Bombay High Court
Chetan Ramdas Dumre And Anr vs The State Of Maharashtra on 17 March, 2022
Bench: S.S. Shinde, N. R. Borkar
j-cri-apeal-352-12.odt
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
DINESH CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 352 OF 2012
DINESH SADANAND
SADANAND SHERLA
SHERLA Date:
2022.03.17
14:56:40
+0500
1] Chetan Ramdas Dumbre ]
2] Nilesh Dnyaneshwar Vitekar ]
Both R/o. Dumbarewadi, Otur, ]
Tal. Junnar, Dist. Pune ] ... Appellants
(Presently in Yerwada Central
Prison, Pune )
V/s.
The State of Maharashtra ]
(through Junnar Police Station) ] ... Respondent
----------------
Mr. Aashish Satpute, Appointed Advocate for the Appellants.
Mr. V.B. Kondedeshmukh, APP for the Respondent/State.
----------------
CORAM : S.S. SHINDE &
N.R. BORKAR, JJ.
RESERVED ON : 10.01.2022.
PRONOUNCED ON : 17.03.2022.
JUDGMENT (PER : N.R. BORKAR,J.)
1] This appeal takes an exception to the judgment and
order dated 20.10.2011 passed by the Additional Sessions
Judge, Pune in Sessions Case No.925 of 2009. The appellants
and one more accused were tried in the aforesaid sessions
case for the ofences punishable under sections 394 and 302
read with 34 of the Indian Penal Code, 1860 (for short "IPC").
2] By the impugned judgment and order, the appellants,
who were accused nos.1 and 2 respectively before the trial
court, have been convicted for the ofence punishable under
Dinesh Sherla 1/10
j-cri-apeal-352-12.odt
section 302 read with 34 of the IPC and sentenced to sufer
Imprisonment for Life and to pay fne of Rs.2,000/- each and
in default of payment of fne, to sufer further Rigorous
Imprisonment for one year. The appellants have been further
convicted for the ofence punishable under section 394 of the
IPC and sentenced to sufer Imprisonment for Life and to pay
fne of Rs.2000/- each and in default of payment of fne, to
sufer further Rigorous Imprisonment for one year. Both the
sentences are directed to run concurrently. The trial court has
however, acquitted the accused No.3 of all the ofences.
3] We have heard the learned appointed counsel for the
appellants and the learned APP for the respondent/State.
4] The deceased Bajirao Shankar Deokar and his wife
Sunanda Deokar were retired primary Teachers and on the
date of incident which took place in the intervening night of
20.06.2009 and 21.06.2009 were residing at Vadgaon Anand,
Dist. Pune.
5] According to the prosecution, on the date of incident the
appellants/accused entered into the house of deceased, with
intent to commit robbery and while committing the robbery,
committed the murders of the deceased.
6] According to PW-1 Dr. Sanjay B. Deokar, the deceased
were his parents. At the relevant time, he was residing at
village Ale Phata and his parents were residing at village
Dinesh Sherla 2/10
j-cri-apeal-352-12.odt
Vadgaon Anand. He daily used to go to his parents' house in
the morning and evening.
7] According to PW-1, on 20.6.2009, he had gone to his
parents' house at about 7.30 p.m. On that day, during chit-
chatting his father disclosed to him that accused No.1 with
two others had been to their house and they were making
inquiry about their family. His father further disclosed to him
that since last few days, accused No.1 started parking his
vehicle near their house. His father expressed that the
behaviour of accused No.1 is suspicious. According to PW-1,
he stayed at the house of his parents for 10-15 minutes and
then came back to his village.
8] According to PW-1, on 21.6.2009, while he was at his
ofce, he received phone call of PW-4 Nilesh Walunj, who used
to deliver newspaper at the house of his parents. He asked
him to reach to his parents' house as lights were on, there
was loud sound of T.V. and main gate was locked. According to
PW-1, he along with his assistant PW-19 Sandip Ghangale
reached to his parents' house. PW-19 went inside the house
by climbing the main gate. He saw that the backdoor of the
house was open. He went inside and saw that parents of PW-
1 were lying in dead condition. He came out and intimated to
PW-1.
9] According to PW-1, he then went inside and saw that his
father was lying in kitchen. He examined him and found him
Dinesh Sherla 3/10
j-cri-apeal-352-12.odt
to be dead. Then he went to prayer room. His mother was
lying there and she was also dead. The cupboard was open
and the articles were lying scattered.
10] According to PW-1, his mother used to wear gold
earrings, one small gold Mangalsutra, one long gold
Mangalsutra, four gold bangles and two gold rings. According
to PW-1 the said ornaments were not there on the person of
his mother.
11] PW-1 in his cross-examination has admitted that
accused No.1 was not known to him prior to the incident. At
the time of lodging of report, he was not aware of the address
of accused No.1 nor he gave the address of accused No.1 to
the police. He then volunteered that he stated name of the
village of accused No.1. PW-1 has then stated that he
however, cannot assign any reason as to how complete
address of accused No.1 came to be mentioned in his report.
12] It is apparent from the evidence of PW-1 that accused
No.1 was not known to him prior to the incident. It further
appears that, the father of PW-1 for the frst time disclosed
about accused No.1 to PW-1 only on 20.06.2009, i.e., on the
day of incident. Thus, there was no reason for PW-1 to know
the complete address of accused No.1. However, in the frst
information report lodged by PW-1, he has mentioned
complete address of the accused No.1. The only inference
which can be drawn from this fact is that in frst information
Dinesh Sherla 4/10
j-cri-apeal-352-12.odt
report, the name of accused No.1 came to be inserted
subsequently. This creates doubt about the entire prosecution
case.
13] According to the prosecution, PW-8 Sandip Divekar, PW-
9 Vivek Shingte and PW-10 Dnyaneshwar Walunj saw the
accused No.1 and two more persons standing in front of the
house of deceased in intervening night of 20.06.2009 and
21.06.2009. The trial court has disbelieved these witnesses.
The trial court in its judgment has recorded the following
fndings in respect of PW-8, PW-9 and PW-10:
"100] On going through the evidence of Sandip
Divekar (PW 8), Vivek Shingte (PW 9) and Dnyaneshwar
Walunj (OW 10), I am of the opinion that, their evidence
is not worth believing to hold that they had seen the
accused lingering around the house of deceased, just
before the incident. Their evidence is not cogent and
reliable as well as clinching to believe to be true. Hence,
prosecution has failed to establish that accused were
lingering around the house of deceased to get the
opportunity to commit the ofence."
14] We have perused the evidence of PW-8, PW-9 and PW-
10. According to PW-8, on 17.06.2009 at about 10.00 p.m. he
had seen the accused standing near the house of deceased.
According to him, he had asked the accused as to whether
they had come to commit theft and they got frightened.
According to him, the accused told him they were going to
Dhaba and their bike got slipped. According to PW-8, the
accused then started their bike and went away from there. In
cross-examination, PW-8 has admitted that he never saw the
Dinesh Sherla 5/10
j-cri-apeal-352-12.odt
accused prior to the day on which he saw them. He has
further admitted that after 17.06.2009 for the frst time, he is
seeing the accused today in the court. Inspite of the fact that
accused were unknown to PW-8, no identifcation parade was
conducted.
15] The evidence of PW-9 and PW-10 is similar to the
evidence of PW-8. However, according to them, they had seen
the accused on 20.06.2009. According to PW-9, he had seen
the accused standing near the house of deceased at about
8.00 p.m., whereas according to PW-10, he had seen them
there at about 6.30 p.m.. It is difcult to believe that the
accused would come at 6.30 or 8.00 p.m. with intent to
commit robbery in the house of deceased and would stand
near the house of the deceased so that they can be sighted
by other people. The trial court has disbelieved PW-8, PW-9
and PW-10 and no submission is made on behalf of the
prosecution that they have been wrongly disbelieved.
16] The trial court has, however, convicted the accused
Nos.1 and 2 on the basis of alleged recovery of ornaments at
their instance.
17] According to PW-3 Yogendra Deokar, on 22.6.2009 he
was called by the police in the police station, Narayangaon.
According to him, in his presence accused No.1 disclosed to
the police that he is ready to show the shop where he sold the
stolen necklace. According to PW-3, accused No.1 took them
Dinesh Sherla 6/10
j-cri-apeal-352-12.odt
to jewellery shop at Narayangaon, Bazarpeth. According to
him, the jeweller handed over necklace to the police.
18] In the cross-examination, PW-3 has admitted that he and
the complainant belong to same caste. He has admitted that
he cannot tell the names of police personnel who were
present in the vehicle.
19] At this stage, it would be appropriate to refer to the
evidence of jeweller, PW-2 Ramesh Gujar. According to PW-2,
he runs jewellery shop at Narayangaon under the name and
style "Devnarayan Jewellers". On 21.6.2009, he opened his
shop at 9.00 a.m.. At about 11.00 a.m., two persons came to
his shop on motorcyle. They asked him to melt Mangalsutra.
He asked them whether they have receipt. They told him that
they have not brought receipt. One of them told that
Mangalsutra belongs to his wife. He further told PW-2 that his
sister is serious and therefore, they need money urgently and
he will produce the receipt on the next day.
20] According to PW-2, the said persons stated to him that
he wants to purchase small Mangalsutra on melting big
Mangalsutra. He told them that he will not accept
Mangalsutra unless the receipt is brought. Thereupon, they
started weeping. He then checked Mangalstura. It was of gold.
He broke the black beads and then weighed the Mangalstura.
It was found to be 37.500 grams. He then showed them small
Mangalstura which was costing about Rs.16,500/-. He sold a
Dinesh Sherla 7/10
j-cri-apeal-352-12.odt
small Mangalstura and paid cash of Rs. 21, 250/-. He prepared
the receipt and at that time the said person disclosed his
name of Chetan Dumbre, resident of Otur.
21] According to PW-2, on 22.6.2009, accused Nos.1 and 2
were brought to his shop by police and he handed over
Mangalsutra which was purchased by him from accused Nos.1
and 2.
22] In the cross-examination, PW-2 has admitted that he
maintains daily account of his business, however, as on
today, the account on the day on which the accused came to
his shop is not available. He did not obtain the signature of
the person who sold the ornament on receipt at Exhibit-65. He
has admitted that till today, he does not know the name of
person who was accompanying accused No.1. He has
admitted that in the statement to the police, he has not
stated that the accused were weeping.
23] There are material omissions in the evidence of PW-2
including the fact that the accused No.1 had told him that he
would bring the purchase receipt on next day. It is unlikely
that PW-2 would not obtain the signature of a person who had
come to sell the ornaments on sale-purchase receipts.
Considering the overall facts and circumstances, in our view,
it would not be safe to rely upon the evidence of PW-2.
Dinesh Sherla 8/10
j-cri-apeal-352-12.odt
24] Apart from above, according to PW-3, the panch witness,
PW-2 had handed over neckalce to the police. PW-3 has
specifcally stated that he is not related to the complainant,
however, PW-22 Shrikrishna Kokate, the Investigating Ofcer,
has admitted that PW-3 is a closed relative of the complainant
(PW-1). Considering the overall facts, it would not be safe to
connect the accused with alleged crime on the basis of
alleged recovery of Mangalsutra.
25] According to PW-1, on 28.8.2009, he and his brother, his
wife Vaishali and sister Manjusha were called at the police
station and they were asked to identify the ornaments in
presence of panch witnesses and Tahsildhar. According to PW-
1, he identifed the Mangalsutra of his mother amongst other
Mangalsutra which were there. PW-1 has admitted that the
identifcation was held only for Mangalsutra.
26] As the recovery of Mangalsutra itself is doubtful and
therefore, it's identifcation by PW-1 is of no consequence. It
appears that except Mangalsutra, no other ornaments were
got identifed.
27] Considering the overall facts and circumstances, the
trial court was not justifed in arriving at the conclusion that
the prosecution has proved it's case beyond reasonable
doubt. In the result, the following order is passed.
Dinesh Sherla 9/10
j-cri-apeal-352-12.odt
ORDER
a] Criminal Appeal is allowed.
b] The impugned judgment and order dated
20.10.2011 passed by the Additional Sessions Judge,
Pune in Sessions Case No.925 of 2009 convicting
appellant No.1 Chetan Ramdas Dumbre and
appellant No.2 Nilesh Dnyaneshwar Vitekar for the
ofences punishable under sections 302 and 394 read
with 34 of the IPC is set aside and they are acquitted of
the said ofences.
c] The appellants are in jail, they be released
forthwith unless their custody is required in connection
with any other crime.
d] The appellants shall execute P.R. Bond in the sum
of Rs.15,000/- (Rupees Fifteen Thousand) each and one
surety of like amount in terms of section 437-A of the
Code of Criminal Procedure, before the concerned trial
court at Pune.
(N.R. BORKAR, J.) (S.S. SHINDE, J.)
Dinesh Sherla 10/10
