Saket Vikas Panase (Panse) vs The State Of Maharashtra
2022 Latest Caselaw 4601 Bom

                                                         1 of 12               1 Cri. Apeal No. 1108.2012.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         Digitally                      CRIMINAL APPELLATE JURISDICTION
         signed by
         DINESH
DINESH   SADANAND
SADANAND SHERLA
SHERLA
                                          CRIMINAL APPEAL NO. 1108 OF 2012
         Date:
         2022.04.29
         14:09:31
         +0500                                         WITH
                                        CRIMINAL APPLICATION NO. 949 OF 2019

                      Shri. Saket Vikas Panase                     ]
                      (@ Panse), residing at                       ]
                      Bhagyashree Bunglow, Plot No. 90,            ]
                      Pavna Nagar,Chinchvad, Pune: 33              ]
                      (presently at Kolhapur Central Prison        ]   ...Appellant / (Original
                      Kolhapur)                                    ]                   Accused)
                           Versus

                      1) State of Maharashtra                      ]

                      2) Anand Arun Darbhe                         ]
                        {R/a - B/303, Cascade, Vasant              ]
                         Oscar, LBS Marg, Mulund (w),              ]
                         Mumbai - 400080}                          ]         ....Respondents

                                                     ******
                      Dr. Yug Mohit Chaudhry a/w Mr. Dashrath Gaikwad for the Appellant/
                      Applicant.
                      Mrs. S. V. Sonawane, APP for Respondent No. 1-State.
                      Mr. A. S. Khandeparkar a/w Mr. Rajdeep D. Gude, Mr. Rohit P.
                      Mahadik & Ms Apporva A. Khandeparkar i/b Khandeparkar &
                      Associates for Respondent No. 2.
                                                     ******
                                                    CORAM : PRASANNA B. VARALE AND
                                                            N. R. BORKAR, JJ.
                                                   RESERVED ON : 13th AUGUST, 2021.
                                                   PRONOUNCED ON : 29th APRIL, 2022.


                      JUDGMENT (Per N.R. Borkar, J.)

1] This appeal takes an exception to the judgment and order dated

01.08.2012 passed by the learned Additional Sessions Judge for

Greater Bombay, in Sessions Case No. 760 of 2010.

                      D.S.Sherla
                                    2 of 12                1 Cri. Apeal No. 1108.2012.doc




2]           By the impugned judgment and order, the Appellant, who was

original accused before the trial Court, has been convicted for the

ofence punishable under section 302 of Indian Penal Code,1860 (for

short "IPC") and sentenced to sufer imprisonment for life and to pay

a fne of Rs.10,000/-, in default of payment of fne to sufer S.I. for two

months.

3] The deceased Mangala Darbhe was the mother of PW-19

Anand Darbhe. The deceased was residing at Flat No. B/303, 3rd

Floor, Cascade, Vasant Oscar Building, LBS Marg, Mulund (W),

Mumbai-400080 along with PW-19 and PW-7 Shilpa Darbhe, the wife

of PW-19.

4] As PW-19 and PW-7 both were working, they used to leave

home at about 8:30 a.m. and returned back at 8:00 p.m. During the

said period, the deceased alone used to be at home.

5] According to the prosecution, on the day of incident which took

place on 25.08.2010, at about 1:30 p.m., the accused, came to the

house of the deceased, while she was alone at home. It is alleged that

accused assaulted the deceased with knife and committed her

murder.

6] The fact that the deceased had died homicidal death is not

disputed before us. Admittedly, the accused was present in the house

D.S.Sherla 3 of 12 1 Cri. Apeal No. 1108.2012.doc

of deceased at the time of alleged incident. The defense of the

accused is that two unknown persons assaulted the deceased. The

accused has examined himself in his defense.

7] According to the accused, at the relevant time, he was a

student of Mechanical Engineering in G.S. Mozes College of

Engineering, Pune. The deceased was his maternal Aunt. His family

had planned trip to Africa and for that he and his family have to take

Yellow Fever Vaccine. On 23.08.2010, he took Yellow Fever Vaccine

at Ballard Estate, Fort, Mumbai. However, some paper work was

pending so he had to come again to Mumbai on 25.08.2010 (the day

of incident).

8] According to him, on 25.08.2010, he completed that paper work

and then he came to the house of deceased at Vasant Oscar, Mulund.

He met the deceased at the entrance. Watchman was at entrance who

made his entry in visitor's register and then they both came upstairs.

The deceased served him food. After lunch, he went to bedroom to

take rest. The deceased at that time was in the kitchen.

9] According to the accused, in the afternoon in between 1:30 p.m.

and 2:30 p.m., the door bell ranged. He opened the door and two

unknown persons forcibly entered inside the fat. They tried to assault

him with sharp object and he tried to defend those attacks. As he was

defending those attacks, he received injuries on his hands. He fell

D.S.Sherla 4 of 12 1 Cri. Apeal No. 1108.2012.doc

down. He was dazed. He heard cries of deceased and then those two

unknown persons went away. He saw the deceased lying in the pool

of blood. He tried to call his mother from the landline phone. He told

his mother that he had been assaulted by two unknown persons.

Before he could say anything more, he lost his consciousness.

10] The trial Court after considering the evidence on record rejected

the defense of the accused. The trial Court consequently, convicted

the accused for the ofence punishable under section 302 of the IPC.

11] We have heard the learned counsel for the appellant/ accused,

learned APP for the respondent -State and learned counsel for

respondent No.2-original complainant.

12] The learned counsel for the appellant/accused has submitted

that PW-19, the son of the deceased, had not raised any suspicion

against the accused either at the time of lodging of FIR or in his

evidence. It is submitted that the prosecution has not attributed any

motive to the accused. The learned counsel submits that there is no

evidence on record to show that the accused was hot tempered or a

violent person to cause 54 stab wounds. It is submitted that in

absence of such evidence, the trial Court was not justifed in

convicting the accused.

D.S.Sherla
                                     5 of 12                1 Cri. Apeal No. 1108.2012.doc




13]          It is further submitted that one Motorola mobile phone and a pair

of gents chappal were found at the place of incident. The learned

counsel for the accused submits that, it was thus incumbent upon the

prosecution to investigate whether those articles were of inmates of

the house or some outsiders, however, the same is not done. It is

submitted that the prosecution has therefore, not proved beyond

reasonable doubt that except the accused nobody else was there at

the time of alleged incident.

14] It is further submitted that the blood was found in the nails of

deceased, however, the same was not sent for D.N.A. testing. The

dog squad was called, however, the prosecution has not placed on

record the report of dog squad. The learned counsel submits that the

trial Court was, thus not justifed in holding that the prosecution has

proved it's case beyond reasonable doubt.

15] On the other hand, learned APP for the respondent/State has

submitted that according to the accused, two unknown persons

committed the alleged crime. It is submitted that the accused has,

however, not given the description of said two persons either in the

statement to the police or in his evidence. It is submitted that after the

incident the accused was taken to the hospital and according to

history given by the accused to medical ofcer, he was assaulted by

sword. It is submitted that, no material is, however, brought on record

D.S.Sherla 6 of 12 1 Cri. Apeal No. 1108.2012.doc

to that efect and on the contrary knives were found lying at the place

of incident.

16] The learned APP submits that the evidence on record will show

that safety door and main door of the fat were properly closed. It is

submitted that the said circumstance is not consistent with the

defense of the accused as no assailants after coming out of the fat

would take the risk of standing there even for few moments to close

both the doors. The learned APP submits that the circumstances on

record are not consistent with the defense of the accused and

therefore, the trial Court was justifed in convicting the accused.

17] According to the prosecution, PW-8 Manisha Rathod is the frst

person, after the incident, to visit the house of the deceased.

18] According to PW-8, she was working as maid-servant at the

house of deceased. According to PW-8, on 25.08.2010, she had gone

to the house of the deceased for household work at about 2:45 p.m.

She rang the door bell. As no one opened the door, she took key of the

fat of the deceased from deceased's neighbour Mrs. Vidya

Swaminathan. According to her, when she opened the door, she saw

that the accused was lying in pool of blood. At that time, Vidya

Swaminathan was standing at the door of her fat, she told about it to

Vidya Swaminathan and closed the safety door of fat of the deceased.

D.S.Sherla
                                      7 of 12                 1 Cri. Apeal No. 1108.2012.doc




19]          According to PW-8, when she opened the door accused said to

her two unknown persons assaulted him and ran away. According to

her, the security guards were called and intimation was given to the

police.

20] The evidence of PW-8 that when she opened the door, the

accused said to her that two unknown persons assaulted her and ran

away has not been challenged in the cross-examination. This fact

would show that the accused was not unconscious till that time.

Whereas according to the accused after the alleged assault, he made

phone call to his mother and told her that two unknown persons

assaulted him and before he could say anything more he became

unconscious.

21] The trial Court has held that call record of land-line at the house

of the deceased and mobile phone of the mother of the accused would

reveal that, the call was made from the land-line at the house of the

deceased at 2:23 p.m on the mobile phone of the mother of the

accused and duration of the said call was 140 seconds, which means

the accused had spoken with his mother for 140 seconds. It is further

held that phone call was made at 2:25 p.m. and 2:28 p.m. from the

mobile phone of the mother of the accused and call duration was 20

and 22 seconds respectively. Then again, phone call was made at

2:29 p.m. and call duration was 231 seconds. The trial Court has held

D.S.Sherla 8 of 12 1 Cri. Apeal No. 1108.2012.doc

these facts would show that the accused was conscious enough to

attend all these calls.

22] The learned counsel for the appellant/accused submits that the

prosecution has examined mother of accused as prosecution witness.

The prosecution therefore ought to have got the above said

circumstances clarifed from her.

23] However, if call details were not consistent with the defense of

the accused, then in our view the accused ought to have got it clarifed

in cross-examination. In view of the evidence of PW-8 and call details

at Exhibit-121, it is difcult to accept the defense of the accused that

he fell unconscious after making frst phone call to his mother and

could not make phone call either to the police or seek help from

neighbours.

24] Apart from above, according to PW-13 Aparna V. Panse, the

mother of the accused, on the day of incident, at about 2:15 p.m., she

received call from accused on her mobile and he told her that two

persons brought him to Mumbai at the house of the deceased; they

assaulted the deceased and to him as well. According to her, she told

him to inform PW-19 and PW-7 and told him to give phone to

deceased, but he said to her that she had sustained lots of injuries

and then disconnected the phone. The version of PW-13 is altogether

diferent, than what the accused had stated in his defense evidence.

D.S.Sherla
                                    9 of 12                1 Cri. Apeal No. 1108.2012.doc

Therefore, the evidence of PW-13 is also not consistent with the

defence of the accused.

25] Admittedly, after the alleged incident, the accused was taken to

Municipal General Hospital, Mulund, where he was examined by PW-

4 Dr. Ganesh Dhangar. According to PW-4, on 25.08.2010, the

accused was brought to Municipal General Hospital, Mulund by the

police personnel from Mulund Police Station. The accused gave

history of assault by sword by two unknown persons.

26] According to PW-4, on examination he found the accused to be

confused, fearful, pulse rate was 84 per minute and blood pressure

was 138/92 mmhg. On local examination, he found two injuries, i.e., (i)

two right medial fnger of hand palmer aspect incised lacerated wound

muscle deep and (ii) left hand on extensor surface, incised lacerated

wound measuring about 3 x 1 x 1 cm. According to him, the accused

was perhaps in altered sensorium, because he was not properly

answering his question.

27] PW-4 has admitted that he has not specifcally mentioned in

Exhibit-50 that the history was given by the accused. However, it is

neither suggested to PW-4 nor any material is brought on record to

show that the accused was unconscious when he was brought to the

hospital. Even it is assumed that history was given not by the accused

but by somebody else, still it was possible for the accused to disclose

D.S.Sherla 10 of 12 1 Cri. Apeal No. 1108.2012.doc

in his defense evidence by which weapon he was assaulted or at least

give description of the weapon. However, the accused is

conspicuously silent about it in his defence evidence.

28] There is one more material witness i.e., PW-11 Joher Parsi.

According to PW-11, at the relevant time was working as Security

Guard/Watchman. On 25.08.2010 at about 1:30 p.m., the accused

came to him and told him that he wanted to go to fat No.303. He made

entry of the same in visitor's register. The accused then went upstairs

and returned back within fve minutes. The accused told him that no

one was there in the fat. Then he went away.

29] According to PW-11, after 5 to 10 minutes, the deceased came

by rickshaw. The accused also came following her. Then both of them

went upstairs. According to PW-11, the deceased and accused went

upstairs at about 1:30 p.m. to 1:45 p.m. At around 2:30 p.m., he

received phone on intercom from PW-30 Seema Jageshia, occupant

of fat No.403. She asked him to come upstairs as she heard hue and

cry from 3rd foor. He told another security guard to sit in his place and

went on 3rd foor. On 3rd foor, he found all the doors were closed. He

then went on 4th foor and there also he found all doors were closed.

He then came back to his place.

30] According to PW-11, after 5-10 minutes at about 2:35 to 2:40

p.m., he received another phone call from Mrs. Swaminathan,

D.S.Sherla 11 of 12 1 Cri. Apeal No. 1108.2012.doc

occupier of fat No.302. She asked him to come upstairs alongwith

other security guards. Therefore, he along with other security guards

went on 3rd foor. Mrs.Swaminathan told him to see what happened in

fat No.303. He opened the door of fat No.303 and saw that the

accused was lying on the foor. He asked the accused as to what

happened. The accused told him that two persons assaulted him and

he told him to catch them. According to PW-11, at that time PW-8

Manisha Rathod who was working as maid-servant in the house of

deceased was also there.

31] There is nothing in the cross-examination of PW-11 to

disbelieve him. This witness has been cross-examined at length in

relation to topography of place of incident. However, nothing could be

elicited which would probablise the defence of the accused.

32] According to the accused on the day of incident, he came to

Mumbai as certain paper work was pending in relation to yellow fever

vaccination, which he took on 23.08.2010. According to him, frst he

completed that paper work and then came to the house of the

deceased. The accused, however, in his cross-examination admitted

that he received certifcate from concerned authority regarding yellow

fever vaccination on 23.08.2010. The said certifcate is in card form.

He has admitted that the said card contains the details of date of

vaccination. Nobody is examined from the concerned ofce to show

D.S.Sherla 12 of 12 1 Cri. Apeal No. 1108.2012.doc

that some paper work was pending. Apart from it, issuance of

certifcate on 23.08.2010 itself creates doubt about the version of the

accused that, he came to Mumbai on the day of incident as some

paper work was pending.

33] The defense of the accused is, thus, not reliable. Considering

the overall facts and circumstances, the case of prosecution cannot

be doubted just because no motive is attributed to the accused, or no

investigation is carried out in relation to few articles which were found

at the place to incident. The trial Court on the basis of evidence on

record was justifed in convicting the accused for alleged ofence. In

the result, following order is passed

ORDER

1] Criminal Appeal is dismissed.

2] Criminal Application does not survive and the same is

also dismissed.

(N. R. BORKAR, J.)                           (PRASANNA B. VARALE, J.)




D.S.Sherla