Bombay High Court
Nanda Rajendra Zodge Alias ... vs The State Of Maharashtra on 26 February, 2021
Bench: S.S. Jadhav, N. R. Borkar
Cr.Apeal81.342.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 81 OF 2020
Nanda Rajendra Zodge alias
Sunanda Shivaji Narawane,
Age : 53 years, Occ. Housewife,
R/o: Building No.158, Room No.5168,
Chembur Safalya C.H.S., New Tilak Nagar,
Chember, Mumbai - 89.
At present Mubai Dist. Women Prison
Byculla, Mumbai.
... Appellant/ Orig. Accused
No.2.
V/s.
The State of Maharashtra, ... Respondent.
(At the instance of Tilak Nagar Police
Station, Dist. Mumbai.
WITH
CRIMINAL APPEAL NO.342 OF 2020
Shivaji Kisan Narawane,
Aged 61 years, Occupation: Retired,
Resident of :No.2-B/104, Dreams Complex,
Lal Bahadur Shastri Marg, Bhandup (West),
Mumbai 400 078, ... Appellant/ Convict
presently held in Amravati Jail. (Accused No.1)
V/s.
State of Maharashtra by Tilak Nagar Police
Station, Mumbai through the Public ... Respondent/ Original
Prosecutor. Complainant.
Mr. Aniket U. Nikam a/w Mr. Aashish Satpute, Mr. Piyush Toshnival, Mr.
Amit Icham, Mr. Vivek Arote, Advocate for the Appellant in Apeal/81.
Mr. Mahesh Vishwakarma a/w Ms. Angha Tandel i/b. Vishwakarma &
Associates, for the Appellant in Apeal/342/2020.
Talwalkar
1/31
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Cr.Apeal81.342.20.doc
Ms. P.P. Shinde, APP for the Respondent - State.
---------------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : JANUARY 29, 2021.
PRONOUNCED ON : FEBRUARY 26, 2021.
JUDGMENT(PER SMT. SADHANA S. JADHAV, J) :
1 The appellants herein are convicted for the offence
punishable under section 302 read with section 120-B of the Indian
Penal Code and sentenced to suffer Imprisonment for Life and to pay
fine of Rs. 5,000/- by the Additional Sessions Judge, Greater Bombay
in Sessions Case No. 100 of 2014 vide Judgment and Order dated
19/11/2019. Hence, this Appeal.
2 The case of the prosecution in a nut shell is as follows :
(i) The accused Shivaji Narawane (Appellant in Criminal
Appeal No. 342 of 2020) was earlier working as Senior Inspector of
Police and was attached to Tilaknagar Police Station. In the year 2013
accused No. 1 was working as DYSP attached to Special Protection
Unit, Dadar. He got acquainted with the accused No. 2 since she used
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to visit Tilak Nagar Police Station to file complaint against her
notorious son Rohan.
(ii) The accused No. 2 (appellant in Criminal Appeal No. 81 of
2020) was a divorcee. She was mother of 2 sons namely, Rishabh and
Rohan (deceased) and daughter Neha (P.W. 6). That Rohan was
notorious. He had criminal antecedents. He was alcoholic and used to
trouble his mother. There were more than 4 to 5 non-cognizable cases
registered at Tilaknagar Police Station against Rohan at the behest of
his mother (original accused No. 2). That, she was a Homeopathic
doctor and was practising in Rohini Clinic at C.S.T. near Hanuman
Mandir and her cell phone number was 9833804832. It is alleged that
the accused No. 2 was in relationship with accused No.1. That he
visited her house quite often.
(iii) It is the case of the prosecution that on 25/10/2013 Head
Constable Audumbar Pawar, who was attached to Tilak Nagar Police
Station, while he was on patrolling duty, at about 10.52 a.m., received
a wireless message that an untoward incident had occurred in
building No.158, room No. 5168, near Tilak Nagar Colony, Chembur,
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Mumbai-89 which in fact happens to be the residential house of the
accused No.2. The police reached the spot. There was a gathering of
people who informed the police that Rohan Zodge, the son of accused
No. 2 was killed by some one. The police found that Rohan was lying
just outside the room No. 5168 in the passage and the dead body was
facing to the earth. ASI Jadhav informed Tilak Nagar Police Station.
The dead body was taken to Rajawadi Hospital. P.W. 2 Audumbar
Pawar lodged a report at Tilak Nagar Police Station against unknown
persons for an offence punishable under section 302 of the Indian
Penal Code at about 12 noon. On the basis of the said report, Crime
No.345 of 2013 was registered at Tilak Nagar Police Station.
Investigation was set in motion.
(iv) That, at about 10.52 a.m. when the police reached the
spot, accused No.1 was present near the dead body and upon enquiry
had introduced himself as DYSP Narawane. In the course of
investigation, it had transpired that the accused No. 2 was in
relationship with the accused No.1 and in the previous night accused
No.1 had visited house of accused No.2 and there was a quarrel
between accused No.2 and her son Rohan and thereafter, Rohan had
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died a homicidal death. Accused No. 2 was arrested on 25/10/2013.
(v) At the trial, prosecution has examined as many as 47
witnesses to bring home the guilt of the accused. The material
witnesses in the present cases are P.W. 2 Audumber Pawar, Head
Constable who was the first to reach the scene of offence. P.W. 4
Nikhil Kamble who is the cousin of accused No.2, P.W.17, Chhaya
Kamble, mother of P.W.4, P.W.5 Abhijeet Bhingardive and P.W. 9 Tejas
Rawat friends of P.W.6 Neha, P.W. 7 Kartiki and P.W. 19 Ganesh Jadhav,
resident of building No.158. P.W.18 Lalpratapsingh who has proved
CCTV footage and P.W.26 Birju Singh who was panch for CCTV footage,
P.W. 30 Vijay Shinde, Nodal officer who has proved the user of the cell
phones seized from accused Nos. 1 and 2. P.W. 36 Sunil Tiwari, Nodal
officer of Airtel company; P.W. 37 Vikas Phulkar - Nodal officer of
Vodaphone Ltd., P.W. 41 Dr. Shivaji Kachare, Investigating Officer P.W.
44 Vaijanath Upase, P.W. 46 Ashish Kumar Adsul and P.W. 47 Vilas
Jadhav.
3 P.W 2 Audumbar Pawar is the first informant. On the basis
of his report, Crime No. 345 of 2013 was registered against unknown
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persons for the offences punishable under section 302 of the Indian
Penal Code. He had also seen the accused No. 1 at the scene of offence
when he first reached there. In fact, he was knowing the name and
designation of accused No. 1 prior to his visit on the spot. He has
proved the contents of the FIR which is marked at Exh. 29. The
location and position of the dead body of Rohan is spelt out by P.W.3
Rajbahaddur Pande who acted as panch to the scene of offence
panchanama which is at Exh. 30. According to him, dead body had
injury mark on the occipital region. The dead body was surrounded by
ants. The deceased had an injury mark on forehead and throat. The
recitals of Exh. 30 scene of offence panchanama would show that there
were blood stains on the wall of the room and on the sofa in the said
room. There was seizure of the wrapper of the knife and traces of
solid blood found on the earth. There were foot prints on the trail of
blood. A knife was found behind the building. It is seen from the
evidence of P.W. 3 that when the police peeped from the window of the
house, they could see one bed sheet, mat, half-pant behind the
building and they found a knife having green colour handle with blood
stains. A maxi was seen on the roof of pump house room. All the
articles were seized under a panchanama. Dog squad was called. After
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sniffing the maxi, the dog had stopped near the mother of the
deceased. The police had therefore, suspected some role of accused
No. 2 in the alleged incident in which her son had died a homicidal
death. On 27/10/2013 both the accused were arrested.
4 In fact, the deceased Rohan was also one of the customer of
P.W. 3. Similarly, accused No. 2 also used to make her domestic
purchases from the shop of P.W. 3. That P.W. 3 by way of certain
admissions had clearly indicated that Rohan was harassing local people
by assaulting them, committing theft in the locality, chasing police with
stick in his hand outside Tilak Nagar Railway Station. There are
several criminal cases lodged against him and therefore, he was lodged
in Arthur Road Jail. He had also committed theft of a computer set
from the shop in the close vicinity. He had also raised quarrels with
P.W. 3 on account of not paying the consideration for the articles
purchased from his shop. It is admitted by P.W. 3 in his cross-
examination that the dead body of Rohan was lying in the passage
which was admeasuring about 4.6 ft. That, one could not have
entered the room without crossing the dead body. The special
investigating team had only taken photographs of the foot marks in the
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presence of panchas.
5 The evidence of P.W. 4 Nikhil Kamble is relevant as far as
the presence of the deceased in the company of the accused is
concerned. P.W. 4 also throws light on the prelude and the postlude
to the incident, since he was present in the house of accused N. 2 on
the previous night i.e. just before Rohan was found dead. P.W. 4
happens to be the maternal cousin of accused No. 2. On the day of the
incident, he had visited house of accused No. 2. He lives in building
No. 136 which is in close proximity of accused No. 2. That P.W. 4 was
a mediator in the transaction in which accused No. 2 had purchased 2
cars from one Mr. Rajan. The accused No. 2 had paid the consideration
by extending cheques of Rs. 1.50 Lakhs each to Mr. Rajan towards
purchase of Santro and EECO car. At the time of taking possession of
the cars, there were certain defects, such as the battery of the car was
discharged, Eeco car was jam, etc. Hence, Mr. Rajan had retained both
the cars on the ground that he would complete all the formalities and
would return the same within a short while. On the day of the
incident i.e. on 24/10/2013 Rohan had picked up a quarrel with
accused No. 2, as he did not agree with the nature of transaction.
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P.W. 4 had reached the house of accused No. 2 at about 5.30 p.m. The
transaction between Rajan and accused No. 2 through P.W. 4 Nikhil
was not known to the other members of family. In the presence of P.W.
4, accused No. 1 had visited the house of accused No. 2 at about 6.45
pm. and continued to be there. At about 10.30 p.m. P.W. 4 was to leave
the house of accused No. 2. However, the accused No. 2 insisted upon
him to have dinner. That accused No. 1 had tried to convince Rohan,
who refused to hear anything from accused No. 1 and thereafter,
Rohan had left the house. As per the directions of accused No. 1, P.W.
4 and the younger son of accused No. 2 namely, Rushabh had gone in
search of Rohan. When they returned, they saw accused No. 1 was
drinking liquor. At that juncture, Rohan had returned home and had
resumed his quarrel with accused No. 2. He was abusing the accused
No. 1. The accused No. 1 had then requested P.W. 4 to take Neha
alongwith him to his house. Similarly, accused No. 2 had expressed
her desire to accompany Neha and therefore, P.W. 4 alongwith Neha
and accused No. 2 had left the house. That accused No. 2 and Neha
spent the night intervening 24th and 25th October, 2013 in the house of
P.W. 4.
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6 P.W. 4 has further deposed that when he woke up in the
wee hours at 5 a.m., he saw Neha and accused No. 2 leaving his house.
On instructions of his father. he went in search of Neha and accused
No. 2. He saw them in the company of accused No. 1 near Sainath
Mandir. He asked accused No. 2 and Neha to return home as per the
directions of his father. While they were leaving, he saw a motor bike
coming. Accused No. 1 accompanied the motorcyclist and they went in
the direction of Tilaknagar Railway Station, whereas P.W. 4 returned to
his house alongwith Neha and accused No. 2. At about 10 a.m. on the
same day, Tanmay, younger brother of P.W. 4 informed the family
members about the murder of Rohan. When P.W. 4 reached the spot
i.e. building No. 158, he saw accused No. 1.
7 The testimony of P.W. 4 could not be shattered by the
length of the cross-examination. Tenor of the cross-examination of P.W.
4 shows that the accused had made a frail attempt to implicate P.W.4 in
the homicidal death of Rohan.
8 According to P.W. 5 Abhijeet, at the time of incident, P.W. 5
was using cell phone which was registered in the name of Neha i.e.
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8898153186. He had also saved cell phone number of the accused
No. 1. On 24/10/2013 he was informed by Neha that Rohan was
quarreling with her mother and thereafter, he knew that Neha had
gone to sleep in her uncle's house. The prosecution has brought on
record the fact that on 25/10/2013 at about 8 a.m. the accused No. 1
had called upon P.W. 5 and had informed him about murder of Rohan
and had further directed him to go to the spot. P.W. 5 had obliged. He
had seen accused No. 2 and Neha taking exit from the building No.
136. Accused No. 2 had handed over her cell phone to P.W. 5. Said
cell phone had dual SIM Card. He had confirmed news with accused
No.1 that Rohan has been murdered and asked him to go to building
No. 158. However, accused No. 1 had expressed that he was too busy
to attend. Accused No. 1 had also asked P.W. 5 to keep a tab on Neha
and Rushabh. However, he refused to do so and thereafter, he had
learnt that on 26/10/2013 accused No. 1 was arrested.
9 The evidence of P.W. 5 is partly in the nature of hearsay
evidence to the extent that after a week of the incident, Neha had
informed P.W. 5 that when she was sleeping alongwith her mother in
the house of P.W. 4, accused No. 2 had asked her to bring the laptop
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and when they went to the building, they saw Rohan in a pool of
blood. That she had further informed P.W. 5 that accused No. 1 had
sent message on her cellphone asking her and her mother to see him
near Sainath temple. P.W. 5 had then handed over cell phone of
accused No. 2 alongwith two SIM Cards to the police. He had also
handed over his own cell phone and SIM cards to the police. He has
also identified the instrument which he had handed over to the police.
The testimony of P.W. 5 has not been shattered, except for a few
immaterial omissions. This corroborates the evidence of P.W. 4 to the
extent that accused No. 2 and Neha had spent the previous night in the
house of P.W. 4 and that on the next day early morning accused No. 2
and Neha had met accused No. 1 near Sainath Temple.
10 The disclosure made by P.W. 6 Neha to P.W. 5 has not been
proved by Neha since she was declared hostile. She has testified
before the Court that she was acquainted with accused No. 1 only to
a limited extent i.e. because she was visiting Tilak Nagar Police
Station alongwith her mother, whenever she had been to file
complaint against her brother Rohan. According to her, on
22/10/2013 her mother had agreed to purchase two secondhand cars
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from Rajan Pandey only because P.W. 4 was the mediator. She had
paid Rs. 3 Lakhs towards consideration of the said car. On
24/10/2013 they had not received the cars and therefore, they had
questioned P.W. 4 about the same. Rohan was of the opinion that they
were cheated by P.W. 4 and therefore, he had raised quarrel.
According to her, on the fateful night, she alongwith her mother had
gone to the house of P.W. 4 to sleep and in the morning they learnt
from P.W. 4 about the murder of Rohan. Her mother, Rushabh and
herself were detained by the police in the detection branch for 7 to 8
days. She has admitted that cell phone No. 8898153186, 8898153268
and 8898153101 are all registered in her name. The said cell phones
alongwith SIM cards were handed over to the police by P.W. 5. She has
denied to have called accused No. 1 in the intervening night of 24 th
and 25th October, 2013 from her cell phone No. 8898153101 or to have
received any message from accused No. 1 to come to the temple.
11 There is ample evidence to show that there used to be
perpetual quarrels between accused No. 2 and her son Rohan and the
same is corroborated by P.W. 7, who happens to be the resident of
building No. 158. P.W. 7 Kartiki has deposed before the Court that in
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the intervening night of 24th and 25th October, 2013 at about midnight
accused No. 2 had called her on her cell phone and requested her to
open latch of her house from outside. It appears that P.W. 7 had only
opened latch and left for her own house and in the morning at about
9.30 a.m. she learnt about murder of Rohan. Her evidence further
makes it clear that on several occasions accused No.2 was locked in
the house by her son Rohan and she had to open the door.
12 The fact that accused No. 2 was in relationship with
accused No. 1 is proved by the prosecution through P.W. 8 Ramraj Kori,
who happens to be the Secretary of Chembur Saphalya Coop. Housing
Society, Tilak Nagar, who has filed on record an application filed by
accused No. 2 requesting him to change the name of the user of Room
No. 1568 in Building No. 158 to Sunanda Shivaji Narawane instead
of Nanda Rajendra Zodge and the said request was accepted vide letter
dated 6th March, 2013. The application is at Exh. 48 and the
acceptance letter of the society is at Exh. 49. P.W. 5 Abhijit Bhingardive
and P.W. 9 Tejas Rawat happen to be friends of Neha and according to
them, Neha had informed them that her mother was divorcee, but she
had remarried with Shivaji Narawane/accused No. 1 and that is why
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she had introduced accused No. 1 to P.W. 5 as her father.
13 It is proved by P.W. 13 Mrs. Sangeeta Kadam that accused
No. 1 had not reported on duty on 25/10/2013 and had sent leave
note.
14 The autopsy on the dead body of deceased Rohan was
performed by Dr. Shivaji Kachare, P.W. 41. According to P..W. 41, dead
body was received for autopsy on 25/10/2013 at about 3.30 p.m. and
post mortem on the said dead body was conducted between 4 p.m. to
6 p.m. Following injuries are found on the dead body :
"(i) Cut throat injury at anterior an posterior lateral of neck
region, involving whole neck region anteriorly from chin to
suprasternal notch and lateraly behind both
sternocleidomastoid muscles, reddish brown, margins well
defined, both angles acute, muscles, blood vessles, intrenal
juguler veins, internal carotid artery bilateral ruptured;
Evidence of laryn x, tachea, broncus, cut and
haemorrhagic; Evidence of total vocal cords cut size 16 cm
x 8 cm x bone deep Vertebrae
(ii) incise like would at (RT) forehead and right fronto
temporal region s/0 8 cm x 4 cm bone deep reddish brown,
margin well defined, clean cut.
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(iii) incise like would at left temparoparietal region 5 cm above
from left ear pinna s/o. 6 cm x 4 cm bone deep reddish
brown.
(iv) incise would at left ear lobule 1 cm x 0.5 cm reddish brown
clean cut.
Injuries mentioned below column no.19.
(i) Injuries under the scalp multiple contusions, at frontal,
both temporal and parital region, reddish brown.
(ii) Skull : i) communited fracture at left frontotemporal
and Parietal,
ii) Fracture right frontotemporal bone 1 cm x 0.5 cm oblique
Brain - Extradural haematoma at both hemisphere s/o.15
cm x 10 cm reddish brown.
Subdural and subarachinoid haemorrhags frontal temparol and
parietal region
Cut section - Pale.
Injuries mentioned below colomn no.20.
a) walls, ribs, cartilages - Fracture 1st, 2nd, clavicle bilateral.
b) Larynx Trachea - total rupture,
c) Right lung, left lung - ruptured and apical region
d) large vessels. - Evidence of total ruptured both carotid and
jugular veins at neck region.
Injuries mentioned below column no.21.
1) Buccal cavity - Ruptured lower part of pharynx
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ii) Oesophagous - Laceration at anterior and upper of
oesophagous
Injuries mentioned below colomn no.22.
i) Evidence of fracture dislocation C1, C2, C3, C4 vertibrae."
P.W. 41 has opined that the fracture injuries sustained by deceased
were because of the injuries sustained on the anterior and posterior
lateral part of the neck. If the neck of the deceased was slit to his
throat, then naturally there was a movement in the body. It is also
opined that huge pressure was required to cause injury shown in
paragraph-20A of the post-mortem report and that percentage of
haemorrhage was more than 70 percent. The weapon knife was not
shown to P.W. 41 and that probable time of death of deceased was 24
hours prior to the receipt of dead body. It is admitted by P.W. 41 that
the injuries sustained by deceased were possible by throwing article 24
which is a grinding stone, over his head.
15 In the course of investigation i.e. on 3/11/2013, the
memorandum of the accused No. 1 under section 27 of the Indian
Evidence Act was recorded and Grinding Stone was recovered at his
instance from the premises of Chembur Safalya CHS. It was covered
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with garbage. It had blood stains on it. P.W. 28 has proved the
recovery of grinding stone at the instance of accused No. 1 on
27/10/2013. The said grinding stone was behind building No. 158. It
was a slab of stone used for grinding spices and the same was marked
as Article 24.
16 The evidence of P.W. 5 Abhijeet Bhingardive to the extent
of his cell phone number is falsified by P.W. 22 Manjunath Prabhu who
runs the business of internet service provider in the name and style of
"Manjunath Cable Network". He has proved that cell phone number
8898153186 is registered in the name of Abhijeet Bhingardive and that
he had requested for registration of internet service on the said mobile
number and therefore, there is doubt as to whether Neha was using
cell phone number 8898153186 because according to Neha said
number was registered in her name or there is a possibility that
internet service on the said cell was solicited on behalf of Neha.
17 Men may lie, however, circumstances speak for themselves
and leaves it's mark behind and the same is true in the present case.
According to the prosecution, Cellphone number which was being used
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by accused No. 1 was 9702724040 and the cellphone No. 8898153101
as claimed by Neha was registered in her name. Cellphone No.
9702724040 is registered in the name of Vilas Surve. The prosecution
has proved this fact by examining P.W. 21 Swapnil Khadelkar who
happens to be the nodal officer with IDEA Cellular company. The
prosecution has not examined Vilas Surve. Suffice it to note that
cellphone having SIM card No. 9702724040 was seized from the
accused No. 1 at the time of his arrest.
18 The link that is established by the prosecution is that in the
early morning of 25/10/2013 a message was received on the cell
phone of Neha(8898153101) as "come at temple". The said message
was sent from cell phone number 9702724040. The same is
corroborated by P.W. 4 who had actually seen the accused No. 2 and
Neha in the company of accused No. 1 at 5 a.m. near Sainath Temple.
The cell phone number of accused No. 2 is 9833084832.
19 The evidence adduced by the prosecution as far as
purchase of knife (Article-12) by the accused No. 1 does not inspire
confidence. Similarly, the evidence that he had washed his blood
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stained clothes on the bank of river at Khadavali river, also does not
inspire confidence of the Court. Thirdly, according to the prosecution,
CCTV footage of Kurla Railway Station shows presence of accused No.
1 between 4.56.35 hours to 4.57.04 hours. It is admitted by P.W. 26
Birju Singh that the image of the person seen in the CCTV footage is
from his posterior side and hence, it cannot be said that the
prosecution has established that accused No. 1 was at Kurla Railway
Station at 4.25 a.m. The tower location of both the cell phone numbers
would clearly establish that accused No. 1 had sent message to Neha
and called her near the temple. The prosecution has placed on record
CDR which would show that P.W. 4 had received calls from accused
No. 1. The location would show that throughout night accused no. 1
and accused No. 2 were not at the same place.
20 At this stage, learned Counsel for the accused No. 1
submits that the message from accused No. 1 to the daughter of
accused No. 2 would not by itself substantiate that the accused has
eliminated Rohan. Learned Counsel for the accused No. 1 has drawn
attention of this Court to the evidence of Investigating Officer and
panchas and has submitted that in fact, recovery of the weapon,
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grinding stone or cell phone by itself is not sufficient to hold that the
accused No. 1 as the perpetrator of the said crime. That grinding
stone was recovered from an open place.
21 Learned Counsel submits that the prosecution has not
examined any independent witness to establish that the accused No. 1
was in Room No. 1568 in the intervening night of 24 th and 25th
October, 2013. In fact, on 25th October, 2013 morning before 10 a.m.
the newspaper vendor, the milkman had visited the spot in routine
course, the neighbours had left for their offices and yet none of them
is examined, although the dead body was lying in the passage.
22 We cannot be oblivious of the fact that people are generally
insensitive to crimes and have no inclination to be a part of
investigation even if the crime has taken place in their presence. There
is a tendency to keep away from the court unless it is inevitable. They
think that crime is also between two individuals, just like civil dispute.
Unfortunately so, but this kind of apathy is prevalent in society and
therefore, prosecution case cannot be disbelieved only because there
is no independent witness examined, especially in cases that rest upon
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circumstantial evidence. The evidence that accused No. 1 had sent a
message to P.W. 4 Neha or had called upon P.W. 5 cannot be disbelieved
due to non-examination of Vilas Surve. Non-examination of
independent witnesses cannot always be held fatal, since it is a matter
of satisfaction of judicial conscience which is founded upon the
evidence adduced by the prosecution.
23 The learned Counsel for the accused No. 2 has submitted
that there are serious lapses on the part of the investigating agency.
That even according to P.W. 4, there was an altercation between him
and deceased over the purchase of cars on 24/10/2013. However, the
prosecution has not investigated the case from that angle. That the
neighbour of accused No. 2 were not examined. That the version of
P.W. 5 Abhijit that accused No. 2 handed over her phone to him on
25/10/2013 appears suspicious since seizure panchanama of the said
phone is recorded one and half months later, after they were produced
by P.W. 5. According to P.W. 17 Chhaya, mother of P.W. 4, her son i.e.
P.W. 4 had informed her that Neha and accused No. 2 were seen
talking to some third person in the early morning near the temple and
there was no reference to accused No. 1. The evidence on record is not
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sufficient to establish that there was a conspiracy between both the
accused to eliminate Rohan. That the cell phone number
9702724040 stands in the name of Vilas Surve and the prosecution has
not examined Vilas Surve and therefore, it cannot be held that it was
the accused No. 1 who had sent the message. In any case, message is
sent to Neha and not to accused No. 2 and accused No. 2 had only
accompanied her daughter in the wee hours.
24 The learned Counsel has placed implicit reliance on the
Judgment of the Apex Court in the case of Sharadkumar Birdhichand
Sarda v/s. State of Maharashtra1 and has highlighted the guidelines
propounded by the Apex Court in the appreciating cases based on
Circumstantial Evidence which are as under :
1. The circumstances from which the conclusion of guilt is to be
drawn should be fully established;
2. The facts so established should be consistent with the hypothesis
of guilt and the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is
guilty;
3. The circumstances should be of a conclusive nature and tendency;
1 (1984) 4 SCC 116
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4. They should exclude every possible hypothesis except the one to be
proved; and
5. There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused."
25 Per contra, learned APP has vehemently argued that an
accused in a heinous case like the present one is not entitled to any
benefit due to certain immaterial lapses on the part of investigation.
That the evidence of P.W. 4 is sufficient to prove that accused No. 1
and accused No. 2 had motive to cause death of Rohan as he was not
only notorious, but abusive towards his mother and used to harass her
to such an extent that it had become unbearable. That the
circumstances adduced by the prosecution prove the involvement of
accused No. 1 and accused No. 2 in causing the homicidal death of
Rohan beyond reasonable doubt. That Rohan was in the exclusive
company of accused No. 1 in the intervening night of 24 th and 25th
October, 2013 and that accused No. 1 had assaulted Rohan brutally
with the aid and instigation of accused No.2.
26 The facts that are established by the prosecution beyond
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reasonable doubt are as follows :
(i) The accused No. 1 was in a relationship with accused No.
2. Neha had introduced accused No. 1 to P.W. 5 Abhijeet as her father.
The said fact is also proved through the Secretary(P.W.8) of the Society.
P.W.8 has deposed that accused No. 2 intended to change the user
name of Room No. 1568 to Sunanda Shivaji Narawane from Nanda
Rajendra Zodge.
(ii) That Rohan was notorious. There were several criminal
cases registered against him at Tilak Nagar Police Station. His mother
had also registered non-cognizable case against him.
(iii) That P.W. 4 had visited house of accused No. 2 in the
evening of 24/10/2013. He had seen accused No. 1 drinking alcohol
till late at night. That deceased Rohan had raised quarrel with his
mother. When verbal altercation had become unbearable, accused No.
2 had left her house alongwith her daughter and had slept in the house
of P.W. 4 in building No. 136. That accused No. 2 and Neha were seen
talking to accused No. 1 near Sainath Temple early morning pursuant
to the message sent by accused No. 1 to P.W. 5 Neha.
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(iv) P.W. 9 Tejas Rawat had proved that the presence of P.W. 4 in
the house of accused No. 2 in the intervening night of 24 th and 25th
October, 2013.
(v) That accused No. 2 had called upon P.W. 7 Kartiki and
asked her to open latch of her house from outside.
(vi) That CDR record establishes beyond reasonable doubt that
9702724040 was being used by accused No. 1 as the tower location
would show that in the evening of 24/10/2013 he was in the house of
the accused No. 2 and continued to be at Tilak Nagar atleast till 4.56
a.m. of 25/10/2013 and thereafter, the tower location was at Kurla.
That he had sent a message on the cell phone of Neha at 4.55 a.m. on
25/10/2013 asking her to come near the temple.
(vii) The dead body of Rohan was found on the door step of his
residential house lying in the passage in a pool of blood. The injuries
sustained by deceased Rohan make it amply clear that his head was
rather crushed 2 to 3 times by the said grinding stone, as there is
triangular shape smash injury which is seen in the inquest
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panchanama.
(viii) The fact that P.W. 5 had received phone calls from accused
No. 1 asking him to find out location of Neha and Rishabh would
clearly indicate that he was nurturing a suspicion that after he had
made a disclosure statement to Neha and accused No. 2, they may
report to the police or must have fled from Tilak Nagar area.
(ix) After Rohan had returned home, had his dinner and after
departure of accused No. 2 and Neha from room No. 1568, accused
No. 1 was at home alongwith deceased Rohan who was found dead in
the morning. The fact that he had fallen dead in the passage and the
room was latched from outside, coupled with the fact that there was a
pool of blood in the house would show that the deceased was brutally
assaulted in the house. By logical deduction, it can be safely held that
accused No. 1 is the perpetrator of the crime.
27 The conduct of the accused Nos. 1 and 2 would show that
they were fully aware that Rohan had met a homicidal death. Accused
No. 1 was seen near building No. 158 when the police arrived there.
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The service providers have also proved that the accused No. 1 had
made 3 to 4 consecutive calls to P.W. 5 Abhijeet 8898153101 on the
phone No. 8898153101 from phone No. 9702724040. That there
was no reaction by accused No. 2 when she visited building No. 158 at
about 11 a.m.. The police had reached the spot at about 11 a.m.
Accused No. 2 was seen in the crowd. After sniffing maxi, the dog had
pointed out to accused No. 2. That, in all probability, the maxi was
used to wipe off the blood stains and in any case, canine inference is
too weak a piece of evidence to prove the involvement of an offender
in an offence. She had seen the police investigating the murder of her
son, but there was no reaction, which would clearly show that she had
the knowledge of not only the murder of Rohan, but the perpetrator of
crime. But she chose to remain silent for obvious reasons. That she
had spent the night intervening 24th and 25th October, 2013 in building
No. 136 i.e. the house of P.W. 4 Nikhil Kamble. The defence of the
accused is of total denial. In the facts and circumstances of the case, it
can be safely held that the prosecution has travelled beyond realm of
suspicion and has proved that the perpetrator of the crime is none
other than accused No. 1. Conduct of the accused No. 1 of taking leave
on 25/10/2013 is self explanatory. In addition, accused No. 1 had
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asked P.W. 5 Abhijeet to keep a tab on accused No. 2 and Neha. It
could be an expression of a guilty mind.
28 In fact, we are pained to observe that a high ranking police
officer, instead of taking action against notorious Rohan in accordance
with law, thought it fit to eliminate him by causing his homicidal death
and thereafter, attempted to cause disappearance of evidence. No
doubt, the horrendous act is committed by him in his individual
capacity. At the same time, the fact that he was not true to his oath as
a police officer to uphold the rule of law cannot be ignored and hence,
accused No. 1 does not deserve to be shown any leniency.
29 In view of the above discussions and the totality of
circumstances proved against accused No. 1, the conviction of accused
No. 1 for offence punishable under section 302 of the Indian Penal
Code deserves to be upheld. However, in view of the evidence
adduced by the prosecution, it is proved that the accused No. 2 was in
the house of P.W. 4 in the intervening night of 24th and 25th October,
2013 when Rohan died a homicidal death and hence, she cannot be
held liable for causing homicidal death of her son Rohan, and hence,
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she deserves to be acquitted. Both the accused are in custody since
the date of arrest. The accused No. 1 is entitled to set off for the
period spent in jail during the pendency of the trial and appeal.
30 Hence, following order is passed:
ORDER
i) Criminal Appeal No. 81 of 2020 is allowed.
(ii) The conviction and sentence passed against the appellant
Nanda Rajendra [email protected] Sunanda Shivaji Narawane, by the
Additional Sessions Judge, Greater Bombay in Sessions Case No. 100
of 2014 vide Judgment and Order dated 19/11/2019 is hereby
quashed and set aside.
(iii) The appellant Nanda Rajendra Zodge @ Sunanda Shivaji
Narawane be released forthwith, if not required in any other offence.
(iv) Fine amount if paid be refunded.
(v) Criminal Appeal No. 342 of 2020 is dismissed.
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(vi) The conviction and sentence passed against the appellant
Shivaji Kisan Narawane, by the Additional Sessions Judge, Greater
Bombay in Sessions Case No. 100 of 2014 vide Judgment and Order
dated 19/11/2019 is hereby confirmed. He is entitled to set off.
(vii) Both the appeals are disposed of accordingly.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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