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The State Of Maharashtra vs Vishwajeet Kerba Masalkar on 23 July, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CONFIRMATION CASE NO.2 OF 2016

The State of Maharashtra … Appellant
(Through Wanwadi Police Station)

Versus

Vishwajeet Kerba Masalkar,
Age about – 25 years, Occupation Service,
Resident at Champaratna Society, Building No.3,
Flat No.4, Uday Baug, B.T. Kavade Road, Ghorpadi,
Pune. … Respondent

Mr. Arfan Sait, APP for State.
Ms. Payoshi Roy i/b. Dr. Yug Mohit Chaudhary for the Respondent.

CORAM : B.P. DHARMADHIKARI
MRS. SWAPNA S. JOSHI, JJ.

DATE ON WHICH SUBMISSIONS WERE HEARD : 7th JUNE 2019
DATE ON WHICH JUDGMENT IS PRONOUNCED : 23rd JULY 2019

JUDGMENT (PER SMT. SWAPNA S. JOSHI, J.):-

1 This Appeal takes an exception to the judgment and order

dated 26/31st August 2016 decided by the Additional Sessions Judge, Pune

in Sessions Case No.64 of 2013, whereby the learned Additional Sessions

Judge has convicted the respondent (hereinafter referred as “accused”, for

the sake of brevity) for the offence punishable under Sectionsection 302 of the

Indian Penal Code and sentenced him to death and pay a fine of Rs.5,000/-

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in default to suffer R.I. for one year. The convict was ordered to be hanged

by neck till his death. The accused was further convicted for the offence

punishable under Sectionsection 307 of IPC and sentenced to suffer R.I. for 10

years and to pay a fine of Rs.10,000/- in default to suffer R.I. for one year.

He was also convicted for the offence punishable under Sectionsection 201 of IPC

and was sentenced to suffer R.I. for three years and to pay a fine of

Rs.5,000/- in default to suffer R.I. for six months.

2 The factual matrix of the prosecution case is as under :-

On 4th October 2012, Mr. Bajirao Mohite, ACP CID (PW14)

who was on duty at Wanawadi Police Station, Pune, at about 7.45 pm,

received a message from Police Control Room that theft has taken place at

Champaratna Society, Uday Baug, Wanwadi. On receipt of the said

information, he proceeded to the place of incident. The accused who was

working as a Facility Executive in DTSS Company, Pune informed to the

Police that theft has taken place in his house and his mother, wife and

daughter have been killed. Similarly, his neighbour Madhusudan Kulkarni

has been injured. PW14 – ACP Mohite entered the said information in the

laptop carried by him and it was treated as a complaint (Ex.100). On the

basis of the said complaint, offence was registered vide C.R. No.196/2012

under Sectionsection 302 and Section397 of IPC. In the said complaint, it was mentioned

that one gold chain of 8 tolas, one gold mangalsutra, cash amount of

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Rs.7,000/-, 3 small rings and 2 almond shape pendants total jewellery of

Rs.3,07,000/- was stolen. ACP Mohite sent all three dead bodies to the

hospital. So also he referred Madhusudan Kulkarni (PW12) for his medical

treatment in the hospital. ACP Mohite visited the place of incident and

recorded panchanama of the scene of offence (Ex.25).

3 ACP Mohite while recording the spot panchanama, observed

that there were no marks of forceful entry on both the doors as well as

safety doors of the flat. He also found inside flat no.4 belonging to the

accused that behind photo frame hanged on the wall, one small

mangalsutra, 3 small gold rings, 2 gold almond shape pendents and cash

amount of Rs.7,000/- was found in one red colour money purse (SectionArticle –

D). So also one ash colour money purse (SectionArticle – 12) was found lying in the

flat of the accused. All those articles were taken charge by ACP Mohite from

the flat no.4 belonging to the accused. Flat no.4 and the flat belonging to

Kulkarni i.e. flat no.1 were adjacent to each other. At the place of incident

near the main door of the flat of the accused, few pieces of bangles stained

with blood and one blood stained odhani were found which was also taken

charge by the Police. Thereafter, the inquest panchanamas of the 3 dead

bodies were prepared by the Police, vide panchanamas (Ex.69 to 71)

respectively. The statements of witnesses came to be recorded. During the

course of investigation, it was noticed that neither there was a theft of gold

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ornaments or cash from the house of the accused nor there was a forcible

entry from any of the doors of the house of the accused or the adjacent

house belonging to Kulkarni (PW12). It was also revealed that there was

love affair between the accused and one Gauri Londhe (PW2). Therefore,

the Police suspected that the accused might have committed murder of his

wife, mother and child. So also, he must have injured Madhusudan Kulkarni

as he might have noticed the said murder and therefore, accordingly,

investigation was conducted and the accused was arrested by the Police,

vide arrest panchanama Ex.103. ACP Mohite took charge of clothes of

deceased Archana i.e. wife of the accused and his daughter Kimaya vide

Ex.72. So also clothes of deceased Shobha i.e.mother of accused were seized

vide Ex.105. The seized articles were sent for forensic analysis by the

Investigating Officer. So also the post-mortem reports of the three deceased

were secured by the Police. Dog squad also visited the place of incident

during the course of investigation. The C.A. reports were taken charge vide

Exhs.11 to 15. After completion of investigation, the charge sheet was filed

in the Court of learned J.M.F.C. The case was committed to the Court of the

learned Additional Sessions Judge. On recording of evidence and hearing

both the sides, the Additional Sessions Judge convicted the accused as

aforesaid.

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4 The learned counsel for the applicant Dr. Yug Chaudhary along

with Ms.Roy vehemently canvassed that the statement of the star witness

PW12 has been recorded at belated stage, although he was conscious and

oriented to give his statement before the Police. It was stated that the

conviction is based only on the point of recovery of jewellery which was not

identified by any of the witnesses more particularly PW5 who is father of

the deceased Archana. Even the sister of accused has not been examined by

the prosecution who would have thrown light on the aspect whether the

said jewellery was belonging to her mother deceased Shobha. It is stated

that the prosecution has failed to establish the link between the deceased

Shobha, Archana and the jewellery allegedly found in the house of accused.

It was further contended that the hammer, used in the offence, particularly

to assault PW12 was not identified by him in the Court.

5 It was canvassed that when the dog squad was brought at the

place of incident, the accused was present on the spot, however after

smelling the things given to the dog, the dog went out of the flat for about

50 meters and then went 800 to 900 meters upto Railway crossing to find

the culprit. It was stated that the said fact shows that some other person

was involved in the offence. It was stated that the trial court framed charge

u/s 34 of SectionIPC, however, the accused was only found to be an offender. It

was argued that finding of un-indentified articles such as odhni, grey colour

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purse and channi at the place of incident points out the involvement of

another culprit.

6 The finding of blood on the hammer kept in a bag which was

thrown in water appears to be improbable, according to the learned

counsel. It was argued that even there is discrepancy in the description of

colour of T-shirt of the accused, which was worn by him at the time of

incident and seized by the Police. The defence did not dispute that there

was love affair between the accused and PW2 and that the accused lodged

FIR in respect of the incident. It is the case of the defence that the main

intention of the culprit was to commit robbery, however during the course

of robbery, murder had taken place in the house of accused and hence, he

had lodged the complaint with the Police. It was urged that the prosecution

has failed to connect the articles odhani, ash colour purse and chhanni

found at the place of incident with the accused as no one has identified

these articles as to whom they belong. It was stated that no motive has been

proved by the prosecution. The case of the accused is that he simply wanted

divorce from his wife. There was no reason to kill his wife as well his

mother and child.

7 Per contra, the learned APP Mr. Sait contended that it was the

accused who has set the investigation into motion. He himself has reported

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to the Police that robbery had taken place in his house and during the

course of the said robbery, murder was committed of his wife, mother and

child. He also reported that one gold chain of 8 tolas, one gold mangalsutra,

cash amount of Rs.7,000/-, 3 small gold finger rings and 2 almond shape

pendants have been taken away by the culprits. The learned APP submitted

that in fact spot panchanama (Exh.25) shows that except gold chain

weighing about 8 tolas other articles were found behind the photo frame

kept in a red colour purse which clearly indicates that the accused had

lodged a false complaint in respect of the robbery in his house and further

conduct of the accused shows that he himself had committed murder of his

wife, mother and child. The learned APP submitted that recovery of hammer

at the instance of accused, taken charge under Sectionsection 27 of the Evidence

Act pointed out towards his guilt. It was contended that even CCTV footage

supports the case of the prosecution. It is submitted that the accused has

attempted to commit murder of his neighbour PW12, who supported the

family of the accused including his mother and sister. PW12 financially

helped the sister of accused who was married. Ultimately, the APP urged

for confirmation of the death sentence awarded to the accused.

8 In order to verify the rival contentions of both the sides, it

would be advantageous to go through the evidence led by the prosecution.

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9 The defence did not dispute the scene of offence, filing of

complaint by the accused and his love affair with PW-2 – Gauri Londhe.

During the course of investigation, it was revealed that the deceased Shobha

i.e. mother of accused was working in the house of Madhusudan Kulkarni

(PW-12). Madhusudan Kulkarni had transferred his entire property in the

name of daughter of Shobha who was married.

10 It is also not disputed that deceased Archana, Shobha and

Kimaya died a homicidal death. The cause of death of deceased Kimaya was

due to asphyxia, due to smothering. The post-mortem report is at Exh. 53.

Similarly, the cause of death of deceased Shobha Masalkar was due to

traumatic and hemorrhagic shock, due to head injury. So also cause of

death of deceased Archana was due to traumatic and hemorrhagic shock,

due to head injury. In case of Kimaya, Medical Officer PW6 – Dr. Ajay

Taware opined that if mouth and nose are pressed by hands, death due to

smothering can be possible. He issued post-mortem report to this effect vide

Exh.52. In case of Shobha Masalkar, opinion was given by PW6 that injuries

mentioned in paragraphs 17 and 19 of the post-mortem report (Exh.54), are

possible by assault by seized hammer (SectionArticle 24 K) and chhanni (SectionArticle 5).

Similarly, PW6 deposed that in case of Archana Masalkar, the injuries

mentioned in paragraphs 17 and 19 of post-mortem report (Exh.56) are

possible by assault by seized hammer (SectionArticle 24 K) and chhanni (SectionArticle 5).

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The inquest panchanama (Exh.71) of Kimaya Masalkar indicated that eyes

of Kimaya were partially closed. In between both eyebrows, there was some

abrasion. Whitish froth was seen coming out of her nose. So also near the

right eyebrow there was a small blackish spot and on the upper lip

internally there was a small injury.

11 Inquest panchanama of Shobha Masalkar (Exh.69) indicates

that there were multiple injuries mainly over occipital region. The inquest

panchanama of Archana Masalkar (Exh.70) indicates multiple injuries on

her face and occipital region of the head and other parts of the body. The

spot panchanama shows that all the articles in the house of the accused

were in scattered condition. Behind photo frame of Keraba Masalkar, a red

colour money purse was found containing an amount of Rs.7,000/-, one

gold mangalsutra, three small gold rings and two small almond shape

pendants. One gold chain weighing about 80 gms was missing. Various

blood stains were found on the floor of the flat. So also one chhanni

(weapon) about 6 inches in length and ¾th inch in width having eight

angles was lying in flat no.1. Similarly, one odhani (chunni), pieces of

bangles and one ash colour money purse was found at the place of incident.

Thus, all the aforesaid facts indicate that deceased Kimaya, Shobha and

Archana died homicidal death.

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12 The prosecution case is based on direct evidence as well as

circumstantial evidence. So far as the direct evidence is concerned, the

prosecution heavily relied upon testimony of PW12 - Madhusudan Kulkarni.

Rest of the evidence is circumstantial in nature. The prosecution further

relied upon testimony of PW5 - Vijaykumar Sonpetkar, who is father of

deceased Archana, PW2 - Gauri Londhe with whom the accused had love

affair, PW4 - Deepak Patankar on the point of spot panchanama, PW8 -

Haji Mastan Salim Shaikh who was the friend of accused, PW7 - Abhijit

Shinde - friend of the accused who was working with him in DTSS Company

Magarpatta, Hadapsar, Pune. On the point of medical evidence, the

prosecution examined the Medical Officers PW13 who examined

Madhusudan Kulkarni and PW16 - Dr. Tushar Madhavrao Kalekar who is

Radiologist and examined PW12 - Madhusudan Kulkarni. The prosecution

further examined PW6 - Dr. Ajay Taware who conducted the autopsy on the

three deceased persons. In order to prove the recovery of hammer at the

instance of accused, the prosecution examined pancha PW11 - Santosh

Awaghade. The prosecution also relied upon testimony of PW10 - Pratik

Shinde in whose presence clothes of accused and broken mangalsutra of his

wife were taken charge. So far as the investigation is concerned, the

prosecution relied upon the testimony of the Investigating Officer (PW14) -

Bajirao Dadoba Mohite, A.C.P., C.I.D. On the point of motive, the

prosecution examined PW2 - Gauri Londhe and PW5 - Vijaykumar

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Sonpetkar. To prove the conduct of the accused, the prosecution placed

reliance on the testimony of PW8 and PW7.

13 The investigation in the instant case initiated from the

complaint lodged by the accused himself vide Exh.100. The accused stated

that on 4th October 2012, as there was a marriage of his friend Haji Mastan

Shaikh (PW8), he was on leave and therefore, he was at home. As it was

raining heavily, the accused could not proceed for the marriage till 3.30 pm.

At about 3.30 pm, he left his house he took an amount of Rs.1,000/- out of

the amount of Rs.8,000/- which was in his house kept in the cupboard and

left the house. According to the accused, he contacted his friends Kamble as

well as Deepak Choudhary on mobile phone. The accused along with his

friend Deepak Choudhary proceeded to meet Haji Mastan Shaikh (PW8) at

about 5.30 pm. At about 6.00 pm, the accused visited his office and at about

7.45 he returned from the office to his house. It was dark. He found that

safety door of his own house was in open condition, so also the door of the

adjacent house belonging to Kulkarni was open. The accused first entered in

the house of PW12 - Kulkarni and switched on the light. He found Kulkarni

lying in the pool of blood on the bed kept in the hall of the house. On

making enquiry with Kulkarni, Kulkarni informed him that he slipped down

in the kitchen. The accused saw PW1 - Rajkumar Pawar, who was resident

of the same building where the accused was staying. He made enquiry with

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him whether he had seen anyone visiting the house of Kulkarni. Rajkumar

Pawar then called the Chairman of the society so also other members of the

society also rushed to that place. The accused then entered in his own house

and switched on the light. At that time, he noticed his wife and mother

lying on the floor in pool of blood. So also his daughter Kimaya was lying

on the bed. The accused noticed empty jewellery box on the bed. The

accused then informed the Police control room about the said incident. The

Police recorded the complaint lodged by the accused about the murder and

theft of the jewellery and cash amount of Rs.7,000/- (Exh.100).

14 PW14 - ACP Bajirao Mohite registered offence on the basis of

the said complaint vide C.R. No.196 of 2012 under Sectionsections 302 and Section397 of

IPC.

15 The prosecution relied upon the testimony of PW12 -

Madhusudan Kulkarni. The testimony of PW12 shows that he was residing

in the neighbourhood of the accused. The mother of the accused viz.

Shobha Masalkar was having a daughter namely Aboli who was married.

According to PW12 there used to be quarrels between the accused on one

hand and the mother of accused on the other hand. Accused was intending

to marry another lady and he was to give divorce to Archana. PW12 and

Shobha were against the accused on this aspect. On the date of incident i.e.

4th October 2012, when PW12 was in his house, after about 12 noon, he

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heard noise of shouts and cries, he immediately came out. He noticed

Kimaya and her mother were crying outside the house. PW12 made inquiry

with them as to why they were crying outside the house. PW12 then came

inside his house. Suddenly, someone hit on his backside by some weapon.

PW12 felled down and noticed the accused holding hammer and was going

away. Thereafter, PW12 became unconscious. He was admitted in the

hospital for six days. Police recorded his statement. It is noticed that during

the cross-examination of PW12 it was pointed out that the version of PW12

that accused was holding hammer in his hand and he saw him going away

is an improvement made by PW12 before the Court. The said omission in

the evidence of PW12 before the Court goes to the root of the prosecution

case and it creates a serious doubt whether after receiving the injury on his

head, PW12 noticed the accused while going away with the hammer in his

hand. The evidence of PW12 is indicative of the fact that after 12.00 noon

he noticed the deceased Archana along with her daughter Kimaya both

crying standing outside their house.

16 It can be gathered from the testimony of PW12 that somebody

assaulted him on his backside by some weapon. Deposition of PW12 also

shows that he was admitted in Sassoon Hospital and after six days his

statement was recorded by Police. Further part of the cross-examination

shows that from the Police PW12 came to know that as the accused desired

to marry with one Gauri Londhe he quarrelled with his wife Archana and

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mother Shobha and killed them by means of hammer and smothered his

daughter by a pillow to death. He also came to know that as the accused

thought that PW12 would disclose the said incident to others, he assaulted

him on his head by means of hammer and tried to kill him. The testimony of

PW12 is found to be reliable one.

17 The prosecution examined PW5 - Vijaykumar Sonpetkar who

is father of deceased Archana. The testimony of PW5 demonstrates that one

and half years after the marriage, Archana happily cohabited with the

accused. However, thereafter the accused started beating her on account

that she is not cooking food properly. The accused was not allowing

Archana to contact him on phone. Archana used to call him by using public

phone and she used to inform about ill-treatment suffered at the hands of

accused. Archana gave birth to twins. They both expired. PW5 stated that

the accused stated to him that he had spent Rs.75,000/- for the treatment of

Archana. Therefore, he demanded the said amount from PW5. PW5 could

not fulfill the said demand due to his poor financial condition.

18 In the month of May 2012, PW5 visited the house of the

accused along with his relatives and tried to convince him. However, the

accused was not in a position to listen to them. The accused stated that he is

going to take divorce with Archana as he is having love affair with another

girl. The accused also threatened to kill Archana. The accused asked PW5 to

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compel Archana to sign on the stamp paper. PW5 gave understanding to

both Archana as well as accused and he returned to his village. In June

2012, the accused assaulted Archana and ousted her from the house.

Therefore, Archana came to her parental house and informed about the said

fact to her father. At that time, accused took custody of his daughter and

did not allow Archana to take her child with her and he himself kept

custody of his daughter. PW5 stated that his daughter Archana informed

him that accused is having love affair with another girl and he was talking

with her on phone during late night hours. On 18 th July 2012, as Archana

was having a feeding child, PW5 reached the house of accused with his

younger son. On 4th October 2012, PW5 received on telephonic message

from one Anil Mhaswadekar that decoity has taken place in the house of the

accused in which Archana was killed. The testimony of PW5 makes amply

clear that his daughter Archana used to complain about the accused that he

is having love affair with one girl. So also the accused used to ill-treat

Archana for the said reason. He also threatened to kill Archana. The accused

had also asked Archana to sign on the stamp paper (Ex.31).

19 At this juncture, it will be appropriate to peruse the stamp

paper produced by the prosecution vide panchanama Exh.33. The said

stamp paper shows that as there were disputes between Archana and the

accused and as he was having love affair with another girl he wanted to

marry with her. Archana decided to separate herself from the accused and

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for that purpose, the accused promised to transfer 5 Acres of land in her

name. Archana expressed her 'no objection' allowing accused to marry with

another girl. Significantly, stamp paper was taken charge by Police from the

cupboard kept below the T.V. Thus, stamp paper also supports the

allegations of PW5 against the accused that the accused was having love

affair with another girl and therefore, he wanted to get rid of Archana and

accordingly, he insisted her to give divorce to him. The testimony of PW5 is

not shattered in his cross-examination. PW5 admitted that he did not lodge

complaint against the accused. Evidence of PW5 shows that accused used to

ill-treat Archana. PW5 is found to be a trustworthy witness. It was argued

by the learned Advocate for the accused that although the search of house

was taken on 4th October 2012 no stamp paper was taken charge and it was

seized on 15th October 2012 in the presence of PW3. In this context, it can

be said that at that point of time Police might have not taken inspection of

the documents.

20 Evidence of PW2 - Gauri Popat Londhe examined by the

prosecution shows that the accused was in love with the said lady. The

testimony of PW2 shows that she was serving in the same Company where

the accused was working as Site Manager. The accused used to call her on

her mobile number, so also he used to send SMS. The accused promised to

marry her. The accused also asked PW2 not to marry with another boy.

Once the accused disclosed to PW2 that he was already married and was

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having one daughter. He however, clarified that the relations between him

and his wife were strained and his wife used to quarrel with him. Thereafter

PW2 refused to marry with the accused. The accused still insisted PW2 to

marry with him. He used to repeatedly contact her on mobile phone and

send SMS to her and pressurised her for marriage. The accused informed

PW2 that he will divorce his wife or else kill her. PW2 deposed that she

suggested him not to kill anyone and she refused to marry with him. On 1 st

October 2012, the accused took PW2 to Kondhawa and they both stayed

together in one hotel. According to PW2, the accused said that if they will

not die by consuming medicine then great problem will be created. The

accused informed to PW2 that he will transfer 5 Acres of agricultural land in

the name of his wife and give divorce to her. The accused then left her to

her house. At that time also PW2 refused to marry with the accused. Thus,

the testimony of PW2 and PW5 indicate the motive of the accused. It

appears that the accused was madly in love with PW2 and therefore, he

used to ill-treat his wife Archana and he had threatened to kill her.

21 On 4th October 2012, PW2 received a phone call from the

accused stating that he wanted to attend marriage of his friend Haji. His

mother had already gone to attend the said marriage and subsequently, he

would attend the same. The accused asked her whether their love affairs

would be successful and also informed that he is ready to marry with her. At

that time, PW2 disconnected his phone. At about 4.30 pm, PW2 again

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received phone call of the accused. He informed that the marriage of Haji

was performed, however, as one of his relatives died therefore, the said

marriage was not properly performed. The accused told PW2 as to how the

love of Haji succeeded. PW2 then disconnected the phone. At about 5.30

pm she saw two missed calls of the accused, therefore, at 6.30 pm she called

the accused. At that time, he informed that he was proceeding to his office.

At about 7.30 pm, PW2 again gave a missed call to the accused, however,

the accused did not reply to the said missed call. At about 10.30 pm, the

accused informed her that there was a problem in his house and he will call

her lateron. In the extensive cross-examination, PW2 admitted that when

the accused met her for the first time, he took her to a lodge and they

established sexual relationship in the lodge. Evidence of PW2 shows that

PW2 and accused were in love with each other and they were in physical

relationship. The said testimony also indicates that although PW2 was

aware that the accused was a married person, she was involved in him and

also they were in contact with each other on mobile phone. Testimony of

PW2 corroborates with the testimony of PW5, on the aspect of accused

having love affairs with PW2. So also the behaviour of the accused with

Archana and that he wanted to take divorce from her. Testimony of PW2

was assailed during her cross-examination on the point of her fidelity and

establishing sexual relationship with accused, which she admitted. The

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evidence of PW2 is not shattered in the cross-examination on material

aspects.

22 In order to prove the spot panchanama, the prosecution

examined PW1 - Rajkumar Pawar. The spot panchanama shows that there

was a common safety door for flat no.4 belonging to the accused and there

was also a wooden door to the said flat. The said door was in open

condition. There was no indication that the said door was opened forcefully

so also there was no evidence that the door of flat no.1 was opened by using

force. Windows of flat no.4 were in closed condition. There was a photo

hanging on the wall. At the backside of the said photo frame, one red

colour purse was found. It was containing the amount of Rs.7,000/-, one

small mangalsutra, three small gold rings and two gold almond shape

pendants. Police took charge of those articles and sealed it by affixing lable

bearing the signatures of the panchas and Police. There was a showcase in

the bedroom of the house. All the articles were intact in the said cupboard.

The blood was lying on the floor. Similarly one chhanni of 6 inches in

length and having 8 angles was seen in flat no.1 belonging to Kulkarni. So

also in the said flat also, blood was found on the floor. Chhanni was taken

charge by the Police under panchanama.

23 Spot panchanama demonstrates that no forceful efforts were

made by anyone to open the door of either flat no.4 or flat no.1. So also

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jewellery and cash were found behind the photo frame in the house of the

accused indicating that no robbery had taken place in the said flat. It

appears that no outsider has entered inside the house of the accused. It is

worthwhile to note that the FIR filed by the accused shows that same

articles were shown as missing from his house. Except the gold chain

weighing 8 tolas which was never traced out, was found in the house of

accused itself. The accused offered no explanation for the same. The said

circumstances go against the accused.

24 In order to show conduct of the accused prior to the incident

and after the incident, the prosecution examined PW8 and PW7. PW8 - Haji

testified that he was knowing the accused since his childhood. Two months

prior to the incident, PW8 visited the house of the accused and at that time,

the mother of the accused told PW8 - Haji that the accused is not behaving

properly and he used to return home in drunken condition and he wanted

to marry another girl. The mother of the accused requested PW8 to

convince the accused on the said aspect. Accordingly PW8 tried to convince

the accused. However, the accused did not respond to the suggestions of

PW8. On 3rd October 2018, the accused met PW8 as the marriage of PW8

was to be performed on the next date at Kondhawa. The accused informed

him that he would attend his marriage and he had already taken leave for

the same. PW8 stated that he requested the accused to attend his marriage

along with his mother, wife and children. Significantly, PW8 stated that he

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had only seen mother of the accused attending the marriage and accused,

his wife and children were absent. On 4 th October 2012, at about 8.15 pm,

he received telephonic message from one Atlam Kamble that theft has taken

place in the house of accused and someone has killed his mother, wife and

daughter.

25 Evidence of PW8 shows his contact with the accused prior to

the date of incident. Accused had taken leave on 4 th October 2012 on the

pretext of marriage of his friend PW8, however, he did not attend the said

marriage. PW8 had not seen accused attending his marriage and only

mother of the accused attended the said marriage. So also wife and child of

the accused were absent during the said marriage. The testimony of PW8

further shows that mother of the accused had complained PW8 about the

behaviour of the accused in the house and that he wanted to perform

marriage with another girl. She also requested PW8 to convince the

accused. However, the accused did not give any response to the advice

given to him by PW8. There is nothing to disbelieve the testimony of PW8.

It corroborates the evidence of PW2 to the effect that accused was having

love affairs with one girl and he wanted to marry with her. His testimony

also strengthens the case of prosecution that on the date of incident the

accused had already taken leave however, he did not attend the marriage of

PW8 whereas the mother of accused was present in his marriage.

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26 PW7- Abhijit Shinde deposed that the accused was his friend.

They were working together with D.T.S. Company Magarpatta, Hadapsar,

Pune. Two years prior to the incident the accused was transferred to Flame

Campus, Bavdhan as Facility Manager. His testimony further shows that

Gauri Londhe (PW2) was working as Supervisor in Flame Campus,

Bavdhan. There was love affair between Gauri Londhe and the accused.

PW7 stated that he tried to give understanding to the accused that he is A

married person having daughter and he should not get involved with that

lady. PW7 stated that the accused told him that his relations with his wife

were not good and he wanted to give divorce to her and then get married

with Gauri Londhe.

27 According to PW7, on 4th October 2012, at about 6.15 to 6.30

pm, the accused along with Deepak Choudhary visited his office. He stated

that on that day the accused had not attended his duty. He asked the

accused to hand over one parcel to the office of Vodafone at Hadapsar.

However, the accused stated that he is in hurry and he is not able to hand

over any parcel. At that time, he wanted to reach his house earlier. At 7.30

pm, PW7 received telephonic message from the accused that his wife and

mother are lying in injured condition. The accused was crying on phone.

The testimony of PW7 shows that the accused was having love affair with

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Gauri Londhe. On the date of incident the accused was on leave and he

visited the office at about 6.15 to 6.30 pm.

28 The evidence of PW8 that accused did not attend his marriage

indicates that the accused was at home. The accused in Question No.47 of

his statement recorded u/s.313 of SectionCr.P.C., did not dispute the fact that his

mother went for marriage and he was to proceed later on. This fact again

indicates the presence of the accused in his house in the afternoon.

29 As far as the medical evidence is concerned, as discussed above,

PW12 - Madhusudan Kulkarni had received injuries on his head whereas all

three deceased were declared to be dead as they had sustained injuries.

Testimony of PW13 - Dr. Abhijit Bele, Medical Officer shows that on 4 th

October 2012, he examined PW12 - Madhusudan Kulkarni. On examination

he found contused lacerated wound on the occipital region. There were two

injuries on his head. The patient was conscious but not oriented. PW12 was

hospitalized till 17th October 2012. On 10th October 2012 as the patient was

conscious and oriented his statement was recorded. PW13 made

endorsements on the statement of PW12 on Exh.91 and 92 respectively.

PW13 had deposed that patient had two injuries on occipital parietal region

admeasuring 3 x 1 x 1 cm and 2 x 1 x 1 cm respectively. According to

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PW13, the injuries sustained by PW12 are possible by hammer (SectionArticle

24K).

30 PW13 further deposed that apart from other Radiology

examination the patient was referred for C.T. Scan. According to PW13, the

C.T. Scan indicates grievous injuries. PW13 clarified during his further

examination-in-chief by the prosecution that C.T. Scan report indicates

grievous hurt and not simple hurt as mentioned by him in Exh.93. Thus, the

testimony of PW13 clarifies that till 10 th October 2012 the statement of

PW12 was not recorded. It is significant to note that the age of PW12 at the

time of his evidence was 81 years old which means that at the time of

incident in October 2012, PW12 was about 78-79 years old. Considering the

said aspect and also considering that PW12 had received grievous injury to

the occipital region, it appears that Police has recorded his statement on

10th October 2012. The portion marked - A (Exh.127) in the statement of

PW12 shows that it was mentioned in the statement before the Police that

there was grievous injury to his head, he was not remembering anything

therefore, at that time, he did not tell anything to the Police. No doubt the

said fact is denied by PW12. The testimony of PW12 coupled with the

testimony of PW13 explicits that PW12 was hospitalized till 17 th October

2012 and on 10th December 2012 when the patient was conscious and well-

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oriented, the Police recorded his statement. According to Investigating

Officer PW14, PW12 was not in a position to speak till 10th December 2012.

31 PW6 - Dr. Ajay Taware conducted autopsy on the dead bodies

of Kimaya Masalkar, Shobha Masalkar and Archana Masalkar respectively.

On 5th October 2012, PW6 conducted autopsy on the dead body of Kimaya.

On examination of the dead body of Kimaya, he noticed oozing of whitish

froth from nose and her finger nails were cyanosed. The following injuries

were found on her body:-

(i) Abrasion over nasion of face, of size 0.5 x 0.5 cm. Red in
colour.

(ii) Contusion of size 0.5 cm. Lateral to right eye brow of size
0.5 x 0.5 - Blue in colour.

(iii) Laceration over frenulum of upper lip 0.5 x 0.5 cm. Subcut
deep. All the above injuries were anti mortem and fresh.

32 PW6 opined the cause of death as death due to asphyxia due to

smothering. He issued post-mortem report at Exh.52. PW6 categorically

stated that if a person takes the last meal at about 12.00 noon, then the

stomach findings would show semi-digested food material between 2 to 4

hours of the last meal. He further clarified that if the death is caused

between 2.00 to 4.00 pm, the findings of semi-digested food in the stomach

is possible, if the meal is taken at about 12.00 noon. PW6 deposed that the

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post-mortem of Kimaya was conducted in between 10.00 am to 11.00 am.

The advance cause of death was opined by PW6 at Exh.53.

33 PW6 then conducted post-mortem on the dead body of Shobha

Masalkar in between 11.00 pm to 12.00 noon on the same day. On external

examination, PW6 noted the following injuries:-

(i) Contused lacerated wound 0.5 cm above right eye brow,
horizontal 4 x 1 cm. Bone deep.

(ii) Contused lacerated wound 6 cm. Above left ear, over left
ear, over left parietal region of head 3 x 2 cm bone deep,
underlying bone fractured, vertically oblique.

(iii) Contused lacerated wound, over right occipital region of
head, 3 x 2 cm. Bone deep, underlying bone fractured
vertically oblique.

(iv) Contused lacerated wound, over mid parietal region of
head, posterior aspect, horizontal, 3 x 1 cm., bone deep,
underlying bone fractured.

(v) Contused lacerated wound, 3 cm below and left lateral to
injury No.4, 3 x 1 cm. Bone deep, underlying bone
fractured.

34 On internal examination of head, he noticed haematoma in the

scalp over left parietal region 5 x 4 cm, mid parietal region 6 x 5 cm and

occipital region 10 x 8 cm, dark red in colour. He noticed displaced fracture

running from left parietal region to mid occipital region, 16 cm in length.

Subdural haematoma of size 16 x 8 x 0.5 cm was seen over occipital lobe.

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Subdural haematoma of size 4 x 4 x 0.5 cm was seen over frontal lobe of

right side. According to PW6 all the injuries were anti mortem and fresh.

The cause of death was due to hemorrhagic shock, due to head injury. He

issued post-mortem report Exh.54. According to PW6 injuries mentioned in

post-mortem were sufficient to cause death in ordinary course of nature and

the injuries were possible by hammer (SectionArticle 24K) and chhanni (SectionArticle 5).

35 PW 6 conducted post-mortem on the dead body of Archana

Masalkar in between 12.00 to 1.00 pm. On examination, he pointed out the

following injuries :-

(i) Contused lacerate wound 6 cm. above and behind right
ear, horizontal, 3 x 1.5 cm bone deep.

(ii) Contused lacerated wound 8 cm. Anterior and above injury
No.1, 1 x 1 cm. Bone deep.

(iii) Contused lacerated wound over mid occipital region 4 x 2
cm. Bone deep.

(iv) Contused lacerated wound 1 cm. Below and right lateral to
injury No.3, admeasuring 2 x 1 cm. Bone deep.

(v) Contused lacerated wound over right parietal region of
head 3 x 3 cm. Bone deep.

(vi) Contused lacerated wound over mid parietal region of
head, 5 cm. Behind injury No.5, admeasuring 3 x 1 cm.
Bone deep.

(vii) Contusion over right arm upper one third region medial
aspect 3 x 1 cm. Bluish black.

(viii) Abrasion over right elbow, 1 x 0.5 cm. Reddish.

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(ix) Contusion over right wrist, dorsally, lateral aspect 1 x 0.5
cm. Bluish black.
(x) Contusion over base of right little ringer dorsally 2 x 0.5
cm. Bluish black.
(xi) Contusion over base of left little and ring finger dorsally
1 x 0.5 cm. Blue.

36 According to him, the cause of death was due to traumatic and

hemorrhagic shock and due to head injury. PW6 - Dr. Ajay Taware stated

that if a person takes last meal at 12 noon then stomach findings show

semi-digested food material between 2 to 4 hours of the last meal.

According to him, the injuries mentioned in paragraphs 17 to 19 of the post-

mortem report (Exh.56) can be possible by assault by hammer (SectionArticle 24K)

and chhanni (SectionArticle 5). Thus, the ocular testimony of PW12 is consistent

with the medical evidence adduced by PW6. Similarly, the testimony of

PW6 clarifies that deceased Kimaya died due to asphyxia, due to smothering

whereas death of deceased Shobha and deceased Archana Masalkar was

due to traumatic and hemorrhagic shock, due to head injury. The injuries on

the dead body of Shobha and Archana were caused due to hammer (SectionArticle

24K) and chhanni (SectionArticle 5).

37 Now coming to recovery at the instance of accused, the

prosecution heavily relied upon testimony of PW 11. On 6 th October 2012,

PW 11 was required to act as a panch. According to him, the accused made

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a voluntary statement that he had hidden hammer in a canal at B.T. Kawade

Road and showed his willingness to show that place. Accordingly,

Memorandum of Panchanama was drawn (Exh.83). Accused led Police and

panchas to the said place at B.T. Kavade Road and then to the canal near

one temple. Police called for two swimmers. Those swimmers took out one

bag containing hammer from the canal. The said hammer (SectionArticle 24K) was

seized by Police under panchanama (Exh.84). The veracity of the witness

was attacked during his cross-examination on the ground that the accused

was handcuffed at that time hence, it cannot be termed as discovery under

Sectionsection 27 of the Evidence Act and the said circumstance is of no assistance

to the prosecution. In our considered view this cannot be a reason to discard

the evidence of PW11, which corroborates with the evidence of panch

witness and the Investigating Officer. The learned APP placed reliance upon

the judgment in case of SectionPutlabai Bhimashankar Pattan v. State of

Maharashtra1, wherein the same view has been taken by this Court. The

aforesaid discovery of the hammer in a canal, which was within the

exclusive knowledge of the accused, supports the case of the prosecution as

such.

38 On the point of seizure of clothes of accused, the testimony of

PW10 shows that on 6th October 2012, the Police called him to act as a

panch. The accused showed his willingness to point out the place where he

1. 2010 All MR (Cri) 2084

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had hidden burmoda, T-shirt and broken mangalsutra. Accordingly,

memorandum panchanama was drawn (Exh.80). The accused led Police

and panchas to the place at M.B. Stall, Hadapsar and then in front of Gate

No.2 of Spika Company. The accused then took out from beneath the shrubs

one plastic bag containing burmoda having blood stains, one T-shirt with

blood stains and one broken mangalsutra. Police took charge of the said

articles under panchanama (Exh.81).

Nothing damaging was elicited during the cross-examination of

this witness.

39 It was the contention of the learned counsel for the accused

that none of the witnesses have stated about accused wearing those clothes

at the time of incident. It is already discussed above that the present case is

based upon circumstantial evidence. Hence, there is no question of anyone

seeing the accused wearing those clothes at the time of incident.

40 It is undisputed fact that the accused himself reported the

matter to the Police about the commission of robbery in his house and

finding of dead bodies of his mother, wife and child. In case of the FIR

lodged by the accused the law is very well settled. Confessional part of the

FIR is not admissible in evidence except to the extent permissible under

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Sectionsection 27 of the Evidence Act. Non-confessional part of the FIR however

can be used against the accused as evidence of conduct under Sectionsection 8 of

Evidence Act.

41 In case of Bheru Singh s/Sectiono Kalyan Singh vs. State of

Rajasthan2, it is held by the Hon'ble Apex Court that where FIR is given by

accused himself to a Police Officer and amounts to confessional statement,

the proof of confession is prohibited by Sectionsection 25 of the Evidence Act. No

part of the confessional statement can be proved or received in evidence,

except to the extent it is permitted by Sectionsection 27 of Evidence Act. The FIR

recorded under Sectionsection 154 of Cr.P.C. is not a substantive piece of evidence.

It may be used to corroborate the informant under Sectionsection 157 of the

Evidence Act or to contradict him under Sectionsection 145 of the Evidence Act, in

case the informant appears as a witness at the trial. Where the accused

himself lodges the FIR, the fact of his giving the information to the Police is

admissible against him as evidence of his conduct under Sectionsection 8 of the

Evidence Act and to the extent it is non-confessional in nature, it would also

be relevant under Sectionsection 21 of the Evidence Act but the confessional part of

FIR by the accused to the Police Officer cannot be used at all against him in

view of the ban of Sectionsection 25 of the Evidence Act.

2        (1994) 2 SCC 467

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42 In the instant case, the FIR (Exh.100) discloses that the accused

reported to the Police that at about 3.30 pm, he left his house. He along

with his friend Deepak Choudhary proceeded to meet PW8 - Haji Mastan

Shaikh at about 5.30 pm. At about 6.00 pm he visited his office and at

about 7.45 pm he returned from his office to his house and at that time, the

accused first entered in the house of PW12 - Kulkarni and he saw him lying

in the pool of blood on the bed which was kept in the hall of the house. In

our considered opinion, the contention of the accused that at 5.30 pm he

went to meet PW8 - Haji has no corroboration from the evidence of Haji.

PW8 - Haji categorically stated that mother of the accused attended his

marriage and he had not seen the accused at that time. PW8 nowhere says

that the accused met him in the evening at 5.30 pm. The FIR however

reveals that the accused made inquiry with PW12 - Kulkarni and PW12

informed that he slipped down in the kitchen and therefore, he received

injury. As against this, evidence of PW12 shows that it was the accused who

assaulted him on his head by means of hammer. However, the fact remains

that the accused reported that PW12 - Kulkarni informed him that he

slipped down in the kitchen and therefore, he received injury appears to be

a false statement given by the accused. Furthermore, on seeing darkness in

both the flats, electric lights were off, entering of the accused in the house

of PW12 first in point of time on returning home at about 7.45 pm although

it was dark in his house, also appears to be unnatural conduct on his part.

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Under normal circumstances, accused should have entered in his own house

as there was a small child in his house and old mother and then to his

neighbour's house, particularly when he found that the safety door of his

house was in open condition. The accused instead of entering into his house

made inquiry with his other neighbour PW1 - Rajkumar Pawar, whether he

had seen anyone visiting house of Kulkarni (PW12) and after gathering of

the other society members, entered his house. The said fact shows that the

accused deliberately gathered the people and thereafter in front of them

entered inside his own house, switched on the light and then he noticed his

wife and mother lying in the pool of blood and daughter Kimaya lying on

the bed. The said unnatural conduct of the accused certainly goes against

him. It simply indicates that accused wanted to make a farce that he was

unknown about the said incident.

FIR further shows that the accused noticed empty jewellery box

found on the bed and thereafter he informed about the said incident to the

Police. Significantly, the jewellery which was informed by the accused

missing from his house particularly mangalsutra, three small gold rings, two

almond shape pendants and an amount of Rs.7,000/- all those articles were

found hidden behind the photo frame affixed on the wall of the house

which must be within the knowledge of the accused. The gold chain

weighing about 8 tolas was never traced out by the investigating agency

indicating thereby that accused falsely reported about the said chain.

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43 In this context, a useful reference of the guidelines issued by

the Hon'ble the Apex Court in case of SectionAghnoo Nagesia v. State of Bihar3

will be necessary. It was observed by the Hon'ble Apex Court that where the

accused himself gives FIR, the effect of his giving information is admissible

against him as evidence of his conduct under Sectionsection 8 of the Evidence Act.

If the information is non-confessional, it is admissible against the accused as

an admission under Sectionsection 21 of the Evidence Act and is relevant.

44 In case of SectionPawan Kumar @ Monu Mittal v. State of Uttar

Pradesh and Anr.4, in paragraph 28 of its judgment, the Hon'ble Apex

Court observed thus :

"The confession given by the accused is not the basis for the
courts below to convict the accused, but it is only a source of
information to put the criminal law into motion. Hence, the
accused cannot take shelter under Section 25 of the Evidence
Act."

45 Considering the contents of FIR (Exh.102), it is observed that it

is not in the form of confession however, it can be duly considered as

admission under the SectionEvidence Act.

3        AIR 1966 Mh.L.J. 113: 1966(1) SCR 134

4 2015 Cr.L.J. 2418

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46 In case of Thakarda Lalaji Gamaji v. The State of Gujarat 5, it

is held by the Hon'ble Apex Court that FIR lodged by the accused can be

used by the prosecution to show motive and presence of accused at the

scene of occurrence. In the case of SectionMohan Lal and Anr. v. Ajit Singh and

Anr.6, it was held that acceptance of inculpatory portion of the accused's

statement not improper where the evidence on record disproves the

exculpatory portion of the accused's statement. In the instant case, the

accused has lodged a false FIR in respect of the commission of robbery of

jewellery and the cash amount from his house, which is found to be a false

reporting to the Police. In view thereof, the statement of the accused with

regard to the fact that on the date of incident he was at home can be

certainly accepted. In that case, the case of the accused is that at about 3.30

pm he left the house and when he returned home at 7.45 pm he saw the

dead body of his relatives, appears to be a false statement given by him and

in that case, the burden shifts on the accused to show that at the time of

incident he was not present in the house.

47 The accused has misdirected the investigation. In this context,

a useful reference can be made of the judgment, in case of SectionRumi Bora

Dutta v. State of Assam7 wherein, it is held by the Hon'ble Apex Court that

5 (1974) 3 SCC 639

6 (1978) 3 SCC 279

7 2013 SC 2422

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false grounds taken by the accused is also incriminating circumstance

against him. In case of SectionState of Maharashtra v. Suresh8, it was held that

false answer offered by the accused when his attention was drawn to the

circumstances, it renders circumstances to be of inculpating nature. In such

circumstances, a false answer can be counted as missing link for completing

the chain. In the instant case also the accused has lodged totally a false

complaint that robbery was committed in his house, when those articles

were found in his house itself hidden behind the photograph hanged on the

wall. So also in a question put up to him under Sectionsection 313 of Cr.P.C., on

the point of recovery the accused stated that his signature was taken on a

blank paper neither he offered any answer to the questions put up to him

nor he stated that the said factum of recovery at the place of incident was

false.

48 Suffice it to say that the FIR lodged by the accused, is not

inculpatory in nature and it could be read as evidence under Sectionsection 27 of

the Evidence Act, in order to prove the conduct of the accused under Sectionsection

8 of the Evidence Act.

49 The meticulous scrutiny of the testimony of PW12 shows that at

the time of incident, PW12 was residing at Champaratna Society in his own

flat. At that time, PW12 was retired from his service in Railway. He was

8 1999 Supp(5) SCR 215

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residing alone. His wife died prior to 30 years and he had no issue. The

family of accused used to reside in his neighbourhood. Shobha used to do

work of cleaning utensils. She was also working at his house. Shobha was

having one daughter namely Aboli. PW12 had helped Shobha in marriage of

her daughter Aboli. There used to be quarrels between accused on one hand

and his mother and wife on the other. Accused was intending to marry

another lady and he was intending to give divorce to Archana. Shobha and

PW12 were against this as accused was already married. It is further stated

that PW12 heard noise of shouts and cry after 12.00 noon and noticed

deceased Archana along with her daughter Kimaya standing outside their

house and they both were crying. The said fact indicates that at the relevant

time Archana as well as her daughter Kimaya were alive and they both were

crying. It also indicates that there was some quarrel going on in their house

and therefore, they were crying. In this context, it is worthy to note that the

mother of accused had already left the house at about 8.30 am as reflected

in the FIR (Exh.100) and it appears that she returned home about 2.00 to

2.30 pm and thereafter the incident had taken place.

The evidence of PW12 explicits the presence of accused in the

house and quarrels with wife. The fact remains that as per the FIR lodged

by the accused as he was on leave on that day, for attending the marriage of

his friend Haji, he was at home. The evidence of PW12 shows an

improvement on the aspect that he as well as Shobha were against the

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accused as he wanted to give divorce to Archana and marry with another

lady. However the said fact is not at all in dispute. The testimony of PW12

further shows that he received head injury by hammer. There is an

improvement with regard to the fact that accused was holding the hammer

and PW12 saw him going away. The said omission no doubt creates a

serious doubt about PW12 seeing the accused assaulting him. The fact

however remains that the circumstances on record show that it was none

else than the accused who assaulted PW12. The deposition of PW12 thus

shows that there used to quarrels between deceased Archana and Shobha at

one hand and the accused on the other side as the accused was intending to

give divorce to Archana and get married with another lady. From evidence

of PW12 it also appears that there was quarrel in his house and therefore

Archana came out of their house with her daughter and they were crying,

indicating thereby that all was not well in the house of accused on the date

of incident. Significantly PW12 was owner of flat no.1 and he was all alone.

He used to extend financial help to the family of accused. He helped Shobha

in the marriage of her daughter. Thus, PW12 was financially sound. In these

circumstances, it is not digestible that the robbery would take place in the

house of accused instead of house of PW12.

50 Now, coming to the medical evidence of PW13, it shows that

the injuries received on the occipital region of PW12 were grievous in

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nature and were possible by hammer (SectionArticle 24K). The Medical Officer

(PW13) has categorically stated that the injuries were sufficient to cause

death in ordinary course of nature, if they were not treated in time.

51 The deposition of the Medical Officer - PW6 his evidence makes

amply clear that as the semi-digested food was found in the stomach of

dead bodies of Shobha and Archana, it indicates that meal was taken by

them at about 12.00 noon and their death was caused in between 2.00 to

4.00 pm. Thus, if at all death was caused between 2.00 to 4.00 pm as per

the evidence of PW6 - Medical Officer Dr. Taware, in that case the burden

shifts upon the accused to explain under what circumstances the death of

his wife, mother and child is caused, as according to him he left the house

at about 3.30 pm. In this context, it is worthwhile to note that no one had

seen the accused leaving his house at about 3.30 pm. There is absolutely no

evidence on record to show that the accused left his house on that day at

about 3.30 pm. Even assuming that the accused left his house at 3.30 pm

still the fact remains that death of the deceased has been caused in between

2.00 to 4.00 pm as per the medical evidence indicating thereby that accused

left his house after commission of the murder.

52 The only evidence available on record is of PW7 - Abhijit

Shinde which shows that the accused has visited his office in between 6.15

to 6.30 pm. There is no evidence on record to show that prior to 6.30 pm

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the accused was out of his house. To put it in other words, there is no

evidence on record that in between 3.30 to 6.15 pm the accused was not

present in his house. If at all it is the case of the accused that he was on

leave on that day and he had left his house at about 3.30 pm and if he fails

to discharge the said burden, it is presumed that the accused was present in

his house, till he reached his office at 6.15 pm. There is no evidence on

record to show the distance between the house of the accused and the office

and how much time was taken by him to go from one place to other and the

said fact remains unexplained.

53 It is worthwhile to note that the recovery of hammer at the

instance of accused which is established by the prosecution beyond

reasonable doubt makes amply clear the involvement of the accused in the

present case. Similarly, chhanni which was found at the place of incident

also strengthens the case of the prosecution that chhanni was used while

committing the present offence of murder of Shobha and Archana while

PW12 - Kulkarni though was assaulted, survived. The medical evidence well

supports the prosecution case. So also the blood stained clothes of the

accused clearly indicate his involvement in the offence.

54 CA report Ex-14 indicates blood of A group of deceased

Archana. Significantly, blood of A group was found on the clothes of

Archana, Kimaya and the burmoda pant belonging to the accused for which

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the accused had offered no explanation. It is not the case of the accused that

he had received any injury on his body. The said blood of deceased Archana

was of A group. CA report also shows that the clothes of Shobha were

stained with blood of AB group whereas the clothes of Archana and the

clothes of the accused were stained with A group. No doubt, the blood

group of Shobha was not detected by the CA office. However, the fact

remains that the accused failed to explain as to why the blood of A group

was found on his clothes. Needless to mention that the blood group of the

accused was not determined and the reasons remained inconclusive.

MOTIVE

55 The testimony of PW2 shows that there were love affairs

between the accused and PW2 and though PW2 was engaged with someone

and thereafter, also they were in contact with each other. More importantly,

the accused desired to marry with her. It appears that PW2 was equally

interested to marry with him and therefore she kept on attending phone

calls of the accused and she called him on her own. It further appears that

due to the said relationship between the accused and PW2 the accused

decided to kill Archana. Once the accused said to PW2 that he would give

divorce to his wife or otherwise kill her, it goes to show ill intention of the

accused as well as his motive to kill his wife Archana. The testimony of

PW5, father of deceased Archana corroborates the version of Archana on the

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material aspects of accused having love affairs with PW2 and he threatened

that he would kill Archana.

56 The learned counsel vociferously argued that even considering

that accused had love affairs with PW2 he had no intention to kill his wife

and there was no reason to commit murder of his mother and daughter. It is

already discussed above that the incident took place within four walls of the

house. Nobody has witnessed the said incident. It was the accused who was

present in his house on the date of incident. The incident had taken place in

broad daylight. Nobody has seen the accused going out of his house. The

testimony of PW7 - Abhijit Shinde simply shows that accused attended his

office in between 6.15 to 6.30 pm. The medical evidence shows that all

three murders have taken place in between 2.00 to 4.00 pm. If that is the

case it was none else than the accused who committed murder of his wife,

mother and child. So far as murder of mother of accused is concerned, as

she was opposing the relations between the accused and PW2 there used to

be quarrels between them as deposed by PW12 and PW5. Hence, the

accused also planned to kill her. The daughter was hurdle in the way to

marry with PW2 hence, she was also not spared by the accused.

57 As far as CCTV footage is concerned, the trial Court has not

relied upon the said CCTV footage for want of certificate under Sectionsection 65-B

of the Evidence Act. In paragraph 89 of the judgment of the trial Court it is

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discussed that the Investigating Officer PW14 - Bajirao Mohite has collected

the CD (Exh.44) through PW4 - Deepak Patankar and the seizure memo

was prepared in presence of PW9 - Sachin Pawar. The said CD indicates

that at about 4.28 pm on the date of incident, the accused was going out of

Champaratna Society on his motorcycle.

58 The learned trial Judge has relied upon the judgment of the

Hon'ble Apex Court in the case of SectionAnvar P.V. v. P.K. Basheer reported in

Civil Appeal No.4226 of 2012 decided on 18 th September 2014 decided by

three Judges Bench of the Hon'ble Apex Court wherein the law is laid down

that if the electronic record is produced without certificate under Sectionsection

65-B of the Indian Evidence Act, such evidence is inadmissible. Significantly,

no one has identified the accused. No doubt, the testimony of PW4 -

Deepak Patankar shows that in their society there were 4 CCTV cameras,

out of them two were fixed at the entrance gate and two are inside the

building. Champaratna Society where the accused was residing is situated at

the distance of 300 meter from their Society and the road passing towards

Champaratna Society is covered by two CCTV cameras affixed at the

entrance of their Society. On 4th October 2012 Police requested him to see

the footage of two cameras. Accordingly, he himself so also the Police saw

the footage. It was noticed in the said footage that at about 3.22 pm one

lady wearing biscuit colour sari was going towards Champaratna Society. At

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4.28 pm, one person wearing jeans pant and purple colour T-shirt was

going on motorcycle through Champaratna Society towards East side.

Significantly, it was the Society where many persons must be residing.

Therefore, it would be difficult to come to the conclusion that it was the

accused who was proceeding on motorcycle from Champaratna Society. The

prosecution has not examined any witness from the said Society or any

person who would have identified the accused. PW12 did not state anything

about CCTV. During the cross-examination PW4 fairly stated that he is a

Civil Engineer and he has not done any diploma in software or hardware.

PW4 denied that he had no knowledge of preparing copy of CD. He further

stated that coverage of CCTV footage stored in the disk remains for 30 days

and thereafter, the data is automatically deleted from the disk. In the

instant case, no hard disk is produced. PW4 admitted during his cross-

examination that on 4th October 2012 he had personally not seen any

person while proceeding from in front of their society.

59 In any case, the fact remains that no certificate as per the

requirement under Sectionsection 65-B was produced by the prosecution. In view

thereof, CCTV footage cannot be relied upon. Hence, CCTV footage cannot

be read in evidence.

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60 In the instant case, we got an additional link against the

accused. As discussed above, the present case is mainly based on

circumstantial evidence. The law in case of circumstantial evidence is well

settled. In case of SectionSharad Birdhichand Sarda V. State of Maharashtra 9,

the following golden principles have been laid down by the Hon'ble

Supreme Court :-

"(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.

It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should be
proved' as was held by this Court in SectionShivaji Sahebrao Bobade v.
State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622)
where the following observations were made :

"certainly, it is a primary principle that the accused must be and
not merely may be guilty before a Court can convict and the
mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused. That is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be
proved, and

(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused."

9        AIR 1984 SC 1622

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61 Evidence of PW12 shows that there was some dispute in the

family of the accused and this must be the reason that Archana and her

daughter were found crying outside their house at about 12 noon on the

date of incident. The said fact indicates that all was not well in the house of

the accused on that day. False FIR of the accused coupled with the fact that

the recovery of the incriminating articles such as mangalsutra, blood stained

clothes at his instance so also seizure of hammer under Sectionsection 27 of the

Evidence Act strengthens the case of the prosecution against the accused.

The medical evidence supports the case of the prosecution with regard to

the time of death between 2 to 4 pm and the ante mortem injuries on the

dead bodies. All these factors leave no room of any probable doubt that the

accused might have not committed murder of his wife, child and mother.

The prosecution has thus proved that it was the accused who has committed

all three murders. As discussed above, the accused was involved with PW2

and that was motive for committing the said brutal murder. In order to

screen himself, the accused has lodged a false complaint as well as he had

hidden the jewellery and cash amount behind the photo frame in his own

house. Similarly, as the accused was on leave, present in his house, has not

discharged his burden to explain the situation. On the contrary, he tried to

screen himself by lodging a false report. All these factors prove the case of

the prosecution beyond reasonable doubt. Only because the dog squad did

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not point out towards the accused, does not rescue him from his guilt. As

regards finding of odhni, chhanni and grey colour purse, at the place of

incident which was not identified by any one, as discussed above is no eye

witness to the incident. The accused has not left a single member from his

family. Father of deceased Archana (PW5) was not residing with them.

Hence, there is no question of identifying those articles by anyone. PW12 is

an old person. Hence, it cannot be expected from him that he would identify

the said articles. To sum up the articles lying on the spot must be from the

house of accused. Thus, all these facts confirm the guilt of the accused and

there is no question of someone elses involvement in the offence. So also it

is not at all the case of prosecution that anyone else was seen in CCTV

footage, entering the house of accused.

SENTENCE

62 We have extensively heard Ms. Payoshi Roy with Dr. Yug

Chaudhary, learned counsel appearing for the accused and the learned APP

Mr. Arfan Sait for the State.

63 The learned APP submits that the present case squarely fits in

the category of rarest of rare case. It is submitted that the accused has done

to death three innocent persons, for getting married with PW2 and thus

satisfying his lust. For no comprehensive reason the child about two years

old was killed by the accused. The accused did not spare even his old

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mother who had given birth to him. It is thus submitted that the accused

has not valued human life. He has finished his entire family. It is further

submitted that considering the mental set up of the accused there are no

chances of reformation or rehabilitation. On the contrary, there are chances

that the accused would indulge in the same activities. He was after PW2

who was engaged with other person and now married with someone else.

The conduct of the accused shows that he is nothing but menace to the

society. Considering it, the learned APP submits that the present case should

be considered as rarest of rare case and the death sentence be confirmed.

64 It is, therefore necessary to decide whether the death penalty

under the offence punishable under Sectionsection 302 of IPC needs to be

confirmed or whether some other penalty is to be imposed on the accused

herein.

65 The learned counsel for the appellant submitted that the

accused is too young in age. It appears that the accused had no intention to

kill his mother. He used to love his mother. He even did not have intention

to kill his wife, although he wanted to marry with PW2. It is submitted that

the divorce petition was already pending in the Court of law. The accused in

fact was fighting for the custody of his child. There is nothing on record to

show that the accused was beyond reform or rehabilitation. Behaviour of

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the accused with the jail inmates is very good. According to the learned

counsel all these are mitigating circumstances and as such leniency be

shown to the accused and death sentence be commuted to life

imprisonment. The learned counsel for the accused as well as the learned

APP have placed on record voluminous judgments supporting their

contentions.

66 The law and principles laid down in catena of judgments of the

Hon'ble Apex Court, succinctly lay down whether the death penalty would

be warranted or not and under what circumstances it would be warranted.

The Hon'ble Apex Court has referred to the provisions under Sectionsection 354 of

Cr.P.C. and in case of SectionBachan Singh vs. State of Punjab10, in case of

SectionMachhi Singh and Ors. v. State of Punjab 11 so also in SectionJagmohan Singh v.

State of Uttar Pradesh12. The Hon'ble Apex Court has issued guidelines and

explained various legal positions.

67 In case of SectionShabnam v. State of Uttar Pradesh 13, guiding

principles are laid down by the Hon'ble Apex Court. It would be appropriate

to reproduce paragraphs 24 and 25 of the said judgment which read as

under :

10       1980 (2) SCC 684
11 1983 (3) SCC 470

12 1973(1) SCC 20
13 2015(6) SCC 632

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"24. We would not lumber the discussion by tracing the entire
death penalty jurisprudence as it has evolved in India, but
only limit the exercise to cull out the determinants which
would weigh large in our mind to award appropriate
sentence while balancing the mitigating and aggravating
circumstances. We are mindful of the principles laid down by
this Court in Jagmohan Singh v. State of U.P., Bachan Singh
v. State of Punjab and Machhi Singh v. State of Punjab as
followed by this Court upto the present. The aforesaid
decisions indicate that the most significant aspect of
sentencing policy in Indian criminal jurisprudence regarding
award of death penalty is that life sentence is a rule and
death sentence is an exception only to be awarded in "rarest
of rare cases." Death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of
the crime, and provided the option to impose sentence of
imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the crime
and all the relevant circumstances. The circumstances which
should or should not be taken into account, and the
circumstances which should be taken into account along with
other circumstances, as well as the circumstances which may,
by themselves, be sufficient, in the exercise of the discretion
regarding sentence cannot be exhaustively enumerated.

25. The guidelines and principles for classification of
circumstances and determination of the culpability indicia as
laid down by this Court in the aforesaid cases have been
succinctly summarized in SectionRamnaresh v. State of
Chhattisgarh (2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382.
The said are extracted as under (SCC pp. 285-86, paras 76-

77):

68 In case of SectionShabnam v. State of Uttar Pradesh (supra), as

discussed above, the following aggravating circumstances have been culled

out: -

"Aggravating Circumstances:

(1) The offences relating to the commission of heinous crimes like
murder, rape, armed dacoity, kidnapping etc. by the accused

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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.

(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 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 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.

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(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:

(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 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 pre-ordained
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 eye-witness though prosecution has brought home the
guilt of the accused."

While determining the questions relatable to
sentencing policy, the Court has to follow certain principles
and those principles are the loadstar besides the above

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considerations in imposition or otherwise of the death
sentence.

Principles:

(1) The Court has to apply the test to determine, if it was the
'rarest of rare' case for imposition of a death sentence.

(2) In the opinion of the Court, imposition of any other
punishment, i.e., life imprisonment would be completely
inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an
exception.

(4) The option to impose sentence of imprisonment for life cannot
be cautiously exercised having regard to the nature and
circumstances of the crime and all relevant circumstances.

(5) The method (planned or otherwise) and the manner (extent
of brutality and inhumanity, etc.) in which the crime was
committed and the circumstances leading to commission of
such heinous crime."

69 Thus, their Lordships have held that most significant aspect of

sentencing policy in Indian Criminal Jurisprudence regarding award of

death penalty is that life sentence is a rule and death sentence is an

exception only to be awarded in "the rarest of the rare case".

70 The Hon'ble Apex Court has culled out various aggravating

circumstances and mitigating circumstances. Similarly, the Hon'ble Apex

Court has laid down principles requiring the Court to apply the test to

determine, if it is rarest of the rare case for imposition of death sentence.

Only in case when the life imprisonment appears to be inadequate

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arrangement, death sentence must be imposed. The Court to come to the

conclusion that imposition of life imprisonment would be completely

inadequate and would not meet the ends of justice. Death sentence should

be imposed when the option to impose sentence of imprisonment of life

cannot be exercised, considering the nature and circumstances of the crime.

It is to be considered whether the offence was planned and the manner in

which it was committed. The Hon'ble Apex Court has laid down aforesaid

guiding principles.

71 Considering the aforesaid guiding principles, the aggravating

circumstances and mitigating circumstances as culled out by their Lordships

are to be considered.

Aggravating Circumstances

1. The offence is caused with a motive to marry with PW2 and

both the deceased i.e. mother and wife of the accused were opposing for the

same. The accused therefore inhumanly committed their murder including

his two years old daughter.

2 Accused caused murder of his entire family in a brutal manner

to achieve his goal i.e. to marry PW2.

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3. As discussed above, the victims were innocent, closely related

to the accused depending upon him. So also having trust in him and they

have been killed by the accused. The act of killing mother is of extreme

ingratitude towards the source of life. So also the wife would always have

trust in her husband and would expect care and security from him. So also

is the case with the daughter. In fact, there was no need to kill wife in such

a brutal manner, particularly when the accused had option to take divorce

from her. The accused has even not spared his two years old daughter for

no fault of her. Thus, killing of daughter, wife and mother in such a ruthless

manner, cannot be justified.

4. The accused has committed cold blooded murder. In order to

screen his act, he made a show of robbery in his house. The accused has

also attempted to commit murder of 76 year old neighbour for no reason. It

appears that the accused thought that the said neighbour i.e. PW12 may

suspect him as a culprit and open his mouth before the Police. Therefore,

the accused tried to kill him also. We find that murder is committed for a

motive which evidences total depravity and meanness.

5. In the present case, there does not appear to be any case of

provocation. It is a planned cold blooded murder of 3 persons in family, for

achieving a goal of marriage with a lady to whom the accused was madly

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loving. In fact the accused deceived PW2. He did not allow her to get

engaged with another boy. Although he was a married person, he

suppressed the said fact from PW2. Thus the accused appears to be a

cunning and untrustworthy person. Hence, this circumstance is available in

the present case.

6. As discussed above, the gruesome act of the accused shocked

conscience of the society, due to the heinous act of the accused.

Mitigating circumstances

So far as the mitigating circumstances are concerned, there are

no mitigating circumstances in the present case except that the accused was

of young age at the time of incident. As on today, the accused is aged about

32 years old. At the time of incident, he was 25 years old. The age of the

accused is a relevant consideration but not determinative factor by itself.

Considering the nature of crime and the manner in which it is committed by

the accused, the said mitigating circumstance would not be in his favour.

72 Significantly the accused was intending to marry with PW2

although she was engaged with someone else. He suppressed the fact from

PW2 that he is a married person having a daughter. The accused deceived

PW2. He broke her engagement with another boy. Thus, he did not allow

PW2 to marry with him. On the day of incident although the accused was

on leave, did not attend the marriage of his friend Haji. The mother of

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accused attended the said marriage. She left the house at 8.30 am itself and

returned from marriage around 2.30 pm to 3.30 pm. PW12 saw deceased

Archana and her child crying and standing outside their flat. PW12 heard

shouts prior to that. Those shouts may be due to the quarrels between

accused and Archana. The accused finished his entire family and then left

the house at about 3.30 to 4.00 pm. Pertinently not a a single member from

the house of the accused was seen by anyone alive after the accused left the

flat around 3.30 pm. In the circumstance the burden lies on the accused to

explain under what circumstances the incident had taken place. Accused

visited his office at about 6.30 pm although he was on leave, to show his

presence at that place. After returning home at 7.45 pm deliberately he did

not enter his house, instead he went to the flat of PW12, gathered people in

the society and then in their presence entered inside his flat to show that he

was not aware of anything. Accused made a show of robbery which failed.

Thus, the accused does not deserve any sympathy.

73 It can be thus seen that the aforesaid aggravating circumstances

are available whereas none of the mitigating circumstances are available.

After giving full weightage to the mitigating circumstances also, balance

sheet of aggravated circumstances fully tilts in favour of aggravating

circumstances.

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74 Only because the accused is young only about 32 years old,

cannot be considered as mitigating circumstance. Complying the aforesaid

principles as laid down by the Hon'ble Apex Court in case of Shabnam

(supra), we are of the considered view that the instant case is "the rarest of

the rare case" for imposition of death sentence. Life imprisonment would be

completely inadequate and would not meet the ends of justice. No doubt,

life imprisonment is the rule and death sentence is an exception. However,

considering the brutality of the crime, in the given facts and circumstances

of the case, it would be just and proper to impose death penalty which is an

exception. On complying the fifth principle, it is found that the method and

the manner in which the crime was committed warrants death penalty.

75 Both the sides have placed reliance on various judgments of the

Hon'ble Apex Court. However, we have referred to the judgments of their

Lordships of the Hon'ble Apex Court, which are relevant to decide the

present case.

76 In our considered view, we have drawn elaborate balance sheet

of the aggravating and mitigating circumstances. There are only 6

aggravating circumstances available in the present case. As against this,

none of the mitigating circumstances are available. The balance sheet of

aggravating and mitigating circumstances tilts in favour of the aggravating

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circumstances. In view thereof, we find that the present case deserves to be

treated as rarest of rare case.

77 The conduct of the accused and his act of killing his mother -

Shobha, wife - Archana and her daughter - Kimaya clearly indicate that the

accused is unfit to revert back in the civilized society. The accused may be

even dangerous for PW2, as she is already married with someone else. Thus,

the conduct of the accused is beyond reproachment. The evidence of PW2-

Gauri and PW5- Vijaykumar makes amply clear that the accused was ready

to kill Archana if she would not have divorced him. All the aforesaid

aggravating circumstances explicit that it is the rarest of rare case and the

accused has thus committed a diabolic and brutal murder of his wife,

mother and child and being a heinous offence, it pricks the judicial

conscience. By finishing the family, the accused has tried to shatter the basic

foundation of the society. In view thereof, in our considered view,

sentencing the accused with imprisonment for life would not be a proper

sentence for him.

78 It has been made clear by the Hon'ble the Apex Court that the

rarest of rare case test depends upon the perception of the Society and the

approach should be "society-centric" and not "judge centric". The test has to

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be applied whether the society will address awarding of death sentence to

the crime in question.

79 It appears that the accused has manufactured a case of robbery.

There can't be a murder of two year old child for a robbery of the jewellery

worth about sixty seven thousand. Surprisingly, there was no robbery in the

adjacent flat i.e. in the flat of PW12 whose financial condition was better

than the accused. PW12 was staying alone in his flat. He had no family

responsibility as such. He had assisted deceased Shobha in the marriage of

her daughter. Shoba was working as a maid servant of PW12. There was a

common entrance gate to the flat of accused and flat of PW12. Instead of

entering into the flat of PW12, there is no reason for anyone to commit

robbery in the flat of the accused and kill a two years old child and two

ladies. No one has seen the alleged culprits while entering or leaving the

society. Robbers would not have left cash and ornaments on spot or then

concealed the same behind photo frame. The accused was simply a Manager

of a Company. It is unbelievable for want of any evidence that his gold

chain of 8 tolas was taken away by the culprits in the course of alleged

robbery, particularly when investigating agency did not find any chain as

such. The accused has committed a planned cold blooded murder

considering that all these were helpless and hapless persons, depending on

him. The accused did not spare his two years old daughter also. Even the

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mother who brought him on this earth was not considered sympathetically,

may be because she used to oppose the accused for having illicit

relationship with PW2, as deposed by PW12. The accused also attempted to

commit murder of PW12 Kulkarni. Kulkarni also used to oppose the

relationship between him and PW2. The accused might have thought that

PW12 may express his suspicion before the Police if left alive. Therefore, he

attempted to commit his murder and tried to screen himself. The accused

thought that Kulkarni is dead. However, Kulkarni survived. Since the entire

planning of the accused did not materialize, he was compelled to lodge a

false complaint of robbery against the unknown culprits. The muddemal

articles reported to be missing from his house, were found in his own house.

Those ornaments were returned to Aboli i.e. sister of accused. The accused

threatened that he would kill his wife and accordingly expressed it before

PW2 Gauri and PW5 father of deceased. The accused had a strong motive to

kill his wife in order to marry with PW2 though she got engaged with some

one else. It appears that as the mother of the accused also opposed the love

affair between the accused and PW2, the accused killed his mother also. The

accused must have felt that the child would be a hurdle after his marriage

with PW2, he finished her also. It is nothing but a well planned cold

blooded murder.

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80 The recovery of hammer at the instance of accused and his

clothes, so also finding of blood stains on it strengthens the case of

prosecution. Similarly, the hidden jewellery kept behind the photo frame

points out the guilt of the accused. Non-finding of 8 tolas of gold chain

which was never in existence also shows the involvement of the accused in

lodging a false complaint of robbery in his house. No one from the family of

the accused was seen alive after the accused left his house at 3.30 pm. The

arguments were advanced by the defence counsel that the prosecution has

tried to suppress the genesis of crime and has failed to show the

involvement of the co-accused as per charge framed and to connect it with

three articles of unknown person viz. Odhni, chhanni and ash colour money

purse (SectionArticle - 12) found on spot and dog from dog squad proceeding

towards Railway crossing. There is no substance in such contention as such,

for the simple reason that the said fact even assuming to be correct, for the

sake of argument, would not absolve the accused from the guilt. The

accused was on leave on the day of incident. He left his house around 3.30

pm. No one had seen any of the family members of the accused alive

thereafter. PW12 had seen Archana and her daughter alive at about 12.00 o'

clock in house. The unnatural conduct of the accused i.e. after returning

home instead of entering in his flat, going to the adjacent flat although it

was dark inside both the flats and the electric lights were off, unerringly

points out towards his guilt and in these circumstances in view of the

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provisions u/s 106 of SectionEvidence Act the burden lies on the accused to explain

under what circumstances the incident has taken place. It is exclusively

within the knowledge of the accused and he has to explain the same. Since

it has been duly established that the accused was in his house along with all

three deceased, the accused has failed to produce any evidence on record to

show that during the period from 2.00 pm to 4.00 pm, he was not in the

company of the deceased. Thus, the circumstances have been fully

established. The facts so established are consistent with the guilt of the

accused. The false FIR lodged by the accused, in respect of the robbery in

his house strengthens the case of the prosecution pointing out the guilt of

the accused. The accused has failed to discharge his burden.

81 The accused does not deserve any sympathy and he is nothing

but a menace to the society. After finishing his entire family now there is no

question of reformation of the accused. He may be dangerous to even PW2

who is married with some other person.

82 In that view of the matter considering the material placed on

record, we are of the considered view that the prosecution had proved

beyond reasonable doubt that :

1. The accused was the last person to see all the three deceased

alive;

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2. The deaths of all three deceased have occurred during 2.00

pm to 4.00 pm as opined by the Medical Officer - PW6;

3. The dead bodies of the deceased were found when the

accused returned home at about 7.45 pm from his office.

The accused visited the office at about 6.15 pm to 6.30 pm

as per the evidence of PW7 and PW8;

4. The discovery of hammer at the instance of the accused

under Sectionsection 27 of the Evidence Act from a place which was

distinctly within the knowledge of the accused;

5. The time gap between the accused being present in his

house and causing deaths of deceased as compared with the

medical report with regard to the time of death leads to no

other conclusion than the guilt of the accused;

6. The recovery of the jewellery in the house of the accused,

found during conducting the spot panchanama coupled with

the lodging of false complaint by the accused with respect to

the robbery in his house and misleading the investigating

machinery leads to the involvement of the accused in the

crime.

7. The recovery of blood stained clothes of the accused under

Sectionsection 27 of the Evidence Act and non-explanation of the

accused in that regard proves the guilt of the accused;

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8. The strong motive of the accused to get rid of his family

members and to marry with PW2 corroborates the case of

the prosecution.

83 We are of the considered view that chain of circumstances is

proved, beyond reasonable doubt by the prosecution. It is so interwoven to

each other that it leads to none other conclusion than the guilt of the

accused. The conviction awarded by the Sessions Court warrants no

interference.

84 In the result, the reference made by the learned Sessions Judge

in Confirmation Case No.2 of 2016 is answered in the affirmative. The

death penalty imposed by the learned Sessions Judge for the offences

punishable under Sectionsection 302 of the IPC and other punishments are

confirmed.

85 We place on record our appreciation for the valuable assistance

rendered by the learned APP and the learned counsel for the appellant.

(MRS. SWAPNA S. JOSHI, J ) (B.P. DHARMADHIKARI, J)

. In view of Sectionsection 415(1) of Cr.P.C. the operation and effect of

judgment pronounced today is stayed till the expiry of period allowed for

preferring the appeal before the Hon'ble Apex Court.

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(MRS. SWAPNA S. JOSHI, J ) (B.P. DHARMADHIKARI, J)

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