Bombay High Court
Kolhapur Central Prison vs The State Of Maharashtra on 22 July, 2013
Bench: V.K. Tahilramani, Mridula Bhatkar
vss
apeal.1159.2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1159 OF 2009
Pratap Akaram Chougule
Kolhapur Central Prison
Kolhapur ... Appellant
Vs.
The State of Maharashtra ... Respondent
Ms.Sarojini Updhyay, Advocate appointed for the Appellant
Ms.S.V. Gajare - Dhumal, APP, for Respondent - State
ig CORAM: MRS.V.K. TAHILRAMANI &
MRS.MRIDULA BHATKAR, JJ.
DATE: JULY 22, 2013
ORAL JUDGMENT (PER MRS.BHATKAR , J.):
1. The appeal is directed against the judgment and order dated 11.4.2005 of the 2nd Adhoc Additional Sessions Judge, Kolhapur thereby convicting the appellant for the offences punishable under sections 302, 363, 364, 365 r/w section 201 of the Indian Penal Code. The maximum sentence awarded to the accused is for life imprisonment.
2. The incident of murder of one Nandkumar Maruti Patil, who was a 14 year old boy at the time of incident, had taken place on the night of 18.3.2003 at village Majgaon, Taluka Panhala, District Kolhapur. It is the case of the prosecution that the appellant was having one sided love for PW18 Nita Patil, a distant cousin of deceased Nandkumar. He had written 1 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 one love letter (exhibit 39) to her and the appellant used deceased Nandkumar as a carrier of that letter. However, Nita did not reply to that letter. So the appellant used to call deceased Nandkumar often to ask him as to why he is not bringing any reply from Nita. He used to harass him on this count. On 17.3.2003 in the evening, the appellant asked one boy i.e., PW9 Rahul Krishna Patil to call Nandu. Accordingly, PW9 Rahul went and called Nandkumar from his house to the shop of the appellant. The appellant asked him to do some work and then they started walking towards a narrow lane going towards the house of the appellant.
At around 10pm, as PW6 Maruti Patil, the father of the deceased, realised that Nandkumar was not at home for dinner, he started enquiry.
In the vicinity, other people started searching for Nandkumar. The mother and the other family members in the house disclosed that PW9 Rahul had come to call Nandkumar. They enquired with PW9 Rahul and he told them that Pratap i.e., the Appellant had asked him to call Nandkumar to his shop and accordingly Rahul had taken Nandkumar to the shop of the appellant. PW6 Maruti alongwith his relatives thereafter went to the house of the appellant and asked the appellant about Nandkumar. The appellant told them that Nandkumar had come to him. However, one white jeep full of persons had come to his shop. Those persons had come to his shop from District Beed and they kidnapped Nandkumar and those people demanded ransom of `4 to 5 lacs. However, the appellant talked with 2 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 them and told them that the father of Nandkumar is not very rich person and had no financial capacity to pay such a high amount and only about approximately `50,000/- could be paid. They had taken Nandkumar in that jeep towards Koparde village. PW6 Maruti alongwith other relatives and the appellant started search of his son at night. They reached near Koparde at around 3.30 am. At that time, the appellant got down from the vehicle and told Maruti that the persons who had kidnapped Nandkumar were with stenguns and revolver, so he would go ahead alone and would talk with them. As they agreed, the appellant alone proceeded. They waited for him for some time. However, he did not come back. At that time, Maruti realised that the appellant only must have kidnapped Nandkumar. Hence, he went to Panhala police station alongwith his relatives and lodged missing report on 19.3.2003 (exhibit 25). The police registered offence at C.R. No.27 of 2003 us/ 364 r/w 34 of the Indian Penal Code against the appellant accused and other persons.
Police started searching for Nandkumar and on the next day i.e., 20.3.2003, the body was found outside the open place of the house of the appellant in the cow dung pit. There were clothes on his person.
However, his neck was tied with one baniyan. Police drew spot panchanama (exhibit 10) in the presence of panchas i.e., PW1 Shakeel Sayyed Mokashi and inquest panchanama (exhibit 14 and 15) in the presence of PW3 Tukaram Mane. Police sent the body of Nandkumar to 3 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 Government hospital for postmortem. PW16 Dr.Jivan Shelar and Dr.Ruikar performed the postmortem examination on the dead body of Nandkumar and found that Nandkumar died because of asphyxia due to throttling.
3. Police started in search of the appellant accused. On information, PW3 P.I. Mane from Gaganbavda police station had knowledge that one person by name Pratap Chougule was working in the field of PW11 Sonu Kolpate, at Gaganbavda. The photographs of the appellant were sent to the police stations. He directed his staff i.e., PW2, Rajaram Suryawanshi, of Gaganbavda Police Station to go and find out whether a person by name Pratap Chougule was working in the field of Sonu Bapu Kolpate or not. PW21 Rajaram alongwith other police constables went to the field of Sonu Kolpate and it was confirmed that the person, who was working in the field of Sonu Kolpate was the appellant accused. So the police apprehended the appellant accused at the Gaganbavda police station and his arrest panchanama (exhibit 33) was drawn. The police thereafter sent the clothes of the deceased and the appellant to the C.A. The police recorded the statement of the persons in the vicinity as also PW18 Nita Patil and also collected the love letter sent by the appellant to Nita. During the course of investigation, the police also obtained specimen handwriting of the accused and sent the disputed love letter (exhibit 39) and the specimen signatures i.e., six pages having specimen handwriting (exhibits 4 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 S1 to S6) to the handwriting expert. The police collected the report of the handwriting expert Ravindra Vasant Kakale (PW24). After completion of the investigation, police filed chargesheet. The learned Magistrate committed the case to Court of Sessions. The learned Sessions Judge framed charges against the appellant accused and the trial concluded in conviction, hence, this appeal.
4. The learned Counsel for the appellant submitted that evidence of prosecution witnesses especially PW6, the father of the deceased, is full of contradictions and improvements. The prosecution could not prove any motive of the accused to kill the deceased. She submitted that if the deceased has expressed love for PW18 Nita and if Nita was not responding then, there cannot be any motive to kill deceased Nandkumar.
She further submitted that there is no eye witness to the incident. She further submitted that the evidence of the handwriting expert is also diabolic as he has opined that he could not give any opinion whether exhibit D-1 (S) is written by the same person, who has written exhibit S1 to S6 (encircled portions). If the evidence of the handwriting expert goes away, then the prosecution suffers from major infirmity so the benefit of doubt is to be given to the accused and he be acquitted.
5. The learned Prosecutor opposes this appeal and defended the judgement and order of the trial Court.
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6. The case is based on the circumstances which are strong and complete. PW6 Maruti Patil, the father of the deceased, is the complainant, who gave missing report of his son. He has stated that on the night of 18.3.2013 at around 10pm, he found his son Nandkumar was not present in the house when he was having dinner. He searched for Nandkumar. The other persons in the vicinity also tried to find out Nandkumar. However, it was disclosed by the female members of the family that on the evening of that day at around 7.30pm, Rahul had come to call Nandkumar and Nandkumar alongwith Rahul went out. So they went to Rahul and upon asking him, Rahul informed that he took Nandkumar to the shop of the appellant as the appellant had asked Rahul to bring Nandkumar to him. On the information given by Rahul, PW6 went to the house of the appellant and asked him where his son was. The accused informed him that his son was kidnapped by some persons, who had come in a white Maruti van from District Beed and they demanded ransom and they kidnapped Rahul. They threatened him and kidnapped Nandkumar. On hearing this, Maruti alongwith his relatives and appellant went towards village Koparde as informed by the appellant in search of his son. When they reached near the village Koparde, the appellant asked them to stop the vehicle and he alone went ahead in order to have negotiations with the kidnappers. However, he did not come back though they waited for approximately 2 hours. Maruti, therefore, became 6 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 suspicious about the appellant and he then went to Panhala police station and lodged complaint of missing of his son which was registered as C.R. No.27 of 2009 at Panhala police station.
7. In support of this evidence, the prosecution examined PW7 Balasaheb Shinde, PW8 Shivaji Kumbhar on the point of missing and search of Rahul by Maruti. Both these witnesses have corroborated the evidence of Maruti in material particulars. They reiterated in their evidence that they heard Nandkumar was missing from 10 pm on 18.3.2003 and thereafter they both searched alongwith Maruti for Nandkumar. They went to the appellant accused. Maruti went in search of his son Nandkumar.
PW7 accompanied Maruti in the jeep and he supports that the accused told them that Nandkumar was kidnapped by some persons and those persons would be at village Koparde. The appellant thereafter went ahead to talk with the kidnappers but he did not return and therefore, they lodged complaint with the police. This evidence proves that on that night, Nandkumar was missing and the case of missing was related to the appellant.
8. The evidence of PW9 and PW18 is a material evidence on the point of motive and explains the criminal conduct of the appellant. PW9 Rahul is in fact a star witness in this case. He was 10 years old. The evidence of Rahul was recorded on 4.6.2004. The incident had taken place on 18.3.2003. Thus, Rahul was 9 years of age when the incident 7 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 had taken place. So he was in a position to depose about what happened to Nandkumar on that date. He deposed that he had purchased a bottle of thumps-up from the shop of the appellant on the evening of 18.3.2003. At that time, the appellant told him that he should go and call Nandkumar and thereafter he would give him 50ps as prize. Then Rahul went to the house of Nandkumar and brought Nandkumar. The appellant then started talking with Nandkumar and they went towards a narrow lane nearby. So Rahul returned to his home. He has stated that on that date, after dinner when he was sitting at home, he was enquired by his mother and other people about Nandkumar and then, he told about Nandkumar. Nothing was elicited from the cross-examination of Rahul. He was very consistent and firm about what he has deposed in his examination in chief.
9. The evidence of PW18 Nita throws light on more details. The accused was in love with Nita. In the year 2003, she was approximately 15 years old. She was distantly related to Nandkumar. She has stated in her evidence that she used to go to fetch water and at that time, the accused used to see her and the accused had sent a love letter to her through deceased Nandkumar. She kept that love letter in the school bag.
However, she did not give reply to the letter. Nandkumar used to ask her about the reply because he was harassed by the appellant. She had not disclosed about the said letter in her house or to anybody. However, she handed over that letter to the police. She has deposed that the accused used to insist to give answer through Nandkumar. Thus, evidence of Nita 8 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 evinces that Nandkumar was used not only as a carrier of the love letter but also as a messenger of the appellant accused. As the appellant did not receive any reply from Nita, he was frustrated and he used to pressurise Nandkumar to go and get reply. The submissions of the learned Counsel for the appellant therefore cannot be accepted that there was no motive for the appellant accused to kill Nandkumar. Nandkumar was called on that evening by the appellant through Rahul and for bringing Nandkumar to the shop, the appellant had offered an incentive of 50ps. to Rahul. This shows that the appellant was very keen on Nandkumar's visit to him on that evening. Rahul has stated that they talked with each other and started walking towards a narrow lane.
10. The prosecution has further examined PW15 Vijay Patil, who is the most natural witness. At around 8 pm, he had been to S.T. Bus depot to meet his relatives. He was returning from S.T. Bus depot and near the house of Akaram Chougule, he saw the accused and Nandkumar proceeding towards a lane talking with each other. At 10pm, he heard that Nandkumar was missing. So he went to the house of Maruti and told people that he saw Nandkumar and appellant proceedings towards that lane. Thus, the evidence of Vijay Patil is an important circumstance to prove the role of the appellant towards the commission of offence.
11. PW18 Nita has produced the letter i.e., exhibit 39 before the court. It is a love letter written by the appellant wherein he has expressed 9 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 his love in that letter. The investigating agency has obtained specimen handwriting of the accused, which is produced before the Court (exhibit S1 to S6). PW22 Vitthal Maruti Kadam, ASI, has deposed that he has collected the envelopes of disputed hand writing and the specimen handwriting and went to Pune to the office of handwriting expert on 16.6.2003. PW24, Ravindra Kakale, handwriting expert has deposed that he had on receipt of the documents, examined the handwriting in those documents and has given his expert's opinion (exhibit 94). He has stated that the person who wrote document at exhibit 39 and the handwriting appearing on exhibit 39 is the same person who has written the handwriting appearing on exhibit 42 (S1 to S6). However, he has stated that he cannot give confirm opinion about the signature appearing on exhibit D1 (S) at exhibit 39 and the signatures of six pages (encircled portions at S1 to S6). Thus, comparing the portion of the signatures, he has opined that the handwriting in exhibit 34 and handwriting in exhibit 42 S1 to S6 is written by one and the same person.
12. It is true that science of handwriting is not a perfect science like ballistic science therefore, it is to be taken as a corroborative evidence.
So in the present case, the evidence of PW18 Nita is a substantive evidence on the point of motive and sending the love letter to her. She has also deposed about the involvement of the deceased Nandkumar in this letter by the accused. Her evidence is corroborated by the evidence of handwriting expert and thus, the prosecution has proved that the letter 10 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 (exhibit 39) was written by the appellant accused and it was sent to Nita.
There is no reason to doubt the evidence of Nita on the point of involvement of Nandkumar and the insistence on Nandkumar by the appellant for bringing reply to the letter from PW18 Nita.
13. PW15 Vijay Patil is the witness on the point of last seen together.
Thus, at 8 pm, Nandkumar was alive and at 10 pm, he did not return home and search began for him. Evidence of Maruti and PW7 and PW8 are on the point of extensive search taken by them and imaginary story told by the appellant. This part of the evidence that the appellant told them that the kidnappers have taken away Nandkumar and there was a demand for ransom confirms the role of the accused in the commission of crime.
There was no need for the appellant to create such imaginary, false story and mislead Maruti, the father of the deceased and take them to some other place in search of the deceased. The story was totally imaginary. If at all, this would have been true and the kidnappers would have been really taken away Nandkumar on that evening, then why the appellant himself did not go to Maruti and told him about such incident? Therefore, this subsequent conduct of the accused is itself is an incriminating circumstance and it proves the guilt of the accused.
14. The police have also produced missing report by examining PW20 Navnath Kumbhar. It is also one significant circumstance that the body of the deceased was found in the courtyard of the accused. The 11 / 12 ::: Downloaded on - 27/08/2013 21:09:08 ::: apeal.1159.2009 place and the spot where the body was recovered is also another circumstance, which goes against the appellant accused. PW23 Sitaram Kamble, the Investigating Officer, has deposed about the investigation and arrest of the appellant. PW16 Dr.Jivan has deposed that the appellant has conducted the postmortem and has opined that the death of the accused was because of asphyxia due to throttling. In the spot panchanama, it is mentioned that one banian was found around the neck of the deceased.
Thus, the manner in which Nandkumar was killed by none other than the appellant accused is proved by the prosecution beyond reasonable doubt.
15. Thus, we do not find any reason to interfere in the judgment and order passed by the learned Sessions Judge. Appeal is dismissed.
16. Office to communicate this order to the Appellant and the Superintendent of jail where the appellant is lodged i.e., Kolhapur Central Prison.
17. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Ms.Upadhyay who has very ably conducted the matter. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at `2,500/-.
(MRS.MRIDULA BHATKAR, J.) (MRS.V.K. TAHILRAMANI, J.) 12 / 12 ::: Downloaded on - 27/08/2013 21:09:08 :::