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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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-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
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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
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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
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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::: Downloaded on – 09/06/2013 16:34:00 :::
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APEAL-544-05little finger was crushed wound was because of sharp
instrument or object on (Rt) palm. His left side woundwas 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 provingthat 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.
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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
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APEAL-544-05fact 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
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APEAL-544-05or 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
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APEAL-544-055.2cm in length, .4cm in breadth,muscle
deep,spingle shaped,both angles acute.8. Incised wound on left forearm,medially,2 cm in
length,oblique,linear,muscle deep.
9. Incised wound on left arm,posteriorly,just above
elbow joint laterally 3cms in length,1cm inbreadth,muscle deep.
10.Incised wound on left arms,posteriorly,just above
elbow joint,medial side,3 cm in length,1 cm inbreadth,muscle deep.
11.Incised wound on left arm posteriorly,between
injury no 9 and injury no 10 mentioned above.
4cms in length 1.5 cms in breadth,muscle deep.12.Incised stab wound on left upper arm,anterior
aspect, just above elbow joint,2cm in length,1cm inbreadth, muscle deep.
13.Incised stab wound on upper arm (left) anteriorly
lower third, 2cm in length,1 cm in breadth, muscledeep.
14.Incised stab wound on upper arm (left) anteriorly
5 cm in length, 1 cm in breadth, muscle deep.15.Incised stab wound on upper arm left upper arm
(left) anteromedially 4 cm in length , 1 cm in
breadth, muscle deep.16.Incised stab wound on upper arm (left) upper third
anteromedially, 4 cm in length , 1 cm in
breadth,muscle deep.17.Incised stab wound on upper arm (left)
anteromedially upper third 6 cm in length , 1 cm in
breadth,muscle deep.18.Incised stab wound on lateral region of left upper
chest 2 cm in length 1 cm in breadth,muscle deep.19.Stab wound on anterior aspect of left deltoid,oval,
1 cm in diameter,muscle deep.20.Stab wound on anterolateral aspect left
deltoid,oval 1 cm in diameter,muscle deep.21.Incised stab wound on lateral aspect of left
pectoral region 2 cm in length 1 cm in
breadth,cavity deep.22.Stab wound on left pectoral region upper
part,medially,oval,1 cm in diameter,cavity deep.23.Incised stab wound on left pectoral region middle
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APEAL-544-05third,medially, 2 cm in length, 1 cm in
breadth,cavity deep.24.Stab wound just below injury no 23,oval,1 cm in
diameter,cavity deep.
25.Incised stab wound on left pectoral region lower
third,medially 2 cm in length, 1 cm inbreadth,muscle deep.
26.Stab wound between 7th and 8th let ribs,
midclavicular line,spindle shaped,both anglesacute,cavity deep.
27.Incised wound on left jaw,lateral
side,oblique,linear, 2 cm in length, muscle deep,28.Incised wound on upper lip,left side ,oblique,linear,
1 cm in length,muscle deep.
29.Incised wound on right elbow posteriorly,oblique,2
cm in length, 1 cm in breadth, muscle deep.
30. Incised wound on posterior aspect of right upper
arm lower third, 2cm in length 1 cm in breadth,muscle deep.
31.Incised wound on right cheek,oblique,running
upward and backward up to right ear with partial
amputation of external ear linear, 8cm in length,muscle deep.
32.Incised wound on right palm,near base of index
finger,anteriorly, linear 1 cm in length,muscle deep.
33.Stab wound on upper chest, just right side of mid
line, below right clavicle, oval,1 cm in diameter,
cavity deep.34.Stab wound just below injury no.33, oval,.5 cm in
diameter cavity deep.35.Stab wound on anterior chest wall, mid line
middle third,oval,1 cm in diameter, cavity deep.36.Stab wound just below injury no. 35 oval .5 cm in
diameter,cavity deep.37.Stab wound in epigastria region,oval 1 cm in
diameter,cavity deep.38.Stab wound just below injury no 37 oval,1cm in
diameter cavity deep.39.Stab wound on anterior abdominal wall, just above
the umbilicus right side oval 1 cm in
diameter,cavity deep.40.Stab wound on anterior abdominal wall above the
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APEAL-544-05umbilicus right side,oval 1 cm in diameter, coils of
small intestines protruding from the wound.41.Stab wound on left thigh, middle third, anteriorly,
both angles acute, 1 cm in diameter, muscle deep.
42.Stab wound just above left knee muscle deep,
laterally, both angles acute, 1.5.cm in diameter.43.Incised stab wound on posterior aspect of neck
just below the occiput four in number,
vertical ,parallel to each other measuring 3 cms to3.5 cms in length and 1 cm in breadth, muscle
deep.44.Incised stab wound on right scapular region, seven
in number, parallel to each other, vertical, allmeasuring 2 cm in length, 1 cm in breadth, muscle
deep.”20. PW-15 also found during internal examination of the body,
fractures of 2nd and 3rd right rib and body of sternum with
hemorrhage at sites. Both lungs were found collapsed. Multiple stab
wounds bilaterally. 1300 ml. blood found with clots present in
abdominal cavity. Small intestines perforated at three places, each
perforation .5 cm in diameter hemorrhage at site. Liver stab wounds
on inferior border, 2 in number .5 cm in diameter each with
hemorrhage at site. Thus cause of death mentioned was shock and
hemorrhage due to multiple, incised stab wounds involving vital
organs, caused by sharp tapering weapon. Viscera was preserved and
referred for test, opinion of which did not disclose any poison (report
Exh. 49). It was homicidal death of Suvarna beyond any reasonable
doubts.
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22APEAL-544-05
21. F.S.L report from C.A. revealed that blood group of deceased
Suvarna was ‘A’. While blood group of Harshal Rawate was ‘O’. But
the clothes which were worn by the appellant on the date of incident
which were identified as his Shirt (Article ’14’) identified by PW-1
Malati, PW-6 Manohar, and Article-14 Shirt, Article-15 Pant,
Article-16 banian identified by PW-9 Sanjay More (a friend of the
appellant Harshal) were found stained with human blood of ‘A’ group
which belonged to the deceased Suvarna. (Vide Exhs. 66 and 72 C.A.
reports). This was again a serious incriminating circumstance against
the appellant, which he did not explain. He was bound to explain as
to how and why blood stains of the blood group ‘A’ were detected on
his clothes which was not his blood group. During his statement
under Section 313 of Code of Criminal Procedure, the appellant did
not dispute his relationship with deceased Suvarna that he is husband
of her sister and the fact that PW-1 Malati lodged complaint (Exh. 23)
at Kalva Police station against him. The appellant did not dispute the
fact that PW-8 Suhas Pathare knew him and the appellant used to
attend his Gym. The appellant also did not dispute his acquaintance
with PW-9 Sanjay More, PW-10 Rajendra Borade, as also medical
treatment he received for his injuries, with the assistance of his
friends from Dr.Bhute (PW-12), 40 to 50 stitches which he had
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23
APEAL-544-05received to his hand as also earlier medical treatment at Manek
Nursing Home given by Dr Bhosale (PW-11). The appellant in his
statement under Section 313 of Code of Criminal Procedure answered
the question No.115 as under :
“Q.115 : Do you want to say anything more about the
case ?
Ans. : On 20/10/2003 due to dash of motor cycle & fall
down in gutter and due to pieces in said gutter I sustained
injury on right hand palm. Therefore. I went to my friend
and asked him to take me to hospital. Accordingly my saidfriend admitted me in hospital. After my arrest only I
come to know about a conclusion made against me. Inthis case I did nothing I am innocent.”
22. It is well settled rule that the prosecution must stand or fall
on its own legs and it cannot derive any strength from the weakness
of the defence. In Deo Nandan Mishra Vs. State of Bihar 1955 Cri
LJ 1647 : AIR 1955 SC 801; however it has been held as under:
“But in a case like this where the various links as stated
above have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity to
the deceased as regards time and situation such absence
of explanation or false explanation would itself be an::: Downloaded on – 09/06/2013 16:34:00 :::
24
APEAL-544-05additional link which completes the chain.”
Thus a false explanation of the accused can be used as
additional link if the following conditions are satisfied:(i) various links in the chain of evidence led by the
prosecution have been satisfactorily proved;(ii) the circumstance points to the guilt of the accused
with reasonable definiteness and;(iii) Circumstance is a proximity to the time and situation.
23.
In the instant case, as these conditions are fulfilled, we can
use above false explanation or false defence and non-explanation of
the proved circumstances as an additional link to lend assurance of
guilt of the appellant.
24. In Trimukh Maroti Kirkan Vs. State of
Maharashtra 2006 (10) SCC 681 it has been held :
"The normal principle in a case based on circumstantial evidence is that the circumstancesfrom which an inference of guilt is sought to be drawn
must be cogently and firmly established; that
those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
accused; that the circumstances taken cumulatively
should form a chain so complete that there is no::: Downloaded on – 09/06/2013 16:34:00 :::
25
APEAL-544-05escape from the conclusion that within all
human probability the crime was committed bythe accused and they should be incapable of
explanation on any hypothesis other than that ofguilt of the accused and inconsistent with their
innocence.”It is further held that :
“If an offence takes place inside the privacy of a house
and in such circumstances, where the assailants
have all the opportunity to plan and commit the
offence at the time and in circumstances of theirchoice, it will be extremely difficult for the prosecution to
lead evidence to establish the guilt of the
accused if the strict principle of circumstantialevidence, as noticed above, is insisted upon by the
courts. A judge does not preside over a criminal
trial merely to see that no innocent man is punished. Ajudge also presides to see that a guilty man
does not escape. Both are public duties. The law
does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossibleto be led or at any rate extremely difficult to be led.
The duty on the prosecution is to lead such evidence
which it is capable of leading, having regard to the
facts and circumstances of the case. Here it is
necessary to keep in mind Section 106 of the
Evidence Act which says that when any fact is::: Downloaded on – 09/06/2013 16:34:00 :::
26
APEAL-544-05especially within the knowledge of any person, the
burden of proving that fact is upon him.”25. The onus to prove his defence and the circumstances
relating to his injury and treatment were within the special
knowledge of the appellant. He could not therefore, keep
silent and say that the obligation rested on the Prosecutionto prove its case.
26. In the case of Sharad Birdhichand Sarda Vs.state of
Maharashtra AIR 1984 SC 1622, it has been dealt with elaborately
as to how the chain of circumstantial evidence has to be completed
in all respect. The relevant paragraphs 152 & 153 are reproducedherein below:
“152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case againstan accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.It may be noted here that this Court indicated that the
circumstances concerned ‘must or should’ and not ‘may
be’ established. There is not only a grammatical but alegal distinction between ‘may be proved’ and ‘must be
or should be proved’ as was held by this Court in Shivaji
Sahabrao Bobade & Anr. v. State of Maharashtra(1973)
2 SCC 793 : (AIR 1973 SC 2622) where the following
observations were made:“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a::: Downloaded on – 09/06/2013 16:34:00 :::
27
APEAL-544-05court can convict and the mental distance between
‘may be’ and ‘must be’ is long and divides vagueconjectures from sure conclusions.”
(2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to
say. they should not be explainable on any otherhypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) There must be a chain of evidence so complete asnot to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must havebeen done by the accused.
153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based oncircumstantial evidence.”
27. The aforesaid cardinal principles with regard to the
completion of chain of circumstantial evidence for holding the
appellants guilty are required to be established by the prosecution in
the case.
28. The Apex Court in the ruling of Padala Veera Reddy v. State
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APEAL-544-05
of Andhra Pradesh, (AIR 1990 SC 79), has observed that when a
case rests on circumstantial evidence, the following tests must be
satisfied:
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be in
consistent with his innocence.
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APEAL-544-05
29. In C.Chenga Reddy and others v. State of Andhra Pradesh,
(AIR 1996 SC 3390), the Apex Court has held that:- “In a case based
on circumstantial evidence, the settled law is that the circumstances
from which the conclusion of guilt is drawn should be fully proved
and such circumstances must be conclusive in nature. Moreover, all
the circumstances should be complete and there should be no gap left
in the chain of evidence. Further, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.”
30. The principle that would emerge from the above decisions is
that, conviction can be based solely on circumstantial evidence but it
should be tested on the touchstone of law relating to circumstantial
evidence laid down by the Judicial precedents above.
31. Keeping in view the settled legal principle, we have
re- appreciated the evidence on record. It is true that this case is not
of direct evidence of an eye witness to commission of murder of
deceased Suvarna by the accused/appellant, who is none other than
the brother-in-law of the deceased, but is based on circumstantial
evidence and the circumstances brought on record and established by
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APEAL-544-05
the prosecution which is of clinching category are:-
A) The accused was seen at the place of occurrence
coming out of the flat holding something wrapped
in the cloth within his hand and said to Malati
(PW1) “nothing has happened” and went away
immediately.
B) He came out of the flat by opening the door and
stood there for a second and told PW-1 that
“nothing has happened”, and immediately PW-1
Malati on her entry in the flat found Suvarna lying
dead in the pool of blood lying on the floor .
C) According to PW-6, the appellant had hurriedly
went away jumping over the compound wall of
the building.
D) Earlier when PW-5 Jayashree had rang the door
bell, the appellant though he was inside the flat,
had not responded.
E) Appellant had received injuries to his palms and
little finger for which he received long medical
treatment with the help of his friends PW-9 and
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31
APEAL-544-05PW-10 in the hospital of Dr.Bhute (PW-12), but the
appellant did not report about it to his own family
members though his friend advised him
accordingly.
F) He had given different false versions to different
persons regarding cause of the injuries received by
him, the inescapable inference against him is he
did so only with a view to hide his guilt.
G) Prior to the commission of crime, the appellant had
assured service for Suvarna in the Indian Bank and
had collected total sum of Rs 80,000/- from her
husband Mangesh.
H) He had managed to prepare a bogus call letter,
purportedly issued from the Indian Bank, Dadar,
addressed to Suvarna in her maiden name and got
it served upon her through a courier, informing her
to join duty on 24/11/2003 as Probationor Officer,
on that pretext the appellant had collected huge
money from Mangesh (Suvarna’s husband).
I) According to Mangesh (PW-7), the appellant had
met his wife on a day prior to the incident for
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APEAL-544-05
about 15 to 20 minutes .
J) Appellant on the day of incident, at about
11.30.a.m. to 12.00.noon had contacted Mangesh
at his office on his mobile phone to ensure that
Mangesh was on duty on that day in the office at
Nhava Sheva.
K) After the murder of Suvarna the appellant had
taken away her Mangalsutra and bogus call letter.
Mangalsutra was sold by Appellant to Vijay
Kinariwala (PW-17).
L) The Appellant’s shirt (Article no.14), his pant
(Article No.15), and banian (Article no.16)
identified by his friend Sanjay More as the same
clothes which he was wearing on the date of
incident on 20/11/2003 were found stained with
blood of the ‘A’ group which blood group belonged
to the deceased Suvarna. Shirt (Article14) was also
identified by the prosecution witnesses Malati
(PW-1) and Manohar (PW-6) as the same shirt
which the appellant was wearing on the date of
incident when he had came out of the flat of
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APEAL-544-05
Suvarna.
M)Appellant had received injuries which required 40
stitches for which he gave false and lame
explanation while his statement was recorded
under section 313 of the Code of Criminal
Procedure in the Trial Court that a motor cycle
accident had occurred which resulted in his fall in
the gutter, without adducing any evidence or
material to support such plea. The false plea itself
becomes an added chain or link in the list of
circumstances against the appellant to prove that it
was appellant and appellant alone who committed
murder of his sister-in-law Suvarna. The appellant’s
conduct and his tendency to invent different stories
at different times told by him to prosecution
witnesses, at various stages of the case, indicated
only his guilty psyche and feeble attempts to avoid
his penal liability any how by hook or crook with a
view to escape from the clutches of Penal Law.
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APEAL-544-05
32. Thus case in hand is considered by us in the totality of the
circumstances, also taking into consideration the gravity of the
charges, the appellant had killed his Sister-in-law Suvarna, by cleverly
scheming the serious crime of murder of Suvarna. Taking undue
disadvantage of her husband’s absence and after ensuring that he will
find her alone inside her flat, had entered in the flat, committed her
brutal murder by inflicting multiple incised wounds upon her body in
a broad day light which proved fatal and also stolen her Mangalsutra
and call letter. The FIR had been lodged on the same day promptly, by
mother-in-law of Suvarna, who came across the appellant and saw
him coming out of Suvarna’s flat soon after the crime. First informant
had immediately named the appellant as the culprit who committed
the offence of murder of her daughter-in-law Suvarna.
33. It is difficult to imagine, as suggested by learned Counsel for
the appellant, that the complainant and the other witnesses had all
falsely named the appellant as being the person responsible for the
offence of murder at the initial stage itself. They had no animosity
whatsoever against the appellant to involve him in a very serious
crime. All incriminating facts and circumstances revealed from the
evidence were self-explanatory and unerringly pointed towards guilt
of the appellant beyond reasonable doubts.
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APEAL-544-05
34. To conclude, for the reasons stated above, we do not find any
fault or infirmity with the learned trial Judge’s findings of facts who
recorded impugned conviction against the appellant under Section
302 and 380 of Indian Penal Code after appreciating the evidence led
on the record. In the facts and circumstances of the case, we do not
see any cogent reasons to interfere with the findings of fact recorded
by the trial court below, nor any other acceptable ground is made out
so as to persuade us to take a different view than the view taken by
the trial Court. The Criminal Appeal is without merits and stands
dismissed.
(D. D. SINHA, J.)
(A. P. BHANGALE, J.)
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