{"id":137717,"date":"2010-10-21T00:00:00","date_gmt":"2010-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kolhapur-vs-the-state-of-maharashtra-on-21-october-2010"},"modified":"2015-12-30T18:03:34","modified_gmt":"2015-12-30T12:33:34","slug":"kolhapur-vs-the-state-of-maharashtra-on-21-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kolhapur-vs-the-state-of-maharashtra-on-21-october-2010","title":{"rendered":"Kolhapur vs The State Of Maharashtra on 21 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kolhapur vs The State Of Maharashtra on 21 October, 2010<\/div>\n
Bench: D.D. Sinha, A.P. Bhangale<\/div>\n
                                            1\n                                                                    APEAL-544-05\n\n\n              IN THE HIGH COURT OF JUDICATURE AT MUMBAI\n\n                      CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                               \n                       CRIMINAL APPEAL NO.544 OF 2005\n\n\n\n\n                                                       \n    Harshal Suresh Rawate,                  ]\n    Address at D\/11, Chembur                ]\n\n\n\n\n                                                      \n    Gauthan, Mumbai - 71.                   ]\n    [presently lodged at                    ]\n    Kolhapur Central Prison                 ]\n\n\n\n\n                                          \n    Kolhapur].                              ] ..APPELLANT.\n          Versus\n                           \n    The State of Maharashtra.               ]..RESPONDENT.\n                          \n                                 .........\n    Mr.Abhaykumar Apte, Advocate (appointed) for the appellant.\n    Mr.H.J. Dedhia, A.P.P. for the State.\n      \n\n\n                                      .........\n   \n\n\n\n                                         \n                        CORAM :  D. D. SINHA  &  A. P. BHANGALE,  JJ.\n<\/pre>\n
                        DATE OF RESERVING      )   :     05.10.2010\n                        THE JUDGMENT           )\n\n                        DATE OF PRONOUNCING )   :    21.10.2010\n                        THE JUDGMENT           )\n\n\n\n\n\n    ORAL JUDGMENT (PER A. P. BHANGALE , J.) :\n\n\n\n<\/pre>\n
    1.      This Appeal is directed against the Judgment and order dated <\/p>\n
    09\/03\/2005   passed   in   the   Sessions   Case   No.88   of   2004     by   the <\/p>\n
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    learned 3rd  Ad hoc Additional Sessions Judge,   Thane, whereby the <\/p>\n
    appellant was found guilty of the offence punishable under section <\/p>\n
    302 of the Indian Penal Code  and sentenced to suffer imprisonment <\/p>\n
    for life and to pay fine in the sum of Rs.500\/-, in default, to undergo <\/p>\n
    rigorous imprisonment (R.I.) of one month. The appellant was also <\/p>\n
    convicted   for   offence   punishable   under   section   380   of   the   Indian <\/p>\n
    Penal Code and sentenced to suffer R.I. for 5 years and fine in the <\/p>\n
    sum of Rs.500\/- in default to suffer imprisonment for one month.\n<\/p>\n
    2.      Case of the prosecution, in brief, is that : Deceased Suvarna <\/p>\n
    resided with her husband Mangesh  Manohar Kadam at flat No 303, <\/p>\n
    Building No.B-2, ‘Shivsrushti’, situated at Kharegaon, Kalva, District <\/p>\n
    Thane. The appellant is her sister’s husband. He had promised service <\/p>\n
    in   the   Indian   Bank   for   his   Sister-in-law,   namely,   Suvarna   Mangesh <\/p>\n
    Kadam ( maiden name Suvarna Savant) in Indian Bank and informed <\/p>\n
    her   to   join   service   at   Indian   Bank,   Dadar   branch   with   effect   from <\/p>\n
    24\/11\/2003 and   on that pretext to arrange employment for her he <\/p>\n
    had collected  total sums of Rs 80,000\/- from her husband Mangesh <\/p>\n
    from time to time.  He got a bogus call letter, purportedly issued from <\/p>\n
    the Indian Bank, Dadar, prepared by himself by means of his personal <\/p>\n
    computer and sent it to her through private courier. Apprehending <\/p>\n
    that this fraud and deception would be   surely exposed and would <\/p>\n
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    come to light  when Suvarna would  visit  the Indian Bank at Dadar <\/p>\n
    branch   on   24\/11\/2003   to  join   the   employment     mentioned  as  the <\/p>\n
    date of  her joining pursuant to that bogus call- letter,  he  planned to <\/p>\n
    do away with Suvarna herself and went to her flat, in the absence of <\/p>\n
    her husband while   her husband was away on duty at Nhava-Sheva <\/p>\n
    Port,  entered inside her flat when Suvarna was alone and committed <\/p>\n
    her brutal murder by stabbing forcibly and repeatedly in her stomach <\/p>\n
    and   causing   multiple   wounds   upon     her   body.   The   murder   was <\/p>\n
    committed inside her flat. There was no eye witness to the incident of <\/p>\n
    murder.   But   the   shouts   raised   at   the   time   of   incident   alerted <\/p>\n
    neighbour Jayshree who rang the door bell, but having found that <\/p>\n
    nobody   was     responding,   she   had   rushed   to   inform   parents   of <\/p>\n
    Mangesh, who were residing nearby in the same locality. Mother-in-\n<\/p>\n
    law of Suvarna had rushed towards Suvarna’s residence. When Malati <\/p>\n
    (mother-in-law of Suvarna) reached the flat, she found that the door <\/p>\n
    was little moved and then she came across the appellant (Harshal) <\/p>\n
    who  came out of the flat of Suvarna at that time and uttered ‘nothing <\/p>\n
    has happened’ and went away in highly suspicious manner carrying <\/p>\n
    something   in   his   hand.   Malati,   upon   entering   inside   the   flat,   was <\/p>\n
    stunned to find her daughter-in-law lying dead on the floor in the <\/p>\n
    pool of blood with multiple injuries on her body.\n<\/p>\n
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                                                                        APEAL-544-05<\/p>\n
    3.      The   complaint   about   the   incident   was   lodged   soon   on   the <\/p>\n
    same day at Kalva Police Station, District Thane under Section 302 of <\/p>\n
    IPC against the accused Harshal Rawate. Investigation followed soon.\n<\/p>\n
    Thereafter,   the   appellant   who   absconded   from   the   scene   could   be <\/p>\n
    arrested   on   25\/11\/2003.   Upon   completion   of   investigation,   the <\/p>\n
    charge sheet was filed on 09\/01\/2004 in the court of the 1st Judicial <\/p>\n
    Magistrate   F.C.   Thane,   The   case   was   committed   to   the   Court   of <\/p>\n
    Sessions at Thane  on 12\/03\/2004.\n<\/p>\n
    4.      The Charge was framed on 02\/09\/2004 (Exh.7). The accused <\/p>\n
    pleaded not guilty and claimed trial (plea recorded at Exh.8 ). The <\/p>\n
    prosecution examined 21 witnesses and closed evidence in the trial <\/p>\n
    court.   The   defence   of   the   accused   was   of     denial   of   crime.   The <\/p>\n
    accused chose not to lead any evidence in support of his defence.\n<\/p>\n
    5.      We were taken through the evidence  led on record and the <\/p>\n
    impugned judgment and order.  We have heard learned advocate for <\/p>\n
    the appellant and learned A.P.P. for the State.\n<\/p>\n
    6.      On behalf of the appellant, it is contended that since it is a <\/p>\n
    case   rest   on   circumstantial   evidence,   the   trial   court   ought   to   have <\/p>\n
    acquitted the appellant for want of evidence beyond reasonable doubt <\/p>\n
    of the alleged incident of murder of Suvarna.\n<\/p>\n
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                                                                        APEAL-544-05<\/p>\n
    7.      Facts   and  circumstances    revealed  in     prosecution   evidence, <\/p>\n
    which led to the  conviction of the appellant in the trial court, are as <\/p>\n
    under:-\n<\/p>\n
           Mangesh   Manohar   Kadam   (PW   7)   and   his   wife   Suvarna <\/p>\n
    (deceased)   resided   at   flat   No   303,   third   floor,   ‘B’   wing   of   Shiv-\n<\/p>\n
    Shrushti   Co-operative   Housing   Society’s   building   at   Kharegaon, <\/p>\n
    Kalwa, Taluka & District – Thane, after they married on 25\/03\/2003.\n<\/p>\n
    Mangesh   was   doing   a   job   of   Clearing   Agent   at   Nhava   Sheva   Port <\/p>\n
    between 9 a.m. to 9 p.m.   So Suvarna used to remain alone in the <\/p>\n
    house (Flat No. 303). On 20\/11\/2003 at about 2.20.p.m., Jayshree <\/p>\n
    Jadhav (PW 5) neighbourer, residing in flat No. 302 had heard shouts <\/p>\n
    coming from the flat of Shri Mangesh Kadam.  She rang the door bell <\/p>\n
    of the flat of Mangesh, but nobody responded at that time. Jayshree <\/p>\n
    told about it to another neighbour   who also rang the door bell but <\/p>\n
    again there was no response. Then Jayshree immediately went to the <\/p>\n
    house   of   parents   of   Mangesh   who   were   residing   nearby   in   the <\/p>\n
    neighborhood   to   inform   them.   Immediately   Malati   Kadam   (PW-1) <\/p>\n
    came   along   with   Jayshree.     Jayshree   had   kept   her   children   in   the <\/p>\n
    neighbour’s flat, hence she took her children and went back to her <\/p>\n
    flat.   Later,   she   heard   Malati   Kadam     raising   shouts   and   she   was <\/p>\n
    informing about the fact that Suvarna was seen lying dead on the <\/p>\n
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\n                                                                        APEAL-544-05<\/p>\n
    floor inside her flat. Malati had seen the appellant coming out of the <\/p>\n
    flat and going away from the flat in highly suspicious manner before <\/p>\n
    she entered inside the flat and saw that Suvarna lying dead in injured <\/p>\n
    condition inside the flat.\n<\/p>\n
           Complaint was then lodged  at Kalwa police station against the <\/p>\n
    appellant by PW-1 Smt.Malati  Manohar Kadam  (mother of Mangesh <\/p>\n
    and mother-in-law of deceased-Suvarna), in respect of the incident <\/p>\n
    which occurred on 20\/11\/2003 at about 02.30 p.m. at flat No.303, <\/p>\n
    third floor, ‘B’ wing of Shiv-Shrushti Co-operative Housing Society’s <\/p>\n
    building, Kharegaon, Kalwa, Taluka & District – Thane.  According to <\/p>\n
    the   first   informant   (Malati),   her   husband   (PW-6   Manohar)   had <\/p>\n
    occasion to visit the house of his daughter-in-law  Suvarna earlier in <\/p>\n
    the day, at about 12.30 noon on 20\/11\/2003  to bring green petticoat <\/p>\n
    required by his wife, which Suvarna had given.  Later on, on the same <\/p>\n
    day, after the first informant was informed by PW-5 Jayshree Jadhav <\/p>\n
    (neighbor of her son’s flat) at about 2.20 p.m. about shouts she heard <\/p>\n
    from the flat of her son Mangesh, said Malati rushed immediately to <\/p>\n
    the   flat   of   her   Son.   She   found   that   the   door   was   slightly   moved, <\/p>\n
    therefore,   she stood there for a while. At that time, the appellant <\/p>\n
    Harshal Rawate (sister’s husband of deceased Suvarna) came out of <\/p>\n
    the flat by opening the door and stood there for a second. At that <\/p>\n
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\n                                                                      APEAL-544-05<\/p>\n
    time, he told her that nothing had happened and went away. He had <\/p>\n
    in his hand something wrapped inside the clothes. When she entered <\/p>\n
    inside the flat, she saw that her daughter-in-law Suvarna was lying <\/p>\n
    dead in the pool of blood  on the floor.  Her intestines had came out <\/p>\n
    of her stomach due to injury, she came out of the flat raising shouts.\n<\/p>\n
    When she came to first floor,  she  met her husband who asked her as <\/p>\n
    to what has happened. She informed about death of Suvarna.\n<\/p>\n
    8.      First informant’s husband Manohar Kadam (PW-6)   deposed <\/p>\n
    that,   on 20\/11\/2003 at about 12.30 noon, he had occasion to visit <\/p>\n
    the flat  of his son and at that time he had collected petticoat  from <\/p>\n
    Suvarna, and he returned to his house. Later on, on the same day <\/p>\n
    after Jayshree informed at about 2.20.p.m. the shouts heard from the <\/p>\n
    flat of Mangesh, he had also gone to the flat following his wife who <\/p>\n
    had   rushed   immediately.   PW-6   when   he   reached   Shiv-Shrushti <\/p>\n
    building   had   occasion   to   see   Harshal   Rawate   coming   down   the <\/p>\n
    staircase   of   the   building   with   something   in   his   right   hand.   PW-6 <\/p>\n
    deposed   that   Harshal   was   seen   wearing   the   black-red   and   blue <\/p>\n
    coloured shirt (Article 14 before the court). Harshal Rawate at that <\/p>\n
    time   went   away   jumping   over   the   compound   wall.   After   PW-6 <\/p>\n
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    climbed up the stairs and when he reached the 1st  floor he met his <\/p>\n
    wife who informed him that Harshal Rawate killed Suvarna and ran <\/p>\n
    away. Thereafter, when he went to the flat of his son  and opened the <\/p>\n
    door he saw that Suvarna was lying in the pool of blood with several <\/p>\n
    bleeding injuries on her person and her intestines had came out from <\/p>\n
    her stomach. Blood stains on the walls were seen. They also found <\/p>\n
    that Suvarna’s Mangalsutra was missing.\n<\/p>\n
    9.<\/p>\n
            According   to   the   first   informant   (Malati),   the   appellant <\/p>\n
    Harshal Rawate  had assured service in the Bank for Suvarna and had <\/p>\n
    collected  total sum of Rs.80,000\/-to do the work (paid from time to <\/p>\n
    time by Mangesh-her Son). Accordingly, Suvarna had applied to the <\/p>\n
    Bank. Mangesh Kadam (Suvarna’s husband and PW-7) deposed that <\/p>\n
    on 20\/11\/2003 his brother-in-law had contacted him on the mobile <\/p>\n
    phone and had asked him about the health of his wife Suvarna and he <\/p>\n
    replied that it was all right. He had also enquired as to whether he is <\/p>\n
    at home or on duty. Mangesh informed him that he was on duty in <\/p>\n
    the   office.   Thereafter,   Harshal   told   him   that   he   is   going   to <\/p>\n
    Ahmadabad with his boss and will return on the next day late night.\n<\/p>\n
    Mangesh was also informed by his wife Suvarna about the visit of <\/p>\n
    Harshal  to  his  house  a  day prior to the incident on 19\/11\/2003 for<\/p>\n
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\n                                                                     APEAL-544-05<\/p>\n
    about 15 minutes  to 20 minutes. It has further come in the evidence <\/p>\n
    of   Mangesh   that   he   had   received   phone   call   from   his   father   on <\/p>\n
    20\/11\/2003 at about 2.30.pm when his father informed him about <\/p>\n
    the incident of   murder of his wife Suvarna by Harshal Rawate and <\/p>\n
    the fact that Harshal Rawate was seen leaving the place. Mangesh <\/p>\n
    returned to the house immediately and saw his wife lying dead in the <\/p>\n
    flat near the door while panchnama was being drawn by the police.\n<\/p>\n
    10.<\/p>\n
              Evidence   of   Mangesh   also   revealed   the   fact   that   appellant <\/p>\n
    Harshal had collected the cash amounts from Mangesh from time to <\/p>\n
    time on the pretext  to arrange getting job for Suvarna in the Indian <\/p>\n
    Bank. The appellant had prepared a bogus call-letter and got it issued <\/p>\n
    to   Suvarna.   The   appellant\/accused   had   taken   it   away   with <\/p>\n
    Mangalsutra of Suvarna while he committed her murder.\n<\/p>\n
    11.       The complaint was registered as FIR No.I-194 of 2003 at the <\/p>\n
    Kalwa   Police   station   (Exh.   23).   It   was   recorded   by     PW-19   Aziz <\/p>\n
    Mehmood   Shaikh,   P.S.I.   attached   to   Kalwa   police   Station   on <\/p>\n
    20\/11\/2003 who handed over   the investigation to Senior Inspector <\/p>\n
    Shri   Shaikh.   PW-20   Mr.   Gautam   Anna   Gaikwad,   Police   Officer <\/p>\n
    arrested  the appellant on  25\/11\/2003 under panchnama (Exh-17).\n<\/p>\n
    The said   police officer interrogated the accused. Two panchas were <\/p>\n
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\n                                                                            APEAL-544-05<\/p>\n
    called.   Along   with   the   accused   and   the   panchas,   the   Investigating <\/p>\n
    Officer proceeded to a stationary shop and bought a blank floppy  and <\/p>\n
    then proceeded to Chembur to the house of the accused and with the <\/p>\n
    help of panchas downloaded the letter stored in the computer of the <\/p>\n
    accused to the floppy (Article No.12). Then accused led police and <\/p>\n
    Panchas to the house of Pathare (PW-8)  so as  to get print out of the <\/p>\n
    letters  from the floppy with the aid of  the computer of Mr. Pathare.\n<\/p>\n
    Thus   they   got   the   letters   articles   A,   B,   C     print   out   from   the   said <\/p>\n
    floppy.   PW-8   Mr.   Pathare   is  an   acquaintance   of  the   accused  as  the <\/p>\n
    accused used to visit his gym. Mr. Pathare corroborated the fact that <\/p>\n
    on 27\/11\/2003 the police from Kalwa Police Station along with the <\/p>\n
    appellant-Harshal with two persons with an computer expert visited <\/p>\n
    the gym to get the print out with the aid of the computer and printer <\/p>\n
    at the gym. He identified letters Article A, B, C  as the same print-outs <\/p>\n
    taken from his computer-printer.  PW-13  Chalvedi, having business of <\/p>\n
    courier   service   as   M\/s.   A.   N.   Enterprises   gave   evidence   that   the <\/p>\n
    accused had came to his   office on 09\/10\/2003   with the letters of <\/p>\n
    Indian   Bank   which   were   to   be   delivered   to   Suvarna   Sawant     and <\/p>\n
    Sarita  Sawant (their maiden names) which were duly delivered and <\/p>\n
    acknowledged   vide   Exhs.   41   and   42.   Delivery   boy   Terence   Lewis <\/p>\n
    deposed that he had delivered the letter to Suvarna Sawant in Shiv <\/p>\n
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\n                                                  11<\/span>
\n                                                                          APEAL-544-05<\/p>\n
    -Shrishti   Co-operative   Housing   Society,   Kharegaon   and <\/p>\n
    acknowledgment (Ex.41) was obtained which she had signed in his <\/p>\n
    presence   after   receiving   the   letter.   PW-14   admitted   in   his   cross <\/p>\n
    examination that  he  had gone to the Block which stood in the name <\/p>\n
    of Mangesh Kadam for delivery of the letter and after he delivered the <\/p>\n
    letter to her, she took it to her house and later on, by signing the <\/p>\n
    acknowledgment   (Exh.41),   delivered   it   back   to   him.   PW-16   Chief <\/p>\n
    Manager of the Indian Bank, Dadar (West) Branch,  upon verification <\/p>\n
    of the photocopy of the appointment letter, confirmed the fact that <\/p>\n
    Article ‘A’ was false appointment letter. The emblem on the top at the <\/p>\n
    bottom of the letter was not that of the Indian bank, the address of <\/p>\n
    the   head   office   was   also   incorrect   and   it   was   not   issued   from   the <\/p>\n
    Indian Bank. He also clarified in the course of his cross examination <\/p>\n
    that   the   Head   office   of   the   Bank   is   the   only   authority   to   give   an <\/p>\n
    appointment   letter.   Thus   prosecution   had   established   that   the <\/p>\n
    appellant had prepared a bogus call letter of the Indian Bank, Dadar <\/p>\n
    addressed to deceased Suvarna which he had prepared by means of <\/p>\n
    his personal computer.\n<\/p>\n
    12.        PW-20 Mr. Gaikwad also gave evidence that   he along with <\/p>\n
    the accused and the panchas  and Mr. Borade (PW-10)  went to Vashi <\/p>\n
    Naka at Chembur. Shri Borade (friend of the appellant) disclosed that <\/p>\n
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\n                                                                   APEAL-544-05<\/p>\n
    he had thrown  blood stained clothes of the accused in the Aziz Baug.\n<\/p>\n
    During the search, one plastic bag containing full shirt, full pant and <\/p>\n
    banian stained with blood were recovered.\n<\/p>\n
    13.      Shri   Borade   informed   that   the   accused   had   handed   over <\/p>\n
    those clothes to him.   PW-20 drew Panchnama (Ex 29). He deposed <\/p>\n
    that the  Article Nos. 14, 15  and 16  before the court are the same.\n<\/p>\n
    Shri Rajendra Borade was examined by the Prosecution as PW-10. He <\/p>\n
    deposed that on 20\/11\/2003 at about 3.00 p.m. the accused Harshal <\/p>\n
    Rawate came by Rickshaw to the carom club and called him .He saw <\/p>\n
    Harshal Rawate sitting inside the rickshaw and his palm at that time <\/p>\n
    was covered with the bandage. Harshal told him story that on that <\/p>\n
    day he wanted to go to Ahmadabad  but his friend met him and told <\/p>\n
    the accused  that he had some work with him and took him to Curry <\/p>\n
    Road,   where   some   boys   had   attacked   on   his   friend.     When   the <\/p>\n
    accused tried to save  himself from being assaulted, he had received <\/p>\n
    the injury when he tried to catch hold the knife which was in the <\/p>\n
    hand of assailant.  He sustained cut injury on his palm. Harshal then <\/p>\n
    asked Shri Borade to take him to some known doctor. Shri Borade <\/p>\n
    had taken Harshal to   Manek nursing Home. Doctor had advised him <\/p>\n
    to go to Sion Hospital. Doctor Bhosale, who treated the accused and <\/p>\n
    had  charged  Rs.250\/- which  amount  was paid by the  witness  Shri <\/p>\n
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\n                                                13<\/span>
\n                                                                        APEAL-544-05<\/p>\n
    Borade.   The   conduct   of   the   accused   was   evident.   The   accused <\/p>\n
    withdrew cash of Rs.3000\/- from ATM, then went to Dr. Bhute.  40 to <\/p>\n
    50 stitches were given to  injuries on the palms(hand) of the accused.\n<\/p>\n
    Even   then   the   accused   had   specifically   avoided   to   inform   his   own <\/p>\n
    family members. While leaving the Hospital,  the accused had  at that <\/p>\n
    time  handed  over  the  Mangalsutra,  money purse  to his friend and <\/p>\n
    gold chain to Sanjay More. On the next day morning, the accused had <\/p>\n
    asked Mr Borade to bring clothes and accordingly one shirt, banian, <\/p>\n
    and a track pant was handed over to the accused. The accused then <\/p>\n
    asked his friend Shri Borade to throw  the clothes of the accused by <\/p>\n
    inserting them into one plastic bag which the witness threw beyond <\/p>\n
    compound near Aziz Baug Bus  Stop  in  Chembur. The Accused was <\/p>\n
    discharged on the 3rd day from the Hospital. PW-11 Dr.Dilip Bhosale, <\/p>\n
    from Manek Nursing Home had treated the accused on 20\/11\/2003.\n<\/p>\n
    The   accused   with   bandage   to   his   palmer   aspect   of   the   hand   had <\/p>\n
    approached   him.   Dr.   Bhosale   had   put   the   gamjee-pad     over   the <\/p>\n
    bandage to stop the bleeding. The accused told the doctor that he <\/p>\n
    wants to go to Sion Hospital. In Dr.Bhosale’s cross examination, it is <\/p>\n
    brought on record that when Dr.Bhosale had inquired about the cause <\/p>\n
    of the injury, the accused told him that it was caused by the glass.\n<\/p>\n
    This   story   was   contradictory   to   what   he   told   earlier   to   his   friend <\/p>\n
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\n                                               14<\/span>
\n                                                                      APEAL-544-05<\/p>\n
    Rajendra Borade. The accused gave another story to Dr. Arun Bhute <\/p>\n
    (PW-12) when he had treated the accused on 20\/11\/2003 at 5.30 <\/p>\n
    p.m. that his hands came in contact with the glass lying in the gutter <\/p>\n
    due to which he sustained the injuries. Dr.Bhute had produced notes <\/p>\n
    of   treatment   given   to  the   accused  (Exh.39)   and  expressed  opinion <\/p>\n
    that the injury observed by him was possible by any sharp object and <\/p>\n
    were   possible   by   knife.   The   notes   indicate   the   nature   of   injuries <\/p>\n
    observed on the person of the accused  Harshal thus:- Crush of little <\/p>\n
    finger.   CLW   on   root   of   Thumb   3x2x1   cm.   CLW   on   each   finger.\n<\/p>\n
    Dr.Bhute in his notes made his observation thus:-multiple injuries on <\/p>\n
    palm due to glass or sharp object crushed on little finger ? Due to <\/p>\n
    knife rotated in feast. Operative notes indicates that 40 stitches had to <\/p>\n
    be given to the injuries received by the accused. Dr.Arun Bhute had <\/p>\n
    issued   certificate   (Exh.21)   dated   5\/12\/2003   on   his   letter   head <\/p>\n
    genuineness of which was admitted by the defence under section 294 <\/p>\n
    of the Code of Criminal Procedure and exhibited, which reads thus:-\n<\/p>\n
          “Whomsoever
\n                 This is to certify that Mr. Harshal Suresh Raote was
\n          admitted   on   20\/11\/2003   at   5.30   p.m.   in   Dr.Bhute’s
\n          Nursing Home re dressing full of wet re Blood (Dressing
\n          was red due to Bleeding). On examination he was having
\n          multiple   clean   incised  wound   on   palm,   on   fingers   and <\/p>\n
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\n                                               15<\/span>
\n                                                                      APEAL-544-05<\/p>\n
          little   finger   was   crushed   wound   was   because   of   sharp
\n          instrument or object on (Rt) palm. His left side wound <\/p>\n
          was on the wrist and web portion of Thumb  and index
\n          finger were due to sharp teeth.<\/p>\n
                 This is sent for your information”\n<\/p><\/blockquote>\n
    14.       The   above   observations   constitute   serious   incriminating <\/p>\n
    circumstance   established   against   the   appellant   but   no     satisfactory <\/p>\n
    explanation   was   adduced   by   the   appellant   as   to   how   and   why   he <\/p>\n
    received those injuries. It was obligatory for the appellant to tender <\/p>\n
    explanation in respect of the facts which were especially within his <\/p>\n
    special knowledge, in view of section 106 of the Indian Evidence Act.\n<\/p>\n
    Section 106 of the Indian Evidence Act,1872 reads thus:-\n<\/p>\n
               “106.   Burden   of   proving   fact   especially   within
\n               Knowledge — When any fact is especially within the
\n               knowledge   of   any   person,   the   burden   of   proving <\/p>\n
               that fact is upon him.”\n<\/p><\/blockquote>\n
    15.       Therefore,   once   the   prosecution   has   discharged   it’s   initial <\/p>\n
    burden to establish the guilt of the accused beyond reasonable doubt, <\/p>\n
    the above Rule which is in the nature of exception to Section 101 of <\/p>\n
    the Act operates requiring the accused to place circumstances before <\/p>\n
    the   Court,   which   are   especially   within   his   knowledge,   in   order   to <\/p>\n
    show that his plea in defence is reasonable and probable one.\n<\/p>\n
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\n                                               16<\/span><\/p>\n
                                                                      APEAL-544-05<\/p>\n
    16.       PW-9   Sanjay   More   (rickshaw   driver)   gave   evidence   to <\/p>\n
    corroborate the fact of medical treatment which the Appellant had <\/p>\n
    received   at   the   Hospital   of   Dr.Arun   Bhute.   Sanjay     had   asked   the <\/p>\n
    appellant to inform his family members but the appellant replied that <\/p>\n
    he had already informed his family members and that he will be out <\/p>\n
    of station for two days along with his boss. PW-9 identified Articles14 <\/p>\n
    (Shirt) and Article 15(pant) which appellant was wearing on the day <\/p>\n
    of incident.\n<\/p>\n
    17.       PW-17 Vijay Kinarewala (goldsmith) identified the accused as <\/p>\n
    the same person who had came to his shop on 24\/11\/2003 with his <\/p>\n
    both palms   covered in bandage and told him   that he and his wife <\/p>\n
    met with an accident and his wife was admitted in Hospital and so he <\/p>\n
    was in need of money. It was under the circumstances, the goldsmith <\/p>\n
    purchased   the   Mangalsutra   for   sum   of   Rs15,500\/-   which   he   had <\/p>\n
    melted.\n<\/p>\n
    18.       Knife   (Sura), the alleged weapon of offence, could not be <\/p>\n
    recovered from the creek to which the investigating officer and the <\/p>\n
    panchas   were   led   by   the   Appellant.   PW-2   Rajesh   deposed   about <\/p>\n
    correctness  of   the  Panchnama  dated  1\/12\/2003  (Exh.   26)  and  the <\/p>\n
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\n                                                 17<\/span>
\n                                                                          APEAL-544-05<\/p>\n
    fact     that     appellant     had     led     police     and     the   Panchas   to   the <\/p>\n
    creek but nothing could be traced out from the spot   pointed   out <\/p>\n
    by   the accused (appellant).   PW-3 Sudhakar also gave evidence in <\/p>\n
    respect   of   the   same   Panchnama   but   chose   not   to   support   the <\/p>\n
    prosecution   case   fully   and   was   disowned   by   the   prosecution <\/p>\n
    which   cross   examined   him.   The   evidence   of   PWs-2   and   3   did <\/p>\n
    not   establish     as   to   whether   the   appellant   had   volunteered   any <\/p>\n
    statement   to   point-out   the   spot   where   the   weapon   of   offence   was <\/p>\n
    allegedly thrown and searched. It is necessary for the investigating <\/p>\n
    officer   to   record   a   memorandum   in   respect   of   the   voluntary <\/p>\n
    statement, if any, made by the accused while he is under investigation <\/p>\n
    in   the   police   custody,   preferably   in   presence   of   the   Panchas <\/p>\n
    (independent witnesses) under the panchnama duly drawn. This is <\/p>\n
    necessary   to   ensure   greater   authenticity   for   the   evidence   as   to <\/p>\n
    discovery   of   a   fact   which   was   within   exclusive   knowledge   of   the <\/p>\n
    accused which he volunteered to disclose in presence of the panchas.\n<\/p>\n
    But non-recovery of weapon of offence by itself, in our view, would <\/p>\n
    not   militate   against   the   prosecution   because   of   the   conduct   of  the <\/p>\n
    appellant in this  case    which is very relevant. The accused though <\/p>\n
    injured, instead of reporting the incident to his own  family  members<\/p>\n
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\n                                             18<\/span>
\n                                                                     APEAL-544-05<\/p>\n
    or to near relatives of Suvarna or to the police, made good his escape <\/p>\n
    from the scene of crime and hurriedly went away from the scene of <\/p>\n
    offence after the commission of  crime. The accused was  arrested on <\/p>\n
    25\/11\/2003 by PW-20 Gaikwad under Panchnama (Exh.17) during <\/p>\n
    the course of investigation.\n<\/p>\n
    19.      Homicidal death of Suvarna:-  the inquest over the dead body <\/p>\n
    of   Suvarna   was   drawn   on   20\/11\/2003   under   Panchnama   Exh.11, <\/p>\n
    wherein   multiple   stab   injuries  received  by   Suvarna  were   observed.\n<\/p>\n
    The   dead   body   of   Suvarna   was   referred   for   the   postmortem <\/p>\n
    examination. This was done by PW-15 Dr D .B. More as per Exh.48.\n<\/p>\n
    PW-15 found  and noted following ante-mortem injuries:-\n<\/p>\n
             1. Incised   stab   wound   on   left   palm,   anterior   aspect
\n                between   thumb   and   index   finger   2.2.cmx1   cms
\n                muscle deep spindle shaped  both angles acute.\n<\/p><\/blockquote>\n
             2. Incised wound on left index finger, anterior aspect, <\/p>\n
                distal   phalanx,   oblique   1.2   cms   in   length,   linear,
\n                muscle deep.\n<\/p><\/blockquote>\n
             3. Incised   wound   on   left   middle   finger,   anteriorly
\n                terminal   phalanx,oblique   1cm.   in   length   linear,
\n                muscle deep.\n<\/p><\/blockquote>\n
             4. Incised wound on left ring finger anteriorly distal
\n                phalanx oblique 1 cm in length muscle deep.\n<\/p><\/blockquote>\n
             5. Incised wound on left little finger,anteriorly distal
\n                phalanx,oblique,8   cms   in   length   linear,muscle
\n                deep.\n<\/p><\/blockquote>\n
             6. Incised   stab   wound   on   left   wrist,   anterolaterally
\n                oblique,3cm   in   length,.4cm   in   breadth,spindle
\n                shaped,both angles acute.\n<\/p><\/blockquote>\n
             7. Incised   stab   wound   on   left   elbow,posterolaterally <\/p>\n
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\n                                     19<\/span>
\n                                                             APEAL-544-05<\/p>\n
        5.2cm   in   length,   .4cm   in   breadth,muscle
\n        deep,spingle shaped,both angles acute.\n<\/p><\/blockquote>\n
     8. Incised   wound   on   left   forearm,medially,2   cm   in <\/p>\n
        length,oblique,linear,muscle deep.\n<\/p>\n
     9. Incised   wound   on   left   arm,posteriorly,just   above
\n        elbow   joint   laterally   3cms   in   length,1cm   in <\/p>\n
        breadth,muscle deep.\n<\/p>\n
     10.Incised   wound   on   left   arms,posteriorly,just   above
\n        elbow   joint,medial   side,3   cm   in   length,1   cm   in <\/p>\n
        breadth,muscle deep.\n<\/p>\n
     11.Incised   wound   on   left   arm   posteriorly,between
\n        injury   no   9   and   injury   no   10   mentioned   above.
\n        4cms in length 1.5 cms in breadth,muscle deep.\n<\/p>\n
     12.Incised   stab   wound   on   left   upper   arm,anterior
\n        aspect, just above elbow joint,2cm in length,1cm in <\/p>\n
        breadth, muscle deep.\n<\/p>\n
     13.Incised stab wound on upper arm (left) anteriorly
\n        lower third, 2cm in length,1 cm in breadth, muscle <\/p>\n
        deep.\n<\/p>\n
     14.Incised stab wound on upper arm (left) anteriorly
\n        5 cm in length, 1 cm in breadth, muscle deep.\n<\/p>\n
     15.Incised stab wound on upper arm left upper arm <\/p>\n
        (left)   anteromedially   4   cm   in   length   ,   1   cm   in
\n        breadth, muscle deep.\n<\/p>\n
     16.Incised stab wound on upper arm (left) upper third
\n        anteromedially,   4   cm   in   length   ,   1   cm   in
\n        breadth,muscle deep.\n<\/p>\n
     17.Incised   stab   wound   on   upper   arm   (left) <\/p>\n
        anteromedially upper third 6 cm in length , 1 cm in
\n        breadth,muscle deep.\n<\/p>\n
     18.Incised stab wound on lateral region of left upper
\n        chest 2 cm in length 1 cm in breadth,muscle deep.\n<\/p>\n
     19.Stab wound on anterior aspect of left deltoid,oval,
\n        1 cm in diameter,muscle deep.\n<\/p>\n
     20.Stab   wound   on   anterolateral   aspect   left
\n        deltoid,oval 1 cm in diameter,muscle deep.\n<\/p>\n
     21.Incised   stab   wound   on   lateral   aspect   of   left
\n        pectoral   region   2   cm   in   length   1   cm   in
\n        breadth,cavity deep.\n<\/p>\n
     22.Stab   wound   on   left   pectoral   region   upper
\n        part,medially,oval,1 cm in diameter,cavity deep.\n<\/p>\n
     23.Incised stab wound on left pectoral region middle <\/p>\n
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\n                                     20<\/span>
\n                                                             APEAL-544-05<\/p>\n
        third,medially,   2   cm   in   length,   1   cm   in
\n        breadth,cavity deep.\n<\/p>\n
     24.Stab wound just below injury no 23,oval,1 cm in <\/p>\n
        diameter,cavity deep.\n<\/p>\n
     25.Incised stab  wound  on left pectoral region  lower
\n        third,medially   2   cm   in   length,   1   cm   in <\/p>\n
        breadth,muscle deep.\n<\/p>\n
     26.Stab   wound   between   7th  and   8th  let   ribs,
\n        midclavicular   line,spindle   shaped,both   angles <\/p>\n
        acute,cavity deep.\n<\/p>\n
     27.Incised   wound   on   left   jaw,lateral
\n        side,oblique,linear, 2 cm in length, muscle deep,\n<\/p>\n
     28.Incised wound on upper lip,left side ,oblique,linear, <\/p>\n
        1 cm in length,muscle deep.\n<\/p>\n
     29.Incised wound on right elbow posteriorly,oblique,2 <\/p>\n
        cm in length, 1 cm in breadth, muscle deep.\n<\/p>\n
     30.  Incised wound on posterior aspect of right upper
\n        arm lower third, 2cm in length 1 cm in breadth, <\/p>\n
        muscle deep.\n<\/p>\n
     31.Incised   wound   on   right   cheek,oblique,running
\n        upward and backward up to right ear with partial
\n        amputation  of  external  ear  linear,  8cm  in  length, <\/p>\n
        muscle deep.\n<\/p>\n
     32.Incised   wound   on   right   palm,near   base   of   index <\/p>\n
        finger,anteriorly, linear 1 cm in length,muscle deep.\n<\/p>\n
     33.Stab wound on upper chest, just right side of mid
\n        line,   below   right   clavicle,   oval,1   cm   in   diameter,
\n        cavity deep.\n<\/p>\n
     34.Stab wound just below injury no.33, oval,.5 cm in
\n        diameter cavity deep.\n<\/p>\n
     35.Stab   wound   on   anterior   chest   wall,   mid   line
\n        middle third,oval,1 cm in diameter, cavity deep.\n<\/p>\n
     36.Stab wound just below injury no. 35 oval .5 cm in
\n        diameter,cavity deep.\n<\/p>\n
     37.Stab   wound   in   epigastria   region,oval   1   cm   in
\n        diameter,cavity deep.\n<\/p>\n
     38.Stab  wound  just below  injury no  37  oval,1cm  in
\n        diameter cavity deep.\n<\/p>\n
     39.Stab wound on anterior abdominal wall, just above
\n        the   umbilicus   right   side   oval   1   cm   in
\n        diameter,cavity deep.\n<\/p>\n
     40.Stab wound on anterior abdominal wall above the <\/p>\n
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\n                                              21<\/span>
\n                                                                      APEAL-544-05<\/p>\n
                 umbilicus right side,oval 1 cm in diameter, coils of
\n                 small intestines protruding from the wound.\n<\/p>\n
              41.Stab wound on left thigh, middle third, anteriorly, <\/p>\n
                 both angles acute, 1 cm in diameter, muscle deep.\n<\/p>\n
              42.Stab   wound   just   above   left   knee   muscle   deep,
\n                 laterally, both angles acute, 1.5.cm in diameter.\n<\/p>\n
              43.Incised   stab   wound on posterior aspect of neck
\n                 just   below   the   occiput   four   in   number,
\n                 vertical ,parallel to each other measuring 3 cms to <\/p>\n
                 3.5   cms   in   length   and   1   cm   in   breadth,   muscle
\n                 deep.\n<\/p>\n
              44.Incised stab wound on right scapular region, seven
\n                 in   number,   parallel   to   each   other,   vertical,   all <\/p>\n
                 measuring 2 cm in length, 1 cm in breadth, muscle
\n                 deep.”\n<\/p>\n
    20.       PW-15 also found during internal examination of the body, <\/p>\n
    fractures   of   2nd  and   3rd  right   rib   and   body   of   sternum   with <\/p>\n
    hemorrhage at sites. Both lungs were found collapsed. Multiple stab <\/p>\n
    wounds   bilaterally.   1300   ml.   blood   found   with   clots   present   in <\/p>\n
    abdominal   cavity.   Small   intestines   perforated   at   three   places,   each <\/p>\n
    perforation .5 cm in diameter hemorrhage at site. Liver stab wounds <\/p>\n
    on   inferior   border,   2   in   number   .5   cm   in   diameter   each   with <\/p>\n
    hemorrhage at site. Thus cause of death mentioned was shock and <\/p>\n
    hemorrhage   due   to   multiple,   incised   stab   wounds   involving   vital <\/p>\n
    organs, caused by sharp tapering weapon. Viscera was preserved and <\/p>\n
    referred for test, opinion of which did not disclose any poison (report <\/p>\n
    Exh. 49). It was homicidal death of Suvarna beyond any reasonable <\/p>\n
    doubts.\n<\/p>\n
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\n                                               22<\/span><\/p>\n
                                                                       APEAL-544-05<\/p>\n
    21.       F.S.L report from C.A. revealed that blood group of deceased <\/p>\n
    Suvarna was  ‘A’.  While blood group of Harshal Rawate was ‘O’. But <\/p>\n
    the clothes which were worn by the appellant on the date of incident <\/p>\n
    which   were   identified  as  his  Shirt  (Article   ’14’)  identified by  PW-1 <\/p>\n
    Malati,   PW-6   Manohar,   and   Article-14   Shirt,   Article-15   Pant, <\/p>\n
    Article-16   banian   identified   by   PW-9   Sanjay   More   (a   friend   of   the <\/p>\n
    appellant Harshal) were found stained with human blood of  ‘A’ group <\/p>\n
    which belonged to the deceased Suvarna. (Vide Exhs. 66 and 72 C.A.\n<\/p>\n
    reports). This was again a serious incriminating circumstance against <\/p>\n
    the appellant, which he did not explain. He was bound to explain as <\/p>\n
    to how and why blood stains of the blood group ‘A’ were detected on <\/p>\n
    his   clothes   which   was   not   his   blood   group.   During   his   statement <\/p>\n
    under Section 313 of Code of Criminal Procedure, the appellant did <\/p>\n
    not dispute his relationship with deceased Suvarna that he is husband <\/p>\n
    of her sister and the fact that PW-1 Malati lodged complaint (Exh. 23) <\/p>\n
    at Kalva Police station against him. The appellant did not dispute the <\/p>\n
    fact that PW-8 Suhas Pathare knew him   and the appellant used to <\/p>\n
    attend his Gym. The appellant also did not dispute  his acquaintance <\/p>\n
    with   PW-9   Sanjay   More,   PW-10   Rajendra   Borade,   as   also   medical <\/p>\n
    treatment   he   received   for   his   injuries,   with   the   assistance   of   his <\/p>\n
    friends   from   Dr.Bhute   (PW-12),   40   to   50   stitches   which   he   had <\/p>\n
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\n                                              23<\/span>
\n                                                                      APEAL-544-05<\/p>\n
    received   to   his   hand   as   also   earlier   medical   treatment   at   Manek <\/p>\n
    Nursing Home given by Dr Bhosale   (PW-11). The appellant in his <\/p>\n
    statement under Section 313 of Code of Criminal Procedure answered <\/p>\n
    the question No.115 as under :\n<\/p>\n
          “Q.115 :   Do you want to say anything more about the <\/p>\n
          case ?\n<\/p><\/blockquote>\n
          Ans. : On 20\/10\/2003 due to dash of motor cycle & fall <\/p>\n
          down in gutter and due to pieces in said gutter I sustained <\/p>\n
          injury on right hand palm. Therefore. I went to my friend
\n          and asked him to take me to hospital. Accordingly my said <\/p>\n
          friend   admitted   me   in   hospital.   After   my   arrest   only   I
\n          come   to   know   about   a  conclusion   made   against   me.   In <\/p>\n
          this case I did nothing I am innocent.”\n<\/p><\/blockquote>\n
    22.       It is well settled rule that the prosecution must stand or fall <\/p>\n
    on its own legs and it cannot derive any strength from the weakness <\/p>\n
    of the defence.  In Deo Nandan Mishra Vs. State of Bihar 1955 Cri  <\/p>\n
    LJ 1647 : AIR 1955 SC 801;  however it has been held as under:\n<\/p>\n
             “But in a case like this where the various links as stated
\n             above   have   been   satisfactorily   made   out   and   the
\n             circumstances   point   to   the   appellant   as   the   probable
\n             assailant, with reasonable definiteness and in proximity to
\n             the deceased as regards time and situation such absence
\n             of   explanation   or   false   explanation   would   itself   be   an <\/p>\n
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\n                                                 24<\/span>
\n                                                                          APEAL-544-05<\/p>\n
             additional link which completes the chain.”<\/p><\/blockquote>\n
          Thus   a   false   explanation   of   the   accused   can   be   used   as
\n    additional link if the following conditions are satisfied:\n<\/p>\n
          (i)      various   links   in   the   chain   of   evidence   led   by   the
\n          prosecution have been satisfactorily proved;\n<\/p><\/blockquote>\n
          (ii)     the   circumstance   points   to   the   guilt   of   the   accused
\n          with reasonable definiteness and;\n<\/p><\/blockquote>\n
          (iii) Circumstance is a proximity to the time and situation.\n<\/p><\/blockquote>\n
    23.<\/p>\n
                In the instant case, as these conditions are fulfilled, we can <\/p>\n
    use above false explanation or false defence and non-explanation of <\/p>\n
    the proved circumstances as an additional link to lend assurance of <\/p>\n
    guilt of the appellant.\n<\/p>\n
    24.         In    Trimukh       Maroti       Kirkan       Vs.       State       of  <\/p>\n
    Maharashtra 2006 (10) SCC 681 it has been held :\n<\/p>\n
          \"The     normal       principle       in       a       case     based       on \n          circumstantial     evidence     is   that     the     circumstances \n\n\n\n\n\n<\/pre>\n
          from   which   an inference of guilt is sought to be drawn
\n          must   be   cogently   and   firmly           established;     that
\n          those       circumstances      should      be       of      a      definite
\n          tendency   unerringly   pointing   towards   the   guilt   of   the
\n          accused;     that     the     circumstances taken cumulatively
\n          should form a chain    so   complete   that   there   is   no <\/p>\n
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\n                                                25<\/span>
\n                                                                        APEAL-544-05<\/p>\n
          escape     from       the       conclusion       that       within       all
\n          human   probability   the   crime   was    committed   by <\/p>\n
          the     accused     and     they     should     be     incapable     of
\n          explanation   on   any   hypothesis   other   than   that   of <\/p>\n
          guilt     of     the     accused     and     inconsistent with their
\n          innocence.”\n<\/p>\n
    It is further held that :\n<\/p>\n
          “If an offence takes place inside the privacy   of   a   house <\/p>\n
          and   in   such   circumstances,   where   the   assailants <\/p>\n
          have   all   the   opportunity   to   plan   and  commit   the
\n          offence     at     the     time     and     in circumstances of their <\/p>\n
          choice, it will be extremely difficult for the prosecution to
\n          lead      evidence      to     establish     the      guilt     of     the
\n          accused   if   the   strict   principle   of       circumstantial <\/p>\n
          evidence,       as       noticed   above,   is   insisted   upon   by   the <\/p>\n
          courts.  A judge   does   not   preside   over   a   criminal
\n          trial merely to see that no innocent man is   punished.     A <\/p>\n
          judge     also     presides     to   see     that     a     guilty     man
\n          does   not   escape.   Both   are   public   duties.    The   law
\n          does   not   enjoin   a   duty   on   the   prosecution   to   lead
\n          evidence   of   such   character   which is almost impossible <\/p>\n
          to be led or at any rate   extremely   difficult   to   be   led.
\n          The   duty   on   the   prosecution   is   to   lead   such   evidence
\n          which it is capable  of leading,      having   regard   to   the
\n          facts   and  circumstances   of   the   case.   Here   it   is
\n          necessary  to  keep  in  mind  Section   106       of   the
\n          Evidence   Act   which   says   that  when   any   fact   is <\/p>\n
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\n                                              26<\/span>
\n                                                                      APEAL-544-05<\/p>\n
          especially       within       the   knowledge   of   any   person,   the
\n          burden of  proving that fact is upon him.”\n<\/p><\/blockquote>\n
    25.      The onus to prove his    defence    and    the    circumstances <\/p>\n
    relating   to   his injury   and   treatment   were   within   the   special
\n    knowledge   of   the   appellant.     He   could not   therefore,   keep
\n    silent   and   say   that   the   obligation   rested   on   the Prosecution <\/p>\n
    to prove its case.\n<\/p>\n
    26.      In   the   case   of  Sharad   Birdhichand   Sarda   Vs.state   of  <\/p>\n
    Maharashtra  AIR 1984 SC 1622, it has been dealt with elaborately <\/p>\n
    as to how the chain of  circumstantial evidence has to be completed
\n    in   all  respect.   The   relevant  paragraphs  152  &  153   are   reproduced <\/p>\n
    herein below:\n<\/p>\n
          “152. A close analysis of this decision would show that the
\n          following conditions must be fulfilled before a case against <\/p>\n
          an accused can be said to be fully established:\n<\/p><\/blockquote>\n
              (1) the circumstances from which the conclusion of guilt
\n              is to be drawn should be fully established.\n<\/p><\/blockquote>\n
             It may be noted here that this Court indicated that the
\n             circumstances concerned ‘must or should’ and not ‘may
\n             be’  established.   There   is  not   only  a  grammatical  but   a <\/p>\n
             legal distinction between ‘may be proved’ and ‘must be
\n             or should be proved’ as was held by this Court in Shivaji
\n             Sahabrao Bobade &  Anr. v. State of Maharashtra<\/a>(1973)
\n             2 SCC 793 : (AIR 1973 SC 2622) where the following
\n             observations were made:\n<\/p><\/blockquote>\n
                     “Certainly, it is a primary principle that the accused
\n                     must   be   and   not   merely   may   be   guilty   before   a <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                                 27<\/span>
\n                                                                         APEAL-544-05<\/p>\n
                       court can convict and the mental distance between
\n                       ‘may be’ and ‘must be’ is long and divides vague <\/p>\n
                       conjectures from sure conclusions.”
\n                 (2)   the   facts   so   established   should   be   consistent   only <\/p>\n
                 with the hypothesis of the guilt of the accused, that is to
\n                 say.   they   should   not   be   explainable   on   any   other <\/p>\n
                 hypothesis except that the accused is guilty.
\n                 (3) the circumstances should be of a conclusive nature
\n                 and tendency.\n<\/p><\/blockquote>\n<\/blockquote>\n
              (4) they should exclude every possible hypothesis except <\/p>\n
              the one to be proved, and
\n                 (5) There must be a chain of evidence so complete as <\/p>\n
                 not to leave any reasonable ground for the conclusion
\n                 consistent with the innocence of the accused and must
\n                 show  that  in  all human  probability the act  must have <\/p>\n
                 been done by the accused.\n<\/p><\/blockquote>\n
          153.     These     five     golden   principles,   if   we   may   say   so,
\n          constitute the panchsheel of the proof of a case based on <\/p>\n
          circumstantial evidence.”\n<\/p><\/blockquote>\n
    27.      The   aforesaid   cardinal   principles   with   regard   to   the <\/p>\n
    completion   of   chain   of   circumstantial   evidence   for   holding   the <\/p>\n
    appellants guilty  are required to be established  by the prosecution in <\/p>\n
    the case.\n<\/p>\n
    28.      The Apex Court in the ruling of Padala Veera Reddy v. State  <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                              28<\/span>
\n                                                                     APEAL-544-05<\/p>\n
    of Andhra Pradesh, (AIR 1990 SC 79),  has observed that when a <\/p>\n
    case   rests   on  circumstantial   evidence,   the   following   tests   must   be <\/p>\n
    satisfied:\n<\/p>\n
          (1)  the circumstances from which an inference of guilt is <\/p>\n
          sought   to   be   drawn,   must   be   cogently   and   firmly <\/p>\n
          established;\n<\/p><\/blockquote>\n
          (2) those circumstances should be of a definite tendency <\/p>\n
          unerringly pointing towards the guilt of the accused;\n<\/p><\/blockquote>\n
          (3) the circumstances, taken cumulatively, should form a <\/p>\n
          chain   so   complete   that   there   is   no   escape   from   the <\/p>\n
          conclusion   that   within   all   human   probability   the   crime <\/p>\n
          was committed by the accused and none else; and <\/p>\n
          (4)   the  circumstantial   evidence  in   order   to   sustain <\/p>\n
          conviction   must   be   complete   and   incapable   of <\/p>\n
          explanation of any other hypothesis than that of the guilt <\/p>\n
          of   the   accused   and   such   evidence   should   not   only   be <\/p>\n
          consistent with the guilt of the accused but should be in <\/p>\n
          consistent with his innocence.\n<\/p><\/blockquote>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                              29<\/span><\/p>\n
                                                                      APEAL-544-05<\/p>\n<\/blockquote>\n
    29.       In C.Chenga Reddy and others v. State of Andhra Pradesh,  <\/p>\n
    (AIR<\/a> 1996 SC 3390), the Apex Court has held that:- “In a case based <\/p>\n
    on circumstantial evidence, the settled law is that the circumstances <\/p>\n
    from which the conclusion of guilt is drawn should be fully proved <\/p>\n
    and such circumstances must be conclusive in nature. Moreover, all <\/p>\n
    the circumstances should be complete and there should be no gap left <\/p>\n
    in the chain of evidence. Further, the proved circumstances must be <\/p>\n
    consistent only with the hypothesis of the guilt of the accused and <\/p>\n
    totally inconsistent with his innocence.”\n<\/p>\n
    30.       The principle that would emerge from the above decisions is <\/p>\n
    that, conviction can be based solely on circumstantial evidence but it <\/p>\n
    should be tested on the touchstone of law relating to  circumstantial <\/p>\n
    evidence laid down by the Judicial precedents above.\n<\/p>\n
    31.       Keeping   in   view   the   settled   legal   principle,   we   have <\/p>\n
    re- appreciated the evidence on record. It is true that this case is not <\/p>\n
    of  direct   evidence   of   an   eye   witness   to   commission   of   murder   of <\/p>\n
    deceased Suvarna by the accused\/appellant, who is none other than <\/p>\n
    the brother-in-law   of the deceased,   but is based on  circumstantial <\/p>\n
    evidence and the circumstances brought on record and established by <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                             30<\/span>
\n                                                                     APEAL-544-05<\/p>\n
    the prosecution  which is of clinching category are:-\n<\/p>\n
            A) The accused was seen at the place of occurrence <\/p>\n
               coming out of the flat holding something wrapped <\/p>\n
               in   the   cloth   within   his   hand   and   said   to   Malati <\/p>\n
               (PW1)   “nothing   has   happened”   and   went   away <\/p>\n
               immediately.\n<\/p><\/blockquote>\n
            B) He came out of the flat by opening the door and <\/p>\n
               stood   there   for   a   second   and   told   PW-1   that <\/p>\n
               “nothing   has   happened”,   and   immediately   PW-1 <\/p>\n
               Malati on her entry in the flat found Suvarna lying <\/p>\n
               dead in the pool of blood lying on the floor .\n<\/p><\/blockquote>\n
            C)   According   to   PW-6,   the   appellant   had   hurriedly <\/p>\n
               went   away   jumping   over   the   compound     wall   of <\/p>\n
               the building.\n<\/p><\/blockquote>\n
            D) Earlier   when   PW-5   Jayashree   had   rang   the   door <\/p>\n
               bell, the appellant though he was inside the flat, <\/p>\n
               had not responded.\n<\/p><\/blockquote>\n
            E) Appellant   had   received   injuries   to   his   palms   and <\/p>\n
               little   finger   for   which   he   received   long   medical <\/p>\n
               treatment   with   the   help   of   his   friends   PW-9   and <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                      31<\/span>
\n                                                               APEAL-544-05<\/p>\n
        PW-10 in the hospital of Dr.Bhute (PW-12), but the <\/p>\n
        appellant did not report about it to his own family <\/p>\n
        members   though   his   friend   advised   him <\/p>\n
        accordingly.\n<\/p><\/blockquote>\n
     F) He   had   given   different   false   versions  to   different <\/p>\n
        persons regarding cause of the injuries received by <\/p>\n
        him,   the inescapable inference against him is   he <\/p>\n
        did so only with a view to hide his guilt.\n<\/p>\n
     G) Prior to the commission of crime, the appellant had <\/p>\n
        assured service for Suvarna in the Indian Bank and <\/p>\n
        had   collected   total   sum   of   Rs   80,000\/-   from   her <\/p>\n
        husband Mangesh.\n<\/p>\n
     H) He   had   managed   to   prepare   a   bogus   call   letter, <\/p>\n
        purportedly   issued   from   the   Indian   Bank,   Dadar, <\/p>\n
        addressed to Suvarna in her maiden name and got <\/p>\n
        it served upon her through a courier, informing her <\/p>\n
        to join duty on 24\/11\/2003  as Probationor Officer, <\/p>\n
        on that pretext the appellant had   collected   huge <\/p>\n
        money from Mangesh (Suvarna’s husband).\n<\/p>\n
     I) According   to  Mangesh  (PW-7),   the   appellant   had <\/p>\n
        met   his   wife   on   a   day   prior   to   the   incident   for <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                      32<\/span>
\n                                                              APEAL-544-05<\/p>\n
        about 15 to 20 minutes .\n<\/p>\n
     J) Appellant   on   the   day   of   incident,   at   about <\/p>\n
        11.30.a.m. to 12.00.noon had contacted  Mangesh <\/p>\n
        at   his   office   on   his   mobile   phone   to   ensure   that <\/p>\n
        Mangesh was on duty on that day in the office at <\/p>\n
        Nhava Sheva.\n<\/p>\n
     K) After   the   murder   of   Suvarna   the   appellant   had <\/p>\n
        taken away her Mangalsutra and bogus call letter.\n<\/p>\n
        Mangalsutra   was   sold   by   Appellant   to   Vijay <\/p>\n
        Kinariwala (PW-17).\n<\/p>\n
     L) The   Appellant’s   shirt   (Article   no.14),   his   pant <\/p>\n
        (Article   No.15),   and   banian   (Article   no.16) <\/p>\n
        identified  by his friend Sanjay More  as  the  same <\/p>\n
        clothes   which   he   was   wearing   on   the   date   of <\/p>\n
        incident on 20\/11\/2003 were found stained with <\/p>\n
        blood of the ‘A’ group which  blood group belonged <\/p>\n
        to the deceased Suvarna. Shirt (Article14) was also <\/p>\n
        identified   by   the   prosecution   witnesses   Malati <\/p>\n
        (PW-1)   and   Manohar   (PW-6)   as   the   same   shirt <\/p>\n
        which   the   appellant   was   wearing   on   the   date   of <\/p>\n
        incident   when   he   had   came   out   of   the   flat   of <\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                    33<\/span>
\n                                                            APEAL-544-05<\/p>\n
       Suvarna.\n<\/p>\n
     M)Appellant had received injuries which required 40 <\/p>\n
       stitches   for   which   he   gave   false   and   lame <\/p>\n
       explanation   while   his   statement   was   recorded <\/p>\n
       under   section   313   of   the   Code   of   Criminal <\/p>\n
       Procedure   in   the   Trial   Court   that   a   motor   cycle <\/p>\n
       accident had occurred which resulted in his fall in <\/p>\n
       the   gutter,   without   adducing   any   evidence   or <\/p>\n
       material to support such plea. The  false plea itself <\/p>\n
       becomes   an   added   chain   or   link   in   the   list   of <\/p>\n
       circumstances against the appellant to prove that it <\/p>\n
       was appellant and appellant alone who committed <\/p>\n
       murder of his sister-in-law Suvarna. The appellant’s <\/p>\n
       conduct and his tendency to invent different stories <\/p>\n
       at   different   times   told   by   him   to  prosecution <\/p>\n
       witnesses, at various stages of the case, indicated <\/p>\n
       only his guilty psyche and feeble attempts to avoid <\/p>\n
       his penal liability any how by hook or crook with a <\/p>\n
       view to escape from the clutches of Penal Law.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                               34<\/span><\/p>\n
                                                                      APEAL-544-05<\/p>\n
    32.       Thus case in hand is considered by us   in the totality of the <\/p>\n
    circumstances,   also   taking   into   consideration   the   gravity   of   the <\/p>\n
    charges, the appellant had killed his Sister-in-law Suvarna, by cleverly <\/p>\n
    scheming the    serious  crime  of  murder  of Suvarna.    Taking  undue <\/p>\n
    disadvantage of her husband’s absence and after ensuring that he will <\/p>\n
    find her alone inside her flat, had entered in  the flat, committed her <\/p>\n
    brutal murder by inflicting multiple incised wounds upon her body  in <\/p>\n
    a broad day light which proved fatal and also stolen her Mangalsutra <\/p>\n
    and call letter. The FIR had been lodged on the same day promptly, by <\/p>\n
    mother-in-law of Suvarna, who came across the appellant and saw <\/p>\n
    him coming out of Suvarna’s flat soon after the crime. First informant <\/p>\n
    had immediately named the appellant as the culprit who committed <\/p>\n
    the offence of murder of her daughter-in-law Suvarna.\n<\/p>\n
    33.       It is difficult to imagine, as suggested by learned Counsel for <\/p>\n
    the appellant, that the complainant and the other witnesses had all <\/p>\n
    falsely named the appellant as being the person responsible for the <\/p>\n
    offence of murder at the initial stage itself. They had no animosity <\/p>\n
    whatsoever   against   the   appellant   to   involve   him   in   a   very   serious <\/p>\n
    crime.   All   incriminating  facts   and   circumstances   revealed   from   the <\/p>\n
    evidence were self-explanatory and unerringly pointed towards guilt <\/p>\n
    of the appellant beyond reasonable doubts.\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>
\n                                               35<\/span><\/p>\n
                                                                      APEAL-544-05<\/p>\n
    34.       To conclude, for the reasons stated above, we do not find any <\/p>\n
    fault or infirmity with the learned trial Judge’s findings of facts who <\/p>\n
    recorded   impugned   conviction   against   the   appellant   under   Section <\/p>\n
    302 and 380 of Indian Penal Code after appreciating the evidence led <\/p>\n
    on the record. In the facts and circumstances of the case, we do not <\/p>\n
    see any cogent reasons to interfere with the findings of fact recorded <\/p>\n
    by the trial court below, nor any other acceptable ground is made out <\/p>\n
    so as to persuade us to take a different view than the view taken by <\/p>\n
    the   trial   Court.   The   Criminal   Appeal   is   without   merits   and   stands <\/p>\n
    dismissed.\n<\/p>\n
                                                            (D. D. SINHA, J.)<\/p>\n
                                                          (A. P. BHANGALE, J.)<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:34:00 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kolhapur vs The State Of Maharashtra on 21 October, 2010 Bench: D.D. Sinha, A.P. Bhangale 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-137717","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKolhapur vs The State Of Maharashtra on 21 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kolhapur-vs-the-state-of-maharashtra-on-21-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kolhapur vs The State Of Maharashtra on 21 October, 2010 - 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