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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. Dharmadhikari, Swapna S. Joshi, JJ.
State of Maharashtra – Appellant
Versus
Vishwajeet Kerba Masalkar – Respondent
Confirmation Case No. 2 of 2016
Decided On : 23-07-2019
Code of Criminal Procedure, 1973 – Sections 313, 415 – Indian Penal Code, 1860 – Section 201, 302, 307 – Evidence Act – Sections 106, 27 – Order of Conviction – Appeal takes an exception to the judgment and order decided by the Additional Sessions Judge, Pune in Sessions Case, whereby the learned Additional Sessions Judge has convicted the respondent for the offence punishable under section 302 of the Indian Penal Code and sentenced him to death and pay a fine of Rs.5,000/- 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 section 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 section 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. – Held, 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 (Article - 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 provisions u/s 106 of Evidence 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. – 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. – Reference made by the learned Sessions Judge in Confirmation Case is answered in the affirmative. – The death penalty imposed by the learned Sessions Judge for the offences punishable under section 302 of the IPC and other punishments are confirmed. – Court is 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. – Conviction awarded by the Sessions Court warrants no interference. – Order Accordingly
JUDGMENT :
Swapna S. Joshi, J.
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 section 302 of the Indian Penal Code and sentenced him to death and pay a fine of Rs.5,000/- 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 section 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 section 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 section 302 and 397 of IPC. In the said complaint, it was mentioned that one gold chain of 8 tolas, one gold mangalsutra, cash amount of 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 (Article D). So also one ash colour money purse (Article - 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 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
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