Amol Ambadas Bankar And Anr vs The State Of Maharashtra
2022 Latest Caselaw 11597 Bom

                                                                       cri apeal 179-14.doc

RMA

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                        CRIMINAL APPEAL NO. 179 OF 2014

      1. Amol Ambadas Bankar
         Age - 22 Years,
         R/o. A/p Kati Taluka Indapur
         District Pune.

      2. Amol Bhagwan Shende
         Age - 20 Years,
         R/o. A/p. Kati Taluka Indapur,
         District Pune.
           Presently Appellants are in
           Kolhapur Central Prison, Kalamba.     .. Appellants
                                                   (Org. Accused Nos. 1 & 2)
                 Vs.
      The State of Maharashtra
      Through Natepute Police Station,
      Taluka Malshiras, District Solapur.        .. Respondent

      Mr. Subir Sarkar, Advocate for Appellants
      Mr. S.S. Hulke, APP for State
                            CORAM              : A.S. GADKARI &
                                                 MILIND N. JADHAV, JJ.

Reserved on : 09th November, 2022.

Pronounced on : 15th November, 2022.

JUDGMENT [PER MILIND N. JADHAV, J.] :

1. This is an Appeal against the Judgment & Order dated

04.02.2014 passed by the Additional Sessions Judge, Malshiras in

Sessions Case No. 22 of 2010 convicting the Appellants under :-

(i) Section 364 r/w 34 of Indian Penal Code (for short "IPC")

and sentenced to suffer rigorous imprisonment for five years

and to pay fine of Rs. 1000/- each, in default to suffer

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further rigorous imprisonment for one year;

(ii) Section 302, 120(B) r/w 34 IPC and sentenced to suffer

rigorous imprisonment for life and to pay fine of Rs. 1000/-

each, in default to suffer further rigorous imprisonment for

two years;

(iii) Section 201 r/w 34 IPC and sentenced to suffer rigorous

imprison for three years and to pay fine of Rs. 1000/- each,

and in default to suffer further rigorous imprisonment for six

months; all the aforesaid three sentences to run

concurrently.

2. The facts of prosecution case which emerge from record are

as under:-

2.1. Shahaji Sadhu Mote (deceased) resided with his parents,

brother and wife at village Motewadi-Phondshiras. He was

Gramesevak of the village. He got married to Punam @ Usha (PW-20)

on 06.12.2009.

2.2. On 22.01.2010, Shahaji left his residence at about 10:00

a.m. and did not return. He was supposed to go to Mhaswad for

giving his tractor on hire. Since he did not return for the next two

days, his family members searched for him and his whereabouts.

Finally on 25.01.2010 his father Sadhu Mote (PW-6) lodged a missing

report in Natepute Police Station.

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2.3. During inquiry and investigation, it was revealed that Punam

(PW-20), wife of Shahaji had a love affair with Appellant No. 1 prior

to her marriage with Shahaji. It is the prosecution case that since

Appellant No. 1 and Punam could not get married, he eliminated

Shahaji. For that, he befriended Shahaji, developed cordial relations

with him and lured him with offer of customers who would take his

tractor on hire. That Appellant No. 1 along with three others hatched

a conspiracy with three others to murder Shahaji and in furtherance of

his plan, on 22.01.2010 called Shahaji to meet him at Mhaswad

Chowk, Malshiras. At that time, Appellant No. 2 met Shahaji and both

travelled on Shahaji's motorcycle. Since Shahaji and Appellant No. 2

had to reach Mhaswad, he handed over his motorcycle to Ashok

Londhe (PW-17) at 4:00 p.m. and asked him to deliver it in Natepute.

According to prosecution, Shahaji along with Appellant No. 2 and

three others travelled in one Maruti Omni Car to Mhaswad. Initially

they went to village Gondavale and took darshan and had snacks in

Priyanka Hotel at Gondavale belonging to Vaishali Padmankar (PW-

15). Shahaji was last seen by PW-15 at 6:00 p.m. on 22.01.2010.

2.4. According to prosecution, Shahaji was murdered by

strangulation of his neck with a nylon rope by the Appellants and with

intention to destroy the evidence, they burried his dead body in one

old well / ditch at the base of Jalbhavi Ghat. They also disposed of his

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personal articles namely clothes and shoes by throwing them at two

different places.

2.5. All four accused (including Appellants) were arrested on

04.02.2010. Appellant No. 1 recorded his statement and willingly led

the Investigating Officer (I.O.) and his team to the spot where

Shahaji's dead body was burried. PI Rajesh Shingte (PW-19), the I.O.,

before proceeding to the spot took along with him panchas, Tahsildar,

Medical Officer and photographer. They all reached the base of

Jalbhavi Ghat and with the help of local villagers recovered the dead

body of Shahaji from a dry well. After recovery of the dead body,

Tahsildar (PW-18) and I.O. (PW-19) prepared the inquest panchnama

(Exh. 96). Shahaji's dead body was identified by his cousin uncle Dattu

Mote and his father (PW-6). Photographs were taken of the entire

process of unearthing the dead body from the well (Articles A-1 to A-

12). Spot panchnama (Exh. 31) was prepared by the I.O.

2.6. Dr. Ganesh Waghmode (PW-16) conducted the postmortem

on the dead body at the spot where it was recovered. He prepared the

postmortem notes (Exh. 109). He opined that there was a single

ligature mark around the entire neck of Shahaji's dead body and

fracture of the hyoid bone.

2.7. I.O. PW-19 recovered and seized one blue colour underwear

and black colour waist-cord which was present on the dead body of

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Shahaji.

2.8. On 06.02.2010 Appellant No. 1 led the I.O. to village Kati

where he resided. From the cattleshed near his house, one hoe, spade

and one motorcycle (Honda Glamour) belonging to Appellant No.1

were seized. At his instance, another motorcycle (Bajaj Kawasaki) was

seized from the house of original accused No. 3 (acquitted by the trial

Court).

2.9. On 06.02.2010, Appellant No. 2 expressed his willingness to

discover the nylon rope by which Shahaji was strangulated and led the

I.O. to the roadside near village Goradwadi where he had concealed /

threw it of. Recovery and seizure panchnama was prepared and one

nylon rope and one shoe (Bata make) was recovered at the instance

of Appellant No. 2.

2.10. On 08.10.2010, the I.O. recovered and seized one Maruti

Car bearing No. MH-42/A-1805 from one Ranjeet Deorao Borate who

informed him that Appellant No. 1 had borrowed the car for his

personal use on 22.01.2010. On taking inspection of the said car, I.O.

found chilly powder and faint blood spots on the backside of the left

front seat.

2.11. On 16.02.2010 I.O. recovered and seized three mobile

phones belonging to Appellants and original accused No. 3 from Balu

Borate, maternal uncle of Appellant No. 1. On 16.02.2010, I.O. sent

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the seized material and muddemal to the Forensic Laboratory for

chemical analysis report. The second shoe (Bata make) of Shahaji was

recovered and seized from Neera Canal between Malshiras and

Mhaswad.

2.12. On 02.03.2010, I.O. requested the Tahsildar (PW-18) to

conduct test identification parade (TIP) of all four accused (including

Appellants). Report of TIP was received.

2.13. According to prosecution, Appellant No. 1 wanted to

continue his love affair with Punam, wife of Shahaji and therefore, he

eliminated Shahaji by hatching a conspiracy with three other accused.

After completing investigation, chargesheet against all four accused

persons was submitted in the Court of Judicial Magistrate First Class at

Malshiras. Since the offence under Section 302 is triable by the Court

of Sessions, the case was committed to the Sessions Court for trial.

2.14. Charge (Exh. 8) was framed against Appellants and co-

accused. It was read over and explained to them in vernacular. They

pleaded not guilty and claimed to be tried. Their defence being of

total denial.

3. In order to bring home the guilt of accused, prosecution led

the evidence of 22 witnesses in all. By the impugned Judgment,

Appellants (original accused Nos. 1 and 2) were convicted whereas

original accused Nos. 3 and 4 were acquitted.

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4. We have heard Mr. Subir Sarkar, learned Advocate for the

Appellants and Mr. S.S. Hulke, learned APP for the State with their

able assistance perused the entire record of the case.

5. Prosecution case is based upon circumstantial evidence.

Prosecution has heavily relied upon motive, recovery of articles

evidence and last seen together theory.

6. In so far as motive is concerned, deposition of PW-20 i.e.

Punam, wife of Shahaji and paramour of Appellant No. 1 is relevant.

PW-20 has deposed that after her marriage on 06.12.2009 with

Shahaji, she resided with Shahaji. That, Shahaji owned a tractor and

used to give it on hire. That, he never carried a mobile phone. She has

deposed that that after 16 th day of marriage, Shahaji disclosed to her

that he had a love affair with one girl and she was taking education in

Solapur and he married Punam only at the insistence of his parents.

She has further deposed that he however assured her to forget the past

and lead a happy married life.

6.1. In her examination-in-chief, she has further deposed that on

22.02.2010, Shahaji went to Mhaswad and never returned back. That,

police recorded her statement on 31.01.2010. She has deposed that

she knew all four accused persons (including the Appellants) and they

lived in village Kati, Tahsil Indapur. That, she knew Appellant No. 1

and there was a love affair between them prior to her marriage. That,

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since Appellant No. 1 belonged to a different caste, she could not

marry him. Hence, Appellant No. 1 was disturbed.

6.2. In her cross-examination, she has deposed that after

discovery of Shahaji's body and his cremation thereafter, she never

went back to her matrimonial house and returned back to her paternal

home. That, she did not disclose about her love affair to the Police nor

Shahaji. She has deposed that one year prior to her marriage with

Shahaji, her love affair with Appellant No. 1 had ended as both of

them decided to stop as they could not marry each other since they

belonged to different castes. That, thereafter she married with Shahaji

as per her wish and there was no impediment / quarrel in her

marriage on account of her previous love affair. That, Appellant No.1

did not interfere with her marriage. In further cross-examination, she

has deposed that Shahaji left his house on 22.01.2010 with some cash

for transacting some business relating to letting out his tractor at

Mhaswad.

6.3. Though in her examination-in-chief, she has stated that

Appellant No. 1 was disturbed since he could not marry her, in cross-

examination she has attempted to negate the same by stating that she

had never stated to the Police that after the end of their love affair,

Appellant No. 1 was disturbed.

6.4. From the above deposition, it is clearly discernible that after

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her marriage with Shahaji, Appellant No. 1 was uneasy and disturbed.

Further PW-20 has herself deposed about her love affair with

Appellant No. 1 prior to her marriage with Shahaji. Thus, Appellant

No. 1 had a very strong motive to kill Shahaji as that would have

entailed return of Punam to her matrimonial house. Though in her

cross-examination Punam has attempted to protect Appellant No. 1, it

cannot be derivated that he did not have any intention to kill Shahaji

since Punam in her examination-in-chief has categorically deposed

that pursuant to her marriage with Shahaji, Appellant No. 1 was

disturbed. The love affair between Punam and Appellant No.1 thus

cannot be denied and therefore the theory of motive stands proved.

7. Next we may look at the recovery evidence in the present

case which has also been strongly relied upon by the prosecution.

Admittedly until the discovery of dead body of Shahaji, none knew

about his whereabouts. Though Shahaji went missing on 22.01.2010,

his dead body was recovered at the instance of Appellant No. 1 only

on 04.02.2010 i.e. after a period of 13 days. PW-4 - Parshuram

Kadam, the pancha witness to the memorandum panchnama (Exh. 51)

has deposed that Appellant No. 1's statement was recorded by P.I.

Shingte (PW-19), the I.O. and they along with Appellant No. 1

proceeded to the spot of burial of Shahaji at the base of Jalbhavi ghat.

That towards the western side of nala / stream, there was one old dry

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well with a ditch upto 7 feet in depth and Appellant No. 1 pointed out

the said spot where dead body of Shahaji was burried. Deposition of

PW-4 and PW-19 in this respect is corroborative and supportive with

each other. Further deposition of PW-4 Parshuram Kadam, PW-12

Vaibhav Navadkar, PW-16 Dr. Ganesh Waghmode and PW-19 I.O.

clearly corroborates the detailed procedure of removal of the dead

body of Shahaji from the well/ditch (spot) in which it was burried.

Reading of their depositions clearly brings out the consistency and

corroboration of the oral testimonies given by these four prosecution

witnesses. We have also perused the photographs (Articles 1 to 12)

of the process of unearthing and removal of the dead body of Shajaji

from the well. The requisitions namely Exh. 94, 94A, 107 and 108

issued to the above four prosecution witnesses cannot be doubted and

hence their presence at the spot stands established. The dead body of

Shahaji has been identified by his uncle Dattu Mote. Though it has

been submitted on behalf of Appellant that there is ambiguity about

identification of the dead body of Shahaji, the said argument is put to

rest by virtue of Exh. 123 i.e. the DNA report produced in evidence by

the prosecution witness i.e. PW-19.

7.1. The DNA report clearly opines that the results of DNA typing

of the DNA extracted from the blood samples of Bhamabai (mother of

Shahaji), PW-6 Sadhu Pote (father of Shahaji) and the bone of

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deceased Shahaji were typed at 15 STR loci and gender specific

Amelogenin locus by PCR amplification technique and for all the 15

STR loci analyzed with PCR, there was a clear match of the obligate

paternal as well as maternal alleles with the bone sample of deceased

Shahaji. The DNA report issued by Dr. Mrs. V.R. Rathod, Assistant

Chemical Analyser to Government Forensic Laboratory, Mumbai

opines that it is concluded that PW-6 and Bhamabai are the biological

parents of deceased Shahaji. Hence the fact that the dead body

recovered at the instance of Appellant No.1 was that of Shahaji and

this fact stands duly proved without doubt.

7.2. It is further seen that memorandum panchanama (Exh. 38)

and recovery panchnama (Exh. 39) show the recovery of the nylon

rope and one Bata company boot (shoe) from the bushes at some

distance from Malshiras-Mhaswad Road near village Goradwadi at the

instance of Appellant No. 2. PW-2 Dattatray Kadam, the pancha

witness has deposed as witness to the above panchnamas. The

testimony of PW-2 cannot be doubted. Further seizure panchanama

(Exh. 5) of the second boot of deceased from Neera canal is proved by

PW-14 Parshuram Kadam, the pancha witness. Both the shoes of Bata

company make have been identified by PW-6 Sadhu Mote, father of

Shahaji as belonging to Shajaji. Thus, the articles belonging to Shahaji

having an important bearing have been identified by the prosecution

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witnesses. Further seizure panchanma (Exh. 55) relates to recovery

and seizure of a blue coloured underwear and waist-cord found on the

dead body of Shahaji at the time of postmortem.

8. Another important piece of recovery is with respect to

discovery of the hoe and spade used by the Appellants for burying the

dead body of Shahaji in the well near Jalbhavi ghat. Both these

articles have been recovered (Exh.18) at the instance of Appellant No.

1 from the cattleshed near his house at village Kati in the presence of

PW-9 Ashok Kale, the pancha witness. The deposition of this pancha

witness is believable and cannot be doubted.

9. Though prosecution has relied upon the TIP conducted by

PW-18, Nayab Tahisldar on 06.03.2010, we may observe that since the

recovery of the dead body of Shahaji on 04.02.2010, it has come in

evidence of the prosecution witnesses that photographs and names of

all four accused were repeatedly flashed and published in the local

newspapers, they having been arrested for the said crime. In view

thereof, conducting the TIP thereafter on 06.03.2010 would not stand

to test and therefore though prosecution has relied upon the TIP

confirming identification of the Appellants through the evidence of

PW-7 Dnyaneshwar Kolhatkar and PW-18 Nayab Tahsildar and the

Appellants have been identified by Bhamabai, mother of Shahaji, we

are not relying upon the same. However though we may not rely upon

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the TIP result, the identification of Appellants in Court cannot be

doubted. Thus, the aforementioned evidence put forth by the

prosecution clearly establishes recovery of incriminating material

indicting the Appellants for commission of the crime. The recovery

evidence clearly corroborates and supports the prosecution case and

the strong motive with which the prosecution has come to this Court.

10. In the present case prosecution has relied upon the evidence

of PW-15 and PW-17 in support of the last seen together theory. PW-

17 Ashok Londhe has deposed that on 22.01.2010 Shahaji and

Appellant No. 2 both met him near Akluj Square, Malshiras at around

4:00 p.m. That, they both were riding Shahaji's motorcycle. On

meeting, Shahaji handed over his motorcycle to him and asked him to

deliver it at village Natepute since he had to proceed to Mhaswad for

some urgent work. He has deposed that Shahaji did not inform him

about the nature of work for which he was required to go to Mhaswad.

This evidence establishes that Shahaji was seen last together in the

company of Appellant No. 2 on 22.01.2010.

11. PW-15 Ms. Vaishali S. Padmankar is the owner of Priyanka

Hotel at village Gondavale. In her deposition she has stated that when

the Police Authorities had shown the photograph of Shahaji to her, she

had identified him as a person who had visited her hotel to have

snacks with 3-4 persons on or around the date of incident. She has

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not specifically recollected the date of Shahaji's visit. However, she

has identified the Appellants during the TIP but she could not identify

the Appellants in Court while recording her substantial evidence. It is

also seen that her statement was never recorded by the Police under

Section 161 of the Cr.P.C. The evidence of the aforesaid two

witnesses establishes that Shahaji was seen alive lastly on 22.01.2010.

PW-17 has deposed that he in fact met and interacted with Shahaji. At

that time Appellant No. 2 was the pillion rider on his motorcycle and

after handing over the motorcycle to him Shahaji left alongwith

Appellant No. 2. In so far as PW-15 is concerned, she identified

Shahaji since he visited her hotel for having snacks in village

Gondavale. It has also come in evidence that Shahaji alongwith 3-4

persons had paid a visit to Village Gondavale on 22.01.2010 before

proceeding to Mhaswad. The medical evidence in this regard supports

the fact that Shahaji was alive on or around 22.01.2010. It has been

clearly opined by PW-16 Dr. Ganesh Waghmode in the postmortem

report that death of Shahaji had occurred around 13-14 days prior to

the date of recovery of his dead body which was on 04.02.2010. This

clearly corroborates and supports the deposition of the aforesaid two

witnesses who had last seen Shahaji alive on 22.01.2010.

11.1. Thus, on a minute perusal of the record of the case and the

deposition of the prosecution witnesses, it is clearly established that in

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so far as Appellant No. 1 is concerned, he had a very strong motive to

eliminate Shahaji considering his affinity and love affair with his wife

Punam (PW-20). The recovery evidence as discussed hereinabove

assumes significance since it is recovered at the instance of Appellants.

It is important to note that Shahaji was killed within 1½ month of his

marriage with Punam (PW-20). It has also come in evidence and

investigation that after Punam's marriage to Shahaji, Appellant No. 1

developed intimacy and close relation with Shahaji on the pretext of

searching customers for letting his tractor on hire and used to

frequently make phone calls to Shahaji.

12. It has also come on record that prior to the date of incident,

Appellant No. 1 had made two phone calls to Shahaji, which

information has been revealed by Shahaji's mother - Bhamabai Mote.

The evidence and deposition of PW-20 Punam i.e. the widow of

deceased Shahaji clearly points to the motive in the present crime.

Hence, her deposition is extremely significant in that respect and is the

sine qua-non in the chain of circumstances established and proved by

the prosecution. The recovery evidence and medical evidence clearly

corroborates and supports the theory of motive. In so far as the last

seen theory together is concerned, evidence given by PW-17 cannot be

doubted as he had specifically seen Shahaji in the company of

Appellant No. 2. In so far as PW-15 is concerned, she had also seen

Shahaji in the company of 3-4 people on the same date. Thus, the

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chain of circumstances stands clearly established and proved by the

prosecution in the present case beyond all reasonable doubts. The

chain of circumstances seen in the present case begins with Shahaji

having gone untraced and missing from 22.01.2010. On that very

date PW-17 has met Shahaji at Akluj Square, Malshiras at 4:00 p.m.

alongwith Appellant No. 2. On that very date PW-15 has seen Shahaji

in the company of 3-4 persons at 6:00 p.m. at village Gondavale. This

was followed by the arrest of Appellants and the subsequent discovery

of the dead body of Shahaji at the instance of Appellant No. 1 duly

witnessed by the Medical Officer, Nayab Tahsildar and I.O. which

stands duly proved vide panchanamas (Exh. 51 and 52). This is

supported by the medical evidence given by PW-16 Dr. Ganesh B.

Waghmode and the weapons and instruments used by the Appellants

for burying the dead body of Shahaji at the instance of Appellant No.

1. The aforesaid facts with a very strong motive for Appellant No. 1 to

eliminate Shahaji clearly prove the conspiracy between Appellants and

in furtherance of their plan, they committed his murder by

strangulation with the help of nylon rope and attempt to destroy the

evidence.

13. It is pertinent to note that the Maruti car which was used by

Appellants has also been recovered and seized by the I.O. The owner

of the said car has stated that Appellant No. 1 had hired his car on

22.01.2010 for personal work.

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14. The aforesaid discussions and findings in respect of murder

of Shahaji and the subsequent evidence describing the burying of his

dead body in the well at the base area of Jalbhavi Ghat clearly proves

that the Appellants are the author of the present crime. The facts and

circumstantial evidence brought on record by the prosecution are

sufficient enough to hold that prosecution has proved the complete

chain of circumstances in the present case to establish the guilt of the

Appellants. We have no doubt in our mind that on the basis of the

aforementioned circumstantial evidence, the Appellants have

committed the present crime. Hence, we do not find any infirmity or

error to interfere with the Judgment and Order passed by the learned

trial Court in the present case.

15. Considering the material on record and in view of the above

discussion and findings, the Appeal stands dismissed.

16. Before parting with the Judgment, we would like to place on

record appreciation for the efforts put in by Mr. Subir Sarkar, learned

Advocate appointed by the High Court Legal Services Committee,

Mumbai for espousing the cause of Appellants. He was thoroughly

prepared in the matter and rendered proper and able assistance to the

Court.

  [ MILIND N. JADHAV, J. ]                                            [ A.S. GADKARI, J.]

                Digitally signed
   RAVINDRA by RAVINDRA
            MOHAN
   MOHAN    AMBERKAR
   AMBERKAR Date: 2022.11.15
                11:11:45 +0530




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