Bombay High Court
Shailendrasingh Sivmurtisingh ... vs The State Of Maharashtra on 8 April, 2022
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 64 OF 2014
1. Shailendrasingh Shivmurtisingh Thakur,
Age 22 years, R/o Kairhai (Dihar),
Taluka Mahuganj, District Rewa,
Madhya Pradesh
2. Shivkumar Ramsundar Saket,
Age 22 years, R/o Dihar,
Taluka Mahuganj, District Rewa,
Madhya Pradesh.
3. Rajeshsingh Hariharsingh Thakur,
Age 24 years, R/o Khairhai,
Taluka Mahuganj, District Rewa,
Madhya Pradesh
4. Sandip Rajendra Patel,
Age 19 years, R/o Atari, (Raghurajgadh),
Taluka Raipur, District Rewa,
Madhya Pradesh
5. Balendrasingh Shivmurtisingh Thakur,
Age 20 years R/o Kaimhai (Dihar),
Taluka Mahuganj, District Rewa,
Madhya Pradesh
(At present detained in Yerwada
Central Prison, Pune 411 006.) ... Appellants
(Original Accused Nos. 2 to 6)
Versus
State of Maharashtra,
(Through Officer-in-charge,
Kotwali Police Station,
District Ahmednagar) ... Respondent
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.....
Advocate for Appellant Nos.1 to 3 & 5 : Mr. A. Y. Pandule
(appointed)
Advocate for Appellant No. 4 : Mr. Sohail Subhedar h/f
Mr. N. S. Ghanekar
APP for Respondent-State : Mr. Shashibhushan P. Deshmukh
.....
WITH
CRIMINAL APPEAL NO. 480 OF 2014
WITH CRIMINAL APPLICATION NO. 657 OF 2015
IN CRIMINAL APPEAL ON. 480 OF 2014
Raju Sampat Darode,
Age 30 years, Occ. Nil,
R/o Indiranagar, Daund Road,
Ahmednagar.
At present convict no. 16752,
Yerwada Central Prison, Pune-6. ... Appellant
(Orig. Accused No.1)
Versus
The State of Maharashtra
(Through Kotwali Police Station,
Ahmednagar) ... Respondent
.....
Advocate for the Appellant : Mr. A. Y. Pandule (appointed)
APP for the Respondent-State : Mr. Shashibhushan P. Deshmukh
.....
WITH
CRIMINAL APPEAL NO. 503 OF 2013
The State of Maharashtra,
Through Kotwali Police Station,
District Ahmednagar.
[Cr.No.I-360/2007] ... Appellant
(Original Complainant)
Versus
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1. Raju Sampat Darode,
Age 25 years, R/o Indiranagar,
Daund Road, Ahmednagar.
2. Shailendrasingh Shivmurtisingh Thakur,
Age 22 years, R/o Kairhai (Dihar),
Taluka Mahuganj, District Rewa,
Madhya Pradesh
3. Shivkumar Ramsundar Saket,
Age 22 years, R/o Dihar,
Taluka Mahuganj, District Rewa,
Madhya Pradesh.
4. Rajeshsingh Hariharsingh Thakur,
Age 24 years, R/o Khairhai,
Taluka Mahuganj, District Rewa,
Madhya Pradesh
5. Sandip Rajendra Patel,
Age 19 years, R/o Atari, (Raghurajgadh),
Taluka Raipur, District Rewa,
Madhya Pradesh
6. Balendrasingh Shivmurtisingh Thakur,
Age 20 years R/o Kaimhai (Dihar),
Taluka Mahuganj, District Rewa,
Madhya Pradesh ... Respondents
(Original Accused Nos. 1 to 6)
.....
APP for the Appellant-State : Mr. Shashibhushan P. Deshmukh
Advocate for Respondent Nos. 1 to 4 and 6 : Mr. A. Y. Pandule
(appointed)
Advocate for Respondent No.5 : Mr. Sohail Subhedar h/f
Mr. N. S. Ghanekar
.....
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CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
RESERVED ON : 15.09.2021
PRONOUNCED ON : 08.04.2022
JUDGMENT (PER V. K. JADHAV, J.) :-
1. Criminal Appeal No. 64 of 2014 preferred by original accused
nos. 2 to 6 and Criminal Appeal No. 480 of 2014 preferred by
original accused no.1 are directed against the judgment and order
of conviction passed by the Additional Sessions Judge, Ahmednagar
dated 21.10.2013 in Sessions Case No. 51 of 2008.
Criminal Appeal No. 503 of 2013 is also directed against the
same judgment and order of conviction passed by the Additional
Sessions Judge, Ahmednagar, for enhancement of the sentence with
a specific prayer that death sentence may be awarded to all the
accused persons.
2. Brief facts giving rise to the prosecution case are as follows:
a. The informant Sunil Shantilal Munot resides in Rushikesh
bungalow near Keshar Gulab Mangal Karayalaya on Sahakar
Sabhagruha Road, Ahmednagar. He has four uncles namely (1) Dr.
Ashok, (2) Ramesh (since deceased), (3) Mohan and (4) Amrutlal.
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They are having two factories name and styled as K. G. Foam and
Monish Spoke at Pune and three factories namely, Sumesh
Industries at Kedgaon, Classic Factory at M.I.D.C., Ahmednagar and
Sushant Industries, behind A.D.C.C. Bank, Ahmednagar. Informant
Sunil runs the said business of factories along with his said uncles.
Uncle deceased Ramesh Munot and aunt deceased Chitra w/o
Ramesh Munot were residing in Basant bungalow at Manik Nagar,
Chandan Estate, Ahmednagar with their two sons namely, Sagar
and Sumit. Informant Sunil, his father Shantilal, uncle Ramesh and
cousin Sumit were looking after the affairs of industry situated at
Ahmednagar.
b. On 02.12.2007, the informant had conversation with uncle
Ramesh up to 8.15 p.m. on his mobile from time to time.
Thereafter, they had no talk with each other. On 03.12.2007, at
6.30 a.m., Sharad Gundecha, who is residing in the neighborhood
of uncle Ramesh, informed him on mobile phone that there was
something wrong in the bungalow of uncle Ramesh. The watchman
of the said bungalow had come to his house having his hands and
legs tied and the informant should come there early. Accordingly,
informant Sunil went to the said bungalow. PW4 Sumitkumar
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Tiwari was standing at the gate of the said bungalow.
c. On making inquiry with PW4 Sumitkumar Tiwari, he told
that at about 9.30 to 10.00 p.m., one person came to the gate of
the bungalow and asked him to give message to deceased Ramesh
that Subhash has come to see him. PW4 Sumitkumar Tiwari thus
opened the gate and asked the said person to wait till he informs
about the same to deceased Ramesh. Thus the person came inside.
At that time, 4 to 5 persons were standing by the side of road in
front of the gate. PW4 Sumitkumar Tiwari when turned to make a
call to deceased Ramesh, at that time, those persons covered his
face with cloth and tied his hands, legs and mouth and then took
him from the gate of the bungalow upto the latrine behind the
watchman room and tied him to one electric pole. One person
amongst them stopped near him. After some time he had heard the
cries of deceased Chitra (wife of deceased Ramesh). PW4
Sumitkumar Tiwari was lying at the same place in tied condition.
In the dawn time, anyhow PW4 Tiwari went upto the bungalow of
neighbour Sharad Gundecha and informed him the above incident.
Informant Sunil had inspected the bungalow. There were blood
stains everywhere in the bungalow. His uncle Ramesh was lying
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dead in the pool of blood near west side wall of the living room.
There were injuries on right side of his forehead, on both sides of
chest and adhesive tape was fixed on his mouth. His daily use wrist
watch was found missing. In the bed room, his aunt Chitra was
found tied to a wooden chair, having adhesive tape fixed on her
mouth and her both hands were tied by a telephone wire and a
cloth piece. She was dead. There was bleeding injury on her throat.
Her wrist watch was also found missing. Informant Sunil has also
seen that two cupboards were open and the clothes, ornament
boxes and other articles were lying scattered. Thus, informant Sunil
has confirmed that unknown thieves had committed murder of his
uncle Ramesh and aunt Chitra and looted the property.
d. On the basis of the report Exhibit 255 lodged by the
informant, crime no. 360 of 2007 under Sections 396, 397 and 452
of I.P.C. came to be registered with Kotwali Police Station, District
Ahmednagar.
e. PW 58 P.I. Shivaji Koli has visited the spot and prepared spot
panchanama Exh. 65 in presence of two panchas. He has seized the
articles such as hair clip, adhesive tape, sim card, one knife, purse,
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empty boxes of wrist watches and ornaments, bulb holder and wire
so also blood samples from different places under spot panchanama
Exh. 65. PW 50 P.S.I. Abdul Shaikh prepared inquest panchanama
of dead bodies of Ramesh Munot and Chitra Munot in presence of
pancha witnesses and sent the dead bodies to Civil Hospital,
Ahmednagar for postmortem. PW 60 P.I. Vahile made inquiry with
the maid servant of the bungalow so also the security contractor. It
was revealed that the previous watchmen working at the said
bungalow were from Madhya Pradesh and they were absent from
duty. Thus PW 60 P.I. Vahile contacted the Railway Station Manager
and collected information about tickets sold on the said night for
Satna and nearby station.
f. Further, on the instructions of the District Superintendent of
Police, Ahmednagar, the Katni police arrested five suspects. During
the course of investigation, certain cash amount and gold and silver
ornaments, a lap-tap, Korean currency note, mobile phones, clothes
etc. came to be seized from the custody of the accused persons.
Further PW 49 A.P.I. Rakh has also inspected the room of accused
no.2 Shailendrasingh situated at M.I.D.C., Supa and seized clothes
and documents under panchanama. PW 60 P.I. Vahile, at the
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instance of accused no.3 Shivkumar, seized a knife under seizure
panchanama and at the instance of accused no.5 Sandip, seized
blood stained clothes, one Nokia make mobile phone and some
documents of Munot family. He has also collected the postmortem
reports of both the deceased persons so also the medical certificates
of medical examination of the accused persons. Further,
Identification parade of the accused persons was conducted
through Special Judicial Magistrate Shri Bhos (PW 45). The C.A.
reports and the D.N.A. test reports were collected. After completion
of the investigation, PW 60 P.I. Vahile has filed chargesheet against
the accused persons.
g. The learned Additional Sessions Judge has framed charge
against the accused i.e. appellants before us and two more persons
for the offence punishable under Sections 396, 397, 452, 408, 412,
201, 120-B of IPC, under Section 135 of the Bombay Police Act and
under Section 4 r/w 25 of the Arms Act vide Exh. 16. The contents
of the charge were read over and explained to accused nos. 1 to 8
in vernacular, for which they pleaded not guilty and claimed to be
tried. Their defence is of total denial and false implication in the
case.
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h. In order to substantiate the charge leveled against the
accused persons, the prosecution has examined in all 60 witnesses.
The prosecution has mainly relied on 23 documents. After
completion of the prosecution evidence, statement of the accused
persons under Section 313 of Criminal Procedure Code (Cr.P.C.)
came to be recorded. The learned Additional Sessions Judge,
Ahmednagar, by judgment and order of conviction dated
21.10.2013 in Sessions Case No. 51 of 2008, has convicted the
appellants-original accused nos. 1 to 6 and acquitted accused nos. 7
and 8. The operative part of the order dated 21.10.2013 is
reproduced herein below:
1. The accused No.(1) Raju Sampat Darode, Age 25 yrs., R/o
Indiranagar, Daund Road, Ahmednagar, (2) Shailendrasingh
Shivmurtisingh Thakur, Age 22 yrs., R/o Kairhai (Dihar), Taluka
Mahuganj, District Rewa, Madhya Pradesh (3) Shivkumar
Ramsundar Saket, Age 22 yrs., R/o Dihar, Taluka Mahuganj,
District Rewa, Madhya Pradesh (4) Rajeshsingh Hariharsingh
Thakur, Age 24 yrs., R/o Khairhai, Taluka Mahuganj, District
Rewa, Madhya Pradesh, (5) Sandip Rajendra Patel, Age 19 yrs.,
R/o Atari,(Raghurajgadh) Taluka Raipur, District Rewa, Madhya
Pradesh, (6) Balendrasingh Shivmurtisingh Thakur, Age 20 yrs.,
R/o Kaimhai (Dihar), Taluka Mahuganj, District Rewa, Madhya
Pradesh are held guilty and convicted of the offence punishable
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under section 396, 397, 412, 452, 120-B r.w. 34 of the Penal
Code vide section 235 (2) of the Code of Criminal Procedure.
2. The accused No.3 is held guilty and convicted of the offence
punishable under section 408 of the Penal Code vide section
235 (2) of the Code of Criminal Procedure.
3. Accused Nos.1 to 6 are sentenced to suffer Imprisonment for life
each and to pay fine of Rs.10,000/- (Rs. Ten Thousand only)
each i.d. to suffer R.I. for one year each for the offence
punishable under section 396 of I.P.Code.
4. Accused nos. 1 to 6 are sentenced to suffer R.I. for Seven years
each and to pay fine of Rs.10,000/- (Rs. Ten Thousand only)
each i.d. to suffer R.I. for one year each for the offence
punishable under section 397 of I.P.Code.
5. Accused nos.1 to 6 are sentenced to suffer R.I. for Seven years
each and to pay fine of Rs.5,000/- (Rs. Five Thousand only)
each i.d. to suffer R.I. for Six Months each for the offence
punishable under section 452 r.w. 34 of I.P.Code.
6. Accused nos.1 to 6 are sentenced to suffer R.I. for Seven years
each and to pay fine of Rs.10,000/- (Rs. Ten Thousand only)
each i.d. to suffer R.I. for One Year each for the offence
punishable under section 412 of I.P.Code.
7. Accused nos.1 to 6 are sentenced to suffer Imprisonment for
Life each and to pay fine of Rs.5,000/- (Rs. Five Thousand only)
each i.d. to suffer R.I. for Six Months each for the offence
punishable under section 396 r.w. 120-B of I.P.Code.
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8. Accused no.3 is sentenced to suffer R.I. for Five years and to
pay fine of Rs.5,000/- (Rs. Five Thousand only) i.d. to suffer
R.I. for Six months for the offence punishable under section 408
of I.P.Code.
9. Accused nos. 7 and 8 are acquitted for the offence punishable
under section 120-B of I.P. Code vide Section 235 (1) of the
Code of Criminal Procedure.
10. Accused nos. 1 to 6 are acquitted for the offence punishable
under section 135 of Bombay Police Act vide Section 235(1) of
the Code of Criminal Procedure.
11. Accused no. 8 is acquitted for the offence punishable under
section 201 of I.P. Code vide Section 235(1) of the Code of
Criminal Procedure.
12. Accused No. 7 is acquitted for the offence punishable under
section 412 of I.P.Code vide Section 235(1) of the Code of the
Criminal Procedure.
13. Accused nos. 1, 2 and 4 are acquitted for the offence punishable
under section 408 of I.P.Code vide Section 235(1) of the Code of
Criminal Procedure.
14. Accused nos.1 to 6 are acquitted for the offence punishable
under section 25 of Arms Act vide Section 235(1) of the Code of
Criminal Procedure.
15. The substantive sentences of accused nos. 1 to 6 under all the
sections shall run concurrently.
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16. Accused no. 1 is in jail since 4-12-2007, accused nos.3, 4 and 6
are in jail since 5-12-2007 and accused nos. 2 and 5 are in jail
since 6-12-2007. They are entitled to set off under section 428
of the Cr.P.Code for the period undergone in jail.
17. Accused nos.7 and 8 are released forthwith if not required in
any other case/crime as per order in para no.433 of this
Judgment.
18. Accused nos.7 and 8 shall furnish P.R. and S.B. of Rs.5,000/- as
per provisions of Section 437-A of the Code of Criminal
Procedure.
19. The muddemal property Article nos.1 to 5, 7 to 62, 66 to 78,
84, 87, 93, 95, 97 to 102, 107 to 110, 113 to 118, 122 to 125,
127, 128, 150, 160, 162, 163, 166 to 170, 172, 174, 175 and
178 to 188 being worthless be destroyed after the appeal period
is over.
The muddemal property article nos.6, 79, 80, 82, 86, 88 to 92,
94, 96, 104 to 106, 119 to 121, 126, 129, 130, 132 to 143, 145
to 149, 151 to 159, 161, 164, 165, 171, 173 be returned to
Sunit Ramesh Munot (PW 57) on his executing a Bond of
Rs.10,00,000/- in the form of undertaking that he will produce
the said muddemal articles/ornaments and cash amount as and
when directed by the Court for the purpose of appeal and will
keep the said articles in the same conditions till decision of
appeal, if preferred.
Muddemal article no.63 be returned to officer bearer of
Shivshakti Oil Co. Supa M.I.D.C., District Ahmednagar, article
no.64 be returned to accused no.1 Raju Sampat Darode, article
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no. 83 be returned to Sumitkumar Tiwari (PW 4), article no. 85
be returned to accused no.6 Balendrasingh Thakur, article no.
103 be returned to accused no.3 Shivkumar Saket, article no.
111 and 112 be returned to accused no.7 Sangita Saket, article
no. 176 and 177 be returned to accused no.8 Shivbahour
Nankuram Kaul after appeal period is over.
The muddemal article nos. 65 and 81 i.e. Mobile phones be
auction sold and the sale proceeds be credited to State
Government Account, after the appeal period is over.
Muddemal article no.144 are marked Exh.233 and 234 and
hence, those be preserved with the case record.
Muddemal article nos.46 to 48 and article no.137 are omitted.
Muddemal article no.131 is not produced in the Court, however,
it being worthless be destroyed after appeal is over under
intimation to the Sessions Court. (For detail description of
muddemal articles and its disposal, see the chart in para no.452
given above in this Judgment."
Criminal Appeal No. 64 of 2014 and Criminal Appeal No. 480 of
2014 filed by the appellants-accused nos. 1 to 6.
3-a. Learned counsel appearing for the appellants in both
the appeals submit that the prosecution case entirely rests upon
circumstantial evidence and there is no direct evidence in this case.
It is submitted that the prosecution has failed to establish the chain
of circumstantial evidence. Learned counsel submits that the
circumstances brought on record are not consistent with the
hypothesis of the guilt of the accused. Learned counsel submits that
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mere recovery of the articles said to have been recovered from the
accused and identified as ornaments belonging to the deceased
cannot help the prosecution to prove its case. Merely on the basis
of recovery of the alleged stolen articles only from four accused
persons, the offence punishable under Section 397 of IPC cannot be
made out.
3-b. Learned counsel for the appellants in both the appeals
submit that so far as the test identification parade is concerned, the
same was conducted in a great confusion and there was no
sufficient identification of the accused in this respect. It is
submitted that the guidelines in the criminal manual regarding
holding of identification parade are not followed by the Special
Judicial Magistrate Shri Bhos (PW 45) and hence, the evidence in
this respect is liable to be discarded. Learned counsel submit that
the witnesses, who have identified the accused persons being
culprits of the incident have not given their description before the
court and hence, their evidence is not worth to be believed.
Further, there is delay in conducting identification parade of the
accused after their arrest. Since the date of arrest till identification
parade, the identifying witnesses had opportunity to see the
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accused persons. The evidence of the prosecution witnesses about
identification of the accused persons is self-contradictory and also
contradicting each other.
3-c. Learned counsel submit that there are no special
identification marks on the property shown to have been recovered
from the accused. Therefore, it cannot be said that the said
property is belonging to the Munot family members only. It is also
submitted that the fingerprints available on the spot of the incident
were not collected by the police. Thus, involvement of the accused
persons in commission of the crime is doubtful.
3-d. Learned counsel submit that the prosecution has not
proved the motive to commit such an offence. The prosecution has
failed to prove the presence of the accused beyond doubt on the
date of incident. The prosecution has also failed to prove that the
appellants were under the employment of the deceased at the time
of the incident or earlier thereto. There is no explanation tendered
for the delay caused in lodging the FIR. There is no evidence of last
seen together, nor the prosecution proved that deceased were lastly
seen in the company of the appellants. There is considerable delay
in conducting the test identification parade. The prosecution has
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failed to prove the possession of the articles and ornaments
belonging to the deceased. Further, during the course of
investigation, the visitors register maintained at the gate of the
bungalow of the deceased was neither seized nor produced before
the court, which is vital document in the case. The prosecution has
failed to prove the recovery at the instance of the accused persons.
Furthermore, the medical evidence does not support the case of the
prosecution. The C.A. report is not positive and as such, not useful
for the prosecution. The evidence in the form of Call Detail Record
(CDR) and messages is also not proved as there is no authorized
record or due certification as required by the law.
3-e. Learned counsel submit that the trial court has erred in
holding that the prosecution has proved the circumstance of last
seen near the bungalow of deceased Ramesh Munot, which is
before happening of the incident, in absence of any cogent
evidence to that effect. There is no corroboration to the evidence of
PW 24 Sachin Dalvi. Further, PW 24 Sachin Dalvi has improved his
version in the Court. PW 24 Sachin Dalvi is an employee working
in the company of deceased Ramesh Munot. His eye sight is also
weak and he is using spectacles of distant number. He is highly
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interested witness and thus his evidence cannot be believed.
3-f. Learned counsel submit that the trial court has erred in
holding that the prosecution has proved conspiracy on the basis of
circumstances.
3-g. Learned counsel submit that there is no satisfactory
evidence to prove the circumstance that appellants-accused nos. 2
to 7 have purchased railway tickets between 08.00 p.m. to 11.00
p.m. for going to their village. The prosecution witnesses including
the booking clerk of the railway station, did not identify the
accused persons. Further, the daily chart about railway tickets
dated 02.12.2007 was not produced before the Court. There is no
evidence that the accused have purchased the railway tickets as on
02.12.2007. The tickets does not stand in the name of any of the
accused as the tickets are general. The said recovered tickets are
not verified with the original record maintained at the railway
station.
3-h. Learned counsel for the appellants submit that so far as
the circumstance about recovery of (i) copy of ration card of
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Ramesh Munot found in the bag of accused no.2, (ii) money order
coupons bearing address of Basant bungalow, (iii) visa card, cheque
book of deceased Chitra Munot and paper slip on currency notes
from Ahmednagar Bank found with the accused, (iv) N-72 mobile
phone and Titan make wrist watch of Ramesh Munot at the
instance of accused no.1, (v) mobile phone of deceased Chitra
Munot (article 171) found with accused no.5, (vi) mobile phone of
office (article 96) found with accused no.7 at Katani, Madhya
Pradesh, (vii) mobile phone of Sumitkmar (PW 4) found with
accused no.6, (viii) gold and silver ornaments, huge cash amount,
laptop etc. found in possession of accused at Katani and Satna in
Madhya Pradesh, is concerned, the prosecution has failed to prove
the ownership and possession of the above said articles and the
purchase receipts or other documents related to the above stated
articles. The prosecution evidence about recovery of the above said
articles at the instance of the accused persons is not duly proved.
The articles as mentioned above are having no nexus with the main
complaint filed by the complainant. The complainant has not given
details of those articles in his complaint. Further, the articles were
not duly identified. The test identification of the ornaments was
also not properly done as per the norms of the Criminal Manual.
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Further, the ownership of the mobile phones was not proved as no
receipts of the same were produced. The CDR in respect of the
recovered mobile hand sets was also not proved by the prosecution.
The learned Judge of the trial court has wrongly held that on the
basis of the circumstances, the guilt of the appellants-accused is
proved beyond reasonable doubt. On the contrary, the learned
Judge of the trial court ought to have given benefit of doubt to all
the appellants-accused.
3-i. Learned counsel appearing for the appellants in both
the appeals submit that both the appeals deserve to be allowed and
the appellants-original accused nos. 1 to 6 may be acquitted by
giving them benefit of doubt.
4-a. Learned APP submits that though the prosecution case
rests upon circumstantial evidence, however, on the basis of oral as
well as the voluminous documentary evidence adduced on behalf
of the prosecution in this case, the prosecution has succeeded in
proving the involvement of the appellants-accused in commission
of the crime. It is proved beyond doubt that accused no.3
Shivkumar was working as watchman on the bungalow of deceased
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Ramesh Munot during the period of incident. Appellant-accused
no.1 Raju was working as driver on the bungalow of deceased
Ramesh Munot one year prior to the incident. The appellant-
accused no.2 Shailendrasingh and appellant-accused no.4
Rajeshsingh were working as watchman on the bungalow of
deceased Ramesh Munot previously. Appellant-accused no. 6
Balendrasingh was working as watchman in another company, but
he is real brother of accused no.2, whereas, appellant-accused no.5
Sandip is a friend. Learned APP submits that there is evidence of
PW 24 Sachin Dalvi, who has lastly seen accused nos.1 to 4 near
the bungalow of deceased Ramesh Munot, which is before the
incident, along with two unknown persons i.e. accused nos. 5 and
6 to whom he has identified in the identification parade.
4-b. Learned APP submits that the appellants-accused
hatched conspiracy to commit the crime. Many articles belonging
to the Munot family were found in possession of the accused
persons. Even the wrist watches of both the deceased were found in
possession of the accused persons. Learned APP submits that this
material circumstance leads to draw an irresistible conclusion that
the accused persons have participated in commission of the crime.
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4-c. Learned APP submits that the prosecution has
established the chain of circumstances. Learned APP submits that
the following are the circumstances linking the accused persons
with the crime:
(i) The appellants-accused nos. 1 to 6 were last seen near
the bungalow of deceased Ramesh Munot just before
happening of the incident.
(ii) The appellants-accused nos. 5 and 6 with accused no.3
were seen near the watchman room on the earlier day
of incident by PW 27 Anita Kamble.
(iii) The appellants-accused nos. 5 and 6 were also seen by
PW 4 Sumitkumar Tiwari on the earlier day of the
incident near his room.
(iv) The dog squad led the police from the bungalow of
deceased Ramesh Munot, from the blood stained knife,
towards the platform of Ahmednagar Railway Station.
(v) The mobile phone stolen from the PW 4 Sumitkumar
Tiwari shows the tower location of Bhusawal at 05.00
a.m. on 03.12.2007.
(vi) The appellants-accused nos. 2 to 7 have purchased
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railway tickets between 08.00 to 11.00 p.m. for going
to their village.
(vii) Copy of the ration card of deceased Ramesh Munot
found in the bag of accused no.2 Shailendrasingh
along with money order receipts of year 2004-2005
which bears address of Basant bungalow.
(viii) The visa card, cheque book of deceased Chitra Munot
and the paper slip on currency notes were found with
the accused.
(ix) The N-72 mobile phone and Titan make wrist watch of
deceased Ramesh Munot was recovered at the instance
of accused no.1 Raju.
(x) The mobile phone of deceased Chitra Munot (article
171) was found at the instance of accused no.5
Sandip.
(xi) The mobile phone of the office (article 96) was found
with accused no.7 at Katani, Madhya Pradesh
(xii) The mobile phone (article 83) of PW 4 Sumitkumar
Tiwari was found with accused no.6 Balendrasingh.
(xiii) The gold and silver ornaments, huge cash amount, lap-
top etc. was found in possession of the accused at
Katani and Satna in Madhya Pradesh.
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Learned APP submits that thus, the evidence of
prosecution is sufficient to prove the case against the accused
beyond doubt.
4-d. Learned APP submits that the appellant-accused no.1
Raju was apprehended at Ahmednagar Railway Station while he
was coming from Shrirampur two days after the incident. It is
further brought on record by the prosecution by examining the
pancha witnesses on the memorandum statement of appellant-
accused no.1 Raju that he has shown his ready and willingness to
point out the place where he concealed the articles and as per his
statement, the cash amount, the mobile phone and other articles
were recovered from the place at Gondhavani area in Shrirampur
Taluka. Though the said place was open and accessible, however,
recovery was made only at the instance of appellant-accused no.1.
Learned APP submits that the stolen cash amount and also the gold
and silver ornaments, the lap-top etc. were found with accused nos.
1 to 6 within a short span of time after the incident of dacoity. The
appellants-accused could not offer any satisfactory explanation for
possessing the said articles, nor claimed that the said cash and
ornaments so also the other articles belong to them. Further, the
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said articles seized from the accused persons were identified by the
prosecution witnesses, i.e. the members of Munot family, as their
own. Thus, the presumption can be drawn that the property was
stolen by the accused and so they were in possession of it. Learned
APP submits that the circumstances as discussed above are
consistent only with the hypothesis of the guilt of the accused. The
inference could be drawn that accused nos. 1 to 6 and none else is
guilty of murder of Ramesh Munot and Chitra Munot while
committing dacoity in their bungalow.
4-e. Learned APP submits that the evidence of PW 19
Rajendra Zumbarlal Bhandari, PW 26 Rajendra Laxman Patole, PW
24 Sachin Vijay Dalvi, PW 27 Anita Dadu Kamble and PW 4
Sumitkumar Shrishamji Tiwari, coupled with the evidence of PW
45 Bhaskar Bhikaji Bhos, the Special Judicial Magistrate has
sufficiently established the identification parade. Learned APP
submits that PW 19 Rajendra Zumbarlal Bhandari has identified
appellants-accused nos. 1 and 3, PW 26 Rajendra Laxman Patole
has identified appellants-accused nos. 4 and 5, PW 24 Sachin Vijay
Dalvi has identified accused nos. 5 and 6, PW 27 Anita Dadu
Kamble has identified accused nos. 4 and 5 and PW 4 Sumitkumar
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Shrishamji Tiwari has identified accused nos. 4 to 6 during the
course of identification parade. Furthermore, they have also
identified the accused persons in the Court during the course of
recording their evidence.
4-f. Learned APP submits that the muddemal gold and
silver ornaments were specifically identified by the members of the
Munot family during the course of identification of property
conducted by PW 45 Bhaskar Bhikaji Bhos, Special Magistrate,
those articles being in their daily use. Moreover, there were certain
articles such as debit card, ration card, lap-top, cheque book,
Korean currency note, 50 US $, ladies and gents wrist watches,
which were certainly belonging to the Munot family. Those articles
were also found with the accused persons after the incident.
4-g. Learned APP submits that the prosecution has proved
the names and addresses of the mobile phone holders, so also the
call details of the mobile phones. The prosecution has examined
the witnesses from the Idea Cellular company. The accused
remained in contact with each other before and after the incident.
Though there is no evidence regarding the conversation actually
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taken place between the accused persons inter se at the relevant
time, however, the call details are sufficient to infer that the
accused were communicating with each other before and after the
incident. Learned APP submits that the prosecution has proved its
case beyond reasonable doubt. The learned Judge of the trial court
has rightly found appellants-accused nos. 1 to 6 guilty for the
charge leveled against them. Learned APP submits that so far as the
sentence is concerned, the State has also preferred an appeal
bearing Criminal Appeal No. 503 of 2013 for enhancement of the
sentence and to award death sentence to the appellants-accused
nos. 1 to 6. Learned APP submits that there is no substance in both
the appeals preferred by the appellants-accused and both the
appeals are thus liable to be dismissed.
Criminal Appeal No. 503 of 2013 filed by the State for
enhancement of the Sentence.
5. Learned APP submits that the trial court ought to have
considered that the present respondents-accused have committed
brutal murder of two innocent persons in diabolical manner.
Deceased Chitra Munot was found tied to a chair in sitting position.
Her throat was slit with a sharp weapon. It shocked the conscience
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of the common man. The trial court ought to have awarded capital
punishment/death sentence to the respondents-accused persons.
Learned APP submits that it is the rarest of rare case which requires
death penalty. Learned APP submits that the respondents-accused
persons are/were in the employment of the deceased persons for
some time. Some of them were even watchmen of the residential
house of the deceased for a considerable period. They have
committed brutal murder of two middle aged helpless and hapless
persons out of the lust for money and ornaments. It was a pre-
planned, well executed crime. It also involves extreme brutality.
Learned APP submits that a pre-planned, calculated, cold blooded
murder has always been regarded as one of an aggravated kind. If
a murder is "diabolically conceived and cruelly executed", it would
justify imposition of the death penalty on the murderer. Learned
APP submits that the persons previously in employment of the
Munot family as watchmen and driver have committed pre-planned
murders which render the sentence of imprisonment for life
inadequate and calls for the death sentence. There is no alternative
but to impose death sentence even after weightage is given to the
mitigating circumstances. The nature of the instant crime is cruel,
diabolic, brutal and gruesome. The crime results in public
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abhorrence, shocks the judicial conscience or the conscience of the
society or the community. It was a premeditated unprovoked crime.
Thus, the young age of the accused may not be relevant, so also the
possibility of their reformation or rehabilitation.
6. Learned APP, in order to substantiate his contention, placed
reliance on the following cases:
1. Bachan Singh v. State of Punjab, reported in AIR
1980 SC 898 / MANU/SC/0055/1982.
2. Machhi Singh and Others v. State of Punjab ,
reported in AIR 1983 SC 957 / MANU/SC/0211/
1983.
3. Dhananjoy Chatterjee v. State of West Bengal,
reported in (1994) 2 SCC 220 / MANU/SC/0626/
1994.
4. Shankar Kisanrao Khade v. State of Maharashtra ,
reported in (2013) 5 SCC 546 : MANU/SC/0476/
2013.
5. Birbal Choudhary v. State of Bihar , reported in
(2018) 12 SCC 440 / MANU/SC/1314/2017.
6. Khushwinder Singh v. State of Punjab , reported in
AIR 2019 SC 2639 / MANU/SC/0318/2019.
CriAppeal 64-2014+.odt
7. Learned counsel appearing for the respondents-accused
persons submit that there are mitigating circumstances, particularly
the age and the possibility of reformation of the respondents-
accused persons. There is no reason to solely look into the factum
of double murder to award capital punishment. There are no
antecedents and respondents-accused would not commit criminal
acts of violence as would constitute a continuing threat to the
society. Learned counsel submit that it is well settled that the
sentencing discretion is to be exercised judicially on well
recognized principles after balancing of the aggravated and
mitigating circumstances of the crime. By "well recognized
principles" the Court obviously meant the principles crystallized by
judicial decisions illustrating as to what were regarded as
aggravated or mitigating circumstances in those cases. Thus, the
application of those principles is now to be guided by the
paramount beacons of legislative policy discernible from Sections
354(3) and 235(2) of Cr.P.C., namely, (1) the extreme penalty can
be inflicted only in gravest cases of extreme culpability; (2) in
making choice of the sentence, in addition to the circumstances of
the offence, due regard must be paid to the circumstances of the
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offender. Learned counsel for the respondents-accused persons
submit that the average age of the respondents-accused is between
19 to 25 years. Thus, the possibility of reformation exists due to
their young age with no criminal background. Learned counsel
submits that this is not a rarest of rare case wherein death
punishment is to be awarded. The trial court has therefore not
awarded the capital punishment to the respondents-accused
persons by giving weightage to the mitigating circumstances.
8. Learned counsel for the respondents-accused persons, placed
reliance on the following cases wherein, on various grounds, the
imposition of death penalty has been expressly held erroneous.
1. Ravji alias Ram Chandra v. State of Rajasthan
(1996) 2 SCC 175
2. Shivaji v. State of Maharashtra AIR 2009 SC 56
3. Mohan Anna Chavan v. State of Maharashtra (2008)
11 SCC 113.
4. Dayanidhi Bisoi v. State of Orissa (2003) 9 SCC 310
5. Surja Ram v. State of Rajasthan (1996) 6 SCC 271
6. State of U.P. v. Sattan (2009) 4 SCC 736
CriAppeal 64-2014+.odt
7. Saibanna v. State of Karnataka (2005) 4 SCC 165
8. Shivu v. Registrar General, High Court of Karnataka
(2007) 4 SCC 713
9. Rajendra Pralhadrao Wasnik v. State of Maharashtra
(2012) 4 SCC 37
10. Mohd. Mannan v. State of Bihar (2011) 5 SCC 317
11. B.A. Umesh v. Registrar General, High Court of
Karnataka (2011) 3 SCC 85
12. Sushil Murmu v. State of Jharkhand (2004) 2 SCC
13. Gurmukh Singh v. State of Haryana (2009) 15 SCC
14. Dhananjoy Chatterjee v. State of West Bengal (1994)
2 SCC 220
15. Kamta Tiwari v. State of M.P. (1996) 6 SCC 250
In many of these cases, the Court has pointed out
inconsistencies in the application of aggravating and mitigating
circumstances. In a judicial system premised on the stare decisis,
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especially in the context of the Court in Bachan Singh (supra)
clearly mandating that sentencing discretion has to be exercised in
light of precedent.
9. Learned counsel for the respondents-accused persons, in
order to substantiate their contention, have further placed reliance
on the following cases:
1. State of U.P. v. Bhoora and others, reported in AIR
1998 SC 254.
2. Anshad and others v. State of Karnataka , reported in
(1994) 4 SCC 381.
3. Ramesh v. State of Rajasthan [Criminal Appeal No.
1236 of 2006 a/w other appeals decided by the
Supreme Court of India by judgment dated
22.02.2011.
4. Shankar Kisanrao Khade v. State of Maharashtra ,
reported in (2013) 5 SCC 546 : MANU/SC/0476/
2013.
5. Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, reported in (2009) 6 SCC 498.
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6. Sangeet and another v. State of Haryana , reported in
(2013) 2 SCC 452.
7. Mohd. Farooq Abdul Gafur and another v. State of
Maharashtra, reported in (2010) 14 SCC 641.
8. Kalu Khan v. State of Rajasthan, reported in MANU/
SC/0440/2015
10. We have perused the material exhibits tendered by the
prosecution, the evidence of the prosecution witnesses, the
statement of the appellants-accused recorded under Section 313 of
the Criminal Procedure Code, the evidence of the appellants-
accused and the impugned judgment.
11. The prosecution case is based upon circumstantial evidence.
There is no direct evidence to the actual incident of dacoity with
murder. The prosecution claims that it has established the chain of
circumstantial evidence whereas the defence contends that the
prosecution has failed to establish the chain of circumstantial
evidence.
12. PW 4 Sumitkumar Tiwari is the important witness.
CriAppeal 64-2014+.odt
Admittedly, he was working as night watchman of the bungalow,
namely, 'Basant', owned by deceased Ramesh Munot. The said
bungalow is located in Manik Nagar, Chandan Estate, Ahmednagar.
Admittedly, accused no.3 Shivkumar Saket was working as day
time watchman in the said bungalow from 8.00 a.m. to 8.00 p.m.,
whereas the duty hours of PW 4 Sumitkumar Tiwari were from
8.00 p.m to 8.00 a.m. There are two rooms for watchman in front
of said Basant Bungalow. PW 4 Sumitkumar Tiwari was given one
of those two rooms for his residence by deceased Ramesh Munot
and he was residing in that room. Accused no.3 Shivkumar Saket
was residing in the watchman room located in the industry of
deceased Ramesh Munot by name Sumesh Industry, Industrial
Area, Ahmednagar.
13. We have carefully gone through the evidence of PW 4
Sumitkumar Tiwari. We summarize his evidence in the following
manner:
A. Evidence about pre-incident activities and immediate post-
incident activities
i) On 02.12.2007, PW 4 Sumitkumar Tiwari had finished his
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duty by 8 a.m. as usual and accused no.3 Shivkumar Saket relieved
him from his duty. He went to his room for taking rest. His room is
just opposite to the bungalow of deceased Ramesh Munot. He slept
for a while and got up at 11.30 a.m.
ii) At about 11.30 a.m. PW 4 Sumitkumar Tiwari had noticed
that some friend was talking with accused no.3 Shivkumar Saket.
The said friend of accused no.3 Shivkumar Saket was wearing blue
coloured jean pant and yellow coloured full shirt. His age was
about 20 to 22 years. He was the height of about 5 feet, having fair
complex with mounted forehead (description of said person as
deposed by PW 4 Sumitkumar Tiwari).
iii) After the said friend left that place, PW 4 Sumitkumar Tiwari,
accused no.3 Shivkumar Saket along with his wife Sangita and son
had lunch together in the room of PW 4 Sumitkumar Tiwari. At
that time, the maid servant working inside the bungalow by name
Anita (PW 27) brought papaw (papai) in his room.
iv) At that time, wife of accused no.3 Shivkumar Saket, namely,
Sangita started crying and upon questioning by said PW 27 Anita,
told her that her husband accused no.3 Shivkumar Saket was
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intending to go to his village Dihar on the same night, but they did
not have money and that her husband accused no.3 Shivkumar
Saket should wait for at least two months. There was some
discussion about the same between PW 27 Anita and accused no.3
Shivkumar and thereafter, PW 27 Anita went back in the bungalow.
v) At about 1.00 p.m. to 1.30 p.m., PW 4 Sumitkumar Tiwari
went for toilet which is on the back side of his room. At that time,
he noticed that accused no.3 Shivkumar was talking with two
persons behind his room near the toilet. As PW 4 Sumitkumar
Tiwari reached near them, they stopped talking with each other.
vi) At that time, PW 27 Anita again came there with bakery
product khari from the bungalow. PW 27 Anita told that deceased
Chitra Munot had given her the said bakery product. At that time,
PW 27 Anita has asked accused Shivkumar as to who were those
two persons. Accused Shivkumar told her that he was going to his
village and those two persons were to accompany him. PW 4
Sumitkumar Tiwari has given description of those two persons;
one of them was aged 20 to 22 years, of the height of about 5 feet,
moderately built, having 'P' type cap. He was wearing full shirt of
yellowish violet colour and full pant of ash colour. The second
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person was of the age of about 20 to 25 years, of the height of 5 to
51/2 feet, having strong built, wearing black coloured strips pant
and yellow coloured shirt and military coloured jerkin.
vii) Accused Shivkumar told PW 4 Sumitkumar Tiwari to relieve
him by 4.00 p.m. because he wanted to leave for his village. PW 4
Sumitkumar Tiwari thus went back to his room and slept. He was
awakened by accused Shivkumar by 4.00 p.m. PW 4 Sumitkumar
Tiwari thus dressed up and came on duty in the bungalow. Accused
Shivkumar left the bungalow on his vehicle.
viii) At about 5.00 p.m. to 5.30 p.m., deceased Ramesh Munot
came to the bungalow with 4 to 5 guests. All those persons went
inside the bungalow. PW4 Sumitkumar Tiwari served them water
as directed to him by his owner deceased Ramesh Munot. Those
guests thereafter went in the neighbouring bungalow of Sharad
Gundecha where some function was going on. The landlady
deceased Chitra Munot also accompanied those guests to the
neighbouring bungalow. Deceased Ramesh Munot also went in the
neighbouring bungalow after 5 to 10 minutes.
ix) By 7.00 p.m. to 7.30 p.m., deceased Ramesh Munot returned
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to his bungalow and he was followed by his wife deceased Chitra
Munot. PW 4 Sumitkumar Tiwari was on duty in the bungalow at
that time.
x) At about 9.30 p.m. to 9.45 p.m., somebody has given a call
by referring surname of PW 4 Sumitkumar as "Tiwari". PW 4
Sumitkumar Tiwari was at the front of main gate of the bungalow.
On hearing the call, he went near the picket gate (small gate) of
the bungalow. The person who was calling him introduced himself
as 'Subhash' and further told him that he wanted to meet deceased
Ramesh Munot.
xi) According to PW 4 Sumitkumar Tiwari, the said person who
told his name as 'Subhash' was the same person who came in the
morning near his toilet and who talked with accused no.3
Shivkumar at about 1.00 p.m. near the toilet.
xii) PW 4 Sumitkumar Tiwari opened the latch of the small gate,
came out and saw under the street tube light 4 to 5 persons. PW 4
Tiwari has recognized two persons amongst them who had come in
the morning and talked with accused Shivkumar. According to him,
one of them had came and talked with accused Shivkumar at about
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11.30 a.m. and the other had come and talked with accused
Shivkumar at about 1.00 p.m. near the toilet. PW 4 Sumitkumar
Tiwari allowed said Subhash to enter in the campus of the
bungalow.
xiii) As per the procedure, permission of the owner is required to
be taken on intercom and name of the person visiting the owner is
required to be written in the register and the signature of such
person is required to be taken.
xiv) The intercom is installed in the south-east corner of the main
entrance gate of the bungalow. It is at a distance of about 15 to 20
feet from the small gate of the bungalow. PW 4 Sumitkumar Tiwari
did not latch the small gate fully while going towards the intercom.
Said Subhash was slightly behind him.
xv) The moment PW 4 Sumitkumar Tiwari was to lift the receiver
of the intercom, his head was closed with the help of cloth and his
mouth was gagged with palm. PW 4 Sumitkumar Tiwari has
deposed that Subhash did so because he was the only person with
him inside the campus. Said Subhash threatened to kill him if he
raised shout. Thereupon PW 4 Sumitkumar Tiwari was lifted by 4
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to 5 persons. His head was closed and mouth was gagged by some
person. He was taken to the place behind his resting room. He
came to know about that place only when he was released on the
next day morning. Those persons put adhesive tape on his mouth.
The ear belt was put on his eyes and adhesive tape was fixed on
that ear belt. The said ear belt was belonging to PW 4 Sumitkumar
Tiwari and it was of blue colour and he was using it during night
hours while on duty. The adhesive tape was fixed on his forehead
in such manner that the ear belt was completely stuck on his eyes
by the said adhesive tape.
xvi) The handset of PW 4 Tiwari was taken out by them from his
pocket along with key of his room.
xvii) After 2 to 3 minutes, his hands were tied on his backside. He
was made to sit cross legged and his legs were also tied. They gave
him life threats in the event of taking any action. He was lifted by
them in the same condition and tied behind the toilet to a pole of
the compound wall. His hands were already tied and in that
condition, were again tied to the pole.
CriAppeal 64-2014+.odt
xviii) After 15 to 20 minutes, he heard cry of deceased Chitra
Munot.
xix) Somebody was present their and he was constantly
threatening PW 4 Sumitkumar Tiwari of his life. PW 4 Sumitkumar
Tiwari was trying to get himself rescued but could not succeed.
After 5 to 6 hours, he heard the noise of birds and thought that it
must be morning. He again tried to rescue himself and after several
attempts, the wire with which his hands were tied to the pole got
cut and he became free from the pole. He has also tried to remove
the ear belt from the eyes with the help of his knees because he
was in sitting condition. The said ear belt got loosen to some
extent. Though he had tried to get up, but he could not do so.
Ultimately, with the help of boundary made of tin sheets, he could
stand with difficulty. Though he has tried to walk, but fell down
because his hands and legs were tied. He started jumping slowly
for going ahead. Though he fell down while jumping, somehow, he
reached up to the road in front of his room. It took him about 45
minutes to one hour for reaching up to the road by jumping and
falling. There were no lights inside the bungalow and there was
darkness. He reached near the gate of the bungalow of neighbour
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Gundecha. The watchman of neighbour Gundecha came near the
gate of his bungalow and he did not release hands of PW 4
Sumitkumar Tiwari by saying that he would ask his landlady and
he went inside the bungalow.
B. Evidence about post-incident scenario in the bungalow:
i) PW 4 Sumitkumar Tiwari alongwith neighbour Gundecha
anti and their watchman and one maid servant returned to the
bungalow of deceased Ramesh Munot. The main entrance door of
the bungalow was found closed. They reached to the backside of
the bed room of deceased Ramesh Munot. PW 4 Sumitkumar
Tiwari again called through the window of the bedroom. They
opened the outer planks of the window of the bed room of
deceased Ramesh Munot. They saw through the window that
deceased Chitra Munot was kept tied on the chair. Thus they went
to the backside of the kitchen door and pushed it and it was
opened. There were a lot of blood stains in the kitchen and in the
rooms inside the bungalow. They went in the living hall by avoiding
the blood stains. They found that deceased Ramesh Munot was
lying dead in the living hall and there was lot of blood beneath his
head. There were blood stains in the hall.
CriAppeal 64-2014+.odt
ii) They went inside the bedroom. They found that a saree was
tied around the head of deceased Chitra Munot and her mouth was
stuck with adhesive tape. Saree was wrapped around the entire
mouth and the adhesive tape was visible through that saree. There
was injury on the neck of Chitra Munot and blood had oozed from
that injury. Her left leg was tied to the right leg of the chair with
the help of cloth.
iii) Boxes in the bed room were lying scattered. Those boxes
were of jewellery.
vi) PW 4 Sumitkumar Tiwari narrated all the above facts to
neighbour Gundecha. By that time, yoga teacher came there. PW
Sunil, nephew of deceased Ramesh Munot, also came there about
7.00 a.m. to 7.30 a.m. About 8.00 a.m. to 8.30 a.m., police also
came on the spot and the other relatives of deceased Ramesh
Munot also came there. PW 4 Sumitkumar Tiwari also received a
telephone call from the younger son of deceased Ramesh Munot,
namely, Sumit. PW 4 Sumitkumar Tiwari also told him the entire
incident. His statement was recorded by the police. The police
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asked his mobile number. PW 4 Sumitkumar Tiwari also showed
them the wire with the help of which he was tied and also the
adhesive tape used against him.
C. Identification of accused.
i) On 18.12.2007, PW 4 Sumitkumar Tiwari was called in the
Sub-jail, Ahmednagar for identification of the accused. He was also
accompanied by PW 27 Anita, made servant working in the
bungalow and two to three other persons. They were asked to sit in
a room where they could not see outside and the outsiders could
not see the insiders. They were called inside the jail one by one by
calling their names.
ii) There were 12 persons standing in a row. All the 12 persons
were almost of the same height. PW 4 Sumitkumar Tiwari was
asked whether he was able to identify the persons who had come in
the room of bungalow in the afternoon and in the morning. He has
looked at each and every person carefully and touched two of them
and told that those two persons had come in the bungalow in the
morning at about 1.00 p.m. or 1.15 p.m. Those two persons had
also come in the night and one of them had come inside the small
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gate and the other was standing near the pole. One of them was
said Subhash and the other person was talking with accused
Shivkumar Saket.
iii) PW 4 Sumitkumar Tiwari has pointed out in the open court
towards accused no.4 Rajeshsingh Thakur and accused no. 5
Sandip Patel as the persons whom he had identified in the jail and
who had come in the bungalow at the relevant time. Accused no.5
Sandip Patel told his name as 'Subhash" in the night when he was
allowed to enter through the small gate.
iv) PW 4 Sumitkumar Tiwari was again called after 15 to 20
minutes. He was asked to identify the culprits from out of 7
persons who were standing in the row. He looked at all the 7
persons carefully and touched one person and identified him as the
person who had come and talked with accused Shivkumar at about
11.00 a.m. to 11.30 a.m. and again was standing near the electric
pole in the night when Subhash (accused no.5 Sandip Patel)
entered through small gate.
v) PW 4 Sumitkumar Tiwari has identified the accused wearing
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shirt of blue and white coloured strips sitting before the Court as
the person whom he had identified as the person who talked with
Shivkumar at about 11.00 a.m. to 11.30 a.m. and also come in the
night. He had identified the said person as accused no.6
Balendrasingh Thakur.
D. Identification of articles.
PW 4 Sumitkumar Tiwari has identified the articles which
were shown to him. He has identified the mobile handset-article 83
as belonging to him. He has also identified articles 31 to 44 which
include his ear belt of blue colour, electric wire of red and black
colour, antenna wire and the adhesive tape used for closing his
mouth and pasting ear belt on his eyes.
14. PW 4 Sumitkumar Tiwari was subjected to cross-examination
at length. He was asked as to why he has not sustained any injury
on his shoulder and face while jumping in tied condition and
falling on ground repeatedly. He was also cross-examined on the
point that why he did not sustained any bleeding injury on his
hands when his hands were tied with the help of wire. PW 4
Sumitkumar Tiwari has however given reasonable explanation for
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the same. He has deposed that he did not sustain any bleeding
injury on his hands but his hands got blackened. He has also
deposed that he did not fall on the road while jumping. He did not
sustain scratches on his shoulders despite falling because he was
wearing clothes like jerkin to prevent cold. PW 4 Sumitkumar
Tiwari was also put certain questions to the effect that his
involvement in commission of the crime so also suspected by the
police and he was kept in custody by the police for some days after
03.12.2007. However, PW 4 Sumitkumar Tiwari has denied the
same. There are certain omissions pointed out to the witness,
however, those are not material omissions to disbelieve his
evidence.
15. PW 4 Sumitkumar Tiwari was also subjected to cross-
examination at length on his identification of the accused during
parade and before the court. PW 4 Sumitkumar Tiwari though has
stated in his cross-examination that the persons who were lined up
were not exactly of the same height and all those persons were
having different hair styles, however, he has also stated that the
persons who were lined up for identification parade were all of
same age group and were almost of the same height. He has also
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stated in the cross-examination that all were having mustaches and
all of them were wearing cloths of the same colour but of different
shades like dark or light shade. All those persons were medium
built. Though the defence has subjected him to cross-examination
at length on the point of identification, however, nothing has been
revealed during cross-examination to disbelieve his evidence on the
point of identification of the accused. In the cross-examination, at
para 33, PW 4 Sumitkumar Tiwari has deposed that the main door
of the bungalow was closed on 03.12.2007 when he tried to enter
the bungalow. All the lights inside the bungalow were off. There
was blue coloured saree on the person of deceased Chitra Munot.
There was a black colour jacket and half pant of dark blue colour
and T-shirt of gray colour on the person of deceased Ramesh Munot
when he saw the dead body of deceased Ramesh Munot on
03.12.2007. All the windows of the bungalow were having curtains
from inside. He has denied that he has planned the dacoity by
taking information during the period of two months of his duty.
There were also certain omissions put to him, however, those
omissions are not material. Learned Judge of the trial court has
rightly observed that considering the frightened state of mind of
PW 4 Sumitkumar Tiwari when he has recalled the incident in the
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witness box, it is but obvious if certain omissions have appeared in
his evidence. Further, he is a Hindi speaking person and his mother
tongue is not Marathi.
Spot Panchanama Exhibit 65
16. The prosecution has examined PW 3 Gangaram Hiranandani
to prove the contents of the spot panchanama Exhibit 65. The spot
panchanama Exhibit 65 fully corroborates the evidence of PW 4
Sumitkumar Tiwari. The evidence of PW 3 Gangaram and the
contents of the spot panchanama Exhibit 65 are important to
consider the (a) campus of the bungalow from outside, (b)
premises of the bungalow inside the gate and (c) inside premises of
the bungalow.
a. Campus of the bungalow from outside
i) The compound wall of the bungalow is about the height of 5
feet. Above the compound wall, there is grilled barricade of the
height of 2 feet. The name of the bungalow is "Basant" and its
owner's name is Ramesh N. Munot.
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ii) There is a gate of the width of about 10 feet and height of
about 8 feet near the nameplate. The gate is having fiber sheet.
There is a small gate near the main entrance gate. There are domes
of light on the three pillars of the gate.
b. Premises of bungalow inside the gate
There were blood stains on the cement concrete slop near the
main entrance inside the gate. There were blood stains on various
places from the main entrance gate of the compound wall till the
main entrance door of the bungalow. One intercom was found near
the main entrance gate on the east-south corner. There is a porch in
front of the main door of the bungalow and there is some distance
between the porch and main entrance door of the bungalow. The
main entrance door of the bungalow is of the height of 7 feet and
width of 4 feet, made of stick wood. There were blood stains on the
latch of the entrance door. There were blood stains on the other
parts of the door also.
c. Inside premises of the bungalow
i) Inside the bungalow, there was a staircase made of marble
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for going upstairs from the right side of the passage. The staircase
was having railing of grill. There was a wooden cupboard beneath
the staircase. There was a ladies hairpin studded with artificial
diamond on the floor near the said cupboard. The hairpin was
stained with blood. There was a dust-bin in the corner of the
staircase. It was also found stained with blood. There was a glass
door on the left side of the passage. Inside the glass door, there was
a sitting room of deceased Ramesh Munot. There were some books
and some show pieces on the show-case. There was a wooden sofa
on the eastern and southern side of the room. There was a curtain
fixed on the door. There were various articles in the room as well
as varandah beyond the western side wall of the room.
ii) There were blood stains on various places in the main hall.
The police in presence of the pancha witnesses have seized various
articles including sim card, blood etc. from the spot.
iii) The bedroom of deceased Ramesh Munot is towards western
side of the hall. There were various articles in the bedroom. The
window on the western side wall was found slightly open. There
was a chair facing towards east. There were bloodstains found on
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and around the chair. It was informed to the pancha witness that
deceased Chitra Munot was found tied to the chair and she was
assaulted by the culprits there only. One knife was found at the
south-east corner of the bed. The knife was found kept on the bed
and it was having black colour grip of the length of 4 to 5 inches.
Its blade was of steel having length of 7 to 8 inches. The said knife
was stained with blood. It was seized, sealed and kept in a plastic
bag. There was an empty purse, four empty boxes of jewellery and
one empty box of Titan wrist watch which came to be seized from
the spot.
iv) Further, bloodstains were also found scattered on the floor of
the kitchen and on the kitchen ota. The electric switches were in off
mode and they were stained with blood. There were blood stains
up to the water tap which was at a distance of 15 to 20 feet
towards western side of the door of the kitchen. The floor area of
the place from kitchen up to the main entrance gate was stained
with blood.
v) There was a watchman room on the opposite side of the
bungalow after crossing the road. There were bloodstains on the
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road up to the watchman room. A piece of electric wire of the
length of about 10 feet along with cap of holder was found on the
spot by which the watchman was tied. The latrine bathroom is on
the south side of the watchman room. The floor of the place where
the watchman was tied was stained with blood. The wire, cap of
holder and the piece of tile were stained with blood. The pancha
witness has identified all the articles seized from the spot before
the Court.
Inquest panchanama Exhibits 50 and 51.
17. The prosecution has drawn two separate inquest
panchanama of the dead bodies of Ramesh Munot and his wife
Chitra Munot.
i) The inquest panchanama Exhibit 50 is of the dead body of
Ramesh Munot. The prosecution has examined PW 1 Dilip Pitale to
prove the contents of the said panchanama Exhibit 50. It appears
from the evidence of PW 1 Dilip Pitale and the contents of the
inquest panchanama Exhibit 50 that one dead body of male was
lying near sofa. An adhesive tape of white colour was pasted on the
lips of the dead body. The nephew of the deceased, namely, Sachin
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Munot, identified the dead body. It was of deceased Ramesh
Munot. There was blood on the face of the body which was in dry
condition. There was one injury beneath right eye lid. There was
blood on the nose of corpus and also on the part of face. There was
injury on the right side pale of ear. There was T-shirt of ash colour
on the person of the deceased and there was a jerkin of black
colour having chain on the person of the deceased. There was half
pant of blue colour on the person of deceased. There was injury on
the left side chest 7 cm upward to the nipple near shoulder. It was
a deep wound. There was other injury on the left side chest 14 cm.
upwards from nipple. Both the injuries were vertical. Blood was
found clotted near those injuries. PW 1 Pitale has identified the T-
shirt article 49, baniyan article 45 and the jerkin.
ii) The prosecution has examined PW 2 Ramchandra Pawar to
prove the contents of the inquest panchanama Exhibit 51 of the
dead body of deceased Chitra Munot. It appears from the evidence
of PW 2 Ramchandra Pawar and the contents of inquest
panchanama Exhibit 51 that the dead body of Chitra Munot was
found tied to a chair in the bed room near diwan and the face of
corpus was covered with the help of scarf and sari. Both hands of
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the body found tied with the help of telephone wife and they were
in cross condition. Both hands of the body were tied with the help
of small rope to the left side of the chair. The left leg of the body
found tied to the right side of the chair with the help of sari. The
adhesive tape was found pasted on the mouth. There was injury on
the throat of the body. There were blood stains on the backside of
the neck. There were wheel marks on both wrists of the deceased.
The skin of both wrists was reddish black in colour. The skin of left
leg was also found reddish black colour near ankle.
18. There is nothing in the cross-examination to disbelieve the
contents of the spot panchanama Exhibit 65 and the inquest
panchanama Exhibits 50 and 51 respectively. The contents of the
spot panchanama Exhibit 65 fully corroborate the evidence of PW 4
Sumitkumar Tiwari pertaining to (i) the outside premises, (ii) the
premises inside the gate of the bungalow, (iii) the inner side of the
bungalow, (iv) the watchman room and (v) the latrine and
bathroom behind the watchman room. It also appears from the
contents of the inquest panchanama Exhibits 50 and 51
respectively that both the deceased were subjected to extreme
violence and the leg of deceased Chitra Munot aged 52 years was
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found tied with the leg of the chair despite her hands were tied
backside of the chair.
19. There are certain small links of circumstances. However,
those links are also important which help the prosecution to
complete the chain.
i) PW 27 Anita Kamble has corroborated the prosecution story
to the extent that she has given papai to PW 4 Sumitkumar Tiwari,
accused no.3 Shivkumar Saket and his wife Sangita on 02.12.2007.
She has also supported the prosecution story about handing over
the khari pocket to Sangita as directed by deceased Chitra Munot.
She has also deposed about the presence of unknown persons near
toilet of the watchman room along with accused no.3 Shivkumar
Saket. She has also deposed in her evidence that on that day,
accused no.3 Shivkumar Saket has collected Rs.1,700/- from
deceased Chitra Munot for giving it to driver Sattar. PW 27 Anita
Kamble has also identified the said unknown person noticed by her
near the toilet of the watchman room along with accused no.3
Shivkumar Saket.
ii) PW 32 Jitendra Pawar has also corroborated the prosecution
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story to the extent of payment of Rs.1,700/- to accused no.3
Shivkumar Saket on the say of deceased Chitra Munot in presence
of PW 27 Anita Kamble on the basis of the voucher for paying it to
the driver Sattar.
iii) PW 29 Sattar Sayyad Noor Sayyad was working as driver in
Sumesh Industries, Kedgaon since 1989. He used to take amount
from the office on voucher. He was to go to Jaharabad in Andhra
Pradesh after loading goods. Thus, he has obtained Rs.1,200/- from
Classic Company by passing voucher. PW 29 Sattar has deposed
that when he came to know that accused no.3 Shivkumar Saket has
taken Rs.1,700/- on voucher for him, he informed PW 27 Anita
Kamble that he had no talk with accused no.3 Shivkumar, nor they
met each other and he had not received any amount from accused
no.3 Shivkumar Saket.
iv) PW 28 Sau. Suraj Sharad Gundecha has also corroborated
the post incident prosecution story. She has seen the condition of
PW 4 Sumitkumar Tiwari. His hands and legs were tied. She has
also corroborated the prosecution story about the entire scene in
the bungalow of deceased Ramesh Munot. There was some
religious function at her bungalow on 02.12.2007 and many
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persons had come there to attend the said function.
v) The prosecution has examined PW 24 Sachin Dalvi who is
employee of Classic Wheel Company owned by deceased Ramesh
Munot. He used to attend office which is in the premises of the
Basant bungalow, Chandan Estate, where deceased Ramesh Munot
was residing. He has deposed that prior to accused no.3 Shivkumar
Saket, accused no.2 Shailendrasingh Thakur and one Subhash were
the watchmen at the said bungalow. However, in the month of
August 2007, accused no.2 Shailendrasingh Thakur was removed
form work as he behaved indecently with one employee of the
company, namely, Shubhangi. The other watchman left the job and
went to his native place. Prior to that, accused no.4 Rajeshsingh
Thakur was working as watchman and accused no.1 Raju Darode
was driver on the vehicle of deceased Ramesh Munot one year
prior to the incident. PW 24 Sachin Dalvi has deposed that on 1 st
and 2nd December, he was on leave and went to Pune for private
work. He returned from Pune at 8.00 p.m. on 2 nd December. After
taking dinner, He was going towards saloon on foot by 9.00 p.m. to
9.15 p.m. for cutting hair. At that time, he has noticed crowd near
bungalow of Gundecha family which was near the bungalow of
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deceased Ramesh Munot. Some religious function was going on
there. PW 24 Sachin Dalvi has further deposed that at that time,
he noticed 5 to 6 persons chitchatting near electric pole near
bungalow of deceased Ramesh Munot. On seeing him, those
persons stopped chitchatting and PW 24 Sachin Dalvi saw that
accused nos. 1 to 4 were standing there with two unknown
persons. He has asked accused no.3 Shivkumar Saket as to what
they are doing there at such late night hours. He told that he was
there to see his native village persons. At 10.30 p.m., while
returning back at home, he noticed that PW 4 Sumitkumar Tiwari
was not in the bungalow. PW 24 Sachin Dalvi thought that PW 4
Sumitkumar Tiwari might be taking round in the bungalow
premises. PW 24 Sachin Dalvi has thus seen all the accused persons
near Basant bungalow of deceased Ramesh Munot just prior to the
incident.
vi) PW 19 Rajendra Bhandari is the owner of medical shop,
namely, Dhanashri Medical and General Stores. According to him,
two persons had come to his shop to purchase two small adhesive
tapes and five minutes later, they again came to his shop
contending that they do no want those small tapes and instead they
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want the tapes larger in width. Accordingly, they had returned the
two small tapes and paid for bigger tapes and took the same and
went away. They have also returned the bill for purchase of small
tapes and accordingly, PW 19 Rajendra Bhandari gave them bill for
subsequent purchase of bigger adhesive tapes. Those adhesive
tapes were of Johnson and Johnson company. He has identified
accused no. 1 Raju Darode and accused no. 3 Shivkumar Saket as
those two persons who had been to his shop for purchasing
adhesive tapes. Though he was subjected to cross-examination at
length that there was no special reason for him to remember the
customers visiting his shop for purchase of medicines and other
articles, however, he has stick up to his evidence.
vii) PW 26 Rajendra Patole is serving in Surekh Sangam shop as
salesman. It is the shop of utensils. According to him, on
02.12.2007, two persons had been to his shop to purchase knives.
They purchased Cartini make one small and one big knife. He has
also deposed that the big knife was worth Rs.138/- and the small
one was of Rs.105/-. According to him, those two persons paid the
bill of Rs.250/- to the shop owner. He has handed over the said
knives and the bill in plastic bag to those persons. They were
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speaking in Hindi language. From their language, they appeared to
be from U.P. or M.P. The age group of those persons was 20 to 22
years. One was tall in height and having fair complex. The another
was simple looking and medium height. PW 26 Rajendra Patole has
identified the muddemal article 9 i.e. the big knife and muddemal
article 166 the small knife. PW 26 Rajendra Patole has also
identified in the identification parade accused no. 4 Rajeshsingh
Thakur and accused no.5 Sandip Patel as the persons who had been
to his shop for purchasing knives. He has also identified them
before the Court. Though he was submitted to searching cross-
examination, however, there is nothing in his cross-examination to
disbelieve his evidence.
Evidence about homicidal death.
20-i. The prosecution has examined PW 23 Dr. Suvarnamala
Bangar, who has conducted postmortem examination on the dead
bodies of Chitra Munot and Ramesh Munot. On examination of
dead body of Chitra Munot, PW 23 Dr. Bangar has noticed rope
marks on both wrists. There was incised wound over mid line of
neck ad-measuring 5 cm X 1 cm. The throat was mostly cut below
thyroid cartilage 1.5 cm semi circular in size. In her opinion, the
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cause of death was because of cut throat injury. Through the neck
blood was aspirated to the respiratory passage due to which patient
was asphydiated. In her opinion, the injury on the person of
deceased Chitra Munot was possible on account of weapon knife
shown to her in the court articles 9 and 166.
20-ii. On the same day, PW 23 Dr. Suvarnamala Bangar has also
conducted postmortem examination on the dead body of Ramesh
Munot. She has noticed the following four incise wounds on the
dead body :
1. 3x1 cm x 8 cm (on second inter costal space i.e.
below second rib it was on right side. The said injury
was above nipple ad-measuring 11 cm.
2. On the left side of second intercostal space ag
5x2x10 cm below i.e. second rib region on the left
side.
3. 5x2x11 over fourth intercostal space i.e. below
fourth rib region. left side. This injury was located at
7 cm. above left nipple.
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4. incised wound over right lateral corner of right eye
it was vertical ad-measuring 1 cm x 5 mm x 5 mm.
According to PW 23 Dr. Bangar, all above four injuries were
ante mortem injuries. She has also noticed the corresponding
internal injuries :
Right pleura was broken at second intercostal space
and there were two breaks at second and 4 th
intercostal space to left pluera. There was incised
wound admeasuring 2 cm at right lung. Lower part
of left lung was also found to be cut. Covering of
heart (pericardium) was also broken. There was
incise wound to the left ventricle........
In her opinion, the cause of death was stab injury directly to
the heart and deceased Ramesh Munot had gone into hypovolumic
shock and died. She has further opined that injuries on the person
of deceased Ramesh Munot were possible by weapon knife articles
9 and 166 before the court. The postmortem notes Exhibits 186
and 187 are accordingly proved by the prosecution. Though it was
suggested to her that injuries on the person of both the dead bodies
were not possible by articles 9 and 166, however, she has denied it.
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She has also denied that in all cases when the weapon which is
blunt on one side, there will be bruising and raggedness at one end
of the wound. We find that the expert's opinion is based upon the
notes of the postmortem examination and there is nothing in the
cross-examination to draw any other inference about the cause of
injuries on the dead bodies of the deceased persons by any other
instrument or weapon.
21. Arrest of the accused and recovery of muddemal articles.
21-a. It appears from the evidence of PW 60 P.I. Tukaram
Vahile (Investigating Officer) that during interrogation and inquiry,
it was noticed by him that the suspects of the crime may be
previous and present watchmen working at the Basant Bungalow of
deceased Ramesh Munot and they were form the State of Madhya
Pradesh. It further appears that during interrogation with PW 4
watchman Sumitkumar Tiwari, it was revealed that his mobile
phone was stolen away. Thus, PW 60 P.I. Tukaram Vahile (I.O.) has
contacted Vodafone company to ascertain the location of said
mobile and it was found that it was used in Bhusawal area. It was
also revealed during the course of investigation that accused no.2
Shailendrasingh Thakur and accused no. 4 Rajeshsingh Thakur
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were working as watchman of the said bungalow previously and at
that time, working at Shivshakti Industries at M.I.D.C., Supa. Thus,
PW 60 P.I. Tukaram Vahile (I.O.) has taken a clever move to find
out those watchmen first. Thus, he has sent PW 49 A.P.I. Rakh (the
then P.S.I.) to Kedgaon and Supa M.I.D.C. in search of those
watchmen. Thereupon, PW 49 P.S.I. Rakh has visited Shivshakti
Industries, Supa. Accused no. 2 Shailendrasingh Thakur was
working as watchman in the said company. It was revealed in the
said inquiry that accused no. 2 Shailendrasingh Thakur, accused
no.6 Balendrasingh Thakur, accused no.5 Sandip Patel and two
watchmen were absent on duty since 02.12.2007 at about 11.00
a.m. Thus, PW 49 P.S.I. Rakh has collected information about the
residence of those persons and went there. He went on the first
floor of the house of Jafarbhai along with pancha witnesses. Those
persons were residing in the said building. On reaching there, PW
49 P.S.I. Rakh has searched the bags of the said accused persons,
namely, accused no.2 Shailendrasingh Thakur, accused no. 4
Rajeshsingh Thakur and accused no.5 Sandip Patel. In the bag of
accused no.2 Shailendrasingh he has noticed six articles and those
were seized under panchanama Exhibit 93 in presence of the
panchas. Those articles were one faint blue colour shirt having
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name engraved on one side and the word "Security" engraved on
the other side, discharge card of one Anandrishiji Hospital
pertaining to the treatment taken by accused no.2 Shailendrasingh
in the said hospital and his discharge summary, school leaving
certificate, money order receipts, phone diary, daily diary with
photocopy of ration card of deceased Ramesh Munot and duty
register. The aforesaid seized muddemal articles vide Exhibit 93 are
articles 58 to 63.
21-b. PW 60 P.I. Tukaram Vahile (I.O.), after noticing that
those missing watchmen are hailing from the State of Madhya
Pradesh, has very appropriately applied his mind and contacted the
Railway Station Manager PW 40 Arun Patil. PW 40 Arun Patil was
working as Station Manager, Ahmednagar. From Ahmednagar
station, train proceeds for the destination of Delhi, Nagpur, Madras,
Madhya Pradesh, Gujrath, West Bengal etc. PW 40 Arun Patil has
given information that Pune to Patna Express departed from
Ahmednagar at about 00.10 a.m. on 03.12.2007. Thereafter, PW 40
Arun Patil, Railway Station Manager, on the basis of the record, has
supplied the information that six tickets were sold for Ahmednagar
to Satna and one ticket was sold for Ahmednagar to Manikpur
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(which is near Satna Station). These tickets were issued from
window nos. 5 and 3 respectively, of the Railway Station. Four
tickets for Ahmednagar to Satna (Exhibits 233, 234, 235 and 237)
were sold for four adults at 23.17 hours on 02.12.2007 and one
ticket for Ahmednagar to Manikpur journey Exhibit 236 for one
adult was sold at 20.09 hours on 02.12.2007. It is also revealed
during investigation that for going to Riva (State of Madhya
Pradesh), one has to take ticket from Satna Railway Station.
Accordingly, information was given to all the district places on
railway line from Ahmednagar to Satna to trace out the culprits.
PW 60 P.I. Tukaram Vahile (I.O.) has also appropriately guessed
that one of the culprits has sustained bleeding injury in the said
incident.
21-c. In the evening, the Superintendent of Police,
Ahmednagar informed PW 60 P.I. Tukaram Vahile (I.O.) that five
suspected culprits have been apprehended by Katni Police Station.
The prosecution has examined PW 52 P.I. Mangalsingh Thakur,
resident of Tehara, District Gwalior, Madhya Pradesh. On
03.12.2007, he was attached to Railway Police Station, Katni. He
was given the information about dacoity at Ahmednagar and the
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dacoits are likely to be arrived by Pune Patna railway. It was
informed to him that they were five persons in all, including one
female. Accordingly, he alongwith staff, checked the Pune Patana
rail which arrived at platform no. 2. In a general bogi, one lady was
sitting with small kid and on making inquiry with her, she had
disclosed that she had come from Ahmednagar. She had told her
name as Sangita (original accused no. 7) and also shown other
four-five male members with her. He has just taken them in custody
and also with the help of two police, taken custody of their
luggage. He has brought them in the police station. PW 52 P.I.
Mangalsingh Thakur has further deposed that one Rajeshsingh
(accused no. 4) had injury on his hand caused with knife. The bag
of accused no. 4 Rajeshsingh was opened in his presence and the
articles found therein were seized by drawing seizure panchanama
Exhibit 102.
21-d. The prosecution has examined PW 8 Sallan Ali
Musalman to prove the contents of panchanama Exhibit 102. The
black colour bag of accused no. 4 Rajeshsingh was searched in
presence of the pancha witnesses and one gold necklace known as
'Panchali Har', gold ear tops, one Nokia mobile handset, charger,
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cash amount of Rs.12,000/- and one Rado make wrist watch was
found. PW 8 Sallan Ali Musalman has also identified accused no. 4
Rajeshsingh Thakur before the Court during the course of his
evidence and also identified the muddemal articles as referred
above. He has also deposed that there was injury on the right palm
of accused no. 4 Rajeshsingh Thakur and it was bandaged by
handkerchief.
21-e. The prosecution has examined PW 54 Dr. Suresh Jain
before whom accused no. 4 Rajeshsingh Thakur was brought for his
medical examination. On examination, he found incised wound on
right hand palm in the middle with clotted blood. It was a
penetrated wound passed through the palm and there was no
movement of middle finger. In his opinion, the injury was caused
by hard and sharp and pointed object within 24 hours and it was
grievous in nature. According to him, such type of injury is possible
with muddemal articles 9 and 166 knives. He has issued medical
certificate which is marked at Exhibit 334.
21-f. Thereafter, luggage of suspected lady passenger
Sangita was opened and searched. Her bag was also of black
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colour. There were two yellow colour bangles of child, a pair of ear
tops, a mobile handset, a dress of security guard in the bag and an
amount of Rs.1750/- was also found in the bag. Likewise, one sari
and clothes of child were also found in the bag. The said articles
came to be seized by drawing separate panchanama Exhibit 103.
PW 8 Sallan Ali Musalman has identified those articles before the
court as referred above. PW 8 Sallan Ali was confused while
identifying muddemal articles when mixed with other muddemal
articles. However, his evidence coupled with the evidence of PW 52
P.I. Mangalsingh Thakur inspires confidence. There is no reason for
the Police Inspector of Police Station Katni to draw any false
panchanama of the articles found in the bag.
21-g. Further, the bag of white colour (article 108) was
found with accused no. 3 Shivkumar Saket. PW 8 Sallan Ali has
deposed that the bag of accused no. 3 was opened. The said bag
was containing dress of security guard (article 109), clothes of
child i.e. four T-shirts, one half pant, towel and gown (article 110),
a CD player (article 111), a lady wrist watch (article 104), white
coloured plastic fertilizer bag (article 112/1), utensils like cooker,
steel boxes and tiffin (articles 112/2, 112/4, 112/5, 112/6 and
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112/7), two blankets (article 112/3), a lady wrist watch (article
105), a pair of nose ring (article 106) came to be seized by drawing
panchanama Exhibit 104.
21-h. PW 52 P.I. Mangalsingh Thakur has thereafter deposed
that one blue colour jeans bag was found with accused no.8
Shivbhavar Adivasi and certain articles came to be seized from his
bag as per panchanama Exhibit 105.
21-i. PW 52 P.I. Mangalsingh Thakur has further deposed
that one black colour bag was found with accused no. 6
Balendrasingh and the articles found in the said bag were seized as
per Exhibit 106. PW 8 Sallan Ali Musalman has also deposed about
the contents of panchanama Exhibit 106 and his signature below it.
The said bag was containing a pair of uniform of security guard,
mobile handset with charger and cash amount of Rs.1000/-. PW 8
Sallan Ali Musalman is a registered coolie and considering the
same, even if certain minor deficiencies are their in his evidence,
those can be ignored.
21-j. Further, PW 52 P.I. Mangalsingh Thakur has effected
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arrest of accused no.3 Shivkumar Saket, accused no. 4 Rajeshsingh
Thakur, accused no. 6 Balendrasingh Thakur, accused no.7 Sangita
(acquitted) and accused no. 8 Shivbhavar (acquitted) by drawing
arrest panchanama and further referred accused no. 4 Rajeshsingh
Thakur for his medical examination. PW 52 P.I. Mangalsingh
Thakur has also produced the station diary index containing nine
pages marked at Exhibit 325. The said station diary unmistakenly
point out the search and seizure of all the articles as deposed by
PW 52 P.I. Mangalsingh Thakur and PW 8 Sallan Ali Musalman.
21-k. PW 51 Inspector Mohammad Aslam, attached to Laur
Police Station, Deotalab, District Riva, State of Madhya Pradesh,
has deposed that on 03.12.2007, at about 8.00 p.m., he has
received a call from Superintendent of Police, Riva informing him
about the dacoity with murder committed at Ahmednagar by
certain accused persons who are the local residents of his police
station. The Superintendent of Police, Riva has directed him to take
search of the accused persons. Accordingly, PW 51 Inspector Md.
Aslam along with his police staff went to village Kemhai, Bihar,
Chhapra, Umari, Suzi by taking entry to that effect in the station
diary. On 04.12.2007, he went to Deotalab along with PW 46
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Ramnaresh Soni and one Ashok Soni and started proceeding
towards village Satna. He reached there at about 7.30 a.m. on
04.12.2007. He has noticed accused no. 5 Sandip Patel while
carrying one bag with him. He has apprehended and inquired
accused no. 5 Sandip Patel as to the contents of the bag. PW 51
Inspector Md. Aslam took search of the articles of the said bag. It
was a black colour bag (article 150) on which word 'Dunhill' was
written. The bag was also seized. It contained article 151-three
gold wires, article 152-gold tops, article 153-pair of gold tops,
article 154-pair of gold tops, article 155-pair of gold tops, article
156-pair of gold tops, article 157-gold bindiya, article 158-pair of
gold tops, article 159-pair of gold tops, article 160-ration card,
article 161-visa card of deceased Ramesh Munot, article 162-small
jewelry bag having name Kapadiya Jewelers, article-163 wallet
having blue colour border, article-164 one handkerchief containing
cash amount of Rs.64,503/- and article 165-currency note of 50 US
Dollars. The ornaments found in the said bag were weighed
through pancha witnesses and thereafter, seizure panchanama was
prepared. All the above articles have been identified by pancha
witness PW 46 Ramnaresh Soni of the seizure panchanama Exhibit
270.
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21-l. PW 46 Ramnaresh Soni was the pancha witness of the
panchanama Exhibit 270. He has identified the muddemal articles
151 to 165 produced before the Court. Further, PW 51 Inspector
Md. Aslam has also effected arrest of accused no.5 Sandip Patel by
drawing arrest panchanama Exhibit 271.
21-m. Thereafter, PW 51 Inspector Md. Aslam has also
noticed one another suspect accused no. 2 Shailendrasingh Thakur
proceeding with a heavy bag of cloths. He was apprehended with
the help of panchas and police. Besides gold and silver ornaments
in the bag of accused no. 2 Shailendrasingh Thakur, cash amount of
Rs.40,000/-, a check book of Ahmednagar Merchant Co-operative
Bank in the name of deceased Chitra Munot, one key having
inscribed name Habib, Korean currency of 1000 Won, one pearl
garland known as 'Ranihar' weighing 44 gms. and two railway
tickets having nos. 02260979 and 02260978 were found. All those
articles were seized under panchanama Exhibit 272 in presence of
pancha witness PW 46 Ramnaresh Soni. PW 51 Inspector Md.
Aslam has taken station diary entry about the said search and
seizure which is marked Exhibit 306. He has also noticed injury on
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the left hand palm and near thumb of accused no. 2
Shailendrasingh Thakur. Both the accused were referred for
medical examination.
21-n. PW 53 Dr. Arvind Sushilchandra Misra deposed that on
05.12.2007, he was attached to Community Health Center at
Mahuganj as Medical Officer. Accused no. 2 Shailendrasingh
Thakur was taken to him with letter Exhibit 329. He has examined
accused no. 2 Shailendrasingh and found incised wound on left
hand palm of size 1 x 1/4 x 1/4 cm caused by sharp and hard
object like knife. Accordingly, he has issued medical certificate and
the same is marked at Exhibit 330. PW 5. Dr. Arvind Misra has also
examined accused no. 5 Sandip Patel. There was no injury on his
person. The medical certificate Exhibit 332 is issued to that effect.
21-o. PW 50 A.P.I. Abdul Gafar Sardar Shaikh was attached
to Kotwali Police Station, Ahmednagar in the month of December
2007. On 03.12.2007 at about 7.30 p.m., he went to Katni in State
of Madhya Pradesh to take custody of the accused. He met the
Railway Police Officer P.I. Mangalsingh Thakur. Four male and one
female accused were in his custody and those were accused no. 4
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Rajeshsingh Thakur, acquitted accused no. 7 Sangita Saket, accused
no. 6 Balendrasingh Thakur, acquitted accused no. 8 Shivbhavar
and accused no. 3 Shivkumar Saket, along with muddemal articles.
He has taken said accused persons in custody with permission of
the local court. The learned Magistrate granted transit custody on
04.12.2007. Accordingly, he has brought said accused persons to
Kotwali Police Station, Ahmednagar alongwith documents, namely,
arrest panchanama, medical examination papers, case diary,
journey tickets of the accused and muddemal property. He has
submitted a report to Kotwali Police Station marked at Exhibit 301.
He has also taken entry in the station diary while leaving Katni
Police Station. The extract of the said entry taken at Katni Police
Station is marked at Exhibit 302. Acquitted accused Sangita was
having small kid with her at that time.
21-p. PW 56 A.P.I. Dattatraya Pardeshi attached to L.C.B.
Ahmednagar as P.S.I., on 03.12.2007 at 7.00 p.m., as per directions
of the superior officer, along with police staff had proceed to Laur,
State of Madhya Pradesh. He reached there at the night of
4.12.2007. On 5.12.2007, he went to Laur Police Station early in
the morning. He learnt that the accused were taken to the court.
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Therefore he went to the court in the noon. He submitted a report
to the court for transfer of the accused in the crime registered at
Kotwali Police Station, Ahmednagar. PW 51 Inspector Md. Aslam
was in-charge of the Laur Police Station. A copy of the said report is
marked at Exhibit 339. He took the accused persons in his custody,
so also the documents prepared by PW 51 Inspector Md. Aslam i.e.
seizure panchanama, arrest panchanama, medical report, case
diary and seized articles from them. He has taken custody of
accused no. 2 Shailendrasingh Thakur and accused no. 5 Sandip
Patel. On reaching to Ahmednagar, he has handed over the
accused, said documents and muddemal articles to Kotwali Police
Station along with a report Exhibit 340. It appears from the
contents of the report Exhibit 340 that accused no. 2
Shailendrasingh and accused no. 5 Sandip Patel were granted
transit remand by the court till 08.12.2007.
21-q. It was also revealed during investigation that accused
no. 1 Raju Darode was working as driver with Munot family. He
was working with one Roshan Transport and he is also involved in
commission of the crime. Therefore, on 04.12.2007, PW 60 P.I.
Tukaram Vahile (I.O.) went to the Manager of Roshan Transport.
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The Manager informed him that Raju Darode is coming to
Ahmednagar by railway from Shrirampur. Accordingly, he arranged
a trap at Ahmednagar Railway Station and he was apprehended at
7.30 p.m. During his personal search, cash amount of Rs.1452/-
and one diary was found, which was seized by drawing
panchanama in presence of panchas. The prosecution has
examined PW 6 Manoj Gandhi in respect of panchanama about
personal search of accused no. 1 Raju Darode. On his personal
search, one chocolate coloured wallet and one diary kept in pant
pocket and one Nokia make mobile handset was found with him.
Those articles were accordingly seized by drawing panchanama
Exhibit 89. Accused no. 1 Raju Darode was thereafter brought to
Kotwali Police Station along with the above referred articles. As per
PW 60 P.I. Tukaram Vahile (I.O.), accused no. 1 Raju Darode gave a
memorandum in presence of panchas vide Exhibit 116 and at his
instance, from Gondhavani area, the cash amount of Rs.57,000/-
kept in a tiffin bag, Nokia make N-72 mobile and Titan make wrist
watch came to be seized under Panchanama Exhibit 116/1. In
order to prove the memorandum and seizure panchanama of the
aforesaid articles, the prosecution has examined PW 10 Narendra
Lohade, who has fully supported the contents of the memorandum
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panchanama Exhibit 116 and seizure panchanama Exhibit 116/1.
Though the said witness has shown his inability to identify the said
articles as it has been six years ago, however, on this count alone
there is no reason to discard his evidence which is otherwise
reliable. It is also observed that the cash amount of Rs.50,000/-
recovered at the instance of accused no. 1 Raju Darode was having
slips of Sindhu Nagari Sahakari Pat Sanstha Maryadit, Ahmednagar
and the said Titan make wrist watch was showing date as
02.12.2007. The said Nokia mobile handset was not having sim
card and one sim cart was found in the bungalow of deceased
Ramesh Munot while preparing spot panchanama Exhibit 65.
21-r. Further, on 05.12.2007, accused Raju Darode gave a
statement in presence of two panchas that he is ready to produce
the blood stained clothes which were on his person at the time of
the incident. Accordingly, memorandum panchanama was prepared
vide Exhibit 122. Accused no. 1 Raju Darode took the pancha
witnesses and the police to his house situated at Indiranagar. His
mother was present in the house. Accused no. 1 has produced one
ash colour pant stained with blood and one white colour shirt
having blood stains on its sleeves, kept hidden beneath a wooden
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cot in his house. The same were seized under panchanama vide
Exhibit 122/1. The muddemal articles 77 and 78 are produced
before the Court. The prosecution has also examined PW 11 Ranjit
Pardeshi to prove the contents of the said panchanama Exhibit 122
and Exhibit 122/1. He has deposed that those clothes were kept in
separate pockets and sealed in his presence and his signatures were
also taken on the sealed packets. He has also deposed that there
were blood stains on both the knee parts of the pant and on the left
hand sleeve of the shirt. He has also identified the muddemal
articles 77 and 78 before the court.
21-s. The prosecution has examined PW 13 Shantaram
Kardile to prove the arrest panchanama Exhibit 145 of accused no.
2 Shailendrasingh Thakur and accused no. 5 Sandip Patel. He is
also the pancha witness regarding the information collected from
the muddemal article laptop with the help of computer expert. On
06.12.2007 in between 22.00 to 22.30 hrs, the arrest panchanama
Exhibit 145 was drawn in his presence and the second pancha
witness Santosh Kadam. According to PW 13 Shantaram Kardile,
there were two accused persons wearing veils. Their veils were
removed. One of them was accused no. 2 Shailendrasingh Thakur
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and another one was accused no. 5 Sandip Patel. He has identified
the accused persons before the Court. He has further deposed that
there was injury on the left hand palm of accused no. 2
Shailendrasingh. The said injury was in bandaged condition.
Though PW 13 Shantaram Kardile was not sure as to whether he
could identify the accused before the Court after lapse of two years,
however, he assured the court that he will try to identify them.
There is a court noting that PW 13 Shantaram Kardile thereafter
has correctly identified both the accused by pointing out towards
them by taking their names.
21-t. PW 13 Shantaram Kardile along with another panch
Santosh Kadam were again called on 02.01.2008. At that time, one
Mr. Bora came in police station for examination of the laptop which
was seized by the police in connection with the case. PW 13
Shantaram Kardile has deposed that one laptop in black coloured
rexine bag was brought before them. It was Toshiba make blue
colour laptop. The said laptop was operated with the help of
charger and some prints of emails were taken out. PW 13
Shantaram Kardile further deposed that there was a card of Tata
Indicom mobile. The said sim card was tested by inserting it in the
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handset. Panchanama regarding the entire process was prepared.
The said panchanama marked at Exhibit 146 bears his signature
and the signature of other pancha Santosh Kadam. The printouts of
the email are exhibited collectively at Exhibit 147. PW 13
Shantaram Kardile has further identified the rexine bag and the
laptop muddemal article 86 collectively. There is nothing in the
cross-examination to disbelieve the evidence of PW 13 Shantaram
Kardile.
21-u. The prosecution has thereafter examined the said
computer expert Atul Ratilal Bora as PW 14. He is B.E. Electronics
and doing business of computer hardware maintenance at
Ahmednagar. He is an expert in computer hardware maintenance.
On 02.01.2008, he was called at Kotwali police station by PW 60
P.I. Tukaram Vahile (I.O.) and in presence of the pancha PW 13
Shantaram Kardile and another pancha Santosh Kadam, the sealed
bag containing laptop was opened. There was also a charger in the
bag. PW 14 Atul Bora has thus connected the charger to the laptop
and opened the laptop. The laptop was of Toshiba company and it
contained Window XP version of Microsoft company. The
configuration of the contents revealed that the said Window XP
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version was registered in the name of Classic Wheels in Microsoft
company. He also found a PCMCI card of Tata Co. inserted in the
laptop as modem for internet and e-mail connection. PW 14 Atul
Bora has opened the email data and found that it contained few
emails in the in-box of user by name R.N. Munot. A printer was
also there. He connected the printer to the laptop and took out
prints of those emails which were there in the in-box of user R.N.
Munot. He has handed over the said printouts to the police. The
said printouts are marked at Exhibit 147 collectively. He has further
made it clear that since the Microsoft Window XP version was
registered in the name of Classic Wheels by the Microsoft company,
the said registered owner was authorized user of the said software.
21-v. We have also carefully gone through the said printouts
marked at Exhibit 147 collectively. The said printouts corroborate
the evidence of PW 14 Atul Bora. It further appears from the cross-
examination of PW 14 Atul Bora that there were in all 78 emails
stored in the said laptop but he was unable to tell the nature of
communication in all those emails. According to PW 14 Atul Bora,
password is required for having access to any email I.D. and he has
no reason to know the email I.D. and password of the members of
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the Munot family. The defence therefore questioned the printouts
Exhibit 147 as really taken from the emails pending in the in-box of
the said muddemal article 86 laptop. However, the trial court has
rightly observed that the Muddemal article 86 laptop was owned
by Munot family and it was found in the bag of accused no. 6
Balendrasingh after the incident. The said fact remains as it is even
though the emails and the printouts thereof for certain reason are
kept out of consideration.
21-w. We have already discussed in the foregoing paragraphs
that accused nos. 2 to 8 were brought from Katni G.R.P. Railway
Police Station and Laur Police Station, Madhya Pradesh by
obtaining transit remand to Kotwali Police Station and they were
arrested in connection with the present crime thereafter. They were
produced before the concerned Magistrate and their police custody
remand was obtained. During the course of investigation,
particularly when they were in police custody remand, a
memorandum statement of accused no. 2 Shailendrasingh, accused
no.3 Shivkumar, accused no. 4 Rajeshsingh and accused no. 5
Sandip Patel came to be recorded and further the recovery
panchanama of recovery of different articles at their instance were
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also drawn.
21-x. The prosecution has examined PW 16 Ashok Gaikwad
to prove the memorandum panchanama Exhibit 161 and recovery
thereof by drawing memorandum panchanama Exhibit 162. PW 16
Ashok Gaikwad has deposed that accused no. 2 Shailendrasingh
has made a disclosure statement before him and the another
pancha Sachin Pathade to show the place from where he had
purchased the scarf used at the time of the alleged incident.
Accordingly memorandum panchanama Exhibit 161 was prepared
to that effect. It bears signature of both the panchas, PW 60 P.I.
Tukaram Vahile (I.O.) and the accused. Thereafter, face of the
accused Shailendrasingh was covered and along with police staff,
they went to the destination in a police jeep. The jeep was taken
towards Asha Talkies as directed by accused no.2 Shailendrasingh.
Thereafter, accused no. 2 Shailendrasingh asked to stop the vehicle
near one Krushna Hotel. He has pointed out one stall from where
he has purchased the scarfs. The owner of the said stall has
disclosed his name as Balesh Jain. Though PW 16 Ashok Gaikwad
has not correctly identified accused no.2 before the court, however,
the trial court has rightly justified the same for the reason that the
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said panchanama Exhibits 161 and 162 were drawn on 08.12.2007
and the evidence of PW 16 Ashok Gaikwad was recorded on
25.07.2011 i.e. more than three and half years after drawing of the
panchanama. It is further brought on record that the said witness
Balesh Jain, whose statement was recorded during the course of
investigation was not found during trial and his whereabouts also
could not be traced out.
21-y. On 08.12.2007, accused no. 3 Shivkumar made a
statement and shown his willingness to show the shop, namely
Dhanashri Medical Store from where he has purchased the
adhesive tape. The said shop was owned by one Rajendra
Bhandari. The prosecution has examined PW 15 Mahesh Sancheti
to prove the memorandum statement of accused no.3 Shivkumar
marked at Exhibit 158 and the disclosure panchanama of
Dhanashri Medical Store Exhibit 159. Accused no. 3 Shivkumar has
taken the pancha witnesses and the police staff towards S.T. stand
and pointed towards one shop namely Dhanashri Medical and
General Store. A person sitting in the shop informed his name as
Rajendra Bhandari and accordingly panchanama Exhibit 159 came
to be prepared. He has also identified accused no. 3 Shivkumar
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before the court.
21-z. The prosecution has also examined PW 19 Rajendra
Bhandari who has fully supported the said fact of visit of police
along with panchas and accused no.3. Shivkumar to his shop. He
was questioned about the sale of adhesive tapes after drawing
panchanama. After recollecting the earlier incident, PW 19
Rajendra Bhandari has deposed that two persons have purchased
two small adhesive tapes first and after five minutes, they again
came to his shop, purchased bigger one having large width by
replacing small tapes by paying additional amount. It was of
Johnson and Johnson company for which he had issued bill to
those persons. PW 19 Rajendra Bhandari also gave a photocopy of
the said bill to the police. It is true that there was no specific reason
for PW 19 Rajendra Bhandari to remember accused persons who
had purchased adhesive tapes from his shop. It appears that he has
identified them for the reason that accused no. 3 Shivkumar has
purchased small tapes and thereafter replaced it by purchasing
large adhesive tapes by paying additional amount. PW 19 Rajendra
Bhandari was also subjected to cross-examination regarding
identification parade. However, the same is already discussed in the
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foregoing paras. The muddemal article 5 reel of Johnson &
Johnson tape was found on the spot of incident.
21-aa. On 09.12.2007, accused no. 3 Shivkumar has again
given a statement that he is ready to produce the knife used in
commission of the offence which was thrown by him near old
bridge on railway station road. Accordingly memorandum of his
statement Exhibit 168 was prepared in presence of two pancha
witnesses. Thereafter, accused no. 3 Shivkumar led the police and
the panchas to railway station road and produced one blood
stained knife from thorny bushes near old bridge which came to be
seized under panchanama Exhibit 169 in presence of the said two
pancha witnesses. The prosecution has examined PW 18 Harshad
Bhandari, who was the pancha witness. In his presence and
another pancha Kishor Zawar, accused no. 3 Shivkumar gave a
statement showing his ready and willingness to produce the
weapon used in commission of the offence and accordingly,
memorandum panchanama Exhibit 168 was drawn. It bears
signatures of both the panchas and also that of accused no. 3
Shivkumar. PW 18 Harshad Bhandari has further deposed that
accused no.3 then took them to the spot. After crossing Sina river
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bridge, accused no. 3 asked to stop the vehicle and stated that he
had thrown the weapon in right side direction. Thereafter, accused
no.3 Shivkumar went at some distance, brought one knife from the
thorny bushes and handed over the same to the police. The said
knife was having blakish red colour blood stains on pointed side. It
was having grip of black colour, sharp edge on one side and width
of 1 inch and length of 15 to 16 cm. PW 18 Harshad Bhandari has
identified accused no.3 Shivkumar before the court. Further, there
is no material reason to disbelieve his version. Thus, from the
evidence of PW 60 P.I. Tukaram Vahile (I.O.) and PW 18 Harshad
Bhandari and the contents of the memorandum panchanama
Exhibit 168 and recovery panchanama Exhibit 169, it is clear that
at the instance of accused no. 3 Shivkumar, the knife was recovered
from the place which was exclusively within his knowledge.
21-ab. On 08.12.2007, accused no.4 Rajeshsingh while in
custody, has made a disclosure statement in presence of two
panchas showing his ready and willingness to show the place from
where he has purchased the knives. The said panchanama is
Exhibit 143. The prosecution has examined PW 12 Indrajit Jadhor,
pancha witness to prove memorandum statement Exhibit 143 of
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accused no.4 Rajeshsingh and the panchanama of the shop Exhibit
143/1. Accused no.4 Rajeshsingh took the panchas and the police
with PW 60 P.I. Tukaram Vahile (I.O.) towards Ghas Galli and
pointed out one utensils shop named as Surekh Sangam. Accused
no.4 Rajeshshingh has further deposed that he along with accused
no. 5 Sandip Patel purchased two knives from the said shop on
02.12.2007 and pointed towards the person sitting towards left
hand side counter of the shop who sold the knives to them. The
said person has disclosed his name as Rajendra Patole. PW 12
Indrajit Jadhor identified accused no. 4 Rajeshsingh before the
Court. Even though nothing has been seized from the shop,
however, the said information which was disclosed by accused no.
4 Rajeshsingh further gets confirmation by showing the said shop
which was exclusively within his knowledge.
21-ac. The prosecution has also examined PW 26 Rajendra
Patole who is the salesman in said Surekh Sangam shop. PW 26
Rajendra Patole is working in the said shop since 25 years prior to
his examination before the Court. PW 26 Rajendra Patole has
deposed that on 02.12.2007, two persons came in the said shop in
between 2.00 to 2.30 p.m. and in Hindi language informed to him
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that they want to purchase knife. Accordingly, PW 26 Rajendra
Patole had shown them knives of all sizes and they had purchased
one small and one big knife for Rs.105/- and Rs.138/- respectively.
After payment, PW 26 Rajendra Patole handed over said knives and
the bill in a plastic bag. He has also deposed about description of
the clothes and age of the said persons. PW 26 Rajendra Patole
further deposed that on 08.12.2007, police called him at Kotwali
Police Station and shown one knife kept in transparent plastic bag
and it was sealed. PW 26 Rajendra Patole has identified the said
knife. On 09.12.2007, he was again called in the police station and
this time, police showed him another small knife kept in
transparent plastic bag duly sealed which was also identified by
him. This witness has identified muddemal article nos. 9 and 166
respectively being the same knives which were sold by him to the
said persons and which were identified by him in the police station
on later dates. Though PW 26 Rajendra Patole had no reason to
remember a customer who has purchased the articles on a
particular date, however, he had a reason to remember the sale of
two knives which is before six days of the incident by the persons
speaking in Hindi language. We have already discussed the
evidence about identification of accused no.4 Rajeshsingh in the
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identification parade.
21-ad. On 09.12.2007, accused no. 5 Sandip Patel gave a
memorandum statement in presence of two panchas and shown his
ready and willingness to produce his blood stained clothes i.e.
shirt, full pant, scarf, another pant having Nokia make phone in its
pocket, some documents in the name of Munot family, which came
to recovered at his instance from the roof of one room situated
near urinal, which were kept in a plastic bag. The prosecution has
examined PW 17 Ravi Abbot as pancha witness on the
memorandum statement Exhibit 164 and the recovery panchanama
Exhibit 165 of the blood stained clothes and other articles at the
instance of accused no.5 Sandip Patel. PW 17 Ravi Abbot has
deposed that on 07.12.2007, accused no. 5 Sandip Patel has made
the disclosure statement in his presence and the another pancha
witness and accordingly, memorandum statement was prepared
vide Exhibit 164 which bears signatures of both the panchas, the
police and also accused no. 5 Sandip Patel. PW 17 Ravi Abbot has
further deposed that accused no. 5 Sandip Patel then took the
police and both the panchas towards railway station and asked
them to stop the vehicle near barricades. Accused no. 5 Sandip
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Patel then went to right side where there was a toilet under
construction and stated that the said clothes are kept on the upper
side of said toilet. Then accused no. 5 Sandip Patel climbed over
the said toilet and took one bag containing clothes and other
articles. The said bag was containing one shirt having full sleeves
and strips, one scarf, one bush shirt having yellow colour checks,
Nokia make mobile phone, ash colour pant, one polythene bag
containing documents such as invoice of Videocon company,
passport of Ramesh Munot, photocopy of passport of Chitra Munot,
bill of Kiran Photographer, secret code document, bank locker
receipt, some counter foils of bank and other papers. All those
articles i.e. clothes and documents came to be seized under
panchanama in presence of the pancha witness and the police. PW
17 Ravi Abbot has also identified accused no. 5 Sandip Patel before
the Court. There is nothing material in his cross-examination to
disbelieve his testimony. It appears that the said under-construction
urinal by the side of the railway track was exclusively within the
knowledge of accused no.5 Sandip Patel and the articles recovered
at his instance link him to the crime in question.
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Identification parade of the accused persons on 18.12.2007.
22. PW 45 Bhaskar Bhos, Special Judicial Magistrate has
conducted the identification parade of accused on 18.12.2007. PW
4 Sumitkumar Tiwari, PW 19 Rajendra Bhandari, PW 24 Sachin
Dalvi, PW 26 Rajendra Patole and PW 27 Anita Kamble have
identified the accused persons in the identification parade. On
18.12.2007, PW 45 Bhaskar Bhos conducted the identification
parade in Sub-jail, Ahmednagar. He had called 10 other persons
from jail having same age group and height.
a. PW 45 Bhaskar Bhos has deposed that PW 19 Rajendra
Bhandari has identified accused no.1 Raju Sampat Darode and
accused no. 3 Shivkumar Saket being the persons who have
purchased adhesive tapes from his shop.
b. PW 45 Bhaskar Bhos has further deposed about the
identification of accused persons by PW 26 Rajendra Patole. He has
identified accused no.4 Rajeshsingh Thakur and accused no. 5
Sandip Patel. They have purchased knives from his shop.
c. PW 45 Bhaskar Bhos has further deposed that PW 24 Sachin
Dalvi has identified accused no. 5 Sandip Patel and accused no. 6
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Balendrasingh Thakur regarding their presence on the date and
place of incident.
d. PW 45 Bhaskar Bhos has further deposed that PW 27 Anita
Kamble has identified accused no. 4 Rajeshsingh Thakur and
accused no. 5 Sandip Patel. They were the said two unknown
persons seen by her near the room of PW 4 Sumitkumar Tiwari
talking with accused no. 3 Shivkumar Saket when she had been to
said room to hand over khari pocket to said Sangita.
e. PW 45 has further deposed that PW 4 Sumitkumar Tiwari has
identified accused no.4 Rajeshsingh Thakur, accused no.5 Sandip
Patel and accused no.6 Balendrasingh Thakur.
The identification of the accused persons by the witnesses
during the identification parade is summarized and shown below in
tabular form:
Sr. Name and Identified by whom PW particulars (identified in
No. number of (name of witness) No. relation to)
accused
1. Raju Sampat Rajendra Zumbarlal 19 purchase of adhesive
Darode Bhandari tape from his medical
accused no.1 store a/w accused no. 3
CriAppeal 64-2014+.odt
2. Shivkumar Rajendra Zumbarlal 19 purchase of adhesive
Ramsundar Saket Bhandari tape from his medical
accused no. 3 store a/w accused no.1
3. Rajeshsingh Rajendra Laxman 26 purchase of knife from
Hariharsingh Patole his shop a/w accused
Thakur no.5
accused no. 4
Anita Dadu Kamble 27 visit to bungalow to
meet Shivkumar
(accused no.3) on the
day of incident
Sumitkumar 4 visit to bungalow
Shrishamji Tiwari two/three times on the
day of incident a/w
accused nos. 5 and 6
4. Sandip Rajendra Rajendra Laxman 26 purchase of knife from
Patel Patole his shop a/w accused
accused no. 5 no.4
Sachin Vijay Dalvi 24 presence on the date
and place of incident
Anita Dadu Kamble 27 visit to bungalow to
meet Shivkumar
(accused no.3) on the
day of incident a/w
accused nos. 4 and 6
Sumitkumar 4 visit to bungalow
Shrishamji Tiwari two/three times on the
day of incident
5. Balendrasingh Sachin Vijay Dalvi 24 presence on the date
Shivmurtisingh and place of incident
Thakur Sumitkumar 4 visit to bungalow
accused no. 6 Shrishamji Tiwari two/three times on the
day of incident a/w
accused nos. 4 and 5
23. Though we notice some deficiencies in recording the
identification parade panchanama, however, those deficiencies are
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not material to disbelieve the entire evidence about the
identification parade. In the instant case, identification of the
accused is an important piece of evidence and a link to establish
the guilt of the accused. The prosecution has drawn memorandum
of identification parade Exhibits 70 and 172.
Identification of muddemal property.
24-a. There are various articles seized at the instance of
accused nos. 2 to 8 as discussed in detail in the foregoing
paragraphs. Those articles also include gold and silver ornaments,
wrist watches, laptop etc. The prosecution has examined PW 41
Swity Gundecha, PW 55 Suvarna Sunit Munot and PW 57 Sunit
Ramesh Munot who are members of the family of deceased
Ramesh and deceased Chitra Munot. The prosecution has also
examined PW 45 Special Judicial Magistrate Bhaskar Bhos who has
conducted the said identification of the muddemal property.
24-b. PW 60 P.I. Tukaram Vahile (I.O.) has sent a letter on
27.12.2007 to PW 45 Bhaskar Bhos, Special Judicial Magistrate for
conducting identification of the seized muddemal property.
CriAppeal 64-2014+.odt
Accordingly, on 30.12.2007, PW 45 Bhaskar Bhos, Special Judicial
Magistrate conducted identification of the said articles. For
identification of the muddemal property, PW 60 P.I. Tukaram Vahile
(I.O.) has brought similar wrist watches from Titan showroom by
giving letter (Exh. 351) and similar gold ornaments from Shrenik
Shah, Jeweler by giving him letter (Exhibit 352). He has also called
for similar bags from Riyaz Shaikh by giving him letter (Exhibit
353). The muddemal wrist watches were already sealed and kept
in bags. Thus, those seals were opened in presence of two panchas
and then, those were handed over to PW 45 Bhaskar Bhos, Special
Judicial Magistrate for identification. After identification, all the
muddemal articles and similar articles provided to him were
returned by PW 45 Bhaskar Bhose, Special Judicial Magistrate.
24-c. PW 41 Swity Gundecha is the daughter of deceased
Ramesh and Chitra Munot. In December 2007, she was staying in
Seoul, South Korea. PW 41 Swity Gundecha was staying at Seoul
along with her husband, daughter Sakshi and son Suyash. In the
month of May 2007, her father deceased Ramesh Munot and her
mother deceased Chitra Munot had gone to Seoul and stayed with
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her for 8 to 10 days. She has deposed that while leaving Seoul after
8 to 10 days of their stay, she had gifted 1000 Won in Korean
currency to her father deceased Ramesh. After the incident, her
maternal uncle informed about it to her husband and accordingly,
she had reached to Ahmednagar where she came to know that her
parents were killed in the incident of dacoity of gold ornaments,
cash amount and other articles. PW 41 Swity Gundecha has
identified the following muddemal articles shown to her in the said
test identification of the muddemal property:
Article 129 Korean currency note
Article 154 pair of gold tops
Article 79 gold panchali garland and pair of tops
Article 91 pair of gold tops
Article 146 silver anklet
Article 156 pair of gold tops
Article 152 gold tops
Article 141 two pairs of gold bangles
Article 106 two nose rings
Article 138 two pairs of plastic bangles having gold
embroidery
Article 139 three pairs of plastic bangles having gold
embroidery
Article 134 one pair of gold bangles
Article 135 one gold bangle
Article 130 one garland of white pearls with gold pendant
CriAppeal 64-2014+.odt
Article 142 two pairs of gold bangles
Article 157 gold bindiya with chain
Article 159 one pair of gold tops
Article 136 two pairs of red plastic bangles with gold
embroidery
Article 158 one pair of gold tops
Article 104 ladies wrist watch of Titan make
Article 105 ladies wrist watch of Titan make
The memorandum of test identification of the muddemal
property is marked at Exhibit 249 which bears her signature.
24-d. PW 41 Swity Gundecha though has admitted that there are
no special identification marks on the gold ornaments and there is
no special feature on the gold ornaments to point out that those
were belonging to her parents, however, she has also explained that
she has identified the same as those articles were in the regular use
of her parents. Though she was subjected to cross-examination at
length as to from which shop those ornaments were purchased etc.,
however, we find no reason for the daughter, who has settled
abroad, to tell the details about purchase of those ornaments from
which shop and the date thereof. Even though she has admitted
that there is no special identification mark on the Korean currency
note, however, the said currency note muddemal article 129 was
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seized from accused no. 2 Shailendrasingh with other muddemal
articles. Accused no. 2 Shailendrasingh has failed to explain about
his possession, nor has he claimed the currency notes as that of his
own.
24-e. The prosecution has examined PW 55 Suvarna Munot
who is daughter in law of deceased Ramesh and Chitra Munot. On
29.12.2007, she had received a letter Exhibit 248 from Kotwali
Police Station for identification of the stolen articles. Accordingly,
on 30.12.2007, she herself, her husband (PW 57) and sister-in-law
Swity (PW 41) went to Kotwali Police Station. The said
identification of articles was conducted by PW 45 Bhaskar Bhos,
Special Judicial Magistrate and he had asked them to sit in
separate rooms. PW 55 Suvarna has identified the Panchali garland
muddemal article 79. She has deposed that thereafter she herself
and PW 41 Swity were called for identification of ornaments and
they have identified many pairs of tops, bangles, string of gold and
black bids, pearls garland, wrist watches of deceased Chitra Munot.
Further PW Suvarna along with her husband PW 57 Sunit were
also called for identification of the ornaments and both of them
have identified bracelet and armlet, many gold chains, many gold
CriAppeal 64-2014+.odt
ear rings and wrist watches of her father-in-law deceased Ramesh
Munot. They have also jointly identified the gold rings, pearl
bangles, five pairs of gold bangles of deceased Chitra Munot. PW
55 Suvarna alongwith her husband PW 57 Sunit Munot and sister-
in-law PW 41 Swity Gundecha have also identified cash amount
having seals of Merchant Bank, laptop of deceased Ramesh Munot,
three mobile phones, ration card, debit card, cheque book of
deceased Chitra Munot, Korean currency note of 1000 Won and 50
US $. PW 55 Suvarna has also deposed that she knows accused no.
1 Raju Darode, accused no. 3 Shivkumar, accused no. 2
Shailendrasingh, accused no. 4 Rajeshsingh and acquitted accused
no. 7 Sangita. In order to summarize, the articles identified by PW
55 Suvarna are shown below in tabular form:
Article 79 gold panchali garland
Article 129 Korean currency note
Article 12 to 16 empty boxes of gold ornaments
Article 89 to 92 small gold bangles, gold chain and pair of gold
tops
Article 96, 177 mobile phones
& 171
Article 146 silver anklet
Article 80, 121 wrist watches
Article 153, 154 three pairs of gold tops
CriAppeal 64-2014+.odt
& 155
Article 156 pair of gold tops
Article 151 three gold wires
Article 152 gold tops
Article 141 two pairs of gold bangles
Article 143 gold locket
Article 106 two nose rings
Article 138 two pairs of plastic bangles having gold
embroidery
Article 139 three pairs of plastic bangles having gold
embroidery
Article 134 one pair of gold bangles
Article 135 one gold bangle
Article 130 one garland of white pearls with gold pendant
Article 132, 133 three pairs of bangles having pearls
Article 147, 148 nose rings
Article 149 string of black bids
Article 157 gold bindiya with chain
Article 159 one pair of gold tops
Article 136 two pairs of red plastic bangles with gold
embroidery
Article 158 one pair of gold tops
Article 104 ladies wrist watch of Titan make
Article 105 ladies writ watch of Titan make
Article 165 50 US $
Article 160, 161 Ration card Visa card
Article 127 Cheque book of Merchant Bank
24-f. PW 55 Suvarna was also subjected to similar cross-
examination about special identification marks, however, we find
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nothing in her cross-examination to disbelieve her evidence so far
as identification of the property i.e. gold ornaments, wrist watches
and certain documents as referred above.
24-g. PW 57 Sunit, who is son of deceased Ramesh and
Chitra Munot, has deposed that accused no. 3 Shivkumar Saket
was working as watchman for the day duty on the bungalow on the
day of incident and PW 4 Sumitkumar Tiwari was the watchman of
night duty on 02.12.2007. He had gone to Chandrapur for
marriage ceremony with his wife PW 55 Suvarna and daughter
Surabhi. He has also identified the said articles along with his wife
PW 55 Suvarna. He alone has identified two bags-muddemal
articles 150 and 125 having name as Classic Wheel and Done Hill
respectively. He has signed the identification panchanama Exhibit
249 prepared by PW 45 Bhaskar Bhos, Special Judicial Magistrate.
PW 57 Sunit has also identified the laptop of Toshiba make and
also shown to police the data and information of his company so
also the mail box contained in it by opening it. He has also log in
muddemal laptop before the Court by opening system information
so also system of Sumesh Industries installed in it. PW 57 Sunit has
also identified three mobile handsets, one was of his
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father deceased Ramesh Munot, second one was of his mother
deceased Chitra Munot and the third one was of the office. He has
also identified the debit card and cheque book of his mother, ration
card, Korean currency note so also the cash amount. He has also
given IMEI numbers of muddemal articles 119 and 96 i.e. the
mobile handsets to police at that time. There is nothing in his cross-
examination to disbelieve his evidence on this material point.
24-h. The prosecution has also examined PW 42 Indrakant
Desale who is the pancha witness of the panchanama of
identification of the property. He has deposed in detail about the
articles kept for identification and the manner in which those
articles were arranged etc. He has deposed that the panchanama
was prepared while handing over muddemal articles to PW 45
Bhaskar Bhos, Special Judicial Magistrate. Though learned Judge of
the trial court has observed about his demeanor during his cross-
examination like giving evasive answers to some questions put to
him, we find no reason to disbelieve the said witness who is
somewhat formal in nature.
CriAppeal 64-2014+.odt
24-i. PW 45 Bhaskar Bhos, Special Judicial Magistrate has
deposed in detail about conducting identification of the muddemal
property. He has explained that there were 14 different kinds of
gold and silver ornaments, two ladies wrist watches of Titan make,
two gents wrist watches of Titan and Rado make, two canvass bags
of black colour having written on it Classic Wheel and Dun Hill etc.
He has also explained that three witnesses were present for
identifying said articles along with two pancha witnesses. All those
articles were kept on one table covered with cloth. PW 45 Bhaskar
Bhos has further deposed that a string of Panchali bids was kept
with similar five strings on table and PW 55 Suvarna was called for
identification purpose. She has identified her string as it was of her
daily use. In the same fashion, 14 times different witnesses were
called and they have identified different 14 articles and those
articles were kept aside. PW 45 Bhaskar Bhos has further deposed
that alongwith Rado and Titan make gents wrist watches, similar
watches of same company were kept for identification. PW 55
Suvarna and PW 57 Sunit have correctly identified said wrist
watches. In the same manner, they have also identified two ladies
wrist watches from the watches kept along with those wrist
watches. PW 45 Bhaskar Bhos has deposed that PW 57 Sunit has
CriAppeal 64-2014+.odt
also identified the canvass bags even though similar bags were kept
near those bags. PW 45 Bhaskar Bhos has thereafter prepared
detailed identification panchanama Exhibit 249 under his signature
and obtained signatures of panchas thereon. He has also prepared
memorandum of identification of property. He has obtained
signatures of goldsmith and other person on the said
memorandum. PW 45 Bhaskar Bhos has deposed that he has
followed the provisions about identification of property given in the
Criminal Manual so also the guidelines issued by the Hon'ble High
Court in this regard. We find no reason to disbelieve the
identification of property conducted by this witness. Furthermore,
some of the muddemal properties exclusively belong to Munot
family and even identification of those properties could be an
empty formality. The accused persons have offered no explanation
for possession of those articles which can be identified even by the
naked eyes that those articles belong to the Munot family.
24-j. PW 35 Sagar Munot is the elder son of deceased
Ramesh Munot. He was in the United States of America since 1999
to 2011 for higher education and service with his wife Anjali. PW
35 Sagar has deposed about business and affairs of his father
CriAppeal 64-2014+.odt
deceased Ramesh. He has deposed that in the last week of July
2007, he had come to India for one month and at that time, he had
gifted one laptop to his father deceased Ramesh. He had purchased
it in U.S.A. for 700 US $. It was Toshiba make model no. S129. He
has also installed certain software in the said laptop for the use of
his father by deleting his data. PW 35 Sagar has identified
muddemal article 86 laptop before the Court. There is nothing in
the cross-examination to disbelieve his version. There is no reason
to doubt about his identification of the said laptop before the court.
The said laptop came to be seized from the possession of accused
no.6 Balendrasingh who has neither claimed ownership of the said
laptop nor challenged the ownership.
24-k. PW 30 Nitin Bhandari was Branch Manager in Chitale
Road Branch of the Ahmednagar Merchants Bank at the relevant
time. He was knowing deceased Ramesh and Chitra being
customers of his bank. He has deposed that deceased Chitra was
having saving account no. 30/3987 in the said bank and the
cheque book of 10 cheques was issued to her. He has further
deposed on the basis of the statement of account Exhibit 211 that
five cheques were passed from the cheque book of deceased Chitra
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and payment of one cheque was stopped. He has identified
muddemal article no. 127 being the cheque book issued to
deceased Chitra Munot by his bank. He was subjected to cross-
examination about his special knowledge about the said cheque
book. However, we find no reason to disbelieve him because he has
mainly deposed on the basis of the record available with the bank
and particularly by referring the statement of account of deceased
Chitra Munot. The said cheque book was found in possession of
accused no.2 Shailendrasingh when he was arrested at Satna in
Madhya Pradesh on the very next day of incident of dacoity which
took place at Ahmednagar. Accused no.2 Shailendrasingh has not
tendered any explanation for possession of the cheque book at the
particular time.
24-l. PW 34 Mahavir Gandhi was the cashier in Chitale Road
Branch of Ahmednagar Merchants Bank at the relevant time. He
has produced photocopies of account opening form and specimen
signature card of Chitra Munot at Exh. 219 and 220 respectively.
On 18.01.2008, he was called at Kotwali Police Station by PW 60
P.I. Tukaram Vahile (I.O.) and shown one packet of Rs.50/- having
slip of his signature and seal of his bank. PW 34 Mahavir Gandhi
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has identified his signature and the seal of the bank thereon.
24-m. PW 31 Mahendra Firodiya was serving as Clerk cum
cashier in Dal Mandai Branch of Merchants Bank at the relevant
time. He has deposed that on the bundle of currency notes
collected in his bank, there were labels of signatures of cashier and
seal of the Bank. He was shown nine bundles of currency notes of
Rs.50/- and those were bearing labels of his signature.
24-n. PW 33 Vivek Suryawanshi was also working in Market
Yard Branch of Ahmednagar Merchants Co-operative Bank Ltd. at
the relevant time. Two persons namely Sandip Lodha and Subhash
Barde were working with him. They used to prepare bundle of 100
notes, stitch it with label and seal and signature of cashier and
Branch Manager. He has further deposed that on 17.01.2008,
police had shown him a box containing cash amount and there
were his signatures and seal of his bank on seven bundles and the
remaining eight bundles were having signatures of Mr. Barde and
other bundles were from Dal Mandai Branch. His evidence is
helpful for the purpose of knowing the procedure adopted for
counting and sealing notes with seal and signatures of Branch
CriAppeal 64-2014+.odt
Manager and Cashier.
24-o. PW 36 Sandip Chaudhari was working as Branch
Manager in Axix Bank, Branch Ahmednagar. He has deposed that
there was current account of Sumit Industries in the said bank and
a debit card having 16 digits was issued to deceased Chitra Munot
being the Proprietor of said firm. PW 36 Sandip Chaudhari has
identified muddemal article 161 debit card which was issued to
deceased Chitra Munot on the said current account. He has also
produced in all 17 documents which were submitted by her to the
Bank at the time of opening current account in the name of said
firm. It appears from the cross-examination that he has deposed
about the said facts on the basis of the record available with the
bank. There is no reason to disbelieve him. So far as muddemal
article 161 debit card is concerned, undoubtedly the same was
issued to deceased Chitra Munot for her current account. The said
debit card article 161 came to be seized from the physical custody
of accused no. 5 Sandip Patel when he was arrested at Satna in
Madhya Pradesh on the next day of the incident.
CriAppeal 64-2014+.odt
24-p. PW 43 Macchindra Jagtap is the employee of Sushant
Industries. He has purchased Nokia make mobile handset for
Rs.1,000/- with a particular sim card. He has used the said mobile
phone and sim card for 10 to 15 days only, and thereafter sold the
said mobile to accused no.3 Shivkumar for Rs.1,200/-. He was
knowing accused no. 3 being employee of the same company. He
has also identified accused no.3 Shivkumar before the Court.
Call Detail Record
25. The prosecution has examined PW 48 Datta Angre,
Nodal Officer in Idea Cellular Company, to prove the call detail
record and the ownership of the sim cards. He has referred various
annexures received from the Additional Superintendent of Police
Ahmednagar and Superintendent of Police, Ahmednagar for
furnishing names and addresses of certain mobile phone owners
and he has furnished various information as per demand vide
Exhibits 278 to 291. The said information furnished by PW 48
Datta Angre can be summarized as follows:
i) Exhibit 278 -
Information about the mobile number 9850846757 in the
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name of Tushar S. Munot, mobile number 9881522882 in the name
of Shivaji S. Potkule and mobile number 9822664836 in the name
of Anil G. Kadam.
ii) Exhibits 279, 280 and 281 -
Call details of four mobile numbers viz. 9921196356,
9922664836, 9881780651 and 9850285996 for the period form
01.11.2007 to 04.12.2007.
iii) Exhibits 282 and 283 -
Call details of two mobile numbers viz. 9822034191 and
9850627711 for the period from 01.12.2007 to 04.12.2007.
iv) Exhibits 284 and 285 -
Information about names and addresses of four mobile phone
holders of 9921196356, 9922664836, 9881780651 and
9850285996.
v) Exhibits 286 and 287 -
Information about names and addresses two mobile phone
holders of 9922571598 and 988178065 and its call details for the
period from 01.11.2007 to 04.12.2007
CriAppeal 64-2014+.odt
vi) Exhibits 288 and 289 -
Information about one sim number bearing no.
89912204000002283368.
vii) Exhibits 290 and 291 -
Call details and names of holders of mobile phone no.
9850846757 for the period from 01.11.2007 to 05.12.2007.
We have carefully gone through all these Exhibits. So far as
Exhibit 285 is concerned, as per the subscriber's details produced,
the mobile phone number 9922664836 is in the name of accused
no.1 Raju Darode. There is also information in Exhibit 285 that two
mobile numbers viz. 9921196356 and 9881780651 are in the name
of PW 39 Santosh Jeurkar. PW 39 Santosh Jeurkar has given his
two photographs and photocopy of his driving licence for obtaining
the sim card to accused no. 4 Rajeshsingh Thakur and accused no.8
Shivbhour. Accordingly, they have obtained two sim cards in his
name by signing those documents. Mobile no. 9850285996 is
standing in the name of PW 43 Macchindra Jagtap. PW 43
Macchinddra Jagtap was working as Box Machine Operator in
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Sushant Industries and he has purchased a Nokia make mobile
handset. He has sold the said mobile handset to accused no. 3
Shivkumar Saket.
It appears from Exhibit 289 that the sim number belongs to
the cellular number 9850627711. Its subscriber is Sachin Munot
and the said mobile phone was in the name of Kushal S. Munot.
On perusal of the call details, it reveals that accused no. 3
Shivkumar Saket, accused no. 5 Sandip Patel and accused no. 1
Raju Darode remained in contact with each other prior to the date
of incident, on the date of incident and after the date of incident.
C.A. Reports
26. Further, during the course of investigation, various
seized articles have been sent for chemical analysis along with
covering letter Exhibit 176. The CA reports vide Exhibits 76/1 to
76/10 are extremely important and relevant. The CA reports
Exhibits 76/1 to 76/7 speak about the blood group of accused
persons named therein, whereas, Exhibit 76/8 speaks about the
blood group of deceased Chitra Munot as blood group "B". Exhibit
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76/9 is about the blood group of deceased Ramesh Munot as blood
group "O".
CA report Exhibit 76/10 is about the grouping the blood
found on various seized articles and sample of blood stains taken
from the spot of incident i.e. bed room, staircase, kitchen etc.
CA report Exhibit 76/11 is about the DNA extracted from the
blood stains dictated on Exhibit 32-sando banyan of deceased
Ramesh Munot, Exhibit 36-blouse of deceased Chitra Munot,
Exhibit 42-Full pant of accused no.1 Raju Darode, Exhibit 43-full
bush shirt of accused no.1 Raju Darode, Exhibit 44-full bush shirt
of accused no.3 Shivkumar Saket, Exhibit 45-full jean pant of
accused no.3 Shivkumar Saket, Exhibit 48-full sleeves jerkin of
accused no.4 Rajeshsingh Thakur, Exhibit 49-full bush shirt of
accused no.4 Rajeshsingh Thakur, Exhibit 53-knife produced by
accused no.3 Shivkumar Saket, Exhibit 54-full bush shirt of accused
no.5 Sandip Patel, Exhibit 56-full open shirt of accused no.5 Sandit
Patel, Exhibit 57-full pant of accused no.5 Sandip Patel and Exhibit
58-full pant of accused no.2 Shailendrasingh Thakur. The trial
court has shown the same in the tabular form which we also
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reproduced herein below to understand the DNA results more
appropriately and conveniently.
Exh.8 Blood stained knife No DNA profile
Exh.32 Sando banyan of Ramesh Munot Matching with 43, 44, 57
Exh.36 Blouse of Chitra Munot Matching with 56
Exh.42 Full pant of accused no.1 Raju No matching DNA
Exh.43 Full bush shirt of accused no.1 Matching with 32, 44, 57
Exh.44 Full bush shirt of accused no.3 Matching with 32, 43, 57
Exh.45 Full jean pant of accused no.3 Matching with 48, 58
Exh.48 Full sleeves jerkin of accused no.4 Matching with 45, 58
Exh.49 Full bush shirt of accused no.4 No interpretable DNA
Exh.53 Knife produced by accused no.3 Matching with 54
Exh.54 Full bush shirt of accused no.5 Matching with 53
Exh.56 Full open shirt of accused no.5 Matching with 36
Exh.57 Full pant of accused no.5 Matching with 32, 43, 44
Exh.58 Full pant of accused no.2 Matching with 45, 48
CriAppeal 64-2014+.odt
The matching of DNA profile can be well understood from
the aforesaid tabular form, for example, the DNA profile obtained
from the blood samples Exhibit 32 (sando banyan of deceased
Ramesh Munot) is matching with Exhibit 43 (full bush shirt of
accused no.1 Raju Darode), Exhibit 44 (full bush shirt of accused
no.3 Shivkumar Saket) and Exhibit 57 (full pant of accused no.5
Sandip Patel). The CA report from Exhibit 76/1 to 76/10, including
the DNA matching, unerringly point out the involvement of the
appellant-accused persons in commission of the crime. It is to be
noted here that none of the accused persons has offered any
explanation for the same.
27. We appreciate the efforts taken by the investigating agency in
this case, particularly PW 60 P.I. Tukaram Vahile (I.O.) and his
team. The pre-incident circumstances, the actual incident and the
post incident circumstances connecting the accused persons with
crime can be summarized in the following manner to avoid lengthy
discussion again :
CriAppeal 64-2014+.odt
The main incident occurred on 02.12.2007 at about 9.30 to 10.30 p.m. [dacoity
of muddemal property worth Rs.9,00,000/- in the residential bungalow, namely,
"Basant", Maniknagar, Chandan Estate, Ahmednagar with murder of the
occupants of the bungalow i.e. deceased Ramesh Munot and deceased Chitra
Munot.
Pre incident activities of accused Dog squad led police from blood
persons. stained knife towards Ahmednagar
Railway Station platform
Purchase of railway tickets at 8.00
p.m. to 11.00 p.m. for leaving the Stolen mobile of PW Sumitkumar
place immediately after the incident had shown tower location at
for going to their respective Bhusawal on 03.12.2007 at 5.00
villages. a.m.
Purchase of adhesive tapes. Accused 2 to 6 came to be arrested
at Katni G.P.R. Railway Police
Station and Laur Police Station,
Purchase of scarfs. Madhya Pradesh
Purchase of knives. Accused no. 1 came to be arrested
at Ahmednagar Railway Station
Accused nos. 1 to 6 were seen near
said bungalow of deceased Ramesh Accused persons are identified by
Munot just before happening of the various witnesses with regard to
incident and some of them were their pre-incident and post-incident
seen even on earlier day of the activities.
incident near watchman room.
Identification of muddemal
I properties by the son, daughter and
Accused no. 5 Sandip Patel falsely
daughter-in-law of deceased
told his name as "Subhash" to
Ramesh and deceased Chitra
watchman PW 4 Sumitkumar to
Munot.
enter the bungalow on the night of
02.12.2007
Identification of muddemal
properties by various witnesses
including the bank officials, shop
owners, employees/servants of
Munot family
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28. It is true that simply on recovery of the stolen articles, no
inference can be drawn that the person in possession of the stolen
articles is guilty of the offence of murder and dacoity. In order to
attract the presumption in Illustration (a) of Section 114 of the
Evidence Act, the nature of the evidence is required to be
considered. It is also well settled that no fix time limit can be laid
down to determine whether possession is recent or otherwise and
each case must be judged on its own facts. In the instant case, if we
consider the list of the stolen articles and the accused persons
apprehended with the stolen articles within a short time of 48
hours or less, it is not possible that those articles are likely to be
passed from hand to hand. The appellants-accused were found in
possession of the incriminating articles soon after the crime. Thus,
the presumption under Section 114 Illustration (a) could be safely
drawn and the recovery of those articles within a short span after
the incident from the possession of the accused unerringly point
out their involvement in commission of the crime. We are aware
that if the accused cannot account for his possession, merely on the
basis of Illustration to Section 114 of the Evidence Act the burden
of proof is not shifted on the accused. However, in the instant case,
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there is no explanation at all from the accused about possession of
all those incriminating articles when unquestionably certain articles
are belonging to the Munot family. In the instant case, the
presumption as contemplated under Section 114 Illustration (a) is
not merely drawn on the basis of possession of the articles
belonging to the deceased by the accused persons immediately
after the murder and dacoity, however, there is other connecting
evidence in the form of identification, the pre-incident and post-
incident activities of the appellants-accused persons, the accused
were found in the vicinity of the scene of murder pre-incident, even
one of the accused person has stated his false name while entering
into the bungalow from the picket gate and he has been duly
identified, recovery of the weapons, adhesive tapes, scarfs etc., the
CA reports and matching of the DNA profile. There are connecting
links unerringly pointing out involvement of the appellants-accused
in commission of dacoity with murder.
29. There is no reason to doubt the identification of the
muddemal property such as Korean currency note, various gold and
silver ornaments with certain peculiar design works and
embroidery, cheque book, US dollar, laptop etc.
CriAppeal 64-2014+.odt
30. In the case of Limbaji and others v. State of Maharashtra ,
reported in AIR 2002 SC 491, the Supreme Court has elaborately
discussed the presumption under Section 114 of the Evidence Act.
In para III and V(i), the Supreme Court has made the following
observations:
"III. As the presumption under Section 114 of
Evidence Act looms large in this case a brief
discussion on the basic postulates and evidentiary
implications of presumption of fact may not be out
of place. A presumption of fact is a type of
circumstantial evidence which in the absence of
direct evidence becomes a valuable tool in the hands
of the Court to reach the truth without unduly
diluting the presumption in favour of the innocence
of the accused which is the foundation of our
Criminal Law. It is an inference of fact drawn from
another proved fact taking due note of common
experience and common course of events. Holmes J.
in Greer v. US [245 USR 559] remarked "a
presumption upon a matter of fact, when it is not
merely a disguise for some other principle, means
that common experience shows the fact to be so
CriAppeal 64-2014+.odt
generally true that courts may notice the truth".
Section 114 of the Evidence Act shows the way to
the Court in its endeavour to discern the truth and to
arrive at a finding with reasonable certainty. Under
the Indian Evidence Act, the guiding rules for
drawing the presumption are set out broadly in the
section. Section 114 enjoins: "the Court may
presume the existence of any fact which it thinks
likely to have happened, regard being had to the
common course of natural events, human conduct
and public and private business, in their relation to
facts of the particular case." Having due regard to
the germane considerations set out in the section,
certain presumptions which the Court can draw are
illustratively set out. It is obvious that they are not
exhaustive or comprehensive. The presumption
under Section 114 is, of course, rebuttable. When
once the presumption is drawn, the duty of
producing evidence to the contra so as to rebut the
presumption is cast on the party who is subjected to
the rigour of that presumption. Before drawing the
presumption as to the existence of a fact on which
there is no direct evidence, the facts of the particular
case should remain uppermost in the mind of the
Judge. These facts should be looked into from the
angle of common sense, common experience of men
and matters and then a conscious decision has to be
arrived at whether to draw the presumption or not.
CriAppeal 64-2014+.odt
Among the illustrations appended to Section 114 of
the Evidence Act, the very first one is what concerns
us in the present case: "The Court may presume -
that a man who is in possession of stolen goods soon
after the theft, is either the thief or has received the
goods knowing them to be stolen, unless he can
account for his possession."
Taylor in his treatise on The Law of Evidence has this
to say on the nature and scope of the presumption
similar to the one contained in Section 114 (a) :
"The possession of stolen property recently after the
commission of a theft, is prima facie evidence that
the possessor was either the thief, or the receiver,
according to the other circumstances of the case, and
this presumption, when unexplained, either by direct
evidence, or by the character and habits of the
possessor, or otherwise, is usually regarded by the
jury as conclusive. The question of what amounts to
recent possession varies according to whether the
stolen article is or is not calculated to pass readily
from hand to hand.
This presumption which in all cases is one of fact
rather than of law, is occasionally so strong as to
render unnecessary any direct proof of what is called
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the corpus delicti. Thus, to borrow an apt illustration
from Maule J., if a man were to go into the London
Docks quite sober, and shortly afterwards were
found very drunk, staggering out of one of the
cellars, in which above a million gallons of wine are
stored, "I think," says the learned Judge - and most
persons will probably agree with him - "that this
would be reasonable evidence that the man had
stolen some of the wine in the cellar, though no
proof were given that any particular vat had been
broached, and that any wine had actually been
missed."
V(i). The question then is, applying illustration (a)
to Section 114, whether the presumption should be
that the accused stole the goods or later on received
them knowing them to be stolen. Though the trial
court observed that the accused "might have robbed"
the ornaments of the deceased after he was
murdered by someone else, it found them guilty of
the offence under Section 411, IPC only which is
apparently self-contradictory. On an overall
consideration of the circumstances established, it is
reasonable to presume that the accused committed
the theft of the articles from the person of the
deceased after causing bodily harm to the deceased.
The fact that within a short time after the murder of
the deceased, the appellants came into possession of
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the ornaments removed from the person of the
deceased and the 1st accused offered one of the
stolen articles for sale on the very day and the
further fact that the other articles were found
secreted to the knowledge of appellants coupled
with non-accountal of the possession of the articles
and the failure to give even a plausible explanation
vis-à-vis the incriminating circumstances would go to
show that they were not merely the receivers of
stolen articles from another source but they
themselves removed them from the person of the
deceased. Thus, the presumption to be drawn under
illustration (a) to Section 114 should not be
confined to their involvement in the offence of
receiving the stolen property under Section 411 but
on the facts of the case, it can safely go beyond that.
In this context, the three-Judge Bench decision of
this Court in Sanwath Khan Vs. State of Rajasthan, is
quite apposite. While holding that from the solitary
circumstance of unexplained recovery of the articles
belonging to the deceased from the houses of the
accused, the presumption of commission of offence
of murder cannot be raised, the Court nevertheless
held that they can be convicted of theft under
Section 380 I.P.C. which was one of the charges
against the accused. Another decision of relevance is
Shivappa v. State of Mysore [1970 (1) SCC 487].
That was a case in which bundles of cloth being
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carried in carts were looted by twenty persons and
the accused were charged for dacoity. Searches
which took place within a few days after the incident
led to the recovery of large quantities of stolen
clothes from their houses. On these facts the Court
drew the presumption that the persons with whom
the items of clothes were found were the dacoits
themselves and the conviction was sustained.
Hidayatullah, C.J. speaking for the three Judge
Bench observed that "It is only when accused cannot
be connected with the crime except by reason of
possession of the fruits of crime that the
presumption may be drawn." Drawing support from
these decisions too, we are of the view that by
invoking the presumption under Section 114 read
with Illustration (a) thereto, the appellants must, as
a first step, be held to have committed theft of
ornaments which were removed from the person of
the deceased and that they are not mere receivers of
stolen property. Theft is a component of the offence
of robbery and theft becomes robbery, if, in order to
the committing of theft, the offender causes or
attempts to cause death, hurt or wrongful restraint
or instils fear thereof. Whether, on the facts, they
shall be convicted for robbery is yet another aspect
which we shall advert to a little later. We are only
pointing out presently that if we stop at applying
illustration (a) to Section 114, the accused can be
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safely convicted for the offence of theft rather than
for the offence under S.411. What is the position if
we look beyond illustration (a) is another aspect."
In this case, the Supreme Court has also dealt with the
question as to whether the presumption under Section 114 should
be extended to the preparation of the offence of robbery or murder
or both. The Supreme Court has considered as to whether the
presumption could be further stretched to find the appellants guilty
of the gravest offence of murder. The Supreme Court has referred
the various divergent views of the Court on this point. The
Supreme Court has also referred the view expressed by the three-
Judge Bench of the Supreme Court in Sanwath Khan and Another
v. State of Rajasthan (AIR 1956 SC 54 : 1956 CriLJ 150), wherein
the three-Judge Bench did not consider it proper to extend the
presumption beyond theft in absence of any other incriminating
circumstances excepting possession of the articles belonging to the
deceased. In this case, the Supreme Court has observed that while
drawing the presumption under Section 114 on the basis of recent
possession of belongings of the victim with the accused, the Court
must adopt a cautious approach and have an assurance from all
angles that the accused not merely committed theft or robbery but
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also killed the victim.
31. In the case of Baiju v. State of Madhya Pradesh , reported in
AIR 1978 SC 522, the Supreme Court referred the view expressed
in the case of Wasim Khan v. The State of Uttar Pradesh (AIR 1956
SC 400), wherein it is held that recent and unexplained possession
of stolen articles can well be taken to be presumptive evidence of
the charge of murder as well. The Supreme Court has further
referred the similar view which has been taken in Alisher v. State of
Uttar Pradesh (AIR 1974 SC 1830). The Supreme Court in the case
of Baiju (supra), in para 14 has thus made the following
observations:
"14. As has been stated, the prosecution has
succeeded in proving beyond any doubt that the
commission of the murders and the robbery formed
part of one transaction, and the recent and
unexplained possession of the stolen property by the
appellant justified the presumption that it was he,
and no one else who had committed the murders
and the robbery. It will be recalled that the offences
were committed on the night intervening January
20 and 21, 1975, and the stolen property was
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recovered from the house of the appellant or at his
instance on January 28, 1975. The appellant was
given an opportunity to explain his possession, as
well as his conduct in decoying Smt. Lakhpatiya and
the other persons who died at his hand, but he was
unable to do so. The question whether a
presumption should be drawn under illustration (a)
of S.114 of the Evidence Act is a matter which
depends on the evidence and the circumstances of
each case. Thus, the nature of the stolen article, the
manner of its acquisition by the owner, the nature of
the evidence about its identification, the manner in
which it was dealt with by the appellant, the place
and the circumstances of its recovery, the length of
the intervening period, the ability or otherwise of
the appellant to explain his possession, are factors
which have to be taken into consideration in
arriving at a decision. We have made a mention of
the facts and circumstances bearing on these points
and we have no doubt that there was ample
justification for reaching the inevitable conclusion
that it was the appellant and no one else who had
committed the four murders and the robbery. In the
face of the overwhelming evidence on which
reliance has been placed by the High Court, it is
futile to argue that the murders could not have been
committed by a single person. As has been stated,
there is satisfactory evidence on the record to show
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that the dead bodies of Ramdayal and Smt.
Fulkunwar were found at two different places near
the "nala" so that it cannot be said that they were
murdered together. As regards Smt. Ghagwanti and
Rambakas, the evidence on the record shows that
they were murdered while they were asleep in the
house, and there is no reason why a single person
could not have committed their murders also."
32. In the case of A. Deivendran v. State of Tamil Nadu, reported
in AIR 1998 SC 2821, the Supreme Court has discussed about the
presumption under Section 114 with Illustration (a) as to when can
be drawn and in para 20 of the judgment, has made the following
observations:
20. .......Whether a presumption under S. 114
illustration (a) of the Evidence Act should be drawn
in a given situation is a matter which depends on the
evidence and the circumstances of the cases. The
nature of the stolen articles, the nature of its
identification by the owner, the place and the
circumstances of its recovery, the intervening period
between the date of occurrence and the date of
recovery, the explanation of the persons concerned
from whom the recovery is made are all factors
CriAppeal 64-2014+.odt
which are to be taken into consideration in arriving
at a decision. In the case of Baijur v. State of Madhya
Pradesh, AIR 1978 SC 522, this Court had held that
the prosecution having succeeded in proving beyond
any doubt that the commission of the murders and
robbery formed part of one transaction and the
recent and unexplained possession of the stolen
property by the appellant justified the presumption
that it was he and no one else, who had committed
the murders and the robbery. In the said case the
offence had been committed on the night of January
20 and 21, 1975 and the stolen property was
recovered from the house of the appellant on
January 28, 1975,"
33. Learned Judge of the trial court in para 408 of the Judgment
has mentioned the circumstances connecting the appellants-
accused with the crime. We deem it appropriate to reproduce the
same as follows:
1. Accused nos. 1 to 6 were last seen near bungalow of
Ramesh Munot just before happening of incident.
2. Accused nos. 5 and 6 were seen near watchman
room on earlier day of incident, by Anita Kamble
(PW 27) with accused no.3.
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3. Accused nos. 5 and 6 were also seen by Sumitkumar
(PW4) on earlier day of incident, near his room.
4. Dog squad lead police from blood stained knife
towards platform of A'nagar railway station.
5. Mobile phone stolen from Sumitkumar shows tower
location at Bhusawal at 5.00 a.m. on 3.12.2007.
6. accused nos. 2 to 7 have taken railway tickets
between 8.00 to 11.00 p.m. for going to their village.
7. copy of ration card of Ramesh Munot found in the
bag of accused no.2 Shailendrasingh. Money order
coupons of 2004-2005 bear address of Basant
bungalow.
8. Visa card, cheque book of Chitra Munot and paper
slip on currency notes were from A'nagar bank was
found with accused.
9. N-72 mobile phone and Titan make wrist watch of
Ramesh Munot was recovered at the instance of
accused no.1.
10. Mobile phone of Chitra Munot (article no.171) was
found with accused no.5 Sandip Patel at Satna.
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11. Mobile phone of office (article no.96) was found
with accused no. 7 at Katani, Madhya Pradesh.
12. Mobile phone (article no. 83) of Sumitkumar (PW 4)
was found with accused no.6 Balendrasingh.
13. Gold and silver ornaments, huge cash amount,
laptop etc. was found in possession of accused at
Katani and Satna in Madhya Pradesh.
34. The evidence of PW 4 Sumitkumar Tiwari is extremely
important. PW 27 Anita Kamble has deposed about the presence of
accused no. 4 Rajeshsingh, accused no. 5 Sandip with accused no.
3 Shivkumar on the earlier date of the incident and she has
identified accused no.4 Rajeshsingh and accused no.5 Sandip
during the course of identification parade. There is evidence of
purchasing of adhesive tape from the shop and also the weapons i.e
the knives. PW 19 Rajendra Bhandari and PW 26 Rajendra Patole
have also identified the accused persons during the identification
parade. There is clear evidence that the appellants-accused have
hatched conspiracy to enter into the residential house of deceased
Ramesh Munot for committing dacoity. They have tied the hands
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and legs of PW 4 Sumitkumar Tiwari and also affixed adhesive tape
on his mouth. They have looted the ornaments, cash and other
articles and also committed murder of deceased Ramesh Munot
and deceased Chitra Munot. It further appears that after the
incident, accused no.1 Raju Darode has left for Shrirampur and
accused nos. 2 to 6 directly proceeded towards Ahmednagar
Railway Station for going to their native places in the State of
Madhya Pradesh. There is evidence about buying tickets after
reaching at the Railway Station and changing blood-stained clothes
by some of the accused persons. They have escaped from
Ahmednagar by boarding Pune Patna express at midnight hours. It
is due to the efforts taken by the Investigating Officer under the
guidance of the then Superintendent of Police, Ahmednagar, by
sending wireless communication to the Satna Police and Katani
Police, that accused nos. 2 and 5 were apprehended with
muddemal articles while proceeding to their village Satna,
whereas, accused nos. 3, 4, 6, 7 and 8 were apprehended with
muddemal articles when the train reached at Katani Railway
Station. Thereafter, accused nos. 2 to 8 were brought under the
transit warrant along with muddemal articles at Ahmednagar.
Further, at the instance of accused no.2 Shailendrasingh Thakur,
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accused no.3 Shivkumar Saket, accused no.4 Rajeshsingh Thakur
and accused no.5 Sandip Patel the weapon i.e. knife used in
commision of offence, the blood stained clothes etc. came to be
seized under panchanama in presence of the panchas. It is already
discussed in the foregoing paras that the muddemal articles seized
from the possession of accused nos. 2 to 8 at Katani and Satna in
Madhya Pradesh, which includes the gold and silver ornaments and
the documents, are belonging to the Munot family and the
members of the Munot family have identified those muddemal
articles. At the instance of accused no.1 Raju Darode, the cash
amount and the mobile phone of deceased Ramesh Munot came to
be recovered at village Gondhvani. There are muddemal articles
such as gold and silver ornaments, laptop, wrist watches and the
documents such as ration card, visa card, cheque book, mobile
phones etc. and also the cash amount bearing labels of
Ahmednagar Merchants' Bank, which unerringly point out the
involvement of the appellants-accused in commission of the crime.
It further appears from the CA reports that none of the accused
persons is having blood group "B" and blood group of deceased
Chitra Munot was "B". The clothes of accused no.4 Rajeshsingh
were found stained with blood of group "B". There is further
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evidence in the form of the DNA report Exhibit 76/11 and the
matching of the blood on clothes. The prosecution has proved
beyond doubt the dacoity with murder of deceased Ramesh and
Chitra Munot by the appellants-accused nos. 1 to 6. The trial court
has thus rightly held accused nos. 1 to 6 guilty of the offence
punishable under Sections 396, 397 of IPC, Section 452 r/w 34 of
IPC, Section 412, Section 396 r/w 120-B of IPC and Section 408 of
IPC.
35. In view of the discussion above, we are of the considered
opinion that the prosecution has proved its case beyond all
reasonable doubts. The prosecution has established the chain of
circumstantial evidence. On the basis of the established
circumstances, the prosecution has fully established the guilt of the
appellants-accused persons. The circumstances in the form of
recovery of articles coupled with the other connecting
circumstances are having conclusive nature and tendency. We find
no fault in the judgment and order passed by the trial court
convicting thereby the appellants-accused persons under various
sections of the Indian Penal Code. The learned Judge of the trial
court has rightly found the appellants-accused guilty of the offence
CriAppeal 64-2014+.odt
punishable under Sections 396, 397, 412, 452, 120-B r/w 34 of
IPC.
Criminal Appeal No. 503 of 2013 filed by the State for
enhancement of the sentence.
36. We have recorded the submissions of the learned APP for
enhancement of the sentence against the appellants-accused and
also the submissions of learned counsel for the appellants-accused
in the foregoing paras 5 and 7 respectively, of the judgment.
36-a. Learned APP has submitted that the respondents-accused
persons have committed brutal murder of two innocent persons in
diabolic manner. Deceased Chitra Munot was found tied to a chair
in sitting position and her throat was slit with a sharp weapon. It
shocked the conscience of the common man. Learned APP has
vehemently submitted that the appellants-accused persons were in
the employment of the deceased persons for some time. Accused
No. 3 Shivkumar Ramsundar Saket was working as watchman
during day time in the said 'Basant' bungalow of deceased Ramesh
Munot at Ahmednagar and his duty hours were from 8.00 a.m. to
8.00 p.m. Learned APP has submitted that the respondents-accused
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persons have committed brutal murder of two helpless and hapless
persons out of lust for money and ornaments. It was a pre-planned,
well executed crime. It involves extreme brutality. Learned APP has
submitted that a pre-planned, calculated, cold blooded murder has
always been regarded as one of the aggravated kind. Learned APP
has submitted that if a murder is "diabolically conceived and
cruelly executed", it would justify imposition of the death penalty
on the murderer. Learned APP has submitted that the persons
previously in employment of the Munot family as watchmen and
driver have committed pre-planned murders of their employer
deceased Ramesh Munot and his wife deceased Chitra Munot. The
nature of the instant crime is cruel, diabolic, brutal and gruesome.
The Crime has resulted in public abhorrence and shocked the
judicial conscience as well the conscience of the society. It was a
premeditated unprovoked crime. Learned APP has submitted that
thus, the young age of the respondents-accused persons may not be
relevant, so also the possibility of their reformation or
rehabilitation. Learned APP has submitted that there is no
alternative but to impose death sentence even after weightage is
given to the mitigating circumstances.
CriAppeal 64-2014+.odt
36-b. Learned counsel appearing for the respondents-accused
persons has submitted that there are mitigating circumstances,
particularly the age and the possibility of reformation of the
respondents-accused persons. There is no reason to solely look into
the factum of double murder to award capital punishment. There
are no antecedents and they are not likely to commit criminal acts
of violence as would constitute a continuing thereat to the society.
Learned counsel has submitted that it is well settled that the
sentencing discretion is to be exercised judicially on well
recognized principles after balancing of the aggravated and
mitigating circumstances of the crime. By "well recognized
principles" the Court obviously meant the principles crystallized by
judicial decisions illustrating as to what were regarded as
aggravated or mitigating circumstances in those cases. Thus, the
application of those principles is now to be guided by the
paramount beacons of legislative policy discernible from Sections
354(3) and 235(2) of Cr.P.C., namely, (1) the extreme penalty can
be inflicted only in gravest cases of extreme culpability; (2) in
making choice of the sentence, in addition to the circumstances of
the offence, due regard must be paid to the circumstances of the
offender. Learned counsel for the respondents-accused persons has
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submitted that the average age of the respondents-accused is
between 19 to 25 years. Thus, the possibility of reformation exists
due to their young age with no criminal background. Learned
counsel submits that this is not a rarest of rare case wherein death
punishment is to be awarded. The trial court has therefore not
awarded the capital punishment to the respondents-accused
persons by giving weightage to the mitigating circumstances.
37. In the case of Bachan Singh v. State of Punjab (supra) relied
upon by learned APP, the Constitution Bench of the Supreme Court,
while answering the reference, dealt with the issue of
constitutional validity of death punishment for murder provided
under Section 302 of IPC and the sentencing procedure embodied
in Sub-section (3) of Section 354 of the Criminal Procedure Code,
1973. The Supreme Court has referred the observations and the
ratio laid down in the case of Jagmohan Sing v. State of U.P.
[(1973) 1 SCC 20], wherein it is held that the sentencing discretion
is to be exercised judicially on well recognized principles, after
balancing all the aggravating and mitigating circumstances of the
crime. It is observed that "well recognized principles" means the
principles crystallized by judicial decisions illustrating as to what
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were regarded as aggravating or mitigating circumstances in those
cases. It is further observed that the only effect is that the
application of those principles is now to be guided by the
paramount beacons of legislative policy discernible from Sections
354(3) and 235(2), namely, (1) the extreme penalty can be
inflicted only in gravest cases of extreme culpability; (2) in making
choice of the sentence, in addition to the circumstances of the
offence, due regard must be paid to the circumstances of the
offender, also.
In para 198 and 199 of the judgment, the Supreme Court has
first discussed about the aggravating circumstances which, in the
absence of any mitigating circumstances, have been regarded as an
indication for imposition of extreme penalty. Pre-planned,
calculated, cold blooded murder has always been regarded as one
of the aggravated kind. The Supreme Court has again referred the
view taken in Jagmohan's case (supra) that if the murder is
"diabolically conceived and cruelly executed", it would justify the
imposition of the death penalty on the murderer. In para 201, the
Supreme Court has observed that for making choice of the
punishment or for ascertaining the existence or absence of "special
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reasons" in that context, the court must pay due regard both to the
crime and the criminal. In the same para, the Supreme Court has
further observed that "it is not desirable to consider the
circumstances of the crime and the circumstances of the criminal in
two separate watertight compartments. In a sense, to kill is to be
cruel and therefore all murders are cruel. But such cruelty may
vary in its degree of culpability and it is only when a culpability
assumes the proportion of extreme depravity that "special reasons"
can legitimately be said to exist.
In para 206, the Supreme Court has considered the
suggestions given by Dr. Chitale on mitigating factors. Those are as
follows:
"206. Dr. Chitale has suggested these mitigating factors:
Mitigating circumstances:- In the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances:-
(1) That the offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
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(3) The probability that the accused would not commit
criminal acts of violence as would constitute a
continuing threat to society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the
accused does not satisfy the conditions 3 and 4
above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he
was mentally defective and that the said defect
impaired his capacity to appreciate the criminality
of his conduct."
In para 209, the Supreme Court has made the concluding
remarks which are as follows:
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"209. There are numerous other circumstances
justifying the passing of the lighter sentence; as
there are countervailing circumstances of
aggravation. "We cannot obviously feed into a
judicial computer all such situations since they are
astrological imponderables in an imperfect and
undulating society." Nonetheless, it cannot be over-
emphasised that the scope and concept of mitigating
factors in the area of death penalty must receive a
liberal and expansive construction by the courts in
accord with the sentencing policy writ large in
Section 354(3). Judges should never be bloodthirsty.
Hanging of murderers has never been too good for
them. Facts and figures, albeit incomplete, furnished
by the Union of India, show that in the past courts
have inflicted the extreme penalty with extreme
infrequency - a fact which attests to the caution and
compassion which they have always brought to bear
on the exercise of their sentencing discretion in so
grave a matter. It is, therefore, imperative to voice
the concern that courts, aided by the broad
illustrative guide-lines indicated by us, will
discharge the onerous function with evermore
scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in
Section 354(3), viz., that for persons convicted of
murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern
CriAppeal 64-2014+.odt
for the dignity of human life postulates resistance to
taking a life through law's instrumentality. That
ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably
foreclosed."
37-a. In the case of Machhi Singh and others v. State of Punjab
(supra) relied upon by learned APP for the State, the Supreme
Court after referring the guidelines in Bachan Singh (supra), in
para 39, has made the following observations:
"39. In order to apply these guidelines inter alia the
following questions may be asked and answered :
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate
and calls for a death sentence?
(b) Are the circumstances of the crime such that there
is no alternative but to impose death sentence even
after according maximum weightage to the
mitigating circumstances which speak in favour of
the offender ?"
37-b. In the case of Dhananjoy Chatterjee v. State of West Bengal
(supra), relied upon by learned APP for the State, in para 14 and
CriAppeal 64-2014+.odt
15, the Supreme Court has made the following observations:
"14. In recent years, the rising crime rate-
particularly violent crime against women has made
the criminal sentencing by the courts a subject of
concern. Today there are admitted disparities. Some
criminals get very harsh sentences while many
receive grossly different sentence for an essentially
equivalent crime and a shockingly large number
even go unpunished, thereby encouraging the
criminal and in the ultimate making justice suffer by
weakening the system's credibility.
Of course, it is not possible to lay down any cut and
dry formula relating to imposition of sentence but
the object of sentencing should be to see that the
crime does not go unpunished and the victim of
crime as also the society has the satisfaction that
justice has been done to it. In imposing sentences, in
the absence of specific legislation, Judges must
consider variety of factors and after considering all
those factors and taking an over-all view of the
situation, impose sentence which they consider to
be an appropriate one. Aggravating factors cannot
be ignored and similarly mitigating circumstances
have also to be taken into consideration.
CriAppeal 64-2014+.odt
15. In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the
crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner
in which the courts respond to the society's cry for
justice against the criminals. Justice demands that
courts should impose punishment fitting to the
crime so that the courts reflect public abhorrence of
the crime. The courts must not only keep in view
the rights of the criminal but also the rights of the
victim of crime and the society at large while
considering imposition of appropriate punishment."
37-c. In the case of Shankar Kisanrao Khade v. State of
Maharashtra (supra), relied upon by both sides, the Supreme Court
in para 102 [as reported in MANU/SC/0476/ 2013] has laid down
the broad principles for confirming the death penalty and in para
103 [as reported in MANU/SC/0476/ 2013], the Supreme Court
has referred the cases wherein the young age of the accused was
not taken into consideration or held irrelevant. Para 102 and 103
read as under:
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"102. The principal reasons for confirming the death
penalty in the above cases include (1) the cruel,
diabolic, brutal, depraved and gruesome nature of
the crime (Jumman Khan, Dhananjoy Chatterjee,
Laxman Naik, Kamta Tewari, Nirmal Singh, Jai
Kumar, Satish, Bantu, Ankush Maruti Shinde, B.A.
Umesh, Mohd. Mannan and Rajendra Pralhadrao
Wasnik); (2) the crime results in public abhorrence,
shocks the judicial conscience or the conscience of
society or the community (Dhananjoy Chatterjee,
Jai Kumar, Ankush Maruti Shinde and Mohd.
Mannan); (3) the reform or rehabilitation of the
convict is not likely or that he would be a menace to
society (Jai Kumar, B.A. Umesh and Mohd.
Mannan); (4) the victims were defenceless
(Dhananjoy Chatterjee, Laxman Naik, Kamta
Tewari, Ankush Maruti Shinde, Mohd. Mannan and
Rajendra Pralhadrao Wasnik); (5) the crime was
either unprovoked or that it was premeditated
(Dhananjoy Chatterjee, Laxman Naik, Kamta
Tewari, Nirmal Singh, Jai Kumar, Ankush Maruti
Shinde, B.A. Umesh and Mohd. Mannan) and in
three cases the antecedents or the prior history of
the convict was taken into consideration (Shivu,
B.A. Umesh and Rajendra Pralhadrao Wasnik).
103. However, what is more significant is that there
are cases where the factors taken into consideration
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for commuting the death penalty were given a go-
bye in cases and the death penalty was confirmed.
The young age of the accused was not taken into
consideration or held irrelevant in Dhananjoy
Chatterjee aged about 27 years, Jai Kumar aged
about 22 years and Shivu and Anr. aged about 20
and 22 years while it was given importance in Amit
v. State of Maharashtra, Rahul, Santosh Kumar
Singh, Rameshbhai Chandubhai Rathod (2) and
Amit v. State of Uttar Pradesh. The possibility of
reformation or rehabilitation was ruled out, without
any expert evidence, in Jai Kumar, B.A. Umesh and
Mohd. Mannan in much the same manner, without
any expert evidence, as the benefit thereof was
given in Nirmal Singh, Mohd. Chaman, Raju, Bantu,
Surendra Pal Shivbalakpal, Rahul and Amit v. State
of Uttar Pradesh. Acquittal or life sentence awarded
by the High Court was considered not good enough
reason to convert the death sentence in Satish,
Ankush Maruti Shinde and B.A. Umesh but it was
good enough in State of Tamil Nadu v. Suresh, State
of Maharashtra v. Suresh, Bharat Fakira Dhiwar and
Santosh Kumar Singh. Even though the crime was
not premeditated, the death penalty was confirmed
in Molai notwithstanding the view expressed in
Akhtar, Raju and Amrit Singh. Circumstantial
evidence was held not to be a 'mitigating' factor in
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Jumman Khan, Kamta Tewari, Molai and Shivaji but
it was so held in Bishnu Prasad Sinha."
37-d. In the case of Khushwinder Singh v. State of Punjab (supra)
relied upon by learned APP for the State, the Supreme Court in
para 14 has made the following observations:
"14. Now, so far as the capital punishment imposed
by the learned Sessions Court and confirmed by the
High Court is concerned, at the outset, it is required
to be noted that, as such, the learned counsel
appearing on behalf of the Accused is not in a
position to point out any mitigating circumstance
which warrants commutation of death sentence to
the life imprisonment. In the present case, the
Accused has killed six innocent persons, out of
which two were minors - below 10 years of age.
Almost, all the family members of PW-5 were done
to death in a diabolical and dastardly manner.
Fortunately, or unfortunately, only one person of the
family of PW-5 could survive. In the present case,
the accused has killed six innocent persons in a pre-
planned manner. The convict meticulously planned
the time. He first kidnapped three persons by way of
deception and took them to the canal and after
drugging them with sleeping tablets, pushed them
CriAppeal 64-2014+.odt
in the canal at a mid-night to ensure that the crime
is not detected. That, thereafter he killed another
three persons in the second stage/instalment.
Therefore, considering the law laid down by this
Court in the case of Mukesh v. State (NCT of Delhi)
MANU/SC/0575/2017 : (2017) 6 SCC 1, the case
would fall in the category of the "rarest of rare case"
warranting death sentence/capital punishment. The
aggravating circumstances are in favour of the
prosecution and against the Accused. Therefore,
striking a balance between the aggravating and
mitigating circumstances, we are of the opinion that
the aggravating circumstance would tilt the balance
in favour of the capital punishment. In the facts and
circumstances of the case, we are of the opinion that
there is no alternative punishment suitable, except
the death sentence. The crime is committed with
extremist brutality and the collective conscious of
the society would be shocked. Therefore, we are of
the opinion that the capital punishment/death
sentence imposed by the learned Sessions Court and
confirmed by the High Court does not warrant any
interference by this Court. Therefore, we confirm
the death sentence of the accused imposed by the
learned Sessions Court and confirmed by the High
Court while convicting the Appellant for the offence
punishable under Section 302 Indian Penal Code."
CriAppeal 64-2014+.odt
38. In State of U.P. v. Bhoora (AIR 1998 SC 254 : 1997 (9)
Supreme 319), relied upon by learned counsel for the respondents-
accused persons, the Supreme Court has set aside the acquittal of
respondents-accused and convicted them under Section 396 r/w 34
of IPC. Further, the Supreme Court while restoring the judgment
and order passed by the trial court, has not restored the order of
sentence. In para 8 of the judgment, the Supreme Court has
observed that in view of long lapse of time and also because of the
facts and circumstances of the case, ends of justice would be met if
both the respondents are ordered to suffer imprisonment for life.
38-a. In the case of Anshad and others v. State of Karnataka
[(1994) 4 SCC 381] relied upon by learned counsel for the
respondents-accused persons, in para 18 and 19, the Supreme
Court has made the following observations:
"18. We have perused the reasons given by the High
Court for awarding the sentence of death. Apart
from referring to some of the "aggravating
circumstances" like the betrayal of confidence of the
deceased by A-1 and murder for committing robbery
on a helpless widow, the High Court only referred to
some of the judgments of this Court and then almost
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abruptly came to the conclusion that the sentence of
death was called for in the instant case. We notice
with regret that the High Court did not take into
account any of the mitigating circumstances at all.
Courts are expected to exhibit sensitiveness in the
matter of award of sentence particularly, the
sentence of death because life once lost cannot be
brought back. This Court has in cases more than one
emphasised that for determining the proper
sentence in a case like this while the court should
take into account the aggravating circumstances it
should not overlook or ignore the mitigating
circumstances. The manner in which the crime was
committed, the weapons used and the brutality or
the lack of it are some of the considerations which
must be present to the mind of the court. Of course,
the High Court has the power and jurisdiction to
enhance the sentence of life imprisonment to death
but that power has to be sparingly exercised, in
"rarest of the rare cases" for 'special reasons' to be
recorded. The courts must be alive to the legislative
changes introduced in 1973 through Section 354(3)
CrPC. Death sentence, being an exception to the
general rule, should be awarded in the "rarest of the
rare cases" for 'special reasons' to be recorded after
balancing the aggravating and the mitigating
circumstances, in the facts and circumstances of a
given case. The number of persons murdered is a
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consideration but that is not the only consideration
for imposing death penalty unless the case falls in
the category of "rarest of the rare cases". The courts
must keep in view the nature of the crime, the
brutality with which it was executed, the antecedent
of the criminal, the weapons used etc. It is neither
possible nor desirable to catalogue all such factors
and they depend upon case to case.
19. Some of the mitigating circumstances which
have been pointed out by learned counsel for the
appellants and of which notice was not taken by the
High Court are:
(a) that A-1 to A-3 had gone to the house of the
deceased empty handed and did not even pick up
any weapon like knife etc. from the house of the
deceased nor used any such weapon while
committing the murder of the two deceased;
(b) that they did not do away with the lives of
PW 2 and PW 3, the only two eyewitnesses and
thereby screen the offence completely;
(c) that there is nothing on the record to show
that they acted in an exceptionally brutal or cruel
manner while committing murder. The medical
evidence shows only abrasions and scratches on the
CriAppeal 64-2014+.odt
body of the deceased caused by nails frictions;
(d) there is nothing on the record to show as to
which out of the three appellants strangulated
which of the two deceased;
(e) the manner in which the crime was committed
and the jewellery removed from the person of the
deceased would also show that A-1 to A-3 took off
the jewellery from the person of the deceased by
removing the same rather than tore it off from their
bodies causing any injuries to the deceased."
38-b. In Ramesh v. State of Rajasthan [Criminal Appeal No. 1236
of 2006 along with connected criminal appeals decided by the
Supreme Court by judgment dated 22.02.2011] relied upon by
learned counsel for the respondents-accused, the Supreme Court
after referring the view expressed in Bachan Sing (supra) and
Santosh Kumar Shantibhushan Beriyar (supra), in para 30 to 33
has made the following observations:
" 30. There can be no dispute that this was a case in
which money was the motive. We have already seen
that the accused person do not come from a wealthy
background. On the other hand, it has been held
CriAppeal 64-2014+.odt
that they could not justify the possession of
ornaments found with them. It has also been held
that they were unlikely to own the ornaments on
account of their financial position.
31. Practically, the whole law on death sentence was
referred to in Santosh Kumar's case. In paragraph
56, the Court observed "the court must play a pro-
active role to record all relevant information at this
stage. Some of the information relating to crime can
be culled out from the phase prior to sentencing
hearing. This information would include aspects
relating to the nature, motive and impact of crime,
culpability of convict etc. Quality of evidence is also
a relevant factor. For instance, extent of reliance on
circumstantial evidence or child witness plays an
important role in the sentencing analysis. But what
is sorely lacking, in most capital sentencing cases, is
information relating to characteristics and socio-
economic background of the offenders. This issue
was also raised in 48th Report of the Law
Commission. The Court, thus, has in a guided
manner referred to the quality of evidence and has
sounded a note of caution that in a case where the
reliance is on circumstantial evidence, that factor
has to be taken into consideration while awarding
the death sentence. This is also a case purely on the
circumstantial evidence. We should not be
CriAppeal 64-2014+.odt
understood to say that in all cases of circumstantial
evidence, the death sentence cannot be given. In
fact in Shivaji @ Dadya Shankar Alhat v. State of
Maharashtra [2008 (15) SC 269], this Court had
awarded death sentence though the evidence was of
circumstantial nature. All that we say is that the
case being dependent upon circumstantial evidence
is one of the relevant considerations. We have only
noted it as one of the circumstances in formulating
the sentencing policy. Further in that case the Court
upheld the principles emanating from Bachan Singh
v. State of Punjab [1980 (2) SCC 684] where the
probability that the accused can be reformed and
rehabilitated was held as one of the mitigating
circumstances and it was observed that the State
should, by evidence prove that the accused does not
satisfy these conditions, meaning thereby that the
accused is not likely to be reformed. The Court went
on to hold that the rarest of rare dictum imposes a
wide ranging embargo on the award of death
punishment which can only be revoked if the facts
of the case successfully satisfy double qualification :
1) that the case belongs to rarest of the rare
category and;
2) alternative option of life imprisonment will
not suffice in the facts of the case.
CriAppeal 64-2014+.odt
32. The Court then observed that the rarest of the
rare dictum places an extraordinary burden on the
Court. Considering these principles, we do not think
that there was no possibility of reformation of the
accused persons. True it is that the accused were
driven by their avarice for wealth but given a
chance there is every possibility of their being
reformed. We are also of the clear opinion that in
this case it is not established that alternative
punishment of life imprisonment will be futile and
would serve no purpose. In paragraph 66 of Santosh
Kumar's case (cited supra), the Court observed that
life imprisonment can be said to be completely futile
only when the sentencing aim of reformation can be
said to be unachievable. The Court further went on
to say "therefore, being satisfied the second
explanation of rarest of rare doctrine the court will
have to provide clear evidence as to why the convict
is not fit for any kind of reformative and
rehabilitation scheme.
33. In our opinion, there has been no such exercise
taken either by the trial Court or appellate Court
nor do we find any discussion about the life
imprisonment being rendered futile and serving no
purpose."
CriAppeal 64-2014+.odt
38-c. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (supra), relied upon by learned counsel for the
respondents-accused, the Supreme Court has referred the view
expressed in Bachan Singh (supra) and further elaborately
discussed the doctrine of proportionality. In para 158, 159, 160 and
171, The Supreme Court has made the following observations:
" 158. The reasons assigned by the courts below, in
our opinion, do not satisfy Bachan Singh (1980) 2
SCC 684 test. Section 354 (3) of the Code provides
for an exception. General rule of doctrine of
proportionality, therefore, would not apply. We must
read the said provision in the light of Article 21 of
the Constitution of India. Law laid down by Bachan
Singh (supra) and Machhi Singh 1983 SCC (Cri)
681 interpreting Section 354 (3) of the Code should
be taken to be a part of our constitutional scheme.
159. Although the Constitutional Bench judgment of
the Supreme Court in Bachan Singh (supra) did not
lay down any guidelines on determining which
cases fall within the "rarest of rare" category, yet the
mitigating circumstances listed in and endorsed by
the judgment give reform and rehabilitation great
importance, even requiring the State to prove that
CriAppeal 64-2014+.odt
this would not be possible, as a precondition before
the court awarded a death sentence. We cannot
therefore determine punishment on grounds of
proportionality alone. There is nothing before us
that shows that the appellant cannot reform and be
rehabilitated.
160. In Dhananjoy Chatterjee v. State of W.B.
[(1994) 2 SCC 220], this Court has taken notice of
the fact that a shockingly large number of criminals
go unpunished thereby increasingly encouraging the
criminals and in the ultimate making justice suffer
by weakening the system's credibility. Although the
increasing number of cases which affect the society
may hold some value for the sentencing court, but it
cannot give a complete go-by to the legal principle
laid down by this court in Bachan Singh (supra) that
each case has to be considered on its own facts.
161 to 170......
171. Section 354(3) of the Code of Criminal
Procedure requires that when the conviction is for
an offence punishable with death or in the
alternative with imprisonment for life or
imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded,
and in the case of sentence of death, the special
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reasons thereof. We do not think that the reasons
assigned by the courts below disclose any special
reason to uphold the death penalty. The discretion
granted to the courts must be exercised very
cautiously especially because of the irrevocable
character to death penalty. Requirements of law to
assign special reasons should not be construed to be
an empty formality."
38-d. In Sangeet and another v. State of Haryana (supra), relied
upon by learned counsel for the respondents-accused, the Supreme
Court has referred the leading judgments on the death penalty,
including the case of Jagmohan Sing v. State of U.P. [(1973) 1 SCC
20] and Bachan Singh's case (supra), and in para 77, 77.1 to 77.4
and 78, the Supreme Court has made the following observations:
"77. The broad result of our discussion is that a
relook is needed at some conclusions that have been
taken for granted and we need to continue the
development of the law on the basis of experience
gained over the years and views expressed in
various decisions of this Court. To be more specific,
we conclude:
77.1. This Court has not endorsed the approach of
aggravating and mitigating circumstances in Bachan
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Singh. However, this approach has been adopted in
several decisions. This needs a fresh look. In any
event, there is little or no uniformity in the
application of this approach.
77.2. Aggravating circumstances relate to the crime
while mitigating circumstances relate to the
criminal. A balance sheet cannot be drawn up for
comparing the two. The considerations for both are
distinct and unrelated. The use of the mantra of
aggravating and mitigating circumstances needs a
review.
77.3. In the sentencing process, both the crime and
the criminal are equally important. We have,
unfortunately, not taken the sentencing process as
seriously as it should be with the result that in
capital offences, it has become Judge-centric
sentencing rather than principled sentencing.
77.4. The Constitution Bench of this Court has not
encouraged standardization and categorization of
crimes and even otherwise it is not possible to
standardize and categorize all crimes.
77.5 .....
77.6 .....
77.7 .....
CriAppeal 64-2014+.odt
78. Given these conclusions, we are of the opinion
that in cases such as the present, there is
considerable uncertainty on the punishment to be
awarded in capital offences - whether it should be
life imprisonment or death sentence. In our opinion,
due to this uncertainty, awarding a sentence of life
imprisonment, in cases such as the present is not
unquestionably foreclosed. More so when, in this
case, there is no evidence (contrary to the
conclusion of the High Court) that Seema's body
was burnt by Sangeet from below the waist with a
view to destroy evidence of her having been
subjected to sexual harassment and rape. There is
also no evidence (again contrary to the conclusion
of the High Court) that Narender was a professional
killer."
38-e. In Mohd. Farooq Abdul Gafur and another v. State of
Maharashtra (supra) and Kalu Khan v. State of Rajasthan (supra)
relied upon by learned counsel for the respondents-accused
persons, the Supreme Court has expressly held the imposition of
death penalty erroneous.
38-f. In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5
SCC 546 : MANU/SC/0476/ 2013], relied upon by learned APP as
CriAppeal 64-2014+.odt
well as learned counsel for the respondents-accused, in para 49,
the Supreme Court has referred various principles for awarding
sentence, as laid down in Bachan Singh (supra) and Machhi Singh
(supra). Para 49 of Shankar Kisanrao Khade, [para 25 as reported
in MANU/SC/0476/2013], reads as under:
" 49. In Bachan Singh and Machhi Singh cases, this
Court laid down various principles for awarding
sentence:
"Aggravating circumstances - (Crime test)
1. The offences relating to the commission of
heinous crimes like murder, rape, armed dacoity,
kidnapping etc. by the accused with a prior record
of conviction for capital felony or offences
committed by the person having a substantial
history of serious assaults and criminal convictions.
2. The offence was committed while the offender
was engaged in the commission of another serious
offence.
3. The offence was committed with the intention
to create a fear psychosis in the public at large and
was committed in a public place by a weapon or
device which clearly could be hazardous to the life
of more than one person.
CriAppeal 64-2014+.odt
4. The offence of murder was committed for
ransom or like offences to receive money or
monetary benefits.
5. Hired killings.
6. The offence was committed outrageously for
want only while involving inhumane treatment and
torture to the victim.
7. The offence was committed by a person while
in lawful custody.
8. The murder or the offence was committed, to
prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a
person who had acted in lawful discharge of his
duty under Section 43 of the Code of Criminal
Procedure.
9. When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
10. When the victim is innocent, helpless or a
person relies upon the trust of relationship and
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social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and
is inflicted with the crime by such a trusted person.
11. When murder is committed for a motive
which evidences total depravity and meanness.
12. When there is a cold blooded murder without
provocation.
13. The crime is committed so brutally that it
pricks or shocks not only the judicial conscience but
even the conscience of the society.
Mitigating Circumstances: (Criminal test)
1. The manner and circumstances in and under
which the offence was committed, for example,
extreme mental or emotional disturbance or
extreme provocation in contradistinction to all these
situations in normal course.
2. The age of the accused is a relevant
consideration but not a determinative factor by
itself.
3. The chances of the accused of not indulging in
commission of the crime again and the probability
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of the accused being reformed and rehabilitated.
4. The condition of the accused shows that he
was mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
5. The circumstances which, in normal course of
life, would render such a behavior possible and
could have the effect of giving rise to mental
imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of
human behavior that, in the facts and circumstances
of the case, the accused believed that he was
morally justified in committing the offence.
6. Where the Court upon proper appreciation of
evidence is of the view that the crime was not
committed in a preordained manner and that the
death resulted in the course of commission of
another crime and that there was a possibility of it
being construed as consequences to the commission
of the primary crime.
7. Where it is absolutely unsafe to rely upon the
testimony of a sole eyewitness though prosecution
has brought home the guilt of the accused."
CriAppeal 64-2014+.odt
In para 50 [para 26 as reported in MANU/SC/0476/2013],
the Supreme Court has referred the observations made in Santosh
Kumar Satishbhushan Bariyar (supra) that the nature, motive and
impact of crime, culpability, quality of evidence, socio-economic
circumstances, impossibility of rehabilitation and some of the
factors, the Court may take into consideration while dealing with
such cases. In para 51 [para 27 as reported in
MANU/SC/0476/2013], the Supreme Court has also referred the
view expressed in Sangeet's case (supra) and observed as under:
"51. In Sangeet case this Bench has held that there
is no question of balancing the above mentioned
circumstances to determine the question whether
the case falls into the rarest of rare cases category
because the consideration for both are distinct and
unrelated. In other words the "balancing test" is not
the correct test in deciding whether capital
punishment be awarded or not. "
39. In the instant case, we have to apply the test as determined
and discussed by the Hon'ble Supreme Court in various cases. The
respondents-accused persons have committed the crime with pre-
meditation and it involves extreme brutality. They have committed
CriAppeal 64-2014+.odt
brutal murder of two innocent middle aged persons in a cruel and
diabolic manner. They have committed gruesome, brutal murder of
two middle aged helpless and hapless persons out of lust for money
and ornaments. It was a pre-planned, calculated, cold blooded
murder. This crime resulted in public abhorrence and shocked the
judicial conscience and the conscience of the society.
40. PW 4 Sumitkumar Tiwari is the most important witness on
the pre-incident facts. He was the night duty watchman on
"Basant" bungalow of deceased Ramesh Munot and is duty hours
were from 8.00 p.m. to 8.00 a.m. The accused no.3 Shivkumar
Ramsundar Saket was working as watchman for day hours from
8.00 a.m. to 8.00 p.m. He was residing in a room situated in
Sumesh Industry owned by deceased Ramesh Munot. PW 4
Sumitkumar Tiwari was residing in a room in front of the Basant
bungalow. On 02.12.2007, when PW 4 Sumitkumar Tiwari had
finished his duty at 8.00 a.m., accused no.3 Shivkumar Saket
relieved him. Then PW 4 Sumitkumar Tiwari slept in his room till
11.30 a.m. However, when he got up, he noticed that a friend of
accused no.3 Shivkumar Saket was talking with him. At about
12.00 noon, wife of accused no.3 Shivkumar Saket, namely,
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Sangita, came with her small son and a tiffin. By that time, said
friend of accused no.3 Shivkumar Saket had left the place. PW4
Sumitkumar Tiwari has given description of that person. After
taking lunch with accused no.3 Shivkumar Saket and his wife
Sangita, he took rest in his room. At about 1.00 to 1.30 p.m., when
he went towards toilet situated at the backside of his room, he
noticed that accused no.3 Shivkumar Saket was talking with two
persons. PW 4 Sumitkumar Tiwari has also given description of
those two persons. He has further deposed that at about 4.00 p.m.,
accused no.3 Shivkumar Saket awoke him and left the bungalow
on his bicycle. Deceased Ramesh Munot along with deceased Chitra
Munot went to the neighbouring bungalow for some function and
came back at about 7.30 p.m. At about 9.30 to 9.45 p.m., when PW
4 Sumitkumar Tiwari was on duty as night watchman, one person
stated his name as 'Subhash' and told that he wanted to meet
Ramesh saheb. PW 4 Sumitkumar Tiwari has identified that person
as the same person who had come near the toilet in the morning
and who has talked with accused no.3 Shivkumar Saket near the
toilet at 1.00 p.m. At that time, PW 4 Sumitkumar Tiwari opened
the small gate and saw that 4 to 5 persons were standing on the
street. He has identified two persons out of them who had talked
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with accused no.3 Shivkumar Ramsundar Saket in the morning and
at about 1.00 p.m. near the toilet.
41. We have discussed at length in the foregoing paragraphs
about all the pre-incident details, the post-incident details and
arrests of the respondents-accused persons with the incriminating
articles in the state of Madhya Pradesh. We have also discussed in
detail in the foregoing paragraphs, by referring the scene of
offence, the condition of the dead bodies. Deceased Ramesh Munot
and Chitra Munot were the middle aged persons. Except them, no
one was present in the bungalow. The postmortem report and the
inquest panchanama show that the assailants have committed
brutal murder of deceased Ramesh Munot by stabbing him on his
heart and of deceased Chitra Munot by causing cut throat injury.
She was found tied to a chair in sitting position.
42. We are not in agreement with the observations made by the
learned Judge of the trial court in para 444 of the judgment that
the murders of deceased persons were not committed with previous
planning and it does not involve extreme brutality. We are also not
in agreement with the observations made by the trial court that
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when the middle aged couple resisted the accused persons while
committing dacoity, they were done to death.
42-a. PW 24 Sachin Dalvi, who was serving as Hardware Engineer
in one of the companies owned by deceased Ramesh Munot, has
deposed that at the time of incident accused no.3 Shivkumar Saket
was the watchman for day duty and PW 4 Sumitkumar Tiwari was
the watchman for night duty. Prior to them, accused no.2
Shailendrasingh Thakur was the watchman. In August 2007,
accused no.2 Shailendrasingh Thakur was removed from work as
he had behaved indecently with one employee of the company,
namely, Shubhangi. Prior to accused no.2 Shailendrasingh Thakur,
accused no.4 Rajeshsingh Thakur was working as watchman. All
those watchmen were hailing from the state of Madhya Pradesh.
Accused no.1 Raju Darode was working as driver on the vehicle of
deceased Ramesh Munot prior to one year of the incident.
42-b. There is no evidence that the middle aged couple i.e.
deceased Ramesh and Chitra Munot had resisted the assailants.
They were helpless and hapless victims. Both the deceased were
knowing accused no.1 Raju Darode, accused no.2 Shailendrasingh
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Thakur, accused no. 3 Shivkumar Saket and accused no.4
Rajeshsingh Thakur prior to the incident. We do not think that both
the deceased were done to death because of their resistance. On
the other hand, the respondents-accused have committed their
brutal murder to conceal their identity and involvement in
commission of the crime. So far as accused no.1 Raju Darode,
accused no.2 Shailendrasingh Thakur and accused no.4
Rajeshsingh Thakur are concerned, at the time of the incident, they
were not in the employment of deceased Ramesh Munot and
accused no. 5 Sandip Patel and accused no.6 Balendrasingh Thakur
had no concern with the deceased couple in any manner. However,
accused no.3 Shivkumar Ramsundar Saket was serving as the day
time watchman at the time of the incident. In our considered
opinion, he has well executed the plan in a calculated manner with
the help of other accused persons and committed cold blooded
murder of the helpless and hapless couple. Accused no.3
Shivkumar Ramsundar Saket has betrayed the trust of his employer
deceased Ramesh Munot. The aged couple was entirely dependent
upon the bungalow security. Accused no.3 Shivkumar Ramsundar
Saket was on day duty earlier to the date of incident. He was
knowing well that the deceased couple was in the bungalow alone
CriAppeal 64-2014+.odt
and no other family member was present in the night. Accused
no.3 Shivkumar Ramsundar Saket had also planned to leave the
town after commission of the crime along with the family and for
that purpose, he had also purchased railway tickets. The crime has
been committed under no duress, nor on provocation. On the other
hand, two innocent lives were snuffed out. The murders were
gruesome, brutal and diabolic. The crime has been committed with
extreme depravity and in a merciless manner. It falls in the
category of rarest of rare case. In our considered opinion, it merits
the death penalty to the extent of accused no.3 Shivkumar
Ramsundar Saket. In the facts of the present case, age of accused
no.3 Shivkumar Ramsundar Saket cannot be considered as a
mitigating circumstance.
43. We are thus inclined to confirm the judgment and order
passed by the trial court and the sentence passed against the
respondents-accused persons under various sections of IPC except
respondent-accused no.3 Shivkumar Ramsundar Saket.
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44. We accordingly issued production warrant against
respondent-accused no.3 Shivkumar Ramsundar Saket in terms of
the provisions of First Proviso to Section 386 of the Cr.P.C. vide
order dated 01.04.2022 and called upon him to show cause as to
why death punishment should not be imposed on him. Accordingly,
respondent-accused no.3 was produced before us in the Court
today i.e. on 08.04.2022.
45. We have heard respondent-original accused no.3 Shivkumar
Ramsundar Saket in person. He states that a lenient view may be
taken for the reason that this is his first offence and after commission
of the crime and his conviction, not only his parents left him, but even
his wife has also left him. At present, his son is at the mercy of his
friends and there is nobody to look after him.
46. Mr. A. Y. Pandule, learned counsel for the respondent-original
accused no.3 submits that considering the young age of respondent-
original accused no.3 and since this is his first offence, leniency may
be shown and the death punishment may not be imposed on him.
47. Learned APP submits that respondent no.3-original accused
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no.3 is the mastermind behind the crime and he has well executed the
crime in a calculated manner with the help of other accused persons
and committed cold blooded murder of the helpless and hapless
couple. Learned APP submits that respondent no.3-original accused
no.3 Shivkumar Ramsundar Saket deserves no sympathy.
48. We have elaborately discussed in our judgment as to the role
played by respondent no.3-original accused no.3. He was on the day
duty as watchman on the said Basant bungalow. He was knowing well
the activities of deceased Ramesh Munot and deceased Chitra Munot.
P.W.4 Sumitkumar Tiwari was the night watchman on the said
bungalow at the relevant time and during the day time, he had
witnessed all the activities of the present respondent no.3-original
accused no.3. The other accused persons had come to him and
accordingly, he executed the plan in a very calculated manner. We
have also observed in our judgment that this is a rarest of rare case. In
our considered opinion, respondent no.3-original accused no.3
Shivkumar Ramsundar Saket deserves no sympathy. Accordingly we
hereby sentence respondent no.3-original accused no.3 Shivkumar
Ramsundar Saket to suffer death penalty for the offence punishable
under Section 396 of IPC as well as under Section 396 r.w. 120-B of
IPC. Hence, we proceed to pass the following order:
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ORDER
I. Criminal Appeal No. 64 of 2014 [Shailendrasingh
Shivmurtisingh Thakur and others v. State of
Maharashtra] and Criminal Appeal No. 480 of 2014
[Raju Sampat Darode v. The State of Maharashtra] are
hereby dismissed.
II. Criminal Appeal No. 503 of 2013 [The State of
Maharashtra v. Raju Sampat Darode and others] is
hereby partly allowed.
III. Clauses (3) and (7) of the operative part of the order
dated 21.10.2013 passed by the Additional Sessions
Judge, Ahmednagar in Sessions Case No. 51 of 2008,
sentencing thereby accused nos. 1 to 6 to suffer
imprisonment for life for the offence punishable under
Section 396 of IPC and under Section 396 r.w. 120-B of
IPC respectively, are hereby modified to the extent of
accused no.3 Shivkumar Ramsundar Saket, with no
change in the fine amount, in the following manner :
"Accused no.3 Shivkumar Ramsundar Saket is hereby
sentenced to suffer death penalty for the offence
punishable under Section 396 of IPC as well as Section
396 r.w. 120-B of IPC".
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IV. Rest of the judgment and order dated 21.10.2013
passed by the Additional Sessions Judge, Ahmednagar
in Sessions Case No. 51 of 2008 stands confirmed.
V. So far as the sentence of death penalty passed against
accused no.3 Shivkumar Ramsundar Saket is
concerned, the same shall not be given effect to till
expiry of the appeal period as stipulated under Section
415 (3) of the Criminal Procedure Code, 1973
VI. In view of dismissal of Criminal Appeal No. 480 of
2014, Criminal Application No. 657 of 2015 also
stands disposed off.
49. We quantify the fees for the appointed counsel at Rs.25,000/-
(Rupees Twenty Five Thousand only) to be paid by the High Court
Legal Services, Sub-committee, Aurangabad.
50. A copy of this judgment shall be provided free of cost to the
respondent-original accused no.3 Shivkumar Ramsundar Saket in
Criminal Appeal No. 503 of 2013 through the jail authority forthwith.
(SHRIKANT D. KULKARNI, J.) (V. K. JADHAV, J.)
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