Bombay High Court
Nagraj Chandmal Chajed vs The State Of Maharashtra And Anr on 19 November, 2018
Author: S.S. Shinde
Bench: S.S. Shinde, A.S. Gadkari
Cri.Apeal 817.14 Judt.doc
1
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.817 OF 2014
Bharat Polaji Ghanchi @ Ghelot
Age-24 years, Occu-Nil,
R/o-Padiv, Dist- Sirohi
State-Rajasthan.
(At present detained in Yerwada
Central Prison, Pune 411 006)
... APPELLANT
(Orig. Accused no.2)
VERSUS
The State of Maharashtra
(Through Officer-in-charge,
Samarth Police Station,
Dist. Pune)
... RESPONDENT
W I T H
CRIMINAL APPEAL NO.977 OF 2014
Bharat Kaluram Ghanchi @ Ghelot
Age-22 years, Occu-Service,
R/o-Padiv, Dist. Sirohi,
State-Rajasthan
(Now in Yerwada Central Jail, Pune)
... APPELLANT
(Orig. Accused No.1)
VERSUS
The State of Maharashtra
Through Samarth Police Station, Pune.
... RESPONDENT
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
2
W I T H
CRIMINAL APPLICATION NO. 953 OF 2018
(For Intervention)
IN
CRIMINAL APPEAL NO.817 OF 2014
Nagraj Chandmal Chajed
Age-63 years, Occu-Business,
R/o- 1104 C building, Gagan Galaxi
Gangadham Bibwewadi, Market Yard,
Pune.
... APPLICANT
(Orig. Informant)
In the matter between
1. Bharat Polaji Ghanchi @ Ghelot
Age about 28 years, Occu : Nil
Residing at Padiv, Dist-Shirohi,
State : Rajasthan
... APPLICANT
(Org. Accused No.2)
VERSUS
The State of Maharashtra
(At the instance of Samarth
Police Station)
... RESPONDENT
...
Miss. Nagma Tandon Advocate for Appellant in Criminal
Appeal No. 817 of 2014.
Mr. Daulat G. Khamkar, Advocate for Appellant in
Criminal Appeal No. 977/2014
Mr. Rajesh A. More, Advocate for the applicant -
intervenor in Criminal Application No. 953 of 2018
Mrs. M.M. Deshmukh, A.P.P. for Respondent - State in
Criminal Appeal No.817 of 2014, Criminal Appeal No.977
of 2014 and Criminal Application No.953 of 2018.
...
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
3
CORAM: S.S. SHINDE AND
A.S. GADKARI, JJ.
DATE OF RESERVING JUDGMENT : 26th OCTOBER, 2018.
DATE OF PRONOUNCING JUDGMENT: 19th NOVEMBER, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Criminal Appeal No.817 of 2014 filed by
accused No.2 Bharat Polaji Ghanchi @ Ghelot, is
directed against the Judgment and Order dated 2 nd
September, 2014 passed by the Additional Sessions
Judge, Pune thereby convicting accused No.2 Bharat
Polaji Ghanchi @ Ghelot for the offence punishable
under Section 302 of the Indian Penal Code (for
short, "IPC") and sentencing him to suffer life
imprisonment and to pay fine of Rs.2,000/- and in
default to suffer further rigorous imprisonment
for three months. The Trial Court also convicted
accused No.2 Bharat Polaji Ghanchi @ Ghelot for
the offence punishable under Section 380 of IPC
and sentenced him to suffer rigorous imprisonment
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
4
for five years and to pay fine of Rs.2,000/, in
default to suffer further rigorous imprisonment
for three months. All the sentences were directed
to be run concurrently.
2. Criminal Appeal No.977 of 2014 filed by
accused No.1 Bharat Kaluram Ghanchi @ Ghelot is
directed against the Judgment and Order dated 2 nd
September, 2014 passed by the Additional Sessions
Judge, Pune thereby convicting him for the offence
punishable under Section 302 read with 34 of IPC
and sentencing him to suffer life imprisonment and
to pay fine of Rs.2,000/- and in default to suffer
further rigorous imprisonment for three months.
The Trial Court also convicted accused No.1 Bharat
Kaluram Ghanchi @ Ghelot for the offence
punishable under Section 380 read with 34 of IPC
and sentenced him to suffer rigorous imprisonment
for five years and to pay fine of Rs.2,000/, and
in default to suffer further rigorous imprisonment
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
5
for three months. All the sentences were directed
to be run concurrently.
3. Criminal Application No.953 of 2018 is
filed by original informant Nagraj Chandmal
Chajed, seeking permission to intervene in
Criminal Appeal No.817/2014. The Applicant has
further prayed to return him the 10 ornaments as
mentioned in Annexure C to the Application.
4. Both these Criminal Appeals are arising
out of one and the same Judgment and Order passed
by the trial Court, hence the same are being
decided by this common Judgment.
5. Before the Trial Court there were in all
three accused i.e. Accused No.1 - Bharat Kaluram
Ghanchi @ Ghelot, Accused No.2 - Bharat Polaji
Ghanchi @ Ghelot and Accused No.3 - - Machharam
Polaji Ghanchi @ Ghelot. The Trial Court convicted
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
6
and sentenced Accused Nos.1 and 2 as afore-stated.
However, the Trial Court acquitted Accused No.3
from all the offences with which he was charged.
Therefore, these two appeals are preferred by
Accused No.1 - Bharat Kaluram Ghanchi and Accused
No.2 - Bharat Polaji Ghanchi, challenging their
conviction and sentence. (for the sake of brevity,
hereinafter we would refer Bharat Kaluram Ghanchi
@ Ghelot as "accused No.1" and Bharat Polaji
Ghanchi @ Ghelot as "accused No.2").
6. The prosecution case, in brief, is as
under:
A] Nagraj Chandmal Chajed, a Goldsmith
resides in Shubham Apartment, Block No.13, Rasta
Peth, Pune, along with his wife Jayanti. He has
two sons viz : Sachin and Ankush. They are doing
separate business and residing separately. Nagraj
is having jewelry shop named and style as Najraj
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
7
Jewelers at 501, Ganesh Peth, Kasturi Chowk, Pune.
He is dealing in sell and purchase of gold and
silver. So also he is doing money-lending business
against gold, but he is not keeping record of
money-lending business transaction. Time of shop
of Nagraj Jewelers is 9.00 a.m. to 1.30 p.m. and
from 3.00 p.m. to 8.00 p.m. Accused no.1 Bharat
Kaluram Ghelot, resident of village Padiv,
Rajasthan was serving in the shop of Nagraj.
Bharat Kaluram (Accused No.1) used to go to the
house of Nagraj at 8.45 a.m. for household work
and thereafter used to go to shop at 9.45 a.m.
One Mahendra Parmar was also employed by Nagraj in
his shop since last seven years preceding of the
incident. However, one and half months prior to
the incident, Mahendra Parmar proceeded on leave.
One Mahendra Rajput was also working in the shop
of the informant during the period between 2008 to
2010. As per the prosecution case, Mahendra Rajput
was employed on the recommendation of Bharat
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:06 :::
Cri.Apeal 817.14 Judt.doc
8
Kaluram.
B) On 6th October, 2010 as usual Nagraj left
house for shop at 9.00 a.m. Bharat Kaluram
(Accused No.1) arrived in shop at about at 09.30
a.m. At about 10.30 a.m. Nagraj contacted his wife
on phone, and in reply she informed him that one
person came at house and was making inquiry about
Mahendra. The informant Nagraj told her not to
open the door of the house to an unknown person.
At about 11.00 a.m. on the date of the incident
Nagraj sent Bharat Kaluram (Accused No.1) to
spectacles shop for repairing his spectacles.
Bharat Kaluram returned within half an hour after
repairing spectacles. As the wife of Nagraj has to
go to hospital, therefore,he tried to contact her
so as to ascertain whether she has gone to
hospital, at 12.00 noon, 12.30 noon and 1.30 p.m.,
but she did not give response, so presuming that
she might have gone to hospital, Nagraj after
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
9
closing shop went to the hospital of Dr. Sachin
Oswal at about 1.30 p.m. Doctor told him that his
wife has not come to the hospital, so Nagraj
returned to his house. He noticed that door of the
house was closed from the inside. He opened the
door with key which was with him. He entered in
the house and saw that his wife was lying in the
pool of blood in bed-room. He sent two boys to
Police Station. Police came there within five
minutes. Police called Ambulance and sent wife of
Nagraj to the hospital, where she was declared
dead. Nagraj noticed that ornaments of money-
lending business of the customers worth
Rs.32,00,000/-(Thirty two lakhs only), kept in
100-125 small pouches along with name of the
customers, weight and amount of the ornaments
written on the chit, kept in the cupboard, are
stolen. Nagraj contacted Bharat Kaluram (Accused
No.1) on mobile and asked him to come to his
house. Bharat Kaluram (Accused No.1) assured him
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
10
that he will come to house, but did not come, so
after 20 minutes Nagraj again contacted him on
phone. At that time it was realized by the
informant that Bharat Kaluram (Accused No.1) had
switched off his phone. So Nagraj along with
police went to the place where Bharat Kaluram was
residing. They came to know that Bharat Kaluram
(Accused No.1) left the room with his bag and all
his belongings. Nagraj lodged complaint in Samarth
Police Station. On the basis of the said
complaint, Crime No.154 of 2010 came to be
registered under Section 302, 381 read with
Section 34 of the IPC.
C) Sunil Gaikwad, API attached to Samartha
Police Station, after receiving information from
Nagraj, went to the house of Nagraj along with
police staff. Shri Gaikwad prepared spot
panchanama and took blood samples lying on the
spot. He seized articles found on the spot.
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
11
Investigation was handed over to Sunil Gaikwad. On
6th October, 2010, he along with police staff went
to Rajasthan in search of accused. They traced out
the Accused No.1 on 12th October, 2010. The custody
of accused Bharat Kaluram was taken at the house
of his sister at village Noon, Dist- Siroli. The
Investigating Officer then traced out the Accused
No.2. Then accused Bharat Polaji was taken in
custody from Siroli bus stand, and thereafter, the
Investigating Officer gave information about
arrest of the accused No.2 to Kalindri Police
Station. Thereafter, he brought both the accused
to Pune. On 13th October, 2010, he formerly
arrested both the accused. Thereafter, accused
Nos. 1 and 2 during an interrogation disclosed
some relevant facts in relation to the incident.
Pursuant to their disclosure statements, the
Investigating Officer seized stolen gold ornaments
from the possession of accused Nos.1 and 2 under
seizure panchanama. He has also seized weapon used
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
12
by accused No.2 while committing the offence. The
seized muddemal was sent for analysis. He recorded
statements of various witnesses. He has also
arrested accused No.3 - Machharam Polaji Ghanchi @
Ghelot. After completion of the investigation, the
investigating officer filed charge sheet against
the accused persons in the Court of Judicial
Magistrate, First Class on 10th January, 2011.
D) As the offence punishable under Section
302 of the IPC is exclusively triable by the Court
of Sessions, Judicial Magistrate First Class,
Court No. 1 committed the matter to the Sessions
Court vide order dated 8th February, 2011 for
trial.
E) A charge under Section 302 and 381 read
with Section 34 of the IPC, under Section 37(1)
read with Section 135 of the Bombay Police Act and
under Section 4 read with Section 25 of the Arms
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
13
Act against accused persons was framed vide
Exhibit-31 and the same was read over and
explained to the accused in vernacular. The
accused pleaded not guilty and claimed to be
tried.
7. After recording the evidence and
conducting full-fledged trial, the trial Court
convicted and sentenced the appellants - Accused
Nos.1 and 2 for the aforesaid offences. Hence
Criminal Appeal No. 817 of 2014 is preferred by
appellant Bharat Polaji Ghanchi @ Ghelot and
Criminal Appeal No.977 of 2014 is preferred by
appellant - Bharat Kaluram Ghanchi @ Ghelot
challenging the conviction and sentence. Criminal
Application No.953 of 2018 is preferred by the
informant for intervention in the Criminal Appeal
No.817 of 2014 and for return of the 10 ornaments
as mentioned in Annexure C to the Application.
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
14
8. Learned counsel appearing for the
Appellant in Criminal Appeal No.817 of 2014
submitted that there is no eye witness to the
incident and the case of the prosecution is based
upon circumstantial evidence. There is no direct
evidence against the accused. She further
submitted that chain of circumstances on which
reliance was placed by the prosecution has not
been established beyond reasonable doubt by the
prosecution. Learned counsel further submits that
the prosecution has not proved the possession of
ornaments with the informant on the day of
incident. The prosecution has not proved that the
informant is money-lender having valid license at
the time of incident. The prosecution has not
brought on record that, on which phone number the
informant contacted Accused No.1. The prosecution
has not examined any customer of the informant to
whom money was lend on depositing the ornaments
with him. The informant has not mentioned the
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
15
description of ornaments in the FIR. The
prosecution has not produced any Register or
receipt book showing money lending transactions in
respect of the alleged stolen ornaments. There was
no test identification parade of the Accused
during the course of investigation. The recovery
is not duly proved by the prosecution. The
presence of the Appellants - Accused in the house
of the informant is not duly proved by the
prosecution. There was not test identification
parade in respect of the recovered ornaments.
During the course of trial, all the ornaments were
not produced by the informant, and therefore all
the ornaments were not shown to any witness and
thus the prosecution failed to prove all the
ornaments allegedly seized in the evidence. The
photographs and video shooting of seizure of
ornaments were recorded but the same were not
produced on record.
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
16
9. Learned counsel further submits that, the
informant stated that the ornaments on person of
deceased Jayanti were also stolen, but the record
shows that in fact the ornaments on person of the
deceased were handed over to one Parmar at the
time of inquest panchanama. The name of one
Mahindra Rajput was mentioned in the FIR, but
neither he was interrogated nor any inquiry was
made about him during the course of an
investigation. The prosecution has not examined
any witness from the shop of the informant to
prove the knowledge of Accused No.1 regarding
family members of the informant, money lending
transaction and also fact of keeping said
ornaments in the house of the informant. Learned
counsel further submits that the prosecution has
not brought on record any evidence to show that
Accused No.2 has knowledge about the house of
deceased or about the family members of deceased.
No evidence is brought on record showing that
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
17
there was any communication between Accused No.1
and Accused No.2 prior to the incident or after
the incident.
10. Learned counsel further submits that
there are several contradictions, omissions,
discrepancies and improvements in the evidence of
the prosecution witnesses in respect of various
circumstances and therefore reliance could not be
placed on the oral testimony of said witnesses.
Learned counsel further submits that the Trial
Court has not properly appreciated the evidence
brought on record and came to the wrong
conclusion. In support of her aforesaid
submissions, learned counsel for the Appellant
placed reliance upon the observations made/ratio
laid down in the case of (i) Madhu @ Madhav
Nivruti Pawar V/s the State of Maharashtra 1, (ii)
Arjun Puna Soni V/s the State of Maharashtra 2,
1 2016 ALL MR (Cri) 655
2 2017 ALL MR (Cri) 157
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
18
(iii) Ratanlal V/s State of Rajasthan3, (iv) Ganesh
S/o Somaji Pithale V/s State of Maharashtra 4, (v)
Balasaheb S/o Namdeo Bhale V/s the State of
Maharashtra5, (vi) Tanaji Baburao Raut and another
V/s the State of Maharashtra 6, (vii) Ravi & another
V/s the State of Karnataka 7, (viii) Laxmi Narayan
V/s State of Rajasthan8 and (ix) Datta S/o
Daulatrao Mundhe and another V/s the State of
Maharashtra and another9.
Learned counsel therefore submits that the Appeal
may be allowed.
11. Learned counsel appearing for the
Appellant in Criminal Appeal No.977 of 2014 has
adopted the arguments advanced by the learned
counsel appearing for the Appellant in Criminal
Appeal No. 817 of 2014. In addition to that,
3 2018 ALL SCR (Cri) 472
4 2018 ALL MR (Cri) 7
5 2018 ALL MR (Cri) 62
6 2016 ALL MR (Cri) 820
7 2018 ALL SCR (Cri) 1108
8 1984 RLW (Raj) 225
9 2018 ALL MR (Cri) 3130
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
19
learned counsel submitted that there is absolutely
no iota of evidence against the Appellant. The
present case is based upon the circumstantial
evidence and the evidence adduced by the
prosecution is absolutely not sufficient to bring
home the charge of conviction against the
Appellant. The prosecution has failed to prove the
alleged motive against the Appellant. Learned
counsel therefore submits that the appeal deserves
to be allowed.
12. The learned A.P.P. appearing for the
State submitted that though the case of the
prosecution is based upon the circumstantial
evidence, the chain of circumstances on which
reliance has been placed by the prosecution, have
been established beyond reasonable doubt by the
prosecution. She further submits that, since prior
to the incident, Accused No.1 was serving in the
house as well as in the shop of the informant and
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
20
was having knowledge regarding the ornaments kept
in the house of the informant and the prosecution
has proved that in furtherance of their common
intention, Accused Nos.1 and 2 have killed wife of
the informant and stolen the ornaments kept in the
house. Learned A.P.P. further submits that after
considering the entire evidence on record, the
Trial Court has convicted both the accused and
findings recorded by the Trial Court are in
consonance with the evidence brought on record.
Learned A.P.P., therefore submits that both the
Appeals may be dismissed.
13. Heard learned counsel appearing for the
respective Appellants and learned APP appearing
for the Respondent - State, at length. With their
able assistance, we have carefully perused the
entire notes of evidence so as to find out whether
the findings recorded by the trial Court are in
consonance with the evidence brought on record or
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
21
otherwise.
14. Now we would discuss the evidence brought
on record by the prosecution. To prove its case,
the prosecution has examined as many as thirteen
witnesses.
15. PW-1 Ashok Baban Deshmukh is a panch
witness to the seizure panchnama of clothes of
deceased Jayanti. He deposed that on 7 th October,
2010, lady police constable produced clothes of
deceased Jayanti which were consisting of pink
coloured sari in four pieces, pink coloured
petticoat stained with blood and pink coloured
blouse stained with blood. Police seized those
clothes and wrapped in a paper and obtained their
signatures on seal. He proved seizure panchanama
(Exhibit-45).
16. PW-2 Ritesh Sohanlal Parmar is a panch
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
22
witness to the spot panchanama. He deposed that on
6th October, 2010 he was called by Police for
panchanama at Shubham Apartments, Rasta Peth,
Pune. They went in the flat of Nagraj Chhajed
situated on 4th floor. Police were present there.
He knows Darshan Parekh, who was present on the
spot and resides in the same Apartment on 5 th
floor. His evidence shows that the flat of Chhajed
was facing towards west side. The door of flat was
wooden. Name plat of Shri Nagraj Chhajed was on
the door. After entering in the flat, firstly
there is a hall. Blood was stained on the floor of
the hall. After hall there is passage. To the side
of passage there is kitchen and thereafter there
is toilet. In the kitchen at some places blood was
spilled on the floor. The napkin was there to
which the hand of blood stains were cleaned. On
the basin also there were blood stains. After the
kitchen there was bedroom. They went in the
bedroom. Chhajed told them that his wife was lying
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
23
in injured condition and thereafter she was
referred to hospital before they went on the spot.
In the bedroom there were stains of blood. Still
cupboard was having door opened. Key was on the
door of the cupboard itself. The observation of
bedroom was indicating that the blood spilled on
the floor was tried to wipe off. The bed and bed
cover of the bed in the bedroom were stained with
blood. That bed-sheet and napkin were seized by
Police. Photographer came there and he took
photographs. He further deposed that with the help
of cotton swab, the blood lying on the floor was
collected from 10 to 12 places. Those cotton swabs
were sealed. Finger print expert was also called.
Seized articles were sealed and they signed on
that seals. Police prepared detailed panchanama
(Exhibit - 47).
17. PW-3 Rakesh Chandrakant Gaikwad is the
panch to memorandum panchanama (Exhibit-60) of
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
24
accused No.1. He deposed that on 15 th October, 2010
Police called him for panchanama. Inspector
Gaikwad and other staff members were present in
the Police Station. Accused No.1 was also present
in the Police Station. PW-3 Rakesh further deposed
that accused No.1 gave statement that he will show
the stolen articles concealed by him at his
village. Accused No.1 gave statement which was
reduced in writing by the police. The statement of
Accused No.1 was read over to him. He further
deposed that he also read the statement, it bears
his signature, signature of another panch and P.I.
Gaikwad. Thus he proved Memorandum Panchanama
(Exhibit - 60).
18. PW-3 Rakesh further deposed that
thereafter, he along with another panch, two
accused and Police staff started by private
vehicle to Rajasthan, at village Padiv, Dist.
Siroi and on next day in the evening they reached
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
25
village Padiv. After they reached at village
Padiv, accused told to stop their vehicle. Accused
took them to a partly constructed house. On
inquiry, Accused No.1 told that the said house was
of his brother-in-law namely Chhaganji Ghanchi.
There was a window to southern side of that room.
Accused jumped from that window and they followed
Accused No.1. After going 4-5 feet, accused
started digging the ground and digged upto one and
half feet by hand. Accused No.1 removed a plastic
bag from that place. There was big plastic bag in
which there were about 113 small plastic bags
containing gold ornaments having chits of weight
and name of the owner of ornaments. Police wrapped
those ornaments in brown paper. Their signatures
were obtained on that brown paper. PW-3 - Rakesh
further deposed that Accused No.1 again entered in
that room. There was a drum. By the side of the
drum, Accused No.1 produced one Military colour
bag having sticker "One Polo". That bag was also
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
26
seized by the Police and shooting and photos of
seizure of the ornaments were taken. He proved the
seizure panchanama (Exhibit - 61).
19. PW-3 Rakesh further deposed that there
were variety of articles and he does not remember
description of all the ornaments, but some of the
ornaments were pieces of gold belt of wrist watch,
Kanthimal, necklace, chains etc. When gold
articles being Article Nos. 16 to 27 were shown to
him, he identified the same. PW-3 - Rakesh further
deposed that on 19th October, 2010, Accused No.2
made statement in Kalinde Police Station at
Kalindi, Tq. Siroha in presence of the panchas and
P.I. Gaikwad. Accused No.2 stated that he melted
the stolen ornaments and prepared a gold bar and
some of the ornaments sold to goldsmith and
received a cash of Rs.1,85,000/-. Accused No.2
further told that he forgot Rs.1,50,000/- in a
taxi and concealed a bar of gold in his village
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
27
and he was ready to show that taxi and the place
where gold bar was concealed. He proved the
Memorandum statement (Exhibit-62).
20. PW-3 Rakesh further deposed that
thereafter Accused No.2 took them to his village
Padiv, Tq. Sirohi and from the bed of a river, he
dug sand and took a plastic bag. In that bag,
there was a golden biscuit on which, "100 g" was
written and on another side 074784 was written in
English having weight 100 gms. That gold bar was
seized by the Police and wrapped in brown paper
and label was also affixed and seizure panchanama
was prepared. He proved seizure panchanama
(Exhibit -63). PW-3 Rakesh further deposed that on
the very day, they went to Mount Abu. Accused No.2
shown the said Taxi. The Taxi driver told them
that the bag found in the Taxi was handed over to
Mount Abu Police Station. Then they went to Mount
Abu Police Station and saw the bag. There were
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
28
currency notes of Rs.1,50,000/- in the said bag.
That amount was seized by the Police and seizure
panchanama (Exhibit-64) was prepared. When
Muddemal Article No.28 - bag produced by Accused
No.1 from the house nearby drum and Article No.29
- bag seized from Taxi were shown to him, he
identified the same.
21. PW-3 Rakesh further deposed that on 17 th
October, 2010, again Police called him for
panchanama at village Sirohi near Mayur hotel. He
deposed that Accused No.2 halted in Mayur hotel by
name Vinod and when Accused No.2 was residing in
that hotel, he gave his clothes for washing to
Laundry and thereafter Accused No.2 left hotel
without taking his clothes. He further deposed
that Police collected the said clothes of Accused
No.2 from the owner of said hotel and prepared
seizure panchanama (Exhibit-65). Said clothes
consist two shirts and one pant. He further
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
29
deposed that the said clothes were shown to
Accused No.2, who identified the same. When
Article 30 - Pant and Article 31 and 32 - shirts
were shown to him, he identified the same.
22. PW-3 Rakesh further deposed that on 21 st
October, 2010, Police again called him for
panchanama in Police Station. Police called him
and another panch for the purpose to show 113 gold
ornaments which were seized from Accused No.1 and
also for the purpose to take weight of the said
ornaments from goldsmith. He deposed that the
ornaments were shown to the informant who
identified the same. He further deposed that
thereafter they all went to Sonya Maruti chowk,
Budhwar Peth, Pune in the Government recognized
Goldsmith shop of Vasudeo Narayan Parkhi. In the
said shop, they took weight of every ornament on
weighing machine. He further deposed that police
prepared panchanama (Exhibit-66). When 10
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
30
ornaments shown to him in the Court, he deposed
that the same were out of 113 ornaments which were
seized. He further deposed that the weight of gold
bar (Biscuit) was also taken in the same shop and
panchanama (Exhibit-67) was prepared.
23. PW-3 Rakesh further deposed that on 27 th
October, 2010, Police called him at Police
Station. At that time Accused No.1 made memorandum
that he is ready to show the shop from where he
had purchased the bag having "One Polo" mark on
the said bag and which he produced at village
Padiv before the Police. He showed the said shop
namely "Siddheshwar Bags", situated at Doke Talim
and one Kamble was the owner of the said shop.
Police showed the seized bag to the shop owner,
who identified the said bag as also the accused.
The shop owner told that Accused No.1 had
purchased the said bag from his shop. He further
deposed that seizure panchanama (Exhibit-68) was
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
31
prepared in his presence. Article 28 - bag when
shown to him, he identified the same.
24. The defence has extensively cross-
examined PW-3 Rakesh, but nothing contrary was
brought on record and his evidence remained in
tact and un-shattered.
25. The prosecution has examined PW-4
Sadashiv Baba Dhanawade. His evidence shows that
on 23rd October, 2010, he was called by Samarth
Police for panchanama at Samarth Police Station.
Accused No.2 - Bharat Polaji Ghanchi was in the
police station, who told that he is ready to show
the place of offence and how he has committed the
offence. Police reduced the statement of accused
No.2 into writing. He proved the statement
(Exhibit-70). His evidence further shows that he
along-with other panchas and accused, went by
police jeep to the house at Shubham Apartment near
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
32
MSEB office. His evidence further shows that
accused No.2 shown them where he had initially
concealed himself in gallery and then shown how
the accused came from gallery to the hall. Accused
No.2 shown the cupboard in which the ornaments
were kept. The police conducted panchnama and
obtained his signature. He proved the said
panchnama. He identified accused No.2 Bharat
Polaji Ghanchi, who was sitting in the Court Hall.
But, according to us no much importance can be
given to his evidence.
26. PW-5 Sachin Nagraj Chhajed is the son of
the informant. His evidence shows that he knows
accused No.1 - Bharat Kaluram Ghanchi who was
working in their shop. His evidence further shows
that accused No.1 used to come at their house at
8.30 a.m. and was doing the household work till
9.30 a.m., and thereafter accused No.1 used to go
to the shop. His evidence further shows that
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
33
after the incident he went to the spot and
thereafter his father contacted their servant
Bharat Kaluram i.e. accused No.1 in his presence.
Accused No.1 answered that he would come within 15
minutes, but did not come, and thereafter the
phone of accused No.1 was switched off. His
evidence further shows that then he went to the
room of accused No.1 and noticed that accused No.1
has left the room with his bag and all belongings.
27. During the course of cross examination,
PW-5 Sachin has stated that, when he came to the
house, his father told him that he made telephone
call to accused No.1 and narrated him about the
incident and called him in the house. PW-5 has
further stated that his father has not contacted
with Bharat in his presence.
28. The prosecution has examined Ritesh
Sohanlal Parmar as PW-6, who was already examined
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
34
as PW-2. His evidence shows that he was called in
the police station to act as Panch. His evidence
further shows that accused No.2 told that the
weapon used by him was concealed by him and he was
ready to show that place. Police reduced the
statement of accused No.2 into writing. PW-6
proved the memorandum statement (Exhibit-77) of
accused No.2. His evidence further shows that
thereafter he along with another panch, police,
photographer and accused No.2, went by police
Jeep. Accused No.2 showed the way via power house,
7 Levels Chowk, Swargate, took "U" turn at
Mahalaxmi Mandir, near Sarasbaug and accused No.2
took them down from iron stair case. There was
compound wall of iron wire. Accused No.2 dig at
said place by hand and took out one polythene bag
from that place. Thereafter, he took out sword-
stick (Gupti) from the said bag. There was piece
of cloth stained with blood. Police seized that
weapon and earth from the said place in polythene
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
35
bag. The photographer conducted shooting of the
entire event. Police prepared the panchnama of the
spot. PW-6 proved the panchnama of the said spot
(Exhibit-78). During the course of his evidence,
when the sword stick was shown to him, he
identified the said sword stick.
29. PW-7 Anil Mahadeo Sabale is another panch
witness. His evidence shows that on 23 rd October,
2010, he was called by Samarth police in the
police station for panchnama. His evidence shows
that accused No.1 took them to Kasturi Chowk, near
Nagraj Jewelers shop and further took them from
the staircase on third floor and produced one
empty cement bag in which, in newspaper sword was
wrapped. Police seized the sword and seizure
panchnama (Exhibit-83) was prepared. Police also
took video shooting of the entire episode.
30. However, according to us no imporance can
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
36
be given to the evidence of PW-7. Since during
the course of cross-examination, PW-7 admitted
that the sword was in the corner of the stair
case. PW-7 further admitted that said sword was
visible to persons passing by stair-case. PW-7
further admitted that police did not make enquiry
who was residing in the said building.
31. PW-8 - Nagraj Chandmal Chhajed is the
informant. His evidence shows that the incident
occurred on 6th October, 2010. At that time he was
residing at Shubham Apartment, Rasta Peth, Pune,
along with his wife. He had two sons but they are
residing separate. His shop namely, "Nagraj
Jewelers" is situate in 521, Ganesh Peth, Kasturi
Chowk, Pune. He is also doing business of money
lending and possessing valid license for doing
business of money lending. Working hours of his
shop were from 9.00 a.m. to 1.30 p.m., and from
3.00 p.m. to 8.00 p.m. The distance between his
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
37
house and shop is 1.5 to 2.00 k.ms. His evidence
further shows that in the month of October, 2010,
there were two workers in his shop viz. Mahendra
Rajput and Bharat Kaluram Ghelot (accused No.1).
Both the said workers were native of Rajasthan
State. His evidence further shows that Accused
No.1 was residing in his room. Accused No.1 used
to come to his house for doing household work.
Accused No.1 used to come to his house at 8.00
a.m., and used to leave the house at 9.00 to 9.15
a.m., and thereafter used to attend at the shop.
32. The evidence of the informant further
shows that on the day of incident at about 9.00
a.m., he left the house for shop. On that day
Accused No.1 had come to his house for routine
work before he went to the shop. His evidence
further shows that he left the house when accused
No.1 came to his house. The evidence of informant
further shows that when he left the house, his
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
38
wife Jayantiben and accused No.1 were only in the
house. At about 9.30 a.m. accused No.1 also came
in the shop from the house. At about 10.30 a.m.
the informant received phone of his wife informing
that one person was making enquiry of Mahenra
Parmar from outside of the house as the door was
closed, and informant told her not to open the
door. Thereafter informant made phone call to his
wife at about 11.30 a.m. to 12.00 noon for 2-3
times, but there was no response from his house.
His evidence further shows that he sent accused
No.1 to repair his spectacles and after 11.30 a.m.
to 12.00 noon accused No.1 had come to the shop
after repairing spectacles. The evidence of the
informant further shows that as his wife was not
giving response to the phone calls, he felt that
she might have went to the hospital. At 1.30 p.m.,
he closed the shop and went to hospital, but
doctor told him that his wife had not come to the
hospital. Thereafter the informant went to the
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
39
house. The door of the house was bolted from the
inside, and though he knocked the door, no one
opened the door. The informant was having spare
key of the house and so he opened the door by the
said key. When the informant entered in the hall,
he saw blood stains in the hall. Then informant
went in the inner room from the hall and saw that
his wife was lying in unconscious condition in the
pool of blood on the floor. Steel cupboard in the
said room was open. His wife had injuries on her
neck. The informant made phone call to police
station, police came on the spot and shifted his
wife to hospital. Doctor of Sasoon Hospital
declared his wife as dead.
33. The evidence of informant (PW-8) further
shows that, he saw steel cupboard and noticed that
two cotton bags containing ornaments of money
lending transactions were missing. In the said
cotton bags, ornaments were kept in 100 to 125
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
40
small plastic pouches having name, amount of money
lending and weight of ornaments. Police asked the
informant to who he has doubt and the informant
shown his doubt on his servants Mahendra Parmar
and accused No.1. The evidence of the informant
further shows that he called accused No.1 on his
mobile phone and asked to come at house. Accused
No.1 assured to come but did not come. Thereafter,
the informant made phone call to accused No.1 in
presence of police, but accused No.1 did not give
any response, and thereafter the mobile phone of
accused No.1 was switched off. Thereafter
informant and police went to the place where
accused No.1 took food and they came to know that,
accused No.1 left that place with his bag and all
belongings. Thereafter informant lodged the
complaint (Exhibit-85).
34. The evidence of the informant further
shows that, thereafter police arrested accused
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
41
No.1. Police had shown seized ornaments to him, he
identified the said ornaments. On 26th October,
2010, the informant told the police in respect of
theft of gold ornaments on the person of his wife,
with description. Total ornaments of Rs.84 Lakhs
were stolen. Ornaments of money lending
transactions were seized by the police. His
evidence further shows that, he had received those
ornaments from the Court on Supratnama. Some of
the ornaments which were demanded by the customers
were given to them and some of the ornaments were
with the informant. When the ornaments, i.e.
Article Nos.16 to 27 were shown to him in the
Court, he identified the same as the ornaments
which were stolen from his house. He received
those articles from the Court on bond. Those
articles are pertaining to money lending
transactions. The ornaments were having names of
the concerned owners, weight and amount. His
evidence further shows that the ornaments, article
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
42
Nos.16 to 17 were brought by him in the Court, on
the day of recording his evidence. The evidence of
the informant shows the details of the said
ornaments, like name of the owner, description,
weight and price of said golden ornaments. The
evidence of the informant further shows that
Article Nos.16 to 27 were received by him. The
informant identified the accused persons who were
present in the Court. The informant also
identified the clothes which were on the person of
his wife at the time of incident, shown to him in
the Court, those were Article Nos.1 to 3 - saree,
petticoat and blouse.
35. The prosecution examined PW-9 Afsar
Mohamad Mulani. His evidence shows that since 7 to
8 years he was serving with Samruddhi Tours and
Travels and his duty was to book seats of the bus.
His evidence further shows that, on 6th October,
2010, he was on his duty. At about 2.30 p.m., two
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
43
boys came to the office and asked him, whether
there was any bus for Ahmedabad, and he told them
that departure of bus would be at 5.00 p.m. The
said boys told him that as their father expired,
they required urgent bus. The evidence of PW-9
further shows that he provided one taxi on rent of
Rs.9,000/- for dropping the said boys at
Ahmedabad. One of the boy was having sack with
him. His evidence further shows that they paid
Rs.5,000/- as advance. His evidence further shows
that those boys were in hurry to leave for
Ahmedabad. The evidence of PW-9 further shows that
on 24th October, 2010, he was called by Samarth
Police station. Police arrested some accused and
showed him those accused. His evidence further
shows that those accused were the same persons who
came to his office on 6th October, 2010, for
booking car. His evidence further shows that, he
identified the accused persons when they were
shown to him in the Court. During the course of
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
44
recording his evidence, when PW-9 was shown the
sack, he identified the said sack, which was with
the accused when they visited his office for
booking car.
36. PW-10 Kumar Shantaram Kamble deposed that
he runs a shop of sell and service of bags by
name, "Sateshwar Bags" at 303, Nana Peth, Pune.
His evidence shows that working hours of his shop
are from 9.00 a.m. to 8.00 p.m. On 27th October,
2010, police of Samarth police station came to his
shop, and he went to police station to identify
the sack. There was one bag having monogram, "one
polo", having military colour. His evidence shows
that, the said bag was purchased by accused No.2,
from his shop for Rs.180/- but he has not issued
bill of said bag. During the course of recording
his evidence, PW-10 identified accused No.2 as the
person who had purchased the said bag from his
shop.
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
45
37. PW-11 Kirtiraj Popat Kamble was the
person who was doing business of video-shooting
and photography. He deposed that on 23 rd October,
2010 he was called by police and at the instance
of accused No.1 one sword was seized, which was
concealed by accused No.1 on the stair case of
Shankar Parvati Apartment, Ganesh Peth, Pune. His
evidence shows that he made video shooting of the
entire event of seizure of sword at the instance
of accused No.1. The evidence of PW-11 further
shows that on the same day i.e. 23 rd October, 2010,
police took him to Shubham Apartment along with
accused persons where the incident of theft and
murder took place. His evidence further shows that
the accused showed demonstration how they
committed murder and video recording of
demonstration was made by him. His evidence
further shows that as per the instructions he made
video shooting of the seizure of sword which was
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
46
seized at the instance of accused No.2, concealed
under fly over constructed in Sarasbaug, Pune.
38. PW-12 Dr. Ajay Aniruddha Taware is the
medical officer who conducted postmortem
examination on the dead body of Jayanti Nagraj
Chhajed on 7th October, 2010, between 9.30 a.m. to
10.45 a.m., along with another medical officer,
namely Dr. Nitin Patil. The evidence of Dr. Ajay
Taware (PW-12) shows that on external examination,
he noticed following injuries on the person of
deceased Jayanti:-
1) Linear abrasion over lower tip, outer aspect,
oblique 0.8 X 0.5 cm.,
2) Abrasion over chin in the midline horizontal
1 X 0.3 cm.,
3) Incised wound 4 cm. Below left angle of
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
47
mandible, 2 X 0.3 muscle deep,
4) Incised wound starting from 5 cm. below chin,
in midline, running horizontally on left side, 8 X
1 cm. trachea deep.
5) Incised wound over right supraclavicular
region, extending upto suprasternal region,
vertically oblique 9 X 2 cm. cavity deep.
6) Stab injury, 5 cm., below right clavicle, 3
cm., away from midline, vertically oblique 3 X 1
cm., cavity deep.
7) Linear abrasion 8 cm., below left nipple, 11
cm., away from midline, horizontal 5 X 0.3 cm.,
8) Stab injury 16 cm., below left clavicle, 2 cm.,
away from midline, 3 X 1.2 cm., cavity deep,
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
48
9) Stab injury over epigastirium, 22 cm., below
suprasternal notch, 13 cm., above umbilicus, in
midline, vertical, 3 X 2 cm., cavity deep.
10) Incised wound over dorsum of right thumb,
proximal phalynx, 3 X 1 cm., bone deep,
11) Incised wound over base of right thumb lateral
aspect, 1.5 X 1 cm., muscle deep.
39. The evidence of PW-12 shows that all the
above injuries were fresh. Margins and angles of
above mentioned injuries were acute and clean. His
evidence further shows that on internal
examination of thorax, they noticed stab injuries
underneath injury Nos.6 and 8. Both cavities
contain 250 cc., blood. Stab injury underneath
injury Nos. 6 and 7 over upper lobe. Stab injury
underneath injury No.8 over upper lobe. His
evidence further shows that on internal
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
49
examination of abdomen, they noticed stab injury
underneath injury No.9. Cavity contains 1200 cc.,
blood. Stab injury underneath injury No.9,
vertical, left lobe. His evidence further shows
that as per his opinion, cause of death was "due
to traumatic and haemorrhagic shock due to stab
injuries". He proved postmortem notes (Exhibit-
95). His evidence further shows that stab injuries
mentioned in Column No.17 of postmortem notes,
corresponding to internal injuries were sufficient
to cause death in ordinary course, and said
injuries were possible due to sword.
40. PW-13 Sunil Pandurang Gaikwad, the then
A.P.I. attached to Samarth Police Station, Pune,
was the investigating officer, who deposed about
the manner in which he has carried out the
investigation of the crime.
41. PW-14 Dr. Sunil Pralhad Jogdand is the
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
50
medical officer who examined accused No.2. The
evidence of Dr. Sunil shows that on 13th October,
2010, he examined accused No.2 - Bharat Polaji
and noticed as many as 11 injuries on the person
of accused No.2. All the injuries were abrasions
and incision and were of simple nature. The age of
injuries was within one week, caused by sharp
edged tip, rough and irregular objects.
42. The prosecution has also brought on
record C.A. Reports regarding the seized articles,
which are at Exhibit 48 to 50.
43. We have discussed the entire evidence
brought on record by the prosecution. The evidence
of the medical officer (PW-12) shows that deceased
Jayanti received multiple internal and external
injuries, including stab injuries and thus her
death was homicidal.
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
51
44. Admittedly, in the present case there is
no eye witness to the incident and the entire
prosecution case is based upon circumstantial
evidence. For connecting the said offences with
accused No.2, the prosecution has brought on
record overwhelming circumstantial evidence. The
prosecution has brought on record medical evidence
showing that, accused No.2 had as many as 11
injuries on his person and most of the injuries
were to his palm. The medical officer who has
examined accused No.2, has opined that the age of
injuries was within one week. Learned A.P.P.
argued that while accused No.2 assaulted deceased
Jayanti, she might have resisted and during the
said course accused No.2 has received those
injuries. The evidence on record further shows
that, at the instance of accused No.2 sword stick
was seized which was concealed by him beneath the
ground, and by digging the ground accused No.2 had
took out the polythene bag in which sword stick
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
52
was kept. The place from where the sword stick was
seized, was not the open place accessible to all,
but the same was within the exclusive knowledge of
accused No.2. The evidence on record shows that
along with the sword stick, there was piece of
cloth stained with blood. The C.A. Report shows
that DNA profile obtained in cotton swab matched
with the sword stick and the said piece of cloth
which was seized at the instance of accused No.2.
45. The prosecution has brought on record the
evidence showing that after the incident accused
No.2 stayed in the hotel at Sirohi (Rajasthan
State), by falsely stating his name as Vinod, and
gave his clothes for washing to laundry. Accused
No.2 left the said hotel without collecting those
clothes, which were seized by the police, which
were having blood stains. The C.A. report shows
that DNA profile matched all the obligate alleles
present in the DNA profile obtained from the pant
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
53
of accused No.2. Learned counsel appearing for the
Appellants argued that said clothes of accused
No.2 were given for washing and it was not
possible to detect blood stains on the clothes
when the clothes were washed. We are not in
agreement with the aforesaid submission of the
learned counsel, for the simple reason that the
expert has given opinion that there were blood
stains on the clothes and the DNA profile was
matched.
46. Though the prosecution has relied upon
the circumstance that one bag having monogram "One
Polo" was purchased by accused No.2, but the
prosecution has not brought on record any evidence
showing that the said bag was having any special
marks. The said Polo bag is easily available in
the market. Further, it is pertinent to note that
it has come in the evidence of another prosecution
witness (PW-3) that said Polo bag was seized at
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
54
the instance of accused No.1. Therefore the
seizure of said Polo bag cannot be said to be
incriminating circumstance against accused No.2.
47. The prosecution has also relied upon
another circumstance that at the instance of
accused No.2, cash amount of Rs.1,50,000/- was
recovered from Mount Abu police. It is the case of
the prosecution that accused forgot a bag of
Rs.1,50,000/- in the taxi at Mount Abu and the
said taxi driver had deposited the said amount
with Mount Abu Police Station and the said amount
was recovered by the Investigating Officer in the
present case, from Mount Abu police station. In
this respect, it is significant to note that
neither the said taxi driver nor the police
personnel from Mount Abu police station was
examined by the prosecution to prove the said
circumstance.
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
55
48. The evidence on record shows that an
accused No.2 had melted some of the stolen
ornaments and prepared a gold bar. The evidence on
record shows that at the instance of accused No.2,
from his village Padiv, Tq-Sirohi, the said golden
bar was recovered. The said golden bar was seized
from the bed of a river which was concealed by
accused No.2, 1½ to 2 feet beneath the sand. Thus,
the said golden bar was seized from the place
which was exclusively within the knowledge of
accused No.2. Further, accused No.2 had not given
any plausible explanation how such golden bar came
into his possession though he was obliged under
Section 114 of the Evidence Act to offer plausible
explanation. In his statement recorded u/s. 313 of
Criminal Procedure Code, except simple denial or
he does not know, is the reply given by him when
all the adverse circumstances were put to him.
49. Thus, the prosecution has brought on
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
56
record overwhelming circumstantial evidence
against accused No.2, and proved that he has
committed theft of the golden ornaments from the
house of the informant belonging to the informant,
and during the process of said theft when wife of
informant resisted, accused No.2 committed her
murder.
50. Now, we will discuss the circumstances
brought on record by the prosecution for
connecting the said offences with accused No.1.
The evidence on record shows that accused No.1 was
serving in the shop of the informant. Accused No.1
used to work in the house of the informant from
8.45 a.m. till 9.45 a.m., and thereafter he used
to go in the shop of the informant for work. Thus,
the prosecution has proved that, accused No.1 was
well conversant to the situation of the house of
the informant and also about the family members
residing in the house. The evidence on record
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
57
shows that, on the day of incident, at 9.00 a.m.,
when the informant left for his shop, at that time
only accused No.1 and deceased Jayanti were
present in the house. So, also the evidence on
record shows that after the incident the conduct
of accused No.1 was not natural. The evidence of
the informant shows that, soon after the incident
he made phone call to accused No.1 and asked him
to come to the house. Accused No.1 assured to
come, but did not come to house of the informant
and thereafter accused No.1 switched off his
mobile phone. The evidence on record further shows
that soon after the incident, the accused has left
his rented residential place and went to his
native place. The evidence on record shows that,
accused No.1 did not wait for bus which according
to PW-9 was supposed to depart at Ahmedabad at
5.00 p.m., and hired taxi for an exorbitant amount
of Rs.9000/- and left Pune. In fact, accused No.1
alongwith another co-accused went at Samruddhi
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
58
Tours and Travels at about 2.30 p.m. and at 5.00
p.m. there was bus to go to Ahmedabad. But they
did not wait even for 2½ hours more. Thus, the
prosecution has proved that soon after the
incident, accused No.1 hurriedly left Pune. Thus,
the prosecution has brought on record sufficient
evidence showing that soon after the incident, the
conduct and behaviour of accused No.1 was
suspicious.
51. The evidence of PW-3 Rakesh Gaikwad,
supported with the evidence of investigating
officer (PW-13) shows that, at the instance of
accused No.1 ornaments were seized at village
Noon, Tq-Sirohi, Rajasthan State. The said
ornaments were concealed by accused No.1 in the
house of his sister, beneath the floor of the
house. The prosecution has brought on record the
evidence showing that at the house of his sister,
accused No.1 digged upto 1 and ½ feet on the floor
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
59
and thereafter took out plastic bag in which there
were about 113 plastic bags containing golden
ornaments. Accused No.1 has not given any
explanation how such huge golden ornaments came
into his possession. Further, the said ornaments
when seized, were identified by the informant as
belonging to him. In the case of Praveen vs. State
of M.P.10, the Supreme Court has held that in
absence of any explanation from the accused as to
the possession of the articles belongs to the
victim, the recovery of articles is reliable. It
is significant to note that, the accused No.1 in
his statement under Section 313 of Code of
Criminal Procedure did not offer plausible
explanation, how he came in to possession of such
huge quantity of gold.
52. Thus, the prosecution has proved that
accused No.1 while sharing common intention with
10 (2008) 16 SCC 166
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
60
Accused No.2 had committed theft in the house of
the informant and took away golden ornaments which
were belonging to the informant. Thus, the
prosecution has proved that accused No.1 had
committed an offence under Section 380 of the IPC.
53. Thus, the prosecution has brought on
record overwhelming circumstantial evidence
showing the involvement of both the accused in the
crime of theft of an ornaments. Thus, the
prosecution has proved that accused No.1 and
accused No.2 in furtherance of their common
intention committed theft of golden ornaments from
the house of the informant, and in the said
process Accused No.2 has committed murder of
Jayanti Nagraj Mehta.
54. After considering the entire evidence
brought on record by the prosecution, we are of
the view that circumstances brought on record by
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:07 :::
Cri.Apeal 817.14 Judt.doc
61
the prosecution are not sufficient to connect
accused No.1 for the offence under Section 302 of
IPC. The evidence of the informant shows that,
though on the day of incident accused No.1 visited
the house of the informant, but as usual at
routine time at 9.30 a.m. accused No.1 attended
the shop of the informant. The evidence of
informant further shows that at 10.30 a.m. he
received phone call of his wife. Thus, it is clear
that when accused No.1 left the house of the
informant and thereafter also till 10.30 a.m. wife
of the informant was alive. Though the evidence
of the informant further shows that, thereafter
he sent accused No.1 to repair his spectacles,
but he stated that at about 11.30 a.m. to 12.00
noon accused No.1 had came back to the shop
after repairing spectacles. The prosecution has
also not brought on record cogent evidence
showing that during said period, accused No.1
visited the house of the informant and
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
62
committed murder of wife of the informant. Thus,
the informant himself has weaken the prosecution
case regarding commission of an offence under
Section 302 of IPC by accused No.1. Though the
evidence on record shows that, every day in the
morning hours accused No.1 used to attend the
house of the informant for doing household work
and was having knowledge of the house, the
prosecution has not brought on record an evidence
showing that, accused No.1 was having spare key
with him of the house of the informant. On the
contrary, evidence of the informant shows that
when he went to the house after returning from the
Doctor, the door of the house was not opened even
after door was knocked by him. Therefore, the
informant opened the house by the spare key which
was with him.
55. So far as the alleged recovery of the
sword at the instance of accused No.1 is
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
63
concerned, the evidence on record shows that the
said sword was recovered from the stair case, and
the said place was visible and accessible to the
persons using said stair case. In the case of
Sujit Gulab Sohatre & others vs. the State of
Maharashtra11, the Division Bench of the Bombay
High Court held that, recoveries from the places
which are accessible to all and sundry is not
incriminating evidence. As observed earlier, in
the present case also, the recovery of weapon at
the instance of the accused No.1 was from the
place accessible to all, and therefore the said
circumstance cannot be said to be incriminating
circumstance against accused No.1. The prosecution
has not brought on record any clinching evidence
to connect accused No.1 with the offence
punishable under Section 302 of the IPC.
56. In the case of Sanwat Khan vs. State of
11 1996 [3] All M.R. 439
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
64
Rajasthan12, the Supreme Court in Para -7 of the
Judgment observed as under:
"7....... In our Judgment no hard and fast
rule can be laid down as to what inference
should be drawn from a certain circumstance.
Where, however, the only evidence against an
accused person is the recovery of stolen
property and although the circumstances may
indicate that the theft and the murder must
have been committed at the same time, it is
not safe to draw the inference that the person
in possession of the stolen property was the
murder. Suspicion cannot take the place of
proof."
57. In the present case also, the prosecution
has proved that accused No.1 and accused No.2 had
committed theft of the golden ornaments which were
owned and possessed by the informant. It is true
that said stolen golden ornaments were recovered
at the instance of accused No.1. But the
circumstances on record does not at all indicate
12 AIR 1956 S.C. 54
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
65
that at the time of commission of offence of
murder, accused No.1 could have been present at
the spot of incident.
58. In Limbaji and others vs. State of
Maharashtra13, the Supreme Court in Para 28 and 29
of the Judgment, while discussing the presumption
under Section 114 of the Evidence Act, held as
under:
"28. Whether the presumption could be further
stretched to find the appellants guilty of the
gravest offence of murder is what remains to
be considered. It is in this arena, we find
divergent views of this Court, as already
noticed. In Sanwat Khan case14, the three-Judge
Bench of this Court did not consider it proper
to extend the presumption beyond theft (of
which the accused were charged) in the absence
of any other incriminating circumstances
excepting possession of the articles belonging
to the deceased soon after the crime. However,
we need not dilate further on this aspect as
13 (2001) 10 SCC 340
14 AIR 1956 SC 54
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
66
we are of the view that in the peculiar
circumstances of the case, it would be unsafe
to hold the accused guilty of murder, assuming
that murder and robbery had taken place as a
part of the same transaction. The reason is
this. Going by the prosecution case, the
deceased Baburao was hit by a heavy stone
lying on the spot. The medical evidence also
confirmed that the fatal injuries would have
been inflicted by a heavy stone like
Article 1. It is not the case of the
prosecution that the appellants carried any
weapon with them or that the injuries were
inflicted with that weapon. There is every
possibility that one of the accused picked up
the stone at that moment and decided to hit
the deceased in order to silence or immobilise
the victim. If the idea was to murder him and
take away the ornaments from his person, there
was really no need of forcibly snatching the
earrings before putting an end to the victim.
It seems to us that there was no premeditated
plan to kill the deceased. True, common
intention could spring up any moment and all
the three accused might have decided to kill
him instantaneously, for whatever reason it
be. While that possibility cannot be ruled
out, the possibility of one of the accused
suddenly getting the idea of killing the
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
67
deceased and in furtherance thereof picking up
the stone lying at the spot and hitting the
deceased cannot also be ruled out. Thus two
possibilities confront us. When there is
reasonable scope for two possibilities and the
court is not in a position to know the actual
details of the occurrence it is not safe to
extend the presumption under Section 114 so as
to find the appellants guilty of the offence
of murder with the aid of Section 34 IPC.
While drawing the presumption under Section
114 on the basis of recent possession of
belongings of the victim with the accused, the
court must adopt a cautious approach and have
an assurance from all angles that the accused
not merely committed theft or robbery but also
killed the victim.
(29) In the result, we set aside the
conviction of the accused under Section 302
IPC. We find the accused guilty of the offence
punishable under Section 394 read with Section
34 IPC and accordingly convict the accused
under Section 394 and sentence them to undergo
rigorous imprisonment for a period of five
years and to pay a fine of Rs.500 each and in
default to undergo further imprisonment for a
period of three months. The appeals are thus
partly allowed."
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
68
59. Applying the said ratio to the present
case in hand, in the facts of the present case
though it is proved that accused No.1 had
committed theft of the ornaments of the informant,
the prosecution has not brought on record any
evidence even remotely showing the involvement of
accused No.1 in the commission of offence of
murder. Thus, we are of the considered view that
the offence under Section 302 of the IPC is not at
all proved as against accused No.1.
60. The record of Criminal Appeal No.977 of
2014 shows that by order dated 28 th June, 2018
passed by the Division Bench of this Court
(Coram : B.R. GAVAI & SARANG V. KOTWAL, JJ.), the
Appellant - Accused No.1 has already been released
on bail. It is also observed in the said order
that Appellant - Bharat Kaluram Ghanchi @ Ghelot
was in custody for more than seven years. Thus, it
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
69
is clear that Appellant has already suffered
sentence for the offence under Section 380 of the
IPC.
61. For the reasons afore stated, we are of
the view that the prosecution has proved that,
accused No.2 had committed theft of the golden
ornaments of the informant and during the process
of said theft, he has committed murder of Jayanti,
wife of the informant. Thus, the prosecution has
proved that accused No.2 had committed an offence
under Section 380 and 302 of the IPC. So far as
accused No.1 is concerned, the prosecution has
proved that accused No.1 has along with accused
No.2 committed an offence under Section 380 of the
IPC. But the prosecution has failed to prove that
accused No.1 had committed an offence under
Section 302 of IPC.
62. So far as Criminal Application No.953 of
::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::
Cri.Apeal 817.14 Judt.doc
70
2018 filed by the informant - Nagraj Chandmal
Chajed, praying therein to return the ornaments
to him as mentioned in Annexure-C of the
Application is concerned, the same deserves to be
allowed, by giving certain directions.
63. In the result, we pass the following
order:
O R D E R
(I) Criminal Appeal No. 817 of 2014 filed by Appellant - Original Accused No.2 - Bharat Polaji Ghanchi @ Ghelot is hereby dismissed. The impugned Judgment and order dated 2nd September, 2014, passed by the Additional Sessions Judge, Pune in Sessions Case No.146 of 2011 convicting the Appellant - accused No.2 for the offence punishable under Section 380 r/w. 34 of the Indian Penal Code and ::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 ::: Cri.Apeal 817.14 Judt.doc 71 sentencing him under said Section is confirmed. So far conviction and sentence as ordered by the Trial Court of accused No.2 under Section 302 r/w. 34 of the Indian Penal Code is concerned, same stands modified and instead of conviction and sentence under Section 302 r/w. 34 of the Indian Penal Code, accused No.2 is/stands convicted for the offence punishable under Section 302 of the Indian Penal Code simplicitor. As ordered by the Trial Court, both the sentences shall run concurrently. The Appellant - accused No.2 be given set off under Section 428 of the Code of Criminal Procedure.
(II) Criminal Appeal No.977 of 2014 filed by Appellant - Original Accused No.1 - Bharat Kaluram Ghanchi @ Ghelot is ::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 ::: Cri.Apeal 817.14 Judt.doc 72 partly allowed as follows :
(a) The impugned Judgment and order dated 2nd September, 2014, passed by the Additional Sessions Judge, Pune in Sessions Case No.146 of 2011 convicting and sentencing the Appellant - Accused No.1 - Bharat Kaluram Ghanchi @ Ghelot for the offence punishable under Section 302 of the Indian Penal Code is set aside and the Appellant - Accused No.1 is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
Fine amount, if any paid by the Appellant be refunded to him.
(b) The impugned Judgment and order dated 2nd September, 2014, passed by the Additional Sessions Judge, Pune in Sessions Case No.146 of 2011 convicting ::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 ::: Cri.Apeal 817.14 Judt.doc 73 and sentencing the Appellant - Accused No.1 - Bharat Kaluram Ghanchi @ Ghelot for the offence punishable under Section 380 read with 34 of the Indian Penal Code and sentence to suffer rigorous imprisonment for five years and to pay fine of Rs.2,000/- (Rs. Two Thousand) in default of payment of fine to suffer further rigorous imprisonment for three months stands confirmed. The accused No.1 has already undergone the sentence imposed upon him for the offence punishable under Section 380 r/w. 34 of the Indian Penal Code. The bail bonds of Appellant - accused No.1 shall stand cancelled.
(III) Criminal Application No.953 of 2018 is allowed. On executing indemnity bond to the satisfaction of the trial ::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 ::: Cri.Apeal 817.14 Judt.doc 74 Court i.e., the Court of Sessions, Pune by the Applicant - Nagraj Chandmal Chajed, Muddemal property (i.e. the ornaments as mentioned in Annexure C to the Application) be returned to the Applicant, after the period of filing the Special Leave Petition, as provided under the Supreme Court Rules, 1966 is over. The Record and Proceedings along with Muddemal property be sent to the trial Court. The trial Court, after verifying indemnity bond and completing all other formalities, shall return Muddemal property to the Applicant - Nagraj Chandmal Chajed.
[A.S. GADKARI, J.] [S.S. SHINDE, J.] ::: Uploaded on - 19/11/2018 ::: Downloaded on - 20/11/2018 01:37:08 :::