Bombay High Court
Santosh Shridhar Nambiyar vs State Of Maharashtra And Anr. on 14 October, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:44575-DB
Gokhale 1 of 32 Apeal-132-24 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 132 OF 2024
Santosh Shridhar Nambiyar ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
INTERIM APPLICATION NO. 284 OF 2024
IN
CRIMINAL APPEAL NO. 132 OF 2024
__________
Mr. Shashikant D. Chandak (Appointed Advocate) a/w. Kanchan S.
Chandak, Advocate for the Appellant.
Ms. Dhanalaxmi Krishnaiyer, APP for the State/Respondent.
Ms. Sonia Miskin, Advocate for the Respondent No.2.
__________
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 06 OCTOBER 2025
PRONOUNCED ON : 14 OCTOBER 2025
JUDGMENT :
(PER SARANG V. KOTWAL, J.)
1. The Appellant has challenged the Judgment and order
dated 19.04.2023 passed by the learned Additional Sessions
Judge, Kalyan, in Sessions Case No.144 of 2011. The Appellant
was convicted and sentenced as under:
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.10.14
17:14:26
+0530
2 of 32 Apeal-132-24 (J)
i) He was convicted for commission of the offence
punishable U/s.302 of the I.P.C. and was
sentenced to suffer imprisonment for life and to
pay a fine of Rs.10000/- and in default to suffer
S.I. for six months.
ii) He was convicted for commission of the offence
punishable U/s.394 of the I.P.C. and was
sentenced to suffer rigorous imprisonment for ten
years and to pay a fine of Rs.5000/- and in
default to suffer S.I. for three months.
iii) He was convicted for commission of the offence
punishable U/s.450 of the I.P.C. and was
sentenced to suffer rigorous imprisonment for ten
years and to pay a fine of Rs.5000/- and in
default to suffer S.I. for three months.
All the substantive sentences were directed to run
concurrently. The Appellant was arrested on 10.03.2011 and since
then he is in custody. He was granted set off U/s.428 of the Cr.P.C.
Out of the total fine amount he paid, the amount of Rs.15000/-
was directed to be paid to the first informant-Respondent No.2
herein.
2. Heard Mr. Shashikant Chandak, learned Appointed
Advocate for the Appellant, Ms. Dhanalaxmi Krishnaiyer, learned
APP for the State/Respondent and Ms. Sonia Miskin, learned
3 of 32 Apeal-132-24 (J)
Advocate for the Respondent No.2.
3. The prosecution case is that the deceased Geeta Pokale
was separated from her husband. She used to reside with her
brother. But a few days prior to the incident dated 07.03.2011 she
had come to reside with her daughter in Dombivli. Her daughter
PW-1 the first informant had a job. On the date of the incident, the
informant left the house in the morning. When she returned, she
found that the door was bolted from outside. She got no response
from inside. Somehow, she managed to open the door. When she
entered the house, she saw that her mother was lying dead. She
raised alarm. The police were informed. C.R.No.40 of 2011 was
registered at Vishnunagar police station under sections 302, 394
and 450 of the I.P.C. The investigation commenced. The dead body
was sent for the postmortem examination. Some ornaments were
found missing. PW-1 Avni Rao gave her F.I.R. The spot
panchanama was conducted. During the investigation it was
revealed that the Appellant had committed this offence, therefore,
he was arrested on 10.03.2011 from Karwar. Some ornaments
were found in his house. Some ornaments were pledged by him
4 of 32 Apeal-132-24 (J)
with Karwar Urban Co-operative Bank, at Kajubag, Karwar. The
ornaments found in his house were seized. They were identified by
the witnesses. The investigation revealed that the Appellant had
made false entries in the register of the society while effecting
entry in the building. Those registers were seized. The Appellant's
specimen handwriting was taken. They were referred for the
handwriting expert's opinion. A wire was recovered at his instance.
The cause of death was mentioned as 'Asphyxia due to throttling
and strangulation". The watchman had seen the Appellant entering
in the building, therefore, the test identification parade ('TIP') was
held. It is the prosecution case that the Appellant was identified by
the watchman in the said TIP. After completion of the investigation,
the charge-sheet was filed and the case was committed to the
Court of Session.
4. During the trial, the prosecution examined 14 witnesses
including the first informant i.e. the daughter of the deceased, the
estranged husband and brother of the deceased, a neighbour, the
panchas, the Tahsildar who had conducted the TIP, the Medical
Officer who had conducted the postmortem examination and the
5 of 32 Apeal-132-24 (J)
investigating officers. The defence of the Appellant was of total
denial.
5. The learned Judge considered the evidence on record,
the statement of the Appellant recorded U/s.313 of the Cr.P.C. and
heard the arguments. The learned Judge relied on the
circumstances of recovery of the ornaments, the recovery of the
wire, the evidence of identification parade and the handwriting
expert's opinion regarding the entries made in the register. Based
on all this evidence, he convicted and sentenced the Appellant, as
mentioned earlier.
6. PW-1 Avni Rao was the first informant. She was the
daughter of the deceased. She deposed that, in the year 2011 she
was residing in Riddhi Siddhi Complex in Dombivli (West). Her
mother was staying with her. PW-1's husband was in Dubai. She
was doing a job.
On 07.03.2011, she left for her job at 9:00a.m. and
came back at 9:30p.m. During that time, her mother was alone in
the house. When PW-1 came back, she knocked on the door, but
6 of 32 Apeal-132-24 (J)
her mother did not respond. She put her hand inside the door from
the gap of the safety door and opened the latch. She went inside
and saw that the television set was on, the fan was also on and the
light was switched off. She proceeded to the bedroom. She saw
that her mother was sleeping. She went near her. She saw blood
oozing out from her mother's head and nose. The mangalsutra and
the ear rings normally worn by her mother were missing. PW-1
called her neighbour by the name Bhide; who in turn informed
about the incident to the police. The police came to her house. PW-
1 lodged her F.I.R. It is produced on record at Exhibit-18. The
police started investigation. They prepared the inquest
panchanama and the spot panchanama. The dead body was sent
for postmortem examination. PW-1 has stated that, in the morning
of the incident, she had noticed one phone call on the mobile
phone of her mother, but at that time she did not pay attention to
it as she was in a hurry. She informed this fact to the police on
08.03.2011. After registration of the F.I.R., she also noticed that
one gold necklace was missing. This fact was also told by her to
the police on 08.03.2011. On 10.03.2011, she was called to the
7 of 32 Apeal-132-24 (J)
police station. The police showed her one mangalsutra. She
identified that mangalsutra as belonging to her mother. Her further
statement was recorded. Apart from this jewellery, four bangles
were also missing.
In the cross-examination, she stated that her father was
also residing in Dombivli, but her mother and father were divorced
because of differences between them. The divorce had taken place
15 years before the incident. PW-1 was raised by her father. PW-1's
mother used to meet her at the mother's parental house. Her
maternal uncle PW-11 Deepak Shet was unmarried. PW-1's mother
had come to reside with her 6 to 7 months prior to the incident.
PW-1 admitted that, she had not given the description of the gold
ornaments in her F.I.R., as well as, in her supplementary
statement, and that she had not produced any receipt of those gold
ornaments.
In her further examination in chief, she identified the
mangalsutra produced in the Court at Article 'M', the ear tops
produced in the Court at Article 'J' and four pieces of gold bangles
8 of 32 Apeal-132-24 (J)
produced in the Court at Article 'I'. The mangalsutra and the ear
tops were used by her mother regularly. The gold bangles were
belonging to PW-1. She identified all those articles in the Court.
Her F.I.R. produced at Exhibit-18 substantially
corroborates her deposition. It mentions that, four gold bangles,
one gold mangalsutra and three ear tops were stolen. Apart from
that, Rs.2000/- were also stolen.
7. PW-4 Mrudula Bhide was a neighbour referred to by PW-
1 Avni. On 07.03.2011, at about 12:00p.m., she came back to her
house with her grandson who had gone to Kids' play group. At
about 9:30p.m., PW-1 Avni came to her house and told her that
her mother was lying in the house. PW-4 went to PW-1's house and
saw the scene of the offence. She did not state about the entire
incident. Therefore, she was cross-examined by the learned APP.
However, she did not give any further answers helpful to the
prosecution.
Her evidence is of limited use. The fact that the
deceased was murdered in that house is undisputed. Missing of the
9 of 32 Apeal-132-24 (J)
ornaments can only be deposed by PW-1 Avni as she was aware of
the details.
8. PW-2 Anjana Prabhu was examined as a pancha witness
for the inquest panchanama and the spot panchanama. She has
described the condition of the dead body. She had described that,
the rice was found scattered in the kitchen and the samosas were
also lying there. The inquest panchanama was produced on record
at Exhibit-20 and the spot panchanama was produced on record at
Exhibit-21. This particular evidence can hardly be disputed.
9. PW-7 Vallabh Pokale was the estranged husband of the
deceased. His evidence is not of much importance. He had only
narrated the history of why they were separated. It is not necessary
to go into the reasons of separation. On the date of the incident, he
received a phone call from PW-1 Avni informing him about the
incident.
10. PW-11 Deepak Shet was the brother of the deceased. He
deposed that, after the divorce of the deceased she was residing
with him in his house at Karwar. One month prior to the incident,
10 of 32 Apeal-132-24 (J)
the deceased had gone to Dombivli to stay with PW-1 Avni. He
used to be in touch with the deceased telephonically. On
02.03.2011, he had conversation with the deceased on phone. He
was informed that she was returning to Karwar on 19.03.2011 and
she had booked the railway ticket. On 07.03.2011, PW-1 Avni
informed him about the incident. He rushed to Dombivli on the
next day. He returned to Karwar on 11.03.2011. On 14.03.2011,
the police had taken the Appellant to Karwar Urban Co-operative
bank, at Karwar. PW-11 was also informed. He had gone to that
bank. The Appellant had pledged the gold with that bank. The
officer showed him the gold ornaments. This witness identified
those ornaments as those belonging to the deceased. There was
one necklace and two bangles. The deceased was using those
ornaments. He identified those ornaments. They were kept in the
bank.
In the cross-examination, he could not explain as to
why his police statement mentioned that the deceased was
residing with PW-1 Avni since the past six months. The rest of the
omissions from his police statement are not of much importance.
11 of 32 Apeal-132-24 (J)
He denied the suggestion that his story about visiting the bank at
Karwar and the ornaments having been showed to him was false.
11. PW-8 Vrushali Patil was the Tahsildar who had
conducted the TIP. She has stated that on 23.03.2011, she
conducted the TIP in Adharwadi Jail, Kalyan. Two pancha
witnesses were present. The witness PW-5 Dhondiba was also
present. The Appellant was placed with six dummy persons. They
were of similar description. The Appellant was given an
opportunity to change the clothes, but he did not change the
clothes. He stood at Sr.No.7 as per his choice. The witness
Dhondiba More was brought to the room. He identified the
Appellant by touching him.
In the cross-examination, there is hardly any material
brought out on record in favour of the defence.
12. PW-5 Dhondiram More is an important witness in this
case. He deposed that, he was a watchman in the said Riddhi
Siddhi Apartment, Kopargaon, Dombivli. He was having one
register and he had to record the names of the visitors in that
12 of 32 Apeal-132-24 (J)
register for A and B wing. The other two watchmen were working
in the night shift. PW-1 Avni and the deceased were residing in
Flat No.503 in B wing. One Narendra Sawant was residing in Flat
No.502. At about 9:30a.m. one person came to the building. PW-5
asked him to enter his name in the register. He wanted to go to flat
No.502. He entered his name as Mahesh. PW-5 told him that, there
was nobody in flat No.502. That person replied that he would
come soon. That person then went towards that flat.
At about 2:30p.m. to 3:00p.m. that person came back
and told PW-5 that his work was over. PW-5 then left the society at
about 7:00p.m. At about 9:30p.m. the Secretary of the society
called him telephonically. PW-5 went back to the society. He came
to know that a murder had taken place in Flat No.503. The police
made enquiries with him. He handed over the register to the
police. He showed the entry by the name Mahesh in their register.
Those entries were dated 05.01.2011 and 07.03.2011. He showed
those entries to the police. The police seized the register. He
described that the person by the name Mahesh as a slim person,
between 30 to 35 years of age, having blackish complexion and
13 of 32 Apeal-132-24 (J)
having height between 5 to 5.50ft. PW-5 was called for the TIP by
the Tahsildar. He also identified the Appellant in the TIP. He also
identified the Appellant in the Court.
In the cross-examination, he deposed that apart from
working as a watchman, he used to look after the water supply of
the society. On 07.03.2011, at about 9:00a.m. to 9:30a.m. he had
gone to the bore-well to inspect the water supply. PW-5's name was
Dhondiram, but in his police statement his name was mentioned as
Dhondiba. He deposed that, he could not identify the person who
had visited the society on 05.01.2011. He admitted in his cross-
examination that the police had already shown the photograph of
the accused before the TIP and, hence, he had identified the
Appellant.
13. PW-3 Rajdutta Mayekar was a pancha witness. He had
turned hostile. When he was cross-examined by the learned APP,
he admitted that, when he went to the police station, the police
told him that the Appellant was the accused in the case. The
Appellant told them that he would show the place where he had
14 of 32 Apeal-132-24 (J)
thrown the electric wire. Accordingly, the statement of the
Appellant was recorded. The statement is produced on record at
Exhibit-26. After that, the Appellant led the police and the panchas
near Riddhi Siddhi society. The Appellant took them towards the
bushes and produced one red coloured wire. It was seized under
the panchanama. That panchanama is produced on record at
Exhibit-26A. He showed his willingness to identify the wire if
shown to him. However, that wire was not shown to him.
This witness then did not remain present for the cross-
examination and, therefore, the defence was deprived of an
opportunity to cross-examine this witness.
14. PW-9 Dr. Purshottam Tike was the Medical Officer who
had conducted the postmortem examination. The postmortem
notes were produced on record at Exhibit-52. He described the
injuries suffered by the deceased. They were as follows:
Surface injuries as per column No.17.
i) Two abrasion marks 2cm x 1cm seen on dorson
of right hand, brown in colour;
15 of 32 Apeal-132-24 (J)
ii) 2cm x 1/4cm abrasion marks seen, 6cm below
right pinna;
iii) Impression print mark seen going posteriorly
from right sternomastoid to left side of neck,
30cm x 1/2cm x 1/4cm;
iv) Multiple impression marks 3 in numbers seen on
left side of neck;
v) Cricoid cartilage compressed with subcutaneous
ecchymosis;
vi) Nose cyanosed and swollen;
On external and internal examination of skull,
following injuries were seen:
i) Right frontal congestion and bruise of 3cm;
ii) Brain - Congested and oedematous;
The cause of death was mentioned as 'asphyxia due to
throttling and strangulation'. This evidence is also not in dispute.
15. PW-6 Narendra Kamat was a pancha for conducting the
personal search of the Appellant at the time of his arrest. He
deposed that he was called by the police near Ramnath Krupa
Building, Kajubag, Karwar. The police produced the Appellant
before them. The Appellant gave his name as Santosh Shridhar
Nambiyar. The police took his personal search. One mangalsutra
16 of 32 Apeal-132-24 (J)
was found in his right side pant pocket. One receipt of school fees
was found in his shirt pocket. The amount of Rs.13000/- was
found in his right side pant pocket. One mobile phone was also
found with him. All the articles were seized. The panchanama is
produced on record at Exhibit-35.
In the cross-examination, he accepted that he acted as
a pancha witness in various cases.
16. PW-10 Asha Desai was the Branch Manager of Karwar
Co-operative Bank with Kajubag branch. She had power to
sanction gold loan up to Rs.1 lakh. She deposed that on
08.03.2011, one person by the name Santosh Nambiyar came to
her with two bangles and one necklace for pledging them. On the
basis of pledging of those ornaments, she sanctioned a loan of
Rs.36000/-. The loan was granted for one year with interest at the
rate of Rs.14%. The gold was still with the bank.
17. On 14.03.2011, the police officers of Dombivli came to
her bank with the Appellant. The police made enquiry with her.
The Appellant was sitting in the jeep on the road. She gave the
17 of 32 Apeal-132-24 (J)
information. The original bond deposited in the bank with the
signature of the Appellant in the square showed receipt of cash. It
was produced on record at Exhibit-56. The photocopy of the page
No.305 of the ledger was shown to PW-10 through video
conferencing. It had the signature of the Appellant. It was
produced on record at Article 'Z'. She identified the Appellant who
was produced through video conferencing. She identified the
Appellant by his full name.
In the cross-examination, she stated that the Appellant
had told her that the ornaments were belonging to him. When the
police approached her for making enquiry, the Appellant was not
produced before her.
18. PW-12 P. I. Rajendra Kulkarni was the first investigating
officer. He investigated the C.R.No.40 of 2011 registered at
Vishnunagar police station. He registered the F.I.R. He conducted
the spot panchanama and the inquest panchanama. The F.I.R. at
Exhibit-18 mentions that, four bangles, one mangalsutra and ear
tops were missing. The spot panchanama was conducted. A mobile
18 of 32 Apeal-132-24 (J)
phone was found at the spot bearing No.9029619961. The blood
lying on the spot was taken with the help of cotton swab.
19. On 08.03.2011, the clothes of the deceased were seized.
PW-1 Avni had informed the police that her mother had received a
phone call in the morning. Therefore, PW-12 called for CDR of the
mobile phone of the deceased. From the CDR it was revealed that
she had received a phone call at 9:11a.m. The police found the
location and other data about the mobile number from which the
phone call was made. It was made from the mobile number
registered in the name of Shobha Kupankar, resident of Karwar,
Karnataka. Shobha was the wife of the Appellant. Therefore, he
sent his team to Karwar for investigation regarding the same
mobile number. He recorded the statements of the witnesses and
that of the watchman Dhondiram More-PW-5. During the
investigation, PW-5 Dhondiram informed about one person by
name Mahesh coming to the society and purportedly going to the
flat No.502. PW-12 enquired with the residents of Flat No.502. It
was revealed that nobody had visited their house by that name.
PW-12 seized the register of the society in the presence of panchas
19 of 32 Apeal-132-24 (J)
and prepared the seizure panchanama.
20. On 10.03.2011, the police team returned from Karwar
with the Appellant. PW-12 arrested the Appellant. The arrest
panchanama is produced on record at Exhibit-65. The first
informant identified the mangalsutra seized from the Appellant
that was found in his pocket. Accordingly, her supplementary
statement was recorded. On 12.03.2011, the Appellant showed his
willingness to show the place where he had concealed the electric
wire with which he had strangulated the deceased. Accordingly, his
statement was recorded in presence of the panchas. The Appellant
led them to the place outside the compound of the said Riddhi
Siddhi society. He led them to the open grass and produced the
electric wire. The panchanama is produced on record at Exhibit-
26A.
21. On 12.03.2011, PW-12 took the specimen signatures of
the Appellant under the panchanama which is produced on record
at Exhibit-68. On 13.03.2011, the Appellant showed his
willingness to inform where he had pledged the two gold bangles
20 of 32 Apeal-132-24 (J)
and one necklace. He gave the information about it. Accordingly,
his statement was recorded in the presence of panchas. It is
produced on record at Exhibit-69. PW-12 took the Appellant, the
police staff and the panchas to Karwar from Kalyan by train. The
Appellant took them to his house. His wife Shobha was present in
the house. He took out one pouch from the top of the cupboard in
his house. He took out some currency notes, two gold bangles and
gold ear tops. They were seized. He also produced his clothes
which he had worn at the time of the incident. There were blood
stains on the shirt. All the articles were seized under the
panchanama. The police team then was led to Karwar Co-operative
Bank at Karwar. The Bank Manager informed about the loan
transaction. She required the order of the Court to handover those
ornaments. PW-12 instructed her not to part with those ornaments
as they were involved in the offence.
He then made an arrangement, so that, TIP could be
conducted on 23.03.2011. He collected the CDR of the mobile
number of the Appellant and the deceased. There was a record of
the phone call made by the Appellant on the mobile phone of the
21 of 32 Apeal-132-24 (J)
deceased on 07.03.2011 at 9:11 in the morning. The seized
muddemal was sent for C.A. examination. The specimen
handwriting, the signature of the Appellant and the loan
application made to the said bank was sent to the Government
handwriting expert's opinion, at Pune. He identified all the articles
produced in the Court, as well as, the Appellant.
In the cross-examination, he stated that, those
ornaments were available in the jewellery shop, but he
volunteered that the pieces of the broken bangles produced in the
Court were not available. There were no specific identification
marks on the gold ornaments. He had taken the F.I.R. from PW-1
Avni at the spot itself. He could not tell by which vehicle his team
had gone to Karwar. He had not accompanied them at the first
instance. He admitted that the mobile number in question was not
registered in the name of the Appellant. But he volunteered that
the mobile number was registered in the name of the Appellant's
wife Shobha. Similarly, the mobile phone used by the deceased
was not registered in her name. PW-12 stated that, there was no
seal on the registers seized from the society.
22 of 32 Apeal-132-24 (J)
22. The panchanama showing seizure of the articles from
the Appellant's house at Exhibit-69 mentions recovery of two gold
bangles; out of which, one bangle was broken into three pieces.
There was one ear top pair. All these articles were produced in the
Court and were identified by the witness including the I.O.
23. PW-13 P.I. Anil Jagtap was attached to the Detection
Branch. He deposed that the mobile phone of the deceased was
lying at the spot. The CDR of that mobile number was collected.
There was one phone call at about 9:19a.m. on 07.03.2011. The
call entry was deleted from the mobile of the deceased, but the call
was reflected in the CDR. This call was suspicious. From that call,
further investigation was carried out and it was traced to the
phone number of Shobha i.e. the wife of the Appellant.
Accordingly, he was given an order by his superior to proceed to
Karwar. He along with the other police officers went to Karwar by
train. They reached on 09.03.2011 at about 3:30p.m. His team
then went to the house of the Appellant. His wife Shobha was
present. The Appellant was present. His personal search was taken
in the presence of the panchas. The articles, as mentioned earlier,
23 of 32 Apeal-132-24 (J)
were recovered from his person during the search. After making
report to Karwar police station they left Karwar by train on
09.03.2011 itself and reached their own police station i.e. at
Vishnunagar Police Station on 10.03.2011 at 01:20p.m., with the
muddemal property. He identified the Appellant and the seized
property. He identified the mangalsutra.
His cross-examination is mostly in the nature of
suggestions that he was deposing falsely. He denied those
suggestions.
24. PW-14 Deepak Pandit was examined as the handwriting
expert. He deposed that, he received the concerned documents. He
found that the person who had written the Exhibit Nos.S-1 to S-6
had also written the Exhibit Nos.Q-1 and Q-3. The natural
handwriting N-1 and the specimen handwriting S-1 to S-6 were
not tallied, therefore, the natural handwriting N-1 was not
considered for examination. The effect of his evidence was that the
entries in the register of the society referred to herein above i.e.
two entries dated 05.01.2011 and one entry dated 07.03.2011
24 of 32 Apeal-132-24 (J)
were found to be in the handwriting of the appellant.
In the cross-examination, he deposed that he had not
given the statement of reasons to the police. According to him, the
statement of reasons was meant for the purpose of helping the
Court and, therefore, it was to be submitted to the Court at the
time of giving evidence. His opinion is produced on record at
Exhibit-109. His statement of reasons is produced on record at
Exhibit-113.
A requisition for handwriting expert's opinion is
produced on record at Exhibit-90. It refers to three question entries
from the register of the Riddhi Siddhi society; they are termed as
Q1, Q2 and Q3, for dated 05.01.2011 the Entry No.47 and 51 and
for dated 07.03.2011 the Entry No.16 respectively. Seven specimen
signatures were marked as S1 to S7 and natural handwriting
marked as N-1 was the signature on the loan application form
submitted with Karwar Urban Co-operative Bank.
This is the evidence led by the prosecution.
25 of 32 Apeal-132-24 (J)
SUBMISSIONS OF MR. SHASHIKANT CHANDAK, LEARNED
COUNSEL FOR THE APPELLANT.
There are no eye witnesses to the incident. The F.I.R.
did not give details of all the jewellery which was allegedly stolen.
The mobile phone number, based on which the investigation
proceeded against the Appellant, did not belong to the Appellant.
Similarly, the mobile phone number which is referred to by the
investigating agency regarding the mobile handset found at the
spot, did not belong to the deceased. The neighbours were not
examined. The only neighbour PW-4 Mrudula Bhide who was
examined, did not support the prosecution case fully. The TIP has
no meaning because PW-5 Dhondiram has admitted that the
photograph of the Appellant was shown to him before conducting
the TIP. There was overwriting in the entry in the, therefore, there
was a strong possibility of manipulation in the register. There is
nothing to show that it was the official register maintained by the
society. No office bearers of the society was examined in that
connection. The evidence of the Manager of the Bank where the
ornaments were pledged has no meaning because the articles were
not produced before the Court and she identified the Appellant
26 of 32 Apeal-132-24 (J)
only through video conferencing.
25. PW-3 Rajdutta's cross-examination was not allowed to be
conducted. Therefore, the recovery of wire cannot be held against
the Appellant. In any case, the wire was not produced before the
Court. It was found from an open place, therefore, this recovery
cannot be held against the Appellant. PW-5 Dhondiram is clearly a
tutored witness. Finding of the ornaments from the Appellant's
house was natural and there was nothing incriminating about it.
SUBMISSIONS MADE BY LEARNED APP MS. DHANALAXMI
KRISHNAIYAR FOR THE STATE:
The Appellant had misled the watchman that, he
wanted to go to Flat No.502 when nobody was present in that flat.
The evidence shows that, in the past also he had come to the
society by making the false entries. Thus, he had hatched that plan
much before the incident. In January 2011, he had mentioned the
entry of flat No.B-503. He had entered that flat at 2:50p.m. On the
same date again he had entered that flat at 4:00p.m., but this time,
in the entry he had not mentioned the flat number. On 07.03.2011,
he had mentioned the flat No.B-502 and not B-503. Thus, there
27 of 32 Apeal-132-24 (J)
was a clear design to commit the crime by creating false record.
The presumption U/s.114 of the Evidence Act, in particular,
illustration (a) applies. She submitted that, the false entry in the
register is proved through the handwriting expert's opinion. There
is recovery of the ornaments. They are identified by the witness.
The motive was obviously of robbery. All these circumstances form
a complete chain and, therefore, the prosecution has proved its
case beyond reasonable doubt.
Learned counsel appearing for the Respondent No.2-
first informant adopted the arguments advanced by the learned
APP.
REASONS
26. We have considered these submissions. This case is
based on the circumstantial evidence. We have carefully
considered each of these circumstances against the Appellant. The
first circumstance is about effecting entry in the house of the
deceased. The deceased's phone or at least the phone which she
was using was found at the spot. The phone call at 9:11a.m. is a
28 of 32 Apeal-132-24 (J)
significant circumstance in this case. That particular phone call
entry was deliberately deleted from the handset of the deceased
which was lying there. However, that phone call was reflected in
the CDR. Further it was revealed that the said phone call was
made from the phone number registered in the name of the
Appellant's wife. Thus, there is direct connection of that particular
phone number with the Appellant. The circumstance that the said
phone call entry was deleted from the mobile handset clearly
shows that the Appellant had tried to erase the evidence which
was directly concerned with that particular phone call. It was
made from Karwar. The deceased was residing at Karwar with her
brother before coming to Dombivli to stay with her daughter for a
few days.
27. The Appellant had also made a similar entry in that
particular flat in the month of January 2011. Thus, the deceased
had allowed him to enter the house. He stayed in the house
between 9:30a.m. to 3:00p.m.; as can be seen from the entry
where his departure time is mentioned. During that period, this
incident had taken place.
29 of 32 Apeal-132-24 (J)
28. The handwriting of the entry is conclusively proved
through the evidence of PW-14 that it was of the Appellant himself.
Thus, the first circumstance of entering the house of the deceased
and deleting his mobile phone record is a strong incriminating
circumstance which is proved by the prosecution beyond
reasonable doubt.
29. The entry in the month of January 2011 shows that he
had made the entry to visit flat No.B-503, but on 07.03.2011 he
had deliberately not mentioned the flat No.503, but instead he had
mentioned flat No.502 when he had no connection with the
occupant of the flat No.B-502. This also means that he had entered
the society with a clear mind to commit that offence. It was a
premeditated crime. The police, through some intelligent work,
traced the phone record and reached Karwar where the Appellant
was arrested. His personal search and search in the house showed
that he had kept the ornaments belonging to the deceased with
him. Those ornaments were seized. They were identified by the
witness. They were identified when they were produced in the
Court. One of the bangles was broken into three pieces. PW-1 Avni,
30 of 32 Apeal-132-24 (J)
in particular, was well aware of the ornaments worn by her
mother. She was also naturally aware of her own ornaments. She
had identified those articles in the Court and during the
investigation, as well. All those articles were recovered from the
possession of the Appellant. This is yet another strong
circumstance against him.
30. The third circumstance of pledging of the ornaments is
also important. However, those ornaments were not produced
before the Court. The Bank Manager had deposed that the
Appellant had come to their bank on the very next day of the
incident and had pledged the ornaments with the bank. The
incident had taken place on 07.03.2011 and the Appellant had
gone to their bank on 08.03.2011 for pledging the ornaments. The
Bank Manager had identified the Appellant with his full name
when he was produced during the trial through video
conferencing. There is no reason to disbelieve her. It would have
been better if through court process the ornaments pledged by him
were produced before the Trial Court. But the fact remains that the
prosecution has proved that on the next day of the incident, the
31 of 32 Apeal-132-24 (J)
Appellant had pledged the same ornaments with the said bank.
31. As far as recovery of the wire is concerned, we are
inclined to give benefit of doubt, only for that circumstance, to the
Appellant. First of all, the pancha was not available for the cross-
examination, secondly, the wire was recovered from an open place
accessible to all, and thirdly, the wire was not produced in the
Court.
32. The medical evidence shows that the deceased was
murdered by throttling and strangulation. The motive was robbery
as the ornaments were stolen. As rightly submitted by the learned
APP that, illustration (a) to Section 114 of the Evidence Act would
apply in this case; which reads thus:
"114. Court may presume existence of certain facts -
.......
Illustrations
The Court may presume -
(a) 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;"
32 of 32 Apeal-132-24 (J)
33. Hence, we find that the prosecution has proved the
above circumstances separately and cumulatively beyond
reasonable doubt. They form a complete strong chain of
circumstances against the Appellant. Therefore, the learned Judge
has rightly convicted and sentenced the Appellant. We see no
reason to interfere with the impugned Judgment and order.
34. With the result, the Appeal is dismissed. With disposal of
the Appeal, the connected interim application is also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
