Smt. Savita Wd/O Govind Kokane vs State Of Maharashtra
2007 Latest Caselaw 430 Bom

JUDGMENT

D.G. Deshpande, J.

1. Criminal Appeal No. 729 of 1989 is filed by original accused No. 3 Smt.Savita Kokane against her conviction for offences under Section 120B and 302 read with Section 109 of the Indian Penal Code by which she was sentenced to suffer imprisonment for life and fine etc.

2. Criminal Appeal No. 148 of 1990 is filed by the State against acquittal of original accused No. 2 - Bhagwan Gaikwad and accused No. 3 Smt. Savita Kokane in the said case. Accused No. 2 Bhagwan Gaikwad was acquitted by the trial Court of the offences under Sections 120(b), 302 read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code. Accused No. 3 Savita Kokane was acquitted under Section 201 read with Section 109 of the Indian Penal Code. There was one more accused by name Ulhas Keru Khedekar. He is absconding. Two more accused i.e. Vitthal Rama Shetty and Vijay Thakur, are also absconding since long.

3. The prosecution case, which resulted in the judgment of conviction and acquittal as stated above, is that Savita was married to Govind Kokane, they had two children and they were residing at Dombivali. Govind Kokane was the civil engineer and serving in May and Baker Company at Bombay. Govind had three brothers, Dattatraya, Waman and Bhaskar. Dattatraya was staying at their native place, Mahad; Waman was staying at Thane and Bhaskar was at Dadar. Savita hails from family of Sukales at Murud Janjira in Raigad District. Savita and Govind were residing in Flat No. 7, Meghdoot Building, Palavi Co-operative Housing Society, Dombivali. On the first floor of that building, one Keru Khedekar was residing with his family. He had a son by name Ulhas. (Ulhas is the absconding accused). He was mechanical draftsman in Premier Automobiles. He had developed friendship with Kokanes. His parents did not like his visits to the house of Kokane. Therefore, ultimately Ulhas shifted to the house of Kokane under the garb that Savita was his sister which factually was wrong and, there were illicit relations between accused No. 3 Savita and absconding accused Ulhas.

4. Because of this closeness and attachment of absconding accused Ulhas with Savita, there were quarrels between Govind and Savita. Ulhas told Savita that he would quit the house. But her attachment for Ulhas was so intense and powerful that she offered to leave house of Govind and go with Ulhas.

5. It is this close attachment or illicit relationship that gives rise to the conspiracy in which Ulhas decided to eliminate Govind. He met one Vithal Shetty, the absconding accused, who agreed to do the job for Rs. 10,000/- which was to be paid in two instalments. Vithal Shetty introduced Ulhas to Bhagwan Gaikwad and Vijay Thakur and they chalked out a detailed plan. The police, from the beginning, could not secure the presence of Vitthal Ram Shetti and Vijay Thakur. All of them, however, worked out the details of plan.

6. According to the prosecution case, on 24.4.1983, accused Savita and her children were out of the house. Absconding accused Ulhas Khedekar contacted his hirelings. Accused Bhagwan Gaikwad accompanied Ulhas to the flat of Govind. They entered the flat with a duplicate key and waited for Govind to arrive. When Govind entered the house he was strangulated with nylon rope and put to death. A gunny bag was brought. The dead body was kept in it. Then a drum was purchased for keeping the dead body but the dead body could not contain in the drum. On the next day, they bought a wooden box. The dead body was put into the box by absconding accused Vijay Thakur. A bullock cart was hired and the wooden box was carried to the creek and dumped therein.

7. Thereafter, one fisherman by name Harishchandra Mukadam had gone to Sopan Creek for fishing. He found a wooden box . He brought it to the shore, but when he opened it, he found a human body inside. He tossed the body in the creek, cleaned the box and brought it home.

8. Ulhas, the absconding accused, disposed of the drum i.e. he gave it to his friend, then he went to Murud where Savita had gone and stayed there with her and her children. On 5.5.1983 Ulhas and Savita went to the house of Dattatraya, the brother of Govind, at Mahad. Savita asked the wife of Dattatraya to give ornaments of Govind's mother. But the ornaments were not given. Then on 8.5.1983 Ulhas returned to Dombivali. He sent a letter to Savita and asked her to return to Dombivali. She came with her children on 13.5.1983. The absconding accused or hirelings who had entered into conspiracy with Ulhas got a document of indemnity executed from Ulhas.

9. On 15.5.1983 Ulhas, Savita and her children went to Pune where they stayed up to 19.5.1983. There they had selected a flat worth Rs. 1,60,000/- out of which Rs. 10,000/- were paid in advance. Attempt was made to sell the ornaments of Govind, but the goldsmith refused to purchase them unless original receipts were brought.

10. On 23.5.1983 Ulhas sent letters to Govind's relations informing them that Govind had expired on 22.5.1983 and his last rites were scheduled on 30.5.1983. When the relatives came for those ceremonies, Savita and Ulhas represented that Govind died because of heart failure in Apeksha lodge at Pune and was cremated there only.

11. This sudden disclosure of death of Govind created strong doubt in the mind of his relatives. Therefore, they started making inquiries. In the mean time, attempts were made by Savita and Ulhas to get back the dues of Govind from his employer. School leaving certificate of her son Raju was obtained for shifting to Pune. Absence of Ulhas was noted by his employer from 26.4.1983 and, therefore, his services were terminated.

12. All this plan, therefore, cooked up by the accused, was successful up to this stage with no strong suspicion being raised about disappearance of Govind. However, Police Inspector of Dombivali Police Station received an anonymous letter on 4.6.1983. Similar letter was received by Govind's brother Dattatraya. Then enquiry or investigation was started, evidence to support all this story of prosecution was collected in course of time, incriminating articles were seized and varied or pieces of evidence were collected and thereafter a charge sheet came to be filed.

13. In all 41 witnesses were examined by the prosecution to prove its case. Defence of the accused was of-course of total denial. The trial Court found accused No. 3 Savita guilty, as stated above, and therefore, this appeal by accused Savita and, the State has filed its appeal against acquittal of accused Savita Under Section 201 of IPC and accused Bhagwan.

14. When the hearing of these matters was commenced, We found that important accused who were behind this conspiracy were absconding for quite a long time. We, therefore, directed the learned APP to find out what efforts were made by the police to find out them. The police sent a report dated 01/03/2007 stating that they are making attempts to trace them.

15. Mr. Ingawale, the advocate appearing for accused Savita contended that the evidence produced by the prosecution was not at all sufficient and convincing to convict the accused Savita. He also contended that there was no evidence of conspiracy at all much less any evidence showing involvement of accused Savita. Then, according to him, the body of Govind was not found; there was no evidence that Govind was murdered in his house by strangulation; that his body was kept in bag and attempt was made to put it in drum and, when that dead body could not be put in the drum, then a wooden box was bought; that the body was kept in the box and the box carried to creek and the body was thrown. He further contended that the box allegedly seized by the police was so small that it could not have contained the body of Govind. His further contention was that admittedly, according to the prosecution, Savita was not in the house when murder was committed and, therefore, she could not be said to be a part of any conspiracy.

16. This is the main thrust of his argument, but he also challenged different pieces of evidence and the evidence of other witnesses. Without prejudice to the aforesaid submissions Mr. Ingawale alternatively suggested that accused No. 3 might be a victim of circumstances, her conduct prior to the death and after the death of her husband Govind might be simply to support absconding accused Ulhas for whatever he did, but there was nothing to suggest that she incited absconding accused Ulhas to commit murder of her husband Govind nor was there anything to show that she was a part of conspiracy or she was instrumentally hatching the conspiracy. He also contended that this case is based on circumstantial evidence and all the links in chain were not established and, therefore, she was entitled for acquittal.

17. On the other hand learned APP pointed out that so far as accused Savita is concerned not less than 30 circumstances were held against her by the trial Court for coming to the conclusion that she was the chief conspirator or one of the conspirators with absconding accused Ulhas; that all the steps taken by her from the date of disappearances of Govind clearly and conclusively indicate and prove that she was knowing about the murder of her husband Govind and she was trying to get advantage of that murder; that she was guilty of making false representations to the relatives, to the employer of Govind in different manner, that even to the relatives of Govind she had made false representation about the death of her husband; that accused Savita has raised false and incredible story that one Joshi came to her at about 10.00 p.m. on 22.5.83 with her husband's brief case, when she made inquiry from the said Joshi about the brief case of her husband, the said Joshi was alleged to have told her that he and deceased Govind were fellow passengers in Mahalaxmi Express going to Pune, both boarded the train at Kalyan and after two stations had passed, Govind left his briefcase on his seat and left the place and then Joshi learnt that somebody had jumped from the train, then Joshi carried the brief case home and when he found address of the person to whom the brief case was belonging, he approached accused No. 3 Savita. According to the learned APP, raising of this false and incredible defence also supports the prosecution case that Savita was a part of conspiracy.

18. We have given our anxious consideration to the submissions made by learned defence lawyer and the learned APP. It is true that the dead body of Govind was not found or could not be found by the police. This aspect has also been considered by the trial Court that not finding of dead body cannot be an obstacle in prosecuting a man for murder in itself. The most important circumstance brought on record, indicating that Govind is dead, is the subsequent conduct of accused No. 3 Savita independently as well as with collaboration or co-operation of absconding accused Ulhas. If the defence is true that one Joshi gave briefcase of Govind to accused Savita, then she remained contending after receiving the briefcase, why she did not try to find out whether the story was true, or whether the man who alleged to have jumped from the train was her husband, why she did not try to contact any police station or railway police from Kalyan to Pune nor made any complaint about this to any police station, secondly she represented to the public and to the relatives of Govind that Govind died in Apeksha Lodge at Pune due to heart failure and he was cremated there, thirdly she applied for dues of Govind from his employer, she applied for transfer of flat of Govind in her name, she obtained school leaving certificate of her son Rajiv and also tried to purchase a flat at Pune with the help of absconding accused Ulhas, she also went to the relatives of Govind, i.e. wife of Govind's brother, for claiming gold ornaments that was come to the share of Govind, she tried to sale and dispose of Govind's ornaments, but the attempt was frustrated because the goldsmith refused to purchase them without her producing receipts about their purchase. These are the most important and clinching circumstances rightly held by the trial Court to come to the conclusion that from the conduct of accused No. 3 Savita, the fact that Govind was dead, stands proved. Therefore not finding of body of Govind is not at all a circumstance that can favour the accused in any manner whatsoever.

19. It is also true, as argued by Mr. Ingawale, that the wooden box, allegedly recovered from fisherman Harishchandra Mukadam (PW 4), did not contain any sign that dead body of Govind was stuffed into it. It is also true that the gunny bag, in which the body of Govind was initially kept, was not traced. It may also be true that the wooden box, so recovered, was so small that it could not contain the body of Govind. But even in regard to this last point, no attempt was made by the defence to bring on record, the size, shape and built of Govind to show that his body could not be contained in the wooden box which is sized under a panchanama dated 22.6.1983 at Exhibit 140. The said wooden box had length of 29-1/2", breadth 17" and height, including the lid 20". However, it is also true that there is no direct evidence that Govind was strangulated. The mode of murder is immaterial, when it is proved from the circumstances, viz. the conduct of accused No. 3 Savita and absconding accused Ulhas and the confessional statement of absconding accused Ulhas recorded by the Magistrate and considered by the trial Court in para 85 of the judgment, that Govind was murdered. Therefore, even if the aforesaid submission of learned advocate Mr. Ingawale is accepted, that does not affect the prosecution case in the least nor does it help accused No. 3 Savita in the least. We also do not find any force in the submission of Mr. Ingawale that accused No. 3 Savita could be said to have acted under pressure of absconding accused Ulhas or she fell a prey to the tactics and modalities adopted by absconding accused Ulhas in eliminating Govind. Not a single circumstance was brought on record to indicate that absconding accused Ulhas murdered Govind for his personal gain or for his single solitary individual benefit or that accused No. 3 Savita was under his pressure or she acted in the manner stated above because of black-mailing by absconding accused Ulhas. To the contrary, the conduct of accused No. 3 Savita fully proves that she was a part of conspiracy. She knew about the plan to kill her husband Govind. She knew the manner in which the body was disposed of or even if she did not know this fact, her subsequent conduct clearly proves that she was not at all under the influence, coercion, threat or black-mailing of absconding accused Ulhas. The trial Court has, as observed by us earlier, held the following circumstances against accused No. 3 Savita in order to show her involvement. None of these circumstances could be successfully challenged by learned advocate Mr. Ingawale. Those circumstances are:

A. Savita was married to Govind and had children from him. But even then she permitted Ulhas to reside with her.

B. On 10.1.1983 there was a quarrel between Govind and Ulhas. Ulhas told Savita that he would quit the house. But her attachment towards Ulhas was so powerful and thick that she showed her willingness to desert her husband Govind and go with Ulhas.

C. Murder was committed on 25.4.83 in the house of Govind. But Savita and her children went to Murud from 24.4.83.

D. Govind was missing since 25.4.83, but Savita made no attempts to lodge missing complaint nor made any effort to trace him. She did not contact any of her relatives employer Govind. or relatives of Govind or to find out whereabouts hisof

E. On 5.5.83 Ulhas and Savita went to the house of Dattatraya Kokane at Mahad. She asked Dattatraya's wife Manorama to give ornaments of mother of Govind. Savita was told that they had given to Govinda's sister and Savita should send Govind to talk about those things.

F. On 8.5.83 Ulhas returned to Dombivali, sent a letter to Savita and asked her to return to Dombivali and she came there along with her children on 13.5.83.

G. On 15.5.83, Ulhas, Savita and her children went to Pune. They stayed there till 19.5.83. During their stay, they approached estate agent Sanghavi, at Pune for purchasing a flat; selected a flat and paid Rs. 10,000/- as advance.

H. They also approached goldsmith, Ashtekar of Pune for selling gold ornaments viz. Todas and Patalis. But the goldsmith refused to purchase them and asked them to produce original receipts.

I. On 23.5.83, Ulhas sent letters to Govind's relations informing them that Govind died on 22.5.83 and his obsequies were scheduled on 30.5.83.

J. When Govind's brothers and other relatives attended these rituals, they were falsely told by Savita and absconding accused Ulhas that Govind died due to heart failure at Apeksha Lodge, Pune and were cremated there itself.

K. In the mean time on 20.5.83 Govind's employer sent a letter to Govind to know the cause of his continuous absence and Savita and Ulhas falsely represented them that Govind died at Pune.

L. Savita obtained school leaving certificate of her son Rajiv for shifting to Pune and Govinda's obsequies were performed on 30.5.83 by Vasudev Tawade, who was officiated as Priest and who had maintained records of such occasions.

M. Ulhas was absent from his services with Premier Automobiles and, the services of Ulhas were terminated from 4.6.83.

N. Mrs. Savita Anil Apte the neighbour of accused Savita gave her condolence on 29.5.83 on learning about demise of Govind and accused Savita told her that Govind died in a lodge at Pune.

O. Evidence of witness Nagarkar the Proprietor of Apeksha Lodge, Pune to the effect that no person by name Govind Kokane ever stayed in their lodge as alleged by Savita, nor any passenger died due to heart failure in the said lodge.

P. Evidence given by priest Vasudev about performing last obsequies of Govind at the instance of Savita and production of diary by him and its proof before the Court.

Q. Production of documents by S.V. Joshi (PW 35) the Secretary of the Housing Society regarding the applications, Exhibits 158 and 159 made by Savita for transfer of flat of Govind in her name.

R. Two applications, Exhibits 160 and 161, dated 25.10.83 and 4.11.83 addressed by Savita to the trustee of May and Baker where Govind was serving,. By the said applications Savita represented that Govind was dead

S. Govind was not seen by any one of his relatives, wife, children, friends, neighbours, employer on or from the date of his murder i.e. from 25.4.83.

T. Non-production of any documents or evidence or proof by Savita regarding death of Govind because the death of Govind and his cremation were the facts specially within the knowledge of Savita.

U. Recovery of letter written by Savita or Ulhas to Dattatraya and other brothers of Govind informing them about the death of Govind and the opinion of Hand Writing Expert that it is in the hand writing of Savita or some portion of it.

V. Recovery of stamp paper, Exhibit-X or Exhibit-46 thereafter and the evidence of P.W.17 Mhatre. The stamp paper reads as under :

I, Ulhas, execute this writing in my own, in this 26th day of April 1983, at 12.30 because I had prepared for the last rites of Govind Vishnu Kokane, who committed suicide on 25.4.1983 at 6.45 p.m. after returning from work. When I kept the dead body inside and locked the house. On 26.4.1983 at midnight I had tried to place the dead body in a cart. When these people looked at me with suspicion. They asked me what was inside it. We did not know each other. Hence, I told these people that it had some goods. They asked what goods. I could not avoid telling and had to tell every thing. I agreed to pay price for keeping their mouths shut. We two are fully responsible for whatever, happened in this case as we have done this job.

W. Opinion of hand writing expert Dhotre regarding Exhibits 23 and 28 the letters written by absconding accused Ulhas and he opined that they were in the admitted hand writing of Savita and absconding accused Ulhas when he came to give his evidence on 3.2.89; 18.2.89; 28.2.89 and 1.4.89.

20. The first two circumstances i.e. A and B are proved by the prosecution from the confessional statement of absconding accused Ulhas recorded by PW. 15 Smt. S.B. Gaikwad, J.M.F.C., I Court, Thane. The Magistrate (PW 15) through her evidence has proved the confessional statement of absconding accused Ulhas at Exhibit 44 wherein in this regard Ulhas told the Magistrate that, Since 1975 his friendship with Mr. Kokane was very fast. He had respected his wife as his sister. He was teaching to her children. The relation of brother and sister was up to 10th January 1983 when a quarrel took place between him and deceased Kokane. Earlier also there were number of quarrels between them. On 11th January he told accused Savita that he was not going to stay in that house. Savita then told him that if he is leaving the house, she would not live in that house. Ulhas advised her against doing so and told her that if she wants to stay with him, then perhaps their relation will not be maintained and observed by both and instead of blemishing this relation, they should change it and acted accordingly. He told her that she will have to marry him.

On the basis of this confessional statement and the subsequent findings that followed, the trial court rightly came to the conclusion that the relationship between absconding accused Ulhas and accused No. 3 Savita was illicit relationship right from the beginning. There is no substance in the contention that Ulhas was residing with Savita as her brother. We have no reason to come to any conclusion in this regard.

21. The third aspect "C" also stands proved by the confessional statement of Ulhas, proved by P.W.15. In this regard Ulhas stated before the Magistrate that there was a quarrel on 10th January 83 between him and Mr. Kokane and 24th April 83 accused Savita and her children were sent to village Janjira Murud by bus.

22. The 4th aspect "D" is concerned, nothing was brought out on record by the defence in this regard that after Govind went missing, accused Savita lodged any complaint to the police or made any attempt to trace him out or asked Ulhas regarding whereabouts of Govind. The defence is totally silent in this regard. Not a single circumstance regarding such attempts was brought on record. Leave apart, it being proved by defence, because those are the facts specially within the knowledge of accused Savita.

23. Circumstance "E" is proved by the prosecution through the evidence of Dattatraya Kokane (PW 5). In his evidence Dattatraya (PW 5) stated that on 5.5.1983 he came home for lunch from his office in the afternoon. Absconding accused Ulhas and Savita were there. He enquired from them why they had come and then he went back to his duty. In the evening when he returned, he asked his wife why Ulhas and Savita had come and wife told him that they had come to demand the gold bangles of mother of Govind. Wife also told him that she asked both of them why Govind alias Nana had not come and that he should be sent. Manorama (PW 21) who is the wife of Dattatraya fully corroborates this fact. There is nothing in the cross examination of both of these witnesses. To the contrary, P.W.21 Manorama stated in her cross examination that from the talks which she had with both these accused, it appeared that they had come for the purpose of collecting ornaments.

24. Point "F" is proved by the prosecution through the confessional statement of absconding accused Ulhas recorded by the Magistrate (PW 15). In the confessional Statement (Exhibit 44), the accused Ulhas has stated that on 8th May he came to Dombivali, dropped a letter, called Mrs. Kokane and she came to Dombivali along with Children on 13th May. Then all of them went to Pune where they stayed up to 19th May and returned back to Dombivali on the same night.

25. It is to be noted at this stage that this confessional statement recorded by P.W.15 was challenged by defence in the trial Court and before us by learned defence advocate Mr. Ingawale on the ground that the precautions prescribed under the Cr.P.C. while recording such confessional statement were not followed by the Magistrate. Even after going through the lengthy cross examination we do not find anything to support this contention. It is true that the Magistrate asked PI Akut the Investigating Officer as to how he had brought the accused before him for recording the confession and PI Akut, who was the investigating officer, told her that the accused Ulhas was brought him personally from jail. She also admitted that it was improper on the part of PI Akut to bring the accused from Adharwadi Jail when Mr. Akut himself was an Investigating Officer. The trial Court has rightly observed that this in itself is not sufficient at all to vitiate the entire confessional statement.

26. For proving the circumstances "G" and "H", the prosecution has rightly relied upon the confessional statement of absconding accused Ulhas. In addition, the prosecution has examined P.W.16 Prahlad Ashtekar - the Goldsmith at Pune. He has stated that in 1983 one lady along with a male had come to his shop for selling gold ornaments. They were gold Tolas and Patlies. He asked that lady to produce purchase receipt and told her that then only he would be able to purchase those articles. He then told that within a month thereof the lady and the male person were brought to his shop and his statement was recorded. He identified the lady as accused No. 3 Savita. In the cross examination this witness P.W.16 stated that many customers visit his shop in the month of May and he has not taken down any note about the accused No. 3 in particular that she had come on that day to sell gold ornaments. But that does not affect the evidence of this witness, because within one month thereof Savita was shown to him and then his statement was recorded. About dealing at Pune, the prosecution examined P.W.29 Bhawarlal Sanghavi. He has stated that he run the business of estate and property agent at Pune and 10 days prior to 17.5.1983, accused Ulhas Khedekar (identified in court) and accused Savita (identified in Court) came to his office. Ulhas expressed his desire to purchase a flat. The flats were shown from different area. Absconding accused Ulhas gave his choice for the flat at Lullanagar area and approximately price was told to him. Then on 17.5.1983, absconding accused Ulhas and accused No. 3 Savita along with her children went to the office of this witness and gave cash of Rs. 10,000/- for which a receipt was passed in his favour. The receipt dated 17.5.1983 was shown to the witness which he identified in court. This receipt was passed on behalf of Mrs. Fernandis the owner of the flat. The receipt was prepared by this witness (PW 29) himself under his signature. He identified it at Exhibit 29. Thereafter Ulhas came only after he was brought in police custody on 12th June 1983. In the cross examination of this witness nothing at all benefiting the accused was brought on record and, the receipt, in his hand writing, issued to the absconding accused Ulhas and, identification of Ulhas and Savita stand fully proved. It is true that in the receipt there is no name of accused Savita but this witness had no reason to speak about the presence of accused Savita on both the occasions during their visits to his office.

27. So far Points I and J are concerned, this part of the prosecution story is proved firstly through the confessional statement of absconding accused Ulhas wherein he has stated that 23rd May he sent letters to all the relatives informing them that Mr. Kokane expired on 22nd May. This part corroborates further by the evidence of Dattatraya Kokane (PW 5), Waman Kokane (PW 7) and Manorama Kokane (PW 21). Dattatraya Kokane (PW 5) has stated that on 28.5.1983 he received a post card under the signature of Ulhas Khedekar which was dated 23.5.1983. It was returned in the said letter that Nana i.e. Govind died in the morning on 22.5.1983. He identified the original post card shown to him. He then went to his brother Waman, showed the letter to him and then it was also shown to other relatives. Dattatraya has stated that thereafter he himself, his wife, his brother Waman and his sister Ujwala and her husband went to Dombivali by taxi to the house Govind. There he found that father-in-law of Govind Mr. Sukale present with his wife. The accused No. 3 Savita was also sitting in a sad mood. Absconding accused Ulhas Khedekar was also present. They asked how did it happen, where upon Savita told them that while they had gone to Pune and were stayed in Apeksha Lodge, Govind had a heart attack and he expired on the same day. Dattatraya asked Savita whether she was with him at that time. She replied in the affirmative. He then asked why they were not informed when they were residing near Mahad and she told that it was done according to the wish of Govind. Dattatraya also asked Savita as to where the funeral took place and Savita told him that it was done at Pune itself with the help of persons from Apeksha Lodge. P.W.6 Bhaskar has stated that when on 30.5.1983 he tried to contact his brother Govind on telephone in his May & Baker Co., he was told on phone that Govind had died by heart attack. He wanted to inquire about Govind. Therefore, he rushed to the house of Govind. There he found accused No. 3 Savita and some 4/5 unknown persons including absconding accused Ulhas. He inquired from Savita how Govind died and Savita told same story which was given by her to Dattatraya. Waman P.W.7 has stated that on 30.5.1983 his sister Ujwala alias Nalini came to his house with her husband Dattatraya Kolekar from Kolhapur, showed a telegram in which it was informed that Govind had expired and his 10th obsequies was fixed on the next day. Waman was shocked to read this, because he was never informed about the death of his brother when he was in Thane and his sister at Kolhapur had received the telegram. Thereafter they went to the house of Govind. In the house of Govind, Mr. Sukale the father of Savita was present. He told that Govind died due to heart attack and his 10th obsequies was fixed on the next day. He did not find Savita present on that day. Even though all of the three witnesses, the brothers of deceased Govind, were cross examined at length, they could not be shaken at all from their testimonies in this regard.

28. So far as Point K is concerned, the prosecution has relied upon the evidence of P.W. 23 Prafullchandra Joshi who was the administrative officer of May and Baker Co. Personal records of employees were maintained by his Department, it include personal record of deceased Govind Kokane. As per his evidence, the last day of the duty of Mr. Kokane was 25.4.1983 and about subsequent absence the company did not received any letter or leave application from Govind. Then he has stated that on 11.6.1983, they received a letter from P.I. Dombivali. It is at Exhibit 116. Reply was prepared and sent under his signature. It is at Exhibit 117. It was accompanied by extract of muster roll maintained in their office and attendance of deceased Govind. The witness stated that Personnel Officer wrote a letter to Govind at his Meghadoot Building, Dombivali about his continuous absence. The letter was replied and the reply dated 24.5.1983 received by the company under the signature of Mrs. Kokane and the company was informed that Govind had died on 22.5.1983. This letter was produced at Exhibit 120. Then this witness also produced and proved the letter dated 24.5.83 written by accused Savita giving authority to another employee of the company Mr. S. Phadnis to collect the salary for the month of April 1983. That letter was at Exhibit 123. He has also stated that an amount of Rs. 2310/- was paid to accused No. 3 vide receipt at Exhibit 127.

29. The learned APP has rightly contended that May and Baker Co. is a company of repute. They have maintained records. Their conduct in making enquiry about the absence was most natural. The witness has given evidence on the basis of records. There is absolutely no reason to disbelieve his testimony. In the cross examination of this witness, absolutely nothing could be brought out on record to create any doubt about the truthfulness and veracity of this witness. This witness also proved the letters and correspondence they had with the police and the answers given by them to the queries made by the police about Mr. Kokane. It is pertinent to note that in Exhibit 120 written by accused No. 3 Savita to the company, the accused No. 3 Savita wrote that her husband is no more in the world and he expired on Sunday morning dated 22.5.1983 at Pune. She had made request to send her money which is due from her husband's account at the earliest.

30. The prosecution also examined Sunil Phadnis as P.W. 24 who was working with Govind in May and Baker Co. and who got the authority letter from accused No. 3 Savita and who paid per amount due to deceased Govind and who obtained receipt from her. He also supported all the correspondence and letter to which there was a reference made by P.W.23.

31. To prove points L & P, the prosecution has relied upon the evidence of P.W.33 Ramdas Shinde, who, at the relevant time, was working as P.S.I. Dombivali. He carried a packet from PI Akut to Sardar Dastur High School, Pune as it was addressed to the Principal. He was also asked to get the documents of admission form and school leaving certificate of Rajiv Govind Kokane. He stated that he went to Pune, met principal of Dastur High School, handed over the memo to him and collected original admission form dated 7.6.1983 wherein the name of guardian of Raju is written as Ulhas Keru Khedekar - the absconding accused. He admitted the said form at Exhibit 153. He also stated that he collected original school leaving certificate of Rajiv which pertains to Prince English School of Dombivali. He identified it and admitted at Exhibit 154. There is absolutely no cross examination. Only one thing is asked i.e. whether he recorded the statement of the principal or any concerned clerk and, he replied this in negative. . Regarding Govind's obsequies performed on 30.5.83 the prosecution has relied upon the evidence of Dattatraya Kokane (PW 5), Bhaskar Kokane (PW 6), Waman Kokane (PW 6) and Manorama Kokane (PW 21). Apart from that, the Priest, who preformed those rites, was also examined by the prosecution. He is P.W.26 Vasudeo Tawade. P.W.26 Vasudeo has stated that he was staying at Dombivali and serving in Central Railways. In addition, he was also doing a job of Brahmin Priest. After his voluntary retirement, he was doing it full time. He has stated that he maintained a diary for his own memory purposes wherein he wrote the names of customers and nature of work. He has maintained such a diary in 1983-84 and he was knowing absconding accused Ulhas Khedekar. He has stated that 2/3 days prior to 30.5.1983, absconding accused Ulhas approached him with an elderly person and he told the witness that one Mr. Kokane had died on Sunday and his obsequies of the 10th day onwards were required to be performed. This witness (PW 26) saw the panchang and suggested that the obsequies from the 9th day were better. Both i.e. absconding accused Ulhas and the fellow accompanied him, agreed to it. The witness made note of this thing in his diary, wrote name of deceased as Govind Kokane and address was also correctly written. The entry to that effect was written by the witness in his hand writing on Page No. 150 and, the date of ceremony was 30.5.1983. Thereafter he went the Ganesh Temple on 30.5.1983 at 8.00 a.m.. One 12 years old boy was present. The said boy said to be the son of deceased Kokane. The 9th day obsequies were performed from 8.30 a.m. to 10.00 a.m. and, then for the next day the witness deputed his colleague Mr. Ganesh Balaji Sohani on 31.5.1983. Entry was made in that regard, 11th day and 12th day obsequies were also performed by him accordingly. There is absolutely no cross examination, except the charges of Rs. 450/- paid to this witness. The representations made by accused No. 3 Savita and absconding accused Ulhas that Govind died at Pune due to heart failure and his last obsequies ceremony were performed at Dombivali stand proved to the hilt.

32. To prove Point "M" the prosecution has examined P.W.22 Suresh Sawant to prove that absconding accused Ulhas was absent from his services and his services were terminated from 4.6.83. P.W.22 Suresh Sawant was the Personnel Manager in Premier Automobile where the absconding accused Ulhas was serving. He brought the personal file of Ulhas Khedekar in Court and on the basis of that he stated that Ulhas was serving as a Junior Draftsman from 6.7.1982 till 25.4.1983. He was stated that because of continuous absence from 26.4.1983, a letter dated 4.6.83 was sent to absconding accused Ulhas Khedekar under his signature informing that his services stood terminated as abandoned and the address given by Khedekar was Meghdoot building. He, then entered into correspondence with police and gave them necessary information. In the cross examination he stated that he could not say whether the letter terminating the services was received by absconding accused Ulhas or not. There is nothing in the cross examination. Therefore, absence of absconding accused Ulhas from his duties was proved by this witness beyond reasonable doubt.

33. To prove point "N", the prosecution has relied upon the evidence of Savita Apte (PW 39). This witness Savita asked accused No. 3 Savita why she should not inform the society members as they would have rushed to Pune. Accused Savita told her that it did not strike her. This witness was subjected to cross examination regarding visits of different employees of May & Baker Co. But nothing has come on record to disbelieve her natural and simple evidence. Regarding happenings, absence of Mr. Kokane, family members and coming to know about the death of deceased Govind through accused Savita, certain minor contradictions and omissions are brought on record, but they are absolutely of no consequence. For example, she did not tell police during her statement that after learning from Mrs. Bhadkamkar about the death of Mr. Kokne due to heart failure, witness Savita told her that what Ulhas had told her. Then in her statement it is not mentioned that Mrs. Kokne told her that Ulhas had gone to call the doctor but before the doctor could reach, Mr. Kokne died. All these and such omissions are absolutely of no consequence and they do not affect the veracity and testimony of this witness.

34. The prosecution has examined the Proprietor of Apeksha lodge, Pune, P.W. 25 Waman Nagarkar to prove the circumstance "O". He has stated that the register was maintained in their lodge to make entries about the customers visiting their lodge regarding date and time with permanent address. He brought the original register with him from the year 1983. There was Entry No. 1858 relating to Room No. 302 i.e. Room No. 2 on third floor. The name of the passenger was Ulhas K. Khedekar, Occupation : Service, date and time of arrival : on 1.5.1983 at 2.30 p.m. and, the reason for visit : Personal. He also brought daily chart from which he stated that Ulhas stayed in the lodge from 1.5.1983 to 3.5.1983 and the number of passengers were "two". Then he stated that police visited his lodge, they had taken xerox copies of those entries. The address given by Ulhas was, Meghdoot Building, Dombivali. Then on 15.5.1983, Ulhas Khedekar and family again came their lodge at 1.10 p.m. in Room No. 302. The address was given as Meghdoot building, Dombivali. The total stay was five days. He also gave copies of this entry to the police. He has stated that no person by name Govind came to his lodge, this was after perusal of the register, for staying individually or with his family. He also stated that it was obviously for him to know if any person died in his lodge and to his knowledge no such death was reported to him of a passenger on 22.5.1983. There is no much cross examination of this witness. The fact that absconding accused Ulhas stayed in Apeksha Lodge, Pune with two persons and deceased Govind had never gone to Apeksha Lodge, Pune, as tried to be represented by accused No. 3 Savita right from the beginning, is proved by the prosecution through the evidence of P.W.25 Nagarkar.

35. So far as Point "Q" is concerned, the prosecution has examined S.V. Joshi (P 35), who was the Secretary of the Housing Society at the relevant time. He has stated that he was knowing deceased Govind who was staying in Flat No. 7 on first floor of Meghdoot Building. He was knowing accused Savita. He has stated that in the year 1983 absconding accused Ulhas was residing with Mr. Kokne and on the date of his evidence, absconding accused Ulhas and accused No. 3 Savita were residing in the said building and, accused Nos. 1 and 3 were staying together for more than 7/8 months. Then he stated that accused Savita submitted an affidavit with a request to transfer flat No. 7 in her name as a nominee of Mr. Kokne who was said to be missing in that affidavit. He produced the same at Exhibit 158 and also produced transfer form with a request to transfer flat No. 7 to her name. He identified the signature of accused Savita. It is at Exhibit 159. He stated that he did not see deceased Govind for last three years i.e. before his evidence. This witness was subjected to cross examined. He stated that the affidavit in original as well as the transfer form in original in respect of flat No. 7 were brought by absconding accused Ulhas to him in January 1986. He denied the suggestion that other members of the society were persuaded to take action against deceased Govind and his wife for non-use of his flat by deceased Govind personally. He also denied the suggestion that he himself asked accused Savita to bring the affidavit and the transfer form and that they were brought by her accordingly. There is nothing much in the cross examination.

36. For proving Point "R", the prosecution relied upon the testimony of P.W.23 Prafullachandra Joshi - Administrative Executive of May and Baker Co. We have already considered some part of his evidence earlier. Regarding this point, he has stated in para 7 that their company had received a letter dated 25.10.1985 from accused Savita. There was a seal of inward section of 29.10.1985. It was produced before the police during investigation and he produced it in his evidence along with envelope at Exhibit 160. Then he also produced another letter of accused Savita dated 4.11.1985. There was also a seal of inward section of their company of 8.11.1985. It is at Exhibit 161. In Exhibit 160 i.e. the letter dated 25.10.85, accused Savita had informed May and Baker Co. that her husband was working in Stores Department. He died in April 1983. Rs. 60,000/- were lying in his fund. More than two and half years passed since his death, but she had not received any amount and, therefore, the amount should be paid to her immediately. Exhibit 161, i.e. the letter dated 4.11.85, is with reference to the earlier letter (Exhibit 160). By the letter dated 4.11.1985 accused Savita requested May & Baker Co. to pay the amount to her immediately. So far as this witness is concerned, there was no cross examination or nothing fruitful was brought out on record from his cross examination. He admitted that his statement was recorded by police officer on 27.2.1986 in the staff office of the public prosecutor, Thane and after his evidence in court was over. However, this admission does not affect the testimony of this witness, because the witness has no grudge against the accused nor anything to favour the deceased. He has given his evidence on the basis of the record of the company. There is no denial that accused Savita did not write those letters Exhibits 160 and 161 or other letters.

37. It is pertinent to note in this regard that last date of duty of Govind was 25.4.1983. An anonymous letter was received by Dombivali Police in which suspicion was expressed about the death of Govind Kokane. It was dated 30.5.1983. Dattatraya (PW.5) the brother of deceased Govind also received anonymous letter dated 4.6.1983. But it appears that investigation was going for a considerable time because of very nature of the offence and, therefore, the accused thought that they had succeeded in hiding the crime and then she started writing letters to the employer of deceased Govind claiming amount of provident fund. There is no explanation why after two years or three years of the death of Govind or from the date of disappearances of Govind, she should write those letters Exhibit 160 and 161.

38. So far as circumstance "S" is concerned, there is no dispute, from all the evidence that has come on record through witnesses viz. neighbours, employer of Govind, his friends and relatives, that Govind was not seen alive by anyone after 25.4.1983.

39. So far as Point "T" is concerned, this is one of the most important links in chain. According to the stand taken by accused Savita during investigation or before the police machinery came on the scene, Govind died due to heart failure in Apeksha Lodge, Pune and before the doctor could call by absconding accused Ulhas, he died and, he was cremated in crematorium at Pune. The proprietor of Apeksha Lodge, Pune PW.25 Nagarkar had totally denied that no person by name Govind Kokane died in his lodge. Apart from that if the body of Govind was cremated in crematorium at Pune, it was a fact within the special knowledge of accused Savita, but her conduct in this regard was most unnatural. She did not inform any of the relatives of Govind about the death by sending telegram or making phone calls to them. She did not wait for any of them to come to the lodge at Pune and, according to her she cremated the body of Govind in some crematorium, with whose help and assistance the body was removed from Apeksha lodge to the crematorium is a fact fully within the knowledge of accused Savita. She had no explanation to offer. The accused cannot expect that the prosecution i.e. the investigating agency goes on hunting and searching of crematorium in Pune and find out whether there is an entry about bringing the body of Govind. The burden, therefore, fully, completely and wholly lies upon accused Savita and she has miserably failed to discharge the burden obviously because Govind did not die in Apeksha Lodge, Pune as per the case made out by accused Savita before the relatives of Govind. This is, therefore, a false, concocted and cooked up story by accused Savita with the help of active connivance of absconding accused Ulhas.

40. For proving Points U, V and W the evidence of P.W.41 then Police Inspector, Raghunath Akut is important. He has stated that on 13.6.1983 he recorded the statement of Dattatraya and five others. Dattatraya produced post card dated 23.5.83 written by accused Ulhas about death of Govind. It is at Exhibit 23. This witness stated that on 21.6.1983 he took specimen writings and signatures of accused Ulhas and Bhagwan. Exhibits 47 to 52 are the specimen writings of Ulhas and Exhibits 53 to 58 are the Marathi specimen signatures of accused Ulhas. Exhibits 59 to 64 are English specimen signatures of accused Ulhas and Exhibits 65 to 70 are the specimen writing of Ulhas in Marathi. Exhibits 71 to 76 are the specimen addresses in English handwriting of Ulhas. Exhibits 77 to 82 are the specimen writings of Ulhas in English. On 24.6.83 he took specimen signatures of Savita. Exhibits 91 to 96 are the English specimen signatures and Exhibits 97 to 102 is the specimen writing in Marathi for which panchanama was prepared. All the disputed documents viz. stamp paper, post cards, applications made to May and Baker Co., Ajanta diary recovered from Ulhas, admission form to Dastur High School along with specimen writings and admitted writing of accused Ulhas were sent to hand writing expert for opinion along with a list of documents and a questionary. P.W.34 Parshuram Dhotre has stated that he received the questionnaires along with forwarding letter from PSI Dombivali, through proper channel. They are Exhibit 219. Seven disputed documents were received by him along with specimen writings and natural writings. He gave also particulars of the documents. They are:

1. Five rupees stamp paper with body writing marked as "A";

2. Post card dated 23rd May 1983 with body writing marked as "B";

3. Post card dated 25th May 1983 with body writing marked as "C-1"

4. Two Applications to personal Manager of May and Baker.

5. Application for admission to Principal of Sardar Dastoor High School, Pune.

6. Diary.

He also received natural hand writing of absconding accused Ulhas and all these specimen hand writings, signature and in different languages are of absconding accused Ulhas and accused Savita. He took the photographs of the documents and gave his opinion in para 9 which reads thus:

Then I carried out final examination of documents and come to the following conclusion;

(i) The writings marked by me as A.B.B.B-2, C, C-1, D, D(r) and G and the signatures marked by me as A-1, B. C and F are written by those marked as X-1 to X-36, X - N -1 and X - N -2

The stamp paper i.e. the writings on the stamp paper marked as "A" are written by those marked as X-1 to X-36, X-N-1 and XN-2 i.e. of Ulhas Khedekar. Two post cards Exhibits 23 and 28 marked as "B" and "C" and the writings of name of addresses as B-2 and name Govind Vishnu Kokane as B-1 in post card dated 23rd May 1983 and the name of the addressee in the post card dated 25th May 1983 as "C-1". Regarding two letters, the opinion of the hand writing expert is B and B-1 are written by those marked as X, Y-1 and Y-12. They are of accused Savita.

41. From the aforesaid consideration of each and every circumstances brought on record and proved by the prosecution, it is absolutely clear that deceased Govind was murdered as alleged by the prosecution with the active connivance, help, assistance, motive and intention of present accused No. 3 Savita. There is nothing to show that she was scapegoat of pressurising tactics and coercion exerted upon her by absconding accused Ulhas as argued by her advocate, or she was a prey of the circumstances. She was, therefore, rightly convicted by the trial court. There is absolutely no reason to come to any other conclusion.

42. Non-recovery of body or of the nylon rope or not connecting recovery of wooden box about its user in stuffing the dead body of Govind do not at all help the present accused No. 3 Savita. 43. The appeal filed by the accused No. 3 Savita against her conviction is required to be dismissed. So far as appeal of the state against acquittal of accused Bhagwan Gaikwad is concerned, We do not find any merit in this appeal and it is required to be dismissed. The trial court has considered that aspect and rightly acquitted the accused Bhagwan. But so far as accused No. 3 Savita is concerned, the State appeal against her acquittal Under Section 201 is required to be allowed. In the result we pass the following order:

ORDER

Appeal filed by accused No. 3 Savita Govind Kokane vide Criminal Appeal No. 729 of 1989 is dismissed.

Appeal against acquittal filed by the State vide Criminal Appeal No. 148 0f 1990 is partly allowed.

Accused No. 3 Savita Govind Kokane is also convicted for the offence punishable under Section 201 of the Indian Penal Code and is sentenced to suffer R.I. for three years and to pay fine of Rs. 1000/- in default to suffer R.I. for six months. All the substantive sentence to run concurrently.

Accused No. 3 Savita Govind Kokane is on bail. Her bail bond stands cancelled.

Accused No. 3 Savita Govind Kokane to surrender before the trial Court within two weeks from today for undergoing sentence. If she does not surrender, the trial Court to take action to arrest her and send her to jail for undergoing sentence.

Acquittal of Accused Bhagwan Waman Gaikwad on all counts is upheld. He is on bail. His bail bond stands cancelled.

Both the appeals disposed of accordingly.

S.R. Sathe, J.

D.G. Deshpande, J.

After this order was pronounced, learned advocate Mr. Ingawale appearing for Accused No. 3 Smt. Savita Govind Kokane, prayed that the time to surrender granted by this order today by two weeks be extended by eight weeks.

We are totally in disagreement with this prayer. Firstly because the accused was on bail throughout the trial. The charge was framed on 22.11.1985 and the recording of evidence started on 17.11.1989. The appeal was filed in this Court in the year 1989. Therefore for last more than 21 years, accused No. 3 Savita Kokane is on bail and enjoying the liberty. This is a concurrent finding of the fact. We have confirmed her conviction and sentence. She is more than 55 years of age. Now granting any further liberty would frustrate the purpose of imposing sentence. Hence prayer for extension of time is rejected.