Allowed

Santosh Ramchandra Malbare v. the State of Maharashtra

Bombay HC18 Oct 2023APEAL/947/2011

Case brief

AI extract

What is this about?

High Court Criminal Appeal against murder conviction sentenced to life imprisonment. Bench allowed appeals, quashed sessions judgment, and acquitted appellants. Court held recovery evidence loaded with infirmities and failed to establish full chain of circumstance under Sharad Birdhi Chaudhary guidelines.

What did the court decide?

Impugned judgment and order of conviction and sentence dated 28th April, 2011 is quashed and set aside; appellants are acquitted of all offences and set at liberty.

Santosh Ramchandra Malbare Vs the State of… — Murder and Culpable Homicide | Bombay HC (2023)

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2023:BHC-AS:35306-DB

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905-APEAL 746-2018 & 947-2011.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 746 OF 2018

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Sachin Shrikant Navgire
R/at : 691, Narayan Peth, Pune (At present
lodged in Yerwada Central Jail, Pune)...Appellant

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Versus
The State of Maharashtra
(At the instance of Vishrambaug Police
Station, District Pune)...Respondent

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ALONGWITH
CRIMINAL APPEAL NO. 947 OF 2011
Santosh Ramchandra Malbare, Indian
Inhabitant currently incarcerated at
Yerwada Central Pirson, Pune....Appellant

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Versus

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The State of Maharashtra
(Vishrambaug Police Station, C.R.No.
297/06)...Respondent

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Mr. Balwant Salunkhe a/w Ms. Rohini Kamble i/b Mr. Dipak Mane,
for the Appellant in APEAL/746/2018.

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Mr. Veerdhawal Deshmukh a/w Mr. Rohin R. Chauhan i/b Mr. A.V.
Konde Deshmukh for the Appellant in APEAL/947/2011.

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Wakodikar

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Mrs. P.P.Shinde, A.P.P for the Respondent-State.

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CORAM : REVATI MOHITE DERE &
 GAURI GODSE, JJ.
 DATE : 18th OCTOBER, 2023

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JUDGMENT (PER : REVATI MOHITE DERE)

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1.By these appeals preferred under Section 374 of the
Criminal Procedure Code (‘Cr.P.C’), the appellants have impugned the
judgment and order dated 28th April, 2011 passed by the learned
Additional Sessions Judge, Pune, in Sessions Case No. 317 of 2007, by
which, the learned Judge was pleased to convict and sentence the
appellants as under;

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-for the offence punishable under Section 302 of the Indian
Penal Code, to suffer rigorous imprisonment for life and to
pay fine of Rs. 2,000/- in default, to suffer rigorous
imprisonment for two months;

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-for the offence punishable under Section 394 of the Indian
Penal Code, to suffer rigorous imprisonment for 5 years and

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to pay fine of Rs. 1,000/- in default, to suffer rigorous
imprisonment for one month;

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-for the offence punishable under Section 450 of the Indian
Penal Code, to suffer rigorous imprisonment for 2 years and
to pay fine of Rs. 500/- in default, to suffer rigorous
imprisonment for 15 days.

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The aforesaid sentences were directed to run concurrently.

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2.The prosecution case in brief is as under;

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It is the prosecution case that one Shakuntala Dhavale
(deceased) aged 72 years, was residing alone in Flat No.105, 106
Vishal Apartment, Sadashiv Peth, Pune. Shakuntala was running an
STD booth at Omkar General Store, Sadashiv Peth, Pune and would
visit the said booth wearing gold ornaments. On 17th November,
2006, the son and daughter-in-law of Shakuntala received a call from
her neighbour – Smt.Abhyankar stating that the door of Shakuntala’s

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house was open and there was no movement seen inside the house and
that the STD booth had also not been opened. Pursuant thereto,
Shakuntala’s son and daughter-in-law proceeded to the said flat and
found pieces of glass bangles scattered on the floor in the passage and
hall and the deceased was seen lying on the floor with both her legs
and hands tied with katha rope. One red colour cloth was found
thrust in Shakuntala’s mouth and the gold ornaments worn by her
were found to be missing. Accordingly, the Police were informed and
Shakuntala was taken to Sasoon Hospital, where she was declared
dead. Accordingly, Neeta Dhavale – daughter-in-law of deceased
lodged an FIR alleging theft and murder of her mother-in-law i.e.
Shakuntala Dhavale.

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During the course of investigation, the appellants
alongwith juvenile accused came to be arrested on 20th November,
2006. After investigation, chargesheet was filed as against the
appellants in the Court of learned Judicial Magistrate, First Class.
Since the offences were exclusively triable by the Court of Sessions,

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the case was committed to the Sessions Court, Pune, for trial. As far
as the third accused is concerned, a juvenile, chargesheet against him
was filed in the Juvenile Court and he was tried by the Juvenile Court.

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As far as the appellants are concerned, charges were
framed as against them by the trial Court, to which, they pleaded not
guilty and claimed to be tried. The defence of the appellants was that
of total denial and false implication.

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The prosecution, in support of its case, examined as many
as 18 witnesses i.e. P.W.1- Smt. Neeta Uday Dhavale (PW-1),
informant - daughter in law of the deceased; P.W.2 - Shri Shrikar
Manohar Devlalkar, panch – to recovery of katha rope at the instance
of appellant - Sachin; P.W.3 - Smt. Sayali Sachin Abhyankar, neighbour
of the deceased; P.W.4 - Ajay Madhukar Dalvi – Panch to the Spot
Panchanama; P.W.5 - Sachin Dinkar Abhyankar, neighbour of the
deceased; P.W.6 - Dr. Ganesh Pandurang Pujari, the Medical officer,
who performed the post mortem; P.W.7 - Kapil Anand Kulkarni, panch

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– to recovery of some gold ornaments at the instance of appellant -
Santosh; P.W.8 - Dagdu Suryabhan Selkar, panch – to the recovery of
some gold ornaments at the instance of appellant - Santosh; P.W.9 -
Sanjay Ramnaresh Mantri; P.W.10 - Smt. Lala Jayant Dusane,
neighbour of the deceased; P.W.11 - Ms. Suchitra Ghansham Patil,
Nayab Tahsildar who conducted the TIP; P.W.12 - Mahadev
Ramchandra Vichare, Investigating Officer; P.W.13 - Deepak Ratilal
Mehta, witness – to show that one galla in Saraswati Building was
given to Surekha Malbare on rent; P.W.14 - Sarang Dattatraya
Nerlekar, grandson of the deceased; P.W.15 - Basavraj Dharma Pale,
watchman; P.W.16 - Vasant Ganpat More, Investigating Officer; P.W.17
– Eknath Subhash Parkhi, Government Approved Valuer and P.W.18 –
Ashok Raghunath Jagdale, Investigating Officer.

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Thereafter, the statements of the appellants were recorded
under Section 313 of the Cr.P.C. The appellants did not adduce any
evidence, nor did they examine any witnesses.

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3.After hearing the parties, the learned Sessions Judge, Pune,
convicted and sentenced the appellants as stated aforesaid in para 2.

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4.Mr. Salunkhe and Mr. Deshmukh, learned Counsel
appearing for both the appellants submitted that the prosecution has
not proved the circumstances beyond reasonable doubt and as such,
the impugned judgment and order of conviction cannot be sustained.
They submitted that the only evidence qua the appellants is that of
recovery of gold ornaments from both the appellants and in addition,
a katha rope from the appellant i.e. Sachin and that the said evidence
vis-a-vis recovery being suspicious, implicit reliance cannot be placed
on the same. They submitted that the evidence of recovery suffers
from several loopholes and as such, conviction based only on recovery
evidence cannot be sustained.

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5.Mrs.Shinde, learned APP, supported the impugned
judgment and order and submitted that no interference was
warranted.

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6.Perused the evidence with the assistance of the learned
Counsel for the respective parties. Admittedly, the prosecution case
rests entirely on circumstantial evidence. Before we assess the
evidence on record, it is apposite to bear in mind the five golden
principles (Panchsheel) laid down by the Apex Court in the case of
Sharad Birdhichand Sarda v. State of Maharashtra1 , which govern a

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case based on circumstantial evidence. Para 153 of the said judgment
is reproduced hereinunder;

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“153. (1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.

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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 Shivaji Sahabrao
Bobade v. State of Maharashtra 1973 2 SCC 793 where the
observations were made: [SCC para 19, p. 807: SCC (Cri) p.
1047]

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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.”

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1 (1984) 4 Supreme Court Cases 116

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(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,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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.”

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7.As noted above, the only evidence as against the appellant
– Sachin i.e. accused No.2 is, recovery of gold ornaments and a katha
rope; and as against appellant – Santosh i.e. accused No.1 is, recovery
of some gold ornaments. The said gold ornaments recovered at the
instance of the appellants, have been identified by P.W.1 – Neeta
Dhavale, daughter-in-law of the deceased, as belonging to Shakuntala,
however, not a single witness has stated that these were worn by her at
the relevant time. The question that arises in the present case is,
whether the circumstance of recovery has been proved by the
prosecution beyond reasonable doubt and whether there is any
evidence to suggest that the ornaments which were recovered at the

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instance of the appellants, were worn by the deceased, at the time
when she was done to death.

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8.The fact that Shakuntala died a homicidal death is not in
dispute. The question is whether the appellants are responsible for the
same, having regard to the evidence that has come on record, so as to
connect them with Shakuntala’s death. The relevant witnesses, relied
upon by the prosecution, with which, we are concerned, to prove
recovery of gold ornaments and katha rope are the panch witnesses
i.e. P.W.2 – Shrikar Devlalkar; P.W.4 – Ajay Dalvi; P.W.7 – Kapil
Kulkarni; P.W.8 – Dagdu Selkar and P.W.9 – Sanjay Mantri. Before we
consider the evidence of these witnesses, we propose to place on
record the evidence of other witnesses.

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9.P.W.1 – Neeta Dhavale, daughter-in-law of the deceased
and complainant in her evidence has stated that she received a call
from her neighbour – Smt. Abhyankar (P.W.3) that the door of her
mother-in-law’s flat was open; there were no movement in the house;
and that the STD booth was not opened. Pursuant thereto, P.W.1 –

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Neeta called on the landline number of her mother-in-law, however,
no one picked up the phone. Accordingly, P.W.1 – Neeta and her
husband came to the deceased’s house, where they noticed that the
said flat was not bolted; that when they entered the house, they found
the footwear lying in the passage, pieces of glass bangles scattered on
the floor and found Shakuntla lying on the floor, with her legs and
hands tied with katha rope. They also found that her mouth was
gagged with a cloth and the ornaments which she would normally
wear, were not on her person. In the cross-examination, the said
witness i.e. P.W.1 – Neeta has stated that her mother-in-law was
having other ornaments, other than, what she would wear usually on
her person. She has further admitted in her cross-examiantion that no
theft of other valuable articles was found to be committed.

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10.P.W.3 – Smt Sayali Abhyankar, neighbour of deceased
Shakuntala, who informed P.W.1 - Neeta of the door being open and
of no movements being seen has only stated in her evidence, what she
saw on entering the house i.e. the deceased lying on the floor with her

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hands and legs tied with a katha rope and that a cloth thrust in her
mouth. P.W.3 – Smt. Abhyankar has not deposed with respect to the
ornaments worn by the deceased at the relevant time.

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11.Although, the prosecution has examined P.W.15 – Basavraj,
to prove that appellant No.2 – Santosh was seen entering the building,
abutting the building of the deceased, the said evidence by itself is not
sufficient to point to his complicity. Infact, the appellant – Santosh
has admitted going to the building abutting deceased’s building, to do
cable work. Admittedly, no witness has seen the appellant going to
deceased’s building.

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12.Similarly, P.W.10 – Smt. Lata Dusane also a neighbour of
Shakuntala has stated with respect to the cable connection in her
house given by Prasad and Company on payment of cable charges.
She has stated that the appellants used to come to collect the cable
charges. Since there was nothing incriminating in her examination-in-
chief, the said witness was not cross-examined.

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13.It is the prosecution case that the said appellants would
visit the building as cable operators and that, taking advantage of
Shakuntala being alone, committed theft of her ornaments and
murdered her. As noted above, there are no eye witnesses and hence
the evidence of the aforesaid witnesses cannot be said to be
incriminating. It is also not the prosecution case, that of the appellant
accused were last seen in the company of the deceased. Thus, having
regard to the aforesaid, the defence of the appellants, nothing turns on
the Test Identification Parade conducted and the appellants being
identified in the said TIP.

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14.As far as recovery of katha rope and some ornaments at the
instance of appellant - Sachin is concerned, the prosecution has
examined P.W.2 – Shikar Dhavlalkar. The said witness is a witness to
the recovery of katha rope at the instance of appellant - Sachin
Navgire (Original Accused No.2). It appears from the evidence of the
said witness that on 24th November, 2006, the said katha rope was

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recovered from an under construction building at the instance of
appellant - Sachin. The said witness has stated that the appellant –
Sachin Navgire took them to the first floor of the said building and
from that first floor there was a steel table and katha rope was over
the said table. The said witness, in his cross-examination has admitted
that when he went to the said building on 24th November, 2006,
plastering work was going on i.e. on the day when katha rope was
recovered. He has further admitted that the katha rope which was
found was covered with mud and cement. In his cross-examination,
the said witness has further admitted that the said katha rope shown
to him i.e. ‘Article - 10’ did not contain mud or cement and that the
katha rope is easily available in shops. It is, thus, evident that the
katha rope, which was seized from an under construction building was
easily accessible to one an all and as such, having regard to the
admissions made by this witness, it is difficult to place implicit reliance
on the said recovery i.e. of katha rope at the instance of appellant –
Sachin Navgire.

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15.It is also pertinent to note that the prosecution has
examined P.W.9 – Sanjay Mantri, who was developing the property
from where the recovery was effected, at the behest of the appellant –
Sachin. He has stated that the building was under construction and
the construction material was lying on the site, including katha rope.
In the cross-examination, the witness has admitted that there were
about 10 – 12 workers on site, at the relevant time.

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16.As far as recovery of some gold ornaments is concerned, at
the instance of appellant – Sachin, P.W.2 – Shrikar Devalalkar in his
evidence has stated that again on 27th November, 2006, appellant -
Sachin made a disclosure statement that he was ready to show the
place where he has hidden the gold ornaments. Accordingly, the same
was reduced into writing; after which, the appellant – Sachin took
them to Shanivar wada via Appa Balwant Chowk. The appellant –
Sachin asked the Police to stop the jeep near a tree and took them to
an area having a barbed wire compound, from where he removed a
stone lying there, dug the soil, and pulled out a packet from a tobacco

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container, in which packet, two gold ear rings and two gold chains
were found (Article Nos. 19, 20 and 21).

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17.In his cross-examination, the said witness with respect to
acting as a panch on 27th November, 2006 i.e. for recovery of the gold
ornaments, has stated that he does not remember as to whether the
same panch witness, who was present for the panchanama of 24th
November, 2006, was present for the panchanama on 27th November,
2006. The said witness in his cross-examination has further admitted
that the gold ornaments found in the tobacco pouch mentioned by
him, was not before the Court and that it was correct to state that the
articles – 19 to 21 i.e. the gold ornaments are not in the same
condition, as seized. He has further stated that he does not remember
whether lac sealwas affixed on the articles after they were seized.

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18.Considering the aforesaid evidence of recovery of katha
rope and the gold ornaments at the behest of appellant – Sachin, it is
difficult for us, to place implicit reliance on the said recovery.

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19.As far as recovery of gold ornaments at the instance of
appellant – Santosh (Original accused No.1) is concerned, the
prosecution has examined P.W.7 – Kapil Kulkarni and P.W.8 – Dagdu
Selkar. As far as P.W.7 – Kapil Kulkarni is concerned, he in his
examination-in-chief has stated that on 24th November, 2006, he was
called by Vishrambaug Police to act as a panch; that the appellant –
Santosh disclosed that he wanted to make a statement and accordingly
he made a statement that he had concealed articles and was ready to
show the place where he had concealed the same; and that the same
was reduced into writing. He has further stated that thereafter, the
appellant – Santosh took the Police and the panchas to Huzurpaga
Primary School where appellant – Santosh got down from the vehicle
and took them inside the premises of Huzurpaga Primary School; that
he took the Police and the panchas on the first floor of the school
building; and that immediately after the place, where the school
premises ends, there was a sign board of a shop, ‘Kajari’. He has
further stated that the appellant – Santosh went to the said board and

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took out a bundle from the said sign board and brought the said
bundle on the first floor of the school; that the bundle was a green
coloured bedsheet and when opened, gold ornaments i.e. gold bangles
– Article 14 and patlya – Article 15 were found. Pursuant thereto, the
said articles were seized. In his cross-examination, P.W.7 – Kapil has
stated that when they reached at the gate of Huzurpaga school, he
does not remember if any watchman was there at the gate or any
student, in the school premises. He has stated that he cannot assign
any reason as to why there is no mention of sign board of Kajari shop
in the panchanama (Exhibit – 57) and that he does not remember
whether the packet in which the ornaments were kept was sealed with
lac or not.

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20.P.W.8 – Dagdu Selkar is also a panch witness to the
recovery of some of the gold ornaments, at the instance of appellant –
Santosh. He has stated that the appellant -Santosh made a disclosure
statement on 23rd November, 2006, pursuant to which, they went to
the third floor of the Huzurpaga School by staircase; that the

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appellant – Santosh unbolted the door, pursuant to which, they went
inside; and that the appellant pulled out two gold rings wrapped in a
paper. According to him, the said articles were seized under a
panchanama. It is pertinent to note that as far as recovery effected on
23rd November, 2006 at the instance of appellant – Santosh is
concerned, there is nothing to show that the said room from where
the recovery was effected, belonged to whom or that the appellant –
Santosh was staying in the said room. P.W.8 – Dagdu has admitted in
his cross-examination, that the articles seized were not sealed. He has
also admitted, that the Police had not made any enquiry with respect
to the ownership of the room, in his presence.

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21.Considering the evidence of P.W.7 – Kapil Kulkarni and
P.W.8 – Dagdu Selkar, we find that their evidence is not free from
suspicion and as such, cannot place implicit reliance on the said
recovery evidence at the behest of appellant – Santosh.

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22.It is also pertinent to note that P.W.13 – Deepak Mehta in
his evidence has stated, that he was the Hon. Secretary of the

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Huzurpaga School for about 8 years, and that shop No.3 in Saraswati
Vilas Building was let out to Surekha Malbare and that she was paying
rent for the said gala. This is the same gala from where the gold
ornaments were allegedly recoverd at the instance of appellant –
Santosh. The evidence of this witness does not in anyway further the
prosecution case, that the appellant was in sole occupation of the
place, from where rings were recovered or in what way, the appellant
– Santosh was related to Surekha Malbare This witness has not even
stated in his evidence that appellant – Santosh was staying in the said
premises. Thus, the prosecution has failed to prove that the place
from where some of the gold ornaments were seized, was rented out
to the appellant – Santosh Malbare or that he was staying there. Not a
single witness has deposed with respect to the same.

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23.As noted above, there is also no evidence on record to
show that the said ornaments i.e. recovered ornaments were worn by
the deceased at the time of the incident.

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24.Considering the aforesaid evidence on record and having
regard to the fact that the conviction is essentially based on the
recovery evidence which suffers from the infirmities, as spelt out
hereinabove, it is difficult to implicit reliance on the same.
Accordingly, the impugned judgment and order cannot be sustained
and hence, the following order;

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ORDER

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i)Both the aforesaid appeals are allowed.

¶130

ii)The impugned Judgment and Order of conviction and
sentence dated 28th April, 2011 passed by the learned
Additional Sessions Judge, Pune, in Sessions Case No. 317 of
2007 is quashed and set aside and the appellants are
acquitted of all the offences.

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iii)The appellants be set at liberty forthwith, unless
required in any other case.

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iv)Fine amount if paid, be refunded to the appellants.

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v)Appeals stand disposed of.

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All parties to act on the authenticated copy of this order.

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GAURI GODSE, J.

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 REVATI MOHITE DERE, J.

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Wakodikar

Santosh Ramchandra Malbare v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Santosh Ramchandra Malbare v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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