Full Judgment Text
1/137 661.2005fl.doc
nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 661 OF 2005
Babubhai @ Zaverchand Harjivan Sheth
Age. 48 years, Occu. Business,
Residing at Goregaon, Tal. Mangaon,
District Raigad.
(Alibag Central Prison) ...Appellant.
Versus
The State of Maharashtra,
(Through the Deputy S.P. C.I.D.
Crime Branch,
Goregaon Police Station,
District – Raigad. ...Respondent.
WITH
CRIMINAL APPEAL NO. 686 of 2005
1. Pintya @ Bhausaheb Sampat Bavale,
Age. 23 years,
R/at : Wadgaon Ghenand,
Tal. Khed, District Pune. ...Appellant
(Presently at : Thane Central Jail) (Orig. Accused No.6)
Versus
1. State of Maharashtra,
Through Dy. S.P.,
C.I.D., Crime Branch,
Goregaon Police Station, ...Respondent
District - Raigad. (Orig. Complainant)
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WITH
CRIMINAL APPEAL NO. 777 of 2005
Dinesh Sitaram Kapade,
Age. 27 years, Occ. Driver,
R/o. : Vadavli, Tal. Mangaon,
District – Raigad,
(Presently in Kalamba Jail, Kolhapur) ...Appellant.
Versus
The State of Maharashtra,
(Through Goregaon Police Station),
Taluka Mahad, District – Raigad. ...Respondent
WITH
CRIMINAL APPEAL NO. 832 of 2005
1. Satish @ Balu Muralidhar Shinde,
Age. 27 years,
R/o. Ranmala, Khed, District – Pune.
(Presently in Kolhapur Central Jail,
Prisoner No.C-3123, Orig. Accused no.4)
2) Madhukar Ramchandra Satkar,
Age. 27 years,
R/o. Kalychiwadi, Tal. Khed.
District – Pune.
(Original Accused No.7) …Appellants.
Versus
State of Maharashtra,
(Through Goregaon Police Station, ...Respondent
District Raigad) (Orig. Complainant)
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WITH
CRIMINAL APPEAL NO. 1084 of 2005
1. Sham @ Bittya Shrirang Mohite,
Age. 27 years, Occ. Agriculture,
Resident of Village Vadgaon Ghenand,
Taluka. Khed, District Pune.
Presently lodged in Kolhapur
Central Prison, Kalamba, Kolhapur.
(Original Accused No.5) ...Appellant
Versus
1. The State of Maharashtra,
Through the Dy. S.P.,
CID Crime Branch,
Goregaon Police Station,
District Raigad. ...Respondent
WITH
CRIMINAL APPEAL NO. 747 of 2006
1. State of Maharashtra,
(Through the Goregaon Police Station) ...Appellant.
Vs.
1. Kunda Zaverchand Sheth,
Age. 49 years,
R/o. Village Goregaon,
Taluka – Mangaon,
District – Raigad.
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2. Amit Zaverchand Sheth,
Age. 24 years,
R/o. Village Goregaon,
Taluka – Mangaon, …Respondents
District – Raigad. (Orig. Accused nos.2&3)
----
Mr. S. R. Chitnis, Senior Advocate a/with Mr. Ritesh Ratnam
i/by Mr. Ganesh Gole for the Appellants in Appeal No. 661 of
2005.
Mr. Rahul Thakur a/with Ms. Sonia Ekbote & Ms. Roman
Belief for the Appellant in Cri. Appeal Nos. 686/2005 &
1084/2005.
Mrs. A.S. Pai, APP for Appellant in Appeal no.747 of 2006 and
for Respondent-State in all the matters.
Mr. Yug Mohit Chaudhary a/with Mr. Dashrath Gaikwad for the
Appellant in Appeal No. 777 of 2005 and in Appeal No. 832 of
2005.
----
CORAM : A.S. OKA AND
A.P.BHANGALE, JJ.
th
JUDGMENT RESERVED ON : 18 MARCH, 2013
th
JUDGMENT PRONOUNCED ON : 12 APRIL, 2013
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JUDGMENT : (PER. A.P. BHANGALE, J.)
1. All these appeals arise out of the Judgment and
order dated 13-06-2005 passed in Special Case No. 10 of
2001 tried before the learned III Additional Sessions
Judge, Raigad at Alibaug. Eight accused (hereinafter
referred to as A-1 to A-8) were facing trial upon the
charges of Kidnapping, double murder and destroying
evidence of the commission of double Murder as also
offences of atrocities on members of Scheduled Caste.
Eight accused were facing Special sessions trial no. 10 of
2001 upon multiple accusations. It is alleged that A-1 to
A-3, not being members of the Scheduled Caste and
Scheduled Tribe had on 29-03-2001 intentionally insulted
and humiliated Mr.Vasant Kamble and Mrs. Alka Kamble
in the office of the Amit Gas Agency within public view ,
wrongfully interfered with and deprived the deceased of
their legal right over Amit Gas Agency belonging to
deceased Kamble couple. Incidentally as Kamble couple
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was belonging to Scheduled Caste, the offences
punishable under Section 3(1)(v) and 3(1) (x) of the
Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 were also imputed against the
accused. The A-1 to A-4 were facing prosecution on the
charge that they had entered into criminal conspiracy on
or about 30-03-2001 at the office of the Noble Builders to
commit Murder of Vasant and Alka Kamble and A-1 to A-4
along with the absconding Accused no.9 Santosh Ganpat
Shinde, in furtherance of their common intention
abducted Kamble couple on 30-03-2001 at about 11 a.m.
at Goregaon knowing beforehand that they may be
murdered and further the accused no 1 to 8 along with
the absconding accused committed murder of Vasant and
Alka Kamble and in furtherance of their common
intention to screen themselves from legal punishment,
caused certain evidence of Murder to be destroyed by
burning the dead bodies.
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2. Brief facts stated are as under:-
It is case of the prosecution that the Deceased
Vasant Kamble and his wife Alka Kamble were parents of
Amit Vasant Kamble (PW-1). Deceased Vasant Kamble
was President of RPI at Goregaon. Smt. Alka Kamble used
to look after Gas agency at Goregaon. A-1 was interested
in getting dealership of LPG Gas agency. A-2 Kunda is
wife of A-1. There was a dispute about the Gas agency
between them and litigation had taken place in respect of
it. A-1 Babubhai and his wife, A-2 had made an
application depending upon the deceased as they were
members of scheduled Caste for seeking appointment as
LPG dealer. A-1 Babubhai and his wife A-2 knew that
the Hindustan Petroleum Corporation had reserved the
Agency for a member of Scheduled caste. Requisite
infrastructure and/or funds were not available with the
deceased who were desirous of the benefit of the scheme.
Under these circumstances an agreement was executed
in writing between A-2 Kunda Sheth and Deceased couple
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Kamble; whereby A-2 Kunda agreed to finance and
provide infrastructure to Kambles on certain terms and
conditions. Deceased Kambles had applied for the Gas
agency and dealership and they succeeded to get the
same as they were appointed as Dealer by M/s Hindustan
Premium Corporation Limited for which investment/funds
were provided by A-1 Babubhai and his Wife Kunda.
Relations were strained between Accused Sheth couple
and Kamble couple and Writ Petition was filed by Mr. and
Mrs. Sheth in the Bombay High Court seeking cancellation
of allotment of dealership to Mr. and Mrs. Kamble. The
Writ Petition did not fetch any relief to Mrs. and Mr. Sheth,
hence they filed Special Civil Suit in the Court of Civil
Judge Senior Division at Alibaug to establish their
investments and to recover the same from Kamble
couple. But the Writ as well as suit did not yield any fruits
to the A-1 and A-2 Sheth Couple and then they hatched
criminal conspiracy with A-3 an A-4 to eliminate Mr. and
Mrs. Kamble. Then pursuant to the Conspiracy hatched,
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on 30-03-2001 the Kamble couple was invited along with
A-4 Satish Shinde to inaugurate a dealership of Hindustan
Lever at Ambet. Accordingly the Kamble couple was
hijacked to Shirke Tamhane Ghat where the accused
Sheth couple and absconding accused Santosh Ganpat
Shinde had already reached separately. Sheth couple
wanted the Kamble couple to sign typed documents on
the stamp papers but Vasant Kamble refused to sign any
such documents. In the result Kamble couple was
assaulted and strangulated by means of nylon rope tied
with holes at the center through wooden pegs. The dead
bodies of Kambles were then tried to be destroyed by
pouring kerosene/petrol over them and setting them
ablaze burning them with a view to destroy evidence of
Murder.
3. When Mr. and Mrs. Kamble did not return home,
PW-1 their Son Amit Kamble after making inquiry, lodged
a missing Complaint report at Goregaon Police station on
30-03-2001. The FIR was lodged on 31-03-2001 against
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Satish Shinde who had accompanied with the parents of
PW-1. Investigation followed and the Accused were
arrested as also alleged incriminating articles including
remains of dead body were recovered at the instance of
the accused. Since deceased Kambles belong to
Scheduled Caste, the case was investigated and as
lodged as special case no. 10 of 2001, tried in the Court
of III Additional Sessions Judge at Raigad, Alibaug. After
the accused had pleaded not guilty to the charges
framed, 53 witnesses were examined in support of the
Prosecution case. The accused nos. 1 and 4 were found
guilty and convicted for the offence punishable under
Section 120-B read with section 364 as also under Section
302 read further with Section 34 of the Indian Penal Code.
A-1 and A-4 to A-8 were also convicted for the offence
punishable under Section 201 read with Section 34 of the
Indian Penal Code, while A-2 and A-3 were acquitted of all
charges and all the accused were acquitted of the charge
under Section (1) (v), 3(1) (x) and 3 (2) (v) of S.C./S.T
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(Prevention of Atrocities) Act 1989 .The accused no. 1
and 4 were sentenced to undergo imprisonment for life
and to pay fine in the sum of Rs 1500/- each in default to
undergo further imprisonment for six months more for
each of them for the offence of criminal Conspiracy to
murder Kamble couple. While they were also found guilty
of the offence of abduction punishable under Section 364
read with section 34 of the Indian Penal Code and each of
them were sentenced to undergo R.I. for 10 years and to
pay fine in the sum of Rs 1500/-in default to undergo
further R.I. for six months. The accused nos. 1 and 4 to 8
were found guilty of offence of double murder of Mr.
Vasant and Mrs. Alka Kamble; punishable under section
302 read with Section 34 of the Indian penal code and
were sentenced to undergo R.I. for life and to pay fine in
the sum of Rs 1500/- payable by each of them. The
accused no 1 and 4 to 8 were also held guilty for offence
punishable under Section 201 read with section 34 of the
Indian penal Code and were sentenced to undergo R.I. for
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5 years and to pay fine in the sum of Rs 1000/ payable -
by each of them or in default to undergo R.I. for each of
them.
4. The prosecution has placed reliance upon the direct
evidence of the incident as deposed to by PW-33 Shri
Keshav Hate and circumstantial evidence in the form of
motive for the crime, the identification of the dead bodies
of Vasant and Alka Kamble discovered during the course
of evidence at the instance of the A-1 under the
Panchanama, identification by some of the witnesses of
the articles including the ornaments as belonging to the
deceased Kamble couple. The prosecution has also placed
reliance upon expert opinion of the examiner of the skull
of both the deceased. The prosecution also relied upon
the identification of the uneven and protruding tooth of
deceased Vasant Kamble and tooth with cement/silver
filling of deceased Alka kamble. Prosecution has
examined as many as 53 witnesses. We have heard
submissions at the Bar at length by giving full opportunity
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to the parties to advance oral as well as written
submissions considering the seriousness of accusation of
double murder in the case .
5. The main questions for our determination are :
i. Whether the prosecution has proved beyond
reasonable doubt that Vasant Kamble and his wife
Alka Kamble met with homicidal Deaths?
ii. Whether the Prosecution has proved beyond
reasonable doubts that on 30-03-2001 the Kamble
couple was kidnapped and murdered in the forest as
alleged?
In order to answer the above questions arising in these
appeals for our determination we may consider the
evidence on record in three- phased manner.
(A) The direct ocular Evidence of Sole eye
witness Shri Keshav Hate(PW-33)
To prove that the deceased Vasant and Alka Kamble (we
would for convenience refer them as ‘Kamble couple’)
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met with homicidal deaths, their murder and consequent
penal liability of the accused before the Court, Sole eye
witness is Keshav Lahu Hate (PW.33). It appears from this
evidence that he is presently resident of Mumbai with
modest financial means. He is also Vice President of
Republican Party of India (Athavale Group). He is native
of Veer Village situated between Lonare Phata and Mahad
off Bombay- Goa High way. It appears that he was known
to deceased couple late Mr. Vasant Kamble and Mrs. Alka
Vasant Kamble as they were also activists of Republican
Party of India. Deceased Alka according to Mr. Hate was
dealer of Hindustan Petroleum. The accused were also
running business of LPG Cylinders of Hindustan Petroleum
Company in the name and style as “Amit Gas Agency”
which was business situated in the premises of one Hamid
Bhai. Deceased Vasant Kamble and Mrs. Alka Kamble had
telephone connection bearing no.71363. According to Mr.
th
Hate, the incident happened on 30 March, 2001. He
deposed that on 29.3.2003 when he was at house he had
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received telephone call from Vasant Kamble at about 9
p.m. Vasant Kamble had requested Mr. Keshav Hate to
accompany with him in the next morning at about 10 a.m.
for going to village Ambet for inauguration of some gas
agency shop. According to the Prosecution, Mr. Keshav
Hate had declined initially due to his pre-occupation but
when Vasant Kamble insisted, he consented to join with
th
him. Thus, on 30 March 2001 in the morning at about
9.30 a.m., Mr. Keshav Hate went to the residence of
Vasant Kamble at Goregaon. Then he accompanied with
Vasant Kamble to bring vegetables from Market at
Goregaon. After purchasing vegetables, Vasant Kamble
returned to his residence while Mr. Hate went to meet
Hamid Bhai. 10 to 15 minutes later, Vasant Kamble had
called Mr. Hate and informed him that vehicle arranged
for going to Ambet had arrived. Thus, it is in evidence of
Mr. Hate that he along with Vasant Kamble and Alka
Kamble sat in white tempo tracks which was parked in
front of Vasant Kamble’s house. At that time Mr. Hate had
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seen Amit (son of Vasant and Alka Kamble) at the gate of
their house. It is in evidence that Mr. Keshav Hate, Mr.
Vasant Kamble and Mrs. Alka Kamble sat in the vehicle
and in that vehicle two unknown persons were sitting on
the rare seat, as also one person sitting by the side of the
driver. The Driver was also unknown to Mr. Hate.
According to Mr. Hate the person occupying rare seat had
some material of puja in his hand. Alka Kamble was sitting
on the seat next behind the driver and on her left hand
side Vasant Kamble was sitting while Mr. Hate was sitting
towards the left door of the vehicle. The accused Satish
Shinde was driving the vehicle. The accused no.4- Satish
was wearing Bush Shirt with checks. He had asked Vasant
Kamble to drop Mr. Hate from the vehicle on the pretext
that some others were to join. However, Mr. Vasant
Kamble told the driver that they will adjust. Thus at about
11 a.m., vehicle left Goregaon for Ambet via Wadavali
diversion. When the vehicle had crossed Wadavali Phata
and went via Kudal diversion in order to proceed towards
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Ambet, at Kudal diversion the driver Satish Shinde had
again asked Vasant Kamble to drop Mr. Hate from the
vehicle but Mr. Hate and Kamble did not pay any heed to
him. When the vehicle had reached near Ambet, the
driver drove the vehicle on left side although it was right
hand road which was leading towards Ambet. After
climbing the steepy road, there was descending road
leading to Ambet but the vehicle was driven towards a
right hand side on a kaccha road although the road on the
right hand side did not lead to Ambet but to some other
village. Immediately Mr. Hate told Vasant Kamble that
the right hand side road would not go to Ambet and the
vehicle was on the wrong track. Vasant Kamble
questioned the driver about the same, who replied that
driver wanted to collect sums from some persons from
the other village. The vehicle was driven to the distance
of about 1.5 km. on that kaccha road when the vehicle
was stopped. Another vehicle either Tracks or sumo was
already there which was Ash Grey in colour and three
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persons had got down from that other vehicle and came
towards the vehicle in which Kamble couple and Hate etc.
were sitting. One of those three persons was known to
Mr. Hate as Babusheth (accused no.1) who had opened
left side door of the tracks vehicle. Babusheth had pulled
out the person sitting by the side of the driver and he
himself took that seat. The accused no.1-Babusheth then
took Gupti wrapped in a paper and pointed out the same
below chin of Vasant Kamble. The accused no.1 had some
material typed on the stamp paper. He directed Vasant
Kamble to sign those stamp papers and Vasant Kamble
refused to sign those typed documents. At that time, his
wife Alka began to cry when Vasant Kamble persuaded
Alka and encouraged her by saying that he would prefer
to die but he would not sign those documents. Thereafter,
the persons sitting on the rare seat of the vehicle put up a
rope around neck of eye witness Mr. Hate. While another
rope was put around the neck of Vasant Kamble. At that
time Mr. Keshav Hate intervened and told Babushet-
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accused no. 1 that if at all he had dispute with Vasant
Kamble it can be sorted out amicably and the way he was
adopting was not correct. He also told Babusheth that
he is least concerned as he had son and a wife. At that
time Driver of the vehicle asked the concerned person on
the rare seat to relieve Mr. Hate. Therefore, the smear of
the thread/rope was taken away from his neck but the
person who was sitting on the rear side tightened the
noose around the neck of Vasant Kamble. Vasant Kamble
died as a result of strangulation and collapsed towards
back side of Keshav Hate. Alka Kamble also felt
unconscious due to the incident. Accused no.1-Babushet
thereafter said that mortal body of Mr. Vasant Kamble has
to be thrown out. Vehicle was therefore taken up little
ahead towards the steep road. Then the smear of
thread/rope was tightened around the neck of Alka
Kamble and she was done away. The mortal bodies of
Vasant and Alka were pulled out of the vehicle and thrown
in a “dari” (nearby valley). Accused no.1-Babushet
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reiterated that Mr. Hate’s disposition is also necessary
while he was literally trembling having seen the brutality.
The driver told Babushet that he was paid for killing two
persons only and not the third one. While the driver–
accused no.4 told Babusheth that Mr. Hate had no issue
at all with him. Therefore, the vehicle was turned towards
Nandavi and proceeded towards Kaccha Road. The
witness Keshav Hate was made to occupy the middle seat
while one person was sitting by his left hand and other
was sitting by his right hand. Before leaving towards
Nandavi Phata, Babushet-accused no.1 warned Mr. Hate
that if he discloses the event to any one he would be
killed as also his entire family because the boys sitting in
the vehicle are gangsters. After about 2 kms, the two
persons who were occupying the rear seat got down from
the vehicle and went towards Dargah. Then vehicle was
driven towards Nandavi Phata. When it came to Tol Phata
on Mahad road, accused no.1 Babushet got down from
the vehicle and one more person who was sitting on his
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right hand side also got down carrying plastic carry bags
with them. The witness Keshav Hate identified the
persons in the court who had got down. When Hate got
down from the vehicle accused no.1 Babushet offered a
sum of Rs. 200/- to Mr. Hate, but he refused to accept
the amount. Then vehicle proceeded towards Mumbai.
(B) Circumstantial evidence led to corroborate
the ocular evidence
6. The prosecution has relied upon the evidence of
PW-1 Amit Kamble who is Son of the deceased Kamble
couple (Exh. 86). Amit had lodged complaint that his
parents were missing (at Exh. 90). His evidence disclosed
that there was a dispute about the dealership of the Gas
agency between the deceased and the A-1-Babubhai.
There was past history of the complaint dated 25-03-1999
lodged by Smt. Kamble before the police. Another
complaint dated 07-02-2001 was lodged by Shri Ramdas
Athavale before police. It is in evidence that Amit had
identified dead bodies of his parents- deceased Kamble
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couple as also articles belonging to them. A-1 Zaverchand
@ Babubhai and Mrs. Kunda and Kamble family were
known to each other as they were neighbourers and were
tenants of one Faruq Kamran at Goregaon. Amit Gas
Agency of Mrs. Kamble was situated at shop no. 13 in
Madina Complex. It started from 1998. There was a
dispute about the Gas agency and rate of gas cylinder
between the A-1, his Wife Kunda, A-2 and Kamble couple.
A-1 and A-2 wanted the Gas Agency and so they had
dispute. They had started the litigation by filing a civil suit
in the Alibaug Court. They had started pressurizing the
Bank officials so that Mrs. Kamble should not get loan
from the Urban Bank, Goregaon for business purpose.
Mrs. Kamble had however availed of loan from the Konkan
Mercantile Bank at Nagothane. A-1 to 3 had filed Writ
Petition in Bombay High Court. A-3 Amit had given threat
in Marathi to Mr. Kamble “Mee Tumhala Baghun Ghein” (I
will see you). It is in cross examination of PW-1 that his
Father had lodged complaint to the police station, but he
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do not know whether police had made inquiry about the
incident.(vide Para 20) The evidence reveals that the
loan in the sum of Rs 9.88 lakh was obtained by the
deceased Shri Vasant Kamble to start the Gas agency.
PW-1 in cross examination admitted that he came to
know about the business of Zaverchand and Mrs. Kunda
after the murder of his parents. He also came to know
about the interest of A-1 and A-2 to start Gas Agency
which his Father had decided to get. A-1 and A-2 had
issued notice through Advocate to his Father in
connection with the Gas Agency and his Father had
replied that notice through Advocate Savant (Art.24/1).
Thus it is brought out in cross examination that a Civil suit
was pending in connection with the gas agency dispute
between accused Zaverchand, Kunda and PW-1‘s Mother
and Father. The amount of 10 to 15 lakhs was claimed by
Kunda in that Civil suit, on the allegation that Mrs. Alka
Kamble had taken finance from the accused for running
the business of the gas agency. PW-1 also admits that his
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Mother used to sign in English and had given her address
as c/o Kunda Sheth in correspondence with the Gas
agency. The fact that there was a dispute between the
A-1 and A-2 and parents of PW-1- Amit Kamble is thus
brought out in the course of his cross examination. A-1
was running the business as Noble enterprises. It is also
brought out in the cross examination of PW-1 that he had
not gone through the police statement before he
deposed. (Para 16). In such situation minor discrepancies
were bound to occur in his deposition as according to him
nobody read over his statement to him.
7. Thus the evidence of Amit Kamble revealed
that on the pretext of inauguration of the Hindustan lever
Agency at Ambet at the hands of late Mr. Vasant Kamble
on the following day, one Mr. Shinde had contacted Mr.
Vasant Kamble by phone on 29-03-2001 at about 9 p.m.
Mr. Vasant Kamble was informed by Mr. Shinde that he
will come by the special vehicle to take Mr. Vasant
Kamble and Mr. Vasant Kamble shall be ready. It is thus
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Vasant Kamble had contacted Mr. Keshav Hate to inform
him about the program of inaugural function of Shinde’s
agency from Hindustan Lever Company and had asked
him to come to the house at about 9 a.m. Accordingly
Keshav Hate had come at about 10 a.m. on 30-03-2006.
Shinde came at about 11 a.m. and was welcomed by Mr.
Vasant Kamble inside the house. Amit Kamble (PW-1) had
served water to Shinde (identified as A-4 Satish Shinde in
Court). A-4 Satish Shinde wanted Mr. Vasant Kamble to
start early. Mr. and Mrs. Kamble started with Shinde. Amit
Kamble, (P.W-1) also gave evidence about the articles and
the ornaments worn by his parents on that day, when
Shinde along with Keshav Hate and parents of PW-1
started by vehicle Trax Jeep. Shinde had occupied the
driver’s seat and one unknown person aged about 17 to
18 year old had occupied the seat by the side of Shinde.
Thereafter, on that day PW-1 went to attend his computer
class when he returned from the class at about 6 p.m. he
found that his parents had not yet returned/reached
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home. He then started making inquiry with relatives etc.
about phone number of Shri Keshav Hate who had
accompanied with his parents. PW-1 Amit came to know
during his inquiry, that Shinde had asked Keshav Hate to
get down from the vehicle at Vadavali diversion. PW-1
Amit also came to know that infact there was no any
inaugural function held at Ambet on that day. Then PW-1
contacted Police station to first lodge a missing report (Ex
90). When parents of PW-1 did not return despite his
waiting for them, he lodged the complaint (Ex 91) in
respect of the incident of kidnapping against Accused
Zaverchand, Kunda, Amit Sheth and Shinde (full name
was not known).
nd
8. Amit Kamble (PW-1) came to know on 2 April
2001 about the dead bodies of his parents in burnt
condition, traced in the Jungle (Forest). He saw wrist
watch of his Father lying there at the spot as also
spectacle of his Father, “Jodavis” (ornament worn by
married woman on the toe of her feet) in the toe of feet of
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his Mother. Metal bangles were seen in the hands of the
dead body of his Mother. The articles i. e. Pieces of glass
bangles, footwear (‘Chappal’) were seen lying nearby
which were belonging to his Mother. This is how dead
bodies were identified by him as that of his parents. Later
after about a month from the date of incident a test
identification parade was held in the office of Tahasildar
at Mangaon, Keshav Hate was also called for to attend
test identification Parade. PW-1 had identified Shinde (A-
4) who had come to his house to call his parents. Test
identification was also held about the articles found and
seized such as wrist watch, Mangalsutra of his Mother,
earring of his Mother, foot wear of his Mother, Spects of
his Father, metal Bangles and pieces of black bangles,
pair of jodavi of his Mother. PW-1 had produced a receipt
(Ex 94) in respect of purchase of Mangalsutra from
Shraddha Jewelers. It is pertinent to note the fact that the
last rites over the dead bodies were performed by Amit
Kamble, PW-1 after the dead bodies were brought in
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vehicle. This fact is also elicited in the course of cross
examination (vide Para 26). It is argued on behalf of the
prosecution that, grief stricken Amit Kamble (PW-1) was
not expected to tell whether Shri Keshav Hate was
present or not at the time of last rites of his parents.
9. PW-2 Abhijit Tapkire deposed about the incident
when delivery boy from the Amit gas agency came on 29-
03-2001 to deliver the gas cylinder and took amount of Rs
235/- while receipt was for sum of Rs. 223/- only. It is in
evidence that at the instance of his friend Amit Sheth,
they contacted Gas agency on phone and then they were
told to contact dealer of the Gas agency in the office to
put up their grievance. Thereafter they went to the office
of the Gas agency and contacted Arun Surve (PW-4) with
whom they had talk on phone. PW-2 Abhijit was directed
to talk with Madam (Mrs. Alka Kamble). He made inquiry
with Mrs. Kamble as to how Rs 12/- were overcharged.
She told him about the Xerox copy of the letter received
from the collector, but the letter was not available with
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her at that time. She searched but it was not found. In
the meantime Mr. Vasantrao Kamble who was present in
the cabin came there. Abhijit had talked with him. Vasant
Kamble told Abhijit that he knows his Father and he will
talk to his Father. Amit Sheth ( A-3) was present during
this discussion. Abhijit was satisfied with the discussion
and left the office but Amit Sheth (A-3) was still
there and had exchange of words with Vasant Kamble
and threatened Mr. Kamble that he would see him. (
eh
. Thus Mr. and Mrs. Kamble were
rqEgkyk c?kwu ?ksbZu ½
questioned about the overcharging the Gas cylinder.
Then sum of Rs 10/- was refunded by the delivery Boy.
This incident happened just a day or so prior the alleged
incident of double Murder. Evidence of PW-4 Arun Surve
revealed that he was employee of Amit gas Agency since
22-06-2001. He had received phone from Shri Tapkire
(PW-2) in connection with the supply of gas cylinder and
the complaint was made about the rate of the Gas
cylinder that the amount of Rs. 233/- was received from
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him for giving home delivery of Gas cylinder. He
deposed that on 29-03-2001 Vasant and Alka Kamble
were present. He also deposed about the inquiry made
about the rate of gas cylinder from Shri Abhijt
Tapkire (PW-2) and that Amit Sheth (A-3) had
threatened Kamble ( (I will see
eh rqEgkyk ikgwu ?ksbZu ½
you”). On 31-03-2001, he met Amit Kamble when he
came to know that Mr. and Mrs. Kamble had left with a
person by name Shinde to Ambet for inaugural ceremony
of Hindustan Liver Agency shop and they did not return to
st
the house since then. PW-4 Arun deposed that on 31
march the office of the Gas agency was closed and efforts
were made to search for as Mr. and Mrs. Kamble had not
returned to their house. Later on 2nd April, PW- 4 Arun
attended the office and on that day he came to know that
the dead bodies of Kamble couple were traced at jungle
at Tamhane Phata. PW- 4 Arun who saw the dead bodies
when the spot Panchanama was going on deposed that he
saw the Dead bodies were in burnt condition, in the
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nd
Shirke - Tamhane Jungle. On 2 April PW- 4 Arun had
along with delivery boys and Driver Kadir had gone to the
spot by the Tempo in Shirke- Tamhane Jungle when the
Panchanama was already going on. He also deposed that
the dead bodies were of Mr. Vasant and Mrs. Alka
Kamble. Evidence of PW-4 Arun revealed that he had
identified the article a wrist watch of Citizen Company
(Art.3), spectacle (Art.4) as belonging to Mr. Vasant
Kamble. A chappal (footwear Art.2) , a burnt Chappal (Art
1) Ear ring(Art. 5) were identified as belongings of Mrs.
Alka Kamble. Article no. 41 a Mangalsutra was also
identified as belonging to Mrs. Kamble. It is pertinent to
know that defence Advocate in the course of cross
examination brought on record the fact that Police as well
as CID Police had recorded the previous statement of the
PW-4 Arun Surve as per his narration. He knew Kunda
Sheth (A-2) as Kunda Bhabhi and Knew Zaverchand Sheth
(A-10). In cross examination he confirmed the
correctness of the fact stated to the police that he came
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to know that Zaverchand, his wife, Son and colleague had
killed the Kamble couple and he did not know them (It
remains obscure as to whom the word “them” refers
whether to Sheth family or Kamble couple). In our view
an attempt was made by the cross examiner to put the
previous statement made to police and directly introduce
it as evidence in a manner not warranted under law i.e.
Section 162 of the Cr. P. Code read with Section 145 of
the Indian Evidence Act. It was wrong on the part of the
cross examiner Advocate to put to the witness as to what
he had told the Police. Before a witness can be cross-
examined with reference to his previous statement made
to the Police with what has been stated before the Court,
attention of the witness has to be drawn to the “portion”
with which the cross examiner wants to contradict the
witness with what has been deposed or stated before the
Court. Attention of the witness has to be drawn to that
specific portion of the police statement which is intended
to be used to contradict the witness. If witness admits
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portion of the statement made before the Police, no
further proof is necessary. But if witness denies the
portion or the passage put to him in cross examination,
then that portion has to be marked for identification
subject to further proof by questioning the investigating
Police officer concerned who recorded the previous
statement of the witness as to whether the witness had in
fact stated before the police “the portion or passage” of
the statement which witness says he had not. The record
of the trial Court must indicate as to which specific
extracted portion of the alleged previous statement
before the police was put to the witness in his cross
examination by the cross examiner intending to use it for
the purpose of contradicting the witness with what has
been deposed before the trial Court. Omissions in the
police statements may also be put to witness in the
course of cross examination and if denied by the witness,
investigating officer can be questioned whether witness
had made a statement before the police which witness
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says he had not. Such omission/s may also amount to
contradiction if it/they are significant and otherwise
relevant having regard to the context in which they have
occurred. The trial Courts need to bear in mind that
statement of the witness made before the police cannot
be used as evidence against the accused. It is only that
specific portion or passage extracted from the statement
made to the police recorded under Section 161 of the Cr.
P. Code, if duly proved (bearing in mind the restriction
under Section 162 of the Cr. P. Code) according to law
may be used by the defense to contradict the witness
concerned in a manner as provided by the Section 145 of
the Indian Evidence Act. We feel the trial Court should
have taken more precaution to have the record perfect in
this regard. The Trial Court ought to have followed the
leading ruling in the case of Tahasildar Singh and
another vs. State of U.P. , reported in AIR 1959 SC
1012.
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10. Evidence of PW-3 Shekhar Gokhale, who was a
Clerk serving in the Gas agency of Kamble's since
01-06-2000 is about the inquiry which he along with Amit
Kamble (PW-1) had made on 30-06-2001 (the correct
relevant date in the context of the entire evidence should
be 30-03-2001) as parents of Amit Kamble had not
returned home after they had left the house for the
reason told of inaugural function of the Gas agency at
Ambet. After Kamble couple went missing, PW-3, Shekhar
had gone to the house of Amit Kamble and assisted him in
inquiry to trace whereabouts of his parents. According
to him, Kazi and Patel made inquiry at Ambet and they
disclosed that there was no any function at Ambet of
inauguration of the Gas agency. When Report of
Kidnapping was to be lodged at the Police Station, the
police officer Shri Savant told them that at this stage the
report as to the kidnapping cannot be recorded and
hence, missing report was lodged. Later at about 10.15
a.m., a Complaint of kidnapping was recorded by the
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police official. Dead bodies in burnt condition were traced
at Tamhane Ghat where Panchanama was going on when
the PW-3 Shekhar went there. He also identified Satish
Shinde A-4 as the person who had on 24-03-2001 inquired
about availability of Mr. Kamble at the Mangaon Office.
His evidence is criticized on the ground that he had not
identified Mr. Satish Shinde (A-4) at the time of the Test
identification Parade, but had identified him before the
Court. PW-3 Shekhar’s evidence by itself may be
considered as weak but it needs to be appreciated with
caution in the context of entire evidence on the record.
11. PW-5 Shri Vinayak Savant is owner of
Commander Jeep Mh-04-1698. He deposed about the fact
that Amit sheth (A-3) wanted to hire a vehicle to go to
Ambet and called it at Sundar Bungalow on 30-03-2001.
Amit Sheth (A-3) and Babusheth (A-1) had boarded in the
vehicle for to go too Ambet at about 12.30 to 1.00 pm.
The vehicle was driven by him at their instance of A-1
Babusheth to Lonere toll Road .On the way on instruction
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of A-1 it was taken to Tamhane Road and not to Ambet.
The vehicle was stopped at the Tomb (Durgah) before the
starting of Tamhane Phata. The A-1 and A-3 got down
from the vehicle and went towards the side of Durgah and
they had conversation with one person. Then they
boarded on the in the jeep and then vehicle went about
200 meters to Tamhane Ghat. When it was not possible to
drive the vehicle as it was steep kaccha road. Babubhai
had asked PW-5 to take the vehicle in reverse direction.
Then they returned to kundan Bungalow. He had received
hire charges of Rs 350/-. He also deposed about one
marshal vehicle seen near Kundan Bungalow. The
circumstantial evidence is about the conduct of the
accused Babusheth and his Son Amit Sheth on 30-03-
2001 prior to the incident.
12. PW-6 Sanjay Wadke is seller of wooden pat,
steel plate and copper Jar (Art 26 to 28) for Rs 130 to the
accused Satish Shinde (A-4). He admits that before
deposing in the Court he had talk with Advocate Bhise in
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the veranda of the Court. He also admits material
omission in his statement made to the police that there
was no mention of his identifying the articles. He admits
that similar types of articles are available in the Market as
shown to him. He admits that he used to come in contact
with the Police on account of his business to accept old
articles in exchange of the purchase of new articles.
Tahasildar had not called him for the test identification
Parade.
13. PW- 7 Vishwanath is also a servant who had
handed over articles of wooden pat having sunmica,
stainless steel plate, and copper jar Art 26 to 29 to
accused Satish Shinde. He admits visits by many
persons to the shop daily and he cannot tell the nature of
articles purchased by each customer.
14. PW-8 Bharat Goregaonkar is a Pancha witness
who was a witness to Panchanama Ex.112 about the
spot wherefrom the Kamble couple was kidnapped. He
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also deposed about the arrest Panchanama (Ex.113) of
A-1 to A-3 Babubhai, Kunda, and Amit Sheth. PW- 8 also
deposed about the statement recorded of the accused
Zaverchand @ Babusheth (A-1) that he would produce
dead body of the deceased Vasant and Alka and would
show the spot. Memorandum Panchanama Ex 114 was
drawn pursuant to which Zaverchand (A-1) had led police
and Panchas to the spot in jungle where the dead bodies
were discovered lying in burnt condition under the
Panchanama (Ex.115).
15. PW-9 Gorakhnath deposed as a pancha witness
for recording of the statement of Bitya@ Sham (A-5) and
the recovery of articles nylon rope (art 34 and 36) from
the spot near Durgah at the instance of the A-5 Sham
under the Panchanama Exh. 121.
16. PW- 10 deposed as to the Panchanama (Exh.
124) drawn at the instance of A-4 Satish Balu Shinde. He
had led police and Panchas to Vadpale boundary where
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weapons (Art. 33) and a bag containing puja articles
(Art. 25 to 28) wooden pat, steel plate, Niranjan and
copper jar (Gadu) were sized under Panchanama Exh.
125. Admission of witness in cross examination is that
police were not possessing anything else except pen and
paper which would indicate that police had not made any
preparation to carry the material for packing and sealing.
17. PW-11 deposed as a pancha in respect of the
vehicle Trax bearing registration no MH14 M 803 in
Panchanama Exh. 127 and in respect of the chance finger
prints found on the vehicle.
18. PW-12 Chandrakant is pancha regarding the
inquest held over dead bodies of Vasant Kamble and Alka
Kamble. (Exhs. 129 and 130).He deposed in cross
examination that the dead bodies were completely in
burnt condition and had turned black. PW-12 did not
raise any objection when police recorded in Panchanama,
the express opinion of police and Panchas to the effect
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that Accused had burnt dead bodies which is portion
marked ‘A’ in Panchanama (Exh. 129 ).
19. PW-13 Nitin Joshi is illiterate person chosen by
Police as a Pancha for the Panchanama (Exh. 135) when
at the instance of A-4 Shinde, office of the Babusheth was
pointed out. It was closed. It was opened by a Watchman.
A diary (Art. 39) was seized. According to PW-13, he had
not read the contents of Panchanama as he was unable to
read.
20. PW-14 is a pancha witness who deposed about
the recovery of chain (Art 38) bought by Accused
Bhausaheb Sampat Bahule for Rs. 8529/- under the
Panchanama Exh. 137. This witness admitted in cross
examination that he did not know as to what inquiry was
made by the police with the accused. He also admitted
that in his presence, the accused was taken out from the
lock up. Other accused were also present in the lock up.
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21. PW-15 Shabbir Pardeshi deposed about the
recovery of the sum of Rs 13500/- balance with Mother of
A-4 Satish Shinde under the Panchanama Exh.139.
Panchas had not offered their own search before the
alleged house search. Witness had admittedly talked with
Adv. Bhise before he deposed in Court.
22. PW-16 Siddik Havaldar deposed that the
statement of the accused Dinesh Chapade (A-8) was
recorded and the accused had recovered the WIMCO
match box containing 8 live sticks which were seized from
the spot pointed out by the said accused under the
Panchanama Ex. 142. PW- 16 admitted that the fact that
police had brought the accused to Mahad police station is
not correct. Police officials were sitting by both sides of
the accused when he made the statement. This has
placed question mark on voluntariness of the statement
of the accused in memorandum particularly when the
Panch was known to PSI Bhagwat and Shri Bhagwat had
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personally went by Jeep to bring the witness from his
shop.
23. PW-17 is Pancha witness who deposed about
the statement of the accused A-1 Zaverchand recorded
under the Panchanama Ex.146 whereby he had led Police
and Panchas his house which led to discovery of Article
no 15 to 18 plastic Cans smelling of petrol and Kerosene
under the Panchanama Ex 147. During search of the
house of the A-1, Articles 22 to 24 containing papers, file
connecting Mr. Shinde, papers of gas agency, pertaining
to the complaint to Tahasildar and Mr. Ramdas Athavle
were also found. The recovery revealed tell-a-tale
circumstances against the A-1 Zaverchand@ Babusheth.
Nothing adverse could be elicited from cross examination
of this witness to discredit him.
24. PW-18 is pancha witness regarding
Panchanama Ex 150 and 151 when the amounts of Rs
14500/- and 10000/- were recovered from the accused
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Mohite and Shinde respectively. The accused were
correctly identified before the Court by the witness.
25. PW-19 Pravin Pawar who had worked as
supervisor with A-1 Babusheth in his office of Noble
builder, deposed about the contact between the A-1 and
Satish Shinde( A-4,) who used to work in the office of the
Noble Builders.
26. PW-20 Raju Karkare was a servant in the Hotel
“Farag”. He deposed about six customers who came by
Tempo Trax from Pune who visited the hotel. They had
booked four bedrooms and one double bed room. They
were Balu Shinde, R.V. Rode, S.S. Mohite, S.G.Shinde and
B.S. Yadav and one more person who had left the lodge.
Entry was made at Ex. 174. R.V. Rode had left the lodge
on 23-03-2001 and others continued to stay in the lodge
till 29-03-2001. The witness deposed on the basis of the
alleged documents but could not tell as to in which room,
who had stayed.
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27. PW-21 Sayyad Kazi a garage owner had
repaired the Jeep MH--14-803 brought by the A-5 to 7.
28. PW-22 Ramchandra Rode is Father of Rajendra
who is the owner of the Trax Jeep. He deposed that on
22-03-2001 Accused Satkar had hired his jeep for ten
days @ Rs 500/- per day. Witness admitted that there is
neither documentary evidence to show that his vehicle
was not hired nor he had any tourist vehicle permit
29. PW-23 Mohan Parmer is a Sweeper who took
out Mangal sutra from Khed Police toilet septic tank under
the Panchanama. At rear side of the Khed police station,
he had emptied the septic tank of the toilet used by the
policemen only. In cross examination, this witness
admitted that policemen had explained to him on earlier
day as to what he should depose on the next day and also
to identify the Mangal sutra. He deposed how he stepped
in the septic tank and could not find mangal sutra earlier.
After pouring two or three buckets full of water in the
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tank, he had found one Mangal sutra (Art. 41). This
evidence is vehemently criticized on behalf of the
prosecution as falsely created evidence to rope in the
accused falsely in serious criminal case. We do not find
this evidence of recovery of Mangal sutra as trustworthy.
We must discard it as unreliable.
30. PW-24 is Rohidas Mulak a Pancha in respect of
the Panchanama regarding recovery of Mangalsutra.
According to him the toilet was shown by the boy who
was handcuffed. He is illiterate witness, unable to read
and write. On 14-04-2001 he had gone to police station to
lodge a complaint against his relative. He admitted that
police had obtained his signature. He also admitted that
the Panchanama was drawn after the Mangalsutra was
examined and weighed by the goldsmith.
31. PW-25 Jainuddin Tamboli is Driver of the
Trax Jeep. According to him during the period between
25-03-2001 to 28-03-2001, he had accompanied with the
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accused Satish Shinde (A-4), and his companions to
Harihareshwar, Diveagar and Shreevardhan, Murud
Janjeera, Birla Mandir. But he has not deposed anything
so as to throw light on the conspiracy as to the alleged
incident of double murder. He had returned back to peth,
as on 02-04-2001, he wanted to go to Shirur to celebrate
Moharrum.
32. PW-26 Hamidbhai is a witness who knew both
the accused as well as deceased Kamble couple. He had
sold the place in Madina Complex for the Gas Agency. He
stated that there was a dispute between Vasant Kamble
and A-1 Babusheth. His evidence is assailed by defense
for material omissions which witness admitted in his
earlier statement to police. He did not disclose to the
Police that Keshav Hate had met him on 30-03-2001. He
did not disclose to Police that he had called on Vasant
Kamble on phone and Vasant Kamble told him that he
wanted to visit Ambet to attend inaugural function. He
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admits that Keshav Hate (PW-33) was also taken in
custody in this case by the Police.
33. PW-27 Shantaram Bothare is illiterate Servant
of A-1 and A-2. He stated that two years prior to his
deposition in the court he had purchased Kerosene in 15
litres Can. (Article 15)
34. PW-28 Pandurang Tembhe was working at a
Petrol Pump by name “Hari Vijay Automobiles”. His
evidence is on the point that A-8 Dinesh Kapade had
purchased 5 litres of petrol in Can.
35. PW-29 Chandrakant Pawar was Room boy of
Apsara Lodge, Mahad. He deposed that on 29-03-2001,
out of 18 rooms, 7 rooms were booked by different
customers and in room no. 9 five customers were
occupying. PW-29 refers to handwriting of the Manager
Shri Kulkarni in Photostat copy (Ex.192) and gave
evidence that customer A.P. Jadhav paid bills of Rs. 185/-.
It is argued on behalf of the defense that PW- 29 has
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admitted that he would not be able to identify the
customers who stayed in the lodge during the period
between 29-03-2001 to 12-04-2001. The prosecution did
not examine Ramesh Kulkarni, then Manager of the lodge
who is attributed the role making the entries in Exh.192
relied upon, although according to PW-29, he was serving
in another lodge in Mahad. It is argued that on
12-04-2001, the accused were shown to the witness. The
witness was confronted with his previous statement made
to the Police as portion marked ‘A’ for which the witness
had no explanation to offer as to why it is so mentioned in
his statement made to the Police.
36. PW-30 is Mangesh Sutar. He knew A-4 and had
gone to Pratapgad He identified A-4 to A-6. He is an
acquaintance of A-4 Satish Shinde. According to him
Satish Shinde who had earlier served in the poultry Farm
with him had also served with Babusheth (A-1). He
identified Satish Shinde (A-4), and his friends introduced
to him as Chota Pintya and Motha Pintya (A-5 and A-6
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respectively). The suggestion that PW-30 identified the
accused at the instance of Advocate Bhise was denied by
him.
37. PW-31 Rasiklal Gandhi is a grocery shop-keeper
who deposed about the entry recorded in note-book
(Ex.202) dated 24-03-2001 in respect of sale and delivery
of 15 litres Kerosene in tin box to Shantaram, an
employee of the A-1 and A-2. PW-31 admitted that the
kerosene can be sold to only card holders. According to
Rasiklal, note book is required to be produced in the
Tahasildar’s office; otherwise he would not have
maintained the note book. This evidence would indicate
that an employee of A-1 and 2 had bought the kerosene
on 24-03-2001.
38. PW-32 Sanjeev Chaudhari is HPCL’s Executive
Sales officer who deposed the manner in which the
distributors are selected. Alka Sahadeo Bhise (Alka
Kamble’s maiden name) was selected as distributor for
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Mangaon in 1998. According to PW-32, the business was
conducted in the name and style of M/s. Amit Gas Agency
at Goregaon. PW-32 deposed that a complaint was made
by Smt. Kunda Sheth (A-2). She was taking interest in the
distributorship of Smt. Alka Bhise (Kamble). The complaint
by Alka was supported by an agreement between Kunda
Sheth and Alka Bhise with one Mr. S.K.Rao, the Deputy
Manager. PW-32 had inquired in to the complaint of A-2
Kunda Sheth. Alka Bhise was questioned and her
explanation was also recorded(Photostat copy of the
inquiry papers were tendered as Art ‘A’)Original
documents were not produced in the Court. The date of
the complaint is not on record .
39. PW-34 Bhagwat Geete, is an Employee of Geeta
Lodge, Budhwar peth, Pune. He deposed about the
Register in the Hotel and the relevant entry on page 87
(Ex.220). It is regarding stay of the accused Madhukar
Satkar(A-7) and Sham Mohite(A-5)
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40. PW-35 Vijay Gandhi is running a Medical and
General Store from where the police Sub inspector Shelke
and PSI More had purchased 7 Torches on 01-04-2001 at
about 12 midnight , after they had requested him to open
the shop and sell torches.
41. PW-36 Ramsanahi Sharma is a Carpenter. He
knows A-1 as he had worked with him on daily wages of
Rs. 150/- in the workshop of Noble Builders in mangal
wadi Mahad. He turned hostile and was cross-examined
by the prosecution. His evidence is no of any assistance
to the prosecution case.
42. PW-37 is Ramesh Paskar, then Tahasildar of
Mangaon deposed about the Test Identification Parades
(for short TIP), (Ex. 239) held on 28-04-2001 at about
12.30 noon time in his chamber in tahasil office. Upon
requisition letter Ex. 237 from the investigating officer the
TIP was held which reveals that PW-1 Amit Kamble, PW-33
Keshav Hate had identified Accused Satish @ Balu Shinde
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(A-4) from amongst seven persons (dummies). PW- 37
also deposed about the fact that rest of the witness
Shekhar Gokhale did not identify the accused Satish@
Balu Shinde. Other three accused were also not identified
by the witnesses. The evidence is criticized on the ground
that Mangaon Police station and, Tahasil office and Police
lock up are situated in the same ‘C’ shaped building with
common courtyard at the center The criticism from the
defence is that the TIP held was meaningless as witnesses
who had allegedly identified the accused had opportunity
to see the accused before the TIP and it was possible that
the witnesses may have identified the accused at the
instance of police.
43. PW-38 is a Panch witness who deposed about
seizure of the amount of Rs. 5000/- from Suresh Pathak
(PW-39) under Panchanama dated 26-06-2001 (Ex 242.)
Suresh Pathak was driver of Sumo Jeep bearing
registration no. MH-06-M-3412 belonging to Zaverchand.
The testimony by PW-39 Suresh Pathak, driver revealed
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the fact that he was in the employment of A-1 as driver
of the said Sumo Jeep which was hired by K.S.F. Company.
While Dinesh Kapade (A-8) was driver of Mahindra Jeep,
another vehicle owned by A-1. On 31-03-2001 at about
3.00 a.m., Accused Dinesh Kapade had visited the house
of PW-39 Suresh Pathak to hand over the sum of
Rs.5,000/- for delivering the same to one Mr.Rasik Gandhi
(Brother in law of the A-1). PW-39 had delivered the
amount to Rasik Gandhi accordingly. House of A-1 was
found locked on 31-03-2001 and 01-04-2001, when Police
wanted to recover this amount during the investigation.
PW-39 had contacted Rasik Gandhi before the Police, in
presence of PW- 38 Panch witness and who produced the
same under the Panchanama.
44. PW-40 is proprietor of the “Poonam Jewelers”,
jewelry shop in Shukrawar Peth in Pune. He deposed that
the Accused Pintu Bahule had bought gold chain with
pendal (Art. 38) ornaments worth Rs.8,829/- from his shop
on 31-03-2001. Transaction is evidenced by the document
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quotation-(Ex 245). It is pertinent to note that in the
document name of Pintu Wable Nashik (Pune) was
mentioned by PW-40 as name of customer at his
instruction. The witness explained during the cross
examination that there is no mark of his shop on the
article, as he used to purchase gold articles from other
gold smiths. PW-40 also admits that such gold chains are
available in the Market.
45. PW-41 is branch Manager of the Bank of
Maharashtra, in MIDC area at Birwadi, Tal. Mahad. He
deposed about the record of the Bank and letter dated
09-04-2001(Ex. 247) issued by then branch Manager Shri
Salvi regarding the fact of withdrawal of the amount of Rs,
1, 67,000/- on 29-03-2001 from his current accounts by
Zaverchand Harjeevan Sheth (A-1) from his accounts held
by him in the names of Vaibhav Enterprises, Vaijayanta
Services, Noble Builders, Noble Traders and Vishal
Services . The transaction evidenced by the extracts from
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the Ledger (Ex. 248). This was major withdrawal by A-1
Zaverchand.
46. PW-42 is Dr. Anandrao Shankar Patil; Medical
officer of the Primary Health Center Khamgaon gave
evidence regarding the Post mortem examinations
conducted along with Dr. Mehta, over two dead bodies,
one of Male and another of Female in Shirke Tamhane
Forest. The dead bodies according to Doctor were 100%
burnt and process of decomposition had started as
maggots were seen. He deposed about the correctness of
P.M. Notes (Exh. 253 and Exh. 254). He had also found
fracture on Femur bones of the deceased Kamble couple.
Viscera collected were sent to C.A. According to Doctor if
living person is burnt carboxy hemoglobin is found, but in
case of Alka Kamble no carboxy hemoglobin was found
indicating that Alka was burnt when she was already
dead. Doctor candidly admitted that as the dead bodies
were 100% burnt and there was heavy decomposition,
the evidence as to strangulation was not found as no
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injuries were traceable. Doctor expressed his opinion that
the fracture to femur bone may be possible due to
resistance offered while sitting in the vehicle or due to
blow of hard and blunt object on the said bone or possible
by fall on hard and rough object. Doctor also gave
opinion that in case of strangulation, instant death is
possible by device like Articles no 34 and 36 (Nylon
thread woven in two wooden handles) as result of
strangulation is asphyxia. The Doctor admitted the fact
that the bodies were in burnt condition it was not possible
to examine the bodies by each and every organ, legs and
arms. He admitted that due to high decomposition and
identification of the dead bodies was difficult. Doctors
had expressed his opinion as to cause of death as
“probably, death due to 100% burns still opinion is
reserved for the report of the Chemical analysis”. He
admits about his difference of opinion with the
investigating officer as for the cause of death of the
persons concerned .
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47. Shri Diwakar Shelke, API Alibaug (PW-43) gave
evidence about the complaint dated 30-03-2001 (Ex. 90)
lodged by Mr. Amit Kamble (PW-1) as his parents were
missing since 11 a.m. on that day. PW-43 Mr. Shelke had
initially interrogated Mr. Keshav Hate as he had
accompanied with Mr. and Mrs. Kamble on the fateful day,
in a white coloured jeep to Ambet for inauguration of the
gas agency office. Mr. Shelke had tried to trace the Jeep
but could not. On 31-03-2001 Amit kamble (PW-1)
lodged another complaint about the kidnapping of his
parents (Ex. 91). The offence was registered as C.R.no. 17
of 2001 at Goregaon Police Station. He drew spot
Panchanama (Ex. 112) in respect of the spot wherefrom
the Kamble couples along with Keshav Hate and others
had boarded the white coloured Jeep. Cross examiner has
brought on record the statement made by Shri Keshav
Hate on record as Exh. 260 to Exh. 265. Initially Keshav
Hate had feigned ignorance as to where Vasant and Alka
Kamble had gone telling police that he had got down from
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the trax and went to his Veer village; Mahad. PW- 44 Mr.
Shaikh PSI assisted in the investigation from 01-04-2001
till 24-04-2001. He had arrested the accused Dinesh
Kapade and arrested A-4 Satish Shinde, Madhukar Satkar,
Sham Mohite, Bhausaheb Bahule and seized vehicle MH-
14-M-803. He had visited hotel where according to him
the accused had stayed. He also seized amount of Rs.
13500/- at the instance of the two accused and also
visited shop Poonam jewelers wherefrom the accused had
brought ornaments (vide Panchanama Ex.280). Extracts
from the ledger were collected from the bank of
Maharashtra branch (Ex.281) He also deposed that
Mangalsutra (Art 41) was recovered from the nearby area
of latrine near Khed Police station at the instance of the
accused Sham Mohite. Ex. 296 report from FSL indicated
that the human heir was found on Ex.9 Nylon rope
attached to two sides of small wooden blocks. Viscera
reports(Ex. 297 and 298) in respect of dead bodies found
did not reveal any poison in Exhibit no. 1 and 2.
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Possibility of deaths by poisoning was thus overruled by
expert opinion from FSL. No ethyle alcohol was detected.
On 03-04-2001, PW-49 had invited finger print experts
Shri Khandare and PW Shri Kelkar. They had taken chance
fingerprints by examining Motor vehicle Tempo Trax
bearing no. MH-014-M-803. Ex.303 is the expert opinion
regarding the chance prints obtained under the
Panchanama (Ex. 127) from the drivers side rear view
mirror of Motor vehicle MH-14-M-803 which matched with
the right thumb finger impression in the finger impression
slip of Accused no. 4 Satish Murlidhar Shinde. PW-52 Shri
Mahavarkar also corroborated this evidence in Para 9 of
his testimony, stating that expert were called upon by
letter sent by Shri P.N.Patil Police Inspector (Ex 353) to
compare those chance prints with the specimen finger
prints of all the accused in the case .
48. PW-46 is a licensed stamp vendor, who had on
18-03- 1996 sold original five Stamps each in the
denomination of Rs 10/- and one stamp Paper in the
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denomination of Rs. 100/-under his signature s (Art A),
Consent letter Art B, Files containing agreement signed
by him and A-1 (Art 24), Photostat copy of consent letter
dated 30-09-1998 (Art B-1). Original Stamp papers were
signed by him as vendors and by the A-1 as purchaser.
Evidence of Police officers concerned with the
investigation
49. PW- 47 is API Vishnu Pawar who assisted in the
investigation to Shri Mahavarkar. PW-48 is Shashikant
Savant PSI, Mahad City. He found on investigation that
A-4 Satish Shinde had purchased some puja articles from
the shop Of Sanjay Wadke at Mahad. He had also
recorded statement of Vishwanath Pawar, an employee
from the said shop who had delivered Puja articles. PW-
49 Shri Pandurang Patil is another Police officer
concerned with the investigation. Pw-49 Shri Patil
deposed about the arrest Panchanama (Ex. 151) cash
amount of Rs 10000/- recovered from the A-4 Satish
Shinde. Cash amount Rs 14500/- recovered from accused
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Bitya@ Sham Mohite (A-5), Cash amount of Rs 14000/-
from Pintya@ Bahausaheb Sampat Bahule (A-6). PW-50
Shri Bhagwat, API deposed about the memorandum
statement made by the Accused Dinesh under the
Panchanama (Ex.141). Accused Dinesh (A-8) had led
police and Panchas to the spot in in Shirke Tamhane Road
wherefrom the match box of WIMCO Company (Art.40)
was found. It was seized under the Panchanama (Ex.
142). PW-50 Shri B.A. Dhas, Police Inspector had also
assisted in the investigation. On 01-04-2001, he had
arrested A-1 Zaverchand, his wife and Son in C.R. no. 17
of 2001, registered at Mangaon Police station. He
deposed about the fact that A-1 had volunteered to point
out the dead bodies of Vasant and Alka Kamble.Thus a
memorandum statement was made by A-1 Zaverchand
under the Panchanama (Ex. 114). The A-1 had led police
and Panchas to the spot towards Shirke-Tamhane Road by
Vehicle and had asked them to stop the vehicle and led
police and panchas to the spot where two human burnt
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bodies were lying. Accordingly Panchanama (Ex. 115) was
prepared. Separate inquest Panchanamas in respect of
both the dead bodies were also drawn as per Ex. 129 and
130. Panchanama (Ex. 115 and 116) regarding the spot
was also drawn in respect of recovery of articles i.e. one
wrist watch of citizen company make, half burnt ladies
footwear, old spectacle, one ear ring. The articles were
identified by Amit Kamble (PW-1) as belonging to his
parents. After the postmortem examination on the spot
itself as the dead bodies were in burnt condition they
were handed over to the custody of Amit Kamble (PW-1)
for their last rites. Death entries made by Goregaon
Grampanchayat (Ex. 341) on 010-04-2001. A gold chain
was seized from the accused no. 6 Bhausaheb Bahule
under the Panchanama (EX. 137) and reported to Dy. S.P.
Mahavarkar by letter (Ex 337) dated 10-04-2001.
Investigating officer ACP, Thane Shri Mahavarkar gave
evidence that he was monitoring the investigation in C.R.
no. 17 of 2001 reported by Amit Kamble (PW-1). He gave
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evidence about the memorandum statement made by the
A-1 Zaverchand recorded under the memorandum
Panchanama (Ex 146) and the fact that the A-1 led police
and the panchas to his house wherefrom Four plastic
Cans one of 20 litre capacity and three of 5 to 10 litre of
capacity (Art. 15 to 18) were seized under the
Panchanama (Ex 147). Shri Mahavarkar also deposed
about the Panchanama drawn by him in respect of the
search of the house of A-1 Zaverchand during which
three files (Articles 22 to 24) pertaining to the Gas agency
and the dispute between the accused no. 1 and the
deceased Kamble couple were traced in the house of A-1.
The files contained the document of school leaving
certificate of Satish Shinde (A-4), Xerox copy of the
driving license of A-4 Satish Shinde seized under the
Panchanama Ex. 148. PW-52 in Para 10 of his evidence
deposed that on 04-04-2001, A-4 Satish Shinde made
statement under the Panchanama (Ex. 124) for to
produce the article of Puja as well as weapons concealed
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at Wadpale in the premises belonging to the A-1
Zaverchand. The A-4 led police and Panchas to the spot
abutting Bombay-Goa Highway, where there was an open
space having barbed wire fencing and gate. The articles
were concealed under the Mango tree, wrapped in paper
daily “Sakal “dated 25-03-2001. The articles no. 25 to 33
identified before the Court were wooden board, Steel
plate, copper jar etc. which were seized under the
Panchanama (Exh.125) All articles were contained in the
polythene bag. It is also in evidence of PW-52 that the
accused Bittya@ Sham (A-5) had made confessional
statement recorded under the memorandum Panchanama
(Ex. 120) and led Police and Panchas to the recovery of
Nylon rope/thread fixed in two wooden pegs with a hole
at the center concealed under the thorny bushes at the
spot near Huzurbaba Durgah, on Ambet Road. Long hair
was found attached to the nylon rope. The hair was
separated. Articles no. 34 and 36 were seized under the
Panchanama (Ex. 121). During the course of cross
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examination, PW-52 was questioned at length. According
to him on 31-03-2001 Keshav Hate had not disclosed the
offence. He admits that the case was a topic of hot
discussion in the Assembly as activists of Republican
Party of India had insisted on breakthrough in the
investigation. He also stated during the course of his
cross examination that he had gone to the spot where the
dead bodies were lying and they were 100% burnt but not
totally decomposed. Dead bodies were delivered to the
relatives of Vasant and Alka Kamble. PW-52 was also
confronted with entry dated 30-03-2001 at Ex.375 which
revealed the outbreak of the dispute between Buddha and
Muslim communities and the said incident pertained to
burial land at village Ambet.PW-52 explained that it was
an altogether separate incident at village Ambet.PW-52 is
questioned about the portion marked ‘D’ in police
statement of Keshav Hate dated 19-04-2001 which
revealed that PW-1 Amit Kamble had inquired with PW-33
Keshav Hate as to whereabouts of his parents. (Vide Ex.
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438). Shri Keshav Hate had also stated portions marked
as E,F and G (Ex. 439 to 441 respectively). These portions
of contradictions are material and vital to indicate that
Amit Kamble (PW-1 had telephoned Keshav Hate (PW-33)
that his parent had not returned back and they had left
the residence telling him that they are going to Ambet for
inauguration of the shop at Ambet. Keshav Hate told Amit
that his Father had asked him to get down at Vadavali
Fata after giving him a note in the denomination of Rs.
50/-. It also indicates that Keshav Hate had had searched
for Vasant and Alka Kamble on the night of 30-03-
2001.The contradictions also indicated that Amit (PW-1)
told Keshav Hate that Shinde driver, Zaverchand (Babu
Sheth), Kunda Sheth, and Amit Sheth had taken away his
Parents on 31-03-2001 at Morning and he had lodged
complaint at Goregaon Police station. Thereafter Keshav
Hate had along with Amit and villagers searched for
Vasant and Alka. Furthermore, according to Keshav Hate
he came to know on 02-04-2001 when he had visited
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residence of Kambles that they were kidnapped by the
Trax vehicle on the pretext of inaugural function of the
shop at Ambet and were strangulated and their bodies
were burnt with the help of rockel and Petrol in the
Tamhane shirke forest.
Submissions at the Bar-
50. Learned Counsel Mr. Chitnis who took us through the
evidence of PW 33 Shri Hate, an eyewitness of the alleged
incident of Murder submitted that the police statement of
PW-33 was recorded after delay of about three months
and has shown tendency to blow hot and cold during the
examination-in-chief. Learned counsel criticized the
evidence of alleged eye witness as false and imaginary.
He made grievance of improperly led evidence by the
Prosecution on the ground that leading questions were
allowed by the trial Court to be asked to the witness
during his examination-in-chief and this has caused grave
prejudice to the case of the accused and vitiated the fair
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trial. He placed reliance upon the ruling in Varkey Joseph
vs. State of Kerala, reported in 1993 Suppl. (3) SCC
745.
“11. …. The prosecutor shall not be allowed
to frame his questions in such a manner that the
witness by answering merely "yes" or "no”
will give the evidence which the prosecutor
wishes to elicit. The witness must account for
what he himself had seen. Sections 145 and
154 of the Evidence Act are intended to provide
for cases to contradict the previous statement of
the witnesses called by the prosecution.
Sections 143 and 154 provides the right to
cross-examination of the witnesses by the
adverse party even by leading questions to
contradict answers given by the witnesses
or to test the veracity or to drag the truth of
the statement made by him. Therein the
adverse party is entitled to put leading
questions but Section 142 does not give such
power to the prosecutor to put leading
questions on the material part of the
evidence which the witness intends to speak
against the accused and the prosecutor shall
not be allowed to frame questions in such a
manner to which the witness by answer
merely "yes" or "no" but he shall be directed
to give evidence which he witnessed. The
question shall not be put to enable the
witness to give evidence which the prosecutor
wishes to elicit from the witness nor the
prosecutor shall put into witness's mouth the
words which he hoped that the witness will utter
nor in any other way suggest to him the answer
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which it is desired that the witness would give.
The counsel must leave the witness to tell
unvarnished tale of his own account. Sample
leading questions extracted hereinbefore
clearly show the fact that the prosecutor led the
witnesses what he intended that they should say
the material part of the prosecution case to
prove against the appellant which is illegal
and, obviously unfair to the appellant offending
his right to fair trial enshrined under Art. 21 of
the Constitution. It is not a curable irregularity.
12. Suspicion is not the substitute for
proof. There is a long distance between,
may be true' and 'must be true’ and the
prosecution has to travel all the way to prove its
case beyond all reasonable doubt. We have
already seen that the prosecution not only
has not proved its case but palpably produced
false evidence and the prosecution has
miserably failed to prove its case against the
appellant let alone beyond all reasonable doubt
that the appellant and he alone committed the
offence.”
51. Shri Chitnis reading evidence of PW.33-Shri
Hate before us contended that the evidence can be
categorized as wholly unreliable. He submitted that the
oral evidence, generally is either wholly reliable or wholly
unreliable or in the third category of neither wholly
reliable nor wholly unreliable. Thus the oral evidence may
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be accepted wholly or partially because some evidence
may be disregarded in case there are certain infirmities
noticed in the oral testimony. The trial Court is expected
to attach the appropriate weight to the evidence of oral
testimony using its experience, strong common sense and
the knowledge of human affairs.
52. Shri Chitnis while making reference to
Pulukuri Kottayya vs. Emperor, 1947 PC 67 argued
that in their Lordship’s view it is fallacious to treat the
“fact discovered” within the section as equivalent to the
object produced; the fact discovered embraces the place
from which the object is produced and the knowledge of
the accused as to this , and the information given must
relate distinctly to this fact. Shri Chitnis stressed on the
point that the incriminating portion of the statement of
the accused in police custody must be excluded from
being admitted in evidence.
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53. Shri Chitnis made reference to the ruling in
Appanna Yellawwa vs. State, reported in AIR 1956
Bombay 471 to argue that the eyewitness though
unsophisticated, if make improvement in the evidence on
material points, it would be infirmity in a case of Murder
and if such direct evidence cannot be relied upon, the
subsidiary evidence such as discovery of the axe,
however suspicious cannot be relied upon to cure the
infirmity .
54. Reference is then made to the ruling in
Pohalya Motya vs. State of Maharashtra (1980) 1
SCC 530. Mr. Chitnis argued that the circumstances
must be fully established against the accused to hold
them guilty. When two views are possible, the view which
favors the accused ought to be preferred .
55. Shri Chitnis also referred to the ruling in
Gentela Vijayvardhan vs. State of A.P. (1996) 6 SCC
241 to argue that to attract Doctrine of Res Gestae the
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fact or statement must form the part of same transaction.
Interval between the act constituting the offence and the
making of the statement renders the statement
inadmissible as res gestae.
56. Shri Chitnis then invited our attention to the
ruling in Manohar Shankar Chavan vs. The State of
Maharashtra (Cri. Appeal no. 586 of 1991
decided on 26-07-2012 by Division bench of this Court)
as also to the ruling in Lahu Kamlakar vs. State of
Maharashtra in Cri. Appeal no 114 of 2008 to argue
that the evidence if untrustworthy and impeachable
cannot be relied upon to convict the accused. The
clinching evidence is necessary to convict the accused.
The Apex Court taking in to consideration the earlier
rulings held thus :
“26. From the aforesaid pronouncements, it is vivid
that witnesses to certain crimes may run away from
the scene and may also leave the place due to fear
and if there is any delay in their examination, the
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testimony should not be discarded. That apart, a
court has to keep in mind that different witnesses
react differently under different situations. Some
witnesses get a shock, some become perplexed,
some start wailing and some run away from the
scene and yet some who have the courage and
conviction come forward either to lodge an FIR or get
themselves examined immediately. Thus, it differs
from individuals to individuals. There cannot be
uniformity in human reaction. While the said
principle has to be kept in mind, it is also to be borne
in mind that if the conduct of the witness is so
unnatural and is not in accord with acceptable
human behaviour allowing of variations, then his
testimony becomes questionable and is likely to be
discarded.”
57. Shri Chitnis submitted that the major
discrepancies which remained unexplained in the
evidence of the prosecution ought to be considered to
give benefit thereof to the accused so as to acquit them
for want of clinching evidence. He referred to the ruling
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in Niranjan Panja vs State of West Bengal 2010 (6)
SCC 525.
58. Shri Chitnis submitted that all the parameters
to sustain the conviction ought to be satisfied.
Prosecution must have led evidence beyond reasonable
doubt to prove that the accused alone are responsible for
the crime committed. He made a reference to the ruling
in Brijesh Mavi vs. State (NCT of Delhi) (2012) 7 SCC 45 as
also to the ruling in Balia@ Balkishan vs. State of
M.P. 2012 ALL MR (CRI) 4129 (SC). Shri Chitnis
submitted that the evidence as to the Criminal conspiracy
must indicate that the accused had agreed to commit the
offence. Benefit of the doubt must go to the accused.
59. Learned Advocate Mr. Yug Chaudhary
submitted that the evidence as to the Test identification
parade is not reliable as it was held contrary to guidelines
in criminal manual (guidelines laid down by this Court).
He placed reliance upon the ruling in AkbarNazir vs.
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State of Maharashtra reported inn 2003 ALLMR
(cri) 1823 and the ruling in Ziya-ul–Huq and Others
vs. The State of Maharashtra Criminal Appeal no
199 of 2002 dated 17-10-2006. The rulings are on the
point that Test identification parade ought to be
conducted when the accused are in jail, preferably in the
jail and not at the police station. Conviction on the basis
of the evidence in a murder case can be based when such
evidence is beyond reproach, creditable, and safe to act
upon. The evidence of interested witness has to judged as
to whether it is true or false depending upon the manner
in which the evidence is deposed before the Court
Independent evidence must also be corroborated by the
medical evidence. Discrepancies, contradictions and
omissions of minor nature when witness is deposing after
long time from the date of incident will have to be
ignored. Mr. Chaudhary relied upon the ruling in
Harinath vs. State of U.P. reported in AIR 1988 SC
345 , to argue that the unexplained delay in holding the
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Test identification Parade has reduced the evidentiary
value of TIP as it throws a doubt about its genuineness
and therefore the benefit of doubt must go to the
accused. Shri Chaudhary also referred to the ruling by a
single Judge of this Court in Rakesh Harilal Kahar vs.
State of Maharashtra reported in 2006 ALL MR (Cri)
3062 to argue that mandatory requirements in the High
Court criminal Manual ought to be observed . It is
obligatory for the Special executive Magistrate to ask the
witness as to whether he had opportunity to see the
suspect or his photograph prior to the parade.
60. Reference is also made to the ruling in Ganesh
Bhagwati Pandian vs. State of Maharashtra 1985 Cri .L.J.
191. The persons similar in age, height, appearance etc.
to the accused ought to be selected as dummies to stand
in the Parade. Precautions are necessary to make the TIP
of fool proof to corroborate the substantive evidence
given in the Court of identification of accused. Shri
Chaudhary contended that the chances of the suspects
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being shown to the witnesses before the TIP must be
ruled out, otherwise the TIP would be meaningless. He
placed reliance upon the ruling in Ramcharan Bhudiram
Gupta vs. State of Maharashtra 1995 Cri L. J. 4048 as
also in the ruling in The State of Maharashtra vs. Rajesh
@ Kaka Madanlal Soni reported in 1998 (1) All MR 420 .
In the later ruling, the TIP was held after two and half
years making it unworthy of acceptance. Shri Chaudhary
Mohd Aman and
then place reliance upon the ruling in
another vs. vs State of Rajasthan 1997 SCC(cri) 777 to
argue that the articles seized by the investigating officer
ought to be kept in sealed condition till they are received
by the forensic Science Laboratory to prevent any chance
of being tampered with. Benefit of Suspicion as to
genuineness of the crime article arising from the evidence
in regard will have to be given to the accused. The
learned counsel for the other accused have virtually
adopted submissions of Dr. Chaudhary and Mr. Chitnis.
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61. Learned A.P.P on behalf of the State placed
reliance upon the rulings on the point of discrepancies
occurring in the evidence due to inaction or lapse by the
I.O. to inquire in depth for to collect evidence cannot be
fatal to the prosecution case if available direct and
circumstantial evidence rings true to establish the offence
in question.
In Dharmendra Singh vs. State of Gujarat 2002
ALL MR (cri) 2605 (SC) in para15-
“As observed earlier the discrepancy in regard to the
lodging of the FIR is certainly there and the conduct
of the Investigating Officer in carrying out the
investigation of the case has also been commented
upon by the trial court but we are of the view that the
consequences of such discrepancies or defective or
doubtful investigation is not necessarily only one
leading to discredit the main prosecution case if the
prosecution evidences inspires confidence and
circumstances lead to such a conclusion and the
prosecution story rings true. No doubt that in that
event it would be necessary to evaluate as to what
extent such faulty investigation or discrepant
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statement on certain facts relating thereto, shall
cause damage to the prosecution case as a whole”
62. On the point of the lack of evidence as to the
identification of the dead bodies, learned A.P.P argued
that it is no doubt important evidence for the prosecution
to bring on record but it is not a sine qua non as the
prosecution case can be established on the basis of
available evidence to prove offence beyond reasonable
doubt. She made a reference to the ruling in Laksmi vs.
State of U.P 2002 ALLMR (cri) 2290 In Para 16 and
17 the Apex Court observed thus observed thus-
“16. Undoubtedly, the identification of the body,
cause of death and recovery of weapon with which
injury may have been inflicted on the deceased
are some of the important factors to be
established by the prosecution in an ordinary
bring
given case to home the charge of offence
under Section 302 IPC.This, however, is not an
inflexible rule. It cannot be held as a general and
broad proposition of law that where these aspects
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are not established, it would be fatal to the case of
the prosecution and in all cases and eventualities,
it ought to result in the acquittal of those who may
be charged with the offence of murder. It would
depend on the facts and circumstances of each
case. A charge of murder may stand established
against an accused even in absence of
identification of body and cause of the death.
17. The present case falls under this latter
category. We would assume in favour of the
accused persons that the prosecution had failed to
conclusively prove as to which the body of
deceased Ratan was and which that of Ramesh
was. The trial court and the High Court, as earlier
noticed, have disbelieved PW3 Usha wife of Ratan.
The theory of his identification from muffler has
not been accepted. It is also possible that the
Police or the complainant thinking that
identification of the dead bodies would be one of
the important aspects to be established may have
introduced the theory of muffler. The mere fact
that in this regard, the case of the prosecution is
not believed by itself does not lead to the
conclusion that the accused persons are to be let
off when the charges against them otherwise
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stand established on the basis of the other reliable
and trustworthy evidence. Every faulty
investigation or padding in evidence cannot by
itself lead to total demolition of prosecution case if
it can otherwise stand ignoring these fallacies.”
It is further summed up in Para 20 as under :
“20. The reasons given above would equally apply
to the absence of cause of death. The bodies had
been extensively burnt and for that reason, it
could not be ascertained whether the cause of
death was shooting or burning. That also explains
non-recovery of the pallets which would have lost
in the burning pyre. The fact that the
investigating team was not vigilant and did not
take the trouble of searching pallets in the pyre
would not be destructive of the prosecution case
when it has been otherwise proved. It is not open
to the accused persons to first make an attempt to
destroy the evidence by throwing the two in fire
and then contending that they are entitled to be
acquitted for want of proof of identification of
bodies and cause of death. There is
unimpeachable evidence of PW1, PW2 and PW5 as
to the manner in which the accused persons shot
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Ratan and Ramesh and threw them in the burning
pyre of Ishwar Chand. The FIR was recorded
within about an hour and half naming Roshan and
his sons and brother-in-law of Ishwar Chand as
accused and also narrating the manner of
committing the crime.”
In State of U.P vs. Devendra Singh 2004 All MR (cri)
2554 (SC) Hon’ble Supreme Court held circumstance of
the recovery of dead body as solid in the light of the
conduct of the accused in that case. It is observed thus :
“8. Coupled with the evidence of PW-4, the
evidence of PWs 2 and 3 who claimed to have seen
the deceased and the accused shortly before the
occurrence is of significance. Even if the High Court
kept out of consideration PW-4's evidence, the last
seen theory was a factor which was not duly
considered by the High Court. The dead body was
found in the field of the accused and evidence on
record also shows that the accused initially
prevented PW-1 and others from searching his field,
but after lot of persuasions he permitted the
persons searching for the dead body to go to his
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field and in fact the dead body was recovered there
from. The said solid circumstance is sufficient,
coupled with the initial repulsion exhibited by the
accused to substantiate the guilt of the accused.”
63. Regarding the Motive to commit crime, Learned
A.P.P. submitted that it relevant factor as it prompts a
person to form an intention to do some illegal act to
achieve that intention. She has made reference to the
ruling in S. C. Bahri vs. State of Bihar AIR 1994 SC
2420.
“21. At the very outset we may mention that
sometimes motive plays an important role and
becomes a compelling force to commit a crime
and therefore motive behind the crime is a
relevant factor for which evidence may be
adduced. A motive is something which prompts
a person to form an opinion or intention to do
certain illegal act or even a legal act but with
illegal means with a view to achieve that
intention. In a case where there is clear proof of
motive for the commission of the crime it
affords added support to the finding of
the court that the accused was guilty of the
offence charged with. But it has to be
remembered that the absence of proof of
motive does not render the evidence bearing
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on the guilt of the accused nonetheless
untrustworthy or unreliable because most often it
is only the perpetrator of the crime alone who
knows as to what circumstances prompted
him to a certain course of action leading to the
commission of the crime.”
64. Learned A.P.P. argued that delay occurred in
examination of the prosecution witness does not
necessarily make the prosecution evidence
untrustworthy. She referred to the ruling in Ranbir and
others vs. State of Punjab reported in AIR 1973 SC
1409 In Para 7 the Apex Court had explained the legal
position thus :
“7. No doubt, in cases of party factions,
there is generally speaking, a tendency on the
part of the prosecution witnesses to implicate
some innocent persons also along with the guilty
ones, but normally where the general substratum
of the occurrence cannot be held to arouse any
reasonable doubt or suspicion about its having
taken place, then the prosecution witnesses,
provided they are held to have witnessed
the occurrence and to be in a position to identify
the assailants, are ordinarily not to be assumed
tohave left out the actual offenders or the
guilty persons. Although the witnesses for the
prosecution are in such circumstances prone
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to exaggerate the culpability of the actual
assailants as also to extend the participation in
the occurrence to some possible innocent
members of the opposite party as well, the court
has to sift the evidence and after a close
scrutiny with anxious care and caution to try to
come to a judicial conclusion as to who out of the
accused persons can be safely considered to
have taken part in the assault. As pointed out
in Deep Chand v. State of Haryana (1), the
maxim falsus in uno falsus in omnibus is not a
sound rule to apply in the conditions in this
country and therefore, it is the duty of the
Court in cases where a witness has been found to
have given reliable evidence in regard to certain
particulars, to scrutinize the rest of his evidence
with care and caution. If the remaining evidence
is trust-worthy and the substratum of the
prosecution case remains intact, then the court
should (1) [1969] (3) S.C.C. 890. Uphold the
prosecution case to the extent it is considered
safe and trust-worthy. In our view the evidence
believed by both the courts with respect to the
five appellants before us is acceptable, and,
if accepted, it certainly proves their guilt
beyond reasonable doubt. The appellants'
counsel also faintly contended that Tota
Ram P.W.7 was examined by the police after
considerable delay, the suggestion being
that his evidence must be looked at with
suspicion. We are not impressed by this
submission. The fact of delayed examination of
Tota Ram should, in our opinion, have been put
to- the Investigating Officer so as to enable him
to explain the undue delay,if any, in examining
Tota Ram. The question of delay in examining a
witness during investigation is material only if
it is indicative and suggestive of some unfair
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practice by the investigating agency for the
purpose of introducing a got-up witness to falsely
support the prosecution case. It is, therefore,
essential that the Investigating Officer should be
asked specifically about the delay and the
reasons therefore.”
65. Regarding delay in recording the police
statement of eye witness, learned A.P.P. argued that the
investigating officer must be questioned about it and if he
give satisfactory explanation, the delay can be
inconsequential as held in Lalli@ Chiranjib Bhaumick
vs. West Bengal AIR 1986 SC 990 . In that case there
was long delay of 56 days in recording then police
statement of the eye witness, and the explanation for the
delay was found acceptable. The Apex Court observed in
Para 3 thus :-
“In the evidence led by the prosecution the clear,
cogent and satisfactory explanation has been given
why the statement of Haradhan Das was recorded
after the lapse of 56 days. The learned Additional
sessions Judge has carefully considered the
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explanation and accepted it and so has the High
Court and we see no reason to interfere with this
concurrent finding”
In Ramanbhaib Naranbhai Patel vs. State of Gujarat
(2000)1 SCC 358 In Para 20 it is observed that in the
absence of evidence of the test identification parade
during the investigation
“20… But even assuming as submitted by learned
counsel for the appellants that the evidence of
these two injured witnesses i.e. Bhogilal
Ranchhodbhai and Karrsanbhai Vallabhbhai
identifying the accused in the Court may be treated
to be of no assistance to the prosecution, the fact
remains that these eyewitnesses were seriously
injured and they could have easily seen the faces of
the persons assaulting them and their appearance
and identity would well remain imprinted in their
minds especially when they were assaulted in broad
day light. They could not be said to be interested in
roping in innocent persons by shielding the real
accused who had assaulted them.”
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66. Regarding the evidence of the recovery of dead
bodies in this case it is contended that it is most relevant
evidence as held in Vikas vs. State of Rajasthan
(2002) 6 SCC 728, in Para 11 it is observed :
“11. For recovery of the dead-body also, it has
come on record that it was recovered at the
instance of Vikas on the basis of his disclosure
statement while he was in custody, which is
proved by the evidence of PW18 Narender
Mohan, Dy. S.P., Banswara, who has stated that
accused Vikas led the police party to Gemmon
bridge. He pointed out the place from where he
pushed Neeta in the river and they found the
dead-body at a distance of 1 km. At that time
also, Vikas admitted that dead-body which was
found from the river was that of Neeta. This
discovery of the dead-body at the instance of
accused is most relevant circumstances in the
present case.”
In State of Maharashtra vs. Damu s/o Shinde
(2000) 6 SCC 269 The evidence as to discovered fact
was held admissible by the Apex Court by observing
thus:-
“35…..The decision of Privy Council in
Pullukurri Kottayya vs. Emperor AIR 1947 PC
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67 is the most quoted authority for
supporting the interpretation that the "fact
discovered" envisaged in the Section embraces
the place from which the object was produced,
the knowledge of the accused as to it, but the
information given must relate distinctly to that
effect.
36. No doubt, the information permitted to
be admitted in evidence is confined to that
portion of the information which "distinctly
relates to the fact thereby discovered". But
the information to get admissibility need not be
so truncated as to make it insensible or
incomprehensible. The extent of information
admitted should be consistent with
understandability. In this case, the fact
discovered by PW 44 is that A3 Mukinda Thorat
had carried the dead body of Dipak to the spot on
the motor cycle.
37. How the particular information led to the
discovery of the fact? No doubt, recovery of dead
body of Dipak from the same canal was
antecedent to the information which PW 44
obtained. If nothing more was recovered
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pursuant to and subsequent to obtaining the
information from the accused, there would not
have been any discovery of any fact at all. But
when the broken glass piece was recovered from
that spot and that piece was found to be part of
the tail lamp of the motor cycle of A2 Guruji, it
can safely be held that the Investigating Officer
discovered the fact that A2 Guruji had carried the
dead body on that particular motor cycle up to the
spot.
38. In view of the said discovery of the fact,
we are inclined to hold that the information
supplied by A2 Guruji that the dead body of Dipak
was carried on the motor cycle up to the
particular spot is admissible in evidence. That
information, therefore, proves the prosecution
case to the above-mentioned extent.”
67. In Birbal vs. State of M.P. (2000) 10 SCC
212 the test identification parade if held has
corroborative value, but substantive evidence is
identification before the Court. Absence of Test
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identification Parade may not be fatal. The Apex Court
held thus-
“24. The identification of appellants by PW-29,
PW-34, PW-42 and PW-45 in court for the first
time without prior identification by them in the
test identification parade has been the subject
matter of comment. Insofar as the identification
of appellants by PW-42 and PW-45 are
concerned, the trial court as well as the High
Court had not accepted the same but the
identification of appellants by PW-29 and PW-34
had been accepted by both the trial court as
well as by the High Court and in our view
rightly. We have already laid down above
that the identification of the accused by
a witness if he had an opportunity to interact
with him or to notice his distinctive features
lends assurance to his testimony in court and
that the absence of corroborative evidence by
way of test identification parade would not be
material.”
68. In Dr. Sunil Daniel vs. State of Punjab
reported in 2012 ALLSCR 2940 , the Apex Court
considered the rulings on the subject of circumstantial
evidence, discovery of fact and importance of Motive to
observe thus :
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“20. In a case of circumstantial evidence,
motive assumes great significance and
importance, for the reason that the absence
of motive would put the court on its guard and
cause it to scrutinize each piece of evidence
very closely in order to ensure that
suspicion, emotion or conjecture do not take the
place of proof.
21. In Subedar Tewari v. State of U.P. &
Ors., AIR 1989 SC 733 , this Court observed
as under:
“The evidence regarding existence of motive
which operates in the mind of an assassin is very
often than (sic) not within the reach of others.
The motive may not even be known to the
victim of the crime. The motive may be known
to the assassin and no one else may know what
gave birth to the evil thought in the mind of the
assassin.”
Evidence of Motive if available can assist the trial Court
to arrive at logical and correct conclusion.
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69. According to learned A.P.P. the criticism that
Shri Hate is interested witness and his evidence is not
reliable is unacceptable in view of the observations in the
ruling in Gajoo vs. state of Uttrakhand in 2012 ALL
SCR 2954 she relied upon the observation of the Apex
Court as under :
“15. Once, the presence of PW2 and PW3 is
shown to be natural, then to doubt their
statement would not be a correct approach in
law. It has unequivocally come on record
through various witnesses, including PW4, that
there was a ‘Satyanarayan Katha’ at the house
of Chetu Ram which was attended by various
villagers. It was on their way back at midnight
when PW2 and PW3 had seen the occurrence in
dark with the help of the torches that they
were carrying. The mere fact that PW2
happens to be related to PW1 and to the
deceased, would not result in doubting the
statement of these witnesses which otherwise
have credence, are reliable and are duly
corroborated by other evidence. In such cases,
it is only the members of the family who come
forward to depose. Once it is established that
their depositions do not suffer from material
contradictions, are trustworthy and in
consonance with the above-stated principles,
the Courts would not be justified in
overlooking such valuable piece of evidence.”
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70. We have carefully considered the submissions
advanced at the Bar as also the rulings cited at the Bar.
PW.33 Keshav's evidence brought on record in the course
of the cross examination of the investigating officer has
posed a serious question mark over the evidence of
alleged Eye witness Keshav Hate (PW-33). But evidence of
PW-53 Shri Londhe revealed that he had interrogated
Keshav Hate (PW-33) on 23-06-2001 and 24-06-2001 and
he opened up after initial reluctance and gave a Police
statement. The evidence of PW-53 also revealed as to
how he entered into correspondence with Civil Surgeon of
Alibaug for seeking opinion on the point of cause of
deaths of Vasant Kamble and Alka Kamble from 15-06-
2001 and how late on 01-10-2001 the Civil Surgeon
had replied the queries from PW-53. PW-53 states
that he had on 21-06-2001 sent viscera contents for re-
analysis. Police had questioned Keshav Hate thrice on30-
03-2001, 31-03-2001 and on 19-04-2001. Having seen
the brutality of double murder in his presence, he was
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horrified and reluctant to tell the truth because he was
also sought to be eliminated. Fortunately for him the
offender who accepted the contract for killing Kamble
couple said he was given money for to do away with
Kamble couple only and not the third person and threat
was given to Keshav Hate not to disclose any thing he had
seen to any body or else he would also be killed. This is
how we have to appreciate that the fear from the
accused, made him reluctant initially to disclose anything
about the incident of double murder. Till 24-06-2001, he
had not even disclosed the incident to his wife.
71. Such witness who is resident of village is
normally frightened and may avoid the the police
questions due to threats from the accused and may also
try to avoid frequent attendances in the trial court
proceedings. If and when assured of protection from the
offenders, he may gather courage to depose the truth.
PW-33 Keshav Hate was in psychological trauma which
restrained him earlier to give ocular narration earlier than
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24-06-2001. PW-33 in the course of cross examination
explained the reason of fear from the accused as the
reason for not disclosing the truth initially. A-1
Zaverchand wanted to kill Keshav Hate also but the A-4
Shinde refused to kill him on the ground that he was paid
for two killings only and not for third and further that Hate
had no issue with A-1, Keshav Hate was spared with the
threat on that fateful day. These are inferences raised
from the evidence of Keshav Hate, sole eyewitness and
entire evidence. We think that the Learned Trial Judge
who had an advantage observing the eyewitness
deposing live before him, rightly chose to rely upon his
direct evidence in the peculiar facts and circumstances of
the case.
72. In our view, regarding the test identification
Parade, the precautions as contained in the guidelines
issued by the High Court in the criminal Manual are
required to be observed to make the exercise of holding
the TIP meaningful and reliable. If there is inordinate
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delay in holding TIP, the delay ought to be explained by
the prosecution. A witness of fact who is required to
attend the test identification to identify the unknown
offender from the assemblage of accused intermingled
with group of dummies at the TIP must not have any
prior opportunity to see the suspect or the accused after
his arrest or while the accused is continuing in custody
pending investigation, before the TIP is held. If TIP is held
in jail, the responsible authority holding TIP will have the
facility to take precautions including the selection of the
appropriate similar dummies in age,appearance,dress etc.
to stand along with the suspects. At the same time it
must be remembered that the TIP belongs to the stage of
investigation and essentially governed by Section 162 of
the Criminal Procedure Code and does not constitute the
substantive evidence. Hence cannot be decisive factor
for recording conviction. There is no provision in the Code
of Criminal Procedure to make it compulsory for the
investigating agency to hold test identification Parade
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because the substantive evidence is identification of the
culprit before the Court. Failure to hold the TIP would not
make the evidence of identification in the Court
absolutely meaningless or inadmissible. The evidence of
TIP provides only corroboration to the main evidence
before the Court when required by way of the abundant
precaution in view of Section 9 of the Indian Evidence Act.
The object of holding TIP at the stage of investigation is to
help the investigating agency to assure itself that the
investigation is proceeding at right direction, on correct
lines. The purpose of the holding prior test identification
is to test trustworthiness of the witness at the stage when
investigation is still at its preliminary stage .The holding
of the TIP is felt necessary in a case wherein the accused
were not known to the accused since prior to the incident.
The accused cannot as of right claim that the test
identification parade must be held at the stage of
investigation. The trial Court is not precluded from
accepting the evidence of the identification of the
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offender on the basis of sworn testimony in the Court
without insisting upon the corroboration. Though safe rule
of prudence is to look for corroboration. It is for the
learned trial judge, as a Court of fact, who has opportunity
to see & have live experience of watching demeanor of
the witness while he or she is deposing before the Court,
to attach the appropriate weight to the evidence of the
witness. In an appropriate case the trial Judge may accept
the evidence of identification in the Court even without
insisting upon the corroborative evidence. In case the
trial Judge find it unsafe to rely upon the substantive
evidence of actual identification of the offender before the
trial Court, it may look upon the evidence of the TIP for
the purpose of corroboration and may then find it out
whether corroborative evidence adduced is dependable
and reliable to base conviction. Merely because the sole
eye witness is branded as an interested witness his
evidence in our view cannot be discarded particularly
when corroboration to the main evidence may be found
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from the evidence led on record. If it is established that
the sole eyewitness was present at the time of occurrence
and his testimony appears natural, free from blemish and
reliable, the conviction can be based upon his evidence.
There cannot be a dispute over the settled proposition of
law that when two views are possible on the evidence
adduced in the trial one pointing to the guilt and other
pointing to the innocence, the view which is favourable to
the accused ought to be preferred to ensure that
miscarriage of justice shall be prevented and an
innocent person shall never be convicted. Therefore the
prosecution is obliged to prove the offence beyond
reasonable doubt to establish that the accused are the
real culprits. But the principle which is other side of the
same coin must also be borne in mind that the
miscarriage of justice which may arise from the acquittal
of the guilty can be no less than that of the conviction of
the innocent. In case where the admissible evidence is
ignored the duty is cast upon the Appellate Court to re-
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appreciate the evidence for the purpose of ascertaining
as to whether any of the accused really committed the
offence or not.
73. Discovery of dead bodies at the instance of the
accused may not by itself lead to the conclusion but the
articles belonging to the victims at the instance of the
accused must be considered important circumstance or
circumstances to raise presumption of the participation of
the accused in offence. As a general rule confessions or
statements made to police are not admissible in evidence
due to bar under Section 25 and 26 of the Indian Evidence
Act. By way of an exception discovery of fact as
contemplated under Section 27 of the Indian Evidence Act
is relevant only when evidence is given that the accused
while in police custody supplied or gave information which
is the immediate or direct cause of the a relevant “fact
discovered”. Such disclosure statement or information
supplied whether amounting to confession or not is not
wholly admissible in evidence, but is restricted in its
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admissibility to the extent it distinctly relates to the fact
thereby discovered. The expression “fact discovered”
includes within its ambit the place from which the object
is produced as also the knowledge of the accused as to
the object produced and the place wherefrom the thing or
object is produced. Thus portion of the disclosure
statement or information which relates distinctly or
strictly to the fact discovered is provable because some
guarantee of truth or assurance is attachable
unmistakably to such portion only; rest of it is
inadmissible in evidence.
74. Section 120-A of the Indian penal Code defines
criminal conspiracy as an agreement between two or
more persons to commit an illegal act or to do an act
which though by itself not illegal but the same is done or
executed by illegal means. Mere proof of an agreement
between the accused to commit offence is enough to
bring about the conviction for the offence punishable
under section 120-B of the IPC, in such case proof of any
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overt act by the accused or by any of them would not be
necessary. Conclusion is to be drawn from the
circumstantial evidence available in the case, because
Criminal conspiracy is often hatched in complete secrecy
and it is impossible or rare to get direct evidence. It is not
necessary that each of the conspirators must not know
each and every detail of the conspiracy nor it is necessary
that every one of the conspirators must take part in the
commission of each and every conspiratorial act. The
prosecution may prove from the circumstances on record
that the agreement existed to commit crime by necessary
implication. It is said that men may lie but the
circumstances do not. How criminal conspiracy was
formed, when and who were the participants as also the
manner in which the criminal conspiracy is carried out are
the matters of inference, legitimately deducible from the
acts and conduct of the accused persons.
75. When circumstances are cogently and firmly
established, considered cumulatively, they form a chain
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so complete to unmistakably point out towards guilt of
the accused and none else then conviction is sustainable.
There would be no justification for the Court to cull out
the one circumstance from the rest of them to give
different meaning to it. The test is whether the combined
effect of the proved facts taken together is conclusive to
establish that within all human probabilities the accused
must have committed the crime. One of these facts may
not by itself be decisive. “Last seen” theory can lend
credence to the prosecution theory to connect the
accused in the absence of any other links in the chain of
circumstantial evidence. The accused ought to explain
facts within his knowledge to create dent in the
prosecution story. Non-explanation of the accused in his
defence statement under Section 313 of the Criminal
procedure Code as to what happened on the fateful day
can furnish a missing link to connect accused to the
crime. Conduct of the accused before and after the
incident is relevant under Section 8 of the Indian Evidence
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Act. When it is shown unreasonable and unnatural, it is
pointer towards guilt of the accused in the absence of
cogent explanation from the accused in their defence
statement.
76. Right from the stage of FIR which set the law in
motion in the present case, we have considered the entire
evidence along with evidence of Shri Keshav Hate with
care and caution, with due regard to the common course
of natural events and human conduct. The testimony of
PW-33 Shri Keshav Hate is criticized by the defence as
that of a false or interested witness on the ground that he
was acquaintance of the deceased Kamble Couple. But
merely because of this reason that he was acquainted
with deceased Kamble couple, his evidence cannot be
discarded as untruthful, especially when he supported the
prosecution case in material particulars. There is no
evidence of his enmity of any kind towards the accused
which can motivate him to rope them in for serious
offence of Murder. It must be emphasized The maxim
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“falsus in uno, falsus in omnibus” has no application in
India. The witness in our country may not be of sterling
quality to present unvarnished truth, he may have
tendency to indulge in embroidery of untruth though his
evidence is true in the main. When deposing after long
gap of time from the date of incident of double Murder,
the witness is not expected to give a parrot like exact
version of the incident. Normal discrepancies are bound
to occur due to lapse of time, or due to mental disposition
caused by shock and horror at the time of the incident,
howsoever the honest and truthful the witness may be.
Contradictions of minor nature are bound to occur.
Variation or improvement made by the witness, from his
earlier statement made before the police cannot by itself
be sufficient to hold such evidence given in the court as
infirm and discardable. The Court is duty-bound to
separate the grain from the chaff and accept what
appears to be true. When that is done it is open for the
criminal court to record conviction. A witness may stand
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discredited by cross examination by bringing
contradictions or inconsistencies on record which may go
to the root of the matter in issue. Convincing evidence
must be brought on record to assail or uproot credibility
of an eye witness. In the absence of material
contradiction, improvement and inconsistency, there is no
impediment to base conviction upon the testimony of
solitary eye witness if such sole eye witness is found
reliable, and if his evidence is sufficiently corroborated by
other evidence brought on the record, his testimony must
be considered as credit-worthy and satisfactory.
77. We find that the learned trial Judge had analyzed
in details the circumstantial evidence, medical evidence
and the evidence of forensic expert in the present case
which were found sufficiently corroborative to the ocular
version of the incident of fraudulent abduction, double
murder and attempts to destroy evidence. We may
conveniently list them as under :-
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(i) Accused no. 1 Zaverchand @ Babubhai
and Mrs. Kunda Sheth were known to Kamble family
as they were staying as neighbors while they were
tenants of one Faruq Rehman. PW-26 Hamidbhai who
had sold the shop of Gas agency in Medina Complex
deposed that there was dispute between Vasant
Kamble and A-1 Zaverchand @ Babusheth.
Panchnama (Ex 146) is a memorandum statement of
A-1 Zaverchand, pursuant to which under Panchnama
(Ex 147) was drawn and three files (Art 22 to 24) were
recovered pertaining to the Gas Agency and the
dispute between A-1 and deceased Kamble Couple.
Xerox copy of driving license of A-4 Satish Shinde was
also seized under this Panchnama.
(ii) Kamble couple started “Amit Gas agency”
at shop no.13 in Madina Complex at Goregaon. A-1
and A-2 wanted the Gas agency and they had
pressurised the Bank officials so that the Kamble
couple should not get loan.There was dispute about
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the dealership of the Gas agency between the
deceased Kamble couple . The Civil suit at Alibaug was
instituted by A-1 Zaverchand@ Babubhai , claiming
sum of Rs 10 to 15 lakhs on the allegation that Alka
Kamble had taken finance from the accused no 1
Zaverchand @ Babubhai . A-1 to A-3 had also filed
Writ Petition in Bombay High Court. PW-32 Sanjeev
Chaudhari,Executive Sales Officer of HP deposed
about the selection of Alka Sahadeo Bhise ( Mrs. Alka
Kamble's maiden name) as distributor for the Gas
Agency at Mangaon and the fact that Kunda Sheth
(wife of A-1 Zaverchand) was staking claim in the
distributorship of Alka.The dispute had past history of
the complaint dated 25-03-1999 lodged by Smt. Alka
Kamble to the Police and complaint dated 07-02-2001
lodged by one Shri Ramdas Athavale as deposed by
PW-1 Amit Kamble.(Circumstances brought out in the
course of cross examination of PW-1 Amit Kamble).
There was a dispute about the rate of Gas cylinder
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between the A-1, his wife Kunda on one hand and
Kamble couple. On 29-03-2001 ,A--3 Amit Sheth gave
threat to Mr Kamble in marathi langauge “Mee
Tumhala Baghun Ghein” ( I will see you) on the
pretext that Gas cylinder was sold for Rs. 235/- while
receipt was given for Rs 223/- only. PW-2 Abhijit
deposed that the Kamble couple was questioned
about the overcharging and a sum of Rs 10/- was
refunded by the delivery boy. PW- 4 Arun Surve gave
evidence that he was present when on 29-03-2001
threat was given by Amit Sheth as aforesaid.
Deceased Vasant Kamble had lodged complaint
regarding the incident as stated in cross examination
by PW-1 Amit Kamble. PW-3 Shekhar Gokhale,Clerk
serving in Gas Agency of Kamble stated that A-4
Satish Shinde had inquired with him at Mangaon office
on 24-03-2001 about availability of Vasant Kamble.
(iii) Evidence of PW-27 Shantaram Bothare,
Servant of A-1 Zaverchand an A-2Kunda, read with the
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evidence of PW-31 Rasiklal Gandhi, a grocery shop-
keeper reveals that 15 liters of kerosene was bought
in a Can on 24-03-2001. (Vide notebook entry Ex.
202).
(iv) PW-41 Branch Manager of Bank of
Maharashtra deposed that Zaverchand (A-1) withdrew
sum of Rs 1,67,000/- on 29-03-2001 from the bank
accounts held by him (Exh. 248 is statement of Bank
transaction) on the pretext of inaugural function of
Shinde's Gas agency to be opened as new Gas
agency of Hindustan Lever Company at Ambet, A-4
Shinde told Vasant Kamble that inaugural function is
to be done at the hands of Vasant Kamble ,the
accused Satish Shinde (A-4) had contacted late Vasant
Kamble on Phone on 29-03-2001 at 9 p.m..Accused
Satish Shinde had informed Vasant Kamble that he
will come by the special vehicle at morning at about
10 a.m. on 30-03-2001 and Vasant Kamble shall be
ready. Satish Shinde (A-4) had purchased Puja
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articles from shop of Sanjay Wadke (PW-6) at Mahad
(vide evidence of PW-48 Shashikant Savant) then
came at the residence of Kamble couple at about 11
a.m. On 30-03-2001. PW-1 had served water to him.
Satish Shinde wanted Vasant Kamble to start early.
Mr Keshav Hate had came as invited by Vasant
Kamble to accompany with him. A-4 Satish Shinde
along with Mr. Vasant Kamble, Mrs Alka Kamble ,
Keshav Hate went by vehicle driven by A-4 Satish
Shinde. One unknown young person aged about 17 to
18 year old person had occupied the seat by the side
of Driver Satish Shinde. PW-1 Amit Kamble had ' last
seen ' the A-4 Satish Shinde visiting his house and
taking his parents and Shri Keshav Hate(PW-33) by
Motor Vehicle away on the pretext to inaugurate a
Gas Agency Shop at their hands at Ambet. PW-1 later
came to know that there was no such function at
village Ambet on that day. The theory of ‘last seen
together’ is one where two persons were ‘seen
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together’ alive and after an interval of time, one of
them is found alive and the others dead. If the period
between the two happenings is short, presumption as
to the person alive being the author of death of the
other can be drawn depending upon the happenings
and circumstantial material collected during the
course of evidence. Time gap should be of such
duration so as to rule out the possibility of somebody
else committing the crime. Last seen together
principle is one of the latest principles of the law of
evidence which is taken into consideration to safely
reach the guilt of the criminal. In the absence of eye-
witnesses and tangible evidence, it is the last resort of
the prosecution in a murder case – the person last
seen with the victim is presumed to be the murderer,
thus, shifting the onus on to the accused to tender
plausible explanation which unless it point out
otherwise or establish an alibi may help the
prosecution to establish the guilt. The foundation of
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the theory is based on principles of probability and
cause and connection. Where a fact of fraudulent
abduction has happened with a series of acts,
preceding or accompanying it, it can safely be
presumed that the fact of double Murder of Kamble
couple was possible as a direct cause of the preceding
or accompanying acts, unless there exists a fact which
breaks the chain upon which the inference depends.
In the present case however the ocular evidence of
Keshav Hate has the effect to bolster up further the
prosecution's chain of circumstantial evidence.
(v) PW- 5 Vinayak deposed that Amit Sheth(A-
3) hired a vehicle for RS 350/- on 30-03-2001 and had
called it at Sundar Bungalow on 30-03-2001. Amit
Sheth and Babubhai had boarded the vehicle for going
to Ambet at about 12.30 to 1-00 pm. But the vehicle
was driven to Lonere Road and then turned to
Tamhene Road and not to Ambet Road. Evidence of
PW-5 revealed that the A-1 and A-3 had got down
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from the vehicle and went towards side of Durgah and
talked with one person. Then Vehicle was taken about
200 Meters towards Tamhane Ghat. As it ws Steep
kutcha Road. Babubhai had asked the PW-2 to take
the vehicle in reverse direction. Then they returned to
Kundan Bungalow.
(vi) Evidence of PW-6 Sanjay Wadke, shop-
keeper and PW-7 Vishwanath servant in shop reveals
that Wooden Pat, Steel plate, used as weapon of
offence from the shop and Copper Jar (Art 26 to 28)
was bought by A-4 Satish Shinde . These very article
were recovered under the Panchnama (Ex 124 and Ex
125) at the instance of A-4 Satish Shinde, who led
police and Panchas to Vadpale boundary. (vide
Evidence of PW-10). At the instance of A-1
Zaverchand (memorandum statement recorded EX
146) Plastic Cans smelling of Kerosene were
recovered under the Panchanama (Ex 147). PW-18
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Pravin Supervisor with A-1 stated that A-1 and A-4
were acquainted with each other.
(vii) PW-1 when his parents did not return
inquired and came to know that there was no any
inaugural function at Ambet, lodged missing report
(Ex 90) at the Police station. Amit ,PW-1 lodged
complaint (Ex 91) of abduction when when his parents
did not return despite waiting.
(viii) PW-8 Bharat, a Pancha witness deposed
about statement recorded of the A-1 Zaverchand @
Babusheth(Ex112) that he would point out dead
bodies of deceased Vasant and Alka and would show
the spot. Pursuant to which A-1 led police and
Panchas to the spot in Jungle where from the dead
bodies in burnt condition were recovered under
Panchnama (Ex 115) Dead bodies of Vasant Kamble
and Alka Kamble were recovered in burnt condition at
the instance of at Tamhane Ghat. The circumstance
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that the A-1 knew of the dead bodies of Vasant and
Alka and the spot where dead bodies were lying in
burnt condition is vital in the composite chain. Medical
evidence of Doctor A.S. Patil who had conducted post
mortem on the spot over dead bodies noticed fracture
of femur bones in respect of both dead bodies,
(indication of physical violence). Doctor also noticed
carboxy heamoglobin on dead body of Alka indicating
that Alka must have been set on fire after she was
already dead. Dr Patil expressed opinion that fracture
of femur bone was possible due to resistance offered
while sitting in vehicle or due to blow of hard and
blunt or possible by fall on the hard and blunt object.
Two Nylon ropes were recovered at the instance of A-
5(Statement recorded in Panchnama Ex 120). One of
the Nylon rope (Art 10) was found tied to the wooden
Pat having hole at the center. Bunch of human hair
was found on Nylon rope. C.A. Report Exh. 391
indicated that on examination of the Can Seized and
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referred for examination kerosene residues were
found. Exh. 296 report from FSL indicated that the
human heir was found on ex 9 Nylon rope attached
to two sides of small wooden blocks. Viscera
reports(Exhs. 297 and 298) in respect of dead bodies
found did not reveal any poison in exhibit no. 1 and 2.
Possibility of deaths by poisoning was thus overruled
by expert opinion from FSL no ethyl alcohol was
detected. On 03-04-2001 PW-49 had invited finger
print experts Shri Khandare and PW Shri Kelkar. They
had taken chance fingerprints by examining Motor
vehicle Tempo Trax bearing no. MH-014-M-803 Ex.
303 is expert opinion regarding the chance prints
obtained under the Panchanama (Ex. 127) from the
driver side rear view mirror of Motor vehicle MH-14-M-
803 which matched with the right thumb finger
impression in the finger impression slip of Accused no.
4 Satish Murlidhar Shinde.PW-52 Shri Mahavarkar also
corroborated this evidence in Para 9 of his testimony,
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stating that expert were called upon by letter sent by
Shri P.N.Patil Police Inspector (Ex 353) to compare
those chance prints with the specimen finger prints of
all the accused in the case .
(ix) PW-50 Shri B.A. Dhas, Police Inspector had
also assisted in the investigation. On 01-04-2001 he
had arrested A-1 Zaverchand, his wife and Son in C.R.
no. 17 of 2001 reported at Mangaon Police station. He
deposed about the fact that A-1 Zaverchand @
Babusheth had volunteered to point out the dead
bodies of Vasant and Alka Kamble.Thus a
memorandum statement was made by A-1
Zaverchand under the Panchanama (Ex. 114).The A-1
had led police and Panchas to the spot towards
Shirke-Tamhane Road by Vehicle and had asked them
to stop the vehicle and led police and panchas to the
spot where two human burnt bodies were lying.
Accordingly Panchanama (Ex. 115) was prepared.
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78. Non-explanation of the incriminating
circumstances against the A-1 and A-4 by them do furnish
the missing link to the actual commission of heinous act
of double murder of first strangulating the Kamble Couple,
then attempts to destroy the evidence of heinous act of
double Murder by burning the dead bodies with intention
to make them unidentifiable and thereby escape from
the clutches of law. There would be no justification for the
criminal Court to cull out one of the circumstance from
the rest of them to give different meaning to it. The test is
whether the combined effect of the all the proved facts
taken together is conclusive enough to establish that
within all human probabilities the accused must have
committed the crime. One of these facts may not by
itself be decisive. Last seen theory can also lend
credence to the prosecution theory to connect the
accused in the absence of any other links in the chain of
circumstantial evidence. Faced with above incriminating
circumstances against them the accused no.
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1 and 4 were bound to explain facts within their
knowledge to create dent in the prosecution story. Non-
explanation of the accused in their defence statement
under Section 313 of the Criminal procedure Code as to
what happened on the fateful day can furnish a missing
link to connect accused to the crime. Conduct of the
accused no. 1 and 4 before and after the incident is
relevant under Section 8 of the Indian Evidence Act. If it is
shown unreasonable and unnatural, it is pointer towards
guilt of such accused in the absence of cogent
explanation of their acts in evidence. Right from the stage
of FIR which set the law in motion in the present case, we
have considered the entire evidence along with evidence
of Shri Keshav Hate with care and caution, with due
regard to the common course of natural events and
human conduct. The testimony of PW-33 Shri Keshav Hate
is criticized by the defence as that of a false or interested
witness on the ground that he was acquaintance of the
deceased Kamble Couple. But merely because of such
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criticism, his evidence cannot be discarded as untruthful,
especially when there appear ring of truth in his evidence
and he has substantially supported the prosecution case
in material particulars. There is no evidence that Mr.
Keshav Hate had enmity of any kind towards the accused
persons which can motivate him to rope them in for
serious offence of double Murder. His evidence may not
.
be free from some blemish here or there The maxim
“falsus in uno, falsus in omnibus” has no application in
India. The witness in our country may not be of absolute
sterling quality to present unvarnished truth, he may
have tendency to indulge in embroidery of untruth though
his evidence is true in the main. When deposing after
long gap of time from the date of incident of double
Murder, the witness is not expected to give a parrot like
exact version of the incident. Normal discrepancies do
occur due to lapse of time, or due to mental disposition
caused by shock and horror at the time of the incident,
howsoever the honest and truthful the witness may be.
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Contradictions of minor nature are bound to occur.
Variation or improvement made by the witness, from his
earlier statement made before the police cannot by itself
be sufficient to hold such evidence given in the court as
infirm and discardable. The Court is duty-bound to
separate the grain from the chaff and accept what
appears to be true. When that is done it is open for the
criminal court to record conviction. A witness may stand
discredited by cross examination by bringing
contradictions or inconsistencies on record which may go
to the root of the matter in issue. Convincing evidence
must be brought on record to assail or uproot credibility
of an eye witness. In the absence of material
contradiction, improvement and inconsistency, there is no
impediment to base conviction upon the testimony of
solitary eye witness if such sole eye witness is found
reliable, and if his evidence is sufficiently corroborated by
other evidence brought on the record, his testimony must
be considered as creditworthy and satisfactory. Bearing
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the settled principles in mind, We find that the
circumstantial evidence, medical evidence and the
evidence of forensic expert presented in the case were
sufficiently corroborative to the ocular version of M.
Keshav Hate (PW-33) about the incident of double
murder. In the present case the material do exist to
identify the motive and the cumulative evaluation of the
links in the chain of circumstances leading to sure
conclusion of guilt of the accused. Whole testimony of
Shri Keshav Hate cannot be rejected on the ground that
he is speaking untruth in some aspect because it is
impossible to present proof with rigid mathematical
demonstration. If such test of absolute waterproof
evidence is to be insisted upon, it would be a dead stop
for the criminal administration of justice. We are aware of
the rule that an innocent person shall never be
convicted .But at the same time no guilty persons can be
allowed to escape the clutches of law and go unpunished.
Wrong acquittal would send wrong signals to the society.
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There was no reason for Shri Keshav Hate (PW-33) to
falsely implicate the accused or to shield the real culprits.
In our opinion his testimony was not shattered, in as
much as, to ignore and throw it overboard at least as
against the A-1 and A-4 who were clearly involved in the
incident of double Murder of Kamble couple. Hate has
given vivid description of the whole incident. In his cross
examination, it is brought on record that noose on the
neck of Vasant was tightened by the A-1. It is true that in
the earlier statements of Mr. Hate recorded by the police,
he has not implicated the accused. However, he
th
implicated the accused in his statement recorded on 24
June, 2001 by CID. He has stated in paragraph no.23 of
his deposition that he was threatened immediately after
the incident. He has categorically stated that he was
reeling under fear even when he visited the police station
with activists. He stated that he was feeling like
disclosing the incident, but due to fear, he could not
muster sufficient courage. This has all come on record in
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his cross examination. It is further brought in the
examination-in-chief that CID officers took him into
confidence. Thus, the evidence of Mr. Hate (PW.33)
shows that he was under constant threat and fear and
therefore, he did not come out with truth in his earlier
statements. Thus, there is sufficient explanation for the
delay on his part in coming out with true version. Hence,
substantial part of his evidence has to be believed.
79. In the present case the material do exist to
identify the motive and the cumulative evaluation of the
links in the chain of circumstances leading to sure
conclusion of guilt of the accused. Whole testimony of
Shri Keshav Hate cannot be brushed aside on the ground
that he is speaking untruth in some aspect because it is
impossible to present proof with rigid mathematical
demonstration. If such absolute waterproof evidence is to
be insisted upon, it would be a unfortunate dead stop for
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the criminal administration of justice. We are aware of the
rule that an innocent person shall never be convicted. But
at the same time no guilty persons can be allowed to
escape the clutches of law and go unpunished. Wrong
acquittal would send wrong signals to the society. There
was no reason for Shri Keshav Hate (PW-33) to falsely
implicate the accused or to shield the real culprits. In our
opinion his testimony was not shattered, in as much as, to
ignore and throw it overboard. We find that the PW-1 Amit
Kamble gave evidence as to the incident when A-4 Satish
Kamble had been to his house, to whom he had served
water. A-4 Satish had taken Kamble couple on the
pretext of going to Ambet for inaugaral function of
opening of the Gas agency. This evidence of 'last seen'
circumstance deposed by PW-1 Amit Kamble remained
unexplained by the accused no. 1 and 4 and therefore
lends strong support to the ocular version of the incident.
Keshav Hate (PW.34) knew both A-1 and A-4 and has
clearly deposed about their participation. When we
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examine the combined effect of the proved facts and
chain of circumstances including the evidence of motive
of the accused in the present case, discovery of dead
bodies of Kamble couple, identification evidence of
various articles belonging to Kamble couple by
prosecution witnesses mainly PW-1 Amit Kamble, and Eye
witness Mr. Keshav Hate, it is clear that there are strong
circumstances which are clear pointers to prove the
actual participation of the A-1 Babusheth, A-4 Satish
Shinde in horrendous crime of double murder of Kamble
couple. We find in evidence that the A-1 Zaverchand @
Babu sheth and A- 4 Satish Shinde had conducted
themselves in unreasonable and unnatural manner
before, at the time and after the incident of double
murder and they did not bother to explain their
unreasonable and unnatural conduct although they owe
explanation for each of the circumstantial evidence led
against them. Hence they were definitely involved in
the incident of double Murder of Kamble couple, in
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pursuance of the criminal conspiracy hatched between
them to cause death of Kamble couple. The trial Court
have scrutinized the entire evidence closely as it had
opportunity to see the witnesses actually deposing
before it and it has closely appreciated their evidence,
finding them credit worthy; bearing the principle in mind
that the guilty men shall not go unpunished and innocent
person shall never be convicted. We find circumstances
are cogently and firmly established, considered
cumulatively along with ocular evidence of Keshav Hate,
in our opinion they form a chain so complete to
unmistakably point out towards guilt of the accused No. 1
and 4 and therefore conviction is sustainable as ordered
by the trial Court against them.
80. Discovery of dead bodies at the instance of the
accused no.1 Zaverchand may not by itself lead to the
conclusion of his guilt but the articles belonging to the
victims were also found pursuant to the statement by A-1
which led to discovery of the dead bodies of the victims.
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(The articles were identified by Son of victims)Hence
these circumstances against the accused no 1
Zaverchand in particular must be considered important
circumstance or circumstances to raise presumption of his
participation in double Murder.
81. Section 120-A of the Indian penal Code defines
criminal conspiracy as an agreement between two or
more persons to commit an illegal act or to do an act
which though by itself not illegal but the same is done or
executed by illegal means. Mere proof of an agreement
between the accused to commit offence is enough to
bring about the conviction for the offence punishable
under section 120-B of the IPC, in such case proof of any
overt act by the accused or by any of them would not be
necessary. Conclusion is to be drawn from the
circumstantial evidence available in the case, because
Criminal conspiracy is often hatched in complete secrecy
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and it is impossible or rare to get direct evidence. It is not
necessary that each of the conspirators must not know
each and every details of the conspiracy nor it is
necessary that every one of the conspirators must take
part in the commission of each and every conspiratorial
act. The prosecution may prove from the circumstances
on record that the agreement existed to commit crime
by necessary implication. It is said that men may lie but
the circumstances do not. How criminal conspiracy was
formed, when and who were the participants as also the
manner in which the criminal conspiracy is carried out are
the matters of inference, legitimately deducible from the
acts and conduct of the accused persons. We have ample
inferences against the A-1 and A-4 as to their guilt on the
basis of listed circumstances as above-mentioned.
Combination of circumstances read together with
evidence of PW-33 Shri Keshav Hate , lead us to the
conclusion of guilt of at least A-1 Zaverchand@Babusheth
and A-4 Satish Shinde, with reasonable certainty as
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human affairs admit it. We can not agree with the defence
contention that two views one as to their guilt and the
other as to their innocence are possible against them. In
our view no criminal case is free from shortcoming ,but
when the direct and circumstantial evidence brought on
record is sufficient beyond reasonable doubts,
unexplainable except with the hypothesis of the guilt then
guilty/offender cannot be allowed to escape the clutches
of the law. To punish the criminal is as much important as
is the acquittal of an innocent.
82. For the reasons aforesaid, we must record our
conclusion that the prosecution has succeeded to prove
the offenses of abduction and double Murder of Vasant
Kamble and Mrs. Alka Kamble (Kamble couple)and
attempt to destroy evidence of heinous criminal act,
committed pursuant to criminal conspiracy secretly
hatched between A-1 and A-4 , beyond reasonable doubt
as against A-1 Zaverchand @ Babu sheth and A-4 Satish
Shinde. We find that the conclusions against the A-1 and
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A-4 by learned trial Judge were well reasoned and must
be upheld. However we cannot record same conclusion as
against rest of the accused. There is no evidence
adduced by the prosecution to show that the A-2 and A-3
were parties to the conspiracy. They have not
participated in the actual crime as even Keshav Hate has
not deposed to that effect. Therefore, both have been
acquitted by the Trial Court. As regards the A-5 to A-8,
the witness Keshav Hate did not identify them in Test
Identification Parade. He did not knew them personally.
As against this, Hate knew A-1 and A-4 before the
incident. There is corroborative evidence against A-1 and
A-4. But, as far as A-5 to A-8 are concerned, it is unsafe
to convict them only on the basis of identification of the
said accused by witness Hate in the Court. While
identifying them in Court, he has not attributed any
specific role to A-5 to A-8. Hence, benefit of doubt
deserves to be extended to them. We find that the
conclusions against the A-1 and A-4 by learned trial Judge
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were well reasoned and must be upheld. However, we
cannot record same conclusion as against rest of the
accused. Hence A-2, 3, 5 to 8 are given benefit of doubt.
Regarding the appeal by the State of Maharashtra in our
view apart from above discussion, presumption of
innocence becomes stronger by an order of acquittal, we
are not therefore inclined to interfere with the well
reasoned acquittals recorded by the trial Court. In sequel
to our discussion, we pass the following order -
ORDER
I) Criminal Appeal no. 661 of 2005 by Accused No.1
Zaverchand@ Babusheth @ Babubhai Sheth is
dismissed.
II. Criminal Appeal no.832 of 2005 in relation to
Satish@ Balu Muralidhar Shinde (Accused no.4) is
dismissed.
III. Criminal Appeal No.832 of 2005 in relation to
Madhukar Ramchandra Satkar (Accused no.7) is
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allowed. He is acquitted of all offences with which he
was charged and given benefit of doubt. He shall be
released forth with if not required in any other case.
iv. Criminal Appeal no. 747 of 2006 by the State of
Maharashtra is dismissed. Conviction and sentence
of the Accused No.1 Zaverchand and Accused no.4
Satish Shinde is confirmed on all counts for offences
punishable under Section 302, 364, 201, read with
Section 120-B of the Indian Penal Code as recorded
by the trial Court against them.
v. Criminal Appeal no 686 of 2005 by Pintya@
Bhausaheb Sampat Bavale (Accused no.6) and
Criminal Appeal no 777 of 2005 by Dinesh Sitaram
Kapade (Accused no.8) and Criminal appeal no. 1084
of 2005 by Sham @ Bittya Shrirang Mohite (Accused
no.5) are allowed. The appellants-accused in these
appeals are given benefit of doubt and shall be
released forthwith if still in custody in this case and if
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their custody is not required in any other case. Their
Bail bonds shall stand discharged.
vi. Muddemal articles cash amount seized during the
course of investigation remaining unclaimed shall be
forfeited to the State of Maharashtra. Muddemal
articles, valuables identified by PW-1 Amit Kamble as
articles identified as belonging to the deceased
Kamble Couple shall be returned to PW-1 Amit
Kamble (Son of deceased Kamble Couple) after the
appeal period is over and if no appeal is filed.
vii. Rest of the muddemal articles being valueless,
useless, remaining unclaimed be destroyed after the
appeal period is over and if no appeal is pending in
the case.
(A.B. BHANGALE,J.) (A.S.OKA,J.)
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