Bombay High Court
Manu @ Mohinder Madhuresh S/O. ... vs The State Of Maharashtra on 26 September, 2025
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
Digitally
signed by
PRASHANT
PRASHANT VILAS
VILAS RANE
RANE Date:
2025:BHC-AS:41584-DB
2025.09.30
20:21:55
+0530
APPEAL 30_2017FINAL .DOC
VSA/PSV/KK/PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 30 OF 2017
WITH
INTERIM APPLICATION NO.593 OF 2022
WITH
INTERIM APPLICATION NO.3994 OF 2024
WITH
INTERIM APPLICATION (ST) NO.1640 OF 2020
WITH
INTERIM APPLICATION NO.215 OF 2020
WITH
INTERIM APPLICATION NO.1298 OF 2020
Manu @ Mohinder Madhuresh ... Appellant
s/o. Vivekranjan Abrol
R/o. Flat No. 304, Nisarggiri Apartment,
Kalewadi Phata, Pune
Originally inhabitant of Bhopal, Madhya Pradesh
Versus
The State of Maharashtra
(At the instance of Chaturshringi Police Station) ...Respondents
____________
Mr. Tripurari Ray a/w. Ms. Riddhi Dhamecha i/b. Dhiren Shah for the
appellant.
Ms. M.M. Deshmukh Addl. P.P. for the State.
______________
CORAM: G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
RESERVED ON: 28 APRIL 2025
PRONOUNCED ON: 26 September 2025
_______________
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Judgment: (Per G.S. Kulkarni, J.) :-
1. The judgment has been divided into the following sections to facilitate
analysis:-
Sections Contents Paragraph Nos.
A Preface 2-4
B Facts 5-8
C Evidence of Witnesses 9 - 14
D Evidence of the witnesses who were 15 - 26
friends of the deceased and the accused.
E Other witnesses 27 - 30
F Medical Evidence 31 - 33
G Government Photographer 34 - 35
H Fingerprint Expert 36 - 37
I Deputy Director of Fingerprint 38
J Evidence on behalf of the Appellant/ 39
Accused
K Submissions on behalf of the Appellant/ 40 - 55
Accused
L Submission on behalf of the prosecution 56 - 68
M Analysis 69 - 109
A. Preface
2. This appeal by the appellant/accused questions the correctness of his
conviction and sentence, challenging the judgment and order dated 14 December
2016 passed by the learned Additional Sessions Judge, Pune, in Sessions Case
No.256 of 2009 by which the appellant-accused stands convicted for the offence
punishable under Section 302 of the Indian Penal Code and sentenced to suffer
imprisonment for life and to pay a fine of Rs.2,000/- and in default, further to suffer
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rigorous imprisonment for three months, and further his conviction for the offence
punishable under Section 376 of the Indian Penal Code and sentence to suffer
Rigorous Imprisonment of 7 years and to pay fine of Rs.1000/- and in default in
payment of fine, to suffer rigorous imprisonment for two months.
3. This case concerns a brutal homicidal death of a young girl in her early
twenties at the hands of the appellant/accused for reasons attributed to extreme
hatred, jealousy and vengeance. Having gained employment at Pune, the deceased
was away from her parents who were residing at Bhopal. The crime in question was
the result of a rift in the love affair between the accused and the deceased since their
college days. Thus, this is another unfortunate case where ordinary human conduct
of a sensible and rational behaviour is subjugated by emotions of hostility and
cruelty, reducing a human being to inhuman and demonic tendencies, leading to the
commission of a grave crime.
4. The date of the incident is 20 October, 2008. The victim/deceased was a girl
Ms. Khushbu Dinesh Mishra, aged 22 years old.
B. Facts
5. The facts necessary for decision of this appeal may briefly be stated:
PW-14 Madhusudan Narhar Joshi, Assistant Police Inspector, attached to
Chaturshringi Police Station, was on night duty on 20 October 2008. At about
23.45 hrs., one Amit Kamble, security guard of Aditya Park Society, Balewadi, Pune
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(for short the "Aditya Park Society"), informed him on phone that a woman was
murdered in Flat No.B-27. PW-14 accordingly reached the spot. He enquired with
the security guard Amit Kamble, in regard to the incident, who informed him that a
woman was murdered by cutting her neck. PW-14 visited the flat. He also called for
the investigation car from Control Room. He also called two panchas and in the
presence of Amit Kamble, he prepared a panchnama of the scene of the offence. The
police officers who arrived at the spot in the investigation car, took photographs of
the place of the incident, as also of the fingerprints on the wall. After recording of
panchnama, the dead body of the deceased was sent to the hospital for postmortem.
PW-14 also prepared inquest panchnama of the dead body. He seized the clothes of
the deceased, removed at the time of postmortem and sealed the same under
panchnama. PW-3 Nimisha, friend of the deceased, was present at the place of the
incident at the time of panchnama. PW-3 later on was taken to the police station and
her complaint was recorded, which was registered as C.R. No.493 of 2008 under
Sections 376 and 302 of the Indian Penal Code.
6. PW-14-Madhusudan thereafter handed over investigation to PW-19 Sheshrao
Baurao Suryawanshi, Senior Inspector [Investigating Officer ("IO")].
7. In the course of investigation, the IO recorded statements of 14 witnesses,
who were also examined as the prosecution witnesses. The IO also seized the
motorcycle of the accused from the Pune Railway Station, as also the clothes of the
accused were seized from his residence at Nisarga Society. The seized articles were
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forwarded for chemical analysis. The IO forwarded blood samples, hair and nail
clippings for chemical analysis. The IO also obtained the Call Detail Record
("CDR") and reports thereon, pertaining to the mobile number of the accused and
the deceased. On completion of the investigation, the IO filed charge-sheet on 19
January 2009 in the Court of Judicial Magistrate, First Class, Court No.9, Pune.
Considering the nature of the offences, the learned Judicial Magistrate committed the
case to be tried before the Court of learned Sessions Judge.
8. On 09 September 2010, learned Additional Sessions Judge, Pune framed
charges against the accused under Sections 376 and 302 of the Indian Penal Code, to
which the accused pleaded not guilty and prayed to be tried. The prosecution, in
support of its case, examined 22 witnesses. The learned Sessions Judge appreciating
the evidence, which was circumstantial, has convicted and sentenced the appellant/
accused as noted hereinabove.
C. Evidence of Witnesses
9. To effectively deal with the submissions advanced before us, it would be
necessary to refer the prosecution evidence in some detail. We discuss this evidence
hereunder.
10. PW-14 - Madhusudan Narhar Joshi, API ECB Crime Branch, Pune was
attached to Chaturshringi Police Station during the period from 2008-12. On 20
October, 2008, PW-14 Madhusudan was on night duty. At about 23.45 hours, Mr.
Amit Kamble, Security Guard at the Aditya Park Society, Balewadi, Pune on
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telephone informed PW-14 that a woman was murdered in Flat No. B-27. On
receiving such information, PW-14 Madhusudan immediately reached the spot and
enquired from Amit Kamble about the incident. Amit Kamble informed that one
woman was murdered in Flat No. 27 by cutting her neck. PW-14 then proceeded to
the crime scene. He enquired with Amit Kamble as to whether any CCTV cameras
were installed and about the register of visitors maintained at the entrance of the
building. Amit Kamble informed PW-14 Madhusudan that CCTV cameras were
installed in the Society, however, they were not working for a long time, as also he
did not maintain a visitors register. PW-14 thereafter called the Investigation car
from Control Room, as also informed about the incident to his superior officers.
PW-14 thereafter called two panchas and in presence of security guard Amit Kamble,
he prepared the panchnama of the scene of the offence. The panchnama bears his
signature as also the signatures of two panchas, the contents of which are identified in
his deposition (Exhibit-13). PW-14 also seized four knives, two pieces of bed sheets
and other items totalling 19 were recovered from the spot and recorded in the
panchnama. On the arrival of investigation car, samples of blood found on the walls,
as well as on the floor were taken. The photographs of the spot as also of the finger
prints on the wall were taken. After the panchnama was completed, the body of the
deceased was sent to the hospital for post-mortem. PW-14 also prepared the inquest
panchnama of the deceased (Exhibit 15). He deposed that the clothes of deceased,
removed at the time of post-mortem were handed over to him. These clothes were
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seized under panchnama at Exhibit 14, which had taken place in the presence of PW-
3 Nimisha (complainant/friend of the deceased), who was also present on the spot of
the incident when the spot panchnama was undertaken. PW-14 thereafter took PW-
3 (complainant) to the police station and recorded her complaint (Exh. 11), the
contents of which were identified by him to be correct. PW-3 was the room partner
of deceased-Khushbu Mishra. PW-14 accordingly registered C.R. No. 493 of 2008
and handed over the investigation to the Investigating Officer (IO) Police Inspector
Sheshrao Baurao Suryawanshi (PW-19).
11. PW-19/Investigating officer was attached to the Chaturshringi Police Station
since the year 2008 as a Senior Police Inspector. In his deposition, he has stated that
on 21 October 2008, C.R. No. 493 of 2008 was handed over to him for
investigation. He deposed that PW-14 Madhusudan (API) had received information
of the crime. His testimony is that being in-charge of the investigation, he had earlier
given instructions to PW-14 to visit the spot. Accordingly, PW-14 had been to the
spot, as also recorded the complaint as registered by PW-3 Nimisha. The PW-19/IO
has also stated that PW-14 had also drawn the spot panchnama and sent the body to
the hospital for performing autopsy. The PW-19/IO deposed that the PW-14 had
drawn an inquest panchnama and seized the clothes of the deceased. The IO
deposed that from the investigation, it was revealed that it was the appellant/accused
who had committed the crime and hence, he issued directions to PSI Sayyed for
searching the accused, as also to collect 'call details' of the accused and the tower
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location of the mobile number of the accused. The IO deposed that he has also
sought help from the Cyber Branch. The PW-19/IO stated that PSI Sayyed visited
the house of the accused situated at Nisarg City and in the search of his house, he
recovered the clothes of the accused, which were seized. PW-19/IO also deposed that
from the tower location, presence of the accused was traced to Pune Station area,
hence, PSI Sayyed visited the said area and found the parked motorcycle of the
accused, which came to be seized by PSI Sayyed.
12. The PW-19/IO deposed that during his investigation, he recorded the
statements of 14 witnesses. He has stated that on the next day of the incident i.e. on
22 October 2008 information was received from the Habib Ganj Police Station,
Bhopal that the accused was arrested. Accordingly, the PW-19/IO stated that he sent
a team headed by PSI Patil to Bhopal by a written order, which was identified by him
to bear his signature (Exhibit 54). The PW-19/IO further deposed that PSI Patil
brought the accused to Pune. PSI Patil also produced the entries made in the record
of the Habib Ganj Police Station, Bhopal (Exhibit 56). Thereafter, when brought to
Pune, the accused was arrested and produced before the Court of learned Judicial
Magistrate First Class, and his Police Custody Remand (PCR) was obtained. PW-19
deposed that on 24 October 2008 along with his covering letter, he forwarded the
seized articles, property and the samples (Exhibit 66) for chemical analysis [C.A.]
which was identified by him to be true and correct. He further deposed that on 27
October 2008, blood samples, hair, nail clippings were sent for chemical analysis
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under his letter (Exhibit 67), which he identified to bear his signature. He deposed
that C.A. report was obtained and enclosed along with the charge-sheet.
The PW-19/IO further deposed that on 24 October 2008 on arrest of the
accused, he was sent for medical examination along with the requisition letter signed
by him (Exhibit-68) which he identified, to be bearing his signature, as also its
contents to be true and correct. He further deposed that prior thereto i.e. on 22
October 2008 he had addressed a letter (Exhibit-69) requesting the Assistant
Commissioner of Police (ACP), Pune to call for the 'Call Detail Record' (CDR)
reports pertaining to the mobile number of the accused, as also of the deceased. He
has identified the office copy of the said letter shown to him bearing his signature to
state that the contents of the said letter were true and correct. The PW-19/IO further
deposed that he has also received a copy of the letter sent by the ACP Shri. Karade
addressed to the mobile company calling for the CDR report (Exhibit-70), which was
also identified by him in his deposition. He has further deposed that the CDR
reports were received by the ACP's office and the same were sent to him by the ACP's
office which were enclosed with the charge-sheet. He deposed that after completion
of investigation, he has submitted the charge-sheet against the accused.
13. The next witness is PW-18 Rakesh Mohan Shukla, Police Inspector, who at
the relevant time was attached to Habibaganj Police Station, Bhopal, who deposed
that on 22 October 2008 he was attached to the said police station as a Police
Inspector. He deposed that on that day, the father of the accused came to the police
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station along with the accused. He deposed that prior to this, he was informed by
PW-19/IO Suryawanshi attached to Chaturshringi Police Station about the murder of
the deceased Khushbu; and that an offence was registered against the accused. He
has deposed that PW-19 also informed him that the accused, may have come to meet
his father at Bhopal and accordingly, PW-18 made the father of the accused aware
about such incident. PW-18 has stated that he arrested the accused on 22 October
2008 by recording an entry of arrest in General Diary (Exhibit 56/1) as identified by
him, to be correct and to be in his own handwriting. The arrest panchnama dated 22
October 2008 was also shown to him, which he has identified to be correct bearing
his signature and bearing the signatures of two panchas. PW-18 also deposed that the
arrest of the accused was entered by him in the case diary which was identified by
him to be bearing his signature and the contents being true and correct. He further
deposed that a request application for transit remand of the accused was made by him
under his signature before the learned Judicial Magistrate at Bhopal, the contents of
which were deposed to be true and correct and bearing his signature. He further
deposed that as per the order passed by the Chief Judicial Magistrate, Bhopal, his
colleague Mr. Hemant Barve, PSI, brought the accused before the Judicial Magistrate,
First Class, Pune. PW-18 identified the accused who was present in the Court at the
time of his deposition. PW-18 further deposed that the accused was not medically
examined by the Government Hospital during his custody with PW-18.
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14. The police officer attached to Chaturshringi Police Station, Pune was PW-17
PSI Udaysing Shamrao Patil. In his deposition, he stated that he was posted at
Chaturshringi Police Station during the period from 2006 to 2010. He deposed that
PW-19/IO Sheshrao Suryawanshi was in-charge of the said police station who by his
order dated 22 October 2008 directed PW-17 to go to Bhopal and take custody of
the accused from Habib Ganj Police Station, Bhopal. PW-17 has identified the order
dated 22 October 2008 issued by PW-19 (Exhibit-54). He also identified the letter
addressed by PW-19 to the Station Officer of Bhopal Police Station (Exhibit-55). He
has deposed that the police station officer, Bhopal handed over the custody of the
accused to him along with copy of order sheet, extract of station diary, case diary,
arrest form of the accused, transit custody order/remand report. He identified these
documents [Exhibit-56/1 to 56/4] to state that all these documents were bearing the
signatures of Shri R. M. Shukla, Station Officer of Habibganj Police Station, Bhopal.
PW-17 further deposed that he produced the accused before PW-19 on 24 October
2008. He also identified the accused who was produced before the Court.
D. Evidence of the witnesses who were friends of the deceased and the
accused.
15. Having noted the evidence as borne out from the deposition of the police
officials connected with the investigation, we now refer to the evidence of witnesses
who are the friends of the deceased as also of the accused, who are PW-3 Nimisha
(complainant), PW-1 Deepak Agnihotri, PW-4 Prashant Ravindranath Shrivastav,
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PW-5 Archana Tirthshankar Yadav, PW-6 Abhishek Rakeshkumar Chancholiya, PW-
7 Deepali Ashok Patil, PW-9 Ashish Abhay Potdar, PW-12 Pushpesh Kumar Jitendra
Kumar Singh.
16. PW-3 Nimisha, age 24 years, was a resident of Indore, M.P., who at the
relevant time was serving at Pune, she deposed that she was in Pune for completing
her MBA from 2007 to 2009. She deposed that her native place was Bhopal. She
deposed that she knew deceased 'Khushbu Dinesh Mishra' from Bhopal, as deceased
Khushbu was her family friend. She deposed that in the year 2008, she was residing
at Aditya Park Society, Balewadi, Pune. That she was residing along with her friend
Nehal on rent, and as the deceased Khushbu had recently come to Pune, she was also
residing with them. She deposed that as such, there was no agreement of the
deceased with owner as tenant. She further deposed that as the deceased came to
Pune for service at Capgemini and as she was alone, she was residing with them. She
further deposed that she knew accused Manu from Bhopal and had met him at Pune
on 2-3 occasions. She further deposed that on one of the days, the accused suddenly
came to their house and at that time, there was a dispute between deceased Khushbu
and the accused. She deposed that once when deceased Khushbu was not at home,
as she had gone to Shirdi, the accused asked PW-3 to give the deceased an
understanding. PW-3 has further deposed that the accused and deceased Khushbu
were good friends and had a love affair, however, subsequently there were disputes
between them. She further deposed that she came to know about their disputes as
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whenever the deceased received phone call from the accused, she used to cry and she
used to talk in anger. She further deposed that at the time of incident on 20 October
2008, the other friend Nehal residing with them had gone to Bhopal as she was
having holidays, hence, PW-3 was staying with deceased Khushbu.
PW-3 has further deposed that on 18 October 2008 (Saturday) evening, she
went to her maternal uncle's house at Pimpri, Pune, when deceased Khushbu was
alone at home. She has further deposed that there was a regular communication
between herself and deceased Khushbu during the said period. She further deposed
that on 19 October 2008, she asked deceased Khushbu whether she should return
home, when deceased Khushbu told her that her friend Archana would give her
company and therefore, she did not return home. She deposed that on 20 October
2008 (date of the incident) she went with her cousins Abhishek, Vibha and Prashant
for dinner at Fountain Hotel at about 9.30 to 10.00 p.m. and after the dinner,
Abhishek and Vibha went to their house and her brother Prashant dropped her at
home at Aditya Park Society. She deposed that Prashant was with her when she came
to her house. She deposed that she rang the bell and knocked the doors, but there
was no response from inside, hence, she opened the door with her keys. She further
deposed that on entering the house, she saw that there were blood spots on wall,
mattresses and floor and the bed-sheet was also smeared with blood. She also
deposed to have noticed one knife lying on the floor and bloodstains in the lobby
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towards bedroom were indicating that somebody had pulled the body. She deposed
that thereafter she went to the bedroom and found that body was covered with
blanket. She has further deposed that she received a phone call from the watchman
and she came out to attend the said call when she was told by watchman that one boy
Deepak (PW-1) had come to her house and was asking for deceased Khushbu. She
further deposed that when she saw the body covered under blanket, her half face was
visible and she recognized her to be deceased Khushbu. She deposed that thereafter
she locked the door and went out with Prashant and told about the incident to the
watchman. She deposed that thereafter the watchman called the police. The police
enquired from her about the said incident and also recorded her statement. She
deposed that she signed the said statement, and that she narrated the incident in
Hindi. She also deposed that she read her complaint before signing it. She identified
her signature and deposed the contents to be true and correct. She deposed that
police recorded her complaint on the spot and thereafter they typed it in the police
station and obtained her signature. She identified the accused who was present in the
Court at the time of her deposition.
17. PW-1 Deepak Rakeshchandra Agnihotri, age 24 years, in his deposition, has
stated that he was residing at Pune since about 2 and half years, as he had got a job in
Capgemini Technologies Services, Nigdi, Pune as a Software Engineer. He deposed
that he was from Bhopal and that he knew the accused and deceased Khushbu. He
deposed that at the time of his selection in the year 2007, deceased Khushbu and the
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accused were with him, when he came to Pune by train to join the job, when the
accused and 20 to 25 other persons were with him. He further deposed that from
the year 2008, he was knowing the accused and deceased Khushbu and he got
acquainted with the accused in train.
Further PW-1 deposed that the accused was residing at Kalewadi and that he
was residing at Sus-Road and deceased Khushbu was residing at Baner. He deposed
that they together joined the same company, and that they were from the same batch.
He deposed that he came to know about deceased Khushbu and the accused during
their training. He deposed that they were friends, therefore, they used to chitchat at
which point of time, the accused told him that deceased Khushbu and the accused
were good friends and they were having love affair, however, since last year, there
were differences between the accused and deceased Khushbu and therefore, there was
no talk between them. He further deposed that the accused tried to talk with
deceased Khushbu, but she always avoided him and that as there were differences
between the accused and deceased Khushbu and as the accused insisted her to talk
with him, in this regard, deceased Khushbu had given a written complaint against the
accused to the company-Capgemini. PW-1 has further deposed that deceased
Khushbu was having friendship with one Mr. Manish Singh, one of the colleagues
and hence, the accused was annoyed and the deceased had lodged complaint against
the accused and therefore, the accused was angry with deceased Khushbu. He
further deposed that as the accused was angry with deceased Khushbu, the accused
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had told him one week before the incident that he would cut Khushbu into pieces
and he will take revenge as deceased Khushbu had lodged complaint against him.
He has further deposed that he tried to give the accused understanding as also he was
under the impression that the accused was saying so as he was annoyed with her and
therefore, he did not take the accused seriously. PW-1 has further deposed that as
deceased Khushbu had lodged complaint against the accused, the accused was very
much disturbed and annoyed with her.
PW-1 has further deposed that on 20 October 2008 (date of the incident) at
about 12.00 noon, the accused came to his office and asked him to call deceased
Khushbu as he wanted to talk with her. He has deposed that thereafter he went to
deceased Khushbu and told her that the accused wanted to talk with her. He has
deposed that thereafter both talked with each other for one and half hour. PW-1 has
deposed that after which the deceased Khushbu told him that the accused was
insisting her to keep relations with him and she was not ready to revise the relations.
He has further deposed that the deceased Khushbu told him that she was having g-
mail ID of accused and she used to read the chats of the accused on his g-mail with
his friends and therefore, she was annoyed with the accused and hence, there were
differences between them. PW-1 deposed that the accused was not ready to listen
anything. He has further deposed that thereafter on the day of the incident (20
October 2008), deceased Khushbu left the office at about 05.30 p.m. and that he was
in office as he had some work. He further deposed that thereafter he had left the
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office at 07.30 p.m. He has further deposed that when he was in the bus at about
07.45 p.m., deceased Khushbu called him on his mobile when she told him that the
accused was trying to talk with her on mobile and that she did not want to talk with
him. PW-1 has further deposed that before that at about 07.30 p.m., the accused had
also called PW-1 on his mobile phone, when the accused asked him whether he had
started for home. He has further deposed that at about 08.15 p.m. when he was in
the bus, he was trying to call deceased Khushbu however, she was not answering and
as he was in the bus, there were disturbances and the calls were getting cut. He has
deposed that he was trying to contact her on her mobile again and again for the
reason that she had earlier informed him about the accused. He has further deposed
that after reaching home, he again tried to call deceased Khushbu, but her phone was
not reachable. PW-1 has further deposed that he also called the accused and asked
him about the mobile of deceased Khushbu and as to whether it was switched off,
when he was told by the accused that as there was quarrel between him and deceased
Khushbu, there was a possibility that she had switched off the mobile. He has further
deposed that he was worried about Khushbu and felt that the accused and he should
go to her as she might be depressed and would commit suicide, hence, they should go
to convince her. He has further deposed that he was not knowing the exact address
of deceased Khushbu and the accused was not ready to come with him, therefore, he
took the address of deceased Khushbu from her friend PW-5 Archana Yadav.
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PW-1 has further deposed that he went to the residence of deceased Khushbu
i.e. Aditya Park Society by auto-rickshaw at about 10.00 to 10.30 p.m. and asked
about her with the watchman, when he was told that deceased Khushbu was not
residing in the said flat. He has deposed that thereafter he gave the watchman her
details when he was told by the watchman that three girls are residing in one flat and
the watchman had showed him the said flat. PW-1 deposed that he knocked the
door of the flat, but nobody opened it and hence, he continued to ring the door bell
when the watchman came, stating that he was disturbing the neighbours by ringing
the door bell and thereafter he was required to leave the premises. PW-1 has further
deposed that after this at about 11.00 p.m., he again called the accused and told him
that deceased Khushbu was not responding and was not opening the door and asked
the accused to come with him. He has deposed that at that time, the accused was not
giving him any response and when he insisted the accused, the accused told him that
he will come there within 15 minutes. He has deposed that he thereafter waited for
about half an hour and again called the accused, but his phone was switched off.
Thereafter he left for his house and slept.
PW-1 further deposed that at about 03.00 a.m. he received a call from
Chaturshringi Police Station and he was called at the said police station. He reached
the police station at about 06.00 to 07.00 a.m. with his friend Swapnil and others,
when the police asked him about the address of the accused. He has deposed that he
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was not knowing the address of the accused, but his friend Swapnil was aware about
it, hence, the police asked him and his friend to accompany them to show the house
of the accused. PW-1 has deposed that when they were going to the house of the
accused, police told him in the car that there was murder of Khushbu and in such
context, had asked to show the house of the accused. He has further deposed that
when they reached the flat of the accused, he was not present in the flat, however, the
friends of the accused were present. He has deposed that police started taking search
of the house of the accused and seized bloodstained jeans of the accused which were
on the rope. He has deposed that the police were doing their work and as he was
worried, he sat at one side. He has further deposed that when they came back, police
took the body of deceased Khushbu to Aundh General Hospital, Pune. He has
deposed that his statement was recorded by police on 21 October 2008. He
identified the accused who was present in the Court at the time of his deposition.
18. PW-4 Prashant Ravindranath Shrivastav, aged about 24 years is a student. In
his deposition, PW-4 has stated that he was residing at Pune since July 2005, as he
was studying in the Symbiosis College, pursuing the LLB course. He has deposed
that he knew deceased Khushbu Mishra as she was the friend of PW-3 Nimisha, who
was his cousin. He further deposed that he knew accused from Bhopal as also he
used to go to the accused. He further deposed that the accused and deceased
Khushbu were friends and therefore, he knew the accused and that deceased
Khushbu was residing with PW-3 and one Nehal at Aditya Park Society. He further
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deposed that he was not knowing the address of the accused. He deposed that
deceased Khushbu was a Software Engineer and was serving in Capgemini where the
accused was also working.
PW-4 Prashant has further deposed that on 20 October 2008 he received a
call from PW-3 Nimisha that all persons had gone out of station for vacation when
she asked him to join her for dinner. He deposed that he reached at the house of
Abhishek at about 09.30 p.m. when one Vibha was also with them. He has deposed
that they went to Fountain Hotel for dinner and that Abhishek, cousin of PW-3
asked him to drop PW-3 at her residence and therefore, he dropped her at Aditya
Park Society. PW-4 has deposed that he went with PW-3 at her flat when she rang
the bell as also knocked the door, but there was no response, hence, PW-3 opened the
door with her keys. He has deposed that when they entered the hall, there was a
mattress and it was stained with blood and there were bloodstains near the said
mattress. He has deposed that there were dragging blood marks in the lobby towards
the bedroom. He has further deposed that when they entered the bedroom, he saw
that one body was lying on the bed and there was a pool of blood. He has deposed
that the body was covered upto half face with the blanket and he identified deceased
Khushbu from her half face. PW-4 has further deposed that thereafter PW-3
received a call on intercom from watchman and that thereafter she told him that the
watchman told her that one Deepak had come and he was asking about deceased
Khushbu. He deposed that PW-3 thereafter called Abhishek as also the security
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guard. He deposed that one of the security guards called police and police took them
on the spot and recorded their statements.
PW-4 has deposed that police conducted spot panchnama and they requested
him and Abhishek to act as panchas. He has further deposed that there was one
investigation car as also police showed some things to them and they had taken
photographs of all things in the said flat. He has deposed that in hall, one knife was
lying on the bed as also one slipper of pink colour. He has deposed that when police
uncovered the dead body, it was naked and one T-shirt of black colour was there
which was lifted upto the neck. There was blood from the mouth of deceased
Khushbu and there was stab injury on her neck. He has deposed that there were two
knives lying on the bed near body, they were stained with blood. He has deposed
that near almera, the clothes of the deceased Khushbu i.e. jeans and undergarments
were lying and they were also stained with blood. He has further deposed that colour
of the jeans was blue and colour of the undergarments was white. The cell phone
was lying near the body and there was one knife lying near the clothes which was
bent and without handle as also the handle was lying near it. PW-4 has deposed that
police seized all the articles from the spot and labelled them and obtained their
signatures on it. He has deposed that police thereafter prepared spot panchnama and
obtained his signature which was shown to him, bearing his signature (Exhibit 13)
which was exhibited on admission. He has deposed that the panchnama was in
Marathi, however, the police explained him the contents of it in Hindi and thereafter
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he had signed it. He had identified the accused in the Court at the time of his
deposition.
19. PW-5 Archana Tirthshankar Yadav, age 24 years, was also an employee of
Capgemini from June 2008. In her deposition, she stated that she was residing at
Datta Kripa Housing Society, at Karvenagar, Pune and her native place was Nagpur.
She deposed that she knew deceased Khushbu and the accused, as they joined
Capgemini at the same time. She has deposed that she knew the accused and
deceased Khushbu very well and they were having love affair since college days and
after coming to Pune for job, their relations were not cordial. PW-5 has deposed that
deceased Khushbu wanted to break the relations and that the accused used to contact
her and tried to talk with her, but deceased Khushbu was not giving response and she
used to avoid him. She has deposed that deceased Khushbu had lodged complaint in
the office against the accused, as he used to insist her to talk with him. She has
deposed that she never went to the house of deceased Khushbu.
PW-5 has further deposed that on 19 October 2008 in the evening, she went
to the house of deceased Khushbu for the first time and house of the deceased was at
Aditya Park Society, Balewadi, Pune. She has deposed that deceased Khushbu came
down to receive her; and that there was no security guard. She has further deposed
that on that day, the deceased was alone and therefore, she stayed with the deceased
on that day. She has further deposed that the deceased Khushbu was staying with
Nehal and PW-3 Nimisha who were her roommates. She has deposed that at that
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time, Nehal had gone to her native place at Bhopal and Nimisha had gone to her
brother's house at Pune. She further deposed that she was not knowing anything
about PW-3 Nimisha's brother. PW-5 further deposed that on the next day (20
October 2008), she went with the deceased to their office by bus. She has further
deposed that on that day at about 11.00 a.m. the accused came to her to talk with her
casually. She has deposed that on the very day, when the accused had told her to give
deceased Khushbu an understanding to talk with him, she told the accused that she
was with the deceased in the night as the roommates of the deceased were not there
as PW-3 had gone to her brother's house and Nehal had gone to her native place at
Bhopal, and that deceased Khushbu was alone in her house. She has further deposed
that on that day in the evening, deceased Khushbu called her on her mobile and
asked her whether she was coming with the deceased to which she told that she had
some work and she will go to her house. She has further deposed that at about 07.30
p.m. she left the office to return to her house.
PW-5 Archana has further deposed that on the same day at about 09.00 p.m.,
Deepak Agnihotri (PW-1) called her on mobile phone and told her that he was
trying to contact deceased Khushbu, but her mobile phone was not reachable and
therefore, PW-1 asked her the address of the deceased Khushbu which she gave to
him. She has further deposed that thereafter she called the accused and told him that
mobile phone of deceased Khushbu was not reachable and therefore, she asked him
to give her number of the deceased's roommate PW-3 Nimisha at which point of
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time, she was told by the accused that PW-3 was having new mobile number which
was not with him and that there was dispute between himself and deceased Khushbu
and therefore, she must have switched off the mobile phone and asked her to try
again after sometime. PW-5 has further deposed that on the next day (21 October
2008) at about 07.30 to 08.00 a.m. she came to know about murder of Khushbu.
She identified the accused who was present in the Court at the time of her
deposition.
20. PW-6 Abhishek Rakeshkumar Chancholiya, age 26 years, is PW-3 Nimisha's
cousin brother. He has deposed that in the year 2008, he was residing at Runwal
Classic, Thergaon, Pune and at the relevant time, he was studying at Indira College at
Pune. He has deposed that at that time, one Vibha Bithare, Nitu Upadhyay and
Richa Khare were residing with him and that Nitu was his cousin and Richa and
Vibha were her friends. He has deposed that his paternal aunt's daughter Nimisha
was residing at Aditya Park Society and deceased Khushbu and one Nehal Jain were
residing with her. He deposed that he came to know about the incident on 20
October 2008 when PW-3 was with him on that day, as she had come to his house
on 18 October 2008. He has deposed that on 20 October 2008 at about 10.00 p.m.
he had gone to Fountain Hotel along with Vibha, Prashant (PW-4) and Nimisha
(PW-3) for dinner and after dinner, he and Vibha went to their home and Prashant
went to drop Nimisha at Aditya Park Society. PW-6 Abhishek has further deposed
that on the same day at about 11.30 p.m. he received a phone call from Prashant who
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told him on phone that when they knocked the door of Nimisha's house, nobody
responded and therefore, Nimisha had opened the door with her keys and she found
that there was blood in the front room. He has further deposed that thereafter
Prashant told that he saw body of Khushbu covered with blanket and as he suspected
about her murder, hence, he had called PW-6.
PW-6 Abhishek has deposed that thereafter he went with his friend Nalin
Agrawal on the spot when he saw that Prashant (PW-4) and Nimisha (PW-3) were
standing along with watchman and the watchman was calling police. He has further
deposed that after half an hour, police came on the spot. He has further deposed that
thereafter they entered the spot and after verifying the spot, police called
investigation car which reached on the spot after about half an hour. He has further
deposed that after the investigation car came, the police asked him and PW-4
Prashant to be the panch witnesses of spot panchnama. PW-6 has further deposed
that police showed all the rooms to them and in the front room, two mattresses and
two pillows were lying as also one footwear was lying on one mattress. He has
deposed that the mattresses were stained with blood and bloodstains were on the wall
and large amount of blood was lying on the floor. He has deposed that one knife
with blue colour handle which was lying, was also stained with blood. He further
deposed that there were dragging blood marks from the front room to the room
where body was lying. He has further deposed that inside the room, the body was
lying on the bed and it was covered with blanket. The body was covered upto her
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neck and her face was opened. He has deposed that there were two knives and one
mobile lying near the body and both the knives were stained with blood. PW-6 has
deposed that one bunch of keys, ID card and the papers having bloodstains were
lying near the bed. He has further deposed that in the same room near the cupboard,
jeans pant of blue colour and nicker of white colour stained with blood were lying
there. He has further deposed that one knife was also lying there which was having
yellow handle and it was bent from front side and was stained with blood and the
handle was lying near the said knife. He has further deposed that when the blanket
was removed, the body was found naked, one black inner was on her body and it was
lifted upto neck. He has deposed that her neck was cut and there were stab injuries
on her throat. He has further deposed that the persons from investigation car were
taking the blood samples and photographs of finger prints from the said spot. He
deposed that police had seized four knives, one footwear, nicker, pant, bunch of keys,
mobile and I-card. He has further deposed that police collected the blood sample
and seized in his presence, sealed it, labeled it on which the police obtained his
signatures and prepared panchnama which was signed by him. He identified the
panchnama (Exhibit-13) as bearing his signature and deposed that the contents were
true and correct. He has further deposed that he can identify the muddemal articles,
if shown to him. He has deposed that muddemal articles 5 to 8 (knives), article 9
(slipper), article 10 (bedsheet cover), article 11 pillow cover of pink colour, article 12
blue colour bedsheet having flowers design, article 13 (pillow cover, article 14 blue
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colour jean pant, article 15 nicker, article 16 newspaper, article 20 black colour inner,
which were shown to him, were the same, which were seized by police in his
presence. He has further deposed that the police had enquired with him about the
incident on that day and his statement was recorded on the next day at the time of
postmortem. PW-6 identified the accused who was present at the time of his
deposition.
21. PW-7 Deepali Ashok Patil, age 35 years, was working at Capgemini in the
year 2008 as in-charge Human Resource Consultant where the accused and deceased
Khushbu were working and therefore, she knew both of them. In her deposition, she
deposed that both of them had joined the company on 28 June 2008 as freshers and
they were undergoing training for freshers. She has deposed that on 22 August 2008
Khushbu had come to her and told her that another employee namely the accused
was disturbing and harassing her at work place when she asked deceased Khushbu
what exactly he was doing. She has deposed that deceased Khushbu told her that the
accused yelled and disturbed her at work and tried to talk with deceased Khushbu
forcibly. She has further deposed that when she asked deceased Khushbu why the
accused disturbed her, deceased Khushbu told her that both of them were from
Bhopal and they used to stay at Arora Colony and both of them were from same
college and they were having love affair. She has deposed that deceased Khushbu
had told her that she had ended their relationship and she did not want to talk or
meet the accused. PW-7 has further deposed that after discussing with deceased
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Khushbu, she discussed the issue with her supervisor PW-9 Ashish Potdar when it
was decided to keep watch on them and that security would keep watch on both of
them in the premises. She has further deposed that the security in-charge Captain
Jivak Shiralkar talked with the accused and made him understand not to talk with
deceased Khushbu in the premises and not to try to meet her and warned him of dire
consequences.
PW-7 has further deposed that on 23 September 2008, she received a message
from deceased Khushbu that the accused was harassing her at work place. She has
further deposed that she immediately called deceased Khushbu after reading e-mail
and asked Khushbu what exactly happened. When she asked deceased Khushbu, she
told her that the accused forcibly talked with her in front of her other colleagues and
when she tried to leave the place, he caught hold of her hand and pulled her and
compelled her to talk with him. PW-7 has deposed that thereafter she called
emergency meeting in which supervisor PW-9 Ashish Potdar, herself and security in-
charge were present. In such meeting, the accused was called. She has deposed that
in the meeting, the accused was told that such message was received from deceased
Khushbu that he harassed her, however, PW-7 has deposed that the accused denied
it. She has further deposed that then they called deceased Khushbu in the meeting
and she told everything about the background. She has deposed that thereafter the
accused accepted it stating that he will not do it again. She has deposed that
thereafter she made accused understand that the company will take disciplinary
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action against him and they might terminate his services, if he talks with deceased
Khushbu.
PW-7 has deposed that on 30 September 2008 they were waiting that
deceased Khushbu would inform her parents and confirm them about the situation,
however on the same day, deceased Khushbu confirmed them that she did not want
to inform her parents, hence, it was decided to issue warning letter to the accused
which she has deposed to have been issued on 01 October 2008 and he was asked to
meet supervisor PW-9 Ashish Potdar on 15 October 2008 for counselling. PW-7 at
the time of her deposition was shown warning letter (Exhibit 22), which was bearing
signature of supervisor Ashish Potdar, which was identified by her, as she was
working with him and which also was bearing the endorsement of the accused. She
has further deposed that on 13 October 2008, deceased Khushbu met her and
thanked her for taking action against the accused and deceased Khushbu also told her
that the accused was not harassing her. She has further deposed that on 15 October
2008, the accused did not meet supervisor PW-9 Ashish Potdar, but met him on 16
October 2008. She has deposed that she was not present in the said meeting and
PW-9 told her that the accused had told him that he was disturbed and could not
sleep at night. She has further deposed that on 20 October 2008 (date of the
incident), deceased Khushbu met her personally at her work place and the deceased
asked her whether the warning letter was issued to the accused, as there was
discussion in the group about it, to which she asked deceased Khushbu to stay
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separate from the group. She has deposed that she separated their work places. PW-
7 has further deposed that she found deceased Khushbu to be disturbed and hence
advised her to take transfer at Hyderabad. She has deposed that deceased Khushbu
decided to write to her for transfer at Hyderabad. She has further deposed that on 21
October 2008 in the morning when she went to the work place, she came to know
that Khushbu was no more. She also identified the e-mail papers shown to her which
were signed by the supervisor Ashish Potdar. She identified the contents and the
signature on the said papers. She also deposed that her statement was recorded by
the police on 21 October 2008. She has also identified the accused who was present
in the Court at the time of her deposition.
22. PW-9 Ashish Abhay Potdar, age about 37 years old was in the employment of
Capgemini since October 1997 as a Senior Manager (Human Resource). In his
deposition, he has stated that he knew deceased Khushbu and accused as they were
employees in the same company since 20 June 2008, as they had joined as Software
Associate trainees. He deposed that his training period was of 2 - 3 months and at
the time of the incident, their training was over and they were waiting for allocation.
He stated that it was their waiting period for allocation. PW-9 further deposed that
on 16 or 22 August 2008, PW-7 told him that she had received complaint from
deceased Khushbu, against the accused. PW-9 deposed that deceased Khushbu told
her that the accused yelled at her and that he had tried to catch hold of her hand. He
further deposed that thereafter he called the accused. He further deposed that
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meetings were called by PW-7. He further deposed that on 16 October 2008, the
accused met him although he had called the accused on 15 October 2008. He also
deposed that prior to this, on 30 September 2008, a warning letter was issued to the
accused. PW-9 further deposed that when the accused met him, he was sounding
calm but he said that he was disturbed. PW-9 identified the warning letter (Exhibit -
22) bearing his signature and deposed that the contents were true and correct. PW-9
further deposed that the warning letter was handed over to accused on 1 October
2008 by PW-7. PW-9 also identified the email received from PW-7, stating that each
page was bearing the signature and stamp of the company and that the contents were
correct (Exhibit - 25).
23. PW-12 Pushpesh Kumar Jitendra Kumar Singh, age about 30 years, is a
Software Engineer by occupation. In the year 2008, he was staying at Jagtap Dairy,
Wakad, Pune. In his deposition, he has stated that he was working at Capgemini
w.e.f. 20 June 2008 as a Software Associate. He deposed that the timings of his job
were 9.00 am to 5.30 pm. He deposed that he was knowing the accused and
deceased Khushbu as they were from the same training batch. He deposed that he
also knew that they were from one college. He deposed that he came to know about
the death of deceased Khushbu on the next day of the incident.
24. PW-12 further deposed that he had met the accused on 20 October 2008
when he was on duty. He deposed that on the date of incident, he completed his
work at 5.30 p.m. Before that he used to go to office by Bus and on that day also he
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had gone to the office by Bus. He further deposed that on the day of the incident (20
October 2008) when he went to catch the bus, accused came there on his bike and
told him that he will drop him, as he was going in the same direction. He deposed
that he returned from the office and thereafter went with the accused to his house at
6.15 to 6.30 p.m. PW-12 has further deposed that he went to his house to see his
new T.V. After half an hour, accused told him that he will drop PW-12 to his house.
He further deposed that while going towards PW-12's house, they stopped to have
tea near Jagtap Dairy. He further deposed that at about 7.00 p.m. to 7.15 p.m.,
accused received one phone call and he was talking on cellphone while walking. He
deposed that the accused was away from him and from the actions of his hands, PW-
12 felt that he was giving understanding to somebody. PW-12 further deposed that
after the phone call, accused went away from the spot on his motorcycle without
stating anything to him and thereafter PW-12 went to his house by walking. PW-12
further deposed that on the next day, in the morning when he was going towards his
office, he received one phone call and the person who was on call asked him whether
he knew the whereabouts of the accused, to which PW-12 told that he was not aware.
He further deposed that thereafter the said person asked him whether PW-12 could
reach at Kalewadi at that time, to which he replied that he was going to his office and
cannot come there. He further deposed that thereafter the said person asked him
about the number of the motorcycle of the accused, to which he replied that he was
not aware. PW-12 further deposed that when the accused dropped him near Jagtap
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Dairy, he went towards Kalewadi. He further deposed that he came to know on the
next day about the death of Khushbu by a phone call which he received from Mr.
Sayyed from Chaturshrungi Police Station. He deposed that his friend - Swapnil also
talked with Mr. Sayyed on his mobile. He also identified the accused who was present
at the time of recording his deposition.
25. PW-13 - Rahul Yeshwant Dubey, age about 28 years, he was like an elder
brother to the accused. He deposed that on 21 January 2008, he was residing at Sus
Road Pashan at Yesh Residency. He deposed that his native place is Bhopal. He
deposed that in 2006 he came to Pune and had been working at Capgemini as an
Associate Software Engineer. He further deposed that Swapnil Saxena, Anruddha
Tiwari, Shrikant Maheshwari and his elder brother Rohit Dubey were staying at Yesh
Residency, Pune. He deposed that he was knowing the accused and deceased-
Khushbu and that both of them were working at Capgemini. He deposed that
accused was a good friend of his younger brother Rohit Dubey and the accused
treated him as his elder brother and his relations with the accused were cordial. He
further deposed that he used to come to his room and stay with him and others once
or twice a month. He further deposed that the accused had told him that he was
having a love affair with deceased Khushbu since college days and after coming to
Pune their relations were not good. He further deposed that the accused was not in a
good mood as he had disturbed relationship with Khushbu. He further deposed that
accused used to tell him that it was not good as to how she treated him and she was
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not having good relationship with him and therefore he was disturbed and he wanted
to punish her. He further deposed that he had given the accused understanding and
asked him to forgive and leave her. He further deposed that however, the accused
was again disturbed and was in the same mood although 15 days before the incident,
PW-13 had given him the understanding. He further deposed that on 20 October
2008 when the accused was also in the office and was found roaming, PW-13 asked
the accused whether he was having any work but he did not respond to his question
and he was in a sad mood. PW-13 deposed that thereafter he went to his home and
slept. He further deposed that in the morning at about 6.00 am his roommate
Swapnil Saxena woke him up and told him that there is some problem and Deepak,
Ashish and Archana want to meet him. He has further deposed that Deepak told him
that somebody was calling him on his mobile from the Chaturshrungi Police Station,
telling him that deceased Khushbu was serious. PW-13 has further deposed that
when he called back on the said number, it was of Chaturshrungi Police Station and
thereafter PW-13 along with Deepak, Swapnil, Ashish and Archana went to the
Police Station. He deposed that after reaching the Police Station, the Police asked as
to who was Deepak and then the Police asked Deepak and Swapnil to take them to
the house of the accused. PW-13 deposed that he was sitting at the Police Station and
thereafter, when the Police came back, he was told by the Police that deceased
Khushbu was murdered. He deposed that he was at the Police Station, as he was
supposed to give statement and at about 12.30 p.m. accused called him on his mobile
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phone saying whether he was aware about the happening and to which he replied
that he was aware about Khushbu being murdered. PW-13 deposed that when he
asked accused as to where he was, he informed him that PW-13 would be in trouble,
if the place is traced.
26. PW - 13 further deposed that the accused told him on telephone that he did
not feel sorry and guilty for whatever he did and that he will come back and
surrender himself as also the accused asked him to tell the Police not to trouble his
parents at Bhopal. PW - 13 stated that accordingly he had given his statement to the
Police which he deposed that the Police had recorded as per his say. It was explained
to him in Hindi. He identified the accused who was present at the time of recording
of his deposition.
E. Other witnesses:-
27. Having considered the evidence of the friends of the accused and deceased
Khushbu, we now delve on the evidence of the other witnesses.
28. PW - 8 Suresh Rambhau Tilave aged 54 years old was the watchman at Nisarg
City, the building wherein the accused was residing. In his deposition, he has stated
that he was working as a watchman since 8 to 9 months prior to the date of the
incident. His duty timings were from 7.30 p.m. to 7.30 a.m. and that he was on duty
at the main gate. He deposed that he was knowing the accused as he was residing at
"C Building" in Flat No.403 of the said society. He deposed that there were 4 to 5
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persons residing in the said flat. He deposed that he knew the accused as when he
used to go out, he frequently talked with him. He deposed that the accused was
having a red colour pulsar motorcycle and the number of the vehicle was 8877. He
further deposed that on 22 October 2008 police came to him to enquire about the
incident dated 20 October 2008. The police asked him for the information of the
accused who was residing in Nisarg City. He deposed that on 20 October 2008 he
came on duty at 7.30 p.m. and at that time accused went along with one boy on his
motorcycle. He further deposed that at about 9.00 p.m. he came back and again went
out on his motorcycle alone and returned. The accused again went out at about
10.30 p.m. to 11.00 p.m. and thereafter he never came back. He also stated that on
that day he was driving fast. He identified the accused who was present in the Court,
at the time of recording of the deposition.
29. PW-10 Sampat Gabaji Dorage is the Panch witness. In his deposition, he has
stated that on 21 October 2010 police had called him at Chaturshrungi Police
Station. He deposed that when he reached the Police Station, another Panch witness
Yogesh Shankar Shelar was present in the Police Station, he was requested to act as a
panch witness, for conducting panchnama of the flat of the accused. He gave his
consent for conducting the panchnama. He deposed that thereafter he went with the
police by private vehicle to Nisarg Society at Kalewadi Phata, Pune. He went to flat
No.403 where one person named Dixit was present in the said flat. He further
deposed that police enquired with the said person about the accused as to whether he
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was residing in the said flat, to which the said person answered in the affirmative, as
also stated that the accused had told him that he was going to a party and went at
9.30 p.m. He further deposed that when police enquired and asked about as to when
the accused returned back he replied that he never came back. PW-10 deposed that
thereafter police asked him about the belongings of the accused when the said person
showed one bag, one pant and one shirt of accused which were on roof. PW-10
deposed that the jeans pant as recovered was sky blue in colour and it was stained
with blood. The blood stains were on the place of knees and joint of thighs and near
the chain on the inner side. He deposed that T-shirt was of black colour having red
and white strips which was also stained with blood at the place on stomach. He
deposed that Police seized the said clothes and sealed it in brown paper and labeled
it, and obtained his signature and as also the signature of other panch witnesses. He
further deposed that the Police prepared seizure panchnama of the clothes and
obtained his signature on the said panchnama. The document of the panchnama was
shown to him during his evidence, which he has identified to bear his signature and
stated that the contents were true and correct (Exhibit - 27). He further deposed that
he can identify the clothes which were shown to him. The seal of the Muddemal
clothes was opened and the articles were shown to him which he has identified to be
the same which were seized in his presence. He also identified the labels (Exhibit - 28
& 29) on the articles bearing his signature.
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30. PW-11 Chandrakant Deepaji Khamaitkar aged 53 years he deposed that on 21
October 2008 Police requested him to act as panch witness on the panchnama of the
seizure of vehicle of the accused, in this case of murder. He deposed that the said
vehicle was recovered from the Railway Station Parking. He deposed that another
Panch witness Eknath Kasar was also present. He deposed that Parking Contractor
Shankar Purshuram Shedge told the police that one person parked his red color
Pulsar motorcycle at the parking place at the Pune Railway Station in the morning at
6.00 a.m. He showed the said motorcycle to the police it was a red colour motorcycle
bearing MP 04 NJ 8877. He deposed that the police seized said vehicle labeled it and
accordingly prepared seizure panchnama of the said vehicle in his presence and
obtained his signature and signature of the other panch witness. The panchnama was
shown to him which he identified to bear his signature at serial number 2 and of the
other panch witness. The contents of it were stated by him to be true and correct. He
further deposed that thereafter the Police sent the said motorcycle to the Police
Station by Matador and it was locked. He deposed that he can identified the said
vehicle, if shown to him.
F. Medical Evidence
31. PW-2 Dr. Bhausaheb Dada Bhalekar was the duty Medical Officer at Civil
Hospital, Aundh, Pune, on 21 October 2008, when the body of the deceased was
brought by the police for post-mortem at the said Hospital. In his deposition, he has
stated that he conducted the post-mortem of the body at about 10.00 a.m. On
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21October 2008, the autopsy started at about 10.30 a.m. and concluded at 11.30
a.m. In his deposition, he has described the external injuries on the body of the
deceased which were recorded on a separate sheet of paper having with four incise
wounds on the neck, left elbow, left arm. Total number of 18 injuries were recorded.
He also recorded that there were internal injuries to left kidney incise wound at lower
pole 1 c.m. The incise wounds described to be at Sr. Nos. 3, 4, 5, 6, 7 & 8 were
possible due to the recovered knife which are articles 6 & 8 and the stab wounds
which are mentioned at Sr. Nos. 15, 16, 17 & 18 were stated to be possibly caused by
knife, i.e., recovered article Nos.6 & 8. He stated that the contusion was possible due
to hard and blunt object. He has stated that the injuries of the teeth marks were the
human (bite) teeth marks from the nature of the injuries as observed in the post-
mortem. He deposed that the possibility of rape could not be ruled out. The nature
of the injuries as recorded in his notes of postmortem and confirmed are as under:
"(1) multiple teeth marks (bite marks) upper lip and below lower lip 3.5
x 3.5 cm. Distance between 4 cms.;
(2) Contused lacerated wound below lower lip on left side 2 x 1 x ½
cm.;
(3) Incise wound on left side of the neck anteriorly 4 x ½ cm. Long
with tapering end anteriorly, muscle deep;
(4) Incise wound on left side of neck 3 x ½ cm muscle deep.;
(5) Incise wound on left side of neck 2 x ½ cm muscle deep.;
(6) Incise wound on anterior side of the neck 4 cm x ½ horizontally
cutting in direction on right carotid artery muscle deep.;
(7) Incise wound on left elbow 2 x ½ cm. muscle deep:
(8) Incise wound on left arm posteriorly 4 x ½ cm. muscle deep;
(9) teeth (bite) marks on left breast oval shape 3.5 cm. x 4 cm. distance
between two teeth marks were horizontal;
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(10) teeth (bite) marks on left hypochondrium on upper part of
abdomen 3.5 x 4 cm. distance between both teeth marks was 4 cm.
(11) Incise wound skin deep superficially extending from 2 cm. above
xiphisternum upto pubic bone straight line;
(12) contusion on the left palm 2 x 2 cm.
(13) contusion on right elbow 3 x 2 cm.;
(14) teeth (bite) marks on pubic region left side semicircular in shape 3.5
x 4 cm.
(15) stab wound above left iliac crest 2 x ½ cm. pelvic cavity deep;
(16) stab, wound above sacral region medially 1 x ½ cm. muscle deep;
(17) stab wound above the right side of back infra scapular region 1 x ½
cm.;
(18) stab wound on the middle of back inter scapular region 1 x ½ cm.
muscle deep;
I also found internal injuries as follows:
(1) left kidney incised wound at lower pole 1 cm. long;
(2) organs of generation - hymen was ruptured old, no internal injury
seen on the vaginal canal."
32. At this juncture, we may also refer to the deposition of PW - 16 Dr. Vilas
Ramchandra Nalawade, who examined the accused, who on 24 October, 2008 was
attached to the General Hospital, Aundh, Pune as a Medical Officer. In his
deposition, he has stated that Police Constable Khandagale of Chaturshringi Police
Station bought the accused to the Hospital for Medical examination and for blood
collection. He stated that he examined the accused at about 6.35 p.m. and found the
following injuries on his person :
"(i) abrasions 5 in number over left forearm;
middle 1/3rd and lateral aspect
about ½ cm. x ½ cm. Scaling + +,
no fresh blood.
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(ii) Abrasion 1 in number over upper 1/3rd of right forearm, lateral
aspect ½ cm. Scaling + and blackening + no fresh bleeding."
He deposed that the aforesaid injuries would be caused by a hard and blunt object.
He also deposed that the age of the injuries was more than 42 hours and those
injuries were simple in nature. He accordingly issued a injury certificate which was
shown to him bearing his signature which was identified by him. He also deposed
that the injuries were possible by nails during scuffle at the time of either sexual
assault or murder.
33. The cross examination of PW-16 has not revealed anything significant so as to
discredit the nature of the injuries and the likely cause of injuries. The cross
examination has not elicited anything contradictory to what has been stated in regard
to the injuries suffered by the accused as noticed in his medical examination and as
stated in the examination-in-chief by this witness.
G. Government Photographer
34. We now come to the evidence of the Government Photographer, who had
taken photographs of the place of the offence, namely, PW - 22 Shri Sharad
Gorakhnath Kshatriya who was in service of the Police Department, Government of
Maharashtra. He deposed that on the day of the incident dated 21 October 2008, he
was on duty when he was called by the Control Unit at Chaturshringi Police Station
in connection with Crime (Crime No. 493 of 2008). He had accordingly went to the
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Police Station and then he went to Balewadi with one Police employee. He deposed
that he went to the Aditya Park Society, Balewadi to flat No.27. He has deposed that
he inspected the spot along with officers and had taken photographs from different
angles of different places. He deposed that there was one palm impression on the
wall. It was an impression of blood-stained palm. He deposed that the finger print
expert encircled the said palm impression and put his signature and date on the same.
He deposed that he had taken photographs of the same by his digital camera. He
deposed that he used to prepare Compact Disc (CD's) of the photographs taken by
him. He deposed that the photographs of palm impression were handed over to the
finger print expert and the photographs of scene of crime to the Investigating Officer.
In his cross examination, he has deposed that he had taken photographs at the time
of panchnama. He also stated that there were blood mark on the floor as appearing in
the photographs as shown by the defence and that the police had not asked him to
develop such photographs of the blood marks on the floor. He deposed that the
Compact Disk (CD) was filed with pursis (Exhibit - 118) and it had 20 photographs.
He also stated that it was not true to say that the CD was modified from time to time.
He also denied the suggestion that it was not true to say that on 16 March 2015 at
6.04 p.m., the CD was modified. He stated that the CD was created at that time. He
also deposed that it was correct that while taking photographs, he has used point and
shoot camera. He deposed that whenever CD is created, the date comes on it, that it
was not true to say that whenever access is made to CD, the dates appeared. He also
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deposed that he had taken photographs on digital camera and digital camera has no
negatives.
35. PW-22 further deposed that it was true that after taking photographs they are
saved in the memory card and that to get the print of the photographs, the memory
card is required to be connected to the computer and the printer is required to be
connected to the computer. He has deposed that he had taken photographs from the
memory card on the computer and that he had not taken out the prints. He has also
deposed that while taking the print, the photographs have to be opened in the photo
editor software and only after the command is given to the computer, print out can
be taken. He also deposed to be true that the image data is digitally processed in
digital camera and thereafter it is saved in memory card. He also deposed that he has
not given the camera or memory card to the IO or the finger print expert. He also
deposed that he did not know as to whether panchnama was prepared about taking
photographs. He also replied to the suggestion that before taking photographs of
palm prints, he had not measured its width or length. He deposed that he had not
measured the height of the palm print from the ground level. He also deposed that
he had not taken the photographs of the palm print before it was encircled. He stated
that it was true that he had not put the signature next to palm print before finger
print expert signed it or after he signed it. He also deposed that he had not submitted
any certificate to the investigation officer or to the expert about the photo prints,
digital camera, computer and printer nor he had submitted details about the camera,
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company, model, shutter, speed, exposure, focal length and resolution state. He also
deposed that he had not submitted any certificate about the quality of photo prints
nor he had submitted any certificate about place, day, date, time and number of
photographs to the IO or fingerprint expert. He deposed that he had not submitted
the certificate about identification of photographs as also he did not submit the
certificate as to how the camera was used. He stated that he had not submitted the
certificate about default and automatic setting of the camera as also he had not
submitted the certificate regarding life condition, color of wall and the distance from
which the photographs was taken. He deposed that while taking photographs, he had
used inbuilt flash as there was no day light. He also deposed that the quality of
photographs would depend on camera setting and light conditions. He did not
accept suggestion that there is a photo editing programme in his camera or that every
digital camera there is a photo editing programme. He however voluntary stated that
it depends on the make of the camera. He stated that his camera was of the Canon
make and power shot GT make. He also deposed that he had not deposited the
camera with the police. He stated that there is inbuilt photo editor software of the
operative systems in the computer and by which the colour and resolution of the
photographs can be edited. He also stated that it is true that by merging two
photographs or by superimposing, new photographs can be made. He also deposed
that it is not true to say that he had not taken any closer photographs. He also
denied the suggestion that he had not taken any photographs on the spot. He also
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denied the suggestion that the fingerprint expert had not come in his presence and he
had not signed and put the date. He denied the suggestion that he had manipulated
the photographs. He also stated that he had not produced the memory card. He
denied the suggestion that on 21 October 2008, there was no palm print on the wall.
He also denied that being a police employee, he was deposing false to oblige the
investigating officer.
H. Finger Print Expert
36. PW - 20 Shri Mohan Nanu Rathod, aged 62 years is a finger print expert, in
his examination in chief, he has stated that he retired in the year 2010 as finger print
expert. He was attached to the CID Crime Branch, Pune. His qualification is M.A.
Economics and that he had qualified the departmental examination and finger print
examination conducted by All India Board for Examination of Finger Print Experts,
in the year 1984. He deposed that he was having 30 years experience in such field. In
regard to the incidence, he deposed that on 21 October 2008, a telephonic message
was received by him from the Chaturshringi Police Station for providing finger print
expert. In Crime Report No.493 of 2008 registered under Section 302 of the Indian
Penal Code. He stated that he went to the Chaturshringi Police Station, by the
investigation vehicle along with Government Photographer and Scientific Assistant.
He further deposed that along with Police Inspector Shri Suryawanshi, he went to
the crime spot. At the crime spot, he examined the articles like knife, door, walls and
tiles. He deposed that on the wall, he found one blood palm chance print on the
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wall. He encircled the print and put his signature with the date. He deposed that
Government Photographer (PW - 22) had taken the photographs of the same. He
deposed that he called slips of palm of the accused from the Police Station. He
deposed that on 24 November 2008, he received palm print slip. He deposed that he
compared the "palm print slip" of the accused with "chance palm print". He deposed
that he found that the "chance palm print" tallied with the "palm print slip" of the
accused. He then sent his opinion to the finger print bureau and that the team of
finger print experts bureau has agreed with his opinion. He deposed that such
opinion was sent to the senior expert who also agreed with his opinion and put his
signature. He deposed that the opinion/report was ultimately signed by Deputy
Directors of Finger Print Expert Bureau and thereafter the report/opinion was sent to
the Police Station (Exhibit - 84). The said report sent by him to the Deputy Director
dated 25 November 2008 was showed to him during his examination in chief which
was identified by him as also its contents to be true and correct. He stated that he
retired in the year 2010 and on receiving summons, he made enquiry about the
original documents and that he had found the photo copies with the officer. He
deposed that the original was sent to the CID office. He accordingly produced the
photo copy on record and said photo copy was marked as Article - A. He deposed
that on 17 November 2008, he had sent a letter to the Chaturshringi Police Station
asking palm print slip of the accused. Such letter was shown to him which was
identified him to bears his signature and the contents of the same to be true and
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correct (Exhibit - 107). He deposed that he had also sent a letter with similar
contents on 7 November 2008 (Exhibit - 108) which he had identified was bearing
his signature and deposed that the contents of the same were true and correct.
During his examination-in-chief, PW - 20 was also shown documents received from
the Police Station about the palm print of the accused. He deposed that he also finds
that on the date of the deposition, he had filed statement of reasoning on record
which was shown to him, during his examination in chief. PW - 20 deposed that it
bears his signature and that its contents are true and correct. He deposed that the
photographs of the encircled chance palm print shown to him during his
examination in chief, was the same and that it was bearing his signature. He deposed
that it bears the date in his own handwriting. He deposed that its contents were true
and correct. He further deposed that the signature was at Exhibit - 110 and that the
chance palm print and the palm print slip sent by the Police Station is the palm print
of the same person of left hand. In his evidence, PW - 20 further deposed that he was
working with the Police Department since 1980 and was working as CID crime since
then. He has also deposed that he was transferred to Mumbai and Jalana and then he
came to CID Branch, Pune. He said that he has not taken education of finger print
while graduation or post graduation and/or has any diploma or any other certificate
about finger print science. There is nothing in the cross examination which would
discredit his evidence as made in the examination-in-chief and passed departmental
examination and finger examination conducted by All India Board for Examination
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of Finger prints in the year of 1984 and that he had 30 years experience in the said
field. In the cross examination, he deposed that while encircling the chance palm
print and put his signature, he had not obtained the permission of the magistrate and
at that point of time there was no panchnama drawn. He denied that he was falsely
deposing that the photographs was taken of chance palm print in his presence and
that he had put his signature and put the date in his own handwriting. He also stated
that it was not true to say that on 21 October 2008 the chance palm print was not
appearing on the spot of crime. He further deposed that he had not gone to the
Police Station personally to obtain specimen of the palm print of the accused. He also
deposed that the Police did not send any panchnama about obtaining palm print
specimen and that there was a procedure for taking the palm print as also he was not
informed by the Police about any procedure to take the palm print. He also deposed
that there was a difference between palm print and finger print. He further deposed
that he had not personally taken photographs of chance palm print and specimen
palm print while comparing. He also deposed that the photographs were not
enlarged by him personally and no permission for the same was taken from the Court
while obtaining photographs of specimen palm print. He also deposed that both the
palm prints were not compared under the ultra-violet rays and that the finger print
were not examined under transmitted light. He also deposed that he has not given
any opinion about dis-similarity of specimen palm print and chance palm print. He
also deposed that it was not true to say that it was necessary to give opinion about
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point of similarity and dis-similarity of palm print or finger print. He also deposed
that he had not mentioned about type of pattern in his opinion and that he had not
measured the ridged, core and delta.
37. PW-20 further deposed that the ridge characteristic means specialty of lines
ridge. He also deposed that while obtaining print there should be proper inking. He
however stated that it was not correct to say that if there was no proper inking, no
proper opinion can be given. He also deposed to be true that the central portion of
palm is hollow. He further deposed to be true that the specimen therefore obtained
curved surface. He further deposed it to be true to say that if inking is proper ridge
ending appear as bifurcation or vice-verse. He deposed that he has not mentioned
about the whorn pattern, Arch pattern and composite pattern. He deposed that one
point of dis-similarity is sufficient to state that the prints are not identified. He
however deposed that he cannot give any reference of any book in this respect. He
has deposed that not to be true to say that the chance print there was blur impression.
He further deposed that it is true to say that the existence of several point of
similarity is not sufficient to establish identity. He further deposed that there is no
mention on any of the papers filed by him that any expert or senior are examined the
papers and agreed with him. He denied that he had not carried out proper
examination while comparing the prints and followed proper tests. He also denied
the suggestion that he had not examined all the required characteristics. He further
denied that it was not true that he has given false opinion being the police officer at
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the instance with senior.
I. Deputy Director of Finger Print
38. PW - 21 Shri Anand Maruti Pote age 61 who is retired as Deputy Director of
Finger Print Bureau, Pune. In his examination-in-chief has deposed that in the year
2008, he was attached to the Finger Print Bureau, Pune as Deputy Director on 25
October 2008, Junior Expert Shri. M. N. Rathod (PW - 20) has sent a report of a
chance palm print in connection with Crime No. 493 of 2008 of Chaturshringi
Police Station. He deposed that he had sent the report for verification to eight
different experts in his office and that all of them had agreed with the opinion of Shri
Rathod and put their signatures on that report. He accordingly deposed that he put
his signature as Senior Expert and Deputy Director and thereafter the opinion was
sent to the concerned Police Station (Exhibit - 84) which was shown to him and
which he identified to bear his signature as also the contents to be true and correct. In
the cross examination, he denied that he had not compared the chance palm print
and specimen palm print and that he had not issued any certificate. He further
deposed that it was true to say that in Exhibit - 84 before putting his signature he had
not written that he had agreed with Shri Rathod. He further deposed that it was not
true to say that Exhibit-84 also did not mention that the opinion of Shri Rathod was
sent to eight experts in his office and they had agreed with Mr. Rathod and they put
their signatures. He also deposed that it was not true to say that he was deposing
falsely and that he had sent the report to eight experts in his office and that they had
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agreed with Mr. Rathod and they put their signatures and he had also put his
signature. He also deposed that it is not true to say that being police officer he had
sent favourable report (Exhibit - 84) to the police.
J Evidence on behalf of the Accused/Defence
39. On behalf of the accused, Dr. Vishal Kumar Khamra (D.W. 1), Medical
Practitioner, District Hospital, Bhopal, is examined. He has deposed that he was on
duty on 23 October 2008 when the accused was brought by a police constable
attached to Habibganj Police Station with a requisition that he be medically
examined. He deposed that he did not find any external injury on the body of the
said patient, and systemic examination was normal, and has made an entry in the
hospital register which bears his signature and identified it to be true and correct. He
deposed that he issued the original certificate to the concerned police station and
obtained a receipt on the register which he has identified to be true and correct
(Exhibit 81). In cross- examination he admitted that journalist Rajendra Singh and
RTI activist had lodged a complaint alleging that he and his cousin Dr. Shailendra
Khamra had issued many fake medical certificates. He volunteered that Rajendra
Singh is neither a journalist nor RTI activist. He admitted that later on Rajendra
Singh had committed suicide. He has also stated that a chargesheet in the said case
was yet to be filed against him. In the cross-examination he deposed that he does not
have any copy of the requisition letter which he had received from Habibganj Police
Station. He denied that he had issued a false medical certificate.
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K Submissions on behalf of the Appellant/Accused:-
40. Mr. Tripurari Ray, learned counsel for the appellant/accused has made the
following submissions:-
(I) The impugned judgment and order is assailed with a primary focus on several
aspects contributing insufficient circumstantial evidence, not justifying the
conviction of the appellant/accused under Sections 302 and 376 of the Indian Penal
Code. As the case is solely based on circumstantial evidence, there is no eye witness.
The contention is that a closer scrutiny and appreciation of the evidence insofar as
the following factors are concerned, are vital:-
(i) Firstly, PW-3 Nimisha was the first person who entered the flat where
murder of the deceased had taken place and her evidence is vital as it disclosed the
following facts:-
(a) that she had opened the door with her keys, meaning thereby that the
lock was not damaged as the entry of the assailant was friendly.
(b) PW-3 Nimisha had informed the guard at the gate on intercom of the
society about the murder of the deceased when the guard at the gate informed
her of the fact that one Deepak Agnihotri (PW-1) had come to meet the
deceased.
(c) PW-3 Nimisha in her evidence has stated about security measures in
Aditya Park Society in paragraph 4 of her evidence that there is a CCTV
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Camera at the right side and any guest entering in the building has to make an
entry in the register of the security guard kept at the gate.
(d) If any guest comes to meet any resident, the security guard would first
ask on intercom whether to send the guest.
(e) Each flat is provided with zycon system by which one can see the
visitors at the screen.
ii. Since there were no signs of guest's entry in the house, offenders were
the persons to whom the deceased was acquainted with who came inside her flat with
her consent.
b. There being very strained relations between the accused and the
deceased as per the prosecution evidence, there is no possibility that the appellant/
accused could have entered the flat.
c. There being no evidence that the accused had entered the building-
Aditya Park Society, the accusation against the accused is perverse.
41. The entire evidence is required to be discarded, as it is a biased and tainted
investigation. The reason being that the circumstances, which were existing at the
place of occurrence, reveals an altogether different story. The prosecution has in fact
suppressed the material and crucial evidence and in fact, has fabricated and planted
evidence. Also the Investigating Officer has treated the accused with an evil eye and
uneven hand which is established from the following circumstances:-
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i. Four bloodstained knives were recovered from the place of occurrence.
The fingerprints were lifted.
ii. Although the body of the deceased was naked, there is no recovery of
torn clothes of the deceased from the place of occurrence.
42. In regard to the first point that though fingerprints were lifted as seen from
the evidence of PW-14 API Madhusudan Joshi, however, the specimen fingerprints
of the accused were not taken and no comparison of the fingerprints of the accused
was carried out with the fingerprints present on the knives. Hence, very strong
evidence, which could have been obtained from fingerprints on the weapons either in
favour of the appellant/ accused or against him, has been deliberately ignored. In the
absence of any evidence of connection of the accused with the weapons of offence,
the accused is entitled to acquittal.
43. It is submitted that PW-14 Madhusudan Joshi, API, who was the first
Investigating Officer did not bring on record and/or suppressed important evidence
namely visitors register kept at the gate of the Aditya Park Society. He also did not
produce the CCTV footage as also did not examine the security guard Mr. Amit
Kamble and has proceeded to give hearsay evidence. The security guard Amit
Kamble is also not in the list of witnesses filed by the prosecution.
44. It is next submitted that the evidence of recovery of blood stained clothes
allegedly from the flat of the accused which was shared by him with four persons, is
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false evidence and planted against the accused and the same is inadmissible in
evidence for the following reasons:
(i) On 21 October 2008 Mr. Sayyad Sabirali (PW-15) reached Nisarg City
Society at flat No.403 on 7 th floor, where the accused was stated to be residing, he
met a person named Prateek Dixit who told him that the accused had left at 9.15 a.m.
and thereafter never returned. (Reference: Paragraph 1 of evidence of PW-15)
(ii) There were some clothes hanging on the rope. Dixit pointed out that some
clothes were of the accused namely jeans pant and a T-shirt which Dixit pointed out
as belonging to the accused and which were blood stained. These clothes were seized
in the presence of the panchas as stated in paragraph 1 of PW-15.
(iii) As seen from paragraph 5 of the evidence of PW-15, he did not record the
statement of Prateek Dixit. Considering the provisions of Section 60 of the Indian
Evidence Act, 1872, he could be the only person who could have deposed to the fact
that the blood stained clothes belong to the accused. The evidence of PW-15 to the
extent he states that the blood stained clothes recovered from Nisarg City Flat
No.403 at 7th floor belongs to the accused, is inadmissible in evidence. For such
reason there is no evidence to the fact that the recovered blood stained clothes belong
to the accused.
(iv) It is also doubtful as to on which floor the search was made, as PW-15 has
stated in paragraph (1) that he reached Flat No.403 of Nisarg City Society and seized
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the blood stained shirts and jeans belonging to the accused.
(v) PW-10 Mr. Sampat Dorage, the panch witness to the recovery of the blood
stained shirt and jeans as stated in paragraph 4 of his evidence that the recovery was
made from flat on the second floor. Thus the evidence of PW-15 and PW-10 are
contradictory which striked at each other and therefore, the search and seizure both
are disproved. In fact, it would go to show fabrication of evidence against the
accused.
(vi) The CDRs of the mobile data of the accused and other witness are also
fabricated. This is clear from the evidence of PW-19 Sheshrao Suryawanshi,
Investigating Officer, when in paragraph 4 he clearly stated that it was true that from
the CDR report the tower location of mobile of accused was not appearing and as
seen from the CDR report the tower location of the accused was blank. Also there
was no certificate in regard to this document under Section 65B of the Indian
Evidence Act.
45. It is next submitted that thus in the light of the fabricated nature of the CDR
report of mobile phone calls of the accused, in the absence of any certificate under
Section 65B of the Evidence Act, evidence of PW-13 Rahul Yeshwant Dubey
alleging extra judicial confession becomes highly suspicious for two reasons; firstly
the prosecution has failed to produce any evidence of such closeness between Rahul
Dubey and the accused that would make it probable and natural for the accused to
confide in him; secondly, there is no corroborative evidence that accused even made
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the alleged phone call at around 12.30 p.m. on 21 October 2008. Also the accused in
his statement under Section 313 Cr.P.C. in answering question No.55 to 61 clearly
denied the allegations of Rahul Dubey - PW-13.
46. Mr. Ray, learned Counsel or the appellant has made the following submissions
on the conviction of the accused for rape:-
(i) It is submitted that no circumstance in the nature of opinion of PW-2 Dr.
Bhausaheb Dada Bhalekar relating to rape or its probability was not put to the
accused in his examination under Section 313 of Cr.P.C. Considering that no semen
was found in the vaginal swab, there was no basis for a finding on the probability of
rape. The opinion of PW-2 appears to be solely based on bite marks found on the
lips, breasts etc. It is submitted that there is no opinion of PW-2 that these bite
marks are ante-mortem or post mortem. No comparison of the teeth mark on the
body of the deceased with the dental impression of the accused was carried out by the
prosecution and therefore, there is no basis to hold that the teeth marks on the body
of the deceased were of the accused.
47. The next submission of Mr. Ray is on admissibility of Exhibit 84 namely the
report of the Deputy Director/ Deputy Superintendent of Police, Fingerprint Expert,
Maharashtra State, Pune, recording the result of comparison of chance print found
when he records that one blood palm chance print found on the wall concerned with
the case, was identical to the left hand palm portion of the accused received for
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comparison as forwarded to his Office. The submission of Mr. Ray is that the accused
endorsed on this document is the remark that the document be admitted in the
exhibit, as also the same remark was made by the Advocate appearing for the accused,
as also an endorsement of copy being received on behalf of the accused. The
document also appears the signature of the learned Sessions Judge admitting the
document in evidence.
48. Mr. Ray would submit that in the course of criminal trial, the document is to
be put up for admission or denial, it has to be put up thereafter in law as prescribed
either in the Criminal Procedure Code or in the Evidence Act. His submission is that
there is no provision under the Evidence Act for admission or denial of the
documents by the accused. Referring to Section 294 of the Cr. P.C. providing for
admission and denial of the documents under which one of the most important
conditions that the document concerned should be put up by the Court for
admission / denial. The other conditions being (i) only the documents which are
contained in the list of documents filed by the prosecution, can be put up by the
Court for admission or denial. It should be put up for admission or denial at the
beginning of the trial and the only purpose of introducing Section 294 is to shorten
the trial; (ii) it cannot be placed for admission or denial at a stage of conclusion of
trial or while a judgment is dictated in the Court; (iii) admission and denial of
documents in criminal trial in derogation of the provisions of Section 294 of Cr.P.C.
is illegal and inadmissible in evidence for being not in accordance with the procedure
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established by law, and such illegality in fact becomes unconstitutional.
49. It is next submitted that in the present case neither the palm print obtained by
PW-19 Sheshrao Suryawanshi, the Investigating Officer, was part of the list of
documents filed by the prosecution alongwith chargesheet, nor was there any order
passed by the Trial Judge to put up Ex.84, the report of the forensic expert to the
accused for admission and denial. Further as to when, how and before whom was
Ex.84 admitted by the accused is not known, or at least the record is silent on this
aspect.
50. It is next submitted that a report of Forensic Expert's report (Exhibit 84) is
fabricated for the reasons that it is dated 27 January 2009; As per the endorsement
on the said report, it was received on 6 February 2009 at the police station; The
chargesheet was in fact filed on 19 January 2009. There is no whisper in the
chargesheet of the fact that a specific palm print of the accused was obtained by PW-
19 - Investigating Officer, or that any chance blood stained palm print was found on
any of the wall of the place of occurrence which has been sent to the Forensic Science
Laboratory (FSL) for comparison and a report was awaited. There is no explanation
of IO/PW-19 as to why and under what circumstances the document was sought to
be placed on record at the time when the judgment was being pronounced. The
prosecution witnesses both PW-20 and PW-22 have stated that palm print was on
the walls of the flat, blood was found in two rooms, in which of the rooms the palm
print was found is not known. Further the inspection report of the photographs
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placed on record, shows that the walls of room were stained with blood, however,
photographs of wall on which palm print exists is yellow, it implies that the said wall
was not of the place of occurrence.
51. It is next submitted that as a matter of reading of the provisions of Sections
293** and 294* of the Cr. P.C. together with what becomes clear is that, Section 294
of the Cr. P.C. is a general provision empowering the Court to put up all documents
filed alongwith the charge-sheet for admission/denial by the parties, however, Section
293 of the Cr. P.C. deals with a specific class of documents and therefore, on the
principle that the specific excludes itself from the general provision will apply and
thus, the documents covered by Section 293 of the Cr.PC cannot be put up for
admission and denial. The Court has no power to admit in evidence a document
admitted outside the Court during the course of the trial.
52. It is next submitted that the documents at Exhibit 84 namely the report of
palm print dated 27 January 2009 is based on photographs taken by PW-22 Sharad
Kshatriya, Government Photographer. It is submitted that the evidence of PW-22
brings out the facts that (i) the photographs (filed on 08 June 2015) were clicked by
him on a digital camera, (ii) memory card on which the photographs are stored has
not been produced before the Court. The memory card of a digital camera stands on
the same footing as the negative of a traditional camera. (iii) The photographs are
*
Section 293 of Cr.P.C. - Reports of certain Government scientific experts.
*
Section 294 of Cr.P.C. - No formal proof of certain documents.
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transferred from memory card on to a computer. (iv) It is true to say that in the
camera and computer, there is microprocessor. It is true to say that image data is
digitally processed in digital camera. (v) The evidence of PW-22 Sharad Kshatriya
(page 287-288 of the paper-book) makes it evident that a digital camera is also a
computer and with the aid of a computer, a photograph can be manipulated to create
something different than what was photographed.
53. It is submitted that neither the memory card was produced before the Court,
nor the digital camera on which the photographs were taken on 21 October 2008. It
is submitted that there is no certificate under Section 65B of the Indian Evidence Act
in respect of any of these electronic objects.
54. It is submitted that the photographs generated from these cameras are
transferred through the memory card on the computer. All these three electronic
devices or a computer system defined in Section 2(i) and 2(l) of the I.T. Act, 2000. It
is submitted that unless the computer system is duly certified neither the
photographs are admissible in evidence nor the report emanating out of the
comparison of these photographs will be admissible in evidence. In this context, it is
submitted that the evidence of PW-20 Mohan Rathod (finger print expert), PW-21
Anand Pote (Deputy Director [Sr. Finger Print Expert]) and PW-22 Sharad Kshatriya
(Government Photographer) to the extent they deal with the photographs taken by
PW-22 and expert opinion on the basis of photographs are inadmissible in evidence
and therefore, Exhibit 84 is liable to be excluded from consideration by this Court.
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In supporting such submissions, reliance is placed on the decision of the Supreme
Court in case of Anvar P. V. vs. P. K. Basheer & Ors.1.
55. It is next submitted that the appellant/accused in his examination under
Section 313 of the Cr. P.C. has clearly denied that the Investigating Officer had ever
taken his palm or finger prints for comparison. There is neither the signature of the
appellant/accused on the sample palm print nor of any other witness before whom
the palm print was taken, hence, every document signed by any person in jail is to be
attested by the Superintendent of the jail. The palm print of the appellant was taken
in jail, but there is no such attestation. It is submitted that in fact, PW-19 Sheshrao
Suryawanshi (IO) has admitted that he did not draw any panchnama. It is submitted
that the sample palm print which was used for comparison with the photographs
taken by PW-22 Sharad Kshatriya. There is only evidence of PW-19/IO, who says in
his further examination in chief that after he was re-summoned under Section 311 of
the Cr.P.C. on the point of obtaining the palm print of the appellant. It is hence his
submission that PW-19/IO is not a reliable witness as he has openly stated that he
had filed Exhibit 84 along with the chargesheet, which was false as the same was
received after filing of the chargesheet. Apart from Exhibit 84, there is no other
evidence on record against the appellant. It is hence his submission that the appeal
be allowed and the appellant is entitled to be acquitted.
1
(2014) 10 Supreme Court Cases 473
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L. Submission on behalf of the Prosecution
56. On the other hand, Mrs. Mankuwar Deshmukh, learned Additional Public
Prosecutor, has supported the conviction of the accused by the impugned judgment
and order rendered by the learned Sessions Judge. Referring to the evidence of PW-1
Deepak Agnihotri who is the friend of deceased and accused, she has submitted that
PW-1 knew the accused and deceased since 2007 as both of them were from Bhopal.
He was also aware about their love affair and thereafter differences between them as
he has admitted in his evidence that the appellant/accused always tried to speak with
the deceased, but the deceased avoided him. She submits that the evidence would
further clearly go to show that the accused and the deceased were working in the
same company at Pune. As the appellant/accused was also insisting the deceased to
talk to him, which was disliked by the deceased, she made complaint of the accused
with the company. It is next submitted that from the evidence of PW-1, it is clear
that the deceased Khushbu was having friendship with other boy Manish Singh and
for such reason, the appellant/accused got annoyed and had said to PW-1 that he will
cut her into pieces and will take revenge. It is submitted that PW-1 has clearly
deposed that on 20 October 2008 at about 12.00 noon, the appellant/accused had
desired to talk with the deceased, however, the deceased was not ready to revive their
relation. She submits that at 07.45 p.m. of the same day, the deceased informed PW-
1 that the accused was trying to speak with her again, but she avoided. PW-1 also
deposed that at 07.30 p.m. the accused had called him and asked him whether he
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had left for home. It is her submission that it is material that after 08.15 p.m. on the
day of the incident, the deceased did not pick up her phone and therefore, PW-1 had
visited the flat of the deceased, but no one responded when the watchman was also
present. PW-1 further deposed that he called the accused, but he did not pick up the
phone and on such backdrop, he had received a call next day early morning from the
police station that the deceased Khushbu was found murdered in her room. He
stated that he went to the home of the accused, but the accused was not found at
home, however his blood-stained jeans which was lying on the rope in the room was
seized by the police. Referring to the cross-examination of PW-1 Deepak Agnihotri,
it is submitted by Mrs. Deshmukh that there is nothing of relevance has come on
record to dislodge the evidence of PW-1 in the examination-in-chief. She submits
that in fact, there is a clear statement in the examination-in-chief that PW-1 felt that
the appellant/ accused was troubling the deceased and that he denied the question
that he was falsely deposing that the accused was annoyed and that he had told PW-1
Deepak that he will cut the deceased in pieces. She submits that PW-1 Deepak also
denied the suggestion that PW-1 was deposing falsely about the seizure of the blood-
stained jeans of the accused.
57. Mrs. Deshmukh, thereafter referring to the evidence of PW-2 Dr. Bhausaheb
Bhalekar, has submitted that PW-2 conducted postmortem of the deceased on 21
October 2008 between 10.00 a.m. to 11.30 a.m. when he has recorded finding of 2
internal injuries, 18 external injuries and hymen ruptured. She submits that the
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cause of death which has been set out in the report of PW-2 Dr. Bhalekar is
"Hemorrhagic shock due to multiple injuries." Incised wound 3, 4, 5, 6, 7 and 8 in
column no.17 are possible due to 'Knife' (muddemal Articles 6 and 8). Stab wounds
15, 16, 17, 18 are also possible due to articles 6 and 8, human teeth bites sr. nos.1, 9,
10 and 14. Mrs. Deshmukh submits that possibility of rape cannot be ruled out. She
also submits that if a person used condom, C.A. report in the said case about semen
will be 'nil'.
58. Mrs. Deshmukh refers to the cross-examination of PW-2 Dr. Bhalekar to
submit that the cross-examination did not in any manner disturb his evidence in the
examination-in-chief and the report. Moreover, it has come on record that the
stomach of the deceased was empty and that he deposed that he cannot opine that
the deceased was habitual to sex.
59. Mrs. Deshmukh, referring to the evidence of PW-3 Nimisha Abroal
(complainant) who was the roommate of the deceased Khushbu, has submitted that
even this witness has stated that she knew the accused and one day, the accused had
come to their house at Pune and suddenly dispute between the deceased and the
accused had taken place and that the accused asked her to give understanding to the
deceased and that earlier the deceased and the accused had an affair and later on
dispute had occurred between both of them. She also deposed that whenever the
accused had called the deceased, the deceased used to get angry. She also deposed
that on the day of the incident, her brother PW-4 Prashant dropped her to her room
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where the incident had taken place. She rang the bell and knocked the door, but
there was no response. Hence she opened the door with other key and saw the
deceased Khushbu murdered. She called the police. She also deposed that the
watchman had told that one boy Deepak (PW-1) had come and was asking for the
deceased. She has stated that she lodged complaint against the accused on 21
October 2008. She submits that in the cross-examination, she clearly stated that
there is a security guard in the building.
60. Mrs. Deshmukh has taken us through the evidence of all the prosecution
witnesses. Her submission is that the findings, which are recorded on the basis of
documentary and oral evidence on record, clearly go to show that it is only the
accused who has committed the crime, as according to her, the chain of circumstances
is complete from the evidence of firstly PW-1 Deepak Agnihotri, PW-3 Nimisha
Abroal, PW-5 Archana Yadav and PW-13 Rahul Dubey, which go to show that the
accused and the deceased were from Bhopal. They were knowing each other and
they had an affair and subsequently, there was break up and the deceased Khushbu
had started avoiding the accused.
61. Mrs. Deshmukh referring to the second link in the chain, would refer to the
evidence of PW-1 Deepak Agnihotri, PW-5 Archana Yadav and PW-13 Rahul Dubey
that the accused was harassing her and expressed his anger to revenge and always was
giving such understanding to the deceased.
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62. She submits that the third link is the motive. Mrs. Deshmukh referring to the
third link submits that there is a motive for the appellant/accused to commit the
crime, which is clear from the evidence of PW-1 Deepak Agnihotri, PW-5 Archana
Yadav and PW-13 Rahul Dubey who have deposed that the accused was aware that
the deceased was avoiding him and in fact, was having affair with someone else. She
submits that the deceased having lodged the complaint against the accused and
warning letter was issued to the accused by the employees of the Capgemini is one of
the vital links as seen from the evidence of PW-5 Archana Yadav, PW-7 Deepali Patil
and PW-9 Ashish Potdar.
63. Insofar as the next link is concerned, referring to the conduct of the accused in
very disturbed state of mind since the deceased was avoiding him, Mrs. Deshmukh
has referred to the deposition of PW-5 Archana Yadav, PW-7 Deepali Patil, PW-9
Ashish Potdar and PW-13 Rahul Dubey, who according to her, have clearly deposed
about the state of mind of the accused against the deceased. The evidence of PW-5
Archana Yadav is referred to be relevant in such chain of events which goes to show
that the accused knew that the deceased was alone at home on 20 October 2008.
64. It is submitted that at about 07.30 p.m. on 21 October 2008, the evidence of
PW-12 Pushpesh Singh (colleague of the accused) showed that the accused was in a
very angry mood and was giving some understanding to someone on phone. The
call details of the accused showed that such call was made by him at about 07.30 p.m.
on 20 October 2008.
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65. Insofar as the next link is concerned, it is submitted that the accused was
leaving on his Pulsar motorcycle from his home as seen from the evidence of PW-8
Suresh Tilave (watchman of the housing society of the accused). It is submitted that
on the day of the incident, in the evening after 08.00 p.m., friends had called the
deceased, but she had not responded to their calls, which was clear from the evidence
of PW-1 Deepak Agnihotri and PW-5 Archana Yadav, friends of the deceased and
the accused. She submits that followed by this, was that PW-1 Deepak Agnihotri had
called the accused to inform that the deceased was not responding to the phone calls
as also the accused did not respond. She submits that followed by this, was at about
09.00 p.m. the accused had come to his flat and again came out at about 10.30 p.m.
by his Pulsar motorcycle and thereafter did not come back which was clear from the
evidence of PW-8 Suresh Tilave (watchman of the accused society).
66. Mrs. Deshmukh has submitted that the deceased was found having multiple
stab injuries and she was lying as such in her flat in the evening as noticed by PW-3
Nimisha (roommate of the deceased) who had returned home and PW-3 Nimisha
accordingly had lodged the F.I.R., as the deceased was murdered brutally. Referring
to the evidence of PW-3 Nimisha, PW-4 Prashant and PW-14 API Madhusudan
Joshi who registered the crime report. It is submitted that the postmortem report
shows the cause of death of the deceased was due to multiple injuries and rape
referring to the postmortem report of PW-2 Dr. Bhalekar. Mrs. Deshmukh has
referred to PW-13 Rahul Dubey (so called elder brother of the accused) who was also
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working in the accused's company. He deposed that the accused had called him on
21 October 2008 in the morning and had given extra judicial confession that he had
murdered the deceased. Mrs. Deshmukh submits that from the seizure of knife from
the spot and pant and nicker of the deceased near bed, which was stained with blood,
intention of the accused was clear as deposed by PW-4 (friend of the accused). It is
her submission that the seizure of the blood-stained clothes seized from the room of
the accused is also proved, as seen from the evidence of PW-4 Prashant, PW-15
Sayyad Sabirali (Police Inspector) who seized the clothes of the deceased.
67. It is next submitted that the accused had absconded from Pune as his Pulsar
motorcycle was seized from outside the railway station at Pune on 21 October 2008
which is seen from the evidence of PW-11 Chandrakant Khamitkar (panch witness in
regard to the seizure of the motorcycle). It is her submission that the accused was
arrested from Bhopal. He was produced by his father at Habibganj Police Station at
Bhopal on 22 October 2008 and hence his abandonment of motorcycle at Pune
Railway Station and arrest from Bhopal are material circumstances. She submits that
it is further proved that he was arrested by Pune Police Station on 24 October 2008
by bringing him from Bhopal as seen from the evidence of PW-19 Sr. P.I. Sheshrao
Suryawanshi (IO). Further when the accused after having arrested was produced for
medical examination before PW-16 Dr. Vilas Nalawade, injuries were noticed on his
body, which were stated to be caused during scuffle. She has lastly referred to the
chemical analysis report to submit that 'B' blood group was noticed on the clothes of
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the accused and articles knives, etc. are also found at the spot, on the clothes of the
deceased namely nicker and cut marks of knife on it.
68. It is submitted that fingerprints of the accused were found on the wall of the
flat of the deceased and that palm print impression of the accused was tallied with
wall palm prints as seen from the evidence of PW-20 Mohan Rathod (fingerprint
expert) and PW-21 Anand Pote (Sr. fingerprint expert). It is lastly submitted that
nowhere any incriminating material was explained by the accused. Further
additional link to connect the accused with crime is clearly available in the statement
of the accused as recorded under Section 313 of the Cr. P.C. It is hence her
submission that the accused has been rightly held to be guilty of the offences as
charged. Hence the impugned judgment and order passed by the Sessions Judge
would not call for any interference and the appeal needs to be dismissed.
M. Analysis
69. Before dealing with the submissions as advanced at bar, it will be useful to
refer to the principles governing appreciation of evidence of a case based on
circumstantial evidence. The Supreme Court in the case of Hanumant Govind
Nargundkar vs. State of Madhya Pradesh 2 held that in cases where evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established and further all the facts so
established should be consistent only with the hypothesis of the guilt of the accused.
2
AIR 1952 SC 343
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The circumstances should be of a conclusive nature and tendency so as to exclude
every hypothesis but the one proposed to be proved. That the chain of evidence
should be complete so as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such to show that with
all human probability, the act must have been done by the accused and the accused
alone. In Sharad Birdhi Chand Sarda vs. State of Maharashtra 3, laying down the
principles for conviction on the basis of circumstantial evidence, the Supreme Court
held that the following conditions must be fulfilled, before the case against the
accused can be said to be fully established:-
"(i) The circumstances from which the conclusion of guilt is to be drawn
should be fully established;
(ii) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be
proved;
(v) there must be a chain of evidence so complete as not 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 have been done by the accused.
70. In paragraph 153 of the aforesaid decision, Their Lordships observed that the
said "five golden principles" constitute the "Panchsheel" of the proof of a case based
on circumstantial evidence.
71. The aforesaid decisions are recently reiterated by the three Judge Bench of the
3
AIR 1984 SC 1622
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Supreme Court in Abdul Nassar vs. State of Kerala4.
72. With the assistance of learned counsel for the parties, we have carefully
examined the evidence on the record of the trial Court and the submissions as
advanced on behalf of the appellant/accused and on behalf of the prosecution.
73. Considering the evidence of PW-3 Nimisha, roommate of the deceased and
the complainant, as also the other friends of the deceased, namely, PW-4 Prashant
Shrivastav and PW-5 Archana Tirthshankar Yadav and further corroborated by the
testimony of PW-7 Deepali Ashok Patil and PW-13 Rahul Dubey, it is evident that
the deceased had an affair with the accused, which had suffered a break up, as a result
of which the accused was severely angry against the deceased and wanted to take a
revenge. Deceased Khushbu had refused to maintain relations with the accused
and /or was befriending other friends, which fueled the jealousy and anger of the
accused. The testimony of PW-1 Deepak and PW-13 Rahul is unchallenged, on the
accused stating that for such reasons he would kill the deceased ("by cutting her into
pieces").
74. Such conduct, behaviour and actions of the accused had not remained to be a
matter, purely personal between the deceased and the accused, but it had also affected
his employment with Capgemini, inasmuch as the deceased being extremely
disturbed and aggrieved by such actions of the accused, had approached PW-7
Deepali (Incharge HR Consultant), who referred the complaint of the deceased to
4
2025 SCC OnLine SC 111
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PW-9 Ashish Potdar [Senior Manager, HR of Capgemini] for action to be taken.
From the reading of the testimony of these witnesses, the nature of the grievances
"officially made" to the management of Capgemini, resulted in the accused being
reprimanded and being asked to correct his behaviour towards the deceased on the
complaints, made by the deceased. He was asked not to meet her by PW-7 Deepali
and PW-9 Ashish.
75. The testimony of PW-1 Deepak clearly depicts that the accused had expressed
extreme rage and resentment against the deceased to PW-1, who also hailed from
Bhopal and was acquainted with the accused. PW-1 in his evidence has stated that
the accused and deceased knew each other and that they had a broken love affair, as
since about one year, there were disputes between the accused and the deceased and
both were not talking to each other. He also deposed that the accused tried to talk
with the deceased and that the deceased always avoided him. PW-1 also deposed
that the accused had insisted deceased Khushbu to talk with him. It is against such
actions of the accused of causing harassment to the deceased, the deceased had made
a written complaint against the accused with Capgemini as noted hereinabove. PW-1
Deepak also deposed that deceased Khushbu was having friendship with one Manish
Singh, one of the colleagues, and accused was annoyed, even on this count. Most
significantly, the testimony of PW-1- Deepak has remained unshaken insofar as it
records that one week prior to the incident, the accused had told PW-1 Deepak that
"he will cut Khushbu into pieces", as Khushbu had lodged a complaint against him
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with the employer, which he believed that such utterances were made in anger.
76. It is thus significant from the testimony of PW-1-Deepak that on the date of
the incident, i.e., on 20 October, 2008 at about 12 noon, the accused had come to his
office and asked him to call deceased Khushbu, as he wanted to talk with her. PW-1
Deepak having so informed the deceased and the accused met her in the office
premises, there was a talk between the accused and deceased for about an hour and
half. The testimony of PW-1 Deepak further shows that after such talk, the deceased
told PW-1 Deepak that accused was insisting her to keep relations with him and that
the deceased was not ready to do so.
77. The testimony of PW-1 Deepak further shows that on the day of the incident,
deceased Khushbu left the office at about 5.30 p.m. whereas PW-1 Deepak left the
office at about 7.30 p.m. At about 7.45 p.m. when he was travelling in the bus,
deceased Khushbu called him on his mobile and told him that the accused was trying
to contact her on mobile and she did not want to talk with him. PW-1 Deepak also
stated in his testimony that around 7.30 p.m. the accused had also called him on his
mobile enquiring whether he has left the office. PW-1 Deepak has further deposed
that at about 8.15 p.m. when he was still in the bus, he was trying to call deceased
Khushbu, however, she was not answering. He further deposed that he was
desperately trying to contact the deceased on her mobile for the reason she had
earlier informed him about the accused trying to contact her. PW-1 - Deepak after
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reaching home again tried to call deceased but her phone was not reachable. On such
backdrop, PW-1 Deepak again called accused and asked him about the deceased
answering her mobile phone. On this, accused informed PW-1 Deepak that there
was quarrel between him and the deceased and there is possibility that she had hence
switched off her mobile. PW-1 Deepak deposed that he was worried about deceased
Khushbu and felt that he along with accused should go to deceased Khushbu's home
to convince her, as she might be depressed and would commit suicide. However,
significantly, the accused was not ready to come with him.
78. PW-1 Deepak was not knowing the address of the deceased, hence he
obtained the address of deceased Khushbu from the friend of the deceased PW-5-
Archana Yadav. Thereafter, PW-1 Deepak went to the residence of deceased
Khushbu (Aditya Park Society) by autorickshaw and reached at the spot at about 10
to 10.30 p.m. when he asked the watchman about deceased Khushbu. On receiving
the information from the watchman that three girls were residing in one flat. Such
flat was shown to PW-1 Deepak by the watchman. PW-1 has deposed that he rang
the doorbell of the flat but nobody opened it. He continued to ring the doorbell
when the watchman interrupted him, telling him that the neighbours are being
disturbed by PW-1 Deepak continuous ringing the doorbell and thereafter PW-1
Deepak left the premises. It is significant that on these circumstances, at about 11
p.m. PW-1-Deepak called the accused and told that the deceased was not responding
and was not opening the door and asked the accused to come with him, to which the
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accused did not give any response. Moreover, when PW-1 insisted him, the accused
told him that he would reach the residence of the deceased within 15 minutes. On
such assurance, PW-1 Deepak waited for almost half an hour, but the accused did not
turn up. At such point of time, PW-1 Deepak again called accused when his phone
was switched off. In these circumstances, PW-1 Deepak returned to his house.
There is no explanation to this testimony or any cross-examination.
79. It is on such backdrop, PW-1 Deepak received a call from the Chaturshringi
Police Station at 3 a.m. on 21 October 2008 that he should come to the Police
Station. He reached the Police Station between 6 a.m. to 7 a.m. PW-1 Deepak
accompanied the police officials to the residence of accused at the 'Nisarg City'
premises. During the search of the house of the deceased, blood stained jeans and
blood stained T-shirt of the deceased, which were lying on the rope were seized. The
cross-examination, testimony of PW-1 on the recovery has remained unshaken. In
the cross-examination, PW-1 Deepak has reiterated that accused was warned by the
Management of Capgemini (PW-7 Deepali and PW-9 Ashish Potdar), and that he
was aware that even after such warning, the accused was causing harassment to her.
Thus, in our opinion, the deposition of PW-1 is very crucial, when the Court is
required to consider as to whether such circumstantial evidence unequivocally raises
its finger towards the person having a motive to commit the crime in question, and
for the Court to consider all the cumulative circumstances, so as to determine
whether they point out to the guilt of the accused and none other than the accused in
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commission of the offence of murder of Khushbu.
80. The next crucial evidence is of PW-3-Nimisha, who was the roommate and
friend of the deceased. She was residing in the flat along with the deceased, as she
was pursuing her MBA from 2007 to 2009 at Pune. Her native place was Bhopal.
She deposed that she knew deceased Khushbu who was also from Bhopal, as
deceased Khushbu was her family friend. She deposed that she knew the accused, as
he also hailed from Bhopal and had met her at Pune on two to three occasions. Her
deposition is significant so as to indicate that in the past the accused had suddenly
come to her house, at which point of time there was a dispute between the deceased
and the accused. PW-3 Nimisha also deposed that on one occasion, deceased
Khushbu was not at home, as she had gone to Shirdi when the accused asked PW-3
Nimisha to give her an understanding. PW-3 Nimisha further deposed that earlier
the accused and deceased were good friends and thereafter they had a love affair,
however, the same had broken. She was aware of the disputes, as whenever the
deceased received phone calls from the accused, she used to cry and talk with him in
anger.
81. P.W.3 Nimisha also deposed that on 11 October, 2008, other friend, namely,
Nehal, who was also staying with PW-3 Nimisha and the deceased, had gone to
Bhopal and further on 18 October, 2008 PW-3 Nimisha went to her maternal
uncle's house at Pimpri, Pune, when deceased Khushbu was alone at home. PW-3
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Nimisha called the deceased on 19 October 2008, to ask her whether she would
return home, when the deceased told her that her friend Archana would give her
company and therefore PW-3 Nimisha did not return home. PW-3 Nimisha further
deposed that on 20 October (date of incident), she went out for dinner at about 9.30
- 10 p.m with her cousins Abhishek, Vibha and Prashant (P.W.4) and after dinner
Abhishek and Vibha went to their house and brother Prashant dropped her at home
at the Aditya Park Society. PW-3 deposed that when she returned to her house, PW-
4 Prashant had accompanied her. She deposed that she rang the bell but there was
no response from inside, so she opened the door with her keys. On entering the
house, she saw that there were blood spots on wall and mattresses and bedsheet was
smeared with blood. She also noticed one knife lying on the floor and the bloodstains
in lobby towards bedroom indicating that somebody had pulled the body. When she
went to the bedroom, she found that the body was covered with blanket. At that
time she received a phone call from the watchman and so she came out to attend the
call, when the watchman told her, that P.W. 1 - Deepak had come to her house and
was asking for deceased Khushbu, She deposed that thereafter she locked the door
and went out with Prashant and informed about the incident to the watchman, who
called the police.
82. Thus, the testimony of PW-3 Nimisha points out that the deceased was
having a love affair with accused and which had in fact stood broken, as the accused
was causing harassment to the deceased and the deceased used to cry and get angry
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on receiving calls from the accused. The deposition of PW-3 Nimisha also shows
that the deceased was alone at home, as neither PW-3 nor the other friend Nehal,
who was staying with the deceased was present in the flat as she had also gone to
Bhopal.
83. It thus becomes clear from the testimony of PW-1 Deepak, PW-3 Nimisha,
PW-7 Deepali and PW-9 Ashish Potdar that there was a motive for the accused
against the deceased to the extent that the accused intended to take revenge and kill
her, as their relations had fallen apart.
84. The next issue in this chain of circumstances which would be necessary to be
considered, is as to how the accused received the knowledge that the deceased was
alone at home. PW-5 Archana was also an employee of Capgemini from June, 2008.
She deposed that she knew Khushbu, as they joined Capgemini at the same time. She
also deposed that she knew the accused and deceased Khushbu very well, as they
were having love affair since college days and after coming to Pune for employment,
their relations were not cordial. In her testimony, PW-5 Archana has categorically
stated that deceased Khushbu wanted to break all relations with the accused and
despite which the accused used to contact her and tried to talk with her, but deceased
was not giving response and was avoiding him. She also stated in her testimony that
deceased Khushbu had lodged a complaint in the office against the accused, as the
accused insisted the deceased to talk with him. The second part of deposition of PW-
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5 is that on the day earlier to the incident, i.e., 19 October, 2008 in the evening, she
had gone to the house of deceased Khushbu for the first time at the Aditya Park
Society, Balewadi, Pune. She stated that deceased came down to receive her and
there was no security guard. She deposed that on that day the deceased was alone at
home, as her other roommates Nehal and P.W. 3 - Nimisha, were also not available as
Nehal had gone to her native place at Bhopal and PW-3 Nimisha had gone to her
maternal uncle's house at Pimpri, Pune. She also stated that on the day of incident,
she went with the deceased to the office by bus. What is most significant that when
she deposes that at about 11 a.m., accused came to talk with PW-5 Archana casually,
the accused told her to give the deceased an understanding to talk with him. It is at
such point of time, PW-5 Archana she told the accused that she was with the
deceased on the earlier night, as her roommate Nimisha had gone to her maternal
uncle's place and Nehal had gone to Bhopal and the deceased was alone in her
house. She also deposed that in the evening deceased Khushbu called Archana on
her mobile to enquire whether she was coming to her house when PW-5 Archana
told her that she had some work and she will go to her own house. PW-5 Archana
left the office at about 7.30 p.m.
85. Further circumstances are important, namely, that PW-5 Archana at about 9
p.m. received a call from PW-1 Deepak on her mobile and told her that he was trying
to call Khusbhu, but she was not responding to his calls. PW-1 Deepak hence asked
her to give the address of Khushbu, which she gave it to him. P.W.5 - Archana
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further deposed that thereafter she called the accused and told him that the mobile of
deceased was not responding and therefore asked him to give her the mobile number
of deceased's roommate P.W. 3 - Nimisha. The accused informed PW-5 Archana that
P.W.3 Nimisha was having new mobile number, which was not known to him. The
accused also told P.W.5 - Archana that there was dispute between the deceased and
accused, so she must have switched off her mobile phone, and asked her to try again
after sometime. P.W.5 Archana deposed that it is on the next date between 7.30 to
8.00 a.m. she came to know about the murder of Khushbu.
86. The deposition of PW-5 Archana assumes significance inasmuch as it is PW-5
Archana from whom the accused received information that the deceased on the date
of the incident was alone in her flat, as her roommate PW-3 Nimisha and Nehal were
away, and it was this information and the position of the deceased as revealed to the
accused by PW-5 Archana, turned to be fatal to the deceased Khushbu, inasmuch as
deceased Khushbu being alone in the flat, it was the best possible opportunity for the
accused to commit the crime to which he was determined to commit as informed to
P.W.1 Deepak and P.W.13 Rahul in the absence of the likelihood of any witness being
available, namely, her roommates, whose presence would have completely changed
the scene of the crime.
87. The next question is as to what are the other circumstances which would point
out to the guilt of the accused. In such context it may be observed that there is no
evidence to indicate that the deceased had any enmity with any other person and of
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such a nature that such person would have an intention to physically harm her and/or
kill her. Thus, such circumstances assume significance as the only person who had a
motive and who intended to kill deceased Khushbu was none other than the accused,
which has unequivocally been stated in the testimony of not only PW-1 Deepak and
PW-13 Rahul and the circumstances as brought about in the evidence of the other
witnesses who have deposed to strained relations between the accused and the
deceased and the behavioural pattern of the accused. Thus, these circumstances
would point out towards the accused waiting for revenge to be taken on his earlier
intentions made known to PW-1 Deepak and PW-13 Rahul with the rage the
accused wielded against the deceased having broken relationship with him.
88. Further, on the date of incident, there are circumstances which clearly point
out the involvement of the accused, namely, the conversation the accused had with
PW-1 Deepak held between 7.30 p.m. to 10.30 p.m. and the conversation which the
accused also had with PW-5 Archana at about 9 p.m., and the versions of his
response to both PW-1 Deepak and PW-5 Archana on the accused not answering the
phone, namely, that there was dispute between himself and deceased Khushbu and
therefore she must have switched off the phone. Such response of the accused to
both PW-1 Deepak and PW-5 Archana, certainly was not a natural response. This is
coupled with the fact that PW-1 Deepak called the accused between 10 to 10.30 p.m.
to inform him that the deceased was not responding to which the accused responded
that he would reach deceased Khushbu's residence within 15 minutes. Although PW-
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1 Deepak waited for about 30 minutes, the accused did not reach the residence of
deceased Khushbu, such testimony in this regard of PW-1 Deepak as also of PW-5
Archana has remained unshaken.
89. The next circumstance is that after about 11 p.m., the accused switched off his
mobile phone and/or was not available. In this context, the deposition of PW-8
Suresh Tilave is significant, in which he has deposed that he was the watchman of
Nisarga Society where the accused was residing. He stated that he was on duty on
the date of the incident (20 October 2008), and that he was knowing the accused
who was residing at 'C' building in Flat No. 403 along with 4 to 5 persons. He also
deposed that accused had red colour pulsar motorcycle bearing no. 8877. He
deposed that on the date of incident, he came for the duty at 7.30 p.m. and at that
time, accused went along with one boy on his motorcycle. He further deposed that
about 9 p.m., the accused came back and went out alone on his motorcycle. He
deposed that the accused, again returned and went out at about 10.30 p.m. to 11 p.m.
and thereafter never came back. He deposed that on that day, the accused was
driving fast. He also identified the accused. The accused had accordingly left his
house at about 7.30 p.m. and came back at 9 p.m., which was a time gap of about 1½
hours and thereafter again left the house at about 10.30 p.m. to 11 p.m. and never
came back, would show that the accused had a reason not to be in the house between
7.30 p.m. to 9 p.m. on the date of incident. His absence from the house and his
hurried movements in and out of the house between 9 to 11 p.m. and thereafter not
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returning home, does not find any explanation in the chain of circumstances.
90. Coupled with such evidence are the recoveries which would assume
significance, namely, the recovery of motorcycle at Pune Railway Station, the
recovery of blood stained clothes at the residence of the accused and there being no
explanation for what reason the accused was required to leave Pune to be in Bhopal
where he surrendered himself to the police.
91. On arrest at Bhopal and being brought to Pune the medical examination of
the accused was conducted by PW-16 Dr. Vilas Ramchandra Nalawade, who was
attached to the General Hospital, Aundh, Pune and who examined the accused on 24
October, 2008. In his deposition PW-16 stated that there were abrasions 5 in number
over left forearm, middle 1/3rd and lateral aspect about ½ cm X ½ cm scaling and
blackening with no fresh blood and further abrasion 1 over upper 1/3 rd right forearm,
lateral aspect ½ cm X ½ cm scaling and blackening with no fresh bleeding. He
deposed that such injuries were caused by hard and blunt object. He deposed that the
age of the injuries was of more than 42 hours. He also deposed that nature of the
injuries could be by nails during scuffle at the time of either sexual assault or murder.
The cross-examination of PW-16 Dr. Vilas Nalawade also does not reveal anything
significant to dislodge and discredit his evidence.
92. Now coming to the evidence of PW-2 Dr. Bhausaheb Dada Bhalekar, Medical
Officer at Civil Hospital, Aundh, Pune, who conducted the post mortem. In his
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deposition he has stated that there were external injuries on the body of the deceased
which were recorded in the notes of post mortem namely on a separate sheet of paper
describing the wounds on the neck, left elbow, left arm. He has stated that there were
total 18 injuries. (See: Paragraph 31 above) He has also stated that there were
internal injuries to the left kidney, incise wound at lower pole 1 c.m. He described
that the incise wound at Sr. Nos. 3, 4, 5, 6, 7 & 8 were caused by knife, which were
possible due to the knife recovered (Articles 6 & 8). The stab wounds at Sr. Nos. 15,
16, 17 & 18 being caused by such recovered articles, was not ruled out. He has also
stated that the contusion was possible due to hard and blunt object. He has also
described injuries in the nature of teeth marks, stated to be human bite teeth marks.
Considering such injuries, he deposed that the possibility of rape cannot be ruled out.
PW-2 has also set out that the internal injuries to the organs of generation - hymen,
which was stated to be ruptured (old), no internal injury seen on the vaginal canal.
Juxtaposed to this evidence, is the evidence of PW-16 Dr. Vilas Nalawade, Medical
Officer who examined the accused on 24 October 2008, when on examination of the
injuries on the body of the accused, PW-16 Dr. Vilas deposed that the injuries
described by him, were injuries caused were more than 42 hours prior to the medical
examination of the accused as discussed by us hereinabove. He also deposed that the
injuries were possible by nails during scuffle at the time of either sexual assault or
murder. Such medical evidence certainly brings about the close connection of the
injuries considering the incident, including on the age of the injuries and the injuries
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on the body of the deceased. The circumstances point out that it was the accused
who had a scuffle in committing the murder of deceased Khushbu and in such
scuffle he suffered these injuries. These circumstances exclude any other hypothesis,
but the one proposed to be proved namely that there cannot be any other reading of
the medical evidence and that she was killed by the articles which were recovered
from the place of the incident. There is nothing contradictory which was elicited in
the cross examination in the evidence of PW-2 and PW-16.
93. In the evidence of PW-2 Dr. Bhausaheb Bhalekar, in his cross examination he
has also stated that considering such medical evidence, it did not appear that the
deceased had an old rupture hymen or that she was habitual to sex, however, such
hypothesis would not persuade us to conclude that the accused is guilty of the
offence of rape as the provisions of law stood on the date of the offence. Although
there were teeth (bite) marks on the left breast as also on left hypochondrium on
upper part of abdomen, and even teeth (bite) marks on left side on pubic region,
however, these injuries would not prove the offence of rape.
94. Now question is of the forensic evidence which was gathered by the forensic
team and most importantly the fingerprints. Insofar as the forensic report is
concerned, the same was placed on record before the trial Court being Report dated
27 January 2009 as issued by the Deputy Director / Deputy Superintendent of
Police, Finger Print Bureau, which is to the following effect:-
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"One blood palm chance print found on the wall concerned in the case
cited above is Identical with left hand palm print portion on the palm
impression slip of the Mannu Mohinder Madhuresh, the accused
received for comparison under No. quoted above."
95. This document was admitted by the accused in the evidence and exhibited to
this effect, signature was rendered on the said document, as also it bears the signature
of Advocate for accused, both dated 10 February 2014, the said endorsement reads
thus:
"Document is Admitted and may be exhibited"
96. Once the said document was admitted and exhibited, there is hardly any scope
for the accused to raise a contention in the present appeal, that the contents of the
documents are not proved and more particularly on the ground that, the palm chance
prints on the wall were taken in a photograph by a photographer, on the same being
compared with the actual palm prints of the accused. Also on the assertion that there
was a requirement of the photograph being considered to be electronic evidence
requiring certification under Section 65B of the Evidence Act, in our opinion, such
argument of the accused is misconceived, as once the document of the finger print
expert's report itself was admitted and exhibited, there was no scope to dispute such
expert's report on such ground as well as considering the settled principle of law. This
also for the reason that it has come in the deposition of PW-22 Sharad Kshatriya, the
Government Photographer that on the date of the incident, he had taken
photographs of the 'blood palm chance print', on the wall of the flat where the
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deceased was residing. The evidence of PW-22 photographer was sufficient. The
credibility of the evidence of PW-22 in no manner was shaken in the cross
examination so as to create any doubt in regard to the blood palm chance print
found on the wall and of which the photograph was taken by PW-22. In any event,
there is no evidence which would doubt the credibility of report of the finger print
expert at Exhibit 84, also the contention as urged on behalf of the accused doubting
the credibility of the finger print expert, on the ground that one blood palm chance
print/photograph being electronic evidence, required certification under the
provisions of Section 65B of the Evidence Act, would lead to an absurdity, in the
circumstances as exists, inasmuch as if such argument is accepted to such extent it
would render the record qua such document (Exhibit 84) before the Trial Court as
the accused himself put the signature on the report of the Finger Print Expert
(Exhibit 84), confirming that the document is admitted and exhibited, as also the
Advocate for the accused endorsing his signature with the same remark. Thus, to
discard admission of the document is a position contrary to the record. On this count
the report of the finger Print Expert (Exhibit 84) cannot be disbelieved. In such
context, reliance on behalf of the accused for such proposition on the decision of
Anvar P.V. Vs. P.K. Basheer5 would not assist the accused. Further, the contention as
urged on behalf of the appellant that the Finger Print / Palm Print Report is
inadmissible in evidence, as it was based on the photographs and it could be required
5
(2014)10 SCC 473
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to be considered as electronic evidence requiring certificate under Section 65B(4) of
the Indian Evidence Act, cannot be accepted, as in the facts and circumstances of the
present case the legal position qua such document, in our opinion, would be squarely
governed by the decision of the Supreme Court in Sonu @ Amar V. State of Haryana 6
wherein the Supreme Court observed thus:
"29. That an electronic record is not admissible unless it is accompanied
by a certificate as contemplated under Section 65-B(4) of the Evidence Act is
no more res integra. The question that falls for our consideration in this case
is the permissibility of an objection regarding inadmissibility at this stage.
Admittedly, no objection was taken when the CDRs were adduced in
evidence before the trial court. It does not appear from the record that any
such objection was taken even at the appellate stage before the High Court.
InGopal Das v.Thakurji [Gopal Das v. Thakurji, 1943 SCC OnLine PC 2 :
AIR 1943 PC 83] , it was held that: (SCC OnLine PC)
"... Where the objection to be taken is not that the document is in
itself inadmissible but that the mode of proof put forward is
irregular or insufficient, it is essential that the objection should be
taken at the trial before the document is marked as an exhibit and
admitted to the record. A party cannot lie by until the case comes
before a Court of Appeal and then complain for the first time of the
mode of proof."
97. Now coming to the testimony of PW13 Rahul Dubey, we find substance in
the contention of Mrs. Deshmukh, learned Additional Public Prosecutor referring to
the following contents of the evidence of PW-13 Rahul when he deposed as under:
"At about 12.30 p.m. Manu Abrol called me on my Mobile phone saying that
whether I am aware about the happening and I replied that I am aware about
the Khushboo's murder, When I asked him where he is, he told me that you
will be in trouble if the place is traced. He told me on telephone that he did not
feel sorry and guilt whatever he did and he said that he will come back and
6
(2017)8 SCC 570
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surrender himself and he asked me to ask police not to trouble his parents at
Bhopal."
98. Mrs. Deshmukh has submitted that this private confession is sufficient
to bring home the guilt of the accused. We may observe that the cross-
examination of PW-13 on such testimony does not discredit the aforesaid
evidence of PW-13 and/or elicit anything of relevance so as to discard such
testimony. Thus, in such context we are in agreement with the view taken by
the learned Sessions Judge when he observed that such private confession of
the accused to PW-13 certainly would satisfy the test of extra-judicial
confession applying the principles as set out by the Supreme Court in
Sahadevan and Anr. vs. State of Tamil Nadu 7, when the Supreme Court has
categorically held that an extra-judicial confession attains greater credibility
and evidentiary value if it is supported by a chain of cogent circumstances
and is further corroborated by other prosecution evidence. Considering the
present extra-judicial confession, it does not suffer from any material
discrepancies and inherent improbabilities, when tested on the abundant
evidence on record in regard to motives and clear intention of the accused,
consistent to the fact that the accused was hell bent to take revenge and
murder deceased Khushbu. Thus, such extra-judicial confession in the facts
of the present case is certainly admissible.
7
(2012) 6 SCC 403
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99. Now we deal with the contentions as urged by Mr. Ray in supporting the case
of the accused.
The submissions of Mr. Ray on the evidence of PW-3 Nimisha are not well
founded when he gives an account of the entry of PW-3 Nimisha to the flat, to derive
a logic that the accused could not have even entered the premises of Aditya Park
Society and thereafter to enter the flat to commit the murder. Such contention of Mr.
Ray cannot be accepted, more particularly when there is a clear evidence that neither
the visitor's register was maintained nor the CCTV cameras were functional. Such
evidence as laid by the prosecution has remained unchallenged.
100. The next submission of Mr. Tripurari Ray is that the evidence of the
prosecution is required to be discarded as biased and tainted when he contends that
the circumstances, which were existing at the place of occurrence, reveal an altogether
a different story. It is further quite bold to contend and without any material that
crucial evidence was fabricated and planted by the prosecution. In the context of the
arguments of recoveries of knives, Mr. Ray's contention is that the body of the
deceased although was naked, there is no recovery of torn clothes from the place of
occurrence, when it has clearly come in evidence and as noted by us extensively in
the aforesaid paragraphs, that all the clothes of the deceased were recovered and they
were forming part of record of the proceedings as also identified by PW-4 Prashant.
101. We are also not persuaded to accept the submission of Mr. Tripurari Ray in
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regard to the evidence on the fingerprints, when the best possible evidence of the
fingerprints on the wall was taken in the form of one blood palm chance print and
the same was sent for opinion of the fingerprint expert on the comparative
fingerprints of the accused as taken under the orders of the Court. To undertake
investigation and to collect best possible evidence is within the domain of the
investigating agency. The accused cannot contend that the best possible evidence
which was collected, need to be discarded, as according to the accused, alternative
evidence could have been collected. This is a misconceived proposition. In the
present case, once the palm chance print was available, being the prominent evidence
as collected by the investigating agency in terms of the photograph, as taken and
proved in the evidence of the Government photographer and further an expert report
thereon being obtained and admitted in evidence, on comparing the palm print of
the accused taken by a proper procedure being followed under the orders of the
Court, the contention of the accused that such evidence be discarded, is wholly not
acceptable. It cannot result in discarding such evidence and which in fact clearly
matches the fingerprints of the accused as seen from the forensic report. Accepting
Mr. Ray's contention that very strong evidence is not obtained by the prosecution, is
an argument which cannot be accepted in the facts of the case.
102. Mr. Ray's contention in regard to the recovery of the blood-stained clothes
from the flat of the accused that it is a false evidence and planted against the accused,
also cannot be accepted, considering the recovery panchnama and all the
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surrounding circumstances as seen from the evidence of watchman PW-8 Suresh
Rambhau Tilave that the accused had left the society premises at 07.30 p.m. and
returned at about 09.00 p.m. Then he again went out and returned back and
thereafter he went out at about 10.30 p.m. and never came back. It is, therefore, not
improbable that in the hurried sequence of his activities, the accused had not taken
care to hide or dispose of his clothes, so that the same could not be recovered.
103. The next contention of Mr. Ray that the evidence of the Call Data Record
(CDR) is inadmissible/fabricated, cannot be accepted. The call data record is not
merely relevant in the context of the location of the mobile of the accused, but also,
from the data of the calls made by the accused. Further the CDR report was admitted
in evidence and hence, considering the settled position in law, once the said
document is admitted in evidence, necessarily it will be available to the Court to be
considered in the evidence and for such reason the contention on Section 65B of the
Indian Evidence Act, and as same not being supported by certificate, would be
required to be rejected considering the settled principle of law as laid down by the
Supreme Court in the Sonu @ Amar V. State of Haryana.(supra). The CDR report
indicating that a call was made by accused at 12.30 p.m. on 21 October 2008 and
which is in fact the deposition of PW-13 Rahul Dubey, when he deposed in his
evidence of the extra judicial confession when he narrated, that at about 12.30 p.m.
accused called him on his Mobile phone stating whether the accused was aware about
the happenings when the accused replied that he was aware about the deceased
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Khushbu's murder. When PW-13 Rahul asked him about his whereabouts, the
accused told PW-13 Rahul that PW-13 Rahul will be in trouble if the place is traced.
The accused also categorically stated that he did not feel sorry and guilty for
whatever he did, he will come back and surrender himself and asked PW-13 to
inform police, not to trouble his parents at Bhopal. The cross examination of PW-13
Rahul did not elicit anything which would require the Court to discard such vital
testimony of PW-13 as also clearly supported by the CDRs. Mere denial of such
evidence by the accused in the statement made under Section 313 of Cr.P.C. cannot
bring about a consequence to discard such evidence of PW-13 which, in our opinion,
would completely point the finger to the guilt of the accused, as no explanation is
coming forth.
104. Mr. Ray's contention that Ex. 84, namely, the report of the finger print expert
(PW-20) Mr. Mohan Rathod needs to be discarded as it is hit by the provisions of
Section 293 and such report would stand outside the purview of Section 294 of
Cr.P.C., is wholly untenable, for two reasons, firstly, that Ex.84 has been admitted in
evidence being a document fully falling within the purview of Section 294 of Cr. P.C.
and was accordingly exhibited being admitted by the accused by putting his signature
making an endorsement "the document is admitted and may be exhibited". The said
remark has been made by the advocate for the accused. Secondly, it cannot be
overlooked that the finger print expert (PW-20) was being examined by the
prosecution as its witness, and it was not the Court invoking the provisions of sub
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section (2) of Section 293 to summon PW-20 in intending to examine such expert, as
to the subject matter of the report. This is the subtle distinction between the
provisions of Section 293 and Section 294. Thus, the contention of Mr. Ray on the
applicability of Section 293 is wholly untenable considering the admitted position of
the evidence of PW-20 on record. It is well settled that recourse to Section 293 could
have been taken in the event, the Court was to be of the opinion that the finger print
expert is required to be examined as the Court thinks it necessary. Thus, the proof of
the report of the finger print expert was not felt necessary by the Court and more
particularly, when the accused himself was not disputing its genuineness. Thus, to
raise such contention touching such procedural aspect as Section 293 and 294 would
govern cannot assist the accused, in the Court not considering the report of the finger
print expert as a document to be read in evidence. In any event such argument of
Mr. Ray is not well founded.
105. Mr. Ray's contention that the report of the finger print expert also need to be
discarded on the ground that there was no evidence of the finger prints of the
accused being obtained in the manner known to law to be compared with the finger
prints recovered on the chance palm print, as collected on the spot of the crime, also
cannot be accepted inasmuch as the finger prints of the accused to be sent for
comparison/examination by the finger print expert were obtained by following the
procedure in law namely by an application being made to the Court as deposed in the
testimony of PW-19 Sheshrao Suryawanshi, when he has stated that " That he had
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received letter dated 7.11.2008 and 17.11.2008 from the MOB (Ex.107 and 108) as
identified by him and as per the said letter finger prints of the accused were to be
obtained." PW-19 Sheshrao Suryawanshi deposed that on 18 November 2011 an
application was moved before Judicial Magistrate First Class and a permission was
obtained from the Court for getting the thumb impression of the accused. Such
permission was granted by the Court by its order of the Court Ex.113, and
accordingly letter dated 19 November 2008 was addressed to the Jailor. PW-19 has
further deposed that he went through such permission and obtained the finger prints
of the accused and on which he put necessary endorsement on such paper and put
his signature. The paper with palm impression of the accused was shown to PW-19 in
his evidence, and was identified by him to be the same as also bearing his signature
(Ex. 114). PW-19 further deposed that the palm impression on the said paper, was
the palm impression of the accused Manu. He further deposed that the palm
impressions were sent to the MOB (Modus Operandi Bureau) on 21 November
2008, along with a letter of PW-19 dated 21 November 2008, which he identified
during his testimony. PW-19 has further deposed that he has obtained a report of the
finger print expert on 6 February 2009 when he has sent the report to the Court
along with the chargesheet. The cross examination of PW-19 on this aspect does not
elicit any evidence so as to discredit the testimony in regard to the procedure being
followed in obtaining the finger prints of the accused and forwarding the same to the
finger print expert and obtaining report and/or its authenticity. Thus, the contention
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as urged on behalf of the accused including on the report of the finger print expert
not forming part of the record as the law would mandate making it permissible for
the Court, to take into consideration the report of the finger print expert, in our
opinion is wholly untenable.
106. Insofar as the evidence of defence witness Dr. Vishal Kumar Khamra is
concerned, the same would not assist the case of the accused/appellant. Moreover, in
the cross-examination of Dr. Vishal Kumar Khamra, he has admitted that one
Rajendra Singh, RTI activist had lodged a complaint alleging that D.W.1 and his
cousin Dr. Shailendra Khamra had issued many fake medical certificates.
107. Thus, whether the chain of circumstantial evidence would point out, to the
guilt of the accused, in our opinion, the following evidence and which in our
opinion, is a complete chain of the circumstances to bring home the guilt of the
accused, so as to clearly indicate that it is none other than the accused who
committed the murder of the deceased:-
i. The accused and the deceased both hailed from Bhopal. They had
admittedly a love affair. They were working in the same organization.
ii. The relations between the accused and the deceased were severely
strained which resulted into break-up. The entire evidence as discussed
by us would indicate that the accused was continuously agitated and
angry because of such break-up.
iii. He also stated to PW-1 Deepak that he would "cut the accused
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into pieces". The accused was continuously harassing the deceased not
only by making telephone calls which made the deceased angry as also
cry as deposed by PW-3 Nimisha, who was residing along with the
deceased. The deceased troubled and harassed her at the workplace
which resulted into a complaint being made by the deceased to the HR
of Capgemini - employer. The accused was reprimanded as seen from
the deposition of PW-7 Deepali Ashok Patil, In-charge H.R. Consultant
of Capgemini Company and PW-9 Ashish Potdar, Senior Manager, HR
of Capgemini Company.
iv. The accused was aware that in the evening on the date of incident
that the deceased was alone at home which was informed to him by PW-
5 Archana T. Yadav. The accused had left his residence (Nisarg City) on
his motorcycle at 07.30 p.m. as deposed by the Watchman PW-8 Suresh
Tilave.
v. PW-1 Deepak had made a telephone call to the accused at about
7.30 p.m. P.W. 1 on the date of incident in the evening wanted to speak
to the deceased as he was worried about his life and that she should not
commit suicide. However, at 7.30 p.m. the deceased could not pick up
PW-1's call. Accordingly, PW-1 called the accused and informed the
accused that the deceased was not picking up her phone. The accused
informed that as the accused had a quarrel with her and as she was angry,
she may not be answering the mobile phone.
vi. At the relevant time, as deposed by PW-8 Watchman of the
Nisarg City Society, the accused had in fact hurriedly returned to his flat
in the evening at 9 p.m. and immediately thereafter again he went out
between 10.30 p.m. to 11 p.m. Thus, at the time when PW-1 called the
accused, he was not at his residence and it appears that he had prepared
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to leave Pune. As deposed by PW-1, the phone of the accused was
thereafter not available after 11.30 p.m. as the accused had left Pune for
Bhopal by parking his motorcycle at Pune railway station and the
recovery of the motorcycle of the deceased from Pune railway stating
indicates that the accused had left for Bhopal after he hurriedly left his
residence as deposed by PW-8 Suresh Tilave.
vii. As the deceased was not picking up the phone, PW-1 inquired
about the address from PW-5 Archana and reached the residence of the
deceased at about 10 p.m. and along with the watchman visited the flat
and he rang the bell, however, nobody was responding to open the door
of the deceased's flat. However, his ringing of the bell was disturbing the
neighbour and that is why he left the premises and from outside the
premises, he called up the accused at 11 p.m., when the accused informed
him that he would reach in 15 minutes. However, despite PW-1 waiting
for half an hour, the accused did not turn up.
viii. On 21 October 2008 at 12.30 p.m. the accused made a mobile
phone call to PW-13 Rahul Dubey and made an extra judicial confession
as also stated that if his location is traced, he would be inviting trouble.
The accused also confessed to PW-13 that he did not feel sorry and guilty
to whatever he did and that he will come back and surrender himself but
the police should not trouble his parents.
ix. The report of the Chemical Analysis clearly indicates that the
blood group which was found on the articles i.e. the clothes of the
accused, blue jeans pant and T-Shirt were matching to the blood group of
deceased Khushbu.
x. On the motive, a cumulative consideration of the evidence of
PW-1 Deepak, PW-5 Archana, PW-13 Rahul clearly indicates that the
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accused was harassing the deceased and wanted to take revenge.
xi. The accused was arrested at Bhopal and was brought to Pune and
the medical examination indicate that there were injuries as noted by us
hereinabove. There is justifiable explanation in the evidence of the
defence as to how such injuries were caused. The injuries have complete
relevance and nexus to the tussle which can be related to the incident in
question i.e. the accused visiting the flat of the deceased and getting
injuries in the course of commission of the crime.
108. The chain of all such circumstances, in our opinion, unequivocally pointed
the finger towards the accused to have committed the murder of deceased Khushbu,
inasmuch as there was a motive which was on account of anger and jealousy in the
deceased breaking up the love affair the accused had with the deceased.
109. As a result of the aforesaid discussion, in our considered opinion, we do not
find that the learned Sessions Judge, in any manner, has erred in coming to a
conclusion that the accused is guilty of an offence under Section 302 of the Indian
Penal Code. The orders passed by the learned Sessions Judge convicting the accused
for an offence punishable under Section 302 of the Indian Penal Code, needs to be
confirmed. However, for the reasons as observed hereinabove, the conviction of the
accused under Section 376 of the Indian Penal Code, cannot be sustained and it is
required to be quashed and set aside. We, accordingly, dispose of this appeal in terms
of the following order:-
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ORDER
i. The impugned judgment and order dated 14 December 2016 passed by the learned Sessions Judge, convicting the appellant / accused under Section 302 of the Indian Penal Code, stands confirmed and the appeal on such count stands dismissed.
ii. The conviction of accused under Section 376 of Indian Penal Code is quashed and set aside and the Criminal appeal to this extent is allowed. Resultantly, the appellant/accused stands acquitted of the offence punishable under Section 376 of the Indian Penal Code. Also the order directing the accused to pay fine of Rs.1000/- stands set aside. If such fine is paid, the same be refunded to the appellant/accused.
iii. In view of disposal of the appeal, Interim Applications would not survive and are accordingly disposed of.
iv. A copy of this judgment be sent to the appellant/accused who is undergoing sentence in jail.
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