Dattatraya Yemul Murder Case Pune Judgement

(1) Sessions Case No. 418 / 2008 Jug

Received on : 26.06.2008 Registered on : 26.06.2008 Decided on : 20.01.2012 Duration : Ys. Ms.Ds.

03 06 24

IN THE COURT OF 8 th ADDL. SESSIONS JUDGE, PUNE,

AT : PUNE

(Presided over by D.R. Mahajan)

SESSIONS CASE NO. 418 / 2008 EXH.NO. 199

State of Maharashtra (Through P.I. Sahaharnagar Police Station, Pune). ..... COMPLAINANT

V/S.

[1] Anita @ Meena Rajendra KhandabaleAge – 34 Yrs. Occu – Service,R/at B 21/10, Lower Indira NagarBibvewadi, Pune.

[2] Ajay Anant GhagAge – 30 Yrs. Occu – Nil,R/at – 20/10, Lower Indira Nagar,Bibvewadi, Pune.

….. ACCUSEDCHARGE : Offence punishable u/s. 120B, 302, 328, 394, 404, 109, 114 r/w. Section 34 of I. P. C.

APPEARANCE : Learned Special Public Prosecutor Shri. Vijay S. SawantAdvocate Shri. Dongre for the accused No. 1.Advocate Shri. Bhoite for the accused No. 2.


J U D G M E N T (Delivered on this 20th day of January 2012)

1. The Accused Nos. 1 and 2 stand prosecuted for the

offence punishable u/s. 120B, 302, 328, 394, 404, 109, 114

r/w. Section 34 of I. P. C. on the accusation that they

hatched criminal conspiracy and committed murder of

Dattatraya Pedanna Yemul (hereinafter referred as

deceased), the owner of Peshwai Creation and Shrimant

Peshwai Clothes Stores, Pune, robbed the gold ornaments

from his person after administering him medicinal tablet

for causing drowsiness and dishonestly misappropriated

the gold ornaments possessed by the deceased at the time of

his death. In the alternative, it is also alleged that the

accused persons with common intention committed the

aforesaid criminal acts and abetted the offence.

FACTS OF THE PROSECUTION CASE :

2. In nutshell, it is the case of the prosecution that the

deceased was the owner of two shops namely Peshwai

Creation and Shrimant Collection. He always used to wear

gold Goaf, gold chain, gold bracelet, gold rings and a wrist

watch on his person. He was using Mobile Phone of his son

bearing No. 9822601053. The deceased was having


acquaintance with the lady accused No. 1 Anita @ Meena

Rajendra Khandabale. She was already married, but was

having illicit relations with the accused No. 2 Ajay Anant

Ghag. For some period, both accused persons were residing

in the locality at Lower Indiranagar, Bibvewadi, Pune. The

deceased used to take accused No. 1 Anita on his two

wheeler at Taljai Hill.

3. According to prosecution, both the accused persons

hatched criminal conspiracy. On 08.03.2008, the applicant

No. 1 purchased the medicinal tablet namely Atvin 2 Mg.

and Pedha from Sweet Mart. In the evening, she contacted

the deceased on his mobile and called him at Gajanan

Maharaj Chowk, Laxminagar, Pune. Accordingly, deceased

went there by his Activa Scooter bearing No. MH12/ CM

9935. Thereafter the accused No. 1 gave him Pedha to eat

in which she had already mixed two tablets of Atvin 2 Mg.

Thereafter, they both drunk sugarcane juice at the

Rasawant of Samrat Dharwatkar, in front of Shinde High

School. The employee working in the said Rasawant namely

Maruti Khopade served juice to both of them. Thereafter,

the deceased and accused No. 1 went away towards Taljai

Hill.


4. The friend of the deceased namely Shri. Balasaheb

Amrutrao Dhere had been to Taljai Hill in the evening on

08.03.2008 as usual for taking walk. He had come there by

his 800 Maruti Car which was parked by him in Cricket

ground. However, while returning back from Taljai Hill, his

car did not start and so he was waiting there for the

mechanic. At that time, the deceased and accused No.1

reached there by Activa Scooter. Shri. Balasaheb Dhere

had talked with them. At the same time, Shri. Balasaheb

Dhere noticed that accused No. 2 was standing at some

distance with his Hero Honda Motorcycle and the gesture

was going on between accused No. 1 and accused No.2. On

inquiry with deceased, he disclosed that they had come

there in search of the purse of accused No. 1 which was lost

there. Thereafter, both, deceased and accused No. 1 went

away from the cricket ground.

REGISTRATION OF CRIME :

5. On next day morning i.e. on 09.03.2008, at about 7/

7.30 am, the boys namely Jafar Shaikh and Sameer Sayyed

who had come there to play cricket in the cricket ground,

noticed that one person was lying in the bushes at some

distance from the cricket ground in injured or dead


condition. So they immediately informed the police. The

area of Taljai Hill comes under the jurisdiction of

Sahakarnagar Police Station. The Assistant Police

Inspector Shri. Sunil Gopalrao Kulkarni now working as

Dy. Superintendent of Police who was present in

Sahakarnagar Police Station, immediately rushed to the

spot of incident along with police staff, photographer and

dog squad, after registering C.R. No. 88 / 2008 against

unknown person u/s. 302 of IPC on the written report

submitted by PSI Shri. Yadav on the basis of information

received by him. So also before proceeding to the spot of

incident, API Shri. Kulkarni took the necessary entry in

the station diary. At the spot, he prepared the spot

panchanama in presence of panchas and seized Activa

vehicle. So also he found that the said person lying there

was already dead and stone was kept on his back. His pair

of chappels, a knife, Nylon rope and other articles were

lying there. He seized all those articles, collected blood

samples. Rough sketch of scene of offence was also drawn.

The photographer snapped the photographs. The dead body

was sent for postmortem to Sassoon Hospital. The inquest

panchanama of dead body was prepared by PSI Shri. Yadav

in Sassoon Hospital in presence of panchas. The Dog Squad

could not traced out any clue.


6. The Medical Officer of Sassoon Hospital Dr. Ajay

Taware conducted autopsy on the dead body. He found

multiple incised and chop wounds on the dead body. In his

opinion, the death was due to traumatic and hemorrhagic

shock due to chop injuries and blunt injuries over head with

stab injuries over neck.

7. On 08.03.2008, it was a Birthday of son of the

deceased namely Rahul and they had decided to celebrate it

in Hotel Garden Court at Chandani Chowk, Pune. During

the last visit of another son of deceased namely Amol at the

gate of Peshwai Collection, at about 9 / 9.15 pm, the

deceased had told him that he had received telephone call

and he wanted to go to help the said person and so they

shall celebrate the Birthday in his absence. On that night

and till the morning of 09.03.2008, the deceased did not

return to the house and so his family members started

searching him. The necessary information was also given

to the Police. In the morning, the family members of the

deceased received call from Sahakarnagar Police Station.

The Police Officer carried the sons of deceased namely Amol

and Rahul to Sassoon Hospital dead house and showed the

dead body, which they identified as that of their father. At


that time, they were told by Police that only a wrist watch

and one gold ring was found on the dead body. Other gold

ornaments were not found. The sons of deceased also

disclosed that while going from the shop in the evening on

08.03.2008, the deceased had carried cash Rs.5,000/ with

him but the said cash was also not found with the dead

body. So also, his mobile handset was found missing. It

was of Samsang Company. From the sons of deceased,

Police Officers learnt that the gold bracelet of 15 Tolas, 2

Gold chains out of which one was goaf having round design

and one chain was having Pendent of Swastik and 2 gold

rings one as usual and another of Nazarana pattern were

stolen away which were on the person of the deceased.

Accordingly, the investigation proceeded. It was conducted

by three Police Officers i.e. Police Inspector Shri.

Shailendra Shinde, Assistant Police Inspector Shri.

Gopalrao Kulkarni and Police SubInspector Shri. Sachin

Patil of Sahakarnagar Police Station.

8. As the Mobile of the deceased was not found, the

investigating officer collected the call details from telephone

company in respect of the Mobile number of the deceased

i.e. 9822601053 and it was revealed that he had received

last calls on 08.03.2008 from Mobile No. 9860692134.


During investigation it was revealed that the owner of the

said SIM Card was one Pradip Kurki and he had given it

for use to his friend Ravi Kallur and his SIM card was lost

at Sinhagad Fort on 02.03.2008 as he was using double

SIM Cards by replacing one by another.

9. It was also informed by the Telephone Company to

I.O. that, before using the aforesaid SIM Card bearing No.

9860692134, the another SIM Card bearing No. 9766049110

was being used in the said Mobile Handset having IMEI No.

358073018958800. So the I. O. tried to search the owner of

the said SIM Card and from Telephone Company, it was

learnt that the said number was in the name of Mr.

Mukund Vaidya. After getting the call details of the said

Mobile number, it was noticed that the talk was taken place

from the said number many times on Mobile No.

9822066496. After contacting on the said number, it was

found that it was belonging to Mr. Mukund Vaidya. So with

his help, the investigating officer Shri. Kulkarni arrested

the accused No. 1 Meena on 12.03.2008. During her

personal search, two mobile handsets were found with her

bearing Phone No. 9326844274 and 9766049110. So also a

Saree from her person having blackish and red colour

stains was also seized.


10. It was also revealed during interrogation with the

accused No. 1 that she had got a SIM card bearing No.

9860692134 at Sinhagad (which was lost by Pradip Kurki

on 02.03.2008). So the Investigating Officer collected the

call details of all these phone numbers. It was revealed that

the accused No. 1 had talked by her mobile on the mobile

No. 9326058466 many times. After getting information

from the concerned telephone companies, it was found that

the said SIM Card was in the name of accused No. 2 Ajay

Ghag. It was also revealed that Mobile No. 9326844274

which was seized from accused No. 1 and was also in the

name of accused No.2 Ajay Ghag. It was also found that

there was a talk taken place from Mobile No. 9860692134

on Mobile No. 9420206683 and 9860314076. So the

investigating officer traced out the persons who are holding

the aforesaid two mobile numbers and it was revealed that

the first mobile number was in the name of Mr. Suresh

Ranawade and another Mobile number was owned by Mr.

Sadanand Sutar, both resident of Tal Kankawali, District

Sindhudurga. On inquiry with them, it was revealed that

the father of accused No.1 had talked with them on

05.03.2008 from the aforesaid Mobile No. 9860692134

which was being used by accused No.1.


11. While the accused No.1 was in police custody, she

gave memorandum and in view of the said memorandum,

showed the spot where she had got a SIM Card at

Sinhagad. At that time, Police made inquiry with a Tea

Shop owner at Sinhagad namely Dattatray Khatpe who

identified the accused No.1 by saying that before about 15

days of 18.03.2008, she had come there along with one

person by motorcycle.

12. Again while she was in the police custody, accused

No. 1 gave memorandum to show the spot where she had

concealed the ornaments of deceased. Accordingly, she took

Police and panchas at her house at Lower Indiranagar,

Bibvewadi and took out the ornaments concealed in earthen

flower plot at the terrace of the house. The said ornaments

were weighed by calling the Jweller. Accordingly,

panchanama was prepared. The accused No.1 also pointed

out the house of accused No.2 where they had stayed.

13. In view of the disclosure made by accused No. 1 and

the call details collected by the investigating officer showing

talk taken place between accused No. 1 and 2, the

investigating officer arrested the accused No. 2 on


15.03.2008. At the time of arrest, one Mobile bearing No.

9326058466 was found with him and it was seized in

presence of panchas. The investigating officer also got

information that accused No.2 was serving at the shop of

Chitale Bandhu but for many days, he was absent from his

duty. The attempts were made by the investigating officer

to arrest him by going to his native place but he was not

found. On receipt of information, after laying trap, he could

arrest the accused No. 2 at Katraj on 15.03.2008.

14. On 18.03.2008, in view of disclosure statement made

by accused No. 2 Ajay Ghag after recording his

memorandum, the Gold ornaments of deceased i.e. Gold

Chain and Nazrana Ring and the clothes of the accused

having blood stains were recovered.

15. During the course of investigation, the seized articles

and samples collected from Sassoon Hospital were sent to

Chemical Analyser for examination. The statements of the

witnesses were recorded from time to time. The test

identification parade in respect of accused No. 2 Ajay Ghag

was conducted by Tahasildar in which witness Shri.

Balasaheb Dhere identified accused No.2.


SUBMISSION OF CHARGESHEET :

16. After completion of the investigation, the charge

sheet was filed in the Court of Judicial Magistrate, First

Class, Court No. 4, Pune on 04.06.2008 against both the

accused for the offence punishable u/s. 120B, 302, 394 and

328 of IPC.

COMMITTAL ORDER :

17. As the alleged offence punishable u/s. 302 and 328 of

IPC are exclusively triable by the Court of Sessions, the

learned Judicial Magistrate, First Class, Court No. 4, Pune

by his order dated 18.06.2008 committed the case to the

Sessions Court, Pune. Both the accused persons were in

the Magistrate Custody and they were also forwarded to the

Sessions Court.

CHARGE :

18. In view of the facts of the prosecution case and the

papers filed on record and after hearing the learned Special

Public Prosecutor and defence Advocates, the then

Additional Sessions Judge Shri. Vilas S. Patil framed

charge against both the accused persons for the offence

punishable u/s. 120B, 302, 328, 394 and 404 of IPC and

also in the alternative r/w. Section 34 of IPC vide Exh. 2 on


30.06.2008. It was read over and explained to the accused

persons in vernacular to which they pleaded not guilty and

claimed to be tried vide Exh.3 and 4 respectively.

19. Thereafter, another Presiding Officer of this Court

Additional Sessions Judge Shri. A. Z. Khwaja again framed

fresh charge at Exh. 48 on 28.10.2009 against both the

accused persons for the offence punishable u/s. 120B r/w.

Section 302, 328, 394, 404, 109, 114 and 34 of IPC and u/s.

302 r/w. Section 34, 109 and 114 of I. P. C. and u/s. 328, 394

and 404 r/w. Section 34 of I. P. C. It was read over and

explained to both the accused persons in vernacular to

which they pleaded not guilty and claimed to be tried vide

Exh.49 and 50 respectively.

20. After recording of evidence of in all 34 witnesses of

prosecution, the statements of the accused persons u/s. 313

of Cr.P.C. were recorded at Exh.176 and 181 respectively.

The accused No. 2 Ajay Ghag also submitted separate

written statement at Exh.182. Both the accused pleased

ignorance in respect of certain facts whereas in relation to

other facts, their claims is that they are false and they have

been falsely implicated in this crime. As per written

statement of accused No.2, he is not knowing accused No. 1.


POINTS FOR DETERMINATION :

21. I heard the arguments of the learned Special Public

Prosecutor Shri. Vijay Sawant for the prosecution, advocate

Shri. Dongre for accused No. 1 and Advocate Shri. Bhoite

for accused No.2, at length. They placed reliance on various

decisions of Hon'ble High Courts and Hon'ble Apex Court.

Following points arise for my determination to which I have

recorded my findings thereon, as under :

POINTS FINDINGS

1 Does prosecution prove that the accused No. 1 and 2 hatched and entered into criminal conspiracy at different places at Pune city from January 2008 to March 2008 and in pursuance of and as a part of and for achieving the object of above mentioned conspiracy inter alia to do illegal acts, namely, murder, causing hurt by means of poison or stupefying drug, voluntarily causing hurt in committing robbery and dishonest misappropriation of property of deceased and thereby committed an offence punishable u/s. 120B r/w. Section 302, 328, 394 and 404 of I. P. C. ?

….....

Proved only

offence

punishable u/s.

120B r/w. 394

IPC.


POINTS FINDINGS

2 Does prosecution prove that accused No. 1 and 2 hatched and entered into criminal conspiracy and on in the night of 8.3.2008 and 9.3.2008 at Taljai Hill at Pune, committed the murder by intentionally or knowingly causing death of Dattatraya Pedanna Yemul, and thereby committed an offence punishable u/s. 302 r/w. Section 120B of I. P. C. ? ….... Not proved

3 Does prosecution prove that on the aforesaid date, time, place and during the course of the same transaction, accused No. 1 and 2, in furtherance of common intention, committed murder of Dattatraya Pedanna Yemul and thereby committed an offence punishable u/s. 302 r/w. Section 34 of I. P. C. ?

…...... Proved.

4 Does prosecution further prove that on the aforesaid date, time, place and during course of same transaction, accused No. 1 and 2 abetted illegal act i.e. murder of Dattatraya Pedanna Yemul and thereby committed an offence punishabel u/s. 302 r/w. Section 109 or 114 of I. P. C. ?

…..... Does not survive


POINTS FINDINGS

5 Does prosecution prove that on the aforesaid date, time, place and during the course of the same transaction, accused No. 1 and 2, hatched and entered into criminal conspiracy and committed robbery of gold ornaments of Dattatraya Pedanna Yemul and while committing robbery, voluntarily caused hurt to him and thereby committed an offence punishable u/s. 394 r/w. 120B of I. P. C. ?

…... Proved

6 Does prosecution prove that on the aforesaid date, time, place and during the course of the same transaction, accused No. 1 and 2, in furtherance of their common intention, committed robbery of gold ornaments of Dattatraya Pedanna Yemul and while committing robbery, voluntarily caused hurt to him and thereby committed an offence punishable u/s. 394 r/w. Section 34 of I.P.C. ? ….. Does not survive

7 Does prosecution prove that on aforesaid date, time and place and during the course of same transaction, accused No. 1 and 2 hatched and entered into criminal conspiracy and administered or


POINTS FINDINGS

caused to be taken by Dattatraya Pedanna Yemul certain poison or certain stupefying intoxicant or unwholesome drug, with intent to cause or knowing it to be likely that thereby hurt will be caused to the said Dattatraya Pedanna Yemul and thereby committed an offence punishable u/s. 328 r/w. Section 120B of I.P. C. ? …..... Not Proved

8 Does prosecution prove that on the aforesaid date, time, place and during the course of the same transaction, accused No. 1 and 2, in furtherance of their common intention, administered or caused to be taken by Dattatraya Pedanna Yemul certain poison or certain stupefying intoxicant or unwholesome drug, with intent to cause or knowing it to be likely that thereby hurt will be caused to the said Dattatraya Pedanna Yemul and thereby committed an offence punishable u/s. 328 r/w. Section 34 of I.P. C. …....... Not Proved

9 Does prosecution prove that on the aforesaid date, time, place and during the course of the same transaction, accused No. 1 and 2, in furtherance of their common


POINTS FINDINGS

intention dishonestly mis appropriated or converted to their own use certain property i.e. cash Rs. 5,000/ and the gold ornaments knowing that it was in possession of the deceased Dattatraya Yemul and thereby committed an offence punishable u/s. 404 r/w. Section 34 of I.P. C. ? …....... Not Proved

10 What order ? As per final order

R E A S O N S

ORAL EVIDENCE :

22. In order to bring home the guilt of the accused, the

prosecution is relying on oral evidence of 34 witnesses.

These witnesses are classified in following six groups :

Group (1) – On the point of last seen :

[1] P.W.6 – The watchman of Peshwai Creation namely

Deepak Sharma at Exh. 73,

[2] P.W. 10 – The Manager of Peshwai Creation namely

Laxminarayan Bandi at Exh. 80.

[3] P.W. 21 – The son of the deceased namely Amol Yemul

at Exh. 106,


[4] P.W. 25 – Maruti Kokane at Exh. 114, whi is working

at Rasawant of Samrat Dharwatkar, and

[5] P.W. 29 – The friend of the deceased namely Shri.

Balasaheb Amrutrao Dhere at Exh.118.

Group (2) – On the point of showing relations between

accused No. 1 and 2 and the persons known to them :

[1] P.W. 3 – Ravikishan Shivram Chakradeo at Exh. 62 –

the Manager of Chitale Bandhu shop.

[2] P.W. 8 – Mukund Balkrishna Vaidya at Exh. 75 who

has given his mobile handset with SIM Card for use

to accused No. 1.

[3] P.W. 17 – Gaurav Kantilal Vora at Exh. 94, the

proprietor of Medical Shop.

[4] P.W. 19 – Sandeep Pasalkar at Exh. 103, resident of

the locality of both the accused i.e. at Lower Indira

Nagar, Bibvewadi.

[5] P.W. 24 – Dattatraya Khatape at Exh. 113 who runs a

tea stall at Sinhagad.

[6] P.W. 26 – Achalram Chaudhary at Exh. 115 who is

the owner of shop namely Adarsha Sweet Mart from

where accused No. 1 purchased Pedha on 08.03.2008.


Group (3) – Panch Witnesses :

[1] P.W. 2 – Sagar Awate at Exh. 52, the panch witness

on the personal search panchanama of accused No. 2

Ajay Ghag and seizure of mobile handset and cash

vide Exh.53.

[2] P.W. 9 – Sukhamal Dhiwar at Exh. 79, the panch

witness on arrest panchanama of accused No. 1 and

seizure of her Saree and two mobile handsets vide

Exh.79.

[3] P.W. 11 – Narsing Adep at Exh.82 in whose presence

the call details were produced by Telephone

Companies vide Exh.83.

[4] P.W. 12 – Jagdish Gujrathi at Exh. 84 is the panch on

memorandum panchanama of accused No.1 Anita

Khandabale dated 15.03.2008 vide Exh. 85, and

recovery of gold ornaments at her instance from her

house vide Exh. 86.

[5] P.W. 18 – Sachin Sherla at Exh. 95 is the panch

witness on the memorandum of accused No. 2 Ajay

Ghag dated 18.03.2008 vide Exh. 96 of seizure of gold

ornaments at his instance vide panchanama Exh. 97.

[6] P.W. 30 – Pramod Oswal at Exh. 119, the panch

witness on the panchanama Exh. 120 in respect of the


house of accused No. 2 pointed out by accused No. 1 in

Krishnamai Society.

Group (4) – Witnesses from Telephone Companies :

[1] P.W. 15 – Chetan Patil at Exh. 90 is the Noodle officer

serving in Bharati Airtel Company who handed over

the call details, details of IMEI and Tower Location

in respect of Mobile No. 9860692134 for the period

from 01.03.2008 to 09.03.2008 vide Exh.83 (B, C & D).

[2] P.W. 16 – Dattatraya Angre at Exh. 92, the Noodle

officer of India Cellular Limited who supplied the call

details in respect of Mobile No. 9822601053 from

10.02.2008 to 09.03.2008 vide Exh. 83 (A).

Group (5) – Police Officers/ Investigating officers :

[1] P.W. 1 – P.S.I. Shri. Maruti Yadav at Exh. 30 of

Sahakarnagar Police Station who visited the spot and

lodged FIR vide Exh. 31 and submitted it to Senior

P.I. for registration of crime along with his letter Exh.

32.

[2] P.W. 32 – P.I. Shri. Shailendra Shinde at Exh. 128, is

one of the Investigating Officers who recorded

memorandum of accused No. 2 and recovered


ornaments and sent the seized articles for

examination to Chemical Analyser.

[3] P.W. 33 – The second investigating officer, the then

API now working as Dy. Superintendent of Police,

Economic Crimes, State CID, Shri. Sunil Kulkarni at

Exh. 126 who after visiting the spot, prepared spot

panchanama and drew rough sketch, arrested both

the accused persons, recorded the memorandum of

accused No. 1, prepared seizure panchanama and also

recorded statements of witnesses u/s. 161 of Cr.P.C.

[4] P.W. 34 – P.S.I. Shri. Sachin Patil at Exh.165 is the

third investigating officer who collected the call

details and details of IMEI number, tower locations

from the respective telephone numbers, prepared

panchanama in respect of house of accused No.2

pointed out by accused No.1.

Group (6) – Independent witnesses :

[1] P.W. 4 – Jafar Shaikh at Exh. 70, and

[2] P.W. 7 – Sameer Sayyed at Exh.74, are the boys who

saw the dead body of the deceased while playing

cricket at Taljai Hill cricket ground and informed the

police.


[3] P.W. 5 – Nemichand Thakur (Chawan) at Exh.71 is

the photographer who snapped the photographs of

deceased at the spot of incident.

[4] P.W. 13 – Ravi Kannur at Exh.88, and

[5] P.W. 14 – Pradeep Kurki at Exh.89 are the persons

who lost their SIM card at Sinhagad Fort on 2.3.2008.

[6] P.W. 20 – Sadashiv Dhanawade at Exh. 104 and

[7] P.W. 23 – Pravinkumar Oswal at Exh. 112 are the

Jwellers who weighed the ornaments recovered as per

memorandums of both accused.

[8] P.W. 22 – Dr. Ajay Taware at Exh. 105 is the medical

officer attached to Sassoon Hospital, Pune who

conducted autopsy on the dead body of deceased and

submitted postmortem report.

[9] P.W. 27 – Suresh Ranawade at Exh.116 and

[10] P.W. 28 – Sadanand Sutar at Exh. 117 are residents

of Taluka Kanakawali, District – Sindhudurga with

whom the father of accused No. 1 had talked from her

Mobile No. 9860692134.

[11] P.W. 31 – Smt. Asha Holkar at Exh.121 is the

Tahasildar who conducted Test Identification Parade

in Central Jail, Yerwada on 10.04.2008 in which P.W.

29 Balasaheb Dhere identified accused No. 2 Ajay

Ghag.


DOCUMENTARY EVIDENCE :

[1] C.A. Reports Exh. 13 to 19,

[2] FIR Exh. 31,

[3] Inquest Panchanama Exh. 33,

[4] Photographs of deceased at Article No. 1 to 12,

[5] Negatives at Article No. 13,

[6] Personal search and seizure of cash and Mobile

handset bearing No. 9326058466 from accused No. 2

dated 15.03.2008, at Exh. 53,

[7] Personal search and seizure of two mobile handsets

and Saree from accused No. 1 dated 12.03.2008, Exh.

79.

[8] Seizure panchanama in respect of call details of

Mobile No. 9822601053 of India Company, Exh. 84

(A1 to A10), of Mobile No. 9860692134 of Airtel

Company, Exh. 83 (B1 to B7), details in respect of

IMEI No. 358073018958800 of Airtel Company,

Exh.83 (C1 to C14), details in respect of tower

location of Mobile No. 9860314076 Exh.83 (D1 to 35),

[9] Memorandum of accused No. 1 dated 15.03.2008,

Exh.85 and recovery panchanama of three gold

ornaments i.e. Goaf, bracelet and a Vedhani Ring

Exh.86.



Exh.96 and seizure of gold ornaments i.e. chain and

'Nazarana' ring and his clothes, Exh. 97.


Exh.98 and panchanama of the spot pointed out by

her at Sinhagad Fort, Exh.99.

[12] Postmortem report of deceased prepared by Medical

Officer, Sassoon Hospital, Exh. 108.

[13] House search panchanama of accused No. 2 at

Krishnamai Society, Exh.120.

[14] Identification Parade memorandum prepared by

Tahasildar dated 10.04.2008, Exh. 124.

[15] Copy of station diary entry No. 13 /08 Exh.130, and

No. 17/ 08 Exh.132.

[16] Spot panchanama Exh. 137,

[17] Rough Sketch of scene of offence, Exh.138.

[18] Dog Squad Nil Report, Exh.139.

[19] Letters issued to Telephone companies for call details,

Exh. 140 (letter to Idea Cellular Company) and Exh.

141 (Letter to Airtel Company).

[20] The receipt depositing muddemal with the incharge of

Muddemal of Police Station, Exh.145.

[21] Notarized copies in respect of registration and

insurance of 800 Maruti Car bearing No. GA01 / C


7900, and notarized copy of driving license of

Narsinha Amrutrao Dhere, at Exh. 186 to 191.

[22] The reply letter dated 22.12.2011 from Junior

Engineer (Electrical), Sahakarnagar Regional Office,

PMC, Pune, addressed to the Special Public

Prosecutor Shri. Vijay Sawant, Exh. 197.

DEFENCE EVIDENCE :

23. After recording statements of the accused persons

under section 313 of Cr.P.C., they did not adduce any oral

evidence, but certain documents in respect of 800 Maruti

Car bearing No. GA01 / C 7900 and twowheeler Activa

Scooter No. MH12 / CM 9935 are placed on record on

behalf of accused No. 1 at Exh.184 and 185.

ARGUMENTS OF THE LEARNED SPECIAL P.P.:

24. The learned Special Public Prosecutor Shri. Vijay

Sawant submitted that the prosecution case stands on the

circumstantial evidence as there is no direct evidence

regarding commission of offence. According to him, the

prosecution has established the link of crime committed by

the accused persons. It is preplanned and coldblooded

murder. There is no evidence that the deceased had


provoked the accused for committing his murder. On the

contrary, by developing friendship by accused No.1 with the

deceased, she called him at Gajanan Maharaj Temple and

thereafter took him at Taljai Hill where accused No. 2 was

already present. From the evidence of P.W. 29 Balasaheb

Dhere, the learned Special PP pointed out regarding

presence of the accused No. 2 also at the cricket ground of

Taljai Hill. From the other witnesses, he has pointed that

there is evidence of last seen together the deceased and

accused No.1. So also, from the memorandum and seizure

of gold ornaments belonging to deceased, the learned

Special PP has submitted that no explanation has been

given on behalf of the accused persons as to how they came

in the custody of the ornaments of deceased. He has also

pointed out the evidence regarding blood stains found on

the Saree of the accused No. 1, from the seizure

panchanama of Saree and the Chemical Analyser report.

From the evidence of the investigating officer, it is pointed

out by the learned Special PP that there are timely

recording of station diary entries and preparing the reports

to show that there is no concoction of prosecution story. He

further pointed out from the arrest panchanama of accused

No.2 that there was injury to the finger of the hand of

accused No.2 and it was caused at the time of incident while


assaulting the deceased by means of knife and the

contradictory submissions have come on record from the

side of the accused No. 2 in respect of the said injury.

25. From the record of Telephone Companies and the

evidence of Noodle officers, the learned Special PP has

made submission that the prosecution has brought on

record the evidence regarding talks between accused No.1

and accused No.2, accused No. 1 and deceased, and accused

No. 1 and P.W. 8 Mukund Vaidya. It is further pointed out

from the evidence of P.W. 19 Sandeep Pasalkar that accused

No. 1 and 2 were knowing each other and they used to go by

the Hero Honda motorcycle of accused No. 2. From the

statements recorded of both the accused u/s. 313 of Cr.P.C.,

the learned Special PP pointed out that they have flatly

denied that they both are having acquaintance with each

other. So also, they have not given any explanation in

respect of incriminating evidence brought on record by the

prosecution and pointed out to them while recording their

statements and so for those nonexplained facts which are

within the knowledge of accused persons, an adverse

inference must be drawn against them, or the prosecution

story is to be believed.


26. Regarding identification of the accused persons in the

court by the concerned witnesses who had seen the accused

persons before the incident, the learned Special PP urged

that the said evidence is substantive piece of evidence in

order to accept the prosecution story. So also the witness

P.W. 29 Balasaheb Dhere who had lastly seen both the

accused persons with the deceased has also identified

accused No.2 during test identification parade and he was

already knowing accused No. 1 since prior to incident as she

was introduced to him by deceased and he has also

identified both the witnesses in the Court.

27. As per contention of the learned Special PP, no

evidence regarding enmity of the family members of the

deceased with any of the accused persons has been brought

on record by defence, and the family members of the

deceased have no any reason to implicate accused persons

falsely in this crime. He has also pointed out that by way of

defence, no any suggestion has been put either to the son of

the deceased or his friend P.W. 29 Balasaheb Dhere, or the

employees of the deceased that there was any business

rivalry of the deceased with any other person and that may

be the cause of his murder.


28. The learned Special PP has fairly admitted that the

delay was caused in recording statement of P.W. 29

Balasaheb Dhere by the investigating officer, but the said

delay has been explained. So also, according to him, there

may be some omissions or contradictions brought on record

during the evidence of witnesses, but those are minor in

nature and not damaging the prosecution case. On the

contrary, as per submission of the learned Special PP,

during cross examination of the prosecution witnesses on

behalf of defence, they have strengthen the prosecution case

by bringing on record certain facts favourable to

prosecution. Thus, according to the learned Special PP, the

prosecution has proved its case beyond reasonable doubt

and so he prayed for conviction of both the accused persons

for the alleged offence.

ARGUMENT OF DEFENCE ADVOCATES :

(A) ADVOCATE SHRI. DONGRE FOR ACCUSED NO. 1 :

29. As per contention of Advocate Shri. Dongre for the

accused No.1, as the prosecution case is based only on

circumstantial evidence, it is not so strong and trustworthy

for coming to the conclusion that the accused and only

accused has committed the said offence. He tried to point


out the contradictory versions of the witnesses by

submitting that during the trial, the witnesses have

deposed regarding finding of Activa scooter of the deceased

at the spot of incident though it was not in the name of the

deceased and was in the name of his son Rahul, but he is

also not examined by the prosecution. It is also pointed out

from the evidence of Police witnesses and the spot

panchanama that the vehicle found at the spot was the

motorcycle, nowhere they referred as Activa scooter.

30. Regarding the evidence of two boys who saw the

injured or dead body at the spot of incident while playing

cricket, it is pointed out by Advocate Shri. Dongre that P.W.

4 Jafar Shaikh admitted in his cross examination that

there were 3 to 4 dogs biting the dead body but this fact has

been denied by the other witness P.W. 7 – Sameer Sayyed.

He has denied those contents from his police statement.

31. Advocate Shri. Dongre has also ruled out the

possibility of giving mobile handset to any Nurse serving in

the hospital and taking care of any patient, thereby he

challenged the evidence of prosecution, more particularly

that of P.W. 8 Mukund Vaidya that he has given his mobile

handset having SIM Card No. 9766049110 to accused No. 1.


32. As per contention of Advocate Shri. Dongre, there is

no evidence on record either through the panch or

investigating officer that the Saree of accused No. 1 was

duly sealed in a packet while preparing seizure

panchanama and so he requested to discard the said

evidence regarding seizure of Saree. So according to him,

the C.A. Report regarding blood stain of the group of

deceased found at the said Saree can not be used against

the accused No.1.

33. Advocate Shri. Dongre also pointed out that there is

no seizure panchanama in respect of the call details from

the concerned telephone companies. So also, according to

him, the concerned officers of telephone company namely

Sunil Tiwari and Sachin Shinde have not been examined.

So also Exh. 83 does not show the call details on 08.03.2008

at or about 9.00 pm. So the document Exh. 83 can not be

used against the accused persons. It is further contended

that as per evidence of the panch and investigating officer

the so called gold ornaments recovered at the instance of

accused No. 1 were kept in plastic bag concealing in an

earthen flower pot, but while preparing seizure

panchanama, the said plastic bag has not been seized. So


also, regarding evidence of P.W. 13 Ravi Kannur, he has

nowhere stated regarding the spot where he had lost the

SIM Card and no any spot was pointed out by him. So the

memorandum of accused No. 1 pointing out the spot and the

evidence of the tea stall owner Dattatraya Khatpe of

Sinhagad is of no use.

34. Advocate Shri. Dongre has also raised doubt

regarding handing over the gold ring and wrist watch found

at dead body to P.W. 21 Amol Yemul as Police did not obtain

any receipt from him. He has further pointed out the

admission of the Jweller P.W. 23 Pravinkumar Oswal in

which he admitted that when he weighed ornaments, he did

not see any panch. So according to Advocate Shri. Dongre,

the recovery panchanama of the gold ornaments at the

instance of accused No. 1 is suspicious and doubtful.

35. Advocate Shri. Dongre urged to discard the evidence

of P.W. 29 Balasaheb Dhere by contending that his

statement was recorded by the investigating officer on

27.03.2008 i.e. after a long gap of the incident which took

place on 08.03.2008. According to him, P.W. 29 being the

friend of deceased, he is a got up witness and he did not see

deceased or any of the accused at Taljai Hill in the evening


of 08.03.2008 and so he did not come forward to give any

statement to the police though he got knowledge about the

murder of his friend, on next day of the incident. As per

further contention of Advocate Shri. Dongre, though the

investigating officer P.W. 34 PSI Sachin Patil deposed that

the accused No. 1 was called through P.W. 8 Mukund

Vaidya, this fact has not been disclosed during the evidence

by P.W. 8 Mukund Vaidya. Thus, according to Advocate

Shri. Dongre, the evidence adduced by the prosecution is

full of omissions and contradictions and such evidence can

not be said to be sufficient to connect the accused No. 1 with

this crime. So he prayed for acquittal of accused No.1.

(B) ADVOCATE SHRI. BHOITE FOR ACCUSED NO. 2 :

36. At the outset while assailing the prosecution story

regarding identification of accused No. 2 by P.W. 29

Balasaheb Dhere, Advocate Shri. Bhoite for the accused No.

2 contended that during his evidence, P.W. 29 did not

disclose the description of the clothes of the accused No. 2

and the cause on the basis of which he identified accused

No.2 during identification parade. It is also contended by

Advocate Shri. Bhoite that prosecution has not brought any

evidence on record regarding source of light available at


that time to see the accused No. 2 by P.W. 29 Balasaheb

Dhere at cricket ground of Taljai Hill. So the evidence of

P.W. 29 Balasaheb Dhere is doubtful. Advocate Shri. Bhoite

has also raised doubt as to how in the night time it is

possible to take walk at the hill. From the evidence of P.W.

29 Balasaheb Dhere that two persons namely Dixit and

Gangawane were with him while returning back towards

his Maruti Car, but he did not request those persons to give

push to his car. So also, he did not ask Dattatraya Yemul to

help him. So according to Advocate Shri. Bhoite, presence

of P.W. 29 Balasaheb Dhere at the spot of incident is

doubtful. Regarding identification parade conducted by

P.W.31 Tahsildar Smt. Asha Holkar, Advocate Shri. Bhoite

contended that she has not followed the rules and

guidelines as laid down by Hon'ble High Court for

conducting test identification parade. The specific place

where accused No. 2 was standing i.e. from which side, is

also not noted by Tahasildar in her memorandum Exh. 124.

From the same memorandum, he tried to point out that the

dummy persons were not of the same age group of accused

No.2. It is further submitted by Advocate Shri. Bhoite that

the photograph of accused No. 2 was shown to P.W. 29

Balasaheb Dhere in the Police Station before the date of

identification parade. So according to Advocate Shri.


Bhoite, the evidence on identification parade can not be

believed.

37. Advocate Shri. Bhoite further contended that the

prosecution has not brought any evidence in respect of the

so called rented house of accused No. 2 at Krishnamai

Society. During the alleged search of the aid house at the

instance of accused No.1, no any document has been seized

by the Police Officer in order to show that the accused No. 2

was residing in the said house. He pointed out that as per

prosecution story, at the instance of accused No. 2, the

ornaments were recovered which were kept in the barrel in

front of the said rented house from Krushnamai Society and

the investigating officer states that the barrel in which

ornaments were found was not covered whereas the panch

witness states that it was covered by something. According

to Advocate Shri. Bhoite, no any person can keep such

valuable ornaments in a public place, that too, in the

dustbin when the accused No. 2 had been to his native place

which is far away from Pune City, he would have carried

those ornaments with him if he had committed the alleged

offence. So according to him, this is improbable story of

prosecution.


38. According to Advocate Shri. Bhoite, the prosecution

has failed to bring on record, the evidence regarding so

called conspiracy hatched by accused No. 1 and 2 for

committing the alleged offence. From the evidence of P.W.

19 Sandeep Pasalkar, it is contended by Advocate Shri.

Bhoite that he had seen accused No. 1 and 2 while going on

the motorcycle from his house when he was bedridden due

to fracture of leg. The investigating officers have neither

seized the said Hero Honda Motorcycle nor produced any

document to show that any such motorcycle was in the

name of accused No. 2. As per contention of Advocate Shri.

Bhoite, even if the evidence of P.W. 19 Sandeep Pasalkar is

relied, the possibility can not be ruled out that the accused

No. 2 might have given lift on the motorcycle to accused

No.1. It is also contended that regarding love affairs of

accused No. 1 and 2, the evidence of P.W. 19 Sandeep

Pasalkar is hearsay. So his version can not be accepted.

39. Regarding seizure of two handsets of mobiles from

accused No. 1, Advocate Shri. Bhoite pointed out that the

panch P.W. 9 Sukhmal Dhiwar could not state the mobile

numbers. So also, as per contention of Advocate Shri.

Bhoite, there are no call details in respect of Mobile No.

9326844274 which was in the name of accused No. 2 found


with accused No. 1 to show that it was used for talking

either with deceased or accused No. 2 by accused No.1. So

also, no evidence by way of call details is produced on record

in respect of Mobile No. 9326058466 which was seized from

the possession of accused No.2 after his arrest, to show

that during the period of incident, it was used. So also

according to Advocate Shri. Bhoite, there is no entry at

Exh. 83 to show that there was talk between accused No. 1

and 2 either on 08.03.2008 or on 09.03.2008. Advocate

Shri. Bhoite has pointed out that accused No. 2 has already

given explanation during trial and also while recording

statement u/s. 313 of Cr.P.C. that the injury found on his

finger of the hand was caused to him while working in the

field at this native place. So considering evidence of

prosecution, according to Advocate Shri. Bhoite, it is not

sufficient to prove the guilt of accused No. 2 beyond

reasonable doubt, so he prayed for his acquittal.

MOBILE NUMBERS REFERRED IN THE CASE :

40. Mobile Numbers and names in which the SIM Cards

were registered as per record of Telephone Companies are

as under :


Sr. No.

Mobile No. / SIM Card

Name of the person as per record of Tel.Co.

Name of the person using Mobile/ SIM Card

[1] 9822601053 Rahul Yemul Deceased Dattatraya Yemul

[2] 9766049110

IMEI No. 358073018958800

P.W. 8 Mukund Vaidya

Accused No. 1 – Anita @ Meean

[3] 9860692134 P.W.14 Pradeep Kurki

Accused No. 1 – Anita @ Meena

[4] 9420206683 Wife of P.W.27 Suresh Ranawade

P.W. 27 Suresh Ranawade

[5] 9860314076 P.W.28 Sadanand Sutar

P.W.28 Sadanand Sutar

[6] 9326844274 Accused No. 2 – Ajay Ghag

Accused No. 1 – Anita @ Meena

[7] 9326058466 Accused No. 2 – Ajay Ghag

Accused No. 2 – Ajay Ghag

[8] 9422037370 P.W.29 – Balasahabe Dhere

P.W.29 – Balasaheb Dhere

[9] 9822066496 P.W.8 Mukund Vaidya

P.W. 8 – Mukund Vaidya


CITATIONS – RELIED BY SPECIAL PP SHRI. SAWANT:

41. In support of different points raised during

argument, the learned Special Public Prosecutor Shri.

Sawant placed reliance on the following various decisions of

Hon'ble Bombay High Court and Hon'ble Apex Court.

[A] On the point of Criminal Jurisprudence and Appreciation of evidence :

[i] “State of U.P. Vs. Anil Sing – AIR 1988 S.C. 1998.

The Hon'ble Apex Court has observed that :

“In the great majority of cases, the prosecution version is rejected either for the want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all the witnesses to the occurrence. The different attitude of the public in the investigation of the crimes could also be pointed. The public are generally reluctant to come forward to depose before Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to occurrence have not been examined or for the want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the


witnesses add embroidery to prosecution story perhaps for the fear of being disbelieved. But it is no ground to ground to throw the case overboared, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”

[ii] “Inspector of Police, Tamil Nadu Vs. John David –

2011 Cri. L. J. 3366 (Supreme Court)”

In Para – 38 of the said Judgment, the Hon'ble Apex Court

has referred it's earlier Judgment reported in “AIR 2000

S.C. 185” in which it is held that,

“The court must have predominance and preeminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it. So the minor loopholes and irregularities in the investigation process cannot form the crux of the case.”


[iii] “State of Punjab Vs. Krnail Singh – 2003(3) Crimes 292 (Supreme Court)”.

It is observed that

“Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice can not be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis putforward by the accused.”

[B] On the point of Circumstantial Evidence :

[i] “Ramesjbhai Mohanbhai Koli Vs. State of Gujrat 2010(4) Crimes 325 (Supreme Court)”.

It is observed that

“A false plea taken by an accused in a case of circumstantial evidence is an additional link in the chain of circumstances.”

[ii] “Aftab Ahmad Anasari Vs. State of Uttaranchal –

2010 (1) Crimes 97 (Supreme Court)” Regarding circumstantial evidence, it has been observed

that

“There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused.”


[C] On the point of recovery / discovery U/s. 27 of

Evidence Act :

[i] “Dinesh Bhulakhi Harijan Vs. State 2009(1) Mh. L. J. (Cri.) 185” As per said decision of our Hon'ble High Court,

“Discovery of a fact in pursuance of information received from a person accused of an offence in the custody of a police officer triggers the application of Section 27, that part of the information which relates distinctly to the fact thereby discovered can be proved.”

[D] On the Point of Statement of accused u/s. 313 Cr.P.C. [i] “Wilfred Rozario Fernandes Vs. State of Maharashtra

2011 (1) Bom. C.R. (Cri.) 282” In this case, while recording statement u/s. 313 of Cr.P.C.,

the accused could not offer any explanation about blood

stained clothes or his absconding, it is held that

“All circumstances taken together were clear pointers towards guilt of accused”.

It is further observed that

“False answer given to questions in his examination u/s. 313 of Cr.P.C. furnished additional link against the accused. The accused is required to prove the facts which were entirely within his special knowledge u/s. 106 of the Evidence act.”


[ii] Shivanna Bhimsen Lokhande Vs. State of Maharashtra – 2009(2) Mh. L.J. (Cri.) 529” It is on the point of allegations by accused regarding

tampering of the evidence collected by the Investigating

Officer. It has been observed that

“There is no material on the record to indicate the possibility or likelihood of the evidence collected to have been tampered with or interpolated. No such suggestion has been put to the Investigating Officer during the course of crossexamination. No prejudice is established or shown.”

In Para – 8 of the Judgment, it has been observed that

“U/s. 313 of Cr.P.C., the accused denied recovery of his clothes. There was no explanation of the circumstances in which the bloodstains had appeared on his clothes”.

So the conviction of the conviction of the accused on the

basis of circumstantial evidence was confirmed.

[iii] “Sanatan Naskar Vs. State of West Bengal 2010 (3) Crimes 201 (Supreme Court)”

As per said decision

“Answers by the accused u/s. 313 of Cr.P.C. are of relevant for finding out the truth and examining the veracity of the case of prosecution. The scope of


Section 313 Cr.P.C. is wide and is no mere formality. The said provision provides the accused an opportunity to explain incriminating circumstances appearing against him and at the same time also permit him to put forward his own version or reasons if he chooses in relation to his involvement or otherwise in the crime. However, if the statement made by the accused are false, the Court is entitled to draw adverse inference and pass consequential orders as may be called for in accordance with the law.”

However, it is further observed that

“Conviction of the accused cannot be based merely on the statement made u/s. 313 of Cr.P.C. as it can not be regarded as a substantive piece of evidence”.

[E] On the point of Identification of the accused at the time of trial

[i] “Ranjyotsingh Gurudayalsingh Vs. State ofMaharashtra – 2009 (1) Mh.L.J. (Cri.) 134”

It is observed by Division Bench of our Hon'ble High Court

that

“Identification of an accused at the trial is substantive evidence, though the evidence of identification in test identification parade is not substantive evidence but is only corroborative evidence”.

[H] On the point of entries in station diary by Police

officers


[i] “State of Maharashtra Vs. Ganesh Shamrao Andekar – 2007(1) Mh. L.J. (Cri.) 756”

As per this decision of Division Bench of our Hon'ble High

Court,

“Sequence of events and the speed with which entries came to be recorded differently, rules out the possibility of concoction and fabrication.”

[ii] “Maqbool @ Zubir @ Shahnawas Vs. State of A.P. 2010 (3) Crimes 149 (Supreme Court)”

Considering the evidence regarding the entries taken by the

Police Officers in the Station diary, it has been observed

that

“The extracts from Station Diary provide substantial support to the case of prosecution.”

[I] On the point of minor discrepancies and improvement in the evidence by the witnesses

[i] “Bharwada Bhoginhbhai Hirjibhai Vs. State of Gujrat 1983 Cri. L.J. 1096(1) (Supreme Court)”

As per said decision,

“overmuch importance can not be given to minor discrepancies which do not go to the root of the matter and shake the basis version of the witnesses.”


[ii] “Ramesh Baburao Devaskar Vs. State of Maharashtra 2004(2) Bom.C.R. (Cri.) 928” It has been held by Hon'ble High Court that

“If Police do not question the witness in relation to something which may have happened and therefore, there is no answer which is reduced into writing u/s.161 of Cr.P.C., witness can not be discredited for not stating something which he states in Court. Such statement in Court without there being corresponding statement u/s. 161 of Cr.P.C. can not be termed as improvement. If it pertains to insignificant fact which has no bearing on facts and evidence of that case, minor improvements, contradictions and omissions are liable to be ignored while appreciating evidence of witness as a whole.”

CITATIONS : RELIED BY ADVOCATE SHRI. DONGRE FOR ACCUSED NO. 1

[i] “Mustkeem @ Sirajudeen Vs. State of Rajasthan – 2011(3) Crimes 118 (Supreme Court)”

The reliance is placed on the observations of Hon'ble Apex

Court in respect of circumstantial evidence, in Para – 25 of

the Judgment, which says

“It is too well settled in law that where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any


other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be decided on the touchstone of law relating to circumstantial evidence which has been well settled by this Court.”

The Hon'ble Apex Court has referred the features which are

required to be complied with while appreciating

circumstantial evidence as laid down in the case of “Sharad

Birdhichand Sarda Vs. State of Maharashtra” reported in

“1984(4) SCC 116 ”.

[ii] “Dasu and others Vs. State of Maharashtra 1985 Cri. L. J. 1933 (Bombay High Court)” In the said case, the blood stained clothes were not wrapped

and sealed immediately after seizure in the presence of

panchas. So while appreciating the said evidence, Hon'ble

High Court has observed that

“It is bound to affect probative value of the findings of the chemical analyser.”

CITATIONS – RELIED BY ADVOCATE SHRI. BHOITE FOR ACCUSED NO. 2 [A] On the point of Circumstantial evidence [i] “Chandanmal Vs. State of Rajastan –

AIR 1976 S.C. 917”.


[ii] “Jagannath Damji Vs. State of Maharashtra 2002 All MR (Cri.) 2231 (Bombay High Court)”

As per these decisions, when the case based entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of definite tendency unerringly pointing out guilt of accused. Thirdly, the circumstances taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability, the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt”.

It is further observed that the

“Falsity of defence of failure to give reasonable explanation can not be substituted as proof, particularly, when prosecution has failed to establish the offence against accused beyond reasonable doubt. The circumstances may at the most raised suspicion against the accused but suspicion howsoever strong can not displaces the proof which is required to be established by the prosecution.”

[B] On the point of conspiracy : [i] “Rajendra @ Raju Netrapal Vs. State of Maharashtra

2010 All MR (Cri.) 449”.


As per said decision, the charge of conspiracy can be proved by direct as well as circumstantial evidence and most of the times, direct evidence to prove the charge of conspiracy is not available because conspiracy is generally hatched under secrecy and executed in dark. However, even when direct evidence to prove the charge of conspiracy is not available, it is necessary for the prosecution to establish the charge beyond reasonable doubt for which prosecution may rely on the circumstantial evidence. When the prosecution relies on circumstantial evidence, chain of all circumstances must be complete to rule out any hypothesis of innocence”.

[C] On the point of last seen together

[i] “Tukaram Vithal Bhangare Vs. State of Maharashtra 2011 All MR (Cri.) 2407.”

As per said decision, the evidence of last seen is weak type of evidence, however, if it is convincing, trustworthy, inspires confidence and is corroborated by other prosecution evidence, it can safely be relied upon.”

[D] On the point of identification of accused

[i] “Bablya Baliram Madhvi Vs. State of Maharashtra 2011 All MR (Cri.) 3302”

In the said case, three witnesses identified two accused boys during test identification parade conducted by Tahasildar. However, statement of Tahasildar in cross examination shows that identification parade was not conducted as per


procedure in law. So the conviction of two boys on the basis of identification parade has been set aside.

[ii] “Shaikh Umar Ahmed Shaikh Vs. State of Maharashtra – 1998 Cri.L.J. 2534 (Supreme Court)”

It has been observed by Hon'ble Apex Court that

“There was strong possibility of the accused having been shown to the witnesses before identification parade”.

So conviction recorded by relying on identification of the accused by the said witnesses in the court is held as not justified and their identification in the court is meaningless”.

[ii] “Habal Shaikh Vs. State – 1991 Cri.L.J. 1258 (Bombay High Court)” In the said case, witnesses in their statements or in oral

evidence neither give any description of the accused whom

they alleged to have identified in the commission of crime

nor do the witnesses give any identification marks viz.

statuary of the accused or whether they were fat or thin, or

of fair or black complexion. So it is held that

“It will be unsafe to convict any accused on the basis of a single identification as in such case, the reasonable possibility of mistake in identification, can not be excluded.”


In the said case, delay of 4 to 5 months was caused in

conducting identification parade and no explanation was

given for delay in holding test identification parade, so it

was also doubted.

[E] On the point of appreciation of evidence [i] “Sunil Bhagwan Bhende Vs. State of Maharashtra 2002 All MR Cri. 217”

As per said decision, for the proof of serious offence of murder by two or more persons in furtherance of common intention, the evidence must be adduced which must satisfy the tests of proof beyond all reasonable doubts. To greater the charge, the stricter has to be proof. The evidence can not be shaky in correct but must positively point out that the authors of crime were none other than the accused.

In the said case, according to eye witnesses, 50 have

assembled. So it is held that

“Finding of guilt can not be based beyond assumption or presumption, particularly, when the evidence of witness who was essential witness and her evidence would have been thrown light upon genesis, motive and links in the chain of circumstances leading to sure conclusion, but the said evidence was withheld by the prosecution.”


[F] On the point of omission

[i] “Lahanu Waman Vs. State of Maharashtra 2011 All MR (Cri.) 3371.” It has been observed that

“Omissions and contradictions going to the root of the matter and certainly diminishing credibility of testimony of witnesses and held that such defective testimony can not be relied upon to the basis of conviction against the accused.”

[G] On the Point of delay for recording statement during investigation

[i] “Bablya @ Baliram Shivram More Vs. State of Maharashtra 2010 All MR (Cri.) 2677”

As per facts of the said case, several villagers were present

at the spot and virtually they received knowledge about the

incident on the same day or within 2 / 3 days of the

occurrence i.e. on 26.05.2007. However, the statement of

one of the eye witnesses was recorded after 14 to 15 days

who was educated upto 10th standard and working as

Anganwadi Sevika. The trips of police personnel in village

in relation to the investigation of the crime was going on.

On this background, Hon'ble High Court held that


“Such delayed recording of statement without proper explanation is very difficult for acceptance and it is not safe to rely on the said witness to confirm the conviction of the appellant”.

[F] On the point of recovery or discovery u/s. 27 of the

Evidence Act [i] “Inspector of Police Tamil Nadu Vs. John David 2008 All MR (Cri.) 3257 (Supreme Court)” (Already referred by learned Special PP Shri.Sawant)

The various requirements of Section 27 of Evidence Act in respect of the recovery or discovery of the fact have been summed up in this decision, such as, it must be relevant in issue, it must have been discovered, discovery must be in consequence of the information received from the accused, he must be in police custody etc.”

[ii] “Thimma Vs. State of Mysore – 1971 S.C. 1871”.

As per this decision,

“U/s. 27 of Evidence Act, a fact already discovered from other source can not be discovered afresh even if relevant information is extracted from the accused.”

[iii] “State of Maharashtra Vs. Bharat Rambhau Shisat2006 All MR (Cri.) 826”

As per this decision,

“Panchanama of seizure u/s. 27 of the Evidence Act, not bearing signature of accused, is a weal piece of evidence.”


[iv] “State of Rajasthan Vs. Talevar – 2011 All MR (Cri.) 2340 (Supreme Court)”

It was the case of dacoity and the stolen properties were recovered from the accused. Considering the provisions of Section 114 of Evidence Act, it has been observed that where only evidence against the accused is recovery of stolen properties, then though the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of stolen property had committed murder. It also depends on the nature of the property so recovered whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof.”

[iv] “Devraj Deju Suvarna Vs. State of Maharashtra 1994 Cri. L.J. 3602 (Bombay High Court)”

In the said case, recovery of the chopper was made while

accused was handcuffed. It is held that,

“It could not be said beyond reasonable doubt that recovery was voluntary and not result of duress, threat or pressure by police authorities.”

[v] “State of Maharashtra Vs. Ashok Hanumant 2006 All MR (Cri.) 15” In the said case, the Division Bench of Hon'ble High Court

did not accept the evidence regarding recovery of

bloodstained clothes as trustworthy and so it is held that


“The evidence with regard to Chemical Analyser's report looses its importance and it has to be discarded.”

AS TO POINT NOS. 1 TO 9 :

42. As all these points though are in respect of different

offences punishable under different sections of I.P.C., for

coming to the conclusion of all the points, the common

evidence needs to be discussed. So in order to avoid

repetition of facts and evidence by discussing each point

separately, I have taken liberty to discuss all these points

together.

43. The main allegation of the prosecution is regarding

the criminal conspiracy by both the accused in order to

commit different offences of which the main offence is of

murder, punishable u/s. 302 and robbery, punishable u/s.

394 of IPC. Section 120(A) of I. P. C. defines the criminal

conspiracy whereas in Section 120(B), the punishment is

provided for criminal conspiracy which is equivalent to the

punishment provided for the alleged offence.

44. Hon'ble Apex Court in the landmark Judgment of

“State of Tamil Nadu Vs. Nalini and others” i.e. regarding


assassination of the then Prime Minister Shri. Rajeev

Gandhi, reported in “AIR 1999 Supreme Court 2640”, the

criminal conspiracy has been discussed with reference to

various earlier decisions of Hon'ble Apex Court. It has been

said that

“Every one of the conspirators need not have taken active part in the commission of each and e very one of the conspiratorial acts for the offence of conspiracy to be made out. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof.”

“Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial, but the Court must inquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. It is essential that the offence of conspiracy requires some kind of physical manifestation of agreement. However, no express agreement or actual meeting of two persons or the actual words of communication, is necessary. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.”


“A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity.”

45. Thus, in the light of above observations of Hon'ble

Apex Court in respect of 'criminal conspiracy' and decisions

referred by respective Advocates and the learned Special

PP, it is necessary to scrutinize the evidence produced on

record, that too, minutely as the entire prosecution case is

based on only circumstantial evidence.

46. It would be just and proper to discuss first the

evidence regarding acquaintance of accused No. 1 and 2

with each other as during the trial and while recording

their statements u/s. 313 of Cr.P.C., they have denied that

they have any such acquaintance or they are knowing each

other. This evidence is in the form of oral evidence of the

witnesses and the documentary evidence by way of seizure

of the mobile handsets and the call details collected from

the respective telephone companies.

47. As per oral evidence of P.W. 19 – Sandeep Pasalkar,

he is resident of Lower Indiranagar, Bibvewadi. According


to him, since last about 25 years, he is residing there and

since long back, accused No. 1 Anita resides one house after

his house. So also, according to him, the accused No. 2

Ajay Ghag resided in the said locality for about 4 to 5 years

and so he knows both the accused persons. His further

evidence shows that there was the love affairs between both

the accused persons and this fact was also known to other

persons from the locality. For about 5 to 6 times, this

witness had seen both the accused persons going on

motorcycle of accused No. 2. He has also disclosed that he

was having cordial relations with both the accused persons

and even he had occasion to talk with them.

48. The evidence of this witness has been challenged on

behalf of accused persons on the ground that the accused

No. 1 was already married and only after seeing both the

accused persons going on motorcycle, the witness was

deposing regarding their love affairs and he had never seen

them while going from the house of the accused No.1. So

also, the said witness never disclosed about the said love

affairs either to the husband or parents of accused No.1.

During his examinationinchief, the witness suomotu

disclosed that the motorcycle of accused No. 2 was Hero

Honda and this fact was stated by him to the police while


recording his statement and the said fact is not appearing

in his statement recorded by the Investigating Officer.

However, the said omission has not been brought on record

during cross examination of the Investigating Officer who

recorded his statement. So it can not be said in view of

decision cited by the learned Special Public Prosecutor that

this is exaggeration of fact. The possibility can not be ruled

out that the Police Officer might have forgotten to mention

the said fact or in order to show that the witness has

knowledge about the company of motorcycle, he suomotu

disclosed the company of motorcycle in the Court.

Regarding the aforesaid contention raised on behalf of

defence, I do not think that the evidence adduced by the

witness in respect of going together on the motorcycle of

accused No.2, is false and / or not true. The witness has no

reason to speak against the accused persons as he was

having cordial relations with them. At the most the fact of

love affairs may not be considered, but from this evidence, it

can be safely come to the conclusion that both the accused

persons were knowing each other since prior to the incident.

It was not necessary for this witness to disclose about the

love affairs to the husband or parents of accused No.1 as he

was never asked by them. So also nonproduction of the

documents to show that any Hero Honda motorcycle is


owned by accused No. 2 or nonseizure of the said

motorcycle, does not affect the prosecution case. The

witness is aware that accused No. 1 was serving as Nurse

and her financial condition was poor. It shows awareness

regarding entire family of accused No. 1 by this witness.

Thus, considering all these circumstances, I do not find any

reason to disbelieve the version of this witness.

49. The second witness on this point, is P.W. 2 –

Dattatraya Khatape who is running the tea stall near four

wheeler parking at Sinhagad. According to him, on

18.03.2008, Police had come at his stall for inquiry. One

lady was with them. He identified accused No. 1 in the

court as the same lady. He has further deposed that on

inquiry with the Police, he had told that before about 15

days, the said lady had come with one man at Sinhagad and

after drinking tea at his tea stall, they went away. During

the trial, he identified the accused No. 2 as the same

person who had come with the accused lady. During his

cross examination, he has denied that he can not recollect

as to who / customer had come at his tea stall and when. So

from this answer, inference can be drawn that the memory

of this witness is so strong that he can remember his

customers by face. During cross examination of the


Advocate on behalf of accused No. 2, the witness has made

very much clear that on Sunday, about 100 customers visits

at his stall and on every day, the strength is less than 50. So

he remember each and every customer who are visiting

other than Sunday. As per prosecution case, on the day on

which both the accused persons visited the tea stall of this

witness, accused No. 1 got one SIM Card below a tree near

fourwheeler parking at Sinhagad. The said SIM card was

belonging to P.W. 14 Pradeep Kurki which was given by him

for use to his friend P.W. 13 Ravi Kannur. As per evidence

of these witnesses, they had been to Sinhagad on

02.03.2008 and at that time, the SIM Card was lost there.

During cross examination of these witnesses, nothing has

been brought on record that on 02.03.2008, it was Sunday.

So it was odd day. P.W. 2 – Dattatraya Khatpe was able to

remember faces of his customers and accordingly he

identified accused persons in the Court. Thus, he has

corroborated the version of P.W. 19 – Sandeep Pasalkar that

both accused persons used to go together by motorcycle of

accused No.2. Otherwise, this witness has no reason to

implicate falsely or to identify accused persons.

50. On this point, the last oral evidence is that of P.W. 29

– Balasaheb Dhere, who had seen both accused persons at


the same time in presence of deceased at Taljai Hill in the

night of incident i.e. at about 9.30 pm on 08.03.2008.

According to him, accused No.1 had come with the deceased

on his Activa scooter, whereas, accused No. 2 had come by

his motorcycle and at some distance, he was standing and

the gesture was going on between accused No. 1 and 2 while

he was talking with the deceased. I am going to discuss the

evidence of this witness in detail in subsequent part. At

this juncture, from the evidence of these three witnesses, it

can be said that the prosecution has brought on record

evidence beyond reasonable doubt showing acquaintance of

accused No. 1 and 2 with each other.

51. Regarding documentary evidence produced on record

regarding acquaintance, it is the call details of Mobile

phones.

52. Regarding said call details, the objection has been

raised on behalf of defence that there is no any seizure

panchanama prepared by the investigating officer while

collecting the call details from the offices of telephone

companies, and the concerned Noodle Officers have not

been examined. But I do not find any substance in this

contention. For the purpose of collecting call details from


the respective telephone companies, the Investigating

Officer is not required to seize those documents and to

prepare panchanama accordingly. The panchanama filed

on record Exh. 83 has been duly proved during the evidence

of the panch witness P.W. 11 – Narsing Adep. The said

panchanama is regarding call details already collected by

P.W. 34 – PSI Shri. S. D. Patil and those call details were

seized in this crime by the another Investigating Officer,

P.W.33 – API Shri. S. G. Kulkarni (now working as Dy.S.P.)

from P.W. 34 – Shri. S. D. Patil. Those call details were

already collected by Shri. S. D. Patil from the respective

telephone companies. Moreover, those call details vide Exh.

83 (A1 to A10) have been duly proved during the evidence

of P.W. 16 – Noodle Officer of Idea Cellular Company

namely Mr.Dattatraya Angre and the other call details Exh.

83 (B1 to B7, C1 to C4, and D1 to D5) have been duly

proved from the evidence of P.W. 15 – the Noodle officer of

Bharati Airtel Company namely Mr.Chetan Patil. These

documents also include the letters received from ACP,

calling those call details from the respective companies. As

per evidence of these witnesses, their computer system is

automatic regarding incoming and outgoing calls in respect

of SIM Cards of their company and there is no possibility of

tampering the computerized record. After receiving letters


from the concerned ACP, they have submitted the required

information. During their cross examination, I do not find

anything to disbelieve their evidence as on the basis of their

office record, the required information was sent to the

Police Officers. It is true that the Noodle Officers working

at the relevant time, have not been examined by the

prosecution, however, considering the concerned technical

record of the office and nonpossibility of tampering the

record, the evidence of these witnesses is to be accepted and

the call details submitted by them have to be believed.

53. As per evidence of P.W. 8 – Mr. Mukund Vaidya, while

his Aunt was admitted in the hospital, the accused No. 1

was working there as Nurse and serving the said patient.

Considering the services tendered by her and in order to

contact her whenever required, Mukund Vaidya had given

his mobile handset having SIM Card No. 9766049110 to

accused No. 1 Meena in the month of November 2007. The

mobile handset having IMEI No. 358073018958800 is of

Nokia company having black colour. P.W. 8 Mukund Vaidya

did not take back the said mobile from accused No.1. As per

his evidence, whenever accused No.1 wanted to talk with

him, she was giving missed call.


54. During cross examination of this witness, it has come

on record that he was having another mobile handset

bearing No. 9822066496. During cross examination, it has

come on record that while recording statement by the

Police, the witness did not state that accused No. 1 used to

give him missed call to contact him. But he has given

explanation that police did not ask him about it. This

explanation can be accepted and for the said omission in his

police station, the version of this witness can not be

discarded in view of the decision cited supra by the learned

Special Public Prosecutor.

55. As per evidence of the Investigating Officer, with the

help of this witness P.W. 8 Mukund Vaidya, the accused

No. 1 was called near Natraj Hotel on 12.03.2008 in

Swargate Chowk and after the arrest, her Saree and two

mobile handsets were seized from her; one of which was of

black colour Nokia mobile handset bearing No. 9766049110.

The evidence of the Investigating Officer has been

corroborated by the panch witness P.W. 9 – Sukhamal

Dhiwar. Admittedly, this witness could not state the mobile

numbers of the seized two mobile handsets and it is quite

impossible for any person to remember such number of

other persons having no contact and that too after the


period of two years. However, the said witness has

identified the two handsets shown to him from Muddemal

Property. Moreover, he has stated regarding sealing of

those handsets and putting his thumb impression thereon.

The panchanama Exh. 79 also bears his thumb impression.

During his cross examination, he has denied that at the

time of panchanama, those handsets were already lying on

the table in Police Chowky. On the contrary, he has stated

specifically about the presence of accused No. 1 and also

identified her in the Court. So I do not find any reason to

discard his version.

56. As per said panchanama Exh. 79, another mobile

handset was of Reliance Company having silver colour

bearing No. 9326844274. It is true that in the panchanama,

it is nowhere mentioned as to how the Investigating Officer

came to know about the numbers of this mobile at the time

of preparing panchanama. But as per evidence of the

Investigating Officer, at the same time, the numbers were

traced out. The learned Special PP has submitted that it is

very easy to trace out the number of other working Mobile

handset by giving miss call from the said Mobile to another

Mobile. So there is every possibility that by giving miss call

on the Mobile of the investigating officer, those numbers


have been traced out. Moreover, P.W. 8 Mukund Vaidya was

the person to disclose the number of his mobile given by

him to accused No.1.

57. After the arrest of accused No. 2 Ajay Ghag on

15.03.2008, one mobile handset was seized from him

bearing No. 9326058466. The seizure panchanama of the

said mobile handset and the cash of Rs.1900/ found with

the accused No. 2 at Exh. 53 has been duly proved from the

evidence of one of the panch witnesses P.W. 2 – Sagar Awate

and the Investigating Officer P.W. 33 – Shri. Sunil

Kulkarni. It is pertinent to note that the panch witness has

disclosed the number of the Mobile found with the accused

No. 2, in his examinationinchief recorded on 05.11.2009

and also in cross examination recorded on 12.01.2010. He

has specifically deposed that he is in a position to remember

mobile number in his memory once it is told to him and

more particularly if any such number is important. He has

also disclosed in his cross examination that he felt the

number to be important as he was acting as panch and so

he has stated the said number during the evidence. He has

specifically mentioned that the said mobile number was not

told to him during the period between preparing

panchanama and recording his evidence. Thus, during


cross examination on behalf of accused persons, the version

of this witness has not been shaken by any means. He has

no reason to speak lie against the accused No.2.

58. As per the record of telephone companies i.e. call

details at Exh. 83 (C1 to C14), there are entries in respect

of talk taken place from or with Mobile No. 9766049110

with or from Mobile No. 9822066496 (which is in the name

of and was in use of P.W. 8 Mukund Vaidya) and Mobile No.

9326844274 which is in the name of accused No. 2 Ajay

Ghag and subsequently it was seized from the custody of

accused No. 1 Meena. The entries in respect of these phone

numbers of accused No. 2 are of dated 07.02.2008,

11.02.2008, 15.02.2008, 21.02.2008 and 25.02.2008.

59. The same document shows that there was talk in

between two mobile numbers i.e. 9766049110 and

9326058466 which has been seized from the custody of

accused No. 2 on his arrest vide Exh. 53. The concerned

entries at Exh. 83 (C1 to C14) are dated 23.02.2008

(Seven entries), dated 26.02.2008 (three entries), dated

27.02.2008 (five entries), dated 28.02.2008, dated

29.02.2008 (two entries), dated 01.03.2008 (two entries) and

dated 10.03.2008.


60. As per evidence of P.W. 18 – Sachin Sherla and the

investigating officer P.W. 33 Shri. Sunil Kulkarni, while

accused No. 1 Meena was in police custody on 18.03.2008 in

presence of panchas, she gave memorandum disclosing that

she found SIM Card at Sinhagad and showed the

willingness to show the said spot and accordingly her

memorandum Exh. 98 was recorded. Then she took the

panchas and police on Sinhagad and showed the spot where

SIM card was found which was near fourwheeler parking

below the Suru Tree and accordingly, panchanama was

prepared vide Exh.99. As per evidence of P.W. 13 Ravi

Kannur and P.W. 15 Pradip Kurki, the said SIM card

bearing No. 9860692134 was lost at Sinhagad.

61. There is oral and documentary evidence produced by

the prosecution to show that the said SIM card was being

used by accused No. 1. For that purpose, two witnesses

P.W. 27 – Suresh Ranawade and P.W. 28 – Sadanand Sutar

both from Taluka Kanakawali, District – Sindhudurga,

have been examined. Their house is adjoining to the house

of father of accused No. 1 at the village which was under

repairs. So while the father of accused No. 1 was residing

at Pune along with accused No.1, he had telephoned both


these witnesses asking progress in the work of repairs of

the house and he had telephoned to these witnesses on

their mobiles from the mobile of accused No. 1 bearing No.

9860692134. Regarding the talks, the call details are

produced on record vide Exh. 83 (C1 to C14). The entry

dated 03.05.2008 bearing correspond to the version of these

two witnesses. The calls were received by them on the

respective mobile Nos. 9420206683 (P.W.27) and

9860314076 (P.W.28). So this evidence also corroborates

that the accused No. 1 was using Mobile No. 9860692134.

62. As per Exh. 83 (D1 to D5), the last calls received on

the mobile of the deceased bearing No. 9822601053 were

from Mobile No. 9860692134. There are six last entries

dated 08.03.2008 from 12 noon to 9.17 pm. These entries

show that the accused No. 1 had last talked on the day of

incident with deceased.

63. During the trial and even while recording statements

u/s. 313 of Cr.P.C., it is nowhere challenged on behalf of

accused persons that they were not using the aforesaid

mobile numbers. So also inspite of aforesaid oral and

documentary evidence produced on record on behalf of

prosecution, no submission is made on behalf of the accused


as to how and why they used to talk with each other on

telephone when according to them, they were not having

any acquaintance. So this evidence adduced on behalf of

prosecution is sufficient for coming to the conclusion that

both the accused persons were having acquaintance since

prior to the date of incident and they were in contact with

each other, many times in a day. So also they used to meet

each other and used to remain in the company together.

64. The fact regarding homicidal death of the deceased

has been proved from the postmortem report and the

evidence of the Medical Officer P.W. 22 Dr. Taware. As per

his evidence, on 09.03.2008, in Sassoon Hospital, he

conducted postmortem examination on the dead body and

he found several chop, stab, incised wounds all over body. So

also, corresponding internal injuries were also found during

examination of the Head and Thorax. Except one injury i.e.

laceration from left forehead to left shoulder vertically left

chin to left occipital region, all the other injuries were fresh

and antemortem. The approximate time of the death was

within 12 to 18 hours before postmortem examination. The

postmortem examination was conducted between 4.30 to

5.45 pm on 09.03.2008. So the death must have been

caused before 4.30 am of 09.03.2008, i.e. in the night of


08.03.2008 and 09.03.2008. At the time of preparing spot

panchanama Exh.137, a knife, a nylon rope having blood

stains and a stone placed on the back of the dead body etc.

were seized. These articles were shown to Dr. Taware

during the trial and as per his opinion, in case a nylon rope

is tied around the neck of a person and he is dragged, then

the multiple linear abrasions over the neck, below right

Pina and in front of right tragus as mentioned in

postmortem report vide injury No. 12, 14 and 15 are

possible. At the same time, the laceration under right angle

of mandible and chin vide injury No. 6 and 7 are also

possible if a person is dragged under this situation. The

stab and incised wounds mentioned at Sr. No. 8, 9, 10, 11,

22 and 23 of Column No. 17 of Postmortem Report can be

caused by the seized article knife and injury No. 1 i.e. chop

wound over right occipital region of head, bone deep with

fractured underlines bone and Injury No. 21 chop wound

over palmer aspect of right index finger can be caused in

case the seized stone is thrown on the body of a person. In

the opinion of Dr. Taware, the external injuries

cumulatively with internal injuries were sufficient in the

ordinary course of nature to cause death. As per

postmortem report Exh. 108, in the opinion of the Medical

Officer, the death was caused due to traumatic and


hemorrhagic shock due to chop injury and blunt injuries

over head with stab injuries over neck”.

65. During argument, from the evidence of a boy who saw

the dead body while playing cricket, it was tried to point out

that the Dogs were biting the dead body and so indirectly it

was tried to suggest that the death might have been caused

by biting of any such animal. But no evidence has been

brought on record on behalf of defence by putting

suggestion to any of the prosecution witnesses that there

can be presence of any wild animal at Taljai Hill. So the

possibility of death by wild animal has been ruled out. It is

quite possible that after seeing dead body lying there in

lonely place, Dogs might have gathered there and were seen

by the witnesses while biting the dead body. Moreover, as

per evidence of the medical officer Dr. Taware, there were

several stab, incised and chop wounds which can not be

possible by biting of any wild animal. So I have no

hesitation in coming to the conclusion that the death of

Dattatraya Yemul was homicidal.

66. It is the allegation of the prosecution that the accused

persons hatched conspiracy in order to commit murder of

the deceased and to rob his ornaments. Regarding


ornaments which were always remained on the person of

the deceased, there is evidence of the son of the deceased

P.W. 21 Amol Yemul. It has been proved that on the dead

body, only one ornament i.e. gold ring was found in the ring

finger. As per evidence of P.W. 21 Amol, his father used to

wear two gold chains, out of which, one was Goaf, a bracelet

on which the name of the deceased as 'Dattatraya' was

embossed, and 4 gold rings, out of which, one was of

'Nazarana' pattern, one Vedhani and other two were of

ordinary rings. Thus, when the dead body was found, the

gold ornaments i.e. one chain, goaf, one bracelet, and three

rings were missing.

67. In order to prove the guilt of the accused regarding

conspiracy for committing these offences, the prosecution is

relying on the evidence of the owner of Medical Store and

the owner of the Sweet Home. As per evidence of P.W. 17

Gaurav Vora, the proprietor of Medical Shop, on 08.03.2008,

accused No. 1 purchased four tablets of Ativan – 2 mg. At

that time, accused No. 1 had shown him her photo identity

card in respect of her service as Nurse. So without

prescription, he delivered the Ativan tablets to her.

68. As per evidence of panch P.W. 12 – Jagdish Gujrathi

and the investigating officer P.W. 33 – then API Shri.


Sunilkumar Shinde, in view of memorandum given by

accused No.1 on 15.03.2008 vide Exh. 85, a strip containing

two Ativan tablets has been recovered. From the said strip,

out of four tablets, two were used. Accordingly, seizure

panchanama was prepared vide Exh. 86.

69. As per evidence of the owner of Adarsh Sweet Home

i.e. P.W. 26 – Achalaram Chaudhary, on 08.03.2008, at

about 12 noon, accused No. 1 had been to his shop by scooty

and she purchased 4 Pedhas for Rs.10/. Both these

witnesses identified accused No.1 in the court.

70. According to prosecution, the accused No. 1 has used

the Pedha for administering two Tablets to the deceased so

that the further act can be committed. However, from this

only aforesaid evidence, no inference can be drawn that

those Tablets were administered to the deceased. The said

possibility has been ruled out in view of the report received

from the Forensic Laboratory in respect of the blood of the

deceased, vide Exh. 19. As per said report, the general and

specific chemical treating does not reveal any poison.

Moreover, as per another report of Forensic Laboratory

Exh.18 in respect of seized two Tablets of Ativan – 2 mg, the

tranquilizer larazepavan was detected. The prosecution has


not examined any Expert or during the evidence of the

Medical Officer Dr. Taware who conducted the postmortem

examination and the Proprietor of Medical Store, it has not

been brought on record that the said drug i.e. Ativan – 2

mg, more particularly, two tablets were sufficient to cause

drowsiness to the deceased after administration. So also,

regarding the period of effect of the said Tablets after

administration, there is no evidence. Such tranquilizers are

being used by the Medical Officers for making people/

patients feel calm or to help them sleep. So the said drug

can not be said to be the poisonous. So also, nothing has

been brought on record as to how much minimum tablets

are required for giving effect of drowsiness for patient or

whether two tablets are sufficient for the said purpose. So

considering the evidence brought on record, and non

production of the required evidence, it is doubtful whether

those tablets were purchased by the accused No. 1, for the

purpose of committing any crime. So the evidence of these

two witnesses P.W. 17 and P.W. 26 is of no use to the

prosecution in order to prove the conspiracy for committing

any offence. Two tablets of Ativan – 2 mg do not come under

any substance required for Section 328 of I.P.C.

This drug is not dangerous to the health. In view of this

discussion, I hold that prosecution has failed to make out


the case against the accused persons for the offence

punishable u/s. 328 of IPC.

71. The prosecution has also not brought on record any

evidence that the articles i.e. Nylon Rope and the knife

which have been found at the spot of incident were

purchased by the accused persons, more particularly, for the

purpose of causing murder of the deceased. These articles

might have been with accused No.2.

72. In order to bring the act of accused persons under

offence punishable u/s. 404 of IPC, the only evidence

required is that the accused persons took out the ornaments

from the dead body and committed misappropriation. It is

not the fact of our case that after seeing dead body lying at

the spot of incident, the accused persons removed the

ornaments. The prosecution has come with specific

allegations that the accused persons committed murder of

the deceased and then robbed the ornaments from the dead

body. So no case is also proved by the prosecution for the

alleged offence punishable u/s. 404 of IPC.

73. Now reverting back to the point of ornaments of the

deceased which were not found on the dead body and those


ornaments are one gold chain, one gold goaf, one gold

bracelet, one Nazarana Ring, one Vedhani ring and one

ordinary ring. Though, during the trial and argument it

was contended on behalf of the accused persons that no any

gold ring was found on the dead body and whatever gold

ring is in the Muddemal with the court it was produced by

the son of the deceased to favour the police, however, the

learned Special Public Prosecutor Shri. Sawant has pointed

out from photograph A4 and A6 that the said ring is

appearing in the ringfinger of the deceased. Those

photographs have been duly proved during the evidence of

the Photographer P.W. 5 Nemichand Chavan. Moreover, his

evidence is not much challenged by the accused persons.

The negatives of photographs are also produced on record at

Exh. A13. So from these evidence, the possibility of

creating false evidence against the accused persons by

giving ring to police during investigation by the son of

deceased, has been ruled out. I do agree with the

submission of the learned Special Public Prosecutor that

the accused persons could not remove the said ring from the

ringfinger of the deceased and so it remained there.

74. As per evidence of P.W. 12 – Jagdish Gujrathi and the

investigating officer P.W. 33 – then API Shri. Sunil


Kulkarni, after the arrest of accused No.1 while she was in

police custody on 15.03.2008, she made voluntary statement

in presence of the panchas i.e. P.W. 12 – Jagdish Gujrathi

and Pankaj Misal showing willingness to produce

ornaments concealed by her at the terrace of her house in

earthen flower pot and accordingly, the memorandum Exh.

85 was recorded. Their evidence further shows that

thereafter, the accused No. 1 took the police and panchas to

her house i.e. at Room No. 17, in a Chawl, by the jeep. The

way was pointed out by the accused No.1. By taking them

at the terrace, she took out the ornaments kept in earthen

flower pot. At the same time, the Goldsmith/Jweller P.W.

23 Pravinkumar Oswal was called who weighed the

ornaments and accordingly, seizure panchanama Exh. 86

was prepared. As per their evidence and the panchanama

Exh. 86, those ornaments are one gold bracelet of 143.710

gram, one gold goaf of 48.60 gram and one gold Vedhani

ring of 8.390 gram. On the bracelet, there was the name

embossed as 'Dattatraya' i.e. the name of the deceased. It

has also come in the evidence of son of the deceased P.W. 21

Amol that at one time, three bracelets were prepared in

separate names i.e. one in the name of Dattatraya, second

in the name of Amol and third is in the name of his brother

Rahul.


75. During arguments, Advocate Shri. Dongre for the

accused No.1 contended that as per evidence of P.W. 12 –

Jagdish Gujrathi he was already aware before proceeding to

the house of accused No. 1 that the ornaments consisting of

bracelet, goaf and ring were to be seized. It is pertinent to

note that in the memorandum Exh. 85, the said fact was

already disclosed by the accused No. 1 herself and so those

ornaments have been referred in her memorandum.

Actually, it was required to be stated by this witness

during his examination in chief while deposing regarding

memorandum, but by bringing it on record during cross

examination, the accused No. 1 has strengthen the

prosecution case.

76. It is true that as per evidence of this witness, the

ornaments were kept in a plastic bag and it was also soiled

as the pot was wet due to water and the investigating officer

did not seize the said plastic bag. For the purpose of

investigation and trial of the case, the said plastic bag was

not of much important and so even though it has not been

seized, it does not spoil the prosecution case. Regarding

weighing of the ornaments, the Jweller P.W. 23 –

Pravinkumar Oswal has stated in detail in his evidence.

During his cross examination, certain omissions have been


brought on record which he stated on oath, but are not

forming the part of his police statement. Those omissions

are (1) he was brought in Indiranagar i.e. at the house of

accused by Police Constable, (2) when he went at the

terrace of the house of the accused, the work of preparing

panchanama was going on, and (3) ornaments were seized

and sealed by Police in his presence, etc. Those are the

minor omissions, so do not affect the prosecution case. He

is not the panch witness in the seizure panchanama. As per

his evidence, he was not knowing the deceased or sons of

the deceased. So he has no reason to favour the son of the

deceased or the Police. During the evidence of the panch

witness, nothing has been brought on record to disbelieve

his version. So from this evidence, the prosecution has duly

proved the seizure of those ornaments from the custody of

accused No. 1 in view of her memorandum. Those

ornaments have been identified by the son of the deceased

during investigation in the Police Station and also in the

court during the trial.

77. As per evidence of P.W. 18 – Panch Sachin Sherla

and the investigating officer P.W. 32 P.I. Shri. Shailendra

Shinde, while accused No. 2 Ajay was in police custody on

18.03.2008, he gave memorandum to take out the


ornaments concealed by him and accordingly the

memorandum Exh. 96 was recorded. Their evidence further

shows that accused No. 2 had also disclosed the type of

ornaments i.e. gold chain and gold ring and has given

memorandum showing willingness to take out his clothes

i.e. pant and shirt having blood stains kept in a plastic bag

in an iron barrel by the side of compound wall of an orchard

in front of his rented house at Krishnamai Society. Their

evidence further shows that after recording memorandum,

the accused No. 2 took the panchas and police to the said

spot i.e. at Krishnamai Society at Dhankawadi. The way for

going to the said spot from police station, was pointed out

by the accused No. 2 himself. The witnesses have also

deposed as to by which way they proceeded. They have

further deposed that after getting down from the vehicle,

accused No. 2 took them through iron gate and showed his

rented house. Then he took them on the front side where

there was an orchard and from an iron barrel kept by the

side of the compound wall, he took out a plastic bag

containing gold chain and gold ring and his clothes i.e.

cream coloured pant and BlueYellowish coloured full shirt

having blackish strips. The evidence of both these

witnesses further shows that in the chain, there was a

Pendent of 'Swastik' in the middle. Accordingly, seizure


panchanama Exh. 97 was prepared. For the purpose of

weighing ornaments, the Goldsmith was called.

78. As per evidence of P.W. 32 the investigating officer

P.I. Shri. Shailendra Shinde, the seized ring was the

'Nazarana' ring. The panch identified both the ornaments

during the trial. So also, the evidence of these two

witnesses has been corroborated by P.W. 20 – Sadashiv

Dhanawade, the Goldsmith / Jweller. According to him, on

18.03.2008, he was called by Police in Krishnamai Society,

Dhanakawadi where panchas, police staff, accused No. 1

Ajay were present. At the instance of Police, he weighed

ornaments and the weight of gold chain having 'Swastik'

Pendent was found 25.590 gram and that of 'Nazarana' ring

19.710 gram. He also identified those ornaments from

Muddemal i.e. Article No. 34 and 35 respectively.

79. Advocate Shri. Bhoite of accused No. 2 during

argument pointed out that before reaching to Police Station,

the panch was told by P.I. Shri. Shinde “we want to go for

seizure panchanama of gold ornaments and clothes”. So

also, Advocate Shri. Bhoite contended that, before recording

memorandum of accused, how it was possible to know that

Police wanted to prepare seizure panchanama of gold


ornaments and clothes and in view of decision cited by him,

the recovery at the instance of accused while in handcuff is

not admissible as there is possibility of threatening or

pressure by police. It is pertinent to note that in the said

decision relied by Advocate Shri. Bhoite, the handcuffing of

accused while recording memorandum or recovery was not

the only part to disbelieve the prosecution case, there were

several other aspects, but it has been observed by Hon'ble

Apex Court that “There is possibility of under pressure of

the accused by police if he is in handcuff”. It is nowhere

specifically mentioned that recording of memorandum while

accused is in handcuff, is not admissible and it is illegal.

No any ratio has been laid down by Hon'ble Apex Court on

that point. So the accused can not get benefit of the said

decision. It is usual practice of the police to take the

accused in handcuff even for recovery by way of

precautionary measure.

80. Regarding another point raised by Advocate Shri.

Bhoite in respect of information from accused in

anticipation by Police Officer, it can be said that if any

accused expresses willingness to make any statement

positively he says as to what is the nature of his statement

and then the investigating officer calls the panchas in


whose presence again accused makes statement in detail

and then it is going to be recorded as his memorandum.

Otherwise, the investigating officer has always to keep

remain present the panchas in police station and to wait as

to when accused expresses his willingness to make any

statement. Regarding disclosure of statement by way of

memorandum, the evidence of panch appears to be true and

genuine.

81. Advocate Shri. Bhoite also pointed out contradictory

evidence of the panch and the investigating officer. The

panch witness says that the barrel in which the ornaments

and clothes were kept was covered by something, whereas,

the investigating officer has denied this fact. The learned

special Public Prosecutor explained the said evidence of the

panch witness by submitting that after keeping ornaments

and the clothes, some other article may be paper or any

piece of clothes etc. might have been kept and so the panch

has stated that it was covered by something. The learned

Special Public Prosecutor pointed out that neither the

panch was asked that the barrel was covered by any lid,

nor the panch has stated as such. Moreover, the

investigating officer was not suggested during cross

examination that the barrel was covered by any lid. So I do


not think that there is any such contradictions during the

evidence of these two witnesses so as to disbelieve their

version. It is pertinent to note that during cross

examination, the panch witness has specifically stated

about the location and place where the barrel was kept and

the location of the house of the accused. Nothing has been

brought on record either through panch or the Goldsmith

that they have any affinity with the deceased or his family

members so as to favour them. These are the independent

witnesses and their versions have not been shaken by any

means during cross examination. Moreover, these

ornaments are also identified by the son of deceased P.W. 21

Amol Yemul. So from this evidence, the prosecution has

succeeded in proving the memorandum of accused No. 2

Exh. 96 and seizure of two ornaments i.e. gold chain and

'Nazarana' Ring, and clothes of the accused No.2, vide

panchanama Exh. 97.

82. Advocate Shri. Bhoite further vehemently submitted

that as per panchanama Exh. 120, said house of accused

No. 2 in Krishnamai Society was already pointed out by

accused No.1 and thus, police were already aware about

location of the said spot. It is pertinent to note that as per

said panchanama, Police had been to the said house and


only took search of the said house and did not take search of

the area surrounding the house. The iron barrel was

pointed out by accused No. 2. It was away from his house.

So it can not be said that the said spot was already known

to the Police.

83. Moreover, I do not find any substance in the

contention of Advocate Shri. Bhoite that without keeping

ornaments in dustbin / barrel, the accused No. 2 would have

carried them to his native place. The possibility can not be

ruled out that accused No. 2 was under apprehension that

in case his name is disclosed to the Police either by accused

No. 1 or any other person pointing his involvement in this

crime, Police can take search of his rented premises and the

house at native place, so he did not keep the ornaments and

his blood stained clothes in any house and concealed those

articles in unused barrel.

84. As per evidence of the panch P.W. 9 Sukhamal

Dhiwar and the investigating officer P.W. 33 then API Shri.

Sunilkumar Kulkarni, after accused No. 1 was apprehended

on 12.03.2008 near Natraj Hotel, Swargage, two mobile

handsets and her saree were seized. On the said Saree,

there were red spots of blood. Accordingly, panchanama


Exh. 79 was prepared. I have already discussed regarding

the said panchanama earlier. So it is just and proper to

avoid repetition.

85. As per evidence of the investigating officer P.W. 32

Shri. Shailendra Shinde, he sent the clothes of both the

accused persons along with other articles to the Chemical

Analyser for examination on 24.03.2008 vide letter Exh. 32.

As per Chemical Analyser report Exh. 15, seven sealed

parcels and two sealed envelops of which, the seals were

intact, were received as per covering lette datetd

24.03.2008 and on examination of those articles, more

particularly, Saree of accused No. 1 i.e. Exhibit – 6 and Pant

and shirt of accused No.2 i.e. Exhibit – 8 & 9 were stained

with blood at places and that was of human origin having

“B” Group. Undisputedly, the blood group of the deceased

was “B”. The same blood was found on the other articles i.e.

on the clothes of the deceased, sample of earth, pair of

chappel of deceased, a nylon rope and knife, vide Exh. 16.

86. As per report of Chemical Analyser Exh.13, the

group of sample of the blood of the accused No. 2 Ajay

received with covering letter dated 19.03.2008, Exhibit – 1

can not be determined as the result are inconclusive.


However, as per report Exh. 14, the blood sample of accused

No. 1 Anita received with covering letter dated 17.03.2008

is of blood group “O”. The blood group “B” of the deceased

is also proved during the evidence of P.W. 10 Laxminarayan

Bandi, the manager of Peshwai Creation. According to him,

his owner i.e. deceased had donated blood to him during his

need of “B” group and the group of the blood of deceased

was “B” positive.

87. During the trial, it has been nowhere challenged on

behalf of accused persons that the blood group of deceased

was “B” Group and that of accused No. 1 was “O”. It is not

the case of the accused No. 2 Ajay that he is also having

blood group of “B”. So whatever stains were found on the

clothes of both the accused, were of Blood Group “B” more

particularly that of the deceased. Thus, in view of this

evidence, the prosecution has succeeded in proving beyond

reasonable doubt that at the instance of both accused

persons, the recovery of ornaments of the deceased have

been made and the blood having Group “B” of the deceased

was found on the clothes of both the accused. So it was

necessary for the accused persons to explain the facts which

were within their knowledge i.e. how they got custody of the

ornaments of the deceased and how the blood of the


deceased appeared on their clothes. However, they did not

furnish any explanation as required u/s. 106 of the Evidence

Act. As per submission of the learned Special Public

Prosecutor, the presumption can be used u/s. 114 of the

Evidence Act, against both the accused persons having

found in possession of the ornaments of the deceased, in

order to draw an adverse inference that they have

committed the murder of the deceased. However, according

to Advocate Shri. Bhoite, in view of decision of “2011 All

MR (Cri.) 2340 (cited supra)”, no such adverse inference can

be drawn on the basis of such recovery. That was the case

of dacoity and the Hon'ble Apex Court observed that it is

not safe to draw inference that the person in possession of

the stolen property had committed murder. It also depends

on the nature of the property so recovered whether it has

likely to pass readily from hand to hand. In that case, the

murder was committed on 17.12.1996 and the recovery was

made on disclosure statement of the accused on 26.01.1997

after more than one month i.e. not soon the after dacoity

and murder. So considering long gap, the said observation

has been made.

88. In our case, after commission of murder in the night

of 08.03.2008 and 09.03.2008, there is immediate recovery


within short period from the accused persons after their

arrest i.e. on 15.03.2008 and 18.03.3008. So it was expected

to give explanation as to how the accused persons got

possession of those ornaments of the deceased and so

considering the circumstances of our case, an adverse

inference needs to be drawn u/s. 114 of the Evidence Act

against both the accused persons.

89. I have already discussed that the prosecution has

failed to prove conspiracy to commit murder of the

deceased, but after having acquaintance with the deceased,

accused No. 1 and 2 came to know that deceased was in

habit of wearing valuable ornaments on his person oftenly

and so they planned to rob him and after contacting him on

08.03.2008, at about 8.30 to 9 pm, the accused No. 1 called

him near Gajanan Maharaj Temple. It has come in the

evidence of the Manager of Peshwai Creation P.W. 10

Laxminarayan Bandi that in the evening on 08.03.2009, he

was told by the deceased that he wanted to help some

person and he has been called with cash of Rs.5,000/ and

accordingly, the deceased went away on his activa scooter by

taking cash of Rs. 5000/.

90. Thereafter, the deceased and accused No. 1 were seen


by P.W. 25 Maruti Khopade as, at his Rasawanti, they

drunk sugarcane juice. He has specifically deposed that

thereafter on the scooter of the deceased, they both went

away towards Taljai Hill. On that day, deceased was lastly

seen by his son P.W. 21 Amol and the watchman P.W. 6

Deepak Sharma, at about 8.45 to 9.00 pm.

91. At Taljai Hill, at the cricket ground where evening

walkers come by their 4wheelers park their vehicles, the

deceased and accused No. 1 were seen by P.W. 29 Shri.

Balasaheb Dhere. As per his evidence, at the same time, he

also saw accused No. 2 on his motorcycle. His evidence

further shows that he had talked with the deceased and at

that time, he was told that in search of the Purse of Meena

i.e. accused No. 1, they had come there. He was already

knowing accused No. 1 Meena. He saw the gesture going on

between accused No. 1 and 2 while he was talking with the

deceased.

92. It is contended on behalf of the accused persons that

as per prosecution case, it was night time, i.e. at about 9.30

to 10 pm, and no evidence has been brought on record that

there was any source of light so as to see the faces of each

other and this fact was also not disclosed by P.W. 29 Shri.


Balasaheb Dhere. However, it is pertinent to note that

during his cross examination, he was not asked regarding

the source of light whether available or not and if yes, what

was it. The fact is not in dispute that at present, the street

lights are available by the side of the road of the said cricket

ground. Admittedly, no any prosecution witness has

deposed that those street lights were also in existence at the

time of incident in March 2008. So after this point was

raised during the argument by the defence advocates, the

learned Special Public Prosecutor produced the

documentary evidence on record with the permission of this

Court by way of the letter reply received from M.S.E.B.

Junior Engineer of the said area dated 22.12.2011 Exh. 197.

The said concerned Junior Engineer has not been examined

by the prosecution as the defence Advocates have admitted

the said letter. As per the said letter, in 2003, the street

poles of 9 meters in height were raised on way from bottom

of Taljai Hill upto Taljai Temple and the distance between

two poles is about 25 to 28 meter. On those poles, there are

Sodium vapour lights of 250 watt and their flex level is

about 15 to 17 lumen. So as per this evidence, it can not be

now disputed that the street lights were already available

at the time of incident and those were sufficient to see the

faces of the persons standing in the cricket ground.


Moreover, as per rough sketch of scene of offence drawn by

the investigating officer vide Exh. 138, the spot where the

deceased and P.W. 29 Balasaheb Dhere were having talk,

was just by the side of the road and so there was ample

light to see the faces of the persons standing nearby the

said spot. So in the said lights, P.W. 24 had occasion to see

the face of accused No. 2 also.

93. As per evidence of P.W. 29 Shri. Balasaheb Dhere

and P.W. 31 Tahasildar Smt. Asha Holkar, during test

identification parade conducted on 10.04.2008, the accused

No. 2 was identified by P.W. 29. Accordingly, the

memorandum was prepared vide Exh. 124. As per

contention of Advocate Shri. Bhoite, during the statement

recorded by police and during the evidence on oath in the

court, P.W. 29 Shri. Balasaheb Dhere has nowhere given

description of the personality or the clothes of the accused

and so it was not possible for him to identify the said

accused during the identification parade. So also, as per

his contention, the Tahasildar has not followed the

guidelines laid down by Hon'ble High Court, while

conducting test identification parade, so the evidence of

both these witnesses on the point of identification, is to be

discarded.


94. It is true that P.W. 29 Shri. Balasaheb Dhere has not

given any such identification and as per decision of Hon'ble

Calcutta High Court in “1991 Cri. L.J. 1258” (cited supra)

it will be unsafe to convict the accused on the basis of single

identification as in such case the reasonable possibility of

mistake in identification can not be excluded.

95. In our case, the prosecution is not simply placing

reliance on such identification. The evidence of

identification is corroborative to the recovery of ornaments

of the deceased from the custody of the accused No. 2 and

his acquaintance with the accused No. 1 from whom also

the remaining ornaments have been recovered. Moreover,

there is other much evidence against accused No. 1 showing

her involvement in this case and last seen together with

deceased. So it was also necessary for her to give

explanation as to why she had been with the deceased in

the evening of 08.03.2008 at Taljai Hill and who was the

another person on the motorcycle with whom, her gestures

were going on. So considering the facts of our case, the

accused No. 2 will not get any benefit of the said decision.

96. Advocate Shri. Bhoite also contended that the dummy

persons called for the purpose of identification parade by


the Tahasildar were not having same type of personality,

complexion, or were not of the same age group and so the

said evidence must be discarded. Undisputedly, the age of

the accused No. 2 is shown in the identification

memorandum as 30 years and the dummies are of 19, 20,

24, 27 and 42 years old. Though two of them are less than

10 years and one is elder than 12 years, still at this stage,

one can not say that those persons were not having similar

personality with the accused No.2. The Tahasildar has

specifically deposed that she chosen those dummies

considering the personality of the accused. Moreover, in the

memorandum, she has specifically stated as to how in a

row, the dummies were asked to stand and then as per

choice of accused No. 2, he was allowed to stand anywhere

amongst the dummies. The evidence of both these

witnesses show that during the said identification parade,

P.W. 29 Shri. Balasaheb Dhere pointed out accused No.2.

The identification parade was conducted in presence of two

panchas. Nothing has been specifically suggested to

Tahasildar as to what type of guidelines of Hon'ble High

Court has not been followed by her. So I do not think that

any irregularities or illegality has been committed by

Tahasildar while conducting test identification parade.


97. No any evidence has been brought on record on behalf

of accused persons to admit the contention raised on their

behalf that the accused No. 2 or his photograph was already

shown to P.W. 29 Shri. Balasaheb Dhere before conducting

test identification parade. On the contrary, as per evidence

of P.W. 29 Shri. Balasaheb Dhere and the investigating

officer, P.W. 29 Shri. Balasaheb Dhere was not available at

Pune. Immediately on next day, he was required to go at

Sangli due to death of his Niece and till all religious

ceremonies were completed for about 13 days he was there.

So the investigating officer also could not record his

statement immediately after the incident. It is true that

P.W. 29 Shri. Balasaheb Dhere has admitted in his cross

examination that on next day from newspaper, he got

knowledge about the murder of his friend Dattatraya

Yemul, but due to aforesaid reason, he could not contact the

Police. So also during that period, his mental condition was

disturbed. So in view of explanation given by him, I do not

think that the decision relied by Advocate Shri. Bhoite on

the point that delay in recording statement of the witnesses

by the investigating officer, is useful to the accused No. 2. In

that case, the witnesses were available in the village and

almost daily the investigating officers were visiting the


village and still the statements of the witnesses were not

recorded.

98. Advocate Shri. Bhoite also doubted the presence of

P.W. 29 Shri. Balasaheb Dhere at the relevant time at

Taljai Hill by contending that it is not possible to take walk

in the night. But from the evidence of P.W. 29, it appears

that not only he, but deceased sometimes and many other

persons daily used to come there for evening walk. They

used to bring their vehicles either twowheelers or four

wheelers upto the cricket ground and by parking the

vehicles there, they used to go for walk.

99. As per contention of Advocate Shri. Dongre, the said

Maruti Car claimed to be owned by P.W. 29 Shri. Balasaheb

Dhere is not belonging to him and it is in the name of

Narsinha A. Dhere. The name of P.W. 29 as disclosed by

him while recording the statement by Police or evidence in

the court is as “Balasaheb Amrutrao Dhere”. As per

submission of the learned Special Public Prosecutor,

Balasaheb and Narsinharao Dhere is the same person i.e.

P.W. 29. But on record his name is Narsinha and being the

member of Congress Committee, he is known as Balasaheb

and so he has stated his name as Balasaheb. He has


produced on record certain documents at Exh. 186 to 191

which include the driving license and it is in the name of

Narsinha Amrutrao Dhere having photograph of P.W.29. So

also, there are documents regarding identity card issued by

the Secretary of District Congress Committee and it is in

the name of Balasaheb Dhere. The other documents are the

true copies of registration certificate, insurance policy of the

said Maruti Car bearing No. GA 01/ C 7900. The original

documents of the vehicle are with P.W. 29. So from this

documentary evidence, I have no hesitation to hold that

P.W. 29 is the same person who is the registered owner of

the said vehicle i.e. Narsinha Amrutrao Dhere. He has also

identified both the accused persons in the court during the

trial and in view of decision cited by the learned Special

Public Prosecutor, the identification in the court by the

witnesses is the substantive evidence.

100. Thus, in view of the aforesaid evidence, the

prosecution has established the link by way of the chain of

circumstantial evidence to prove that the accused persons

hatched conspiracy to commit the robbery in respect of the

gold ornaments of the deceased and accordingly, they called

him at Taljai Hill and in the night of 08.03.2008 and

09.03.2008 they committed his murder. From the


photographs and the spot panchahnama duly corroborated

by the postmortem report, it appears that they committed

brutal murder with the help of knife by stabbing on the

several part on the body of the deceased and by smashing

his head by means of a big stone which was found on the

back of the deceased while the dead body was lying facing to

the ground. After causing death or before the deceased died

after sustaining severe injuries, the accused persons

removed his ornaments which were possible to be removed,

but they could not succeed in removing one of the gold rings

from ringfinger, which was found on the dead body. There

appears no use of the Ativan Tablets as the deceased drove

his scooter upto Taljai Hill and thereafter he talked with

P.W. 29 Shri. Balasaheb Dhere. But it appears that in

order to commit the robbery of the ornaments, the deceased

might have been attacked by accused No. 2 by stabbing him

by means of knife and there might be resistance from the

side of the deceased and so the accused persons committed

his murder. At initial stage of commission of crime, they

may not have the intention to kill him, but considering

resistance on the part of the deceased (not the provocation),

the accused persons might have thought to finish him and

at the spur of moment, they killed him. So this act of

accused persons does not come under hatching of conspiracy


to commit murder. It comes their common intention u/s. 34

of the Indian Penal Code. Otherwise, they would have

brought any poison to administer to the deceased at the

spot so as to cause death within short period automatically

or would have brought a big weapon like sickle, sattur etc.

to kill him. It appears that by way of precaution, they had

brought a nylon rope and knife to use in case of need and

this shows absence of hatching conspiracy to commit

murder, but these articles were useful for causing injury to

the deceased for committing robbery and with preparation

of committing robbery by hatching criminal conspiracy, both

the accused persons had called the deceased at the spot of

incident and in the night at lonely place, after committing

his murder, they fled away with the ornaments.

101. Absconding of accused No. 2 from Pune City and his

native place after the incident is also incriminating

circumstance against him. Though as per his defence, his

mother was ill and so he left the job of Chitaly Bandhu and

went away to his native place Belsahi, Tal – Khed, District

Ratnagiri, nobody was found in his house during the visit of

I.O. P.W. 33 Shri. Kulkarni at Belsahi. After getting

information that accused No. 2 was to come at Katraj, the

trap was led and he was apprehended by police. While


resigning from the job, accused did not inform his employer

that due to illness of his mother, he was required to resign.

Earlier to the incident, he remained absent from the job as

per evidence of the Manager of Chitale Bandhu P.W. 3

Ramkrishna Chakradeo. So this conduct of accused shows

his involvement in the crime and to flee away from the

Police.

102. None of the citations referred by the Defence

Advocates are useful to the accused persons considering

facts and circumstances of our case. As per evidence of the

Investigating officers, timely entries are taken in Station

Diary about investigation. All circumstances taken together

are clearly pointing towards guilt of the accused persons.

The chain of evidence is complete and it does not leave any

reasonable ground for conclusion consistent with the

innocence of the accused and it shows that within all

probability, the act must have been done by the accused

persons. Thus the prosecution has proved that the accused

persons have committed criminal conspiracy in order to

commit robbery, punishable u/s. 120 of IPC and commission

of murder of the deceased with common intention,

punishable u/s. 302 r/w. Section 34 of IPC and the offence

of robbery, punishable u/s. 394 r/w. 120B of IPC.


Accordingly, I answer Point No. 1 partly in the affirmative,

Point No. 3 and 5 in the affirmative and Point No. 2, 7, 8

and 9 in the negative. In view of these findings, the Point

Nos. 4 and 6 do not survive.

103. In view of my finding that the guilt of accused

persons has been proved beyond reasonable doubt by

prosecution, it is necessary to hear the accused, their

advocates and learned Special Public Prosecutor on the

point of sentence, so I stopped dictating Judgment for

hearing them.

Pune. ( D. R. Mahajan )Date : 20.01.2012 8th Additional Sessions Judge, Pune.

104. I called upon the accused persons to say on the point

of sentence, but they did not make any submission by

saying that their Advocates will make submission. As per

submission of both the Advocates of the accused persons,

the accused are not the habitual criminals and are young

aged. The accused No. 1 resides with her husband and two

school going children at the house of her father. So they

prayed for leniency in respect of offence punishable u/s. 394

of I.P.C.


105. The learned Special Public Prosecutor Shri. Sawant

considering the observations and findings of this Court and

circumstances of the case, did not pray for capital

punishment for the offence of murder, but in respect of

offence of robbery, he prayed for maximum punishment of

life.

106. Considering the facts and circumstances of our case,

though it can not be disputed that the accused persons have

committed the brutal murder of the deceased Dattatraya

Yemul, this case can not be said to be the rarest of rare case

for capital punishment. So for the offence of murder, the

only punishment is imprisonment for life.

107. Considering the fact that the accused persons have no

any criminal record and this is their first offence and

considering their young age, I do not think it just and

proper to impose the punishment of life for the offence of

robbery. Rigorous imprisonment for 10 years would suffice

the purpose. It is also necessary to impose fine amount for

both the offences. Accordingly, I proceed to pass following

order :


O R D E R

[1] Accused No. 1 – Anita @ Meena Rajendra Khandabale and Accused No. 2 – Ajay Anant Ghag, are hereby convicted u/s. 235(2) of Cr.P.C. for the offence punishable u/s. 120B r/w. Section 394, and u/s. 302 r/w. Section 34 of I.P.C.

[2] For the offence of criminal conspiracy punishable u/s. 120B of I.P.C., both the accused are sentenced to suffer R.I. for 10 Years and shall pay fine of Rs.2,500/ each, in default to suffer R.I. for 6 months each.

[3] For the offence of murder punishable u/s. 302 r/w. Section 34 of I.P.C., both accused are sentenced to suffer Imprisonment for Life and shall pay fine of Rs. 2,500/ each, in default of suffer R.I. for 6 months each.

[4] For the offence of robbery punishable u/s. 394 r/w. Section 120B of I.P.C., both the accused are sentenced to suffer R.I. for 10 Years and shall pay fine of Rs.2,500/ each, in default to suffer R.I. for 6 months each.

[5] Accused Nos. 1 and 2 are hereby acquitted u/s. 235(1) of Cr.P.C. for the offence punishable u/s. 120B r/w. Section 302, 328 and 404 of I.P.C., and u/s. 328 and 404 r/w. Section 34 of I.P.C.

[6] All the sentences shall run concurrently.

[7] Both the accused are in jail since the date of arrest, so set off u/s. 428 of Cr.P.C. be given to them.

[8] Out of the seized muddemal, Gold ornaments of the deceased be handed over to his son Amol Dattatraya Yemul, seized three mobile handsets are forfeited to State and be


sold in public auction and sale proceeds be credited to the Government and remaining property being valueless be destroyed after appeal period is over.

[9] Copy of the Judgment be given to both the accused “Free of costs”.

[10] Issue conviction warrants.



SESSIONS CASE NO. 418 / 2008

State of Maharashtra ….. Complainant Vs.

Anita @ Meena Rajendra Khandabale and another ….. Accused

OPERATIVE ORDER

[1] Accused No. 1 – Anita @ Meena Rajendra Khandabale and Accused No. 2 – Ajay Anant Ghag, are hereby convicted u/s. 235(2) of Cr.P.C. for the offence punishable u/s. 120B r/w. Section 394, and u/s. 302 r/w. Section 34 of I.P.C.

[2] For the offence of criminal conspiracy punishable u/s. 120B of I.P.C., both the accused are sentenced to suffer R.I. for 10 Years and shall pay fine of Rs.2,500/ each, in default to suffer R.I. for 6 months each.

[3] For the offence of murder punishable u/s. 302 r/w. Section 34 of I.P.C., both accused are sentenced to suffer Imprisonment for Life and shall pay fine of Rs. 2,500/ each, in default of suffer R.I. for 6 months each.

[4] For the offence of robbery punishable u/s. 394 r/w. Section 120B of I.P.C., both the accused are sentenced to suffer R.I. for 10 Years and shall pay fine of Rs.2,500/ each, in default to suffer R.I. for 6 months each.

[5] Accused Nos. 1 and 2 are hereby acquitted u/s. 235(1) of Cr.P.C. for the offence punishable u/s. 120B r/w. Section 302, 328 and 404 of I.P.C., and u/s. 328 and 404 r/w. Section 34 of I.P.C.


[6] All the sentences shall run concurrently.

[7] Both the accused are in jail since the date of arrest, so set off u/s. 428 of Cr.P.C. be given to them.

[8] Out of the seized muddemal, Gold ornaments of the deceased be handed over to his son Amol Dattatraya Yemul, seized three mobile handsets are forfeited to State and be sold in public auction and sale proceeds be credited to the Government and remaining property being valueless be destroyed after appeal period is over.

[9] Copy of the Judgment be given to both the accused “Free of costs”.

[10] Issue conviction warrants.


I affirm that the contents of this PDF file Judgment are same word to word as per original Judgment. Name of Steno : Mrs. S. S. YengulCourt Name : Shri. D. R. Mahajan

District Judge8 & Addl.Sessions Judge, Pune. Date : 20.01.2012Judgment signed by Presiding Officer on : 20.01.2012Judgment uploaded on : 20.01.2012.

Documents

Dattatraya Yemul Murder Case Pune Judgement