[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CONFIRMATION CASE NO. 1 OF 2004. CONFIRMATION CASE NO. 1 OF 2004. CONFIRMATION CASE NO. 1 OF 2004. WITH WITH WITH CRIMINAL APPEAL NO. 888 OF 2004. CRIMINAL APPEAL NO. 888 OF 2004. CRIMINAL APPEAL NO. 888 OF 2004. WITH WITH WITH CRIMINAL APPEAL NO. 889 OF 2004 CRIMINAL APPEAL NO. 889 OF 2004 CRIMINAL APPEAL NO. 889 OF 2004 CONFIRMATION CASE NO 1 OF 2004. The State of Maharashtra ... Complainant. V/s. Sahebrao @ Navnath Sopal Kale ... Respondent (Orig. Accused No.3) CRIMINAL APPEAL NO. 888 OF 2004. Saheb @ Navnath Sopan Kale, R/at At and post Washi, Tehsil Bhuvan, District Osmanabad, (presently lodged at Yerwada Central Prison, Pune-411 006) ... Appellant (Orig.accused No.3) Vs. The State of Maharashtra. ... Respondent. CRIMINAL APPEAL NO. 889 OF 2004. Smt. Geetabai Bhagwat Kale, R/at-At & Post Washi Tehsil Bhum, Dist. Osmanabad, (Presently lodged at Yerwada Central Prison, Pune 411 006) ... Appellant. Vs. The State of Maharashtra. .. Respondent. (Orig.Accused No.2) Mrs. P.H. Kantharia and Mrs.U.V. Kejriwal, A.P.P. for the State in Confirmation Case No.1 of 2004- Appeal for the State of Maharashtra. Mr. A.G. Toraskar, Advocate appointed for accused No.3 Sahebrao @ Navnath Sopan Kale in Criminal Appeal No.888 of 2004. Mr. Abhay Kumar Apte, Advocate appointed for the [2] appellant in Criminal Appeal No. 889 of 2004. CORAM : V.G.PALSHIKAR & CORAM : V.G.PALSHIKAR & CORAM : V.G.PALSHIKAR & ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. DATE : 11TH OCTOBER, 2004. DATE : 11TH OCTOBER, 2004. DATE : 11TH OCTOBER, 2004. JUDGMENT (PER ANOOP V.MOHTA ) . The present confirmation case has been referred by the Additional Sessions Judge, Pune, in pursuance to the provision of Section 366 of Cr.P.C., as appellant-accused No.3 in criminal appeal No.999/2004 has been convicted under section 302 r/w section 34 of Indian Penal Code and sentenced to death. 2. The appellant-accused No.3 has also preferred the appeal against the order of conviction and sentence, whereby, he was convicted under Section 449,460,392,201,302 r/w section 34 of Indian Penal Code, along with appellant-accused No.2 in Criminal appeal No.889/2004. The learned Judge has sentenced to (undergo) imprisonment for life for the offence punishable under section 302 r/w Section 34 of Indian Penal Code to the appellant-accused No.2. However, for the same offence the appellant No.3 has been sentenced to death. Original-accused No.1 Bhagwat could not be tried as he is absconding. The operative part of the impugned judgment and order dated 20th January, 2004 in [3] Sessions case No. 368/1997, in question is reproduced as under: "(1) Accused No.2, Geetabai w/o Bhagwat Kale and accused No.3 Sahebrao alias Navnath son of Sopan Kale are convicted under Section 235(2) of Criminal Procedure code for the offence punishable under Section 449 r/w. 34 of I.P.C. and sentenced to undergo R.I. for ten years and to pay fine of Rs. 200 (Rs. Two Hundred) each. i/d. payment of fine they shall undergo R.I. for six months." (2) Accused No.2 Geetabai Kale and accused No.3, Sahebrao Kale are convicted for the offence punishable under Section 460 r/w 34 of I.P.C. and sentenced to undergo R.I. for seven years and to pay fine of Rs. 200 (Rs. Hundred) each, i/d. payment of fine they shall undergo R.I. for three months. (3) Accused No.2, Geetabai Kale and accused No.3, Sahebrao Kale are also convicted for the offence punishable under Section 392 r/w 34 of I.P.C. and sentenced to undergo R.I. for five years and to pay fine of Rs. 100 (Rs. One Hundred) each, i/d payment of fine they shall undergo R.I. for three months. (4) Accused No.2, Geetabai Kale and accused No. 3, Sahebrao Kale are also convicted for the offence punishable under Section 201 r/w 34 of I.P.C. and sentenced to undergo R.I. for two years and to pay fine of Rs. 100( Rs. One Hundred) each i/d. payment of fine they shall undergo R.I. for two months. (5) Accused No.2, Geetabai Kale is further convicted for the offence punishable under section 302 r/w 34 of I.P.C. and sentenced to undergo Imprisonment for life and shall pay fine of Rs. 1,000 (Rs. One Thousand) i/d. payment of fine, she shall undergo R.I. for one year. (6) Accused No.3 Sahebrao alias Navnath Sopan [4] Kale is further convicted for the offence punishable under Section 302 r/w section 34 of I.P.C. and sentenced to Death, he be hanged by the neck till he is dead. (7) The substantive sentences imposed against accused No.2 Geetabai Kale shall run concurrently. (8) However, the sentence of Death awarded to accused No.3, Sahebrao Kale shall remain suspended till its confirmation by the Hon’ble High Court, Bombay, as per the provisions of Section 366 of Criminal Procedure Code." 3. We have heard the learned A.P.P. Mrs.P.H. Kanthari and Mrs. U.V. Kejriwal for the State and the learned Advocate Mr.A.G. Toraskar for Sahebrao Kale-appellant-accused No.3 and Mr. Abhay Kumar Apte for appellant-accused No.2.. The respective appellants have challenged the order of conviction by these appeals separately. We have gone through the common testimony, as recorded in Sessions Case No.368/1997 and the record of the proceeding with the assistance of the advocates appearing for the parties. As consented and to avoid repetition of the facts and the basic testimony and evidence on the record, we have heard the present Confirmation case No.1/2004 along with these appeals. 4. The prosecution case is as under; [5] . FACTS:- FACTS:- FACTS:- The date of incident was intervening night between 15th May,1997 to 16th May, 1997. The place of incident is, residential complex at Princetone Town, Plot No. 73 at Kalyaninagar, Pune. The name of the deceased persons are Ramesh Patil, Vijaykumari Patil, Manjunath Patil and Pooja Patil. Deceased Ramesh Patil came to Pune from Belgaum on 9/5/1997 along with his wife deceased Vijayakumari and their children deceased Pooja (daughter) and Manjunath (son) and stayed in room No.310 of Ashirwad Hotel near Railway Station, Pune. On 10/5/1997 deceased Ramesh Patil approached one Smt. Jayshree Chitre, a Estate Agent, P.W. 1, for getting rented accommodation in Pune. On 11/5/199,7 after performing Pooja in the flat No.4 in the C-1 building at Prinston Town, Kalyaninagar, in question, they started to reside from 12/5/1997. The deceased Ramesh and his deceased wife had purchased various luxurious items like fridge, T.V. set, furniture etc. during the period from 12/5/1997 to 15/5/1997. These luxurious purchase and the life style of the deceased were noticed by the people in the vicinity of Prinston Town, apart from the accused 1 to 3, who were working as labourers at Prinston Town, Kalyaninagar, Pune. Accused No.1 Bhagwat Kale, is the husband of appellant-accused [6] No.2 Geetabai Kale, and cousin brother of appellant accused No.3 Sahebrao. The accused No.1 Bhagwat was doing the work of filling the overhead tanks of the buildings in Prinston Town, Kalyaninagar, Pune. He was also doing the minor electrical work. Accused No.1, therefore, was well acquainted with all the flats and buildings of that area. Accused No.3 Geeta was working as maid-servant in the flat occupied by the deceased Ramesh Patil and his family. The appellants and the accused No.1 were working as a labourers on 15/5/1997, during the day, at the site in question of Princton Town, Kalyaninagar, Pune. 4A). On 16/5/1997 at about 10.30 a.m. when the complainant, P.W. 1 , Jugraj Palrecha had visited the said construction site, P.W. 37, Sheshmal Bagmal informed that the electrical lights and fans of the flat No.C-1/4 of deceased Ramesh Patil were on. The complainant therefore, called to the deceased Ramesh Patil and his family. But there was no response from the said flat. The complainant therefore, asked P.W. 9, Gurunath Sutar, to climb on the terrace of the flat of the deceased Ramesh and see and verify the reason through the window. P.W. 9, Gurunath therefore, had [7] climbed on the terrace of the flat by help of the ladder and noticed the blood stains on terrace of the flat and therefore, informed the same to the complainant and others. The complainant, Jugraj along with his partner Subhash Sankla and agent, P.W. 1, Jayshree Chitre and others approached to Yervada, Police Station, Pune and informed to the police officials accordingly. The Police officer, along with complainant, P.W. 2, Jugraj and others arrived at the place of incident. The police officers along with the complainant and others climbed the terrace of the flat, occupied by the deceased Ramesh Patil with the help of ladder. The door of the terrace was opened. They entered into the said flat through the said door and noticed a lady, aged about 48 years and a boy aged about 10 years lying dead in the pool of blood in the said, flat. The house hold articles and other items were scattered in the flat. They found the knife and screw driver stained with blood, lying in the hall. They found knife and G.I. pipe also stained with the blood lying near the door of a bed room in the said flat. The police had opened the main door from inside and found a newspaper kept hanging to the latch of the door. The deceased Ramesh and his daughter were not found inside the flat. Therefore, the police officers [8] and others inspected the surrounding place of the flat. They found the dead bodies of the deceased Ramesh Patil and his daughter lying into a chamber towards east side of the said flat. One black cloth which was tied with the lid of the chamber was also noticed by them. Thereafter, they noticed one more G.I. Pipe stained with the blood lying at the first step of the ground floor. The complainant, therefore, had lodged complaint to P.I. Shamrao, P.W. 57 and P.I. Dhulumbhulu recorded the complaint Exh.62. The spot panchanma Exh.76 was drawn and articles knives, G.I. pipes, screw driver and two pieces of teeth stained with blood were seized from the spot. The blood samples were collected from various places of the incident. The bed sheets, plastic cover, mosquito net, turkish towel, black cloth, which was tied to the lid of the chamber in which amount of Rs. 4700/- was found and a ladder, found near the place of the incident, were seized under the said panchanma Exh.76. The forensic mobile squad had collected blood stained from the place of the incident. They also photographed the spot. The dog squad was called. Various documents found in the flat were seized under the panchanma. Some officers were sent to Karnataka for collecting more information about the [9] deceased persons. The bodies of the deceased persons were sent to Sasoon hospital for conducting the post mortems. 5. The appellants along with accused NO.1 were missing from their hut and had not attended their routine work. Accused No.1, Bhagwat Kale was arrested on 25th May, 1997 near village Wagholi, District Pune. Appellant-accused No.2 Geetabai and appellant-accused No.3 Sahebrao were arrested on 22/5/1997 and 24/5/1997 respectively, at village Washi by police. Various articles were recovered from all the accused. The cash amount of Rs. 3,49,600/-, a shirt, polythene bag in which resin purse containing ornaments of gold namely goth, necklace were recovered under seizure pachanama Exh. 150. From accused No.1 amount of more than forty lacs rupees were seized as per the information supplied by him. A shirt and pant stained with the blood were seized from the appellant-accused No.3, Sahebrao, Exh.109 6. Accused No.1 Bhagwat Kale and accused No.3 Sahebrao had escaped from the police, when they were being taken to Central Prison, Yevada from the Court. [10] The police have succeeded in arresting Sahebrao appellant-accused No.3. The accused No.1 is still absconding. Therefore, the trial proceeded only against appellants-accused No.2 and 3. 7. On 5/2/1998 charges were framed and the same were denied by the appellants-accused. The charges were amended on 8/5/2000 also. 8. The prosecution has examined 55 witnesses and proved about 227 documents on the record through the respective witnesses/testmonies.There was no defence witness. There are no eye witnesses to the incident. The whole prosecution case is based on the circumstantial evidence. 9. DETERMINED POINTS : DETERMINED POINTS : DETERMINED POINTS :- The learned Judge after considering the testimonies of the prosecution witnesses, as well as, proved documents, held that; the deceased Ramesh Patil, Vijayakumari, Pooja and Manjunath died of homicidal death on the night intervening between 15/5/1997 to 16/5/1997; the appellants-accused Nos. 2 and 3 along with absconded accused No.1, Bhagwat Kale in furtherance of their common intention jointly have [11] committed house tress pass by house breaking and voluntarily caused death of the deceased named above; They have committed the offence of murder or caused deaths by means of knives, suras, G.I.pipes, screw driver; They have in furtherance of their common intention committed robbery of cash more than Rs. forty lacs, ornaments of gold, silver coins, purse containing cash of Rs. 1,35,900/- which was the property in possession of the deceased Ramesh Patil. It has been also held that after committing the offence of murder and robbery, they destroyed the evidence of that offence or caused to wipe out the evidence of the offence by putting the dead bodies of Ramesh and Pooja Patil in drainage chamber with intention of screening away themselves from legal punishments. The impugned judgment and order, as referred above has been passed accordingly. 10. " CONFIRMATION OF THE DEATH PENALTY":-The first and foremost issue is the confirmation of the death sentence, as imposed/inflicted and as, contemplated under the provisions of Section 354 and 361 to 366 of Code of Criminal Procedure (Cr.P.C.). [12] 11. The learned Judge principally has relied on (1) State of Rajasthan, V, Kheraj Ram, 2003 S.C.Cases (cri), page 1979= 2003 (8) S.C.C.224. (2) Bachansing V. State of Punjab, A.I.R. 1980 S.C. 998 (3) Machansing V. State of Punjab, in 1983 S.C.C. (Cri) 681 = A.I.R. 1983 S.C. 957 The main case, State of Rajasthan V. Kheraj Ram (Supra) has been relied upon for the death penalty on the foundation that the facts and circumstances were quite similar with the present case. Factually this is not correct. We have to scrutinise the facts of each case. The appex Court in Simon and others Vs. State of Karnataka, (2004) 2 S.C.C. 694 has considered the basic judgments pertaining to the imposition of the death penalty by elaborating the connected principle of "rarest of rare case" and "mitigating circumstances." Para 33 of the same judgment is reproduced as under; "In Machhi Singh V. State of Punjab this Court has observed that one of the categories of rarest of rare case may be when the collective conscience of the community is so shocked that [13] it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. Further, when the crime is enormous in proportion. For instance, when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed. It was observed that in order to apply the guide-lines, inter alia, the following questions may be asked and answered: (SCC p. 489, para 39) "(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?" The Court further said: (SCC p. 489, para 40) "40. If upon taking an overall global view of the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so." The Apex Court in Rampal V. State of U.P, (2003) 7 S.C.C. 141, has already taken note of above principle and on facts, after considered the mitigating circumstances, the death penalty was substituted to [14] imprisonment for life. The relevant extract of para 9 is as under; "The abovenoted circumstances which we consider as mitigating circumstances, in our opinion, outweigh the aggravating circumstances as found by the courts below. In the said view of the matter, we think it appropriate to allow this appeal and in substitution of the sentence of death awarded to the appellant, we sentence the appellant under Section 302 read with Section 149 IPC to undergo imprisonment for life.(emphasis added) The Apex Court in Suresh Chadnra Bahri V. State of Bihar, AIR 1994, S.C. 2420, had converted the death sentence into life imprisonment by observing in para 107 as under; This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence of his active participation int he murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. We, therefore,e commute his sentence of death also into a sentence for life [15] imprisonment and modify the judgments of the two Courts below accordingly." . The Apex Court’s decision,( State of Rajasthan V. kheraj Ram) (Supra) as relied by the trial court itself has observed as under. "Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the Court as to its applications. The changes which the Code has undergone in the last three decades clearly indicate that Parliment is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3)." "It would not, therefore, be wrong to assume that the personality circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. "A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." (emphasis added) Therefore, our task is now to see whether there are [16] "sufficient causes or reasons" to confirm "the death penalty", as imposed by the learned Sessions Judge and whether this is a " rarest of rare case." 12. "RAREST OF RARE CASE" FOR "DEATH PENALTY" AND "SUFFICIENT CAUSE":-We have to follow the basic ingredients, which, emerges from the settled principle of doctrine of "rarest of rare case" and "sufficient cause" as contemplated under Cr.P.C. for proposing and confirming death penalty. All the sides of this aspects of confirming the death penalty have to be scrutinised with great care and cautious. The "mitigating circumstances", always play dominant role in confirming the death sentence. The mitigating circumstance has to be gathered and or collected and to be weighed from the facts and circumstances of the case. The confirmation of death sentences therefore cannot be based only on the precedents and or aggravating facts and circumstances of any other case. The essential and relevant mitigating circumstances of the particular case always plays a role of negative elements against the positive theory of death punishment. Therefore, we have re-appreciated and re-assessed the facts and circumstances of this case for all the purposes. [17] 13. In the present case, admittedly, there are no eye witnesses. The whole conviction is based on circumstantial evidence. The accused No.1, from whom more than 45 lacs cash had been recovered is absconding. The trial proceeded only against the appellants- accused No.2 and accused No.3. Accused No.3 has only been sentenced to death. Accused No.2 Geetabai was pregenent at the relevant time and has delivered a child, who is now of more than six years. 14. The prosecution has proved through the respective witnesses from P.W. 1 to P.W. 57, all connected circumstances to pin point that the appellants along with accused No.1 have committed the offence and no one else. 15. THE CICUMSTANTIAL EVIDENCE IS LINKED AND THE THE CICUMSTANTIAL EVIDENCE IS LINKED AND THE THE CICUMSTANTIAL EVIDENCE IS LINKED AND THE PROSECUTION HAS PROVED THE CASE AS UNDER:- P.W. 1, PROSECUTION HAS PROVED THE CASE AS UNDER:- P.W. 1, PROSECUTION HAS PROVED THE CASE AS UNDER:- P.W. 1, Jayshree Chitre, an estate agent has deposed to support Jayshree Chitre, an estate agent has deposed to support Jayshree Chitre, an estate agent has deposed to support the prosecution to the fact that the flat in question the prosecution to the fact that the flat in question the prosecution to the fact that the flat in question owned by P.W.3, Mohan Lacchiram Lunawat was rented owned by P.W.3, Mohan Lacchiram Lunawat was rented owned by P.W.3, Mohan Lacchiram Lunawat was rented through her, being an estate agent. P.W. 3 Mohan L. through her, being an estate agent. P.W. 3 Mohan L. through her, being an estate agent. P.W. 3 Mohan L. Lunawant, has supported the same and further deposed Lunawant, has supported the same and further deposed Lunawant, has supported the same and further deposed [18] that on 10th May, 1997 the deceased along with his that on 10th May, 1997 the deceased along with his that on 10th May, 1997 the deceased along with his family visited him for the flat. 1 family visited him for the flat. 1 family visited him for the flat. 16. P.W. 2, Jugraj Palrecha, had lodged the basic complaint Exh.62. He has deposed that being the builder and promoter of Nandraj Builders, Pune, he used to visit the site in question regularly along with his staff, since 1997. He has deposed that Mr. Raje was working as the supervisor in the said project. The workers were residing at the site and some of them had constructed their huts near the parking lot. This witness has also been corroborated P.W. 1 and P.W. 2. On 11/5/1997 deceased Patil and his family had taken possession of the flat and lease agreement was executed on 12/5/1997. P.W. 2 has deposed that the accused No.1 and the appellant-accused No.3 were doing labour work on the site till 16/5/1997. On information from one electrician (P.W.37) Sheshmal Bagmal that there was no response from the flat of deceased Ramesh Patil. and one rickshawalla was also waiting for opening the said door of the flat, therefore, P.W. 2, who was sitting in his office in the building NO. C-2, which is adjoining to the building C-1. had directed one of the labourer (P.W.9) Gurunath Suttar to go