SHANTANU SITARAM @ ANIL DIVEKARversusTHE STATE OF MAHARASHTRA

                             [2017] 8 S.C.R. 944


A               SHANTANU SITARAM @ ANIL DIVEKAR

                                      v.

                     THE STATE OF MAHARASHTRA

B                     (Criminal Appeal No. 724 of 2012)

                           SEPTEMBER 22, 2017

               [A.K. SIKRI AND ASHOK BHUSHAN, JJ.J

C            Penal Code. 1860 - s.302 rlw s.34; s.120B- Three accused
     - Prosecution case was that wife of Al was found dead in car -
     The story set up in defence by Al was that when he was going in
     car with his wife and daughter, three persons asked for lift who
     were permitted to sit in the rear seat and those three persons
D    subsequentiy ~t the force of knife asked Al to take the car at their
     desired place and assaulted Al and put a noose in the neck of the
     deceased - The story was disbelieved by the trial court and accused
     were convicted u/s.302 rlw s.34 and uls.120B - High Court upheld
     the conviction under s.302134, however, acquitted them of offence
     u/s. l 20B - On appeal, held: The gold ornaments worn by the victim-
E    deceased at the time of occurrence were recovered at the instance
     of A2 - Recovery of stick, piece of rope and knife were also at the
     instance of A2 - Medical evidence proved that ligature marks on
     the neck of deceased were possible by nylon rope recovered at the
     instance of A2 - Theory as put by Al that he gave a lift to three
F    unknown persons in the car who robbed them and assaulted them
     was disbelieved by lower courts - Injury in the manner as stated by
     Al on his person was not corroborated by medical evidence and
     other materials on record - Statements made by Al in s.313 Cr.P.C.
     as well as written statement submitted by him where he stated that
     he does not know A2 and A3 were found to be false as courts below
G    found that there was evidence to prove that A2 and A3 were friends
     of Al - Plea that since High Court acquitted the·accused under
     s. l 20B they ought not to have been convicted under s.302 rlw s.34
     also cannot be accepted - Chain of circumstances pointing the guilt
     towards all the accused - Interference with the order of conviction
.H   not called for.
                                      944
 SHANTANU SITARAM @ ANIL DIVEKAR v. THE STATE OF                  945
                MAHARASHTRA

      Dismissing the appeals, the Court                           A

        HELD: 1. There is evidence of PW.13, who was priest of
 both the families and who had performed the marriage of the
 deceased and Al that he had seen Al moving in the company of
 A2 and A3 before the day of occurrence. PW.29, father of Al has
.also stated that accused Nos.2 and 3 are friends of accused No.1. B
 A2 is rikshaw owner who was engaged to carry on the bakery
 items of Al. A3 is residing near the house of Al. At the instance
 of A2 the gold ornaments which were worn by the deceased at
 the time of occurrence and were missing from the body were
 recovered from the neighbourer of accused No.1 and other gold C
 articles which were deposited by the wife of A2 in Dapoli Urban
 Cooperative Bank for taking gold loan of Rs.14,200/- were also
 found out. The said gold articles were produced by the Bank
 Manager. In the identification parade all the gold items were
 identified by the father and mother of the deceased. Further
 recovery of stick, piece of rope and knife were proved by panch D
 witnesses. The medical evidence of PW.10, was thoroughly
 considered by both the courts below and from the medical
 evidence it was proved that ligature marks on the neck of the
 deceased were possible by nylon rope recovered at the instance
  of A2. !Para 8) 1949-D-G]                                        E
      2. The submission for the appellants that since the High
Court has acquitted the accused under Section 120B IPC they
ought not to have been convicted under Section 302 read with 34
IPC also cannot be accepted. The mere fact that evidence under
Section 120B has not been proved does not in any manner affect     F
the charge under Section 302 read with 34 IPC. Al to A3 with
common intention committed the crime which has been proved
by the prosecution and the conviction of Al to A3 under Section
302 read with 34 IPC cannot be faulted. Both the courts below
have thoroughly examined the oral evidence and found the chain     G
of circumstances fully proved pointing the guilt towards Al to
A3. !Paras 9 and 10] 1950-B-D)

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No.724 of2012.
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946            SUPREME COURT REPORTS                       [2017) 8 S.C.R.


A           From the impugned Judgment and final Order dated 21.07.2011
      passed by the High Court of Judicature at Bombay in Criminal Appeal
      No.518/2004
                                       WITH
            Criminal Appeal No.736 of2012.
B
           Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha,
      Nawalendra Kumar, Shekhar Kumar, Advs. for the Appellant.
            Nishant Ramakantrao Katneshwarkar, Adv. for the Respondent.
            The Judgment of the Court was delivered by
c        ASHOK BHUSHAN, J. 1. These two appeals have been filed
  against the judgment of the Bombay High Court dated 21.07.2011
  dismissing three criminal appeals filed by three accused questioning their
  conviction and sentence imposed by the Additional District Judge, Satara
  by judgment dated 04.03.2004 by which they were sentenced to suffer
D rigorous imprisonment for life and to pay fine for the offence punishable
  under Section 302 read with 34 IPC and further to RI for three years
  and fine for offence under Section 201 read with 34 IPC and for three
  years and fine for offence under Section 120B !PC.
            2. The facts of the case are:
E        Accused No.1, Shantanu married deceased Supriya on
  28.04.1999. Their daughter, Mrunal was born on 22.03.2000. Both,
  Shantanu and Supriya belong to same place that is Karad. With effect
  from 10.12.2000 Supriya along with her daughter was living at her parents'
  house which was in Karad itself. On 23.12.2000, Shantanu came to
F Supriya 's parents' house and took Supriya for a ride in car in the evening
  at about 8.30 p.m. Shantanu took Supriya hurriedly without even permitting
  her to change her nightgown which she wore at that time. Supriya along
  with her daughter aged about 9 months sat in the Fiat Car of Shantanu
  driven by him. When till 10 p.m. Shantanu did not return, Bhalachandra
  Phadnis (PW.29), father of Supriya made a telephone call at the house
G of Shantanu enquiring about Supriya. He was told that they have not
  returned to the house. At about 10.30 p.m., near Shamgaon Ghat,
  Shantanu carrying her minor daughter waved one Shambhaji Mane
  (PW.6) to stop, who was riding a motorcycle. Shamgaon Ghat was about
  19 kms. fromKarad; Shambhaji Mane, who was returning from Karad
H
 SHANTANU SITARAM @ ANIL DIVEKAR v. THE STATE OF                          947
       MAHARASHTRA [ASHOK BHUSHAN, J.]

 to his residence did not stop the motorcycle but halted at Shamgaon A
village and told the incident of waiving hands by a man to 10/12 boys
 who were sitting near a fire place. After 10 tb 1S minutes Shantanu
 carrying her minor daughter, riding one goods truck came at the place
 where Shambhaji Mane and 10 to 12 boys were standing. Shantanu told
 Shambhaji Mane, PW.6 that he, his wife and her daughter who were B
 travelling by car near Shamgaonghat were robbed and assaulted by three
 persons and his wife was still laying in the car. Shambhaji Mane, PW.6
 along with certain persons went to place ofoccurrence and found Supriya
 laying in the car in unconscious condition. Shantanu along with her
 daughter were also taken to the place of occurrence, by that time Supriya
'had died. Police was informed. Shantanu and her minor daughter were C
  taken to the Police Out Post. On the information of Shambhaji Mane
  crime case under Section 394 and 302 IPC was registered. Shantanu
  was admitted in Hospital.and after he was released from the Hospital,
  he was interrogated by the IO, PW.30, P.S.l. Mhase. On the basis of the
  interrogation, on 30.12.2000, the Police arrested Shantanu and two other D
  persons A2, Rafik and A3, Deepak@ Ganesh S. Patil. At the instance
  of AZ, on 30.12.2000 itself, recovery of an amount ofRs.1,000/- from
  his house and recovery of gold jewellery which Supriya was wearing at
  the time of occurrence was made from his neighbourer, Damodar Gade.
  At the instance ofAZ, recovery of further stick, piece ofrope, knife and
   other articles was made. All the articles were photographed by PW.22, E
   Shantaram Shinde. Certain recoveries were also made at the instance
   of A3. Accused were charge-sheeted. Prosecution produced 30
   witnesses to prove guilt. Autopsy and postmortem of body of Supriya
   was done on 24'h December, morning. Postmortem report indicated
 .following injuries on the dead body of deceased Supriya:
                                                                           F
         "(1) Ligature mark on anterior aspect of neck on thyroid
       cartilage upper 113 going midline, horizontally on either side
       crossing midline marging towards right side measuring about
       Jlcm x 314'h cm red in colour.
       (2) Ligature mark below cricoid cartilage 2 cm below injury         G
       no.I going horizontally on either side encircling lower part
       of neck cricold cartilage measuring 25 cm. 314'" cm red in
       colour cut section of both ligature mark shows white glistering.
       Parchment paper like band haematoma on both side present
       neck venus full of blood.
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948             SUPREME COURT REPORTS                         [2017] 8 S.C.R.


A            (3) Contusion 112 below injury no.2 on right side 2.5 cm x
             0. 5 cm red in colour.
            (4) Contusion on post part of neck L/3 left side 1.5 cm x 1 cm
            red in colour.
            (5) Abrasion on post part of neck right on trapozious muscle
B           lower part of neck, 2 in number 112 cm apart from each other
            measuring 1 cm - 0. 75 cm red in colour.
            (6) Abrasion on lower end of left ear lobule 112 cm x 114 cm
            red in colour. "
c        3. The trial court after hearing and considering the evidence on
  record convicted the accused and sentenced all the three accused as
  noted above. All the three accused filed criminal appeals before the
  High Court which have been dismissed by the High Court by a common
  judgment. Only accused Nos. I and 3 have come up before this Court by
  filing criminal appeals. A2 has not even challenged the judgment of the
D High Court.
         4. Learned counsel appearing for Shantanu, accused No. I, in
  support of the appeal contends that the High Court having acquitted the
  appellants from the charge under Section 1208 IPC, the conviction under
  Section 302 read with 34 IPC ought not to have been maintained. He
E further submits that marriage of Shantanu with Supriya was a love
  marriage and there was no marital dispute between husband and wife.
  Evidence of Bhalchandra Phadnis, PW.29 and Mrs. Bhagyashri
  Bhalchandra Phadnis, PW.3 father and mother of deceased, Supriya
  that the complaints of misbehaviour by Shantanu were all at the instance
F of the Police since Police failed to find out the real culprit and the accused
  was roped in. He further submits that Shantanu has no acquaintance
  with A2 and A3 and Shantanu himself was injured in the robbery and
  due to injuries was admitted in the Hospital. Both the trial court and the
  High Court made error in disbelieving the defence of Al. Present is a
  case of circumstantial evidence and chain of circumstances have not
G been fully proved.
            5. Learned counsel for A3, Deepak @ Ganesh S. Patil, also
      adopted the submission ofA I. He further submits that he had no friendship
      with Al and he has been unnecessary roped by the Police and there is
      no evidence against him.
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 SHANTANU SITARAM @ ANIL DIVEKAR v. THE STATE OF                        949
       MAHARASHTRA [ASHOK BHUSHAN, J.]

       6. Learned counsel for the State refuting the submissions of the A
counsel for the appellants supported the judgment of the courts below
and submitted that the prosecution has fully proved the guilt by the oral
evidence, medical evidence on record and recoveries made. The chain
of circumstances has been fully established conclusively pointing out the
guilt towards accused.
                                                                          B
       7. We have considered the submissions of the parties and perused
the records.
         8. The trial court and the High Court have examined the oral
 evidence as well as medical evidence on record. The theory set up in
 defence by Al that when he was going by car along with her wife and c
 daughter, three persons had asked for lift who were permitted to sit in
 the rear seat and those three persons subsequently at. the force of knife
 asked Al fo take the car at their desired place and assaulted Shantanu
 and put a noose in the neck of Supriya has been disbelieved by both the
·courts below. There is evidence of PW.13, Uday Girase, who was priest
 ofboth the families and who had performed the marriage ofSupriya and D
 Shantanu that he had seen Al moving in the company of A2 and A3
 before the day of occurrence. Bhalchandra Phadnis, PW.29, father of
 Shantanu has also stated that accused Nos.2 and 3 are friends of accused
 No. I. A2 is rikshaw owner who was engaged to carry on the bakery
 items of Al. A3 is residing near the house of Al. At the instance of A2 E
 the go kt ornaments which were worn by Supriya at the time of occurrence
  and were missing from the body were recovered on 30.12.2000 from
  Damoaar Gade, neighbourer of accused No. I and other gold articles
 which were deposited by the wife ofA2 Nilophar on 26.12.2000 in Dapoli
  Urban Cooperative Bank for taking gold loan of Rs.14,200/- were also
  found out. The said gold articles were produced by the Bank Manager, F
  PW.I. In the identification parade all the gold items were identified by
  the father and mother of Supriya. Further recovery of stick, piece of
  rope and knife were proved by panch witnesses. The medical evidence
  of Dr. Jadhav, PW. I 0, has been thoroughly considered by both the courts
  below and from the medical evidence it is proved that ligature marks on G
  the neck ofSupriya were possible by nylon rope recovered at the instance
  of A2. PW.22, Santosh Balakrishna Shete, who took the photographs
  of recovery of all the items proved the photographs in his evidence. The
  theory as put by AI that he gave lift to three unknown persons in the car~
  who robbed husband and wife and assaulted them has been disbelieved.
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950              SUPREME COURT REPORTS                    (2017) 8 S.C.R.


A The injury in the manner as stated by Al on his person has not been
  corroborated by the medical evidence and other materials on record.
  The statement made by Al in 313 Cr. P.C. as well as written statement
  submitted by him where he stated that he does not know A2 and A3 has
  been rightly found to be false. A2 andA3 have been held to be friends of
B A1 by the courts below on the basis of cogent evidence.
         9. The submission of learned counsel for the appellants that since
  the High Court has acquitted the accused under Section 120B lPC they
  ought not to have been convicted under Section 302 read with 34 !PC
  also cannot be accepted. The mere fact that evidence under Section
  1208 has not been proved does not in any manner affect the charge
C under Section 302 read with 34 IPC. Al to A3 with common intention
  committed the crime which has been proved by the prosecution and the
  conviction of Al to A3 under Section 302 read with 34 IPC cannot be
  faulted.
          10. Both the courts below have thoroughly examined the oral
D evidence and found the chain of circumstances fully proved pointing the
  guilt towards Al toA3. We, thus, do not find any merit in these appeals.
  Both the appeals are dismissed. Accused No. I, Shantanu Sitaram is on
  bail, he is directed to be taken into custody forthwith.



      Devika Gujral                                         Appeals dismissed.