Bombay High Court
Datta Subhash Lohar vs The State Of Maharashtra on 13 January, 2021
Bench: R.V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2017 OF 2020
IN
CRIMINAL APPEAL NO.480 OF 2020
DATTA SUBHASH LOHAR
-VERSUS-
THE STATE OF MAHARASHTRA
WITH
CRIMINAL APPLICATION NO.2015 OF 2020
IN
CRIMINAL APPEAL NO.482 OF 2020
PRATIBHA PRAKASH CHAPEKAR
-VERSUS-
THE STATE OF MAHARASHTRA
...
Advocate for the Applicants : Shri S.J.Salunke
APP for the Respondent/ State : Shri S.G. Sangle
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 13th January, 2021
Per Court :-
1. We have heard strenuous submissions of the learned advocate
on behalf of both the applicants, who are accused Nos.2 and 3 in Sessions
Case No.89/2016 decided vide the judgment dated 14.08.2020 delivered
by the learned Additional Sessions Judge, Osmanabad. We have also heard
the submissions of the learned prosecutor at length. With their assistance,
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we have gone through the voluminous documents placed before us in
Criminal Appeal Nos.480/2020 and 482/2020.
2. Accused No.1 (Prakash) has not preferred an application for
suspension of sentence and for bail during the pendency of the appeal.
These two applications have been filed by accused No.3 (Pratibha), who is
the wife of accused No.1 (Prakash) and by Datta (accused No.2), who is
the brother of accused No.3 (Pratibha), for suspension of sentence and for
bail during the pendency of their appeals.
3. The crime registered against the three accused was that
Kanchan Popatlal Pardeshi, an unmarried highly educated girl, was
murdered by the three accused by conspiring to get rid of her. Kanchan
was said to be in live-in relationship with Prakash for the period in
between 2010 to 2016. Both had met while serving in Bluedart Courier
Services at Pune. Prakash was already married to Pratibha. Gradually, a
matrimonial discord erupted on the side of Prakash. There were constant
squabbles in between Prakash and his legally wedded wife Pratibha.
Consequentially, the father of Pratibha lodged a non-cognizable complaint
against Prakash in the Faraskhana Police Station on 15.07.2015 bearing
Crime No.175/2015. As a consequence, Prakash got fed up with Kanchan.
4. PW-1 (Arun Keshav Pimpale) aged about 65 years and an
agriculturist from village Wagholi, Taluka and District Osmanabad, noticed
at about 07:00 am on 21.12.2015, while inspecting the water level in his
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well, that a gunny bag was floating in the water. He went to the village
and disclosed about the gunny bag to Ramesh Bhimrao Magar and Nabi
Tamboli. These persons along with other villagers went to the well and
found that the legs of the body were protruding out from the gunny bag
from one side and long hair of the body were hanging out from the other
side. They noticed that it was the dead body of an unknown lady. PW-1
informed the police. On his report exhibit-55, the Station House Officer,
Osmanabad Rural Police Station registered Crime No.174/2015 under
Sections 302 and 201 of the Indian Penal Code.
5. It is undisputed that the investigation was initiated by the
first investigator Shri B.S.Gavade, Police Inspector. Since the case
appeared to be complex, the investigation in the crime was handed over to
the Assistant Deputy Superintendent of Police, Tuljapur Shri Raj Tilak
Roshan on 21.05.2016 as he was holding additional charge of Osmanabad
city. The entire course of investigation has been narrated by the Trial
Court in the impugned judgment.
6. The salient features of the investigation can be summarized as
under :-
(a) While conducting the postmortem examination, the clothes
that were worn by the deceased Kanchan, were identified as jaipuri kurti,
salwar and other apparels.
(b) The kurti was having a tag with the address
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"jaipurikurti.com".
(c) The search for such type of dresses was launched and similar
type of kurti was available on Flipkart, Amazon and e-commerce websites.
(d) As per Section 91 of the Code of Criminal Procedure, Shri
Roshan, Investigating Officer, issued online notices through email and
requested those websites to furnish details of the customers, who had
purchased such type of kurti in between 01.01.2015 to 20.12.2015.
(e) On a response from these websites, the Investigating Officer
noticed that there were about 1800 customers, who had purchased the
said type of kurti from Flipkart and there were 07 customers, who had
purchased it from Amazon.
(f) The Investigating Officer compared the tower data with
Flipkart and one common mobile number, which ordered the said kurti
and the tower location was that of the Wagholi Tower, found to be that of
accused No.1 Prakash.
(g) SDR was from another phone, which was held by Amol
Sonawane, who was working in Great Wall Company at Nagpur, was
considered.
(h) Upon checking the number from Facebook, it was confirmed
that the number was used by accused No.1 Prakash.
(i) The Investigating Officer zeroed down upon the purchase of
the kurti from Flipkart by accused No.1 Prakash and the same was linked
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to the deceased Kanchan as Prakash had purchased the kurti in his own
name and has gifted it to Kanchan.
(j) Further investigation was conducted at Nagpur and after a
painstaking investigation, the Investing Officer collected sufficient data
including CDR, SDR and tower dump data, which linked Prakash to the
death of Kanchan.
(k) After Prakash was taken into custody from Pune and
interrogated, he revealed the name of Kanchan as being the name of the
deceased person, since until then, the Police were unable to identify the
identity of the dead body.
(l) Based on the above information, further investigation
revealed that Prakash and Kanchan were in live-in relationship for almost
five years.
(m) Due to the family discord between Prakash and his wife
Pratibha on account of his relationship with Kanchan and as the pressure
was building up in the life of Kanchan as well as Pratibha, Kanchan had
allegedly consumed poison and was admitted in the hospital. She survived
the said episode and it was Prakash, who was said to be at her bed side for
almost five days.
(n) Further investigation in the murder of Kanchan, revealed the
role of accused No.2 (Datta), who is the real younger brother of accused
No.3 (Pratibha).
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(o) It was revealed that Prakash had initially conspired with
Datta and Datta had provided the knife, rope and gunny bag after he was
informed by Prakash that he would be traveling with Kanchan to reach
Wagholi, Taluka and District Osmanabad.
(p) Datta is the resident of village Wagholi and Pratibha hails
from Wagholi prior to her marriage to Prakash.
(q) Further investigation revealed the continuous telephone calls
between Prakash, Datta and Pratibha on 18.12.2015, 19.12.2015 and
20.12.2015.
(r) The death of Kanchan is said to have occurred on 20.12.2015
and the body in the gunny bag was found floating at about 07:00 am on
21.12.2015.
(s) DNA sampling of the deceased at exhibit 97 matched with the
DNA sampling of her parents.
(t) The car used by Prakash, which he had subsequently sold in
an attempt to destroy evidence, was also located and blood stains were
found in the car.
(u) Prakash was arrested on 15.06.2016 after a prolonged
investigation on the basis of which, the Investigating Officer was fully
convinced that the crime has been committed by Prakash.
(v) Datta was arrested on 16.06.2016.
(w) After interrogation, Datta gave the memorandum of the
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discovery under Section 27 of the Evidence Act. The discoveries are at
exhibits 102 and 103.
(x) The panchanama was carried out at exhibit-124 and the
clothes of Datta were recovered, which had blood stains.
(y) No explanation has been given by Datta under Section 313 of
the Code of Criminal Procedure as to how those blood stains were found
on his clothes.
(z) A strong motive was established before the Trial Court of
Prakash desiring to get rid of Kanchan.
(za) Datta, being brother of Pratibha, having noticed turmoil in
the marital life of Pratibha, also participated in the crime to eliminate
Kanchan.
(zb) The prosecution contended that Pratibha was equally desirous
of getting rid of Kanchan as she was the third angle of the love triangle
and was a thorn in her marital life.
(zc) 33 witnesses were examined by the prosecution. Not a single
witness amongst these 33, has turned hostile.
(zd) A chain of circumstantial evidence, prima facie, is complete.
7. Considering the above, we do not find that the voluminous
evidence and the painstaking investigation conducted by the Investigating
Officer for a period of almost six months and the material that he has
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collected as a part of oral and documentary evidence, could be easily
disbelieved. In these circumstances, though accused No.2 (Datta) was on
bail during the trial and has children, we are not moved by the said
submission to be a ground for considering suspension of sentence and for
enlarging Datta on bail. Criminal Application No.2017/2020 filed by Datta
is, therefore, rejected.
8. Insofar as Criminal Application No.2015/2020 filed by
Pratibha (accused No.3) is concerned, despite the strenuous submissions
of the learned prosecutor and his reliance on Mohammad Amin vs. CBI,
(2008) 15 SCC 49 and Mir Nagvi Askani vs. (2009) 15 SCC 643 , we find
that the case of the prosecution could be considered for suspension of
sentence.
9. In Mohammad Amin (supra), the Honourable Supreme Court
has held as under :-
"....The principles which can be deduced from the
above noted judgments are that for proving a charge of
conspiracy, it is not necessary that all the conspirators
know each and every details of the conspiracy so long
as they are co-participators in the main object of
conspiracy. It is also not necessary that all the
conspirators should participate from the inception of
conspiracy to its end. If there is unity of object or
purpose, all participating at different stages of the
crime will be guilty of conspiracy."
10. In Mir Nagvi (supra), the Honourable Supreme Court has
concluded that while drawing an inference of criminal conspiracy from the
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material brought on record, the Court has to arrive at a find as to whether,
the charge of criminal conspiracy has been proved or not. However, it
must be borne in mind that conspiracies are hatched in secrecy and it is
normally difficult to obtain direct evidence to establish the conspiracy.
11. After considering the material before the Trial Court in the
light of Sections 201, 120-A and 120-B of the Indian Penal Code, the Trial
Court has observed against Pratibha in paragraph 63 of it's judgment,
which reads as under :-
"63. The evidence shows that the accused having a strong
motive. The N.C. (Exh.277) discloses that there was
illicit relation in between Prakash (Accused No.1) and
deceased Kanchan, therefore, the family members of
Prakash was fed up and due to that reason, his father
Suryakant lodged N.C. in 2012. In 2015, Prakash
shifted to Nagpur from Pune. Kanchan persuaded
Prakash and this fact was noticed by accused No.3. So,
to absolve from the clutches of Kanchan, all the accused
prepared plan and activated it. The various links in the
chain of evidence has clearly established. If all the
circumstances on record and proven facts taken
together, then it exclude every possibility of innocence
of accused.
Absence of explanation of accused or notional
defence would itself be an additional link which
completes the chain. The chain of evidence
demonstrated supra, is completed as to show that
within all human probability, the murder must have
been committed by the accused."
12. In paragraph 64, the Trial Court has observed that from the
call details, which proved continuous interaction and conversation
between accused Nos.1, 2 and 3 on 18.12.2015, 19.12.2015 and
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20.12.2015, it can be inferred that accused No.2 (Datta) and accused No.3
(Pratibha) are co-conspirators in the main object of conspiracy, which was
to eliminate the victim Kanchan. It was, therefore, concluded that there
was unity of object between the three accused.
13. However, the learned counsel are unable to point out from
the voluminous record, running into 779 pages, placed before us, as to
what was the actual transcript of the conversation between Prakash and
Pratibha and between Pratibha and Datta. The learned advocate for the
applicant/ Pratibha, therefore, contends that it would not be unusual or
abnormal for the wife Pratibha to be in contact with her husband Prakash
and younger brother Datta. Such calls and conversations between the
three accused would not mean that Pratibha desired that Kanchan be
murdered or that she had participated in the criminal conspiracy so as to
achieve the common object. She was on bail during the trial and has four
children to take care . They are presently being taken care of by the aged
parents-in-law of Pratibha, who are grand parents of the children from
their paternal side.
14. In these circumstances, Criminal Application No.2015/2020
filed by Pratibha is allowed and the substantive sentence of rigorous
imprisonment awarded to her shall stand suspended till the decision in
this appeal on the following conditions :-
(a) The applicant (Pratibha) shall be released on bail on
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furnishing a PR bond of Rs.50,000/- (Rupees Fifty Thousand)
and two sureties of the like amount.
(b) She shall mark her attendance with the Police Station,
Vishrantwadi, Pune-15 on every second and fourth Sunday of
each month in between 10:00 am to 01:00 pm.
(c) Her attendance shall be noted in the station diary and her
signature shall be obtained by the Station House Officer to
evidence her presence.
(d) She would not leave the municipal limits of Pune city without
intimating the Station House Officer of the Police Station,
Vishrantwadi, Pune-15 in writing and upon obtaining an
acknowledgment.
(e) She shall tender her passport to the said Police Station along
with the self attested copies of her Adhar Card, Voters Identity
Card issued by the Election Commission of India and latest
permanent address proof. So also, she shall furnish her
cellular number and landline number, if any, to the said Police
Station.
(f) Violation of any of the above conditions, shall be a good
ground for cancellation of bail.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
