime committed also ought not to be ignored in this case. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so described, is the question. Superstition is a belief or notion, not based on reason or knowledge, in or of the ominous significance of a particular thing or circumstance, occurrence or the like but mainly triggered by thoughts of self-aggrandizement and barbaric at times as in the present case. Superstition cannot and does not provide justification for any killing, much less a planned and deliberate one. No amount of superstitious colour can wash away the sin and offence of an ( 11 ) unprovoked killing, more so in the case of an innocent and defenceless child." 8. Mr.A.R.Patil, the learned APP thereafter referred to and relied upon the judgment of the Supreme Court in the case of Saibanna V/s.State of Karnataka - (2005) 4 SCC Saibanna V/s.State of Karnataka - (2005) 4 SCC Saibanna V/s.State of Karnataka - (2005) 4 SCC 165 165 165, wherein also the Supreme Court has upheld the death sentence of the appellant, who, while committing the said murders, was on parole in the case of murder of his first wife and was already convicted and sentenced to life imprisonment in the said earlier case. Considering all the circumstances the Supreme Court has observed that the High Court was justified and right in coming to the conclusion that the appellant’s case bristles with special circumstances requisite for imposition of the death penalty, and as such, the death penalty was upheld. 9. In support of his submissions that even the inculpatory portions of the statement made by the Accused under Section 313 of Code of Criminal Procedure can be taken into consideration by the Court, Mr.A.R.Patil, the learned APP for the State has also referred to and relied upon the following judgments:- a) Nishi kant Jha V/s.State of Bihar - 1969 Nishi kant Jha V/s.State of Bihar - 1969 Nishi kant Jha V/s.State of Bihar - 1969 Cri.L.J.671. Cri.L.J.671. Cri.L.J.671. In this case, the acceptance of inculpatory portion by the High Court and the ( 12 ) conviction based thereon was held to be valid. b) Sampat Singh V/s.State of Rajasthan - 1969 Sampat Singh V/s.State of Rajasthan - 1969 Sampat Singh V/s.State of Rajasthan - 1969 Cri.L.J.1430 Cri.L.J.1430 Cri.L.J.1430 In this case it was held by the Supreme Court that the Court can rely on a portion of statement of accused u/s.342 Cr.P.C. and find accused guilty in consideration of other evidence against him led by the prosecution, and the conviction & sentence of the appellant was upheld. c) Jethamal Pithaji V/s.The Asstt.Collector of Customs Jethamal Pithaji V/s.The Asstt.Collector of Customs Jethamal Pithaji V/s.The Asstt.Collector of Customs & Ors.- 1974 Cri.L.J.621 & Ors.- 1974 Cri.L.J.621 & Ors.- 1974 Cri.L.J.621. In this case, the Supreme Court found no infirmity in the judgment of the Bombay High Court in so far as it had accepted only the inculpatory part of the statement of the Accused, and accordingly the conviction of the accused was upheld. d) State of Himachal Pradesh V/s.Wazir Chand & Ors. - State of Himachal Pradesh V/s.Wazir Chand & Ors. - State of Himachal Pradesh V/s.Wazir Chand & Ors. - (1978) 1 SCC 130. (1978) 1 SCC 130. (1978) 1 SCC 130. In this case also it was held by the Supreme Court that the Court can rely on a portion of statement of accused u/s.342 Cr.P.C. and find accused guilty in consideration of other evidence against him led by the prosecution e) State of U.P.V/s.Lakhmi - (1998) 4 SCC 336 State of U.P.V/s.Lakhmi - (1998) 4 SCC 336 State of U.P.V/s.Lakhmi - (1998) 4 SCC 336. In this case the Supreme Court has dealt with the issue of inculpatory admissions and held that the statement of the Accused recorded u/s.313 Cr.P.C. cannot be ( 13 ) altogether ignored merely because they were advanced as a defence strategy. The Court has to give weight to the answers given by the accused, however, they cannot be made sole basis for arriving at a finding of guilt of the accused. 10. Mr.Rajan Salvi, the learned Counsel appearing on behalf of the Accused has submitted that the it will be very harsh to impose death penalty on the accused. He argued against the imposition of death penaly. According to him, the whole case of the prosecution hinges on - (a) the deposition of the PW-6 Dashrath Bhau Kachare to whom the Accused allegedly showed the severed head of the deceased Dhondiram Mahadu Kulal, (b) the recovery of Koyta allegedly used in the committing of the offence and recovered at the instance of the Accused, (c) the recovery of the clothes allegedly worn by the Accused while committing the offence and recovered at his instance from his house, and (d) the incriminating replies to the questions put to the accused while being examined u/s.313 of the Code of Criminal Procedure. ( 14 ) 11. Firstly, the learned Counsel for the Accused has submitted that the deposition of PW-6 Dashrath does not inspire confidence and does not appear to be truthful because as per his version the accused showed him the severed head and threatened him not to disclose it to anybody and carried away a she-goat belonging to one Tanaji Dhaigude which was later beheaded before PW-6. According to him when a case is dependent on the testimony of a single witness proving circumstantial evidence it is very much necessary to scan and scrutinize his testimony. The learned Counsel has further submitted that before convicting a person on a sole testimony of a witness, the Court must have implicit faith and reliance on his testimony. The learned Counsel for the Accused has pointed out that the statement before the police u/s.161 was made on 16.4.2005 almost 7 and half months after the murder, and according to him during all this period he never disclosed this to the police or his family or family members of the deceased inspite of being their relative, and after the accused was arrested on 12.4.2005 he came forward with this version. The learned Counsel for the Accused has submitted that if the PW-6 mustered enough courage to tell Tanaji Dhaigude regarding the murder committed alleged by the accused then there was no reason why he did not tell this to the police earlier. According to him the behaviour of the PW-6 was not like ( 15 ) a terrified person, and such a unusual behaviour of PW-6 makes his evidence totally unreliable. The learned Counsel Mr.Salvi has further submitted that even the Tanaji Dhaigude was not examined to corroborate the testimony of PW-6. Mr.Salvi submits that the anomalous behaviour of the accused firstly showing the head and then threatening not to disclose to anybody was hard to believe. According to him there was no reason why the accused should intimidate PW-6, and that the corroboration to the testimony of PW-6 was not received either from Tanaji Dhaigude or from earlier statement made by himself before the police i.e.Section 157 of the Indian Evidence Act. The learned Counsel Mr.Salvi has further submitted that in the instant case the former statement made to the police is not exhibited and does not form part of paper book, and hence it is unsafe to rely on the testimony of uncorroborated witness. 12. Secondly, the learned Counsel Mr.Rajan Salvi appearing on behalf of the accused has further submitted that, though as per the prosecution’s case the Koyta with which the head of the deceased was severed by the accused was hidden by the accused and it was recovered at the instance of the accused, the said recovery of Koyta was doubtful and cannot be held against the accused. He submits that the panch witness does not mention about sealing of the alleged Koyta at the spot from which it was allegedly recovered. According to him ( 16 ) in the recovery panchnama at Exh.27 page 68 of paper book there is only mention of affixing labels. The learned Counsel submits that though the PW-3 Madhukar Anand Gaikwad had stated in his evidence that the Accused had got the Koyta sharpened and repaired from him at his workshop, the Koyta was shown to this witness on 15.4.2005, which shows that the Koyta was not sealed at the spot and such non sealing is fatal to the prosecution case. . Referring to the deposition of the panch witness wherein the said panch witness has stated that there were blood stains on the blade of Koyta, Mr.Rajan Salvi, the learned Counsel for the Accused has however submitted that the C.A.Report (Exh.46 page 102 of paper book) does not state about the blood stains and no blood is detected on Koyta. Thereafter, the learned Counsel Mr.Salvi has submitted that the panchnama prepared by the police does not reflect the true account of the Panchanama. According to him if the recovery panchanama ended at 10.45 a.m. and it took half an hour by jeep and then walking around 1 KM to the place of alleged recovery, then the recovery panchanama ought to have started atleast 1 and half hours after 10.45 a.m. i.e. at 12.15 p.m. and not at 10.45 a.m. as stated in the panchanama. The learned Counsel has further submitted that the alleged recovery is from an open place accessible to all and not from a place which is in the exclusive possession or over which the Accused has exclusive control, and that such a delayed recovery ( 17 ) after a period of 7 and half months after the offence ought to be looked at with suspicion. In support of his arguments that the recovery of Koyta without blood stains will not support the prosecution case, the learned Counsel for the Accused has referred to and relied upon the judgment in the case of State of State of State of Karnataka V/s.Dastagirsab and Others - 1981 Karnataka V/s.Dastagirsab and Others - 1981 Karnataka V/s.Dastagirsab and Others - 1981 CRI.L.J.1157. CRI.L.J.1157. CRI.L.J.1157. 13. With With With regard to the third submission of recovery of blood stained clothes of the accused, the learned Counsel for the Accused has submitted that the recovery of blood stained clothes at the instance of the Accused is doubtful and cannot be held against the Accused because, according to him, though the recovery panchanama and the Deposition of PW-1 speaks about the recovery of clothes of