Bombay High Court
Baban @ Shankar Udaysing Rajput @ ... vs The State Of Maharashtra on 10 October, 2000
Equivalent citations: (2001)1BOMLR96
Author: Vishnu Sahai
Bench: Vishnu Sahai, D.S. Zoting
JUDGMENT Vishnu Sahai, J.
1. Since all these three matters arise out of the same set of facts and a common impugned Judgment, we are disposing them off by one Judgment.
2. Three persons namely Baban alias Shankar Udaysing Rajput alias Shikalgar, Anil Govind Shinde alias Shlkalgar and Mukund Govind Shinde alias Shikalgar were charged by the Joint District and Additional Sessions Judge, Sangli, in Sessions Case No. 253 of 1998 for offences punishable under section 120-B I.P.C., 302 r/w section 120-B I.P.C., 302 r/w section 34 I.P.C.. 201 r/w section 120-B I.P.C. and 201 r/w section 34 I.P.C.. In addition, Baban and Anil were charged under section 302 I.P.C., 341 r/w section 120-B I.P.C. and sections 37(1) and 135 of the Bombay Police Act. The learned Trial Judge vide his Judgment dated 15.9.1999 found all of them guilty for the offences punishable under sections 120-B I.P.C., 302 r/w section 120-B I.P.C. and 341 r/w section 120-B I.P.C., For the offence under section 302 r/w section 120-B I.P.C., he sentenced all of them to suffer imprisonment for life and to pay a fine of Rs. 10,000/-, in default to undergo two years R. I. each. However, he did not impose any separate sentence against them for the other two offences.
Criminal Appeal No. 605 of 1999 has been preferred by Baban, Anil and Mukund against the aforesaid convictions and sentences.
On 15.12.1999, a Division Bench of this Court (A. V. Savant and S. S. Parkar, JJ) while admitting the said appeal, issued a suo motu notice to the Appellants - Baban and Anil to show cause as to why their sentence of life imprisonment be not enhanced to death. Criminal suo motu Application No. 10 of 1999 arises out of the said notice.
Criminal Appeal No. 745 of 1999 was preferred by the State of Maharashtra under section 377 Cr. P. C. with a prayer that the sentence of the respondents - Baban, Anil and Mukund be enhanced. A Division Bench of this Court (P. S. Patankar and Dr. (Smt.) Pratibha Upasani, JJ) vide their order dated 14.2.2000 admitted the said appeal vis-a-vis the respondents Baban and Anil but, rejected it against the respondent Mukund.
3. The prosecution case in brief, as emerging from the evidence of Dr. Ravikant Deshpande P.W. 1, Mrs. Archana Deshpande P.W. 2, Sumedha Deshpande P.W. 3. Tejubhai Lalwani P.W. 6. Dilip Shelke P.W. 7 Head Constable Mandale P.W. 12 and Ragunath Patil P.W. 8, runs as under :-
The deceased Amruta Deshpande, who at the time of the incident was aged about 18 years, was the daughter of Dr. Ravikant Deshpande P.W. 1 and Mrs. Archana Deshpande P.W. 2. At the time of the incident, she was studying in B. A. First year in Mathubhai Garware College, Sangli. Sumedha Deshpande P.W. 3, was not only her friend but, of her elder sister Reshma's also. The appellant Baban Shikalgar was residing in front of the house of Dr. Ravikant Deshpande in Sangli.
From the evidence of Mrs. Archana Deshpande, it transpires that about six months prior to the incident, the deceased Amruta had told her that while she was at high school, the appellant-Baban had given her a finger ring: had suggested to her that he would celebrate her birthday on the banks of river : and had brought a cake and other things for the celebration of her birthday. Archana Deshpande's evidence shows that Amruta had told her that Baban had taken her photographs while cutting the cake etc. Her evidence further shows that Baban had started harassing her and was insisting her to marry him. Her evidence shows that Amruta had told him that she would not marry him, whereupon Baban told her that she should maintain relations with him as a wife.
Archana Deshpande's evidence further shows that Amruta had told her that the appellant had threatened her that he would not allow her to marry anyone and in case she did, he would see that she became a widow.
The evidence of Dr. Ravikant Deshpande shows that about a fortnight prior to the incident, the appellant -Baban's father and brother came to his dispensary in Sangliwadi, around 9 p.m. and told him that Baban was incensed : there was danger to Amruta from him : and consequently, he should not leave her alone. Dr. Deshpande told them that he would inform the police but, they asked him not to make a complaint to the police and would take care. He believed their assurance and did not lodge an FIR.
On 2.9.1998. Sumedha Deshpande P.W. 3, at about 2 to 2.30 p.m. came to the house of Amruta. At about 6.30 p.m. Amruta proceeded with her for her house, because she had to collect mehndi cone. At that time, Amruta was wearing a shirt and jeans. While she was carrying a cycle. Sumedha Deshpande was on foot. The evidence of Sumedha Deshpande shows that Amruta remained with her for about half an hour and during the course of conversation, when she asked her whether the appellant Baban was still harassing her, she started crying. She told her that Baban was still having her photographs and was black-mailing her and she felt like committing suicide. Sumedha's evidence shows that she tried to pacify and encourage her. Her evidence shows that thereafter, Amruta left.
The evidence of Tejubhai Lalwani P.W. 6 shows that on 2.9.1998 at about 7 to 7.15 p.m. he left his hotel for taking the usual walk on Shastri Chowk, Haripur Road. At a distance of about 150 feet, from Shastri Chowk. he saw a mandap. When he was about 80 to 100 feet away from the mandap, he saw in tube light and in the light of lamps burning in the mandap a girl proceeding on a bicycle on Haripur Road.
The evidence of Dilip Shelke P.W. 7 shows that on 2.9.1998, he and his wife had been invited by his cousin brother for dinner at Haripur. As his wife was not well, he at about 6.45 p.m. proceeded for the said dinner on his scooter. His evidence shows that at about 7 to 7.15 p.m. he reached Shastri Chowk : saw the appellants; and stopped his scooter and starting talking with them. He asked Baban where his father was. At that juncture, the appellant - Mukund said "Baban, our Shikar is going". On this, he asked Mukund what was the meaning of "Shikar challi haye." Mukund said nothing. The evidence of Tejubhai Lalwani shows that at that juncture, he also saw a girl wearing a shirt and Jeans going on a bicycle. She was being chased by two persons. His evidence shows that both of them took out knives which they had concealed and started assaulting her. She was crying 'mother save me'. He ran some distance to save her. He also heard somebody giving a call, hearing which the said two persons left the girl and ran away in the opposite direction. He stated that a boy also ran after them.
The evidence of Dilip Shetke shows that after Mukund did not reply to his question "Shikar challi haye" he along with Mukund went to a panpatti shop by the side of the road and while the order for paan was being given, he heard shrieks "Aeyaga". The appellant-Mukund who was with him ran in the opposite direction. He asked Mukund don't run, come here, but Mukund ran towards the S.T. Stand. He saw the appellants-Baban and Anil assaulting the girl, who was going on a bicycle with knives on chest and abdomen. He asked Baban not to assault the girl, whereupon both Baban and Anil ran away.
The evidence of Tejubhai Lalwani and Dilip Shelke shows that after the assailants had run away, they came near the girl and saw her lying in an injured condition. Their evidence further shows that when they shouted for help, people in the vicinity closed their shops and doors of their houses and nobody came forward to help.
The evidence of Dilip Shelke shows that he became frightened and thought that he may be implicated. He started having pain in chest and returned home. After two to three days, when he became better, he went and told the police what he had witnessed.
The evidence of Tejubhai Lalwani shows that he straight away went to the STD booth which was situated nearby, and made a telephone call to the Police Station.
The evidence of Head Constable Mandale P.W. 12 shows that on 2.9.1998 at about 7.40 p.m. while he was Thane Amaldar at Sangli City Police Station, Tejubhai Lalwani telephoned and informed him that two young boys had struck a girl with knives and she was lying in a pool of blood near Shastri Chowk and Shastri Udyan. When he asked Tejubhai Lalwani. the description of the boys, he furnished the same. He recorded the said information in the station diary of serial No. 20. He immediately communicated the said information to inspector Bhosale P.W. 20, who was at his quarters at that time.
The evidence of Raghunath Patil P.W. 8 shows that on 2.9.1998 at 7.15 to 7.30 p.m. while he was going on his scooter towards the side of his house, situate on Haripur Road and had reached Shastri Chowk, he noticed in tube- light and in the light of lamps, a girl lying there. He Identified her as Dr. Deshpande's daughter because Dr. Deshpande was known to him. He immediately went to Dr. Deshpande's house and informed his wife Archana Deshpande and after bringing her on his scooter on the place of the incident and leaving her there he came to Preetam Hotel; parked his scooter, took his car: and immediately went to Dr. Deshpande's dispensary and informed him. On his car, he brought Dr. Deshpande to Shastri Chowk.
Evidence of Raghunath Patil and Dr. Deshpande P.W. 1 shows that on reaching Shastri Chowk, they learnt that the injured girl had been taken to the Civil Hospital, Sangli and hence proceeded there.
The evidence of Dr. Ravikant Deshpande shows that at Civil Hospital, Sangli, he was shown the corpse of his daughter.
4. The evidence of Dr. Deshpande shows that at Civil Hospital, Sangli. at 8.15 p.m. the police recorded his FIR.
The evidence of P.S.I. Bhosale P.W. 20 shows that it was he who had recorded the FIR of Dr. Ravikant Deshpande and after recording it in his hand-writing and getting it signed by Dr. Deshpande, and counter signing it himself, he sent it for registration to the Police Station, through Constable Suryavanshi.
The evidence of P.S.I. Natha Aiwale P.W. 13 shows that on 2.9.1998, at 8.15 p.m. he had taken over the charge of station diary of Sangli City Police Station from PHC Mandale P.W. 12. At that time, Constable Suryavanshi brought the FIR. He on the basis of the FIR registered C. R. No. 138 of 1998 under section 302 I.P.C.
5. The investigation was conducted in the usual manner by P. I. Bhosale P.W. 20. The same night he reached the place of the incident and inspected it with the help of Tejubhai Lalwani P.W. 6. In the presence of public pancha, Sachidanand Kadam P.W. 15, he prepared the spot panchnama and from the place of the incident seized a pair of chappals, a cover of knife, blood stained and plain earth. He returned the bicycle to the informant Dr. Deshpande. He went to the houses situated by the side of the road, knocked them but no one opened them. He directed API Godbole P,W. 18 to record the statements of the paan shop owners and owners of the small tea stalls situated in the vicinity of the place of incident but, he also reported to him that no one was forthcoming to give any information regarding the incident.
On 4.9.1998, while he was present in the Police Station, he received an information that the appellant-Baban was hiding in a pipe line near village Mhaishal. On the said information the same day at 5.30 p.m. he apprehended the appellant-Baban at Mhaishal. On 6.9.1998, the appellant-Anil Shinde was arrested and brought before him. On 7.9.1998. the appellant-Mukund Shinde was arrested and produced before him.
On 9.9.1998, during the course of interrogation, the appellant-Baban expressed his willingness to show the place where he had concealed the knife. Consequently, he sent for two public panchas, out of whom one namely Narendra Yargattikar has been examined as P.W. 17. He recorded Baban's willingness in his presence in a panchnama. Thereafter, he along with the police personnel, public panchas and Baban proceeded on a jeep. The appellant-Baban directed the jeep to be taken near the S. T. Stand, Sangli. He then directed the jeep to be taken on Haripur Road. After going for some distance, on the said road, he asked the jeep driver to stop the jeep. Thereafter, Baban took them to a house situated in a lane. He pointed out to one room in a corner which was locked- He called his mother who handed over the key to him. He thereafter, opened the lock of the room. In the south of the door of the room, a box was kept. He opened the said box; removed the clothes therefrom; and took out the blood stained knife. The said recovery was made under a panchnama. After the recovery had been effected. P. I. Bhosale along with the appellant-Baban and public panchas, came back to the Police Station.
The evidence of P. I. Bhosale further shows that after the recovery had been effected from the appellant-Baban, same day the appellant-Anil Shinde expressed his willingness to get the knife recovered. Consequently, he sent for the public panchas out of whom one namely Narendra Yargattikar has been examined as P.W. 17. In his presence, he recorded his willingness in a panchnama. Thereafter, in a police jeep, he along with the public panchas and the appellant Anil Shinde proceeded. The appellant asked the jeep to be taken to Dr. Ambedkar Road. After reaching Shri Hair Dressers on Dr. Ambedkar Road, the appellant-Anil asked the driver to stop the jeep on left side. He thereafter, took them to a room. An old lady, who according to him was his grand-mother, was staying in the room. He pulled one iron bed, stood on it, from the loft of the room took out a bundle of clothes and therefrom took out a blood stained knife. The said recovery was made under panchnama. Thereafter, P. I. Bhosale along with the appellant-Anil and the panchas came back to the Police Station.
The evidence of P. I. Bhosale shows that the same day the appellant-Mukund Shinde expressed his willingness to show the place where he had kept the clothes belonging to the appellants-Baban and Anil. Consequently, he sent for two public panchas, out of whom one namely Narendra Yargattikar has been examined as P.W. 17. In his presence, he recorded the willingness of the appellant-Mukund Shinde. Thereafter, he. the public panchas and the appellant-Mukund Shinde proceeded in a police jeep. The driver asked the appellant-Mukund in which direction the jeep be taken. On Mukund's direction, the jeep was taken ahead Dr. Ambedkar Road. Near Samrat Vyayamshala, Mukund asked the driver to turn the jeep to the left. After going for some distance, he asked the driver to stop the jeep near one house. There was one Durgamata temple there. Mukund went to the lane situate near the temple. There was a middle-aged woman in the room, who according to Mukund was his mother. From a cupboard inside the said room, he took out a cloth bag wherein were two shirts (one a black colour and one cream colour), one jeans of blue colour and one greenish full pant. All of them were blood stained. The said clothes were seized under a panchnama. Thereafter, all of them came back to the Police Station.
During the course of investigation, on 14.11.1998, the test identification of the appellants Baban and Anil was conducted by Suresh Shindge P.W. 9, Tahsildar and Taluka Executive Magistrate. Miraj. Since the said appellants were known to Dilip Shelke P.W. 7, only Tejubhai Lalwani P.W. 6 attended their parade and identified both of them.
During the course of investigation, the identification of the knives recovered from the appellants-Baban and Anil, namely Article Nos. 10 and 11 respectively, was conducted by the Special Judicial Magistrate Baburao Jadhav P.W. 16. Tejubhai Lalwani P.W. 6 attended the test identification parade and identified the knives.
During the course of investigation. P. I. Bhosale sent the recovered articles to the Chemical Analyst.
On 15.11.1998. after completing the investigation, he submitted the charge-sheet against the appellants.
6. The autopsy on the corpse of the deceased Amruta was conducted on 2.9.1998 by Dr. Vijay Kumar Mule P.W. 14 who found on it. the following ante mortem Injuries :
" 1. Incised stab wound on left fore arm at M/3rd on ventral aspect, eliptical, oblique directed upwards and inwards. 2 x 1.5 x 4 c.m. red in colour.
2. Incised wound on left forearm on posterior aspect near elbow, elliptical, oblique, 1.5 x 0.5 x 1.5 c.m. red in colour.
3. Incised wound on left forearm, posteriorly above wrist joint, eliptical oblique. 2.5 x 1 x 1 c.m. red in colour.
4. Incised stab wound on left deltoid prominance. laterally directed inwards and downwards, eliptical vertical. 4 x 1.5 x 4 c.m, red in colour.
5. Incised wound on right forearm on ventral aspect, at M/3rd eliptical oblique, 2 x 2 x 1 c.m. red in colour.
6. Incised stab wound on left side paravertebral region, at level of T-8/ T-9 vertebral spine, eliptical oblique directed downwards and inwards, 4 x 2.5 x 6.5 c.m. red in colour.
7. Incised stab wound on lateral aspect of left side chest, in between mid axillary and posterior axillary line, in 8th and 9th inter costal space, directed downwards and inwards 3 x 1 c.m. chest and abdominal cavity deep, red in colour.
8. Incised stab wound on left side of chest, laterally 8 c.m. above the injury No. 7 in 6th and 7th intercostal space shaped, directed forwards and downwards. 3 x 2.5 chest cavity deep, red in colour.
9. Incised stab wound on left side of chest, laterally 8 c.m. above the injury No. 8 in between anterior and mid axillary line, directed forward and upwards, eliptical oblique, 4.5 x 2 x 8.5 c.m. red in colour.
10. Incised wound in 6th inter costal space, below left breast, lateral to mid clavicular line, eliptical vertical directed upwards and backwards 2 x 1 x 3 c.m. red in colour.
11. Incised wound on medial part of circumference of arota of left breast vertical. 1 x 0.5 x 0.25 c.m. red in colour.
12. Incised stab wound in right parasternal region, below right breast eliptical oblique in 7th inter costal space, directed upwards and medially 2.5 x 1 c.m. x chest cavity deep, red in colour.
13. Incised stab wound at right side IInd inter costal space, parasternal region, eliptical oblique, 2.5 x 1 c.m. x chest cavity deep directed inwards and downwards, red in colour.
14. Incised stab wound on right side in mid clavicular line, 1 c.m. below right clavicle eliptical vertical, 2.5 x 1 c.m. x pertoral muscle deep, directed downwards and outwards red in colour.
15. Incised stab wound in epigastric region, 9 c.m. above umbilicus, eliptical, oblique, directed upwards and outwards 2.5 x 1 c.m. x abdominal cavity deep, red in colour.
16. Incised wound on right side chest, on subcostal margin and 1 c.m. above the injury No. 15, 1 x 0.5 x 1 c.m. eliptical oblique, red in colour.
17. Incised wound on right side chest, 1.5 c.m. above the injury No. 16 vertical 0.5 x 0.25 c.m. red in colour.
18. Incised wound on left thigh antero laterally at U/3rd verticte 1.5 x 1 x 0.5 c.m. red in colour.
19. Incised wound in osterior aspect of left thigh, at gluteal fold eliptical vertical 5.5 x 1.5 x 1 c.m. red in colour.
20. Abrasion on right knee on patela. 2 x 1 c.m.. oval red brown in colour."
On internal examination, Dr. Mule found :-
"Cartilage cut, anteriorly, right sub-costal margin (2) pleura cut, (3) right lung pale, tear present, on upper and lower lobe, anteriorly, corresponding injuries No. 13 and 12 (4) Left lung pale, tear present on lower lobe, corresponding to injuiry No. 8 (5) right side haerobthorax; left side hamothorax."
He also found following internal damage in the abdomen :
"(i) Peritonium fluid present, corresponding to external injury No. 15 size 15 x 1.5 c.m. in length x 5 c.m. breadth.
(ii) Repro-peritonium haemotama, around left kidney present, haemoperotinium present.
(iii) Stomach :- Contents of stomach 1.50 semi solid material 15 cc, no specific smell. Haematoma in stomach present, pale, gases present at places in loops of intestines.
Liver :- Tear present, on right lobe anteriorly, corresponding to injury No. 15, 3 c.m. in length x 1 c.m., deep and 0.25 breadth.
Spline :- Tear on superior pole, corresponding to injury No. 7 c.m. in length and 0.5 c.m. deep and 0.25 c.m. breadth.
Left kidney :- Tear at lower pole, 1 c.m. in length x 0.5 c.m. in breadth, corresponding to injury No. 6 blood clots present."
In his substantive evidence. Dr. Mule stated that the said injuries, excepting injury No. 20 which was possible due to fall on road, could be caused by article No. 10 (knife recovered from the appellant-Baban) and article No. 11 (knife recovered from the appellant-Anil) Dr. Mule also stated that the ante mortem injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death.
7. The case was committed to the Court of Sessions in the usual manner where the appellants were charged in the manner stated in para 2. above. They pleaded not guilty to the charges and claimed to be tried.
During trial, the prosecution examined 20 witnesses. We may straight away mention that the evidence adduced by the prosecution against the appellants can be broadly classified under two heads :-
(a) Ocular account furnished by Tejubhai Lalwani P.W. 6 and Dilip Shelke P.W. 7;
(b) Circumstantial :-
(i) recovery of blood stained knife on the pointing out of the appellants-Baban and Anil, deposed to by P. I. Bhosale P.W. 20 and public panch Narendra Yargattikar P.W. 17; and
(ii) recovery of blood stained clothes of the appellants- Baban and Anil, on the pointing out of appellant-Mukund, deposed to by P. I. Bhosale P.W. 20 and Narendra Yargattikar P.W. 17.
The defence of the appellants was of denial. They examined two witnesses namely Sudam Jadhav, DW 1 Vice Principal, (Junior College) of Willingdon College wherein the deceased had studied and Baburao Mali DW 2 who had taught Psychology and history to the deceased in Willingdon College. The former was examined to produce the answer books of the deceased and the latter was examined to produce the scripts given by the deceased in tutorial examination. The two were examined to prove that the handwriting in them and the letters on record was the same. According to the defence, the letters on record were written by the deceased to appellant Baban.
The learned Trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in para 2, above. As mentioned in the said para, the appellants have challenged their said convictions and sentences by preferring Criminal Appeal No. 605 of 1999. As mentioned therein, while admitting Criminal Appeal No. 605 of 1999, a Division Bench of this Court issued a suo motu notice of enhancement to the appellants- Baban and Anil to show cause why their sentence be not enhanced to death and Criminal Suo motu Application No. 10 of 1999 arises out of the said notice. As mentioned therein. Criminal Appeal No. 745 of 1999 has been preferred by the State of Maharashtra for the enhancement of the sentence awarded to the appellants. As mentioned in the said para, a Division Bench of this Court admitted the said appeal only vis-à-vis the respondents-Baban and Anil and dismissed it vis-à-vis the respondent Mukund Govind Shinde @ Shikalgar.
8. We have heard learned counsel for the parties and meticulously perused the entire record. After the utmost deliberation, reflection and circumspection, we have reached the conclusion that Criminal Suo motu Application No. 10 of 1999 and Criminal Appeal No. 745 of 1999 deserve to be rejected and Criminal Appeal No. 605 of 1999 merits to be partly allowed. In our view, the learned Trial Judge committed a grievous error in convicting the appellant-Mukund Govind Shinde @ Shikalgar on all the three counts, namely under sections 120-B I.P.C., 302 r/w 120-B I.P.C., and 341 r/w 120-B I.P.C., We also feel that the learned Trial Judge erred in convicting the appellants Baban and Anil for offences punishable under sections 120-B I.P.C. and 341 r/w 120-B I.P.C.. In our view, the learned Trial Judge also erred in convicting them under section 302 r/w 120-B I.P.C., and instead should have convicted them for the offence under section 302 r/w 34 I.P.C..
9. As we have mentioned earlier, the evidence against the appellants can be classified under a dual head namely :-
(a) ocular account furnished by Tejubhai Lalwani P.W. 6 and Dilip Shelke P.W. 7; and
(b) circumstantial evidence :-
(i) recovery of blood stained knife on the pointing out of the appellants-Baban and Anil, deposed to by Narendra Yargattikar P.W. 17 and P. I. Bhosale P.W. 20; and
(ii) recovery of blood stained clothes of the appellants Baban and Anil, recovered on the pointed out of the appellant-Mukund, deposed to by Narendra Yargattikar P.W. 17 and P. I. Bhosale P.W. 20.
We may also mention that in addition to the said evidence, there is the evidence of Badshah Syed P.W. 5 from whose shop, the appellants purchased article No. 10 (knife used by the appellant-Baban).
10. We begin with the ocular account. We take no bones in observing that since we have set out the prosecution story in para 3 of our Judgment primarily on the basis of the recitals contained in the ocular account furnished by Tejubhai Lalwani P.W. 6 and Dilip Shelke P.W. 7, we do not intend graphically reiterating the details.
The evidence of Tejubhai Lalwani P.W. 6 shows that on 2.9.1998 at about 7/7.15 p.m. while he had left his hotel, for a walk to Shastri Chowk, Haripur Road and was proceeding from Shastri Chowk to Haripur Road, and was about 80 to 100 feet away from a mandap, he saw a girl proceeding on a cycle. He thereafter saw two persons, who were not know to him, assaulting her with knives in tube light and in the light of lamps, burning in the mandap. His evidence further shows that after assaulting the deceased, the assailants ran away. He thereafter, went to a STD booth closeby and informed the police of Sangli City Police Station. He also stated that at the test identification, he identified two of them (Baban and Anil). In the Trial Court also he identified them (Baban and Anil).
We have gone through his evidence and we have no reservations in observing that he must have been present on the place of the incident and seen the incident. As we have mentioned earlier, since he was not known to the witnesses, the appellants-Baban and Anil were put up for test identification. At the test parade, on 27.9.1998, he correctly identified them. It is pertinent to mention that since there was tube light and light of lamps burning in mandap situated about 70 to 80 feet away from the place where deceased was being assaulted, he must have had no difficulty in recognising their features. It is significant to mention that the manner of assault attributed by him to the unknown assailants (Baban and Anil) is corrobrated by the medical evidence inasmuch as the Autopsy Surgeon Dr. Mule P.W. 15 found as many as 20 injuries on the corpse of the deceased, 19 of which in his opinion could be caused by the knives shown to him namely article No. 10 (used by Baban) and article No. 11 (used by Anil).
It is pertinent to mention that in his examination-in-chief the Autopsy Surgeon, Dr. Mule, was shown the said knives and stated that the injuries of the deceased could be caused by them. We make no bones in observing that we concur with the opinion of the Autopsy Surgeon because. 19 of the 20 injuries sustained by the deceased were either incised wounds or incised stab wounds and it is common knowledge that injuries of the said nature can be caused by knives.
Apart from the medical evidence, the circumstance which lends a very strong assurance to the claim of Tejubhai Lalwani of having seen the incident is his act of telephoning the Sangli City Police Station from a STD booth nearby, immediately after the incident.
In this connection, it would be pertinent to refer to the evidence of PHC Dilip Mandale P.W. 12 who stated that on 2.9.1999 at 7.40 p.m. he received a telephonic call from Tejubhai Lalwani P.W. 6 to the effect that two young boys had struck a girl with Knives. H. C. Mandale also stated that in the telephonic message furnished to him by Tejubhai Lalwani, there was description of the assailants. It is pertinent to mention that vide station diary entry No. 20 at 7.40 p.m. (dated 2.9.1998) the said information has been entered. In our view, this circumstance goes a long way to provide credence to the claim of this witness of having seen the incident.
It is also pertinent to mention that this witness is a man of status who owned a hotel, had a ice factory, workshop and cultivated some land. He nursed no illwill or grudge against the appellants Baban and Anil. We feel that a person like him who had had a standing in the society, would not have falsely identified the appellants-Baban and Anil at the test parade and in Court.
We make no bones in observing that we find no merit in Mr. Ingavale's submission that no value can be attached to his identification of the appellants Baban and Anil because, in his cross-examination. Suresh Shindge, Taluka Executive Magistrate, who had conducted the identification, admitted that he had not mentioned in the identification memo that he asked him whether he had seen the accused between 2.9.1998 and the date when the identification parade was held. It is pertinent to mention that Magistrate emphatically denied the defence suggestion that since Tejubhai Lalwani had seen the accused prior to the test parade, he had deliberately omitted mentioning this fact in the identification memo. In our view, merely because in the identification memo, there is no mention that he had made the said querry, from Tejubhai Lalwani P.W. 6, would be no ground to reject Tejubhai Lalwani's identification of the appellants-Baban and Anil.
11. In our view, the evidence of Tejubhai Lalwani inspires confidence and is itself sufficient to fix the involvement of appellants Baban and Anil.
12. We are fortunate that we have plurality of ocular account in the instant case, in the form of ocular account furnished by Dilip Shelke P.W. 7. Since in para 3, above, we have set out the prosecution story primarily on the basis of the recitals contained in his evidence, we are not graphically entering into details emerging from his account. He stated that on 2.9.1998, while he was on his way for dinner at the house of his cousin in Haripur, and at about 7 to 7.15 p.m. had reached Shastri Chowk; he saw the appellants. He stated that at that juncture, Mukund said that "Baban our shikar is going" and when he asked Mukund what was the meaning of "Shikar challi haye" he did not given any reply. He stated that thereafter, he saw the appellants Anil and Baban assaulting the deceased with knives in the region of chest and abdomen, in tube light and in that of lamps burning in the Ganpati mandal.
We have gone through the evidence of Dilip Shelke P.W. 7 and we find it to be broadly reliable. It is pertinent to mention that the manner of assault as furnished by him. namely of the two appellants-Baban and Anil assaulting the deceased with knives is corroborated by the evidence of the Autopsy Surgeon- How it is corroborated, we have dealt with in relation to Tejubhai Lalwani P.W. 6.
Mr. Shekhar Ingavale, learned counsel for the appellants strenuously urged that for three reasons it is not safe to accept his evidence.
Firstly, because although the incident took place on 2.9.1998, he was interrogated by the investigating Officer on 5.9.1999 and no plausible explanation has been furnished by the prosecution for his belated interrogation under section 161 Cr. P. C. We regret we do not find much merit in this submission. The reason for the belated interrogation has been furnished by this witness in his examination-in-chief, in para 6. Therein he has stated that since nobody came to the spot, he became frightened and also became frightened on account of the arrival of the police. He further stated that after seeing the incident, he started suffering pain in chest and his palpitation increased. Hence, he went home and took rest for 2/3 days and then after showing himself to a doctor, he went to the Police Station where he was interrogated.
It is pertinent to mention that in cross-examination (in para 13) he was questioned :-
Q : Why did you apprehend that you might be charged for striking a girl?
A : In the past, once such thing had happened in my case and, therefore I became frightened.
For the said reasons, the first criticism levelled by Mr. Ingavale against this witness is devoid of substance.
Secondly, Mr. Ingavale contended that in his cross-examination (in para 12) Dilip Shelke admitted that till his statement was recorded under section 161 Cr. P. C. he did not speak about the incident to anyone. It is true that non-disclosure of a incident by a witness to others has often been construed by the Courts as a circumstance suggesting that the witness did not see the incident but there can be no hard and fast rule, having universal application, that in each and every case, where there is non-disclosure the irresistible inference would be that the witness in question did not see the incident. In the instant case, the reasons for his belated interrogation, which we have furnished above, appear to be the reasons for his not disclosing the incident, to anyone. At any rate, in our view, the said circumstance, on the facts of this case, is not so lethal as to completely destroy his credibility.
Thirdly, Mr. Ingavale contended that from his cross-examination, it appears that he was prosecuted in a number of cases and consequently, the probability of his deposing at the instance of the police, cannot be ruled out. This circumstance has to be balanced with the probability that he had no rancour or illwill against the appellants-Baban and Anil. In our view, merely because a number of cases were pending against him would be no ground to conclude that he is a got-up witness.
13. We have no reservations in observing that had the evidence of Dilip Shelke P.W. 7 been the solitary piece of evidence on which conviction of appellants-Baban and Anil was based, perhaps it may not have been prudent to confirm the same but as mentioned earlier, we have the credible ocular account furnished by Lalwani P.W. 6 and as we would see hereinafter, there is also the credible circumstantial evidence in the form of recovery of the blood stained knives on the pointing out of the said appellants.
14. We now propose dealing with the circumstantial evidence. Against the appellants-Baban and Anil, there is the evidence of recovery of blood stained knives on their pointing out. Earlier, we have mentioned the manner and the circumstances in which the said recovery took place. We do not want to over burden our Judgment by graphically re-counting all the details.
As we have seen earlier, both these appellants on 9.9.1998, in the presence of P. I. Bhosale P.W. 20 admitted that they could get the knives recovered. We have also seen that P. I. Bhosale sent for two panchas, out of whom one namely Narendra Yargattikar has been examined as P.W. 17, and in his presence recorded their willingness in panchnamas. We have also seen how in their presence, on the pointing out of the said appellants, the blood stained knives were recovered under panchnamas.
It is pertinent to mention that although Narendra Yargattikar P.W. 17 and P. I. Bhosale were subjected to extensive cross-examination but, nothing could be extracted therefrom which could impair the value to be attached to this recovery. It is also pertinent to point out that both these witnesses had no rancour or malice against these appellants and in the absence of the same, would not have foisted false recoveries against them, it is true that P. I. Bhosale is a police witness but, way back in the year 1956 in the case Aher Raja Khima v. State of Saurashtra, the Supreme Court held that the presumption that a person acts honestly equally applies to a Police Officer.
We may also mention that the said knives were sent to the Chemical Analyst who found on them human blood, bearing AB group, the blood group of the deceased. In our view, presence of blood group of the deceased on the said knives, strongly probablises the factum of assault being made with the said knives on the person of the deceased.
We may also mention that the Autopsy Surgeon Dr. Mule P.W. 14 has staled that 19 out of the 20 injuries suffered by the deceased could be caused by these knives.
15. For the said reasons, in our view, there is sufficient evidence, both ocular and circumstantial, fixing the involvement of the appellants-Baban and Anil in the crime.
16. We however, make no bones in observing that the learned Trial Judge committed a grievious mistake in convicting the appellant-Mukund Govind Shinde @ Shikalgar for the offences punishable under sections 120-B I.P.C., 302 r/w 120-B I.P.C. and 341 r/w 120-B I.P.C..
The evidence on the basis of which he found the said appellant guilty for the said offences is the ocular account furnished by Dilip Shelke P.W. 7, the evidence of Badshah Syed P.W. 5 from whose shop, this appellant along with Baban and Anil purchased a knife (article No. 10) on 1.9.1998, and recovery of blood stained clothes belonging to Baban and Anil on his pointing out on 9.9.1998.
We would first take up the ocular account furnished by Dilip Shelke P.W. 7. Shelke stated that on 2.9.1998 at 7/7.15 p.m. while he was on way for dinner at his cousin's house at Haripur, and had reached Shastri Chowk he saw Baban. Anil and Mukund. He stated that Mukund told Baban "Baban our shikar is going". It is pertinent to mention that this story of "Baban our shikar is going" saw the light of the day for the first time when this witness was interrogated on 5.9.1998 under section 161 Cr. P. C. It is also pertinent to mention that the other eye-witness of the incident Tejubhai Lalwani P.W. 6 makes no mention of it.
Mr. Mhaispurkar, learned Additional Public Prosecutor for the Respondent, urged that since Lalwani was about 80 to 100 feet away from this appellant. It could be that he may not have heard these words. We regret that we cannot accept this submission. 80 to 100 feet would only mean about 30 metres and a person with a normal hearing faculty would have heard from a distance of 30 metres had Mukund really uttered these words. And there is no evidence to show that Tejubhai Lalwani did not possess normal hearing faculty.
On probabilities also, we find this story of Mukund saying that "Baban our shikar is going" to be unworthy of acceptance. It can only be reconciled on the hypothesis that although the incident took place in a crowded area, Mukund was interested in inviting the attention of all those who were present there. This again does not appeal to us.
We now take up the evidence of Badshah Syed P.W. 5 We regret to observe that it is equally bad. He stated that on 1.9.1998. at 2.00 noon, the appellant Mukund along with the appellants Baban and Anil came to his shop and purchased a knife (article No. 10). He stated that same day. he left for Bombay and returned therefrom after 8 to 10 days. He further stated that on returning, from Bombay, he read report in newspapers that the murder had taken place on 2.9.1998 and therefore, it struck him that the appellants may be connected with it. Consequently, he took his wife into confidence and she advised him to go to the Police Station and disclose the fact to the police. Like a good husband and a dutiful citizen, he consequently went and disclosed the said fact at Miraj City Police Station.
It is pertinent to mention that he was cross-examind and in para 7 of his statement, he admitted that in his statement under section 161 Cr. P. C. he had not slated to the police that he had told his wife about selling of knife to the appellants or of his wife advising him to go to the Police Station. In such a factual matrix, we find it unsafe to believe that he went to the Police Station and informed the police. Apart from it, we find that his statement under section 161 Cr. P. C was recorded after a delay.
We now come to the last circumstance namely recovery of blood stained clothes of the appellants Baban and Anil on his pointing out. We have mentioned the circumstances in which the said recovery took place. In our view, from the said recovery it cannot be concluded that he shared the conspiracy to commit the murder of the deceased. The evidence shows that appellant-Baban is his maternal uncle and appellant-Anil is his younger brother and if in the said factual matrix, he kept the blood stained clothes, it would be too far-fetched to conclude that he was a conspirator. At the highest, this may create some sort of a suspicion against him, but as Gajendragadkar, J (as he then was) observed in para 9 of the oft-quoted case of Sarwan Singh v. State of Punjab. "Suspicions howsoever strong, do not take the place of proof.
17. For the said reasons, in our view, the learned Trial Judge committed a gross error in convicting appellant Mukund Govind Shinde alias Shikalgar on all the three counts.
18. We also feel that the learned Trial Judge erred in convicting the appellants-Baban and Anil for the offence under section 120-B. 302 r/w 120-B and 341 r/w 120-B I.P.C.
In the instant case, so far as the said appellants are concerned, the evidence in respect of conspiracy has been furnished by Dilip Shelke P.W. 7 and Badshah Syed P.W. 5.
Dilip Shelke's evidence shows that before the assault on the deceased was launched, the appellant-Mukund Govind Shinde @ Shikalgar told : "Baban our shikar is going".
The evidence of Badshah Syed P.W. 5 shows that on 1.9.1998 at about 2 p.m. (a day before the incident) all the three appellants came to his shop. Baban stated that he wanted to purchase a knife and when he (Badshah Syed) asked him the reason for purchasing it, Mukund replied that they had started a poultry farm and therefore, required a knife. After purchasing the knife all three of them went away.
Earlier, we have mentioned the reasons as to why the said evidence does not inspire confidence.
In the circumstances, the said appellants have to be acquitted for the offences under section 120-B I.P.C. and 341 r/w 120-B I.P.C. and also for that under section 302 r/w 120-B I.P.C. but, in place of the offence, under section 302 r/w 120-B I.P.C., we have no doubt in our minds that they would be guilty for the offence punishable under section 302 r/w 34 I.P.C..
It is pertinent to mention that if we do this, no prejudice would be caused to them because an alternative charge section 302 r/w 34 I.P.C. was framed against them.
19. We now take up Criminal Suo motu Application No. 10 of 1999 and Criminal Appeal No. 745 of 1999. The question to be decided in both of them Is whether the sentence of respondents Baban alias Shankar Udaysing Rajput alias Shikalgar and Anil Govind Shinde alias Shikalgar deserves to be enhanced from imprisonment for life to death.
Mr. D. S. Mhaispurkar, Additional Public Prosecutor strenuously urged that considering the depraved, pre-planned and heartless manner in which these respondents caused nineteen knife injuries on the person of the deceased Amruta, in the heart of Sangli town, the sentence of imprisonment for life awarded to them by the Trial Court is grossly inadequate and warrants to be enhanced to death. He urged that the circumstance that the deceased Amruta did not reciprocate the love of respondent Baban was no justification for the said respondent and his nephew respondent Anil to have murdered her in such a brutal manner. He contended that the brutality is per se evident not only from the number of injuries, but also by the massive internal damage which accompanied them.
To lend force to his submission, Mr. Mhaispurkar invited our attention to paragraph 200 of the decision of the Supreme Court in Bachan Singh v. State of Punjab, wherein the Supreme Court in the context of aggravating circumstance, warranting the imposition of death sentence, observed thus:-
"Aggravating circumstances : A Court may, however in the following cases impose the penalty of death in its discretion :
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity or .............."
Mr. Mhaispurkar closed his submission with the passionate plea that a death sentence is necessary in the instant case to curb the recurrence of such murders which are on the rise these days. He contended that if the said sentence is not imposed, there would be a spurt in such crimes and it would be impossible for young girls to move about.
We have reflected over Mr. Mhaispurkar's submission and regret that it is untenable in this case for reasons stated hereinafter :-
There is a distinction in the angle of approach of Courts in a case wherein death sentence has been imposed by the Trial Court and the question before the Appellate Court is whether should it be reduced to life imprisonment and a case wherein the position is converse, as in the instant case.
We make no bones in observing that what weighs with the Court in the former situation is whether there are mitigating circumstances warranting the reduction of the sentence and in the latter whether the sentence awarded by the Trial Court can be stigmatised as being grossly inadequate justifying its enhancement.
The difference in perception on the part of the Court in the latter situation is because the question of sentence is primarily a question of discretion of the sentencing Court. In the instant case, which is a case under section 302 I.P.C., the said section gives the Court the discretion to choose between two sentences, death or imprisonment for life.
We wish to emphasise that where a statute gives a discretion to a Court in the matter of sentence, the Appellate Court would only be justified in interfering with it if per se it has been erroneously exercised and the sentence imposed is grossly disproportionate to the gravity of the crime.
Our view is vindicted by the observations contained in paragraph 15 of the decision of the Supreme Court in Bedraj v. State of U. P., which are as under :-
" A question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an Appellate Court should not interfere to the detriment of an accused person except for every strong reasons which must be disclosed on the face of the Judgment; see for example the observations in Dalip Singh v. State of Punjab, (A) and - Nar Singh v. State of Uttar Pradesh, (B).
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate.
20. In the instant case, it cannot be said that the sentence of imprisonment for life imposed by the Trial Court on respondents-Baban and Anil was manifestly inadequate and it capriciously exercised the discretion in awarding them the said sentence.
We dare say that on the facts of this case, the said sentence was the only right and proper sentence. The evidence shows that initially there was a passionate affair between respondent Baban and the deceased Amruta. What appears is that later on Amruta changed her mind and came out of it but, the respondent Baban continued to be blind-folded by her love. We say this for two reasons.
Firstly, because on the Trial-Court record, there are some photos of Baban and Amruta which show them to be very intimate : like Amruta putting a piece of cake in Baban's mouth or Baban putting a ring in her finger. It is pertinent to mention that when Amruta's father Dr. Ravikant Deshpande was shown photos of Amruta and Baban, during cross-examination, he admitted they were theirs.
Apart from this, the Investigating Officer P. I. Bhosale in his cross-examination admitted that on 5.9.1998. he took Baban's remand because love letters written to him by Amruta were to be recovered from him.
Secondly, the evidence of Dr. Ravikant Deshpande shows that about fifteen days prior to the incident, Baban's father came to him and told him that Baban was obsessed with her and he should take care of her.
In our Judgment, since Amruta did not continue to reciprocate Baban's love despite having a passionate affair with him, Baban could not stomach this rejection and consequently, along with his nephew Anil murdered her. We dare say that the severity of the attack was proportionate to Baban's shock of Amruta spurning his love.
We feel that it would be pertinent to refer to two decisions of the Supreme Court namely those in Ediga Anamma, v. State of Andhra Pradesh, and Bachan Singh v. State of Punjab.
A perusual of para 26 of the former decision and paras 204 and 205 of the latter decision would show that if a offender suffers from psychic compulsion or the offence was committed under the influence of extreme mental or emotional disturbance, or the offenders was mentally defective and could not comprehened the criminality of his act, the said grounds are good grounds for reducing the sentence to imprisonment for life.
In Ediga Anamma's case in para 26 V. K. Krishna Iyer, J. observed thus:-
" .................... Where the offender suffers from socio-economic psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible ........................."
A perusal of para 204 of Bachan Singh's case shows that the two of the mitigating circumstances warranting the imposition of the sentence of life imprisonment are detailed in categories (1) and (7).
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
A perusal of para 205 of the Judgment in Bachan Singh's case would show that the Supreme Court observed that the said mitigating circumstances were undoubtedly relevant circumstances and must be given great weight in the determination of sentence."
If the said grounds can be good grounds for reducing a death sentence to imprisonment for life, in our view, there can be no question, on the face of evidence referred to earlier of enhancing the sentence of respondents Baban and Anil from imprisonment for life to death.
Apart from this, it is well settled that death sentence should only be awarded in "rarest of rare" cases, as observed by the Supreme Court in para 32 of the magnum onus on considerations to be borne in mind by the Court in deciding whether death sentence should be awarded namely the decision in Machhi Singh and Ors. v. State of Punjab. The said decision, we dare say has been followed consistently by the Supreme Court and is good law even today. If the reasons mentioned by us are to be borne in mind, the instant case cannot be put in the category of "rarest of rare" cases. It is true that on the one hand, murder of Amruta was committed after previous planning and involves extreme brutality and exceptional depravity warranting the imposition of death sentence in terms of Bachan Singh's case, as urged by Mr. Mhaispurkar, but it is equally true on the other hand that it was the consequence of psychic compulsion (See para 26 of supra) and emotional distress and a mentally defective condition (See paras 204 and 205 of Bachan Singh's case supra) and the said considerations in the said decisions have been held to be the mitigating circumstances in the matter of sentence, warranting the imposition of sentence of life imprisonment.
In such a situation, as the Supreme Court observed in para 39 or Machhi Singh's case, the Court should address itself to the question :
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
In other words, if the aggravating circumstances outweigh the mitigating circumstances, the Court would be justified in imposing a death sentence but in the converse situation not.
In the instant case, for reasons referred to earlier, the mitigating circumstances clearly outweigh the aggravating circumstances and the instant case does not fall in the category of "rarest of rare" cases. This is alt the more so because, the question here is not of commutation of a sentence of death to a sentence of life imprisonment but of enhancing the sentence of life imprisonment to death. And as we observed earlier, the angle of approach in the two situations is different.
22. For the said reasons, Criminal Suo motu Application No. 10 of 1999 and Criminal Appeal No. 745 of 1999 would have to be dismissed.
23. IN THE RESULT :
(A) Criminal Appeal No. 605 of 1999 is partly allowed.
We set aside the conviction and sentence of the appellant-Mukund Govind Shinde alias Shikalgar on all the counts namely sections 120-B I.P.C., 302 r/w 120 B I.P.C. and 341 r/w 120-B I.P.C. and acquit him thereunder. He is in jail and shall be released forthwith unless wanted in some other case. In case he has paid the fine, it shall stand refunded to him.
We also set aside the conviction and sentence of the appellants-Baban alias Shankar Udaysingh Rajput alias Shikalgar and Anil Govind Shinde alias Shikalgar for the offences under sections 120-B and 341 r/w 120-B I.P.C. and acquit them thereunder. We further set aside their convictions and sentences for the offence under section 302 r/w 120 B I.P.C. and acquit them thereunder, but we, convict them on the alternate charge under section 302 r/w 34 I.P.C. and sentence them to undergo imprisonment for life and pay a fine of Rs. 10,000/- in default to undergo two years R. I. each thereunder. In case they have paid the fine, for the offence under section 302 r/w 120 B I.P.C., it shall stand refunded to them.
The appellants-Baban alias Shankar Udaysingh Rajput alias Shikalgar and Anil Govind Shinde alias Shikalgar are in jail and shall serve out their sentence.
(B) Criminal Suo motu Application No. 10 of 1999 is dismissed and the suo motu notice for enhancement of sentence issued by this Court to the respondents -Baban alias Shankar Udaysingh Rajput alias Shikalgar and Anil Govind Shinde alias Shikalgar to show cause as to why their sentences should not be enhanced to death is discharged.
(C) Criminal Appeal No. 745 of 1999 preferred by the State for enhancement of sentence of the respondents-Baban alias Shankar Udaysingh Rajput alias Shikalgar and Anil Govind Shinde alias Shikalgar is dismissed.
Certified copy expedited.