1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE SIDE SIDE CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 685 OF 2000 APPEAL NO. 685 OF 2000 APPEAL NO. 685 OF 2000 SHRI DNYANESHWAR @ DEEPAK ) VITHAL KHULPE, residing at ) Navparivar Housing Society, ) Chinchwadgaon, PUNE - 33 ).. APPELLANT (Org. Accused) Versus STATE OF MAHARASHTRA ) (At the instance of Wai Police ) Station) ) .. RESPONDENT Mr. M. K. Kocharekar for appellant Mr. S.R. Borulkar, PP with F.R. Shaikh, Addl.PP for State. CORAM:-SMT. RANJANA DESAI & D. G. KARNIK, JJ. DATE ON WHICH THE JUDGMENT RESERVED: 17TH APRIL, 2006 DATE ON WHICH THE JUDGMENT PRONOUNCED: 5TH MAY, 2006 JUDGMENT: (Smt. Ranjana Desai, J.) . The appellant (for convenience "the accused) was 2 tried in the sessions court at Satara in Sessions Case No. 860 of 1999 for offences punishable under Section 302 and 201 of the Indian Penal Code ("I.P.C." for short). By his judgment and order dated 4/9/2000, the learned Sessions Judge convicted the accused under Section 302 of the I.P.C. and sentenced him to suffer R.I. for life and to pay a fine of Rs.5,000/-, in default to undergo R.I. for six months. The accused was also convicted of the offence punishable under Section 201 of the I.P.C. and sentenced to undergo R.I. for two years and to pay a fine of Rs.2,000/-, in default to undergo R.I. for two months. The substantive sentences were to run concurrently. Being aggrieved by the said judgment and order, the accused has preferred this appeal. 2. It would be advantageous to give the gist of the prosecution case. Deceased Pushpanjali was the daughter of PW 3 Kondiba Pandurang Dingale. She was married to one Pradeep Kesare on 21/6/84. She had four children from Pradeep Kesare. She had left Pradeep Kesare in 1994. In the year 1997 she was working as a maid with PW 23 Dr. Mangal Motichand Shah. 3 3. The accused is a practising lawyer. The deceased engaged the accused as her lawyer for filing a divorce case and maintenance application. Illicit relationship developed between the two. At the relevant time they were staying together in a house bearing No. 487 in Sangarali at Wai. The case of the prosecution is that the deceased wanted gold and money and, therefore, there was a quarrel between the deceased and the accused on 21/8/98. The quarrel started because the deceased had demanded a gold ring. Being angered by this on 21/8/98, prior to 18-30 hrs. the accused made the deceased lie on the cot, folded her both hands, kept them on her mouth, gagged her mouth and killed her. Thereafter he kept fire wood on her and poured rockel (kerosene) on her body and set her on fire. After committing this crime the accused left for Pune. 4. The prosecution witnesses saw smoke coming out of the house of the accused. PW 19 Vijay Mahadeo Tribhune, a resident of Sangarali, who saw the smoke coming out from the house of the accused, went upstairs. He saw that a dead body was burning. He then went to the police station and lodged the complaint which is at Exhibit 50. This 4 complaint is treated as F.I.R. On the basis of this F.I.R. the investigation was started. The accused who was at Pune was contacted by the police. The accused came to Wai on 22/8/98. PW 14 Rekha Mahadeo Ghadage, who is a social worker had come to the scene of offence. The accused made extra judicial confession to her that he had killed the deceased Pushpanjali by keeping her hands folded on her mouth and by gagging her. He further told her that he had collected wooden logs and burnt her. The police arrested the accused on 28/8/98 and after completion of the investigation the accused came to be charged as aforesaid. 5. In support of its case the prosecution examined as many as 26 witnesses. The prosecution examined PW 14 Rekha, a social worker before whom the accused is said to have made the extra judicial confession. The prosecution inter alia examined PW 3 Kondiba Dingale, the father of the deceased, PW 25 Pratibha Dingale, the mother of the deceased, PW 23 Dr. Mangal Shah, the employer of the deceased and PW 24 Pradeep Kesare, the husband of the deceased. PW 7 Dr. Sanjay Gawane deposed about the medical examination of the accused conducted by him. PW 15 Dr. Shinde proved postmortem notes 5 which are at Exhibit 41. The details of investigation were given by PW 26 Anil Patil, API attached to police station Wai. 6. The accused claimed to be innocent. He examined his mother DW 1 Smt. Rukmini Khulpe, to prove alibi. After perusing the evidence on record the learned Sessions Judge was of the view that the prosecution had proved its case beyond reasonable doubt and hence he convicted the accused as aforesaid. 7. We have heard at some length Mr. Kocharekar, the learned counsel for the appellant-accused and Shri S. R. Borulkar, learned Public Prosecutor. With the assistance of the learned counsel, we have gone through the evidence and the record of the case. 8. Mr. Kocharekar, the learned counsel for the appellant assailed the impugned judgment and order on several counts. He submitted that the impugned judgment is totally unsustainable. He contended that the prosecution has not been able to establish that the accused and the deceased were last seen together. There is no evidence on record to 6 establish that apart from the accused and the deceased no one else was living in the house of the accused. Therefore, it cannot be said that the accused had killed the deceased. The learned counsel contended that the entire prosecution case rests on extra judicial confession made by the accused to PW 14 Rekha, who is a social worker. He submitted that extra judicial confession is a very weak type of evidence and unless corroborated cannot be relied upon. There is no corroboration to the extra judicial confession allegedly made by the accused. He further contended that Rekha being a social worker the accused would never have made extra judicial confession to her. Admittedly she was not known to the accused. The accused would not have reposed any confidence in her. It does not stand to reason that the accused who is a lawyer would make extra judicial confession to a total stranger and that too to a social worker. 9. Mr. Kocharekar further submitted that PW 14 Rekha has said in her evidence that the police were present at the scene of offence when the accused made extra judicial confession to her. Therefore, extra judicial confession made in the presence of a police officer can never be relied upon. Mr. 7 Kocharekar contended that the alleged extra judicial confession is not voluntary. Mr. Kocharekar further contended that the witnesses examined by the prosecution to establish that the accused and the deceased were travelling together or were living together can never be believed. It is inconceivable that a rickshaw driver would recollect that about two years back he had seen the accused and the deceased travelling together in his rickshaw. It is equally impossible that a hotel owner would remember that he had seen them together two years back. 10. Mr. Kocharekar contended that the prosecution has also not been able to establish the motive. Circumstantial evidence is not of such quality as would inspire confidence. Several links in the chain of circumstantial evidence have been snapped. The learned counsel contended that suspicion, however strong, cannot take the place of proof. According to him there is hardly any evidence on record to establish complicity of the accused and, therefore, the impugned judgment and order deserves to be set aside. 11. Mr. Borulkar, learned Public Prosecutor on 8 the other hand submitted that the prosecution has adduced clinching evidence which points directly to the guilt of the accused. He submitted that in the facts of this case the only conclusion which can be drawn is that the accused had killed the deceased. The prosecution has established strong motive. The prosecution has established that the accused was having illicit relationship with the deceased and they were staying together in the flat in which the murder took place. The prosecution has established that the accused had received injuries during the incident in question. The medical evidence clearly indicates that the deceased was first killed by gagging and then burnt. Therefore, the case of suicide is not made out at all. 12. Mr. Borulkar contended that extra judicial confession made to PW 14 Rekha inspires confidence. PW 14 Rekha had no reason to falsely implicate the accused. He submitted that extra judicial confession can safely be relied upon, if the evidence of the person to whom it is made is found to be reliable. In this connection the learned Public Prosecutor relied on Piara Singh & Ors. v. State of Punjab, AIR 1977 SC 2274, State of U.P. v. M. K. Anthony, AIR 1985 SC 48, Vinayak 9 Shivajirao Pol v. State of Maharashtra, AIR 1998 SC 1096. 13. The learned Public Prosecutor further pointed out that in his statement recorded under Section 313 of the Criminal Procedure Code ("Code" for short) the accused has not given any explanation as to how in suspicious circumstances the deceased was found dead in his house. An adverse inference need to be drawn against the accused. In this connection he relied on State of T.N. V. P. Muniappan, (1998) 1 SCC 515. He submitted that the accused has given false answers to all relevant questions asked to him in his statement under Section 313 of the Code. Defence of alibi has proved to be false. That would, therefore, become an additional link in the chain of circumstances. For this proposition he relied on Mani Kumar Thapa v. State of Sikkim, AIR 2002, SC 2920. Mr. Borulkar submitted that all proved circumstances point directly to the guilt of the accused and hence no interference is necessary with the impugned judgment and order. 14. Since there is no eye witness, the prosecution has relied upon circumstantial evidence. Broadly 10 the circumstances are; illicit relationship between the deceased and the accused, the deceased and the accused were last seen together, the house where the dead body was found belongs to the accused, finding of keys of the house with the accused, medical evidence is inconsistent with the theory of suicide, extra judicial confession made by the accused to PW 14 Rekha, nail injuries found on the accused, motive, no explanation offered by the accused about the suspicious death of the deceased in his house and falsity of defence. We will examine whether these circumstances are proved. 15. The prosecution has successfully established that the deceased who was a married lady had left her husband and was having illicit relationship with the accused. PW 24 Pradeep Kesare is the husband of the deceased. He has deposed about the strained relationship between him and the deceased. He has stated that he was married to the deceased on 21/6/1984. They had four children. According to him the deceased had quarrelled with him and his parents and left him. He has categorically stated that he had no sexual relationship with her from 1994. 11 16. PW 3 Kondiba Dingale has stated that the deceased was married to Pradeep Kesare in 1984. She had four children from him. She had come to his house in the year 1997. She had told him that she wanted to have a career. She again came to him in June 1998. At that time the accused was with her. The deceased and the accused told him that they wanted to file maintenance application in the court. 17. PW 25 is Prabhawati Kondiba Dhengale, the mother of the deceased. She has stated that the deceased had told her that she was not having good relationship with her husband. According to her the deceased had come and stayed with them for six months, ten years after marriage. She had then gone to Pune as she wanted to make her career. According to Prabhawati about two and half years prior to the incident in question the deceased had come to their house along with the accused. She told them that she was going to file application for maintenance and the accused was her advocate. The accused and the deceased stayed with them for one day and left on the next day morning. 12 18. PW 23 Dr. Mangal Shah has a hospital in Chinchwad, Pune. According to Dr. Shah the deceased was working as a maid in her hospital. Dr. Shah has stated that she was the family doctor of the accused. The accused used to come to her hospital for treatment daily because he had met with an accident. His house was just half a furlong away from her hospital. Rukmini, the mother of the accused also used to visit her hospital for treatment. Dr. Shah has stated that the deceased was a talkative person and was acquainted with Rukminibai. According to Dr. Shah the deceased had asked her whether it would be appropriate to entrust her case to the accused and she had told her that there was no hitch in entrusting her case to the accused. 19. DW 1 Smt. Rukmini Khulpe the mother of the accused has admitted that she used take treatment of PW 23 Dr. Shah. According to her she was acquainted with the deceased at the dispensary of Dr. Shah. She has stated that she had taken the deceased to Wai once or twice. She has admitted that the deceased used to frequently visit her house. This establishes that the deceased was very close to the accused’s family. 13 20. It is important to note that in his statement recorded under Section 313 of the Code, the accused has admitted that Dr. Shah was his family doctor and his mother’s treatment was going on in her hospital. He has admitted that he had met with an accident and therefore, he was taking treatment of Dr. Shah 2/3 months prior to the incident in question. He has admitted that his mother got acquainted with the deceased at the dispensary of Dr. Shah. 21. In this connection it is also necessary to refer to the evidence of PW 5 Pandurang Maruti Khaire. According to Pandurang Khaire he had let out his room at Thergaon to the deceased on rent of Rs.300/- per month. He has stated that the deceased had paid Rs.2000/- as deposit to him. At that time the accused had accompanied her. According to him after sometime the deceased left the house and went to stay in the house owned by one Shedage. 22. PW 6 Vasanti Puranlal lives in Shedge chawl at Thergaon, Pune. She has stated that the deceased used to live in the building situate in front of 14 her chawl. According to her she knew the deceased. The deceased was a tailor. According to her the accused used to visit the deceased at Shedge chawl. She has stated that 4 to 5 days prior to her death the deceased had told her that she was going to Wai. 23. These two witnesses are independent witnesses. They have no reason to state falsehood on oath. Their evidence establishes that the accused was keen on ensuring that the deceased who had left her husband gets some house to stay. Unless there was intimacy between the two this was not possible. 24. It is also pertinent to note that it is at the instance of the accused that the police went to the room in Shedage chawl where the deceased was staying. Exhibit 53 is the panchnama in that connection. PW 20 Jagannath Shankar Sawant has proved this panchnama. In that house receipts of a jewellery shop were found and the deceased’s name was written on them as Pushpanjali Dyaneshwar Khulpe. One sewing machine was also found in the room bearing name of the deceased as Pushpanjali Dnyaneshwar Khulpe. Therefore, the deceased was posing as the wife of the accused. PW 26 API Patil 15 has also deposed about these facts. In our opinion, therefore, the prosecution has successfully established that the deceased had left her husband and was having illicit relationship with the deceased. 25. Another important circumstance is the connection of the accused with the house in which the incident took place. PW 19 Vijay Tribhune who has lodged the F.I.R. is a relative of the accused. He stays in the house which is in front of the house where the incident took place. In his evidence he has stated that the house where the incident took place is the house of Vithal Khulpe the father of the accused and the dead body was found in that house on 21/8/98. DW 1 Smt. Rukminibai has stated that they own the said house. According to her the accused stays there alone. He looks after the payment of taxes, upkeep and maintenance of that house and he intermittently visit that house from Pune. It is not necessary to dwell on this because in his statement recorded under Section 313 of the Code the accused has said that he is not the owner of that house but the house is his. It appears, therefore, that the house belongs to the family of the accused but as 16 per the mother of the accused it was kept vacant and was used by the accused intermittently and the accused used to lookafter its maintenance. 26. PW 12 Deepak Kashinath Dhobale is a rickshaw driver. He resides in Sangarali where the house in which the deceased was killed is situate. He has stated that his house is situated in Sangarali and the house of the accused is adjoining his house. He has made a categorical statement that there is nobody in the house of the accused and that the accused alone lives in that house. He has further stated that the incident in question had occurred in the house of the accused about two years back, in the month of August. He had returned home at about 1-30 p.m. and was sitting for taking meals. When he came out of the house after having his meals, he saw smoke coming out from the top of the adjoining house of the accused. He asked whether anybody was present on the first floor. According to him one person replied from the house that he was inside. He explained the existence of smoke as being connected to the menace of mosquitoes. He has frankly said that he cannot state whose voice it was. He has not been cross-examined at all as regards the statement made by him that the house of 17 the accused adjoins his house and that the accused lives alone in that house. All that is brought on record through the cross-examination is that his house is on the western side of the house of the accused. 27. We are of the opinion that this witness inspires confidence. There is no challenge to the statement made by him that he is the immediate neighbour of the accused. In his statement under Section 313 of the Code the accused has admitted that the house of this witness adjoins his house. This witness has frankly admitted that he could not tell who told him from the house that he was present in the house and the smoke was created to deal with the menace of mosquitoes. If this witness wanted to concoct a case he could have easily said that it was the accused who told him that he was present in the house. The prosecution has rightly not declared him hostile. Since he is the neighbour of the accused it is not possible for him to forget such a gruesome incident. In the circumstances of the case it cannot be argued that this witness could not have deposed about this incident which had taken place in 1998, in the year 2000. The evidence of this witness establishes 18 that in the house of the accused situated in Sangarali where the incident had taken place, the accused was living alone. 28. Finding of the dead body in the house of the accused in suspicious circumstances is another clinching circumstance against him. PW 1 Uday Ramchandra Dhobale is a pancha to Exhibit 18. Exh.-18 is inquest panchnama. Inquest panchnama indicates that corpse of the deceased was found in the big room on the first floor of the said house. It was naked and in half burnt condition. Spot Panchnama Exh.-20 confirms that from the said house half burnt coal, rock oil can and one match box etc. were taken charge of. The dead body was identified to be that of the deceased by PW 25 Prabhawati, the mother of the deceased and PW 24 Pradeep, the husband of the deceased. Therefore, the fact that the dead body of the deceased was found in the house of the accused can hardly be disputed. 29. Another important circumstance is the seizure of keys of the said house from the accused at the time of his arrest. They are Article 43. P.W. 19 Vijay Tribhune had lodged the F.I.R. According to 19 him when he was told that smoke was coming out of the house of the accused, he went there. He found that many people had gathered there. He went upstairs from the door which was open. He saw a body burning. He then went and lodged the F.I.R. In the F.I.R. he has stated that one door of the accused’s house was open. 30. PW 2 Manohar Patwardhan is the pancha to the spot panchnama Exh.-20. He has stated that there is a wooden door to the accused’s house which is facing towards east. According to him the left plank of the door was opened by pushing it and from that they went inside. The spot panchnama Exh.-20 notices that main door of the house is at the distance of 10 feet from north to west and it has two wooden planks and an iron latch. It is further stated in the panchnama that there was a lock on it. It is further stated that to extinguish the fire of the house people had pushed open the wooden door which is on the left side. This evidence establishes that there were two doors to the house of the accused. One was locked and the other was opened by the people by pushing it in order to get in and extinguish the fire. 20 31. PW 26 Anil Patil, the Investigating Officer has stated that on 22/8/98 he had arrested the accused and drawn arrest panchnama Exh.-48. In the personal search of the accused two keys of Baba Company tied in string were recovered from his person. They are Article 43. Arrest panchnama Exh.-48 records this fact. 32. PW 21 Anil Sawant is the pancha to the demonstration panchnama Exh.-56. He has stated that on 23/8/98 he was called to the said house and in his presence lock of the said house was opened with keys Article 43. Panchnama Exh.-56 records that house No. 487 at Sangarali was opened with keys Article 43. There is no challenge to the evidence of PW 21 Anil Sawant about opening of the lock of the accused’s house with keys Article 43. It was argued that PW 2 Manohar Patwardhan who is a pancha to the spot panchnama has recorded in the panchnama and has also stated in the court that 7 keys tied in a string were found lying in the house of the accused. It was, therefore, sought to be argued that since 7 keys were found in the accused’s house, the claim of the prosecution that keys of the