- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.61 OF 2008 Monika Kiran Suryawanshi, Age 22 years, Occ. Household, R/o Shramsafalya Colony, Plot No.103, Gondur Road, Dhule (at present in Jail) ... APPELLANT (Original Accused No.1) VERSUS The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad ... RESPONDENT ----- Shri A.H. Kapadia, V.N. Damle & Hemantkumar F. Pawar, Advocates for the appellant Shri K.J. Ghute Patil, A.P.P. for respondent ----- W I T H CRIMINAL APPEAL NO.72 OF 2008 Prakash Nagraj Patil, Age 19 years, Occ. Student R/o Plot No.104, Shramsafalya Colony, Gondur Road, Dhule, District Dhule ... APPELLANT (Original Accused No.2) - 2 - VERSUS The State of Maharashtra (Copy to be served on the Public Prosecutor, High Court of Bombay, Bench at Aurangabad ... RESPONDENT ----- Shri Joydeep Chatterji, Advocate for the appellant Shri K.J. Ghute Patil, A.P.P. for the respondent ----- W I T H CRIMINAL APPEAL NO.332 OF 2008 Dnyaneshwar Gangaram Mahale, Age 21 years, Occ. Nil, R/o Khedgaon, Tq. Bhadgaon, District Jalgaon (At present in Jail) ... APPELLANT (Original Accused No.3) VERSUS The State of Maharashtra through the Police Inspector, Deopur Police Station, Dhule (Copy to be served on the Public Prosecutor, High Court of Bombay, Bench at Aurangabad ... RESPONDENT ----- Shri M.A. Tandale, Advocate for the appellant (appointed) Shri K.J. Ghute Patil, A.P.P. for the respondent ----- - 3 - CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 10th March, 2010. Date of reserving judgment : 2nd March, 2010 Date of pronouncing judgment : 10th March, 2010. JUDGMENT (PER DAVARE, J.) : 1. The challenge in these three appeals is to the judgment and order dated 7.2.2008, rendered by learned Principal Sessions Judge, Dhule in Sessions Case No.54 of 2007, convicting the appellants herein i.e. original accused Nos.1 to 3 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing each of them to suffer life imprisonment and to pay fine of Rs.10,000/-, with default condition of non payment of fine, R.I. for six months each, and also convicting the said appellants for the offence punishable under Section 120-B of the Indian Penal Code and sentencing each of them to suffer life imprisonment and to pay fine of Rs. 5000/- each with default condition of non payment of fine, R.I. for six months each, as well as convicting them for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and sentencing each of them to suffer R.I. for one year and to pay fine of Rs.1000/- each with default condition of non payment of fine to suffer further R.I. for three months each, - 4 - and directing all the substantive sentences to run concurrently. Since above referred all the three appeals arise from the judgment dated 7.2.2008 delivered in Sessions Case No.54/2007, all the said three appeals are being disposed of by the common judgment. 2. The factual matrix of othe prosecution case, which can be unfolded as under: It is the case of prosecution that the accused No.1 Monika married with the deceased Kiran Suryawanshi, who was serving in I.C.I.C.I. Bank in the year 2001 and it was a love marriage and they were residing at Plot No.103, Shramsafalya Colony, at Deopur and they were also blessed with one daughter namely Hemal out of the said wedlock. It is alleged that, the accused No.2 Prakash is neighbourer of accused No.1 and was staying in Plot No.104, Shramsafalya Colony, Deopur and he had love affair with accused No.1 Monika whereas accused No.3 Dnyaneshwar and accused No.4 Dipak are friends of accused No. 2. It is also alleged that since there was love affair between accused Nos.1 and 2, they along with accused Nos.3 and 4 hatched a conspiracy and in pursuance of the said conspiracy, accused Nos.2 and 3 went near Nakane Dam where they dug a - 5 - ditch with intention to bury the body. It is further alleged that accused administered some sedative tablets and also gave some sedative injections to victim Kiran Suryawanshi and thereafter his head was smashed with the help of grinding stone and thereafter it was wrapped with a plastic bag and his body was wrapped in a bed sheet and accordingly, after killing victim Kiran, accused Nos. 2 and 3 hired a motorcycle of their friend namely Rahul Jagdale and in the morning of 15.2.2007 while they were carrying the said dead body on the motorcycle, P.W.19 Police Constable Rajendra Mohite saw them and noticed that something was kept in between them and, therefore, he stopped them immediately and questioned them, but the accused Nos.2 and 3 gave evasive replies. Since the said place came under the jurisdiction of Deopur Police Station, P.W.19 Rajendra Mohite called his friend Prabhakar Bramhane, belonging to Deopur Police Station by telephone, who arrived on the said spot along with Mukhtar Shaikh and on seeing them, the accused Nos.2 and 3 were frightened. P.W.19 Rajendra Mohite noticed a human foot out of the bundle when he saw it carefully and, therefore, questioned both the accused Nos.2 and 3 and accused Nos.2 and 3 disclosed their names as Prakash Nagraj Patil and Dnyaneshwar Gangaram Mahale. On further questioning, they disclosed that it was a dead body of Kiran Suryawanshi. - 6 - 3. It is also the case of prosecution that P.W.22 P.S.I. Sharad Kulkarni was attached to Deopur Police Station at the relevant time and he was on patrolling duty on the night in between 14.2.2007 and 15.2.2007 and while he was passing from near Police Station Office, he saw Constable Bramhane and Mukhtar Shaikh of Deopur Police Station and Rajendra Mohite of City Police Station, questioning two persons on motorcycle and, therefore, he stopped and questioned what happened and got down and questioned the accused Nos.2 and 3 but they gave evasive replies. He also noticed human leg out of the bundle and, therefore, he became suspicious and instructed to take accused Nos.2 and 3 into custody and telephoned to superiors as well as called Government photographer P.W.7 Bapu Wadekar and the bundle from the motorcycle was removed and same was placed on the ground and it was opened and P.W.7 Bapu Wadekar took the photographs thereof (Exhibits 59 to 63 respectively). Moreover, P.W.22 P.S.I. Sharad Kulkarni made enquiry with accused Nos.2 and 3 and drew the panchanama of the said motorcycle bearing No.MH-18-P-8077 in presence of panch witness P.W.6 Santosh Jadhav, which is marked as Exhibit 57. - 7 - 4. It is also alleged that, in the meanwhile, the accused No.2 Prakash telephoned on his mobile and informed that they were caught by police, on questioning he disclosed that he had telephoned to accused No.1 Monika. Hence, P.W.22 P.S.I. Sharad Kulkarni sent jeep and constable to bring accused No.1 Monika and accordingly, Constable Bramhane, Mukhtar Shaikh and Badgujar went and brought accused No.1 Monika on the spot. Public had also gathered and, therefore, P.W.22 P.S.I. Sharad Kulkarni called the ambulance and dead body of victim Kiran Suryawanshi was sent to Civil Hospital, as well as the above referred motorcycle (Article No.2) and the accused persons were taken to Police Station and P.W.22 P.S.I. Kulkarni made station diary entry to that effect as well as he lodged complaint (Exhibit 116) which was registered under Crime No.21/2007 at Deopur Police Station under Sections 302, 120-B, 201 read with Section 34 of the Indian Penal Code and informed about the same to his superiors in writing. Accordingly, the further investigation was handed over to P.W.26 P.S.I. Govind Tamhankar and as per his instructions, P.W.22 P.S.I. Kulkarni went to Civil Hospital and prepared the inquest panchanama (Exhibit 52) of the dead body of the victim in presence of P.W.4 Panch Witness Ajay Mishra at about 7.30 to 8.30 p.m. on 15.2.2007. Moreover, parents of the accused/ appellants and deceased were informed - 8 - and they arrived. Moreover, as per instructions of P.W.26 P.S.I. Govind Tamhankar, male and female panchas were called and personal searches of accused Nos.2 and 3 were conducted in presence of panch witness P.W.11 Sanjay Shelake and Abdul Hamid, as well as personal search of accused No.1 Monika was conducted in presence of panch witness P.W.3 Nisha Chaube. During the personal search of accused No.2 Prakash, a black colour mobile bearing No.9371478905 was found and cash of Rs. 1030/-, credit card of I.C.I.C.I. Bank, S.T. ticket, handkerchief and one steel key was found. Moreover, during the personal search of accused No.3, mobile bearing No.9860124285 and cash of Rs. 2310/-, S.T. Bus Pass and one black pocket were found. The said articles were attached under the panchanama (Exhibit 90) so also during the personal search of accused No.1, one mobile bearing No.9370534374 was found and same was seized under the panchanama (Exhibit 46). Moreover, station diary entry was made to that effect and P.W.26 P.S.I. Govind Tamhankar prepared the arrest panchanama and arrested the accused Nos.2 and 3 thereunder (Exhibits 91 and 92 respectively) as well as accused No.1 Monika came to be arrested under the arrest panchanama (Exhibit 47) and the relatives of the accused were informed accordingly. - 9 - 5. It is also the case of the prosecution that meanwhile, the dead body of Kiran Suryawanshi was sent for post mortem purpose after drawing the inquest panchanama and P.W.1 Dr. Ajit Patil performed the post mortem on the said dead body and post mortem notes are marked at Exhibit 37. 6. It is also the case of prosecution that P.W.26 P.S.I. Govind Tamhankar proceeded along with accused No.1 Monika to her house and called two panchas including P.W.5 Sudam Shirole at about 8.30 a.m. on the said day and prepared the panchanama of the house of the accused No.1 (Exhibit 54). During the said panchanama, there was a mobile on one file and on enquiry, it was disclosed that it belonged to deceased Kiran Suryawanshi and its number was 9860494427 and same was seized under the said panchanama. Moreover, in kitchen they found half eaten rice and fish and some pieces of mutton and same were attached for analysis purpose, as well as one steel pot and some powder in it were attached and two small empty bottles of liquor having some portion of liquor therein were also attached therein as well as one slab of tile and one ordinary tile was also attached under the said panchanama. On the back side of the house of the door, they found blood stains near Koba and some portion thereof was attached under the panchanama (Exhibit 54). Moreover, they - 10 - removed and found some clots of blood below the ota and same also seized under the said panchanama (Exhibit 54) and thereafter the investigating party returned to the Police Station along with accused No.1. 7. It is further the case of prosecution that P.W.26 P.S.I. Govind Tamhankar recorded the statements of P.W.19 Constable Rajendra Mohite and also statement of Constable Shaikh Mukhtar, Bramhane and Sandeep Thorat. He also recorded statements of panchas and other witnesses. Moreover, accused Nos.1 to 3 were sent to Civil Hospital for medical examination and the medical officer obtained nail clipping and swab of accused Nos.1 to 3. It is also the case of prosecution that P.W.26 P.S.I. Govind Tamhankar took the photographer P.W.7 Bapu Wadekar to the house of accused No.1 and took the photographs thereof. 8. On 16.2.2007, P.W.26 P.S.I. Govind Tamhankar recorded supplementary statement of P.W.22 P.S.I. Kulkarni. Moreover, the clothes of accused No.1 were attached under the panchanama (Exhibit 48) as well as the clothes of accused No.2 Prakash and accused No.3 Dnyaneshwar were also attached under the panchanama (Exhibit 93). - 11 - 9. It is also the case of prosecution that, on 18.2.2007, accused No.1 Monika expressed willingness to show the place where grinding stone and syringe of injection were concealed and the said disclosure statement of accused No.1 Monika was recorded under the memorandum panchanama (Exhibit 94) and thereafter the accused No.1 Monika led the panchas and police personnel to Shramsafalya Colony and further led to her house and she went near the bush and removed a grinding stone and broken pieces of glass with filled injection and used injection syringe and cloth used for wiping the blood stains and handkerchief, which were seized under the memorandum panchanama (Exhibit 95) and aforesaid articles 29 to 33 respectively were seized thereunder. 10. On 19.2.2007, P.W.26 P.S.I. Govind Tamhankar recorded statement of mother of accused No.1 Monika. Moreover, he wrote letters to the Mobile Company to obtain the details as well as wrote letter to D.I.L.R. to draw the map of house of accused No.1 so also he recorded statement of Rahul Jagdale, owner of the motorcycle used in the offence on 20.2.2007. On 21.2.2007, the panchas and police party were led by accused No. 2 Prakash to a shop from where they had rented pickaxe and spade and the shop owner Anita Agrawal identified the said - 12 - accused and the said pickaxe and spade (Articles 51 and 52) were seized under the panchanama. Moreover, the accused Nos. 2 and 3 also took the police and panchas near Nakane Talao and showed the spot where a ditch was dug and further accused No.2 took the police and panchas to the house of the owner of the shop who sold rope to them and the said owner Asif Shaikh identified the accused persons to whom the said rope was sold. The statmenet of said Asif Shaikh was recorded. Thereafter, the said accused No.2 took the police and panchas to the shop from where syringes were purchased and panchanama to that effect was drawn which is marked as Exhibit 55. P.W.26 P.S.I. Govind Tamhankar also recorded statements of Sachin Nerkar, photographer and Lalit Bhavsar and also statement of Kranti, sister of accused No.1 Monika and also recorded statement of Dipali Joshi, friend of Kranti, as well as statement of Prakash Runwal came to be recorded, who sold a syringe to accused No.2 Prakash. 11. On 24.2.2007, P.W.26 P.S.I. Govind Tamhankar went along with accused No.2 Prakash to Kannad where accused No.2 Prakash showed house of Jitendra Neve, from where he had taken tablets and accordingly, P.W.26 P.S.I. Govind Tamhankar instructed Jitendra Neve to remain present in Deopur Police - 13 - Station on the next day. They also went to the house of accused No.2 Prakash and recorded statements of Vasundhara Khoche i.e. owner of said premises and the room of accused No.2 Prakash was opened with a key which was attached earlier and on instructions, accused No.2 Prakash operated the computer which was in the said room and accused No.2 also showed photo of accused No.1 Monika on the said computer. Some letter pad of Janseva Blood Bank was found and aforesaid articles were seized under the panchanama (Exhibit 110). 12. It is further the case of prosecution that P.W.26 P.S.I. Govind Tamhankar went to Manas Hospital, Aurangabad where accused No.4 Deepak was present and he came to be arrested and he was sent for medical examination. Moreover, statements of owner and servant of Apna Lodge were recorded as well as statement of Sachin Deshmukh and Jitendra Neve and driver Harshal Shinde were recorded. P.W.26 P.S.I. Govind Tamhankar also obtained details of telephone calls from S.P. Office. Moreover, P.W.26 P.S.I. Govind Tamhankar recorded statements of parents and sister of deceased and sent a letter to Dr. Ajit Patil making query regarding grinding stone (Exhibit 39). Thereafter, he prepared the questionnaire of all the muddemal articles and thereafter forwarded the same to C.A. Office along with - 14 - questionnaire (Exhibit 43). Moreover, during the course of investigation, P.W.26 P.S.I. Govind Tamhankar also recorded statements of other witnesses as well as C.A. reports were obtained, which are marked as Exhibits 50 and 56 respectively. Accordingly, after conclusion of investigation, P.W.26 P.S.I. Govind Tamhankar filed the charge sheet against the accused persons before the learned Judicial Magistrate, First Class, Court No.2, Dhule on 7.5.2007. However, since some of the offences were exclusively triable by Sessions Court, the learned Judicial Magistrate, First Class committed the case to the Court of Sessions, Dhule. The learned Sessions Judge, Dhule framed the charge against the accused persons at Exhibit 9. To substantiate the charges levelled against the accused persons, the prosecution examined inasmuch as 26 witnesses as mentioned below: PW1 Dr. Ajit Patil, who performed the post mortem on the dead body of deceased Kiran Suryawanshi and produced post mortem notes at Exhibit 37. PW2 Sadesing Chavan, Carrier, who carried the muddemal articles to C.A. Office. PW3 Smt. Nisha Chobe, female panch for the search panchanama of house of accused No.1 (Exhibit 46) and panch to arrest panchanama of accused No.1 (Exhibit 47) as well as - 15 - panchanama under Section 27 (Exhibit 48) and map (Exhibits 49 and 50) PW4 Ajay Mishra, panch to inquest panchanama (Exhibit 52). PW5 Sudam Shirole, panch to house search panchanama of accused No.1 (Exhibit 54) and panchanama of pit (Exhibit 55). PW6 Santosh Jadhav, panch to panchanama of seizure of motorcycle (Exhibit 57). PW7 Bapu Wadekar, Police Photographer. PW8 Rajendra Sonawane, panch to panchanama of seizure of clothes of deceased (Exhibit 65). PW9 Dinesh Patil, photographer who took the photographs of house of accused No.1 Monika. PW10 Sachin Nerkar, photogrpher who took the photograph of pit and uploaded the same on Compact Disk. PW11 Sanjay Shelake, panch to arrest panchanama of arrest of accused Nos.2 and 3 with their cell phones (Exhibits 91 and 92) and panchanama of seizure of clothes (Exhibit 93) and memorandum panchanama (Exhibits 94 and 95) regarding discovery of Warwanta and other articles at the instance of accused No.1 and panch to arrest panchanama of accused No.4 (Exhibit 96). PW12 Dr. Sachin Deshmukh, owner of Manas Children Hospital, Aurangabad and employer of accused No.4. PW13 Jitendra Neve, Pathologist and friend of Rahul Jagdale - 16 - and accused No.3 worked with him. PW14 Lalit Runwal, Chemist, who sold syringe to accused No.2. PW 15 Anita Agrawal, shopkeeper, who hired pickaxe, spade, pet and iron container to accused. PW 16 Shaikh Asif, shopkeeper, who sold rope to accused Nos.2 and 3. PW17 Rahul Jagdale, owner of motorcycle No.MH-18-T-8017. PW18 Lalit @ Nilesh Bhavsar, who allegedly gave gift of accused No.2 to accused No.1. PW19 Police Constable Rajendra Mohite, who accosted accused Nos.2 and 3 on motorcycle during intervening night of 14th and 15th February 2007. PW20 Amol Jahurkar, panch to the panchanama of search of rented room of accused No.1 at Dhule (Exhibit 110). PW21 Vijay Shinde, officer from Bharti Airtel. PW22 PSI Sharad Kulkarni i.e. complainant, who lodged the FIR (Exhibit 116). PW23 Rekha Suryawanshi, mother of deceased Kiran. PW24 Lalit Patil, Deputy General Manager, Reliance Company. PW25 Rajendra Goswami, Office Colleague of deceased Kiran in I.C.I.C.I. Bank. - 17 - PW26 PSI Govind Tamhankar, investigating officer. 13. The defence of the accused was of total denial and victim Kiran met with accident and succumbed to the injuries and accused Nos.2 and 3 contended that they were never caught at the spot and that the dead body of the deceased must have been found in unattended condition and accused No.2 was in his house, from where he was arrested and that deceased Kiran Suryawanshi was lastly in the company of his friends and that accused No.1 Monika was informed about the incident of accident and, therefore, she came and questioned about her husband and about the incident, but the accused Nos.1 to 3 were implicated in the case falsely and they claimed to be innocent. 14. After scrutinising and appreciating the evidence adduced and produced by the prosecution, the learned Principal Sessions Judge, Dhule convicted and sentenced the appellants/ accused persons as aforestated. Being aggrieved and dissatisfied by the said judgment and order dated 7.2.2008, convicting and sentencing the accused persons, they have challenged the same under the present three different appeals, and prayed for quashment thereof. 15. The entire pivot of the prosecution case revolves - 18 - around the circumstantial evidence since there is no direct evidence. 16. Before adverting to the submissions advanced by learned counsel for the appellants and the learned A.P.P., we feel it necessary to scrutinise the material evidence adduced and produced by the prosecution and in that context, at the first instance, coming to evidence of P.W.1 Dr. Ajit Patil, wherein it is stated that, he was attached to Bhausaheb Hire Medical College as a Lecturer at the relevant time and on 15.2.2007, he was on duty and received a latter (Exhibit 36) from police personnel to conduct the post mortem on the dead body of the victim Kiran Suryawanshi and accordingly, he conducted the post mortem at 12.15 to 13.00 Hrs. on the said day. On examination, he found the following external injuries: 1. Head compressed from side to side. 2. CLW over forehead Rt. Side 6 cm. x 2.5 cm. x brain deep just above the right elbow. 3. Crush injury over Rt. External ear. Oozing of blood present. 4. Injection mark over Lt. arm posteriorly middle 1/3rd. 5. Injection mark over chest Rt. Nipple. - 19 - PW 1 Dr. Ajit Patil also found communicated fracture of frontal bone and all injuries were antemortem in nature and fresh. On internal examination, he found following injuries : 1. Haematoma under Lt. temporo parietal Rt. Temporal, frontal and occipital region of scalp. There was communited fracture of frontal bone Rt. side. There was depressed fracture frontal bone, Rt. parietal and temporal bones. There was fracture of middle cranial fossa. There was diffused extradura and sudural haemorrhage. Piece of frontal bone impacted in Rt. Frontal lobe – which was crushed. There were contusions over Lt. temporal in occipital lobes. There were subarachnoid haemorrhage, Cerebral oedema present. All internal organs were pale. Stomach was empty. He further stated that, injuries mentioned in Column No.19 and corresponding external injuries 1 to 3 in Column No.17 are sufficient to cause death in the ordinary course. He further stated that, the cause of death was due to head injuries. Accordingly, he issued post mortem report which is produced at Exhibit 37. He further stated that, the aforesaid injuries are possible due to hard and blunt object and more than one blow was given. He also stated that, the said injuries were possible by - 20 - grinding stone. During cross-examination, he stated that, injury Nos.4 and 5 in Clause No.17 cannot be termed as injuries and they are injection marks. Suggestion was given to him that injuries are possible if a person on his own hits his head on Article 29 (Warwanta) out of anger, but same was denied by him. He further stated that, the said injuries are possible by two or more blows. He also stated death must have been taken place around 6 or 12 hours before post mortem examination as well as stated that, the injury No.2 of Column No.17 are corresponds with injury No.18 and injury Nos.1 and 3 are corresponding to each other. In the cross-examination, he also opined that if a slight injury or a gerk is caused to cardiorespiratory center, there is possibility of death and in that case injury is not visible. He further stated that, he had gone through inquest report and there was no mention of time of death in the inquest, but he stated that it was mentioned in Column No.13 of the post mortem report. 17. Keeping in mind the said aspects and coming to the deposition of P.W.4 Ajay Mishra, panch to the inquest panchanama, who stated that, he came to know about the - 21 - incident from his executive officer on 15.2.2007 and, therefore, he immediately went to Civil Hospital and another panch Goswami was present, they saw the dead body of Kiran and there