IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1108 OF 2012 WITH CRIMINAL APPLICATION NO. 949 OF 2019

Shri. Saket Vikas Panase ] (@ Panse), residing at ] Bhagyashree Bunglow, Plot No. 90, ] Pavna Nagar,Chinchvad, Pune: 33 ] (presently at Kolhapur Central Prison ] …Appellant / (Original Kolhapur) ] Accused)

Versus

1) State of Maharashtra ]

2) Anand Arun Darbhe ] {R/a – B/303, Cascade, Vasant ] Oscar, LBS Marg, Mulund (w), ] Mumbai – 400080} ] ….Respondents ****** Dr. Yug Mohit Chaudhry a/w Mr. Dashrath Gaikwad for the Appellant/ Applicant. Mrs. S. V. Sonawane, APP for Respondent No. 1-State. Mr. A. S. Khandeparkar a/w Mr. Rajdeep D. Gude, Mr. Rohit P. Mahadik & Ms Apporva A. Khandeparkar i/b Khandeparkar & Associates for Respondent No. 2. ******

CORAM : PRASANNA B. VARALE AND N. R. BORKAR, JJ.

RESERVED ON : 13th AUGUST, 2021.

PRONOUNCED ON : 29th APRIL, 2022.

JUDGMENT (Per N.R. Borkar, J.)

1] This appeal takes an exception to the judgment and order dated 01.08.2012 passed by the learned Additional Sessions Judge for Greater Bombay, in Sessions Case No. 760 of 2010. D.S.Sherla.

2] By the impugned judgment and order, the Appellant, who was original accused before the trial Court, has been convicted for the ofence punishable under section 302 of Indian Penal Code,1860 (for short “IPC”) and sentenced to sufer imprisonment for life and to pay a fne of Rs.10,000/-, in default of payment of fne to sufer S.I. for two months.

3] The deceased Mangala Darbhe was the mother of PW-19 Anand Darbhe. The deceased was residing at Flat No. B/303, 3rd Floor, Cascade, Vasant Oscar Building, LBS Marg, Mulund (W), Mumbai-400080 along with PW-19 and PW-7 Shilpa Darbhe, the wife of PW-19.

4] As PW-19 and PW-7 both were working, they used to leave home at about 8:30 a.m. and returned back at 8:00 p.m. During the said period, the deceased alone used to be at home.

5] According to the prosecution, on the day of incident which took place on 25.08.2010, at about 1:30 p.m., the accused, came to the house of the deceased, while she was alone at home. It is alleged that accused assaulted the deceased with knife and committed her murder.

6] The fact that the deceased had died homicidal death is not disputed before us. Admittedly, the accused was present in the house D.S.Sherla of deceased at the time of alleged incident. The defense of the accused is that two unknown persons assaulted the deceased. The accused has examined himself in his defense.

7] According to the accused, at the relevant time, he was a student of Mechanical Engineering in G.S. Mozes College of Engineering, Pune. The deceased was his maternal Aunt. His family had planned trip to Africa and for that he and his family have to take Yellow Fever Vaccine. On 23.08.2010, he took Yellow Fever Vaccine at Ballard Estate, Fort, Mumbai. However, some paper work was pending so he had to come again to Mumbai on 25.08.2010 (the day of incident).

8] According to him, on 25.08.2010, he completed that paper work and then he came to the house of deceased at Vasant Oscar, Mulund. He met the deceased at the entrance. Watchman was at entrance who made his entry in visitor’s register and then they both came upstairs. The deceased served him food. After lunch, he went to bedroom to take rest. The deceased at that time was in the kitchen.

9] According to the accused, in the afternoon in between 1:30 p.m. and 2:30 p.m., the door bell ranged. He opened the door and two unknown persons forcibly entered inside the fat. They tried to assault him with sharp object and he tried to defend those attacks. As he was defending those attacks, he received injuries on his hands. He fell D.S.Sherla down. He was dazed. He heard cries of deceased and then those two unknown persons went away. He saw the deceased lying in the pool of blood. He tried to call his mother from the landline phone. He told his mother that he had been assaulted by two unknown persons. Before he could say anything more, he lost his consciousness.

10] The trial Court after considering the evidence on record rejected the defense of the accused. The trial Court consequently, convicted the accused for the ofence punishable under section 302 of the IPC.

11] We have heard the learned counsel for the appellant/ accused, learned APP for the respondent -State and learned counsel for respondent No.2-original complainant.

12] The learned counsel for the appellant/accused has submitted that PW-19, the son of the deceased, had not raised any suspicion against the accused either at the time of lodging of FIR or in his evidence. It is submitted that the prosecution has not attributed any motive to the accused. The learned counsel submits that there is no evidence on record to show that the accused was hot tempered or a violent person to cause 54 stab wounds. It is submitted that in absence of such evidence, the trial Court was not justifed in convicting the accused. D.S.Sherla

13] It is further submitted that one Motorola mobile phone and a pair of gents chappal were found at the place of incident. The learned counsel for the accused submits that, it was thus incumbent upon the prosecution to investigate whether those articles were of inmates of the house or some outsiders, however, the same is not done. It is submitted that the prosecution has therefore, not proved beyond reasonable doubt that except the accused nobody else was there at the time of alleged incident.

14] It is further submitted that the blood was found in the nails of deceased, however, the same was not sent for D.N.A. testing. The dog squad was called, however, the prosecution has not placed on record the report of dog squad. The learned counsel submits that the trial Court was, thus not justified in holding that the prosecution has proved it’s case beyond reasonable doubt.

15] On the other hand, learned APP for the respondent/State has submitted that according to the accused, two unknown persons committed the alleged crime. It is submitted that the accused has, however, not given the description of said two persons either in the statement to the police or in his evidence. It is submitted that after the incident the accused was taken to the hospital and according to history given by the accused to medical officer, he was assaulted by sword. It is submitted that, no material is, however, brought on record  to that effect and on the contrary knives were found lying at the place of incident.

16] The learned APP submits that the evidence on record will show that safety door and main door of the fat were properly closed. It is submitted that the said circumstance is not consistent with the defense of the accused as no assailants after coming out of the fat would take the risk of standing there even for few moments to close both the doors. The learned APP submits that the circumstances on record are not consistent with the defense of the accused and therefore, the trial Court was justified in convicting the accused.

17] According to the prosecution, PW-8 Manisha Rathod is the first person, after the incident, to visit the house of the deceased.

18] According to PW-8, she was working as maid-servant at the house of deceased. According to PW-8, on 25.08.2010, she had gone to the house of the deceased for household work at about 2:45 p.m. She rang the door bell. As no one opened the door, she took key of the fat of the deceased from deceased’s neighbour Mrs. Vidya Swaminathan. According to her, when she opened the door, she saw that the accused was lying in pool of blood. At that time, Vidya Swaminathan was standing at the door of her fat, she told about it to Vidya Swaminathan and closed the safety door of fat of the deceased.

19] According to PW-8, when she opened the door accused said to her two unknown persons assaulted him and ran away. According to her, the security guards were called and intimation was given to the police.

20] The evidence of PW-8 that when she opened the door, the accused said to her that two unknown persons assaulted her and ran away has not been challenged in the cross-examination. This fact would show that the accused was not unconscious till that time. Whereas according to the accused after the alleged assault, he made phone call to his mother and told her that two unknown persons assaulted him and before he could say anything more he became unconscious.

21] The trial Court has held that call record of land-line at the house of the deceased and mobile phone of the mother of the accused would reveal that, the call was made from the land-line at the house of the deceased at 2:23 p.m on the mobile phone of the mother of the accused and duration of the said call was 140 seconds, which means the accused had spoken with his mother for 140 seconds. It is further held that phone call was made at 2:25 p.m. and 2:28 p.m. from the mobile phone of the mother of the accused and call duration was 20 and 22 seconds respectively. Then again, phone call was made at 2:29 p.m. and call duration was 231 seconds. The trial Court has held these facts would show that the accused was conscious enough to attend all these calls.

22] The learned counsel for the appellant/accused submits that the prosecution has examined mother of accused as prosecution witness. The prosecution therefore ought to have got the above said circumstances clarified from her.

23] However, if call details were not consistent with the defense of the accused, then in our view the accused ought to have got it clarified in cross-examination. In view of the evidence of PW-8 and call details at Exhibit-121, it is difficult to accept the defense of the accused that he fell unconscious after making first phone call to his mother and could not make phone call either to the police or seek help from neighbours.

24] Apart from above, according to PW-13 Aparna V. Panse, the mother of the accused, on the day of incident, at about 2:15 p.m., she received call from accused on her mobile and he told her that two persons brought him to Mumbai at the house of the deceased; they assaulted the deceased and to him as well. According to her, she told him to inform PW-19 and PW-7 and told him to give phone to deceased, but he said to her that she had sustained lots of injuries and then disconnected the phone. The version of PW-13 is altogether different, than what the accused had stated in his defense evidence. Therefore, the evidence of PW-13 is also not consistent with the defence of the accused.

25] Admittedly, after the alleged incident, the accused was taken to Municipal General Hospital, Mulund, where he was examined by PW4 Dr. Ganesh Dhangar. According to PW-4, on 25.08.2010, the accused was brought to Municipal General Hospital, Mulund by the police personnel from Mulund Police Station. The accused gave history of assault by sword by two unknown persons.

26] According to PW-4, on examination he found the accused to be confused, fearful, pulse rate was 84 per minute and blood pressure was 138/92 mmhg. On local examination, he found two injuries, i.e., (i) two right medial fnger of hand palmer aspect incised lacerated wound muscle deep and (ii) left hand on extensor surface, incised lacerated wound measuring about 3 x 1 x 1 cm. According to him, the accused was perhaps in altered sensorium, because he was not properly answering his question.

27] PW-4 has admitted that he has not specifcally mentioned in Exhibit-50 that the history was given by the accused. However, it is neither suggested to PW-4 nor any material is brought on record to show that the accused was unconscious when he was brought to the hospital. Even it is assumed that history was given not by the accused but by somebody else, still it was possible for the accused to disclose in his defense evidence by which weapon he was assaulted or at least give description of the weapon. However, the accused is conspicuously silent about it in his defence evidence.

28] There is one more material witness i.e., PW-11 Joher Parsi. According to PW-11, at the relevant time was working as Security Guard/Watchman. On 25.08.2010 at about 1:30 p.m., the accused came to him and told him that he wanted to go to fat No.303. He made entry of the same in visitor’s register. The accused then went upstairs and returned back within fve minutes. The accused told him that no one was there in the fat. Then he went away.

29] According to PW-11, after 5 to 10 minutes, the deceased came by rickshaw. The accused also came following her. Then both of them went upstairs. According to PW-11, the deceased and accused went upstairs at about 1:30 p.m. to 1:45 p.m. At around 2:30 p.m., he received phone on intercom from PW-30 Seema Jageshia, occupant of fat No.403. She asked him to come upstairs as she heard hue and cry from 3rd floor. He told another security guard to sit in his place and went on 3rd floor. On 3rd floor, he found all the doors were closed. He then went on 4th floor and there also he found all doors were closed. He then came back to his place.

30] According to PW-11, after 5-10 minutes at about 2:35 to 2:40 p.m., he received another phone call from Mrs. Swaminathan, occupier of fat No.302. She asked him to come upstairs alongwith other security guards. Therefore, he along with other security guards went on 3rd floor. Mrs.Swaminathan told him to see what happened in fat No.303. He opened the door of fat No.303 and saw that the accused was lying on the floor. He asked the accused as to what happened. The accused told him that two persons assaulted him and he told him to catch them. According to PW-11, at that time PW-8 Manisha Rathod who was working as maid-servant in the house of deceased was also there.

31] There is nothing in the cross-examination of PW-11 to disbelieve him. This witness has been cross-examined at length in relation to topography of place of incident. However, nothing could be elicited which would probablise the defence of the accused.

32] According to the accused on the day of incident, he came to Mumbai as certain paper work was pending in relation to yellow fever vaccination, which he took on 23.08.2010. According to him, first he completed that paper work and then came to the house of the deceased. The accused, however, in his cross-examination admitted that he received certificate from concerned authority regarding yellow fever vaccination on 23.08.2010. The said certificate is in card form. He has admitted that the said card contains the details of date of vaccination. Nobody is examined from the concerned office to show  that some paper work was pending. Apart from it, issuance of certificate on 23.08.2010 itself creates doubt about the version of the accused that, he came to Mumbai on the day of incident as some paper work was pending.

33] The defense of the accused is, thus, not reliable. Considering the overall facts and circumstances, the case of prosecution cannot be doubted just because no motive is attributed to the accused, or no investigation is carried out in relation to few articles which were found at the place to incident. The trial Court on the basis of evidence on record was justified in convicting the accused for alleged offence. In the result, following order is passed ORDER 1] Criminal Appeal is dismissed. 2] Criminal Application does not survive and the same is also dismissed.

(N. R. BORKAR, J.) (PRASANNA B. VARALE, J.)