1 APEAL-544-05 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.544 OF 2005 Harshal Suresh Rawate, ] Address at D/11, Chembur ] Gauthan, Mumbai - 71. ] [presently lodged at ] Kolhapur Central Prison ] Kolhapur]. ] ..APPELLANT. Versus The State of Maharashtra. ]..RESPONDENT. ......... Mr.Abhaykumar Apte, Advocate (appointed) for the appellant. Mr.H.J. Dedhia, A.P.P. for the State. ......... CORAM : D. D. SINHA & A. P. BHANGALE, JJ. DATE OF RESERVING ) : 05.10.2010 THE JUDGMENT ) DATE OF PRONOUNCING ) : 21.10.2010 THE JUDGMENT ) ORAL JUDGMENT (PER A. P. BHANGALE , J.) : 1. This Appeal is directed against the Judgment and order dated 09/03/2005 passed in the Sessions Case No.88 of 2004 by the 2 APEAL-544-05 learned 3rd Ad hoc Additional Sessions Judge, Thane, whereby the appellant was found guilty of the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine in the sum of Rs.500/-, in default, to undergo rigorous imprisonment (R.I.) of one month. The appellant was also convicted for offence punishable under section 380 of the Indian Penal Code and sentenced to suffer R.I. for 5 years and fine in the sum of Rs.500/- in default to suffer imprisonment for one month. 2. Case of the prosecution, in brief, is that : Deceased Suvarna resided with her husband Mangesh Manohar Kadam at flat No 303, Building No.B-2, ‘Shivsrushti’, situated at Kharegaon, Kalva, District Thane. The appellant is her sister’s husband. He had promised service in the Indian Bank for his Sister-in-law, namely, Suvarna Mangesh Kadam ( maiden name Suvarna Savant) in Indian Bank and informed her to join service at Indian Bank, Dadar branch with effect from 24/11/2003 and on that pretext to arrange employment for her he had collected total sums of Rs 80,000/- from her husband Mangesh from time to time. He got a bogus call letter, purportedly issued from the Indian Bank, Dadar, prepared by himself by means of his personal computer and sent it to her through private courier. Apprehending that this fraud and deception would be surely exposed and would 3 APEAL-544-05 come to light when Suvarna would visit the Indian Bank at Dadar branch on 24/11/2003 to join the employment mentioned as the date of her joining pursuant to that bogus call- letter, he planned to do away with Suvarna herself and went to her flat, in the absence of her husband while her husband was away on duty at Nhava-Sheva Port, entered inside her flat when Suvarna was alone and committed her brutal murder by stabbing forcibly and repeatedly in her stomach and causing multiple wounds upon her body. The murder was committed inside her flat. There was no eye witness to the incident of murder. But the shouts raised at the time of incident alerted neighbour Jayshree who rang the door bell, but having found that nobody was responding, she had rushed to inform parents of Mangesh, who were residing nearby in the same locality. Mother-in- law of Suvarna had rushed towards Suvarna’s residence. When Malati (mother–in-law of Suvarna) reached the flat, she found that the door was little moved and then she came across the appellant (Harshal) who came out of the flat of Suvarna at that time and uttered ‘nothing has happened’ and went away in highly suspicious manner carrying something in his hand. Malati, upon entering inside the flat, was stunned to find her daughter-in-law lying dead on the floor in the pool of blood with multiple injuries on her body. 4 APEAL-544-05 3. The complaint about the incident was lodged soon on the same day at Kalva Police Station, District Thane under Section 302 of IPC against the accused Harshal Rawate. Investigation followed soon. Thereafter, the appellant who absconded from the scene could be arrested on 25/11/2003. Upon completion of investigation, the charge sheet was filed on 09/01/2004 in the court of the 1st Judicial Magistrate F.C. Thane, The case was committed to the Court of Sessions at Thane on 12/03/2004. 4. The Charge was framed on 02/09/2004 (Exh.7). The accused pleaded not guilty and claimed trial (plea recorded at Exh.8 ). The prosecution examined 21 witnesses and closed evidence in the trial court. The defence of the accused was of denial of crime. The accused chose not to lead any evidence in support of his defence. 5. We were taken through the evidence led on record and the impugned judgment and order. We have heard learned advocate for the appellant and learned A.P.P. for the State. 6. On behalf of the appellant, it is contended that since it is a case rest on circumstantial evidence, the trial court ought to have acquitted the appellant for want of evidence beyond reasonable doubt of the alleged incident of murder of Suvarna. 5 APEAL-544-05 7. Facts and circumstances revealed in prosecution evidence, which led to the conviction of the appellant in the trial court, are as under:- Mangesh Manohar Kadam (PW 7) and his wife Suvarna (deceased) resided at flat No 303, third floor, ‘B’ wing of Shiv- Shrushti Co-operative Housing Society’s building at Kharegaon, Kalwa, Taluka & District - Thane, after they married on 25/03/2003. Mangesh was doing a job of Clearing Agent at Nhava Sheva Port between 9 a.m. to 9 p.m. So Suvarna used to remain alone in the house (Flat No. 303). On 20/11/2003 at about 2.20.p.m., Jayshree Jadhav (PW 5) neighbourer, residing in flat No. 302 had heard shouts coming from the flat of Shri Mangesh Kadam. She rang the door bell of the flat of Mangesh, but nobody responded at that time. Jayshree told about it to another neighbour who also rang the door bell but again there was no response. Then Jayshree immediately went to the house of parents of Mangesh who were residing nearby in the neighborhood to inform them. Immediately Malati Kadam (PW-1) came along with Jayshree. Jayshree had kept her children in the neighbour’s flat, hence she took her children and went back to her flat. Later, she heard Malati Kadam raising shouts and she was informing about the fact that Suvarna was seen lying dead on the 6 APEAL-544-05 floor inside her flat. Malati had seen the appellant coming out of the flat and going away from the flat in highly suspicious manner before she entered inside the flat and saw that Suvarna lying dead in injured condition inside the flat. Complaint was then lodged at Kalwa police station against the appellant by PW-1 Smt.Malati Manohar Kadam (mother of Mangesh and mother-in-law of deceased-Suvarna), in respect of the incident which occurred on 20/11/2003 at about 02.30 p.m. at flat No.303, third floor, ‘B’ wing of Shiv-Shrushti Co-operative Housing Society’s building, Kharegaon, Kalwa, Taluka & District - Thane. According to the first informant (Malati), her husband (PW-6 Manohar) had occasion to visit the house of his daughter-in-law Suvarna earlier in the day, at about 12.30 noon on 20/11/2003 to bring green petticoat required by his wife, which Suvarna had given. Later on, on the same day, after the first informant was informed by PW-5 Jayshree Jadhav (neighbor of her son’s flat) at about 2.20 p.m. about shouts she heard from the flat of her son Mangesh, said Malati rushed immediately to the flat of her Son. She found that the door was slightly moved, therefore, she stood there for a while. At that time, the appellant Harshal Rawate (sister’s husband of deceased Suvarna) came out of the flat by opening the door and stood there for a second. At that 7 APEAL-544-05 time, he told her that nothing had happened and went away. He had in his hand something wrapped inside the clothes. When she entered inside the flat, she saw that her daughter-in-law Suvarna was lying dead in the pool of blood on the floor. Her intestines had came out of her stomach due to injury, she came out of the flat raising shouts. When she came to first floor, she met her husband who asked her as to what has happened. She informed about death of Suvarna. 8. First informant's husband Manohar Kadam (PW-6) deposed that, on 20/11/2003 at about 12.30 noon, he had occasion to visit the flat of his son and at that time he had collected petticoat from Suvarna, and he returned to his house. Later on, on the same day after Jayshree informed at about 2.20.p.m. the shouts heard from the flat of Mangesh, he had also gone to the flat following his wife who had rushed immediately. PW-6 when he reached Shiv-Shrushti building had occasion to see Harshal Rawate coming down the staircase of the building with something in his right hand. PW-6 deposed that Harshal was seen wearing the black-red and blue coloured shirt (Article 14 before the court). Harshal Rawate at that time went away jumping over the compound wall. After PW-6 8 APEAL-544-05 climbed up the stairs and when he reached the 1st floor he met his wife who informed him that Harshal Rawate killed Suvarna and ran away. Thereafter, when he went to the flat of his son and opened the door he saw that Suvarna was lying in the pool of blood with several bleeding injuries on her person and her intestines had came out from her stomach. Blood stains on the walls were seen. They also found that Suvarna's Mangalsutra was missing. 9. According to the first informant (Malati), the appellant Harshal Rawate had assured service in the Bank for Suvarna and had collected total sum of Rs.80,000/-to do the work (paid from time to time by Mangesh-her Son). Accordingly, Suvarna had applied to the Bank. Mangesh Kadam (Suvarna’s husband and PW-7) deposed that on 20/11/2003 his brother-in-law had contacted him on the mobile phone and had asked him about the health of his wife Suvarna and he replied that it was all right. He had also enquired as to whether he is at home or on duty. Mangesh informed him that he was on duty in the office. Thereafter, Harshal told him that he is going to Ahmadabad with his boss and will return on the next day late night. Mangesh was also informed by his wife Suvarna about the visit of Harshal to his house a day prior to the incident on 19/11/2003 for 9 APEAL-544-05 about 15 minutes to 20 minutes. It has further come in the evidence of Mangesh that he had received phone call from his father on 20/11/2003 at about 2.30.pm when his father informed him about the incident of murder of his wife Suvarna by Harshal Rawate and the fact that Harshal Rawate was seen leaving the place. Mangesh returned to the house immediately and saw his wife lying dead in the flat near the door while panchnama was being drawn by the police. 10. Evidence of Mangesh also revealed the fact that appellant Harshal had collected the cash amounts from Mangesh from time to time on the pretext to arrange getting job for Suvarna in the Indian Bank. The appellant had prepared a bogus call-letter and got it issued to Suvarna. The appellant/accused had taken it away with Mangalsutra of Suvarna while he committed her murder. 11. The complaint was registered as FIR No.I-194 of 2003 at the Kalwa Police station (Exh. 23). It was recorded by PW-19 Aziz Mehmood Shaikh, P.S.I. attached to Kalwa police Station on 20/11/2003 who handed over the investigation to Senior Inspector Shri Shaikh. PW-20 Mr. Gautam Anna Gaikwad, Police Officer arrested the appellant on 25/11/2003 under panchnama (Exh-17). The said police officer interrogated the accused. Two panchas were 10 APEAL-544-05 called. Along with the accused and the panchas, the Investigating Officer proceeded to a stationary shop and bought a blank floppy and then proceeded to Chembur to the house of the accused and with the help of panchas downloaded the letter stored in the computer of the accused to the floppy (Article No.12). Then accused led police and Panchas to the house of Pathare (PW-8) so as to get print out of the letters from the floppy with the aid of the computer of Mr. Pathare. Thus they got the letters articles A, B, C print out from the said floppy. PW-8 Mr. Pathare is an acquaintance of the accused as the accused used to visit his gym. Mr. Pathare corroborated the fact that on 27/11/2003 the police from Kalwa Police Station along with the appellant-Harshal with two persons with an computer expert visited the gym to get the print out with the aid of the computer and printer at the gym. He identified letters Article A, B, C as the same print-outs taken from his computer-printer. PW-13 Chalvedi, having business of courier service as M/s. A. N. Enterprises gave evidence that the accused had came to his office on 09/10/2003 with the letters of Indian Bank which were to be delivered to Suvarna Sawant and Sarita Sawant (their maiden names) which were duly delivered and acknowledged vide Exhs. 41 and 42. Delivery boy Terence Lewis deposed that he had delivered the letter to Suvarna Sawant in Shiv 11 APEAL-544-05 -Shrishti Co-operative Housing Society, Kharegaon and acknowledgment (Ex.41) was obtained which she had signed in his presence after receiving the letter. PW-14 admitted in his cross examination that he had gone to the Block which stood in the name of Mangesh Kadam for delivery of the letter and after he delivered the letter to her, she took it to her house and later on, by signing the acknowledgment (Exh.41), delivered it back to him. PW-16 Chief Manager of the Indian Bank, Dadar (West) Branch, upon verification of the photocopy of the appointment letter, confirmed the fact that Article ‘A’ was false appointment letter. The emblem on the top at the bottom of the letter was not that of the Indian bank, the address of the head office was also incorrect and it was not issued from the Indian Bank. He also clarified in the course of his cross examination that the Head office of the Bank is the only authority to give an appointment letter. Thus prosecution had established that the appellant had prepared a bogus call letter of the Indian Bank, Dadar addressed to deceased Suvarna which he had prepared by means of his personal computer. 12. PW-20 Mr. Gaikwad also gave evidence that he along with the accused and the panchas and Mr. Borade (PW-10) went to Vashi Naka at Chembur. Shri Borade (friend of the appellant) disclosed that 12 APEAL-544-05 he had thrown blood stained clothes of the accused in the Aziz Baug. During the search, one plastic bag containing full shirt, full pant and banian stained with blood were recovered. 13. Shri Borade informed that the accused had handed over those clothes to him. PW-20 drew Panchnama (Ex 29). He deposed that the Article Nos. 14, 15 and 16 before the court are the same. Shri Rajendra Borade was examined by the Prosecution as PW-10. He deposed that on 20/11/2003 at about 3.00 p.m. the accused Harshal Rawate came by Rickshaw to the carom club and called him .He saw Harshal Rawate sitting inside the rickshaw and his palm at that time was covered with the bandage. Harshal told him story that on that day he wanted to go to Ahmadabad but his friend met him and told the accused that he had some work with him and took him to Curry Road, where some boys had attacked on his friend. When the accused tried to save himself from being assaulted, he had received the injury when he tried to catch hold the knife which was in the hand of assailant. He sustained cut injury on his palm. Harshal then asked Shri Borade to take him to some known doctor. Shri Borade had taken Harshal to Manek nursing Home. Doctor had advised him to go to Sion Hospital. Doctor Bhosale, who treated the accused and had charged Rs.250/- which amount was paid by the witness Shri 13 APEAL-544-05 Borade. The conduct of the accused was evident. The accused withdrew cash of Rs.3000/- from ATM, then went to Dr. Bhute. 40 to 50 stitches were given to injuries on the palms(hand) of the accused. Even then the accused had specifically avoided to inform his own family members. While leaving the Hospital, the accused had at that time handed over the Mangalsutra, money purse to his friend and gold chain to Sanjay More. On the next day morning, the accused had asked Mr Borade to bring clothes and accordingly one shirt, banian, and a track pant was handed over to the accused. The accused then asked his friend Shri Borade to throw the clothes of the accused by inserting them into one plastic bag which the witness threw beyond compound near Aziz Baug Bus Stop in Chembur. The Accused was discharged on the 3rd day from the Hospital. PW-11 Dr.Dilip Bhosale, from Manek Nursing Home had treated the accused on 20/11/2003. The accused with bandage to his palmer aspect of the hand had approached him. Dr. Bhosale had put the gamjee-pad over the bandage to stop the bleeding. The accused told the doctor that he wants to go to Sion Hospital. In Dr.Bhosale’s cross examination, it is brought on record that when Dr.Bhosale had inquired about the cause of the injury, the accused told him that it was caused by the glass. This story was contradictory to what he told earlier to his friend 14 APEAL-544-05 Rajendra Borade. The accused gave another story to Dr. Arun Bhute (PW-12) when he had treated the accused on 20/11/2003 at 5.30 p.m. that his hands came in contact with the glass lying in the gutter due to which he sustained the injuries. Dr.Bhute had produced notes of treatment given to the accused (Exh.39) and expressed opinion that the injury observed by him was possible by any sharp object and were possible by knife. The notes indicate the nature of injuries observed on the person of the accused Harshal thus:- Crush of little finger. CLW on root of Thumb 3x2x1 cm. CLW on each finger. Dr.Bhute in his notes made his observation thus:-multiple injuries on palm due to glass or sharp object crushed on little finger ? Due to knife rotated in feast. Operative notes indicates that 40 stitches had to be given to the injuries received by the accused. Dr.Arun Bhute had issued certificate (Exh.21) dated 5/12/2003 on his letter head genuineness of which was admitted by the defence under section 294 of the Code of Criminal Procedure and exhibited, which reads thus:- "Whomsoever This is to certify that Mr. Harshal Suresh Raote was admitted on 20/11/2003 at 5.30 p.m. in Dr.Bhute’s Nursing Home re dressing full of wet re Blood (Dressing was red due to Bleeding). On examination he was having multiple clean incised wound on palm, on fingers and 15 APEAL-544-05 little finger was crushed wound was because of sharp instrument or object on (Rt) palm. His left side wound was on the wrist and web portion of Thumb and index finger were due to sharp teeth. This is sent for your information" 14. The above observations constitute serious incriminating circumstance established against the appellant but no satisfactory explanation was adduced by the appellant as to how and why he received those injuries. It was obligatory for the appellant to tender explanation in respect of the facts which were especially within his special knowledge, in view of section 106 of the Indian Evidence Act. Section 106 of the Indian Evidence Act,1872 reads thus:- "106. Burden of proving fact especially within Knowledge -- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 15. Therefore, once the prosecution has discharged it’s initial burden to establish the guilt of the accused beyond reasonable doubt, the above Rule which is in the nature of exception to Section 101 of the Act operates requiring the accused to place circumstances before the Court, which are especially within his knowledge, in order to show that his plea in defence is reasonable and probable one. 16 APEAL-544-05 16. PW-9 Sanjay More (rickshaw driver) gave evidence to corroborate the fact of medical treatment which the Appellant had received at the Hospital of Dr.Arun Bhute. Sanjay had asked the appellant to inform his family members but the appellant replied that he had already informed his family members and that he will be out of station for two days along with his boss. PW-9 identified Articles14 (Shirt) and Article 15(pant) which appellant was wearing on the day of incident. 17. PW-17 Vijay Kinarewala (goldsmith) identified the accused as the same person who had came to his shop on 24/11/2003 with his both palms covered in bandage and told him that he and his wife met with an accident and his wife was admitted in Hospital and so he was in need of money. It was under the circumstances, the goldsmith purchased the Mangalsutra for sum of Rs15,500/- which he had melted. 18. Knife (Sura), the alleged weapon of offence, could not be recovered from the creek to which the investigating officer and the panchas were led by the Appellant. PW-2 Rajesh deposed about correctness of the Panchnama dated 1/12/2003 (Exh. 26) and the 17 APEAL-544-05 fact that appellant had led police and the Panchas to the creek but nothing could be traced out from the spot pointed out by the accused (appellant). PW-3 Sudhakar also gave evidence in respect of the same Panchnama but chose not to support the prosecution case fully and was disowned by the prosecution which cross examined him. The evidence of PWs-2 and 3 did not establish as to whether the appellant had volunteered any statement to point-out the spot where the weapon of offence was allegedly thrown and searched. It is necessary for the investigating officer to record a memorandum in respect of the voluntary statement, if any, made by the accused while he is under investigation in the police custody, preferably in presence of the Panchas (independent witnesses) under the panchnama duly drawn. This is necessary to ensure greater authenticity for the evidence as to discovery of a fact which was within exclusive knowledge of the accused which he volunteered to disclose in presence of the panchas. But non–recovery of weapon of offence by itself, in our view, would not militate against the prosecution because of the conduct of the appellant in this case which is very relevant. The accused though injured, instead of reporting the incident to his own family members 18 APEAL-544-05 or to near relatives of Suvarna or to the police, made good his escape from the scene of crime and hurriedly went away from the scene of offence after the commission of crime. The accused was arrested on 25/11/2003 by PW-20 Gaikwad under Panchnama (Exh.17) during the course of investigation. 19. Homicidal death of Suvarna:- the inquest over the dead body of Suvarna was drawn on 20/11/2003 under Panchnama Exh.11, wherein multiple stab injuries received by Suvarna were observed. The dead body of Suvarna was referred for the postmortem examination. This was done by PW-15 Dr D .B. More as per Exh.48. PW-15 found and noted following ante-mortem injuries:- 1. Incised stab wound on left palm, anterior aspect between thumb and index finger 2.2.cmx1 cms muscle deep spindle shaped both angles acute. 2. Incised wound on left index finger, anterior aspect, distal phalanx, oblique 1.2 cms in length, linear, muscle deep. 3. Incised wound on left middle finger, anteriorly terminal phalanx,oblique 1cm. in length linear, muscle deep. 4. Incised wound on left ring finger anteriorly distal phalanx oblique 1 cm in length muscle deep. 5. Incised wound on left little finger,anteriorly distal phalanx,oblique,8 cms in length linear,muscle deep. 6. Incised stab wound on left wrist, anterolaterally oblique,3cm in length,.4cm in breadth,spindle shaped,both angles acute. 7. Incised stab wound on left elbow,posterolaterally 19 APEAL-544-05 5.2cm in length, .4cm in