Bombay High Court
The State Of Maharashtra vs Sakshi @ Yogita Santosh Khade on 21 June, 2021
Bench: Prasanna B. Varale, Surendra Pandharinath Tavade
ALS: 2/20.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (ALS) NO. 2 OF 2020
The State of Maharashtra. ..Applicant.
Versus
Sakshi @ Yogita Santosh Khade. ..Respondent.
Mr. Arfan Sait, APP for the Applicant - State.
CORAM : PRASANNA B. VARALE &
SURENDRA P. TAVADE, JJ.
Date : June 21, 2021.
P. C. :
1. Heard learned APP. This is an application preferred
by the Applicant - State of Maharashtra challenging the judgment
and order passed by the learned Additional Sessions Judge,
Mumbai in sessions Case No. 702 of 2013. Accused Nos. 1, 2 and
3, namely, Ravindra Bagaram Mane, Santosh Sakharam Khade
and Sakshi @ Yogita Santosh Khade were charge-sheeted for
commission of the offences punishable under sections 302, 201
and 404 read with 34 of the Indian Penal Code, 1860. Learned
Sessions Judge, on appreciation of evidence, was pleased to pass
the judgment and order dated 20 th May 2019 whereby accused
no.1 Ravindra Mane was convicted for commission of the offence
punishable under section 302 of IPC and was awarded sentence
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to suffer life imprisonment along with fine, in default to suffer
further rigorous imprisonment for one year. Accused nos.1, 2 and
3 were convicted for the offence punishable under section 201
read with 34 of IPC and sentence was awarded to them. Accused
No.3 Sakshi @ Yogita Santosh Khade was also convicted for
commission of the offence punishable under section 404 of IPC
and awarded sentence. But the learned trial judge was pleased
to acquit accused no.2 as well as accused no.3 from the charge
of commission of offence punishable under section 302 of IPC
read with section 34 of IPC.
2. Being aggrieved by the judgment and order passed
by the learned Sessions Judge, the present application is
preferred only in respect of original accused no.3-Sakshi @ Yogita
Santosh Khade. Learned APP Mr. Sait vehemently submitted that
the learned trial Judge failed to appreciate the evidence in its
proper perspective and arrived at an erroneous conclusion. It is
also submission of the learned APP that the serious offence in the
nature of offence punishable under section 302 of IPC was
committed by accused persons. It is also submission of learned
APP that the recovery of certain articles is a material in support
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of the case of prosecution against the respondent Sakshi @
Yogita Santosh Khade. Thus, in short, the submission of learned
APP is of an erroneous appreciation of evidence by the learned
trial Judge.
3. Though at the first blush, the submissions of learned
APP looks attractive, on going through the judgment and order
passed by the learned Additional Sessions Judge, Mumbai, more
particularly the reason assigned for acquittal of respondent
(original accused no.3) we are of the opinion that no error was
committed by the learned trial judge in rejecting the case of the
prosecution against the respondent and arriving at the conclusion
of acquittal of respondent (original accused No.3).
4. It is not in dispute that case of the prosecution
against the respondent rests on only circumstantial evidence,
and mere presence of respondent in the house at the relevant
time would not be a strong material against the respondent so as
to arrive at a conclusion that the respondent played an active
role in the commission of offence punishable under section 302 of
IPC.
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5. The backdrop of the prosecution case is reflected in
paragraph nos.2, 3 and 4 of the judgment and order of learned
trial Judge. Then there is reference to the material collected by
the investigating agency in the process of investigation, including
the tower location etc.. It may not be necessary for us to give all
those details and suffice it to say that the case of prosecution
against the respondent (accused No.3) rests on two pillars; firstly,
the ocular testimony of two witnesses; and secondly, the
recovery of certain articles, namely, gold tops (ear-rings) and
gold chain. The learned trial judge made a detailed reference to
the ocular evidence of production witnesses in paragraph no. 21.
The sum and substance of these observations is that PW-2 Nitesh
Pachadkar and PW-3 Abhishek Tiwarekar were claimed as star
witnesses by the prosecution. What emerges from the ocular
testimony of PW-2 Nitesh Pachadkar is only of hearing of shouts
at about 3.35 p.m. from the house of respondent-accused No.3
Sakshi @ Yogita Santosh Khade. He has deposed before the
Court that on the day of incident, he had been to the house of
PW-3 Abhishek, who happens to be his maternal brother, for
study and at about 3.35 p.m. he heard the noise of giving smash
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and hitting from the house of accused Sakshi Khade. He also
heard noise of falling utensils and the loud shouts of one lady.
Both these witnesses, Nitesh and Abhishek, rushed to the house
of Sakshi. However, Sakshi prevented them from entering into
the house. Sakshi then gave direction to her daughter to go
down-stairs and latch the door from outside. On an enquiry
made by these witnesses, Sakshi informed that her maternal
aunt gets the shocks of epilepsy on seeing kids. Then they heard
the words "vx vkbZ x". Then they heard words in the voice of
Sakshi "ckck rqeps dke >kys dk". With these material, the prosecution
wanted to establish its case against respondent-accused no.3
Sakhi. Even accepting that the words uttered by Sakshi namely,
"vx vkbZ x" and "ckck rqeps dke >kys dk" were heard by these witnesses,
ie.., PW-2 Nitesh and PW-3 Abhishek, that by itself would not be a
substantive material to arrive at a conclusion that accused no.3
played a vital role in the commission of offence punishable under
section 302 of IPC. The prosecution ought to have established its
case against respondent-accused no.3 with some more reliable
material than except the words.
6. Then, the other material is again a very weak piece
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of evidence against the respondent. The material on which the
prosecution relies against accused no.3 is the recovery of
articles, namely gold chain and gold tops (ear-rings). Perusal of
the judgment clearly shows that the witnesses have stated that
the accused persons mortgaged the gold ornaments as they were
in need of money. Even for the sake of assumption this is a
material against respondent - accused no.3, this material at the
most would indicate an act of disposal of property in the offence
by the respondent and this material would not be sufficient
enough to establish that the respondent - accused no.3 played
any active role in the serious offence of committing murder of
deceased, i.e., the offence punishable under section 302 of IPC.
7. Insofar as the role played by accused no.3 is
concerned, learned trial judge appreciated the evidence in its
proper perspective and convicted accused no.3 respondent
Sakshi @ Yogita Santosh Khade for the offence punishable under
section 201 read with 34 of IPC, and for the for the offence
punishable under section 404 of IPC and awarded sentence.
8. Considering all these aspects, we are of the opinion
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that the learned trial judge committed no error in appreciating
the evidence and arrived at the ultimate conclusion. The
application, thus, being devoid of any merit deserves to be
rejected and the same is rejected. Needless to state that leave
to appeal is refused.
[Surendra P. Tavade, J.] [Prasanna B. Varale, J.]
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