*1* conf.1.10.901.judgment.doc kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL CONFIRMATION CASE NO.1 OF 2010 IN SESSIONS CASE NO.150 OF 2008 State of Maharashtra. ) At the instance of Bharati Vidyapeeth ) Police Station, Pune ) vide C.R. No.111 of 2007. ) ..Applicant -Versus- Sandesh alias Sainath Kailas Abhang, ) Age : 23 years, Occupation : Mechanic, ) Residing at Uppar Indira Nagar, ) V.I.T. College Road, Lane No.5, Pune ) and At Post Awasari Khurd, ) Taluka : Ambegaon, District : Pune. ) Presently in languished in Yerwada Central) Prison, Pune. ) ..Respondent/Accused WITH CRIMINAL APPEAL NO.7 OF 2011 Sandesh alias Sainath Kailas Abhang, ) Age : 23 years, Occupation : Mechanic, ) Residing at Uppar Indira Nagar, ) V.I.T. College Road, Lane No.5, Pune ) and At Post Awasari Khurd, ) Taluka : Ambegaon, District : Pune. ) Presently in languished in Yerwada Central) Prison, Pune. ) ..Appellant/Accused -Versus- State of Maharashtra. ) At the instance of Bharati Vidyapeeth ) Police Station, Pune ) vide C.R. No.111 of 2007. ) ..Respondent *2* conf.1.10.901.judgment.doc ........... Ms.M.H.Mhatre, APP, for the State. Mr.Abhaykumar Apte, for the Accused. .......... CORAM : B.H.MARLAPALLE & A.M.THIPSAY, JJ. Date : 23 rd , 24 th & 25 th March, 2011 . ORAL JUDGMENT (Per B.H.Marlapalle, J): 1 The sole accused came to be tried for the offences punishable under Sections 302, 307, 397, 394, 376(e) of the Indian Penal Code and Section 25 of the Arms Act as well as Section 135 of the Bombay Police Act. The learned Additional Sessions Judge, Pune by judgment and order dated 12th May, 2010 was pleased to convict the accused for the offences punishable under Sections 302, 307, 376(e), 394 and 397 of the Indian Penal Code. For the offence punishable under Section 302 of the Indian Penal Code the accused has been sentenced to death penalty and it has been directed that he shall be hanged by neck till his death. Hence, this confirmation case by the State of Maharashtra under Section 366 of the Code of Criminal Procedure. At the same time, the accused has filed the appeal against the order of conviction and sentence for all the offences for which he has been convicted. 2 As per the prosecution case, PW-2 and PW-8 were married *3* conf.1.10.901.judgment.doc on 07.02.2007 and PW-8 was employed with a private bank at its branch in Bibwewadi area of Pune city. On 31.08.2007 the couple shifted to Flat No.301 of Purple Castle Society, Chintamaninagar, Bibwewadi, Pune as tenant and just below their flat, the maternal uncle of PW-2 was staying with his family in Flat No.202. On 10.09.2007, PW-8 came home for lunch and left the house at 1:30 p.m.. His grandmother Shalini Jadhav was also staying with them. Around 02:00 p.m. when the grandmother was watching TV, she heard door bell and therefore, opened the door of the flat. The accused told her that Saheb had sent him for repairing of car puncture. The grandmother being unaware of this assignment, she called PW-2 to talk to the accused and consequently, when PW-2 came to the main door, the accused repeated the same assignment. She informed that she had no such knowledge and he could come in the evening by which time her husband would be at home. As a matter of precaution, she also called her husband on cellphone but he did not respond. This was between 02:00 to 02:15 p.m.. By this time the accused entered into the flat, bolted the door from inside and took out a deadly weapon (Kukri) and threatened the ladies. Naturally, there was some resistance and on this the accused started giving blows, which resulted in large number of bleeding injuries on the person of both PW-2 & the grandmother. Multiple assaults were so brutal that the grandmother fell on the floor in a pool of blood. The accused demanded the ornaments on the person of the grandmother. He snatched “Mangalsutra” from the person of PW-2 and also a gold chain but he did not stop the assaults. *4* conf.1.10.901.judgment.doc PW-2 was in her fifth month of pregnancy and therefore, she tried her best to see that she would not receive any assault on her stomach. The accused further demanded to search out jewellery and cash in the house which was his main object and at that time PW-2 threw before him a purse containing gold ornaments. He collected them but at this stage when the grandmother made little movement he gave a deadly blow by the said weapon on her neck. When he demanded more cash and gold/jewellery, PW-2 informed him to search the entire house and take away whatever he wanted. He became more aggressive on her. He asked PW-2 to remove her clothes, under the threat of further brutal attack and raped her. Even thereafter he gave blows of weapon on PW-2. He then went to the bathroom and cleaned himself and fled from the flat by bolting the door from outside, just before 03:00 p.m.. After having realized that the grandmother was not alive, PW-2 with great courage managed to crawl upto the second bed room so as to give call to the maternal aunt in the flat below and she was successful in the same. Consequently, when the maternal aunt (PW-1) came to the main door of the flat, PW-2 crawled upto the main door and opened it. PW-1 immediately provided some clothes to PW-2 to cover herself and called PW-8 and thereafter, PW-8 reached home by about 03:00 p.m.. The Police were alerted and they reached the spot within a short time. PW-8 with the help of PW-1 and other relations lifted PW-2 and immediately took her to Bharati Vidyapeeth Hospital. On preliminary management of the case, PW-8 was advised to shift his wife to Ruby Hall Clinic and *5* conf.1.10.901.judgment.doc consequently, PW-2 was brought to Ruby Hall Clinic at about 5:30 p.m.. She was operated immediately and was in ICU upto 18.09.2007 and was discharged on 28.09.2007. 3 In the meanwhile, the statement of PW-1 was recorded by the Police on the basis of which, Crime No.111/2007 came to be registered with Bharati Vidyapeeth Police Station. The grandmother was declared dead and her dead body was sent for postmortem. 4 During the course of investigation, the Police brought the dog squad as well as photographer (PW-11) to the place of offence. On 11.09.2007 the Police talked to PW-2 in the hospital and on the basis of the description given by her, sketches of the accused were prepared by PW-12 (Girish Charwad). The sketches so drawn were published in the local news papers and on 19.09.2007 PW-16 (Ashok Shelke) who was attached to the Crime Branch, Pune received information that the suspect in the case was residing at the Upper Indira Nagar area. When the Police party went there and made inquiries, the suspect was not traced and the Police party came to know that the native place of the suspect was village Awasari Khurd in Ambegaon taluka. The Police party also came to know his name as Sandesh alias Sainath Kailas Abhang. The Police party, therefore, went to Awasari Khurd village and arranged the trap. At about 12:00 noon when the accused was *6* conf.1.10.901.judgment.doc coming out of his house in Abhang Mala, he was taken in custody. PW-16 asked his name and he disclosed the same as Sandesh Kailas Abhang and stated that he was staying at Upper Indira Nagar. The accused was brought back to Pune and came to be arrested at about 04:30 p.m. by PW-17 (P.N.Sonawane, Police Inspector of Bharati Vidyapeeth Police Station). The arrest Panchnama was drawn and the accused was also sent for medical examination. 5 The Inquest Panchnama of the dead body of Shalini Jadhav was drawn at Exhibit-45 on 10.09.2007. PW-7 Dr.Milind Wable conducted the postmortem and signed the postmortem report at Exhibit-40. Recoveries of gold ornaments, mobile phone and clothes of the accused as well as weapon were made. All these articles were sent for chemical analysis and finally the chargesheet came to be filed on 04.12.2007. The case being exclusively triable by the Sessions Court it was committed and charge at Exhibit-4 was initially framed on 04.08.2008. 6 The prosecution examined in all 18 witnesses and three of them i.e. PW-3 Dr.Suresh Deshpande, PW-4 Dr.Shubhada Deoskar and PW-7 Dr.Milind Wable were the medical practitioners. PW-6 Neela Talathi, PW-9 Indrajit Patil, PW-10 Rahul Gudmeti were the Panch witnesses whereas PW-14 Pandurang Kaldante and PW-15 Sadashiv *7* conf.1.10.901.judgment.doc Dhanwade were the goldsmiths. PW-5 Ujjwala Sorate was the Naib Tahasildar and had conducted the T.I. parade. PW-11 Sharad Kshtriya was the Police Photographer and PW-13 Rajendra Sawant was the Panch witness as well as a friend of the accused. The purported extra-judicial confession made to this witness was relied upon by the prosecution in support of its case. PW-16 Ashok Shelke, PW-17 Pukhaji Sonawane and PW-18 Ranjit Dhure were the Police officers. PW-18 was the incharge of Band Garden Police Station and on 11.09.2007 he had received instructions from the Deputy Commissioner of Police, Zone-II, Pune to record the statement of PW-2 while she was admitted in Ruby Hall Clinic and therefore, he had recorded the statement which was endorsed by the doctor on duty (Exhibit-73). 7 PW-7 (Dr.Milind Wable) stated before the Trial Court that the dead body of Shalini Jadhav was brought to Sassoon Hospital at 11:55 p.m. on 10.09.2007 by Bharti Vidyapeeth Police Station and he along with Dr.B.D.Mohole conducted the postmortem between 5:30 to 6:30 AM (next morning). As per him, the age of the deceased was about 65 years and he noted the following external and internal injuries on the dead body:- (1) Horizontal incised wound on right zygomatic prominence, measuring 4 x 0.5 cm tailing laterally for 2 cms. Bone deep. Angles and margins cleancut. (2) Horizontal incised wound on chin extending to right, measuring 5 x 05 cms. Bone deep angles and margins *8* conf.1.10.901.judgment.doc cleancut. (3) Tangential chopped wound, inferior angle of chin, extending downwards, measuring 14 x 10 cms. Muscle deep with avulsin of skin. Skin flap hanging, angles and margins cleancut. (4) Horizontal chopped wound, 1.5 cms. below right ear, extending posteriorly measuring 10 x 3 cms. Vertebra deep. All underlying soft tissues including carotids and jugulars severed. Angles and margins cleancut. (5) Contusions over right parietal eminence, 4 cm in diameter. Reddish purple in colour. (6) Obliquely vertical incised wound on back, below nape of neck, in the midline, measuring 8 x 3 cms. Bone deep angles and margins cleancut. (7) Abrasion over medial end of right clavicle, measuring 0.5 cms in diameter, reddish in colour. (8) Oblique linear abrasion on right shoulder, measuring 10 x 0.3 cms. Reddish in colour. (9) Horizontal incised wound on posterolateral aspect of right wrist. 2.5 x 0.5 cms, bone deep. Angles and margins cleancut. (10) Horizontal chopped wound on right palm at the level of metacarpals. Measuring 10 cms long, circumferentially with traumatic amputation of all fingers except thumb. Four amputated fingers lying separately. (11) Oblique incised wound on right thumb, 2.5 x 0.5 cm. Bone deep. Angles and margins cleancut. (12) Incised wound in first right web measuring 3 x 1.5 cms. Muscle deep. Angles and margins cleancut. (13) Oblique incised wound on left shoulder Test Identification Parade, measuring 5 x 1 cms. Tailing *9* conf.1.10.901.judgment.doc medially for 4 cms. Muscle deep. Angles and margins cleancut. (14) Horizontal incised wound, 4 cms. Below inj. No.13 on upper third of left arm, measuring 1 x 0.3 cms. Muscle deep. Angles and margins cleancut. (15) Oblique linear abrasion, 0.5 cms. Below and medial to inj. No.14, measuring 5 cms in length. Reddish in colour. (16) Tangential chopped wound on left palm at the level of base of metacarpals, measuring 14 x 10 cms. Bone deep with clean fracture of 1st, 2nd and 3rd metacarpals. Angles and margins cleancut. (17) Circumferential chopped wound of distal interphalangeal joint of left little finger with traumatic amputation. Distal phalanx missing. Margins cleancut. (18) Circumferential chopped wound of proximal interphalangeal joint of left ring finger with traumatic amputation. Distal part of finger separated. Margins cleancut. (19) Circumferential chopped wound of left index finger with traumatic amputation at the level of middle phalanx. Distal part of finger separated. Margins cleancut. (20) Horizontal stab wound, on left side of abdomen, 7 cms. lateral to midline and 4 cms. above the level of umbilicus measuring 8 x 2 cms opening in abdominal cavity. Angles and margins cleancut. (21) Oblique linear abrasion on right side of abdomen, 10 cms lateral and below umbilicus 5 x 0.5 cms. Reddish in colour. (22) Multiple chopped wounds, crisscrossing each other over left scapular region, size varying from 7 x 1 cms to *10* conf.1.10.901.judgment.doc 12 x 5 cms tailing upwards distributed in an area of 12 x 12 cms underlying scapula shows cleancut injuries. Angles and margins cleancut. (23) Obliquely vertical incised wound over midline on back, at the level T-12 to L-1 measuring 11 x 2.5 cms. Bone deep. Tailing upwards for 4 cms. Angles and margins cleancut. Internal injuries:- (1) Internal injuries corresponding to Ext.inj. No.4 are mentioned along with external injury above. (2) Internal injuries corresponding to Ext.inj. No.5. Hematoma under scalp 6 x 4 cms. Subdural haemorrhage both frontal lobes measuring 8 x 6 cms. (3) Internal injuries corresponding to Ext.inj. No.20. Cleancut fracture 9th to 11th ribs alongwith intercostal muscles, measuring 8 x 2 cms. Stab wound of mesentery, measuring 4 x 1 cms. Stab wound of coil of intestine, measuring 1.5 x 0.5 cms and opening in lumen. 8 As per doctor, the cause of death was traumatic and haemorrhagic shock as a result of multiple chop wounds. PW-7 confirmed the contents of postmortem report (Exhibit-40) and the said report was signed by him. He further stated before the Court that all the injuries sustained by the deceased were possible due to assaults and blows by the weapon “Kukri” (muddemal article No.19) shown to him in the Court. In his cross-examination, he admitted that the weapon shown to him before the Court (article No.19) was not shown to him earlier by *11* conf.1.10.901.judgment.doc the Police nor his opinion was sought. The photographs of the deceased as taken by PW-11 Sharad Kshatriya, were also placed on record at Exhibits-1 to 10. The Trial Court held, on the basis of the medical evidence in terms of the postmortem notes as well as the oral testimony of PW-7, that Shalini Jadhav died a homicidal death consequent to the brutal attack on 10.09.2007. This finding of the Trial Court is not much in dispute and there is no infirmity in the same. 9 PW-3 Dr.Suresh Deshpande was the head of Surgery Department at Ruby Hall Clinic and he stated before the Trial Court that at about 5:30 p.m. on 10.09.2007 he received PW-2 as a patient brought to the Casualty Department. He rushed there within two minutes and attended to her at about 5:40 p.m.. At that time she was conscious and shouting. She was immediately taken to ICU and he started the treatment. She had sustained 19 stab injuries on her person and was immediately taken for operation. In the meanwhile, suspecting some vaginal injuries, he sought assistance of PW-4 Dr.Shubhada Deoskar and in the meanwhile, Dr.Aparna Deshmukh had recorded the medical case history at Exhibit-23. He had also taken photographs of PW-2 with her injuries while she was in the operation theatre and the same were placed before the Court at Exhibits 15 to 22. As per the doctor, PW-2 had suffered the following injuries:- *12* conf.1.10.901.judgment.doc (a) Face (1) 3” x 1.5” wound below the left ear, cutting muscles of posterior triangle, no vascular injury. (2) 3” x 1” superficial wound nape of neck. (3) 3” x 1” wound behind the right ear, deep to bone. (b) Right Hand (1) A deep irregular wound in the web space between thumb and index finger, muscles divided with injury to the tendon of index finger. (2) A deep irregular wound in the web space between the ring and little finger chipping the bone. (c) Left Hand (1) Lunar shaped wound over the dorsum of the thumb with chip fracture of the distal phalanx and division of the extensor tendon. (2) 0.5” x 0.5” injury dorsum of left hand at the base of ring finger. (3) Deglove injury of the ring finger with avulsion of nail. (4) Small cut over the proximal phalanx of the ring finger. (d) Left Arm (1) Large incised wound over left shoulder 6” long cutting muscles and head of humerus with active bleeding. (2) 7” long incised wound over the posterior aspect of arm, muscles divided but no bony injury. (e) Right Arm (1) Oblique wound 5” long over right shoulder extending over the scapular region with division of superficial muscles. (f) Back (1) 6” long oblique wound extending lower cervical to upper thoracic region cutting underlying muscles. (2) 10” long oblique wound in lower thoracic region across *13* conf.1.10.901.judgment.doc the midline extending deep to spinous processes with fractures of ribs on both. (3) 3” long wound at posterior aspect of left shoulder. (4) 8” long incised wound starting from just behind the axilla going down below the left breast with fracture of scapula. (5) 5” long injury below scapula dividing muscles. (6) 8” long injury just above the iliac crest, muscle deep. (7) 9” long oblique wound left gluteal region. 10 PW-3 issued the injury certificate at Exhibit-24. As per him, the patient was never unconscious on her admission in the hospital till her discharge. The doctor opined that if the medical treatment was not given to PW-2, she would have bled to death. He also confirmed that the injuries noticed on the person of PW-2 were likely to be caused by a sharp and heavy weapon like Muddemal Article No.19 shown to him in the Court. In his cross-examination, he stated that as soon as the operation was over, the Police had contacted him but he did not know for what duration the Police had talked. He was not aware as to when the Police spoke to PW-2. At the same time, he confirmed that looking at the injuries sustained by PW-2, it could not be said that her speaking ability was impaired at any time. He reiterated that all the injuries sustained by her were having clean cut margins. The evidence of this witness undoubtedly proved and the Trial Court rightly held that if PW-2 had not received the medical treatment in time, she could not be alive. *14* conf.1.10.901.judgment.doc 11 PW-6 Neela Talathi was the resident of Flat No.C-104 in Purple Castle and she was the witness for the Spot Panchnama at Exhibit-38. She stated that on 10.09.2007 she was called by the Police at 5:30 p.m. at Flat No.301 in D building whereas she was residing in C building. When she entered the flat, she found blood stains on the floor and on the access to both the bedrooms. She saw that the dead body of Shalini Jadhav was lying near the bed and there were marks of injuries caused by the blows of weapons. In the passage between bathroom and living room, four amputed fingers were lying. The Police were present at the spot and all the articles with blood stains lying there like salwar, black half sleeves T shirt, ash colour ladies nicker were wrapped in papers by the Police. The Official Photographer took the photographs of the dead body. She identified these photographs as Article Nos.1 to 10 before the Court and stated that those were photographs of the existing situation of the spot. The map of the flat was prepared in her presence and it was correct. The Spot Panchnama was drawn in her presence and she signed the same. Muddemal Articles No.5 bedsheet, No.6 Salwar, No.7 T shirt and No.8 nicker which were shown to her before the Trial Court were identified by her as the same articles which were shown on the spot by the Police on 10.09.2007. 12 The sketch/ map of the flat drawn by the Police indicated that as soon as the main door is opened, there is a living room of 18x13 feet attached to a gallery of 9x8 feet. At the western side there is kitchen *15* conf.1.10.901.judgment.doc of 8x8 feet and towards southern side there were two bedrooms of 12x10 feet each. Between two bedrooms there is common toilet and one bedroom on the western side had an attached bathroom. It also indicated that right from the main entrance of the door through the living room and then in both bedrooms, the floor was blood stained. If the victim was required to call the maternal aunt, she was required to come to the eastern side bedroom below which the balcony of Flat No. 202 was located. 13 As per PW-12 Girish Charwad, who was an expert in drawing the sketches, under the instructions of Police, he went to Ruby Hall Clinic at about 11:30 a.m. on 11.09.2007 and met the injured lady (PW-2) for drawing the sketch of the suspect. He noticed that the patient was having excellent memory and good grasping power and gave him the detail description of the suspect. As per the description given by her, he drew the sketch (Exhibit-55) and showed it to her and she confirmed the same. He identified the patient as PW-2 before the Court and stated that the accused sitting before the Court matched the sketch drawn by him. He also produced the office copy of the requisition (Exhibit-56). In his cross-examination, he denied the suggestion that the nose of the suspect in the sketch was different from the nose of the accused present in the Court. He also stated that after the accused was arrested he had seen him and was satisfied that the sketch drawn was correct. He had seen the accused in custody after he was arrested and at that time he *16* conf.1.10.901.judgment.doc was having slight stubble. He also verified the sketches published in the news papers on the basis of the sketch drawn by him. In her cross-examination, PW-2 stated before the Court that she did not remember whether she had met the person drawing the sketch on 11.09.2007. But in the examination in chief, she had stated that on 13.09.2007 she had given description of the accused to the artist sent by the Police for drawing his sketch. PW-17 Pukhaji Sonawane was the Investigating Officer. He stated before the Court that PW-12 was requested by the Police to visit the patient so as to obtain the description of the suspect and draw his sketch. Thus, the prosecution proved that PW-12 has drawn the sketch of the suspect as per the description given to him by PW-2 and the same was published in the local news papers. 14 PW-16 Ashok Shelke was attached to the Crime Branch, Pune as Assistant Police Inspector on 19.09.2009 and was aware of Cr.No.111/2007 registered at Bharti Vidyapeeth Police Station for the offences punishable under Sections 302, 397, 307 of the Indian Penal Code. The senior officers with the Crime Branch had directed him to take search of the suspect in the said offence on the basis of a copy of the sketch drawn by the PW-12. On 19.09.2007 the Crime Branch received information that the suspect in the case was residing at Upper Indira Nagar, therefore, the Police party visited the said locality. Though the suspect was not found there, his permanent address i.e. village *17* conf.1.10.901.judgment.doc Awasari Khurd in Ambegaon Taluka and his full name was obtained from the neighbourers in Uppar Indira Nagar. It is pertinent to note at this stage, that as per the arrest memo, the permanent address of the accused was Upper Indira Nagar, VIT College Road, Lane No.5, House No.2, Bibwewadi, Pune and his native place address was at