Rahul Ramchandra Bhabad vs The State Of Maharashtra
2017 Latest Caselaw 9003 Bom

                                                                 judg. 901. CA 358-14.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.358 OF 2014
                                                 IN
                             SESSIONS CASE NO.154 OF 2008
       Rahul Ramchandra Bhabad
       Age : 30 years, Occ. Nil,
       residing at Shivaji Nagar, 
       Room No.3, Plot No.7,
       Manmad, Taluka Nandgaon,
       District Nasik.
       Presently Convict No.9192 at
       Nasik Road Central Prison at Nasik                         ...Appellant
                                                                  (Org. Accused)
                   vs.
       The State of Maharashtra
       at the instance of Manmad Police
       Station, Taluka Nandgaon, 
       District Nasik.                                            ...Respondent
                                                                 (Org. Complainant)
                                  ...........

Ms. Rohini M. Dandekar, Advocate appointed for the appellant.

Mr. Arfan Sait, A.P.P. for respondent - State.

...........

                                 CORAM :                  SMT. V.K. TAHILRAMANI  & 
                                                          M.S.KARNIK, J.J.

                                 DATE        :        22nd/23rd NOVEMBER, 2017.









                                                         judg. 901. CA 358-14.doc

ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.):-

The appellant/original accused Rahul has preferred

this appeal against the judgment and order dated 26/9/2013

passed by the learned Additional Sessions Judge, Malegaon,

District Nashik in Sessions Case No.154 of 2008. By the said

judgment and order the learned Sessions Judge convicted the

appellant under Section 302 of the Indian Penal Code for

committing murder of his mother Ashabai. Learned Sessions

Judge again convicted the appellant under Section 302 of Indian

Penal Code for committing murder of his minor cousin brother

Rishikesh @ Sonu. In addition, learned Sessions Judge also

convicted the appellant under Section 363, 364, 342 of the

Indian Penal Code. For the offence punishable under Section 302

of the Indian Penal Code on each count the appellant was

sentenced to suffer R.I. for life and to pay fine of Rs.500, in

default to suffer R.I. for one month. For the offence punishable

under Section 364 of the Indian Penal Code the appellant was

sentenced to suffer R.I. for five years and to pay fine of Rs.500/-,

in default to suffer RI for one month. For the offence punishable

judg. 901. CA 358-14.doc

under Section 363 of the Indian Penal Code the appellant was

sentenced to suffer R.I. for five years and to pay fine of Rs.500/-,

in default to suffer RI for one month. For the offence punishable

under Section 342 of the Indian Penal Code the appellant was

sentenced to suffer R.I. for six months and to pay fine of

Rs.200/-, in default to suffer R.I. for fifteen days. Learned

Sessions Judge directed that all the above substantive sentences

of imprisonment shall run concurrently.

2. The prosecution case briefly stated is as under :-

The appellant Rahul committed murder of his

mother Ashabai by strangulating her. In addition, he kidnapped

his minor cousin brother Rishikesh @ Sonu with intention to

commit his murder. After kidnapping Sonu, the appellant

wrongfully confined him and thereafter, murdered him. PW-6

API Amle lodged FIR (Exh.50). Thereafter, investigation

commenced. After completion of investigation the charge-sheet

came to be filed.

judg. 901. CA 358-14.doc

3. Charge came to be framed against the appellant

under Section 363, 364, 342 and 302 of the Indian Penal Code.

The appellant pleaded not guilty and claimed to be tried. His

defence is of total denial and of false implication. After going

through the evidence adduced in this case, learned Sessions

Judge convicted and sentenced the appellant as stated in para 1

above, hence, this appeal.

4. We have heard the learned Counsel for the appellant

and learned APP for State. We have carefully considered their

submissions, the judgment and order passed by the learned

Additional Sessions Judge and the evidence in this case. After

carefully considering the matter for the below mentioned

reasons we are of the opinion that the appellant committed the

murder of his mother Ashabai and his minor cousin brother

Rishikesh @ Sonu. In addition the appellant committed an

offence punishable under Section 363, 364 and 342 of the

Indian Penal Code.

judg. 901. CA 358-14.doc

5. There is no eye witness in the present case and the

case is totally dependent upon circumstantial evidence. PW-1

Ramchandra Bhabad is the father of the appellant Rahul.

Ramchandra has stated that Ashabai was his wife and the

appellant was his son. They were residing at Shivaji Nagar No.3,

Plot No.7, Manmad, Taluka Nandgaon, District Nashik. PW-2

Yeshwant Bhabad was the brother of PW-1 Ramchandra. Thus,

Yashwant was paternal uncle of the appellant. Deceased

Rishikesh @ Sonu was the son of the Yashwant. Sonu was 9

years of age at the time of the incident. Yashwant was residing

at the distance of about two minutes from the house of his

brother Ramchandra. The appellant Rahul was the second son of

his parents. His father PW-1 Ramchandra used to sell

newspapers. Ramchandra had employed some boys to distribute

the newspapers. The appellant was also helping his father in

relation to the business of newspapers. The appellant used to

collect the amount from the sale of newspapers. The appellant

was about 29 years of age at the time of the incident hence his

parents and close relatives were insisting that he should get

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married. Whenever the issue of marriage of the appellant

was raised, the appellant used to get irritated. Ramchandra had

purchased a motorcycle. The appellant used to use the said

motorcycle. The daily routine was that at about 5.00 a.m.,

Ramchandra and his son i.e. appellant used to sort out the

papers near Ambedkar statue near Railway Station. Thereafter,

they used to give the newspapers to the boys for distribution.

Some newspapers used to be kept in the stall for sale and some

newspapers used to be given to the appellant. The appellant

used to sell newspapers in front of 'Pakija Corner' till 10 to 10.30

a.m.. Thereafter, he used to collect credit amount and return

home. Ramchandra used to return home at about 3.30 to 4 p.m..

Thereafter, he used to have his lunch. There were three keys to

the entrance door of the house of the appellant. One was with

his father Ramchandra, the second key was with his mother

Ashabai and third key was with the appellant. On 20/6/2008, at

about 5 a.m., Ramchandra went to the paper stall on his bicycle.

He sorted out the newspapers and gave them to the boys for

distribution. At about 6.30 a.m., he also gave newspapers to his

judg. 901. CA 358-14.doc

son i.e. the appellant. Rahul took the newspapers and went to

'Pakija Corner'. The appellant, thereafter, did not come back to

the stall. One Jejure wanted old newspapers (Raddi), hence he

came along with Ramchandra at about 11.30 to 11.45 a.m. to

the house of Ramchandra. Ramchandra found the entrance door

closed from inside. Ramchandra knocked on the door. After

about 4 to 5 minutes the appellant opened the door of the

house. Ramchandra asked Rahul where was his mother Ashabai.

Rahul informed his father Ramchandra that his mother Ashabai

had gone to the hospital. The appellant asked his father

Ramchandra why he had come home. Ramchandra told him that

he wanted to collect old newspapers (Raddi). Ramchandra then

gave old newspapers to Jejure and returned back to his stall. At

about 3.30 p.m., Ramchandra returned home. There was lock on

the entrance door. He opened the lock. He thereafter sat down

for having lunch. In a short time police from Manmad police

station came to his house. They told him that his son Rahul had

surrendered before the police saying that he had murdered his

mother Ashabai and his paternal cousin brother Rishikesh @

judg. 901. CA 358-14.doc

Sonu, aged 9 years. Ramchandra then called Yashwant who was

father of the Rishikesh @ Sonu and asked him the whereabouts

of Rishikesh @ Sonu. Yashwant replied that his son had gone to

the school. Yashwant then came to the house of Ramchandra.

Ramchandra then informed Yashwant what police had told him.

Yashwant and Ramchandra then searched inside the house and

under the bed the dead body of the wife of Ramchandra was

found. It was concealed under newspapers. The dead body was

found on removing the newspapers. Nylon rope was found tied

across her neck. Her tongue had protruded out. Police then

asked Ramchandra whether they were having some other house

whereupon Ramchandra informed them that they had a house

at Kumbharwada. Then they went to Kumbharwada. Police

broke the lock and opened the door. On going inside the house

at Kumbharwada they found the dead body of Rishikesh @

Sonu. Rishikesh had been strangulated with the wire of a table

fan and iron rod was kept on his neck. Thus the evidence of

Ramchandra shows that the appellant had free access to both

the places where the dead bodies were found.

judg. 901. CA 358-14.doc

6. The evidence of Ramchandra also shows that

normally he used to return home at 3.30 p.m. to 4.00 p.m.,

however, on the date of the incident i.e. on 20/6/2008,

Ramchandra came home with one Jejure at about 11.30 a.m. to

11.45 a.m. to supply raddi newspapers to Jejure. Ramchandra

found that the door of the house was closed. When he knocked

on the door, the appellant took sometime to open the door. The

appellant also questioned his father Ramchandra why he had

come home. Thus, normally Ramchandra never went home at

11.30 a.m. to 11.45 a.m. but he used to return home only at

about 3.30 p.m. to 4.00 p.m., hence, the appellant would not be

expecting his father Ramchandra to come home at 11.30 - 11.45

a.m. There was no reason for the appellant to lock the door of

the house from inside because there were three keys to the

house. One was with the appellant and other two keys were

with the mother and father of the appellant. Thus, when the

appellant was in the house, there was no reason for him to lock

the door. It is further seen from the evidence of Ramchandra

that the appellant did not immediately open the door and he

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took sometime to open the door. Thereafter, when Ramchandra

returned home at 3.30 p.m. to 4.00 p.m., the appellant was not

in the house and the dead body of the wife of Ramchandra was

found under the bed.

7. PW-2 Yashwant Bhabad was the paternal uncle of the

appellant. He has stated that he had only one son i.e. Rishikesh

@ Sonu. Rishikesh @ Sonu who was of 9 years of age at the

time of the incident. Rishikesh was studying in 3 rd standard in

"Chhatre High School". Yashwant has stated that he had two

brothers. His elder brother is Ramchandra and his younger

brother is Subhash. All the three brothers were residing at

Manmad at a distance of two minutes from each other. His

brother Ramchandra (PW-1) had two sons Atul and Rahul

(appellant). Only Rahul was residing along with his parents at

Manmad. Yashwant has stated that Rahul was about 29 years of

age at the time of the incident. He was not married. When they

insisted that he should marry he used to refuse. Two to three

years prior to the incident he had pawned the ornaments of his

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mother with one goldsmith. Ramchandra (PW-1) had called

Yashwant and told him about it. Yashwant then give

understanding to Rahul and told him not to indulge in such

activities. Yashwant has stated that on 20/6/2008, he returned

home at about 3 p.m.. At about 4 p.m., he received a call from

his brother Ramchandra asking Yashwant the whereabouts of his

son Rishikesh @ Sonu. Yashwant told Ramchandra that Sonu

had gone to school. Ramchandra told Yashwant to search for

Sonu. Hence, Yashwant searched for Sonu. Then he along with a

relative went to the house of Ramchandra. They saw people

standing near his house. Yashwant made inquiry with his

brother Ramchandra. Thereupon Ramchandra replied that his

wife had been murdered. Then they went to Kumbharwada.

When Yashwant went inside the house of his brother

Ramchandra he saw dead body of his son Rishikesh @ Sonu

inside the house. He saw Rishikesh @ Sonu had been

strangulated with electric wire of a table fan and iron rod was

kept across his neck. Yashwant has stated that he saw the dead

body of his sister-in-law. Her dead body was under the bed.

judg. 901. CA 358-14.doc

Yashwant has stated that because they were telling the appellant

to get married he was angry with them and hence, the appellant

committed the murder of his mother and Yashwant's son

Rishikesh @ Sonu.

8. Rishikesh @ Sonu was studying in "Chhatre High

School" at Manmad. His school timing was 12.30 noon to 5.30

p.m.. PW-12 Ranjana Choudhary was a teacher in the said

school. She was teaching the 3rd standard. On 20/6/2008, the

class teacher of standard 3-B was on leave, hence Ranjana

Choudhary was asked to attend the said class at 3 p.m..

Accordingly she went to the class and started teaching. PW-12

Ranjana had stated that at about 3.05 p.m., one person came to

the class. He was wearing spectacle and had covered his head.

He told that he wanted to take Rishikesh @ Sonu along with

him to bring notebooks. Therefore, Ranjana Choudhary called

out the name of Rishikesh @ Sonu in the class room.

Thereupon, Rishikesh @ Sonu stood up. Ranjana Choudhary

asked Rishikesh who was the person who had come to take him.

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Rishikesh replied that he was his 'Motha Dada' i.e. big brother.

Ranjana Choudhary told that person that he can bring the

notebooks on Monday. However, he replied that he will bring

back Rishikesh @ Sonu within 10 minutes at the most and his

school bag may be kept in the class. Ranjana then allowed

Rishikesh @ Sonu to go along with that person. Ranjana then

started teaching in the class. At about 4.30 p.m., the peon of

their school came to their class and asked about Rishikesh

Bhabad. Ranjana told the peon that his big brother came to take

him for 10 minutes however he had not returned till then. After

the school was over Ranjana Choudhary came to know that

Rishikesh was killed by his elder brother by strangulating him.

Ranjana has identified the appellant as the person who took

away Rishikesh. Thus, the evidence of PW-12 Ranjana

Choudhary shows that Rishikesh was taken away from the

school by the appellant at about 3.05 p.m. and the dead body of

Rishikesh was found a couple of hours later in the house of the

appellant. Thus, the evidence of PW-12 establishes that

Rishikesh was last seen with the appellant at about 3.05 p.m..

judg. 901. CA 358-14.doc

9. Just shortly, after 3.30 p.m. the police of Manmad

police station came to the house of Ramchandra and informed

him that his son Rahul had surrendered before the police saying

that he murdered his mother and his cousin brother Rishikesh @

Sonu, aged 9 years. The evidence of PW-2 Yashwant shows that

at about 4.00 p.m., he received a phone call from his brother

Ramchandra asking him the whereabouts of Rishikesh @ Sonu.

Yashwant informed Ramchandra that Rishikesh @ Sonu had

gone to the school. Thereupon Ramchandra told Yashwant to

search for Sonu. When Yashwant went to the house of

Ramchandra he saw people standing there and on inquiry

Ramchandra told him that his son had murdered his wife.

Thereafter, they went to the house of Ramchandra at

Kumbharwada and Yashwant saw the dead body of his son

Rishikesh @ Sonu lying in the room and he had been

strangulated to death.

10. PW-15 Dr. Gosavi conducted the postmortem on the

dead body of Ashabai as well as Rishikesh @ Sonu. The external

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injuries seen on Ashabai are as under :-

1. Abrasion present over dorsal side of right forearm at lower 1/3rd .

2. 3-imprint abrasion present around the neck. The first imprint abrasion caused around the neck on anterior aspect above thyroid cartilage which is from right postacuricular area to left postacuricular area up to mastoid bone.

3. Two-imprint abrasions below the thyroid cartilage from right postacuricular area to left postacuricular area.

4. Regarding internal injuries on palpation, fracture of thyroid cartilage was noticed by Dr. Gosavi.

In addition, Dr. Gosavi also found that brain-meninges was

congested, petechial hemorrhage was present. Larynx, tracheal

ring, thyroid cartilage, bronchi and carotid artery - injured.

According to Dr. Gosavi, the tongue had protruded outside the

mouth and the cause of death was 'strangulation'. According to

Dr. Gosavi, the injuries sustained by Ashabai on the neck are

possible by the nylon rope like muddemal Article 'H'. In the

opinion of Dr. Gosavi all the injuries are sufficient to cause death

of a person.

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11. Dr. Gosavi also conducted the postmortem on the

dead body of Rishikesh @ Sonu. On external examination, he

found the following injuries :-

1. 4-Imprint abrasion present around neck on anterior side.

2. 2-Imprint abrasion present above the cricoid cartilage which is blackish from medial side of right upper 1/3rd of sternocleidoid muscle.

3. 2-Imprint abrasion present below the cricoid cartilage from right lower 1/3rd of sternocleidoid muscle lateral side to left sternocleidoid muscle lateral lower 1/3rd.

On internal examination, Dr. Gosavi noticed injuries as under :-

II. Fracture of lower 1/3rd of left radius and ulna.

Fracture of hyoid bone and thyroid cartilage. Larynx, trachea, bronchi was injured.

According to Dr. Gosavi, all the injuries were sufficient to cause

death and the cause of death was 'strangulation'. Dr. Gosavi

further opined that such injuries are possible by electric wire of

table fan and iron rod.

judg. 901. CA 358-14.doc

12. The evidence PW-6 API Amle shows that at the time

the Appellant was arrested injuries were seen on his right cheek.

PW-15 Dr. Gosavi also examined the appellant and he found 3 to

4 abrasions on right side of the face. According to Dr. Gosavi

abrasions found on the face of the appellant were probably due

to nails. Dr. Gosavi further opined that such abrasions are

possible while strangulating a victim if the victim puts up

resistance due to which the perpetrator of the crime would

sustain such injuries. Looking to the Postmortem Notes and

situation in which the dead bodies were found, there is no

manner of doubt that both the deaths were homicidal in nature.

13. As stated above the evidence of PW-12 Ranjana

Choudhary, who was a teacher in the school in which Rishikesh

@ Sonu was studying, establishes that the appellant took away

Rishikesh @ Sonu with him at about 3.05 p.m. from school.

Soon, thereafter the dead body of Rishikesh @ Sonu was found

in the house of the appellant about 1½ hour later and the door

was found locked from outside. In such case, the appellant has

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to explain when he parted company with the deceased.

Otherwise, the appellant has to explain in what circumstances

Sonu met his death.

14. The evidence on record shows that the appellant

took away Sonu from the school at 3.05 p.m. and shortly

thereafter Sonu was found dead. In such case, the

appellant/accused has to explain when and where he parted

company from deceased Sonu and how the deceased Sonu

sustained injuries and died. In this connection, we may refer to

Section 106 of the Evidence Act. Section 106 of the Evidence Act

provides that when any fact is especially within the knowledge

of any person, the burden of proving that fact is upon him. In

several recent decisions, the Supreme Court has held that the

principle which underlies Section 106 of the Evidence Act can

be applied in cases of 'Last Seen'. In the case of State of

Rajasthan Vs. Kashi Ram, (2006)12 SCC 254 : AIR 2007 SC

144, the Supreme Court has observed that if the accused fails to

offer an explanation on the basis of facts within his special

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knowledge, he fails to discharge the burden cast upon him by

Section 106 of the Evidence Act. In a case resting on

circumstantial evidence if the accused fails to offer a reasonable

explanation in discharge of the burden placed on him, that itself

provides an additional link in the chain of circumstances proved

against him. Section 106 does not shift the burden of proof in a

criminal trial, which is always upon the prosecution. It lays

down the rule that when the accused does not throw any light

upon facts which are specially within his knowledge and which

could not support any theory or hypothesis compatible with his

innocence, the Court can consider his failure to adduce any

explanation as an additional link which completes the chain.

15. In addition to the above evidence and the evidence

of PW-12, the prosecution is relying on the evidence of PW-08

Sharad Kadam, who was the Sub-Editor of Daily 'Punnyanagari',

Nashik. He has stated that his Executive Editor Shri Kawle gave

three copies of letters to the police. They are at Exh.59 to

Exh.61. These letters came to be seized under panchanama

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(Exh.62). According to the prosecution, these letters were sent

by the appellant to the said Newspaper office of Daily

newspaper 'Punnyanagari' in Nashik. Learned A.P.P. Submitted

that in Exh.59 the appellant has stated that he has murdered his

mother as well as his paternal cousin brother. In order to

substantiate the fact that the letters were written by the

appellant, the prosecution is relying on the evidence of PW-7

Pravin Chouhan, who has stated that six pages of specimen

writing of the appellant as well as six signatures were taken

under panchanama. The said panchanama is at Exh.55. PW-7

Pravin Chouhan further stated that the father of the appellant

produced one bill in the handwriting of his son i.e. appellant.

However it is to be noted that the report of the Handwriting

Expert is not on record nor the specimen handwriting taken in

the presence of the panch witness PW-7 nor chit produced by the

father of the appellant showing natural handwriting of the

appellant are on record. In such case it is not possible for us to

compare the handwriting in the letters to the Editor, specimen

handwriting and the natural handwriting of the appellant to

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come to the conclusion that the three letters were written by the

appellant. In such case we are not inclined to rely on the letter

Exh.59, Exh.60 and Exh.61.

16. On going through the evidence on record we are of

the opinion that the circumstances brought on record by the

prosecution form a chain of circumstances which proves the

guilt of the appellant beyond reasonable doubt. Thus, we do not

find any merit in the appeal, hence the appeal is dismissed.

(M.S. KARNIK, J.) ( SMT. V.K. TAHILRAMANI J.)