Bombay High Court
State Of Maharashtra. vs Sandeep Sonu Maingade. on 28 April, 2011
Author: B.H.Marlapalle
Bench: B.H. Marlapalle, A.M. Thipsay
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL CONFIRMATION CASE NO.3 OF 2010
IN
SESSIONS CASE NO.365 OF 2008
State of Maharashtra. )
At the instance of Santacruz )
Police Station vide there )
C.R. No.68/2008. )..Applicant/Complainant
-Versus-
Sandeep Sonu Maingade. )
Aged 30 years, Indian Inhabitant,
ig )
Occ: Service, permanent resident of )
Post Bhoke, Mathwadi, )
Taluka & District : Ratnagiri. )
Maharashtra. )..Respondent/Accused
WITH
CRIMINAL APPEAL NO.607 OF 2009
Sandeep Sonu Maingade. )
Aged 30 years, Indian Inhabitant, )
Occ: Service, permanent resident of )
Post Bhoke, Mathwadi, )
Taluka & District : Ratnagiri. )
Maharashtra. )..Appellant/Accused
-Versus-
State of Maharashtra. )
At the instance of Santacruz )
Police Station vide there )
C.R. No.68/2008. )..Respondent
...........
Mr.Y.S.Shinde, Additional Public Prosecutor, for the State.
Mr.Khan Abdul Wahab, for the accused.
..........
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CORAM : B.H.MARLAPALLE
&
A.M.THIPSAY, JJ.
th th
Date : 27 & 28
, April, 2011
.
ORAL JUDGMENT (Per B.H.Marlapalle, J):
1 This reference has been made by the learned Additional Sessions Judge for Greater Bombay under Section 366 of the Code of Criminal Procedure as the sole accused Shri Sandeep Sonu Maingade has been awarded the death sentence, on his conviction under Section 302 of the Indian Penal Code. He has also been convicted and sentenced for the offence punishable under Section 392 of the Indian Penal Code in Sessions Case No.365/2008. The said order of conviction and sentence passed on 06.05.2009 has been challenged by the accused in Criminal Appeal No.607/2009 filed under Section 374(2) of the Code of Criminal Procedure.
2 As per the prosecution case, PW-1 Niraj S/o Dilip Randeri was originally residing in Flat No.602 of Garden Crest Building, West Avenue Road, Santacruz (West), Mumbai along with his parents and wife from the year 1982 onwards. However, due to some domestic reasons, PW-1 Niraj along with his wife shifted to Flat No.14, Seep Apartments, Sharli Rajan Road, Bandra (West), Mumbai-400050 and his ::: Downloaded on - 09/06/2013 17:13:34 ::: *3* conf.3.10.judgment.sxw parents continued to stay at Flat No.602 of Garden Crest. His father Dilip was of about 72 years of age and his mother Varsha was around 70 years of age. Both of them had ailments and therefore, they had engaged the accused as a domestic help. Dilip Randeri was also a partner in the business along with his son PW-1 and even though PW-1 along with his wife had shifted from Flat No.602, he or his wife used to visit his parents frequently. Duty hours of the domestic help were from 7:00 a.m. to 10 p.m.. On 16.02.2008, PW-1 received a call from his paternal aunt Smt.Jayshriben Mehta to the effect that she was trying to contact her brother Dilip on his phone but there was no response. PW-1, therefore, called on the landline telephone number (26483787) at Flat No.602 as well as the mobile phone of his mother bearing number 9870478928 but there was no response. He, therefore, reached at Flat No.302 at about 7:30 p.m. on the same day and obtained the duplicate key from the house of Mr.Devang Mehta staying in the opposite Flat No.601 and opened the main door of Flat No.602. When PW-1 entered the flat, he noticed the dead body of his mother in the kitchen and in the dry balcony attached to the kitchen he noticed the dead body of his father.
He did not find the accused in the flat. He, therefore, contacted the Police.
PW-12 Shashikant Padave, PSI who was on the night duty on 16.02.2008 received the message on his mobile phone about the incident and therefore, he reached the spot around 8:30 p.m.. He recorded the complaint of PW-1 and obtained C.R. number from the ::: Downloaded on - 09/06/2013 17:13:34 ::: *4* conf.3.10.judgment.sxw Santacruz Police Station as C.R. No.68/2008. He also obtained A.D.R. number i.e. 13/2008. He prepared the inquest-cum-spot panchanama at Exhibit-12 and sent the dead bodies for postmortem. He also collected some articles from the spot along with four curtains, one gold earing and one gold ring. He handed over the further investigation to Mr.Dhumal, PI.
Simultaneously, a message was also given to the D.C.B., CID, Unit-9, Bandra (West). PW-13 Dilip Bhosale, PSI along with other Police personnel from the said unit and panch witnesses reached village Bhoke (Muthwadi), Taluka & District Ratnagiri on 17.02.2008 at about 4:00 p.m. and arrested the accused from his house. His personal search was taken and some gold ornaments were purportedly recovered from him. He was brought back to Mumbai on 18.02.2008 and was shown to be arrested under the arrest panchnama at Exhibit-22. On the same day, the accused was taken to Flat No.602, Garden Crest building where PW-1 Niraj was present and recovery of knife was made. The postmortem reports were received by the Investigating Officer and after completion of investigation, the charge-sheet was submitted. The charge was framed on 16.10.2008, after the case was committed to the Sessions Court.
3 The prosecution examined in all 14 witnesses to prove its case, which was based on the circumstantial evidence. PW-2 Chetan Shah, PW-7 Kukkuswamy Bokanargi, PW-8 Dilip Palav and PW-9 Shivaji ::: Downloaded on - 09/06/2013 17:13:34 ::: *5* conf.3.10.judgment.sxw Bhosale were the panch witnesses. PW-3 Santosh Maingade was a friend of the accused, PW-5 Devang Mehta is neighbour and owner of Flat No. 601 in Garden Crest building and PW-6 Raju Kadam was the domestic help in the house of PW-5. By way of medical evidence, the prosecution examined PW-4 Dr.Nitin Barve, PW-10 Dr.Sharad Ruia and PW-11 Dr.Shivaji Kachare. PW-10 Dr.Sharad Ruia had examined the accused on 18.02.2008 and noticed some injuries on his person. The medical certificate at Exhibit-15 was issued on 07.03.2008 and the same was brought on record through the evidence of PW-4 Dr.Barve. Three Police Officers i.e. PW-12 Shashikant Padave, PW-13 Dilip Bhosale and PW-14 Nandkumar Dhumal were also examined. As noted earlier, PW-12 Padave had registered the FIR as per the complaint submitted by PW-1, PW-13 Dilip Bhosale had arrested the accused at his native village in Ratnagiri district and recovered some gold ornaments and other articles from his person and PW-14 Dhumal was the Investigating Officer.
4 It was submitted by Mr.Khan, the learned counsel for the defence that the prosecution had come with a concocted story against the accused and on the basis of planted evidence by the Police. He submitted that the chain of circumstances of the prosecution was never complete and it remained broken on multiple material circumstances and that the Trial Court committed grave and manifest errors in appreciating the prosecution evidence and some of the vital links in its chain of circumstances. Mr.Shinde, the learned APP, on the other hand, ::: Downloaded on - 09/06/2013 17:13:34 ::: *6* conf.3.10.judgment.sxw has supported the order of conviction and sentence in toto. He contended that the accused first killed Dilip and his wife and robbed the gold ornaments and cash from the flat and ran away to his native place.
These were sufficient circumstances to prove the complicity of the accused, as per the prosecution.
5 The prosecution in support of its case relied upon the following circumstances:-
(a) The accused was the domestic help with the deceased and he was a full-time attendant from 7:00 a.m. to 10:00 p.m. and was in employment for more than 10 years.
(b) The accused was not present in Flat No.602 on 16.02.2008 when PW-1 Niraj opened the said flat and noticed the dead bodies of his parents.
(c) The arrest of the accused from his village on 17.02.2008 and recovery of gold ornaments along with cash from his person immediately on his arrest and the ornaments were identified by PW-1 as being that of his parents.
(d) The accused had called his friend PW-3 Santosh Maingade on telephone in the night of 15.02.2008 and informed him to give message to his wife that he would not return home in the night as his master ::: Downloaded on - 09/06/2013 17:13:34 ::: *7* conf.3.10.judgment.sxw would be going to Shirdi on the next day. Thus, he had done preparations to commit the crime.
(e) Recovery of knife and pestle (metal rod) recovered from Flat No.602 on the basis of the statement made by the accused while in custody.
(f) Burn injury suffered by the accused on his right palm.
(g) The accused did not furnish any explanation regarding the said burn injury.
6PW-11 Dr.Shivaji Kachare was the Medical Officer who had conducted postmortem on both the dead bodies and signed the P.M. notes at Exhibits-28 and 29 respectively. He also placed on record before the Trial Court the Histo Pathology report and C.A. reports. The defence admitted these reports and therefore, the prosecution had discharged PW-11. As per the postmortem report at Exhibit-28, deceased Dilip died due to 100% charcoal burn and head injury (unnatural death). As per the postmortem report at Exhibit-29, deceased Varsha died due to 70% charcoal burn and head injury (unnatural death). The postmortem reports, therefore, clearly indicated that both the victims died an unnatural death and their bodies were charred.
7 Before we proceed to deal with the prosecution case against the accused, we must note that PW-11 Dr.Shivaji Kachare was discharged on admission of postmortem reports. There is no medical evidence ::: Downloaded on - 09/06/2013 17:13:34 ::: *8* conf.3.10.judgment.sxw placed on record about the probable time of death of both the victims.
There is no clear medical evidence as to whether both the victims died of skull injuries and thereafter, their bodies were set on fire to destroy the evidence or they were first assaulted and then set on fire. At the same time, it also remained mystery as to whether they were set on fire or some chemical was used to burn them.
8 PW-1 Niraj Randeri in his depositions before the Trial Court was consistent with his complaint at Exhibit-10. He stated before the Trial Court that on 10.02.2008 at about 5:30 p.m. he met his parents and collected the key of the small car and left the flat. On 11.02.2008 he again visited his parents at about 8:30 p.m.. On 14.02.2008 he had talked to his parents on cellphone at about 7:30 a.m.. But, on 15.02.2008 there was no communication between him and his parents.
While he was in his office on 16.02.2008, he received a call from his paternal aunt Smt.Jayshriben Mehta stating that she was trying to contact the deceased but there was no response. He, therefore, called on the landline telephone number 26483787 of his father as well as cell number 9870478928 of his mother, but there was no response. He, therefore, came to Flat No.602 at about 7:30 p.m. and collected the duplicate key from the house of PW-5 and opened the flat of his parents.
He was shocked to see the dead bodies of his parents in the kitchen area.
The dead bodies were burnt and he could not identify the dead body of his father as the face was completely charred. He searched for the ::: Downloaded on - 09/06/2013 17:13:34 ::: *9* conf.3.10.judgment.sxw accused in the flat as well as outside the building, but he was not found.
He dialed telephone number 100 so as to contact the Police and the Police arrived at the spot. His complaint was recorded at Exhibit-10. He also stated that he had suspected involvement of the accused in the crime.
He further stated that on 18.02.2008, when he was at Flat No.602 at about 3:00 p.m., the Police along with the accused came there and the accused took out one knife from the second drawer of the trolley of kitchen platform, which was seized by the Police in presence of the Panchas.
PW-1 Niraj further stated that on 19.02.2008 he was called at the Santacruz Police Station and when he reached there, one marriage string of gold, one pair gold ear pendulum, one diamond earring, one Rudraksha chain, one locket of Saibaba and one chain having Victoria photo were the ornaments shown to him along with cash of Rs.3500/-.
He stated that those articles were of his parents and approximate weight of marriage string, Rudraksha necklace and gold pendulum was 25 grams each.
9 PW-12 Shashikant Padave, PSI was the Police Officer on the night duty and immediately on receipt of the message from the wireless van at about 8:10 p.m. on 16.02.2008, he visited Garden Crest building and went to Flat No.602. He met PW-1 and also noticed two burnt human bodies. He was told by PW-1 that the dead bodies were of his ::: Downloaded on - 09/06/2013 17:13:34 ::: *10* conf.3.10.judgment.sxw parents. He recorded the statement of PW-1 and informed the Police Station and obtained C.R. number as 68/2008. He also did the inquest-
cum-spot panchnama. He sent the dead bodies for postmortem. He stated that he had taken the photographs of the place of incident by calling the Police Photographer. But, there is no evidence in this regard.
Panchnama at Exhibit-12 indicates that it was drawn between 22:10 to 23:40 hours on 16.02.2008. Though it has not been exhibited but there is a sketch map of Flat No.602 drawn and placed on record along with Exhibit-12. The sketch indicates that Flat No.602 was of two bedrooms, one living room and a kitchen. Both the dead bodies were lying in the kitchen and there were blood stains on the curtains in the bed room which were recovered and sent for chemical analysis.
10 In support of its case against the accused, the prosecution has relied upon the testimony of PW-3 Santosh Maingade, PW-5 Devang Mehta and PW-6 Raju Kadam in addition to the evidence of PW-1 Niraj.
PW-3 Santosh Maingade was residing at Ganesh Hanuman Galli, Gazar Bandh, Santacruz (West) and was a domestic help and was friend of the accused. He stated before the Trial Court that he was employed with one Mr.Deepak Asrani as a domestic help and landline telephone number of his employer was 26605586. He was not knowing the name of the employer of the accused though he was aware that he was employed with a Gujarathi family. His working hours were between 7:00 a.m. to the midnight. He stated before the Trial Court that on 15.02.2008 at ::: Downloaded on - 09/06/2013 17:13:34 ::: *11* conf.3.10.judgment.sxw about 9:30 p.m. the accused had talked to him on the land-line telephone number 26605586 and requested to give a message to his wife that in the night of 15th and 16th February, 2008 he would not return home as his employer was to depart to Shirdi early in the morning. PW-3 further stated that on 16.02.2008 he went to his house around 11:30 a.m. and Sunita, wife of the accused, informed him that the accused did not return and she had visited the Garden Crest building where the accused was not found. He further stated that he along with Laxman, brother of the accused, went to Garden Crest building between 4:00 to 4:30 p.m. and did not find the accused. He mad inquiries with the neighbours but no information could be gathered.
The evidence of this witness proved that the accused was occupying the home in the neighbourhood of this witness and the accused was staying with his wife as well as brother. This witness has falsified the claim of PW-1 that the accused used to sleep in the staircase of the Garden Crest building in the night after completing his duty hours. At the same time, the prosecution did not bring on record the telephone number details to corroborate the evidence of this witness.
The accused had called this witness in the night of 15.02.2008 at 9:30 p.m., he would have called from the landline telephone of his master i.e. telephone number 26483787. It was possible for the prosecution to bring on record the call details of both these telephones to corroborate the evidence of this witness that he had received telephone call in the night of 15.02.2008 at 9:30 p.m.. Thus, there is no corroboration to the ::: Downloaded on - 09/06/2013 17:13:34 ::: *12* conf.3.10.judgment.sxw evidence of this witness except his words on the circumstance that the accused had called him to pass on a message to his wife that he would not return home in the night of 15th and 16th February, 2008.
11 PW-5 Devang Mehta is a businessman and occupant of Flat No.601 of Garden Crest building. As per this witness, his flat is diagonally opposite to Flat No.602 and between the two flats main door there is a passage of 7 to 8 feet. A duplicate key of Flat No.602 was kept with him by the deceased under instructions to give the same if required either to PW-1 or his wife or the accused. He further stated that on 16.02.2008 when he was in his office, at about 6:00 to 6:30 p.m., he received a telephonic call from PW-1 stating that nobody was picking the phone from his parent's flat and nobody was opening the flat from inside and therefore, PW-1 requested this witness to come to Garden Crest building. PW-1 also informed him that the servant of the witness by name Raju Kadam was not handing over the key, therefore, PW-1 requested him to come home. PW-5 reached Garden Crest building and saw that the key was handed over to PW-1 by his servant and PW-1 opened Flat No.602. He went inside his flat and heard screams of PW-1 and therefore, he rushed to Flat No.602. After he entered the kitchen, he saw two dead bodies naked and burnt. He got scared and returned to his flat.
Though the Trial Court has accepted this witness as reliable, we have no alternative but to discard him. It has not come in the ::: Downloaded on - 09/06/2013 17:13:34 ::: *13* conf.3.10.judgment.sxw evidence of PW-1 that he reached Garden Crest between 6:00 to 6:30 p.m. on 16.02.2008 and demanded the duplicate key of Flat No.602 from Raju Kadam and he refused to pass on the same to PW-1. In fact PW-5 has contradicted his own evidence. At the threshold PW-5 stated that the duplicate key was given to him with specific instructions to give the same if it was required by PW-1 or his wife or the accused. It has not come in the deposition of PW-1 that on reaching Garden Crest building he demanded the duplicate key to Raju and he refused to hand over the same. Hence, PW-5 is a doubtful witness.
12 Now, coming to the evidence of PW-6 Raju Sitaram Kadam who was the domestic help of PW-5, he stated before the Trial Court that his working hours were between 7:30 a.m. to 10:30 p.m.. He also stated that PW-3 Santosh and Laxman, the brother of the accused used to visit the accused in Flat No.602 and therefore, PW-6 knew them. On 15.02.2008, he was on duty in Flat No.601 and he had seen the accused at 7:30 a.m. while he was putting the clothes for drying in the balcony and again at about 7:45 p.m. on the same day in the balcony and he had talked to the accused and the accused told that he was cleaning the flower pots. This witness further stated that he left Flat No.601 at 10:30 p.m. on 15.02.2008. On the next day, this witness reported for work at 7:30 a.m.. At about 9:30 a.m., Sunita wife of accused came to Flat No. 601 and inquired about her husband. He informed her that he was not knowing the whereabouts of the accused. At about 12:00 noon, PW-3 ::: Downloaded on - 09/06/2013 17:13:34 ::: *14* conf.3.10.judgment.sxw Santosh also visited Garden Crest building and inquired about the accused. PW-3 also inquired whether the deceased had left for Shirdi and this witness told PW-3 that he did not know about the same. At about 4:00 to 4:30 p.m., Laxman, the brother of the accused also visited this witness and demanded the key of Flat No.602, but this witness refused to handover the key. He further stated that he received a call from PW-1 Niraj informing that there was no response from Flat No.602 when he called on the landline phone as well as on cell phone. He also informed PW-1 that earlier in the day PW-3 Santosh, Laxman and Sunita had also visited Flat No.602 and asked for the key but he did not handover the same. He further stated that finally at 7:30 p.m., PW-1 Niraj himself came to the flat and this witness handed over the key to PW-1 and returned to his flat. Thereafter, this witness heard screams of PW-1 and therefore, he went to Flat No.602 and saw two dead bodies lying in the kitchen. He got scared and returned to his master's flat.
th
(Continued on 28 April, 2011)
The prosecution has relied upon this witness in support of its theory of last seen. It is pertinent to note that PW-6 stated to have seen the accused at 7:45 p.m. in the balcony of Flat No.602 on 15.02.2008. The accused was the domestic help with the deceased on full-time basis and he was expected to be with the deceased till 10:30 p.m. on 15.02.2008 as per his duty hours and thereafter, he would leave Flat No.602. Thus, in the normal course the accused would remain in ::: Downloaded on - 09/06/2013 17:13:34 ::: *15* conf.3.10.judgment.sxw Flat No.602 till about 10:30 p.m. and therefore, the prosecution cannot claim that PW-6 had last seen the accused in Flat No.602 at 7:45 p.m.. In our view, this is an inconsequential circumstance as the accused was expected to be in Flat No.602 normally till 10:30 p.m.. If the accused had conveyed through PW-3 that he would not return home in the night of 15th to 16th February, 2008, why would his family members visit Garden Crest building on 18th February, 2008 so as to search him, is a question which remained unanswered by the prosecution evidence.
13PW-8 Dilip Palav was examined by the prosecution to prove the arrest of the accused from his village in Ratnagiri district on 17.02.2008 and recovery of gold ornaments on his person immediately on his arrest. It is the case of the prosecution that the accused had disappeared and he was arrested from his native village Bhoke in Ratnagiri district on 17.02.2008 and that would be an additional circumstance against the accused. PW-8 Dilip Palav stated before the Trial Court that on 17.02.2008 he was called by PI Mr.Ghosalkar in Police Station and was asked whether he would go along with him and the Police party for a long drive towards Ratnagiri. He agreed and accompanied the Police party which left for Ratnagiri along with one more witness. As per him, after reaching village Bhoke, the Police party told him that no villager was ready to act as a Panch and therefore, he was requested to act as such in C.R. No.68/2008. After parking the jeep at village Bhoke, the Police party and the witnesses ::: Downloaded on - 09/06/2013 17:13:34 ::: *16* conf.3.10.judgment.sxw walked down to one house with manglori tiles roof and four doors. The Police entered in the said house in search of the accused and he was found in one of the rooms. The Police asked him his name, but at that time, he started running. He was taken in custody and disclosed his name as Sandeep. PW-8 identified the accused before the Trial Court as being the same person who was taken in custody from village Bhoke on 17.02.2008. He further stated that the Police took search of the accused and in his trouser pocket, one packet was found. The packet was opened by the Police and it contained one Mangalsutra, one chain having pendent of Queen Victoria, one necklace having Rudraksha and pendent of Saibaba. He also stated that one pair of earrings (zhumkas) and one Kudi (earring) having white studded stones were also recovered from the accused and the Police seized all these five/six ornaments in different packets. In the personal search of the accused, the Police also found seven currency notes each of Rs.500/- denominations from his shirt pocket. As per this witness, the Police also noticed some injuries on the arms of the accused and one of them was a fresh injury and they appeared to be burn injuries. This witness further stated that the arrest panchanama-cum- recovery panchanama (Exhibit-22) was drawn in his presence and he signed the same. He identified the golden ornaments (Articles 5(A) to (E)). This witness along with the Police party returned to Mumbai and the accused was also brought to Mumbai.
In his cross-examination, he admitted that he was having a news paper stall at Bandra (West) near Ram Mandir for last 20 to 25 ::: Downloaded on - 09/06/2013 17:13:34 ::: *17* conf.3.10.judgment.sxw years and used to drop the news papers to Police Station during the said period of 20 to 25 years. He further stated that along with PI Mr.Ghosalkar, there were two Police Officers, constable Gurav, driver Nikam and the Panch witnesses. He stated that the Policy party and the witnesses had travelled to Ratnagiri and returned back to Mumbai by a private vehicle. He also admitted that the villagers had gathered at the spot and he was not aware whether the Police party had sought help of local Police Station.
14PW-13 Dilip Bhosale (PSI) was one of the Police Officers in the Police team which claimed to have arrested the accused from village Bhoke near Ratnagiri on 17.02.2008. He stated before the Court that on 16.02.2008 he got information about the incident and the suspect was the domestic help engaged by the deceased. He also learnt that the domestic help was missing since the incident. PI Ghosalkar came to know that the accused was the resident of village Bhoke (Muthwadi), Taluka & District : Ratnagiri and he suspected that the accused might have proceeded to his native place. Hence, on 17.02.2008 the Police party by a private vehicle proceeded towards Ratnagiri in the morning along with two other persons. The Police party reached village Bhoke at 4:00 p.m. and inquired about the residence of the accused and his whereabouts. The Police party learnt that the accused was present in the village and therefore, they proceeded towards his house. He further stated that the Police party tried to find out whether the local persons ::: Downloaded on - 09/06/2013 17:13:34 ::: *18* conf.3.10.judgment.sxw were ready to act as Panch witnesses but they refused to act as Panchas.
Therefore, two persons, who had accompanied the Police party from Mumbai, were requested to act as Panchas and they agreed. The Police party entered into the house of the accused and he was seen in the second room seating in a dark corner. When asked about his name, he tried to run away and therefore, was caught hold. The Police party asked his name and he disclosed the same as Sandeep Sonu Maingade. PW-13 identified the accused before the Court as the same person who was taken in custody from village Bhoke. This witness further stated that the place of arrest was the ancestral house of the accused. Personal search of the accused was taken and seven currency notes each of Rs.500/-
denominations, were recovered from his shirt pocket. The accused was wearing grey colour trouser and from the right pocket of trouser, one packet was found and when it was opened one Mangalsutra having pendent, one chain having pendent of Queen Victoria, one chain having Rudraksha and pendent of Saibaba, one pair of earrings and nose ring were recovered. The Police party also found the burn mark on the right palm of the accused and on his left arm there was a mark of old injury.
All the five ornaments along with cash of Rs.700/- were seized under the Panchanama at Exhibit-22 and in presence of the witnesses who signed the same. He identified the articles which were recovered during the personal search of the accused on his arrest at village Bhoke.
This witness further stated that the Police party returned to Mumbai on 18.02.2008 at about 2:00 p.m.. He admitted that at about ::: Downloaded on - 09/06/2013 17:13:34 ::: *19* conf.3.10.judgment.sxw 2:15 p.m., the accused disclosed his readiness to make the statement and therefore, two Panchas were called and in the presence of the Panch witnesses, the accused told the Police that he was working with the deceased at Flat No.602 for last about 11 years as a domestic help and he would show the knife he had kept in the said flat. Accordingly, the statement of the accused was recorded and he was taken to Flat No.602 on the 6th floor of Garden Crest building. PW-1 Niraj was present in the flat and he was informed about the purpose of the visit by the Police.
The accused took the Police party in kitchen of the flat and from the second drawer of trolley of the kitchen platform, he picked up one knife (Artice-6). The memorandum of statement at Exhibit-25 and recovery panchanama at Exhibit-25(A) was drawn in the presence of the accused.
This recovery has been also supported by the evidence of PW-1 Niraj.
In his cross-examination, PW-13 admitted that he was not aware as to who had informed the Crime Branch Unit about the incident.
He also admitted that he could not give the number of the private vehicle which was used by the Police party for their journey to Ratnagiri.
He also did not know who made payment of the private vehicle. He also admitted that the Police party which went to Ratnagiri had not informed the Police of village Bhoke about the purpose of visit either before or after reaching the said village. He denied the suggestion that no recoveries were made from the person of the accused at village Bhoke.
He also denied the suggestion that the Panch witnesses taken from Mumbai were habitual Panchas.
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15 Thus, the prosecution case based on the evidence of PW-8,
PW-13 and PW-1 claimed that the accused was missing from Flat No.602 and he was arrested from his village Bhoke on 17.02.2008 at about 4:30 p.m.. During his personal search the gold ornaments belonging to the deceased were recovered and on 19.02.2008 when these ornaments were shown to PW-1, he identified the same as the ornaments of his parents. These circumstances as sought to be proved cannot be relied upon, firstly, because PW-8 claimed to be a permanent resident of Kalva (West), district : Thane with his business of news paper stall at Bandra (West). He was supplying the news papers to the Santacruz Police Station for the last more more than 20 to 25 years. Neither PW-13 nor PW-14 could furnish any explanation as to why this witness from Mumbai was taken all the way to village Bhoke to act as a Panch witness on 17.02.2008. Admittedly, the Police party on reaching village Bhoke did not contact the local Police Station which ought to have been done in normal course and the Police party ought to have sought the assistance of the local Police Station. It has also come in the evidence that a group of persons had gathered near the house of the accused and it cannot be believed that the Police party could not get any Panch witness in the said village. If the ornaments were actually recovered from the person of the accused on his arrest on 17.02.2008 at village Bhoke and he was brought back to Mumbai on 18.02.2008 at about 2:00 p.m., there is no explanation coming forward as to why those ornaments were not shown ::: Downloaded on - 09/06/2013 17:13:34 ::: *21* conf.3.10.judgment.sxw to PW-1 when the accused was purportedly taken to Flat No.602 for recovery of the knife. It cannot be believed that the Investigating Officer waited for one more day for identification of the ornaments by PW-1. At the same time, Exhibit-10 which was recorded as per the statement made by PW-1, did not state that any ornament either from the person of the deceased or from Flat No.602 was missing. Even the Spot-cum-
Inquest panchanama at Exhibit-12 drawn on 16.02.2008 did not indicate that any ornament was missing though the cupboards and drawers were seen open. In addition, PW-1, after his complaint was recorded by PW-12 in the night of 16.02.2008 till he visited Santacruz Police Station on 19.02.2008, did not record any supplementary statement informing the Police that some ornaments of his parents were missing from Flat No.
602. The Spot-cum-Inquest panchanama at Exhibit-12 also indicates that some ornaments were lying on the double bed in one of the bedrooms.
Even on 18.02.2008, when the Police party visited Flat No.602 along with the accused and PW-1 was present in the said flat, he did not inform the Police that some ornaments were missing from the flat. In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused denied that he was arrested from village Bhoke on 17.02.2008. Therefore, we are of the view that the arrest of the accused from his native village Bhoke on 17.02.2008 cannot be relied upon and consequent recovery of gold ornaments from his person has to be discarded for the reasons we have set out earlier.
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16 Let us now consider the next circumstance of burn injury
sustained by the accused and as recorded in the injury certificate at Exhibit-15, the accused had suffered burn injury on his right palm. In his statement recorded under Section 313 of the Code of Criminal Procedure, he admitted the same. But, surprisingly, the Trial Court while recording the statement of the accused under Section 313 of Cr.P.C., did not put any question to the accused as to how he suffered the burn injury, as is clear from the said statement available on record. If such a question was not put and if he was not called upon to furnish his explanation as to how he suffered the burn injury, as per the well settled legal position, the same circumstance cannot be held against the accused. In his cross-examination, PW-10 Dr.Sharad Ruia had admitted that the boil over the palm was very small and the injury was possible if hot oil or water would fall/spill on the palm.
17 It is the further case of the prosecution that on 20.02.2008 the accused made voluntary statement in the presence of PW-7 Kukkuswami Bokanargi that he would show the place in Flat No.602 where he had kept a pestle. The memorandum panchanama at Exhibit-19 was drawn and the Police party along with the accused and the witness proceeded to Flat No.602. PW-1 Niraj was present and he opened the flat. The accused led the Police in the kitchen of the flat and from wooden shelf the accused took out a pestle from the lowest rack of the cupboard and the pestle was of brass and claimed to have blood ::: Downloaded on - 09/06/2013 17:13:34 ::: *23* conf.3.10.judgment.sxw stains. The recovery panchanama at Exhibit-19A was drawn.
In his cross-examination, PW-7 admitted that he was called to the Police Station by the Police Officer Mr.Chorge who visited his house in civil dress. He also admitted that he knew the said Chorge as he was required to go to the Police Station for legal cause. He also admitted that he had worked with the Police 15-20 times in the past. This evidence is sufficient to hold that PW-7 was a professional Panch.
At the same time, when the accused was taken to Flat No. 602 on 18.02.2008, it is not known how he made disclosure two days thereafter about the brass pestle. The reason is hidden in the recovery panchanama (Exhibit-25). The size of the knife is recorded in the said panchanama. It had a grip of 10 cms length and blade length of knife was 11.5 cms i.e. slightly more than 4 inches. This was obviously a kitchen knife and the Investigating Officer perhaps was aware that the knife could not be the weapon used to cause the fatal head injury. The Investigating Officer perhaps was looking for some other hard and blunt object to connect to the head injury and that he claims to have recovered on 20.02.2008 from Flat No.602 at the behest of the accused. Hence, the recoveries claimed to have been made on 18.02.2008 and 20.02.2008 do not inspire confidence and required to be discarded.
18 Let us now consider the Chemical Analyzer's reports which are placed on record. The results of the tests for the detection of petrol and kerosene residues are negative. The general and specific chemical ::: Downloaded on - 09/06/2013 17:13:34 ::: *24* conf.3.10.judgment.sxw testing does not reveal any poison in Exhibits-1 and 2 i.e. viscera in plastic bottle and pieces of liver, spleen and kidney from the body of the deceased Varsha. A piece of bone from Varsha's body was sent for chemical analysis and the blood group could not be determined as the results were inconclusive. From the Chemical Analyzer's report, it is proved that the blood group of the accused is "O" whereas the blood group of the deceased could not be ascertained. Similarly, on the brass pestle and the knife, as per the report, human blood was noticed but the blood group could not be ascertained. The residues from the body of Dilip and Varsha tested negative for kerosene and petrol presence. There was no poison noticed in the viscera of the deceased. The Chemical Analyzer's reports, therefore, failed to support the prosecution case to connect the accused with the homicidal death of Dilip and Varsha.
19 The postmortem reports at Exhibits-28 and 29 go to show that Dilip suffered 100% charcoal burns whereas Varsha suffered 70% charcoal burns. As PW-11 Dr.Shivaji Kachare was discharged by the prosecution, it could not be ascertained as to whether the victims were first assaulted on their head and they died because of the head injury and thereafter, the dead bodies were sought to be burnt. The inquest-
cum-spot panchanama at Exhibit-12 does not indicate any remains of kerosene, petrol and charcoal. If on 16.02.2008 Flat No.602 was not opened at all till PW-1 entered at about 7:30 p.m., the probable time of the offence could not be ascertained through the medical evidence. The ::: Downloaded on - 09/06/2013 17:13:34 ::: *25* conf.3.10.judgment.sxw dead bodies were burnt and there was no evidence that any of the neighbours i.e. either resident of Flat No.601 or any other flats in Garden Crest building had noticed any foul smell. The inquest-cum-spot panchanama does not indicate as to whether the windows of Flat No.602 were closed. If neither kerosene nor petrol was used to set the victims on fire or to set their mortal remains on fire, the prosecution did not bring any other evidence so as to indicate as to how the burn injuries were caused to the victims. Was it any other chemical which was used to burn the bodies without any foul smell emanating from the flat, is the question which remained unanswered in the course of investigation. The incident had taken place in the mid of February and normally the winter season in Mumbai would be coming to close. It is, therefore, surprising that none of the neighbours either noticed or complained of any foul smell coming out of Flat No.602. PW-1 Niraj in his evidence before the Court stated that when he opened the main door of the flat at 7:30 p.m. on 16.02.2008 he did not find the accused present therein and if this evidence is considered with the spot panchanama at Exhibit-12, a reasonable inference could be drawn that the main door of Flat No.602 was not bolted from inside and similarly, it was not bolted from outside.
Who entered the said flat between 10:30 p.m. on 15.02.2008 to 7:30 p.m. on 16.02.2008 is the mystery which does not find any answer in the investigation undertaken by the Investigating Officer. The circumstances in which the crime was committed indicate that it was premeditated and sufficient precautions were taken to ensure that none of the ::: Downloaded on - 09/06/2013 17:13:34 ::: *26* conf.3.10.judgment.sxw neighbours could suspect that the dead bodies were burnt in Flat No.
602. 20 As per PW-1 Niraj, he received a call from his paternal aunt in the noon time of 16.02.2008 saying that there was no response on the telephones of his parents when she had called. PW-1 further stated that thereafter, he started calling his parents on the landline telephone as well as cellphone. The telephone records of the landline of his paternal aunt, Flat No.602 and mobile of his mother were not brought on record to corroborate his testimony. 16th February, 2008 was Saturday and it is not known why PW-1 took almost 5 to 6 hours to visit Flat No.602 more so when he was aware early in the afternoon itself that there was no response from his parents who were residing in the said flat. PW-14 Nandkumar Dhumal admitted in his cross-examination before the Trial Court that the investigation of the crime was not assigned to PI Mr.Ghosalkar at any time and at the time when the incident had taken place, Mr.Ghosalkar was in Crime Branch, Unit-9. In the parallel investigation undertaken by the Crime Branch, the accused along with the ornaments and cash was produced before him and he did not make any inquiry with PW-1 as to why he did not visit the house of the deceased immediately when they were not answering telephone calls.
PW-14 also admitted that he did not suspect PW-1 at all as the accused was already nabbed by the Crime Branch. Thus, on the purported arrest of the accused and recovery of the gold ornaments from his person, the ::: Downloaded on - 09/06/2013 17:13:34 ::: *27* conf.3.10.judgment.sxw Investigating Officer was satisfied that no further investigation was required to be undertaken. PW-5 Devang Mehta and PW-6 Raju Kadam admitted before the Trial Court that the relations between the accused and deceased were cordial and they had not heard of any dispute or grudge that the accused had against the deceased.
21 We are, thus, satisfied that the circumstantial evidence as relied upon by the prosecution could not complete the chain of circumstances and there were major links which remained to be un- investigated and consequently, unanswered. Because the accused was employed as a domestic help with the deceased and the Crime Branch claimed that he was arrested from his village and the gold ornaments were recovered from his person, the Investigating Officer did nothing further. In the incident, two helpless senior citizens were done to death in most barbaric manner and the tardy & casual investigation allowed the killer or killers to escape from the clutches of law. With respect, we must note that the assessment of evidence as done by the Trial Court failed to examine the reliability of the prosecution witnesses so as to complete the chain of circumstances and only to come to the conclusion that it was the accused alone and none other who had committed the crime. The crime was obviously masterminded, well orchestrated and committed in such a manner that the neighbours would have no clue to alert the Police. The prosecution's claim that the accused was missing from Flat No.602 from the night of 15.02.2008 cannot be the sole ::: Downloaded on - 09/06/2013 17:13:34 ::: *28* conf.3.10.judgment.sxw circumstance to hold that it was the accused alone who committed the twin murders. The Trial Court held that the accused was found in possession of the stolen goods soon after the robbery and therefore, he was involved in the twin murders. These conclusions are not supported by the evidence adduced by the prosecution and therefore, the order of conviction recorded by the Trial Court and its findings that the accused was guilty of the offences punishable under Sections 392 and 302 of the Indian Penal Code are unsustainable. The mere suspicion, however strong, cannot take the place of proof and an order of conviction must be based on proof beyond reasonable doubts. In our considered opinion, the Trial Court committed grave and apparent errors in considering the prosecution evidence and its order of conviction is based on no evidence.
The chain of circumstances remained broken on vital and material circumstances, which in fact remained inconclusive because of the unprofessional investigation. The order of conviction and sentence passed by the Trial Court has, thus, resulted in grave miscarriage of justice and it is required to be set aside.
22 In the premises, the Confirmation Case No.3/2010 is dismissed and Criminal Appeal No.607/2009 is allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge for Greater Mumbai in Sessions Case No.365/2008 on 06th May, 2009 is hereby quashed and set aside. Resultantly, the accused stands acquitted in Sessions Case No.365/2008.
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23 We direct that the accused be released forthwith unless
required to be detained in some other case.
24 Fine amount, if paid, be refunded.
(A.M.THIPSAY, J.) (B.H.MARLAPALLE, J.)
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