Criminal Appeal No. 101 of 2025 · The High Court
Case Details
2025:BHC-AUG:19140-DB {1} CC 1-25.doc drpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCONFIRMATION CASE NO. 1 OF 2025The State of Maharashtra APPELLANTThrough Police Station Officer, Police Station, Peth Beed, District - BeedVERSUSSantosh s/o Jaydatta Kokane RESPONDENTAge – 45 years, Occ – NilR/o Takwa Colony, Shukrawar PethBeed, Taluka and District - Beed.......Mr. S. D. Ghayal, APP for Appellant - State Mr. S. S. Thombre, Advocate for the Respondent.......WITHCRIMINAL APPEAL NO. 101 OF 2025Santosh s/o Jaydatta Kokane APPELLANTAge – 45 years, Occ – NilR/o Takwa Colony, Shukrawar PethBeed, Taluka and District - BeedVERSUSThe State of Maharashtra RESPONDENTThrough Police Station Officer, Police Station, Peth Beed, District - Beed.......Mr. S. S. Thombre, Advocate for the AppellantMr. S. D. Ghayal, APP for Respondent - State ....... [CORAM : NITIN B. SURYAWANSHI, & MANJUSHA DESHPANDE, J. J.] {2} CC 1-25.doc RESERVED ON : 5 th MAY, 2025 PRONOUNCED ON : 23 rd JULY, 2025 JUDGMENT (PER NITIN B. SURYAWANSHI, J.):1.The Accused, who stand convicted for offence punishableunder section 302 of the Indian Penal Code and sentenced todeath, by Sessions Judge, Beed, vide judgment and order dated12th December, 2024, in Sessions Case No. 7 of 2021, has filed anappeal, challenging his conviction and sentence. The SessionsJudge, under Section 366 of the Criminal Procedure Code, hassubmitted a Reference, to this Court for confirmation of the deathsentence. The confirmation case and the Appeal filed by theAccused are, therefore, being decided by this common judgment.2.Facts, which are necessary for decision of the confirmationcase and the Criminal Appeal may briefly be stated thus -PW-1, informant, Sandeep Kokane, brother of the accused,lodged First Information Report (Exhibit-52) on 24th May, 2020,stating that 16 years before, his brother, Accused Santoshmarried with Sangita Dattatraya Wanarase. Three children,Mayuresh (12 years), Siddhesh (10 years) and Kalpesh (8 years)were born out of the said wedlock. They separately reside as hisneighbours at Takwa Colony, Shukrawar Peth, Beed. Santosh wasdoing business of selling snacks (kurkure), food articles. He usedto go at 8.00 in the morning and used to return at 10.00 to 10.30 {3} CC 1-25.doc in the night. Due to corona lock down, Santosh was staying athome. Since the lock down, Santosh realized that his wife Sangitaused to talk on phone with somebody for longer time, because ofthat there used to be quarrels between them. Sangita, wife ofSantosh, left home prior to 20 days. Thereafter, after 5 days, itwas learnt that she was at the house of Vishal Wadmare at BarshiNaka, Peth Beed. On receiving the said information, his brotherSantosh went to Barshi Naka, Peth Beed and brought Sangitahome and gave her understanding. On 24th May, 2020, at about 12.00 to 12.30 noon, he cameout of the house on road. At that time, Baliram Teke and SachinJagdale were standing on the road, in front of his door. Theyasked him as to where he was going. He told that there wasquarrel between his brother and sister in law and, therefore, he isgoing to Peth Beed Police Station. Then they asked himwhereabouts of his brother Santosh and sister in law Sangita. Hetold them that, his brother has gone to Peth Beed Police Stationand sister in law Sangita and her children were not seen outside,since morning and the house seems to be closed. Thereafter, he,along with Baliram Teke and Sachin Jagdale went inside thehouse of his brother and they saw Sangita and her son lyingthere having bleeding injuries. He, therefore, went to Peth BeedPolice Station. At that time, his brother Santosh was standing {4} CC 1-25.doc outside Peth Beed Police Station. When he asked Santosh aboutthe incident, Santosh told him that on that day, at about 4.00 inthe morning, he killed his wife Sangita and two sons, Siddheshand Kalpesh by assaulting them with wooden bat, stone andkilled Kalpesh by drowning him in the barrel of water. Therefore,he took Santosh inside the Police Station and handed him over inthe custody of police. On the basis of the first information report (Exhibit-52),Crime No. 150 of 2020 for the offence punishable under section302 of the Indian Penal Code was registered on 24th May, 2020 at22.35 hours and the investigation was handed over to PoliceInspector, Shri Patil (PW-15). Spot Panchanama (Exhibit-30) wasconducted in the presence of PW-2. The Investigating Officerrecorded statements of witnesses on 25th May, 2020 and arrestedthe accused vide arrest Panchanama Exhibit-107. During investigation, PW-15 collected CCTV footagewherein accused is seen coming to the spot of the incident andreturning back from there at the relevant time. On completion ofinvestigation, charge sheet was filed and the case wascommitted to the Sessions Court. Charge under section 302 of the Indian Penal Code wasframed against the Accused. He abjured his guilt and claimed to {5} CC 1-25.doc be tried. Prosecution, in support of its case, examined 15witnesses. Trial Court found the Accused guilty and henceconvicted and sentenced him as aforesaid. Hence, the presentAppeal and the Confirmation Case. 3.Learned Advocate for the Accused assailed the impugnedjudgment and order of conviction contending that, admittedly,this is a case of circumstantial evidence and the prosecution hasutterly failed to prove the complete chain of circumstances. Vitallinks from the chain of circumstances are missing in theprosecution evidence. According to him, presence of theAccused, at the spot of the incident, in the fateful night, is notproved by the prosecution. Except CCTV footage, which isdisbelieved by the Trial Court, there is no other evidence onrecord to prove that the accused was present at his house in thefateful night, more so, in view of the evidence of PW-14 RajeshSatpute. He submits that the prosecution has failed to provemotive for the commission of the crime. Merely because thereused to be quarrels between the Accused and his deceased wife,it cannot be concluded that the Accused had motive to eliminatehis wife and two sons. The Accused had filed missing complaintof Sangita and Kalpesh and on finding her at the house of PW-13Vishal Wadmare, he had taken her back. If he had any doubt onthe chastity of Sangita, he would not have brought her back with {6} CC 1-25.doc him from the house of Vishal Wadmare. Therefore, theProsecution has failed to prove motive on the part of the Accusedto commit the crime in question. 4.He submits that, the FIR is belatedly registered, whichcreates doubt about the prosecution case. PW-1, informant hasnot supported the prosecution case and, therefore, theprosecution has not proved the extra judicial confession made bythe Accused. Similarly, PW-14 Rajesh, brother in law of theAccused has also not supported the prosecution case, he,however, has specifically deposed that, in the fateful night, theAccused, along with his son Mayuresh, had been to his house andslept there. In this view of the matter, presence of the Accused athis own house, where the incident has taken place, is doubtfuland the Trial Court has erred in holding that, the Accused waspresent at the time of the incident at his own house. He submitsthat, when the prosecution has claimed that wife and twochildren were killed during the night time, how come that nobodyfrom the neighbourhood have heard any noise. He, therefore,submits that the prosecution has failed to prove that, theAccused was present at the spot of the incident in the fatefulnight. Hence, the Accused may be acquitted. 5.In support of his submissions, he relied on the following {7} CC 1-25.doc citations :a.“Anvar P. V. V/s P. K. Basheer” (2014) 10 SCC 473b.“Arjun Panditrao Khotkar V/s Kailash Kushanrao Gorantyal andOthers” c.“Bachan Singh V/s State of Punjab” MANU/SC/0055/1982d.“Macchi Singh and Others V/s State of Punjab” MANU/ SC /0211 /1983e.“Sharad Birdhichand Sarda V/s State of Maharashtra” (AIR 19841622)f.“Pradeep Kumar V/s State of Haryana” (Criminal Appeal No.1338/2010 SC)g.“Nusrat Parween V/s State of Jharkhand” (Criminal Appeal No.(S)458/2012 SC)h.“Darshan Singh V/s State of Punjab” (MANU/SC/0018/2024)i.“Raju V/s State of Rajasthan” (MANU/SC/1199/2022)j.“Harishchandra Ladaku Thange V/s State of Maharashtra” (2007DGLS (SC) 969 (SC)k.“Raju Mahesh Dhruv V/s State of Maharashtra” (2016 DGLS(Bom) 1628) Bombay High Court Nagpur Benchl.“Nilesh V/s State of Maharashtra” (MANU/MH2778/2015)m.Kailas Tukaram Patil and Another V/s State of Maharashtra (2005BCI 371) Bombay High Courtn.“Basudev @ Vasude Behare V/s State of Maharashtra” (2004 (2)Bom CR (cri.)627o.“Sagar and Others V/s State of Maharashtra”(MANU/MH/1929/2002)p.“Lalchand Cheddilal Yadav V/s Stte of Maharashtra 2000 Bom CR(Cri.) 585 Bombay High Courtq.”Anandrao Dhondiba Falke V/s State of Maharashtra” 2000 (sup)Bom C. R. 7656.Per contra, learned APP supported the impugned judgment
Facts
{8} CC 1-25.doc and order of conviction and imposition of death sentence by theTrial Court. He submitted that homicidal deaths are not disputedby the Accused and they are proved in medical evidence. Motive,that, Sangita had illicit relations with Vishal Wadmare is provedby the prosecution. PW-8, PW-10, PW-11, PW-13 have proved thefact that, the Accused was having suspicion about the characterof Sangita and that she had illicit relations with Vishal Wadmare.It is submitted that, information given by the deceased to PW-13about beatings given by the Accused to her and herapprehension that the Accused will kill her and her children, isadmissible under section 6 of the Indian Evidence Act. Deadbodies of the 3 victims were found in the house of the accused.Initially, bodies of only Sangita and Siddhesh were noticed byPW-1, however, after hearing extra judicial confession of theAccused, it was realized that Kalpesh is drowned in water barrel.It is submitted that relevant portions from the FIR are proved inthe evidence of PW-4, who registered the FIR. By relying on“Govardhan and Another V/s State of Chhatisgarh1”, it issubmitted that the FIR has been proved by the statement of PW-4 and merely because PW-1 has turned hostile, it cannot be saidthat the FIR would lose its relevancy and cannot be looked intofor any purpose. It is submitted that, the Accused claims to havestayed at the house of PW-14, which as per the Google map, is at1(2011) 2 SC 198 {9} CC 1-25.doc a distance of only 350 meters from the spot of the incident i.e.house of the Accused. This Court can take judicial notice of thedistance on the Google map. Even PW-14 has admitted that, theAccused and Mayuresh were sleeping in hall and he went to sleepin the bedroom. In his statement recorded under section 164 ofthe Criminal Procedure Code, he has stated that when he wokeup in the morning, he saw the Accused coming towards his housein frightened condition and when asked, the Accused told himthat he had gone for a morning walk. Accused has failed to giveany explanation under section 106 of the Evidence Act as to inwhich circumstances deaths of Sangita, Siddhesh and Kalpeshhave taken place. Blood stains were found on the clothes of theAccused. All these circumstances prove the involvement of theAccused in the crime.7.Learned APP submitted that, the Trial Court has erred inrejecting the evidence of CCTV footage on the ground thatcertificate under section 65 B of the Evidence Act is not given bythe competent person. According to him, PW-4 who is speciallytrained officer in that behalf, who has downloaded the CCTVfootage in the memory cards, has given the certificates. Hesubmitted that certificate under section 65 B of the Act can beissued by person, who has extracted CCTV footage. Since he isexpert in that field, by relying on the words, “a person occupying {10} CC 1-25.doc a responsible official position in relation to operation of therelevant device or the management of the relevant activities(whichever is appropriate) shall be evidence of any matter statedin the certificate; and for the purposes of this subsection it shallbe sufficient for a matter to be stated to the best of theknowledge and belief of the person stating it”, used in subsection 4 of section 65 B of the Act, he submits that since PW-4was holding responsible official position, he was entitled to issuecertificate under section 65 B of the Evidence Act. Therefore, saidevidence ought to have been accepted by the Trial Court. CCTVfootage is also proved in the evidence of PW-3 Pancha, in whosepresence CCTV footage was downloaded on the memory cards.Exhibit-65. The report of the forensic lab about the memory cardson which CCTV footage was downloaded, also supports theprosecution case, since in all the three CCTV footage, theaccused is seen coming towards the house and going towardsthe house of PW-14 at the time of the incident. This is one of thestrong circumstance proving involvement of the Accused in thepresent crime.8.He submitted that, even if it is accepted for the sake ofarguments that the FIR, was registered belatedly, the same maybe due to the lapse on the part of the Investigating Officer. Butthat would not help the Accused, in view of other circumstances {11} CC 1-25.doc proved on record by the prosecution. It is submitted that, PW-14has admitted that his statement under section 164 of theCriminal Procedure Code was recorded and after reading, hesigned it. This statement corroborates prosecution case. It isfurther submitted that in reply to the questions under section313 of the Criminal Procedure Code, the Accused has admittedthat there were illicit relations between deceased Sangita andVishal Wadmare. This corroborates prosecution case that theAccused had motive to kill Sangita. By relying on followingcitations, he submitted that no interference is warranted in thejudgment of conviction recorded by the Trial Court and this is a fitcase to confirm the death sentence awarded by the Trial Court.i.“Vijay Singh and Another V/s The State of Uttarakhand” (CriminalAppeal No. 122 of 2023)ii.Govardhan and Another V/s The State of Chhatisgarh” (2025) 3SCC 378iii.Premsing V/s State of NCT of Delhi” 2023 Live Law (SC ) 2iv.Anees V/s State Government of NCT” (Criminal Appeal No. 437 of2015)9.With the assistance of the learned Advocate for theAccused and the learned APP, we have carefully perused therecord.10.Present case is based on circumstantial evidence. The law,
Legal Reasoning
{12} CC 1-25.doc on the cases based on circumstantial evidence, is very succinctlyenumerated by the Apex Court in “Sharad Birdichand SardaV/s State of Maharashtra2”. Relevant observations of theirLordships are as follows :152. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused can besaid to be fully established:(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established. It may be noted herethat this Court indicated that the circumstancesconcerned 'must or should' and not 'may be' established.There is not only a grammatical but a legal distinctionbetween 'may be proved' and 'must be or should beproved' as was held by this Court in Shivaji SahabraoBobade v. State of Maharashtra 1973CriLJ1783 wherethe following observations were made:Certainly, it is a primary principle that the accusedmust be and not merely may be guilty before a Courtcan convict, and the mental distance between 'may be'and 'must be' is long and divides vague conjecturesfrom sure conclusions.(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis exceptthat the accused is guilty.(3) the circumstances should be of a conclusive nature andtendency.2AIR 1984 1622 {13} CC 1-25.doc (4) they should exclude every possible hypothesis except theone to be proved, and(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that inall human probability the act must have been done by theaccused.153. These five golden principles, if we may say so, constitute thepanchsheel of the proof of a case based on circumstantial evidence”.11.We will have to consider the prosecution case, in the lightof aforesaid guiding principles. From the material placed onrecord, it appears that the prosecution mainly relied on thefollowing circumstances:i.Finding of dead bodies of Sangita, Siddhesh andKalpesh, wife and sons of the Accused in theirresidential house.ii.Electronic evidence of CCTV footage.iii.Conduct of the accused in commission of the offence.iv.Extra judicial confession made by the Accused.v.Discovery of dead body of Kalpesh in plastic barrelcontaining water, pursuant to the extra judicialconfession made by the Accused. {14} CC 1-25.doc vi.Recovery of blood stained clothes from the Accused.vii.False plea of alibi raised by the Accused.viii.Scientific evidence in the nature of CA reports. 12.In order to deal effectively with the rival contentions raisedbefore us, by the learned Advocate for the Accused and thelearned APP and also looking at the magnitude of the crime, itwould be appropriate to refer to the evidence of the prosecutionwitnesses.13.Post mortem on the dead bodies of wife and two sons ofaccused came to be conducted by PW-12 Dr. Dipali Gavhane. Shenoticed following injuries on the dead body;External Injuries:-(i)CLW left parietal region, measuring 5 x 2 x bonedeep,(ii)Left eye contusion measuring 5 x 4 c.m.(iii)Nose fracture, right mandible fracture,(iv)contusion right parietal associated with fracturemeasuring 5 x 3 c.m.(v)contusion right lateral neck measuring 10 x 7 c.m.greenish blackish colour,(vi)fracture left and right fronto parietal bone, {15} CC 1-25.doc Internal Injuries:-(i)fracture right and left fronto parietal bone.(ii)subdural hematoma and sub archnoid heamatomapresent under fracture site measuring 12 x 8 c.m.She opined that death of deceased Sangita was due tohead injury. Post Mortem report of Sangita is at Exhibit-84.Provisional post mortem cum death certificate of Sangita is atExhibit-85. She therefore stated that death was homicidal innature. She deposed that internal and external injuriesmentioned by her can be caused by article 1 stone and article 2bat. Post mortem on the dead body of Siddesh Kokane alsocame to be conducted by PW-12 Dr. Dipali Gavhane. She noticedfollowing injuries;External Injuries:- (i)CLW left parietal with underline bone fracture,measuring 9 x 2 c.m. x bone deep,(ii)Left parietal bone fracture,(iii)Right parietal bone fracture,(iv)Right eye contusion measuring 4 x 2 c.m.(v)Left Fronto parietal bone fracture. {16} CC 1-25.doc Internal Injuries:- (i)linear fracture of skull bone,(ii)Left fronto parietal bone fracture,(iii)right parietal bone fracture,(iv)heamatoma under fracture side, subdural hematoma measuring 10 x 7 c.m.She opined that cause of death was due to head injury. Shestated that external and internal injuries mentioned by her canbe caused by article 1 stone and article 2 bat and death washomicidal. Post Mortem report of Siddesh is at Exhibit-81 anddeath certificate is at Exhibit-82. Post Mortem on the dead body of Kalpesh also came to beconducted by PW-12 Dr. Dipali Gavhane. She noticed followinginjuries;External Injuries:-(i)Contusion left hand, measuring 5 x 4 c.m.(ii)contusion left eye (black eye) measuring 5 x 4 c.m.(iii)Left parito occipital contusion measuring 5 x 3 c.m.(iv)Right fronto parietal contusion measuring 7 x 3 c.m.Internal Injuries:-(i)hemorrhagic contusion, over brain parenchymahematoma right fronto parietal bone measuring 5 x 3c.m. under scalp. {17} CC 1-25.doc After conducting post mortem examination, she opined thatdeath was homicidal in nature and it can be caused by bat(article 2), if a person is beaten by bat on his head and is put inwater then death can be caused by drowning. Post mortemreport of Kalpesh is at Exhibit-87 and death certificate is atExhibit-88.14.In the cross, Dr. Dipali stated that size of injury is notmentioned in respect of injury No. 2, 3, and 5 in column No. 17 inpost mortem notes Exhibit-81. All the injuries mentioned incolumn No. 17 cannot be caused by one blow. To cause theseinjuries it is not necessary to give five blows, but more than oneblow is required. It may not be necessary that a person mayshout if a blow was given to him. She volunteered that if a deathblow is given the person may not shout. Shouting of a personwould depend on the part of body where first blow was given.Her attention was drawn to injury no. 2 and 3 mentioned incolumn No. 17, she deposed that both fractures can be causedby one stroke. Injury no. 2 can be caused if a person is beaten byflat front portion of the bat. She denied that contusion cannot becaused by article 2 bat. She denied that if a sleeping person isassaulted by bat, injuries mentioned in column No. 17 cannot becaused. If a person is sleeping on his chest injury mentioned at {18} CC 1-25.doc Sr. No. 5 in column no. 17 would depend upon the position of hishead.15.In respect of post mortem notes Exhibit-84, she stated thatweight of stone Article No. 1 may be approximately 15 kg, it isnot possible for a common man to assault with said stone by asingle hand and by throwing like a ball. If a person is assaultedwith stone Article No. 1 size of injury would be more than what ismentioned by her in injury No. 1 of column No. 17. She deniedthat if a person is assaulted either by stone or bat, size of injurywould be more than what is mentioned by her in injury No. 2 ofcolumn no. 17.16.In respect of post mortem notes Exhibit-87, she stated thatshe has not mentioned on left hand where exactly injury No. 1 incolumn No. 17 was caused. If a person is assaulted by stoneArticle-1, his eyes may pop out and if a person is assaulted bybat Article-2 his eyes may not pop out, in respect of injury No. 2.Crush injury may occur if a person is assaulted by stone, andcrush injury may not occur if a person is assaulted by bat inrespect of injury No. 3 and 4. Sudden death may not occur due toall injuries mentioned in column No. 17. Time of exact death isnot mentioned in the post mortem reports.17.Accused has not seriously disputed about homicidal death {19} CC 1-25.doc of his wife and two sons. Prosecution by leading evidence ofPW12- Dr. Dipali Gavhane has proved homicidal death of Sangita,Siddesh and Kalpesh.18.PW-1 Sandeep Kokane, who is brother of the Accused, isthe informant. He states that Accused Santosh is his brother. Hisfamily consists of his mother, wife and four daughters. Marriageof the Accused was solemnized with Sangita 16 years back.Sangita then gave birth to three sons, namely Mayuresh,Siddhesh and Kalpesh. Accused Santosh, along with his familymembers, was living adjacent to his house. His brother Santoshearlier used to work in a grocery shop. Then prior to few monthsback, he started selling snack products. For selling the snacks, heused to leave home at about 8.00 in the morning and used toreturn at about 10.00 to 10.30 in the night. He was not awarewhat Santosh was doing during lock down period.On 24th May, 2020, at about 11.00 a.m. he was standingoutside his home. At that time, Sachin Jagdale and Baliram Tekewere chitchatting with him in front of his house. They bothenquired about whereabouts of sons of Santosh. He told themthat he had also not seen them since morning. At the relevanttime, door of the house of Santosh was found closed. As it waslate in the morning, to see what had happened, he, Sachin and {20} CC 1-25.doc Baliram pushed door of the house of Santosh and the dooropened. At that time, they saw Siddhesh, son of Santosh lying ininjured condition and blood oozing from his head. Further,besides Siddhesh, Sangita was lying in a pool of blood. They,therefore, came out of the home. He then went to Peth BeedPolice Station. He then informed about the incident, in the policestation. At the relevant time, Santosh was not at home and hewas not knowing his whereabouts. Thereafter, along with onelady constable, and one male police officer, he again returned tohouse of Santosh. He had shown the spot of the incident. Policethen took search of other son of Santosh. At that time, inside thehome of Santosh, in one plastic barrel, body of Kalpesh wasfound. Thereupon, as per the say of police, he himself, his wifeand other relatives went to police station. There, police told themthat his brother Sanjay killed Sangita, Kalpesh and Siddhesh.Police then obtained his signature on one paper. The reportshown to him was bearing his signature. He further states that it did not happen that contents in thereport were correctly recorded by the police as per his say. Hedenied having narrated to the police that due to corona and lockdown, Santosh used to remain at his home. He did not inform thepolice that Santosh then learned that his wife Sangita used tofrequently talk for a longer period on phone and, therefore, {21} CC 1-25.doc quarrels used to take place between them. He informed thepolice that prior to 20 days of the incident, Sangita had left homeand prior to 5 days it was learnt that Sangita was at the house ofVishal Wadmare at Barshi Naka, Peth Beed and hence, Santoshwent there, convinced Sangita and brought her back. He deniedthat on 24th May, 2020, at about 11.00 hours, he came out of thehome, that time, Baliram and Sachin met him and asked him asto where he was proceeding and on that he told them thatquarrel had taken place between his brother and his wife andhence, he was going to Peth Beed Police Station and on that bothof them asked him about whereabouts of Santosh and Sangitaand he told them that Santosh went to Peth Beed Police Station.He denied that thereafter, when he reached Peth Beed PoliceStation, Santosh was found present outside the Police Station andwhen he asked him about the incident, he told him that on 24thMay, 2020 at about 04.00 hours, he killed Sangita, Siddhesh andKalpesh, by wooden log, bat, stone and further killed Kalpesh bydropping him in water barrel. He denied that, thereafter, hehimself took Santosh inside the police station and handed himover to the police. 19.At this stage, PW-1 was declared hostile and the Courtpermitted the learned APP to cross-examine him as per Section154 of the Indian Evidence Act. {22} CC 1-25.doc 20.In the Cross examination conducted by learned APP, hedeposed that -“5.It is not correct that the contents in the report correctlyrecorded by the Police as per my say. It is not correct that I havenarrated to the Police that due to Corona and lock down Santoshused to be remain at his home. It is not correct that, I informed to thePolice that Santosh then learnt that his wife Sangita frequently usedto talk with someone for a longer period on phone and thereforequarrel held in between them. 6.It is not correct that on 24.05.2020 about 11.00 hours in themorning I came out of home, that time Baliram Teke, Sachin Jagdalemet me and asked me as to where I am proceeding, on that I toldthem that quarrel was held between my brother and his wife andhence I am going to Police Station Peth Beed and on that both ofthem asked me about whereabouts of Santosh and Sangita and I toldthem that Santosh went at Police Station Peth Beed. It is not correctthat thereafter, when I reached at Peth Beed Police Station, Santoshwas found present outside the Police Station and when I asked himabout incident, he told me that on 24.05.2020 about 04.00 a.m. hekilled Sangita, Siddhesh and Kalpesh by wooden log, bat, stone andfurther he killed Kalpesh by dropping him in water barrel. It is notcorrect that thereafter I myself took away Santosh inside PoliceStation and handed over him to Police. The portion mark “A”to“D” from my report now read over are incorrect, I am unable tostate as to why it was so recorded by the Police. The portion mark,“A”, “B”, “C” in my statement recorded before the Magistrate isincorrect. I am unable to state why it was so recorded. It is notcorrect that there was no pressure upon me at the time of recordingof my statement before the Magistrate. I again say that when I putthe signature on the report, it was not a blank paper, but contents {23} CC 1-25.doc were there. I used to put the signature on going through contents ofthe documents. It is not correct that the report also read over by meand then I put the signature. It is not correct that, as Santosh is myreal brother, to save him, I am narrating false evidence. It is notcorrect that portion mark “A”, “B”, “C”, “D’ in report and “A”,“B”, “C” in statement before Magistrate are correctly recorded asper my say.”21.Portions mark ‘A’, ‘B’, ‘C’ and ‘D’ brought on record in hiscross are as follows;Portion Mark ‘A’- “Since lock down my brother realized that his wifeSangita used to talk with somebody on phone for aconsiderable time and therefore there used to bequarrels between them.”Portion Mark ‘B’- “On 24.05.2020 in the afternoon at about 12.30 p.m. Icame on the road from my house. That time BaliramTeke and Sachin Jagdale were standing in front ofdoor on road. That time they asked him where areyou going. I told them that my brother had quarrelwith his wife and therefore he is going to Peth BeedPolice Station.”Portion Mark ‘C’- “Therefore when I was going to Peth Beed PoliceStation my brother Santosh was standing outside thePeth Beed Police Station. When I asked him about theincident, he told him that today on 24.05.2020 at {24} CC 1-25.doc about 4.00 a.m. in the morning he killed his wifeSangita and two sons Siddesh and Kalpesh byassaulting with wooden bat, stone and has drownedKalpesh in the water barrel.”Portion Mark ‘D’- “The complaint given by him is typed on computerand I have read it and it is correct.”22.Evidence of PW-1 is assailed by the defence submitting thathe is a hostile witness and his evidence should be entirelydiscarded. The FIR is belatedly registered and since PW-1 has notsupported the prosecution case, therefore, the prosecution hasfailed to prove the extra judicial confession made by theAccused.23.Obviously, PW-1, has turned hostile so as to save hisbrother i.e. the Accused. However, he has admitted his signatureon the report stating that police obtained his signature on theblank paper. He further admitted that, when he put signature onthe report, it was not blank, but contents were there. He has alsoadmitted that he used to put signature on going throughcontents of the document. He has denied that the Accused madeextra judicial confession before him. The fact remains that, thestatements made in portion marked “A”, “B”, “C” and “D”, statedby him in the FIR were confronted to him and, they are proved in {25} CC 1-25.doc the evidence of PW-4, PSO, who has recorded the FIR. In the saidportions, he has narrated the incident as well as the extra judicialconfession made by the Accused, having killed his wife and sons.Thus, it is clear that first information report (Exhibit-52) is lodgedat the instance of PW-1 and its registration is proved by PW-4Police Station Officer.24.In this respect, observations of the Apex Court in“Govardhan” (supra) may usefully be referred :“31. Though the FIR is not a piece of substantive evidence,especially, when the Complainant, i.e., PW-6 did not fully supportthe contents of the FIR, yet, it cannot be totally ignored and is to betreated as a relevant circumstance if the same is proved by otherprosecution witness, in this case by PW-14, the SHO who recordedthe report in the form of FIR as stated to him by the complainant.32.In this regard, we may profitably refer to the decision of thisCourt in Bable v. State of Chhattisgarh, (2012) 11 SCC 181 whereinit was observed as follows:“14. Once registration of the FIR is proved by the police and thesame is accepted on record by the court and the prosecutionestablishes its case beyond reasonable doubt by other admissible,cogent and relevant evidence, it will be impermissible for the Courtto ignore the evidentiary value of the FIR. The FIR, Ext. P-1, hasduly been proved by the statement of PW 10, Sub-Inspector, SureshBhagat. According to him, he had registered the FIR upon thestatement of PW 1 and it was duly signed by him. The FIR wasregistered and duly formed part of the records of the police station {26} CC 1-25.doc which were maintained in the normal course of its business andinvestigation. Thus, in any case, it is a settled proposition of law thatthe FIR by itself is not a substantive piece of evidence but it certainlyis a relevant circumstance of the evidence produced by theinvestigating agency. Merely because PW 1 had turned hostile, itcannot be said that the FIR would lose all its relevancy and cannotbe looked into for any purpose.”25.The FIR is registered on 24th May, 2020 at 22.35 hours.Law, on the point of evidentiary value of evidence of hostilewitness is well settled. Statement of hostile witness can be reliedon by the Court, to the extent it supports prosecution case and iscorroborated by other evidence. (see “Govardhan” (supra) and“Shymal Ghosh V/s State of West Bengal3”. We, therefore,reject the argument of the defence that since PW-1 has notsupported the prosecution case, his evidence and FIR lodged byhim is of no assistance to the prosecution case. 26.We, therefore, are of the considered view that firstinformation report (Exhibit-52) corroborates the prosecution caseas well as the extra judicial confession made by the accused andthe same also discloses motive of the Accused to commit murderof his wife and sons. 27.Prosecution has also examined PW-14 Rajesh Satpute,brother in law of the Accused. He deposed that he stays along3(2012) 7 SCC 646 {27} CC 1-25.doc with his wife and two children. His wife has two brothers, elderone is the Accused and the younger one is Sandeep. They stay atKala Hanuman Thana, Takwa Colony, Beed. Accused had 3children, elder one Mayuresh, second was Siddhesh and youngerwas Kalpesh. From all the 3, Mayuresh is alive. Sangita - wife ofthe Accused died on 24th May, 2020. In the evening on 23rd May,2020, Accused came to his house along with Mayuresh. Afterdinner, the Accused slept in the hall of his house and he went tosleep in the bedroom. Then, he denied that in the morning on24th May, 2020, he saw Accused Santosh coming in frightenedcondition. When he asked him, he told that he is returning fromwalk. He denied that the Accused told him that he was going topolice station and went away. He denied that around 1.00 p.m.he received call of Sandeep who told him that Sangita, Siddheshand Kalpesh have been murdered. He denied that when he wentto the house of the Accused, police had come there. He deniedthat when in the police station he asked the Accused, he told himthat at 4.15 a.m. he went to his house, there assaulted Sangitaand Siddhesh on their heads by bat and also assaulted Sangitaby stone on her head, she died and thereafter, he assaultedKalpesh by hitting bat on his head and thereafter drowned him inbarrel filled with water, he died and thereafter he returned to hishouse at 6.00 a.m. PW-14 was declared hostile and was cross {28} CC 1-25.doc examined by the learned APP.In the cross examination conducted by the learned APP,PW-14 has deposed that after this incident police enquired withhim. Portion Mark ‘A’ i.e. “Next day on 24.05.2020 at about 06.00a.m. Santosh Kokane alone was seen coming from outside. Atthat time I asked him from where he had come. At that time in afrightened condition he stated that he had gone for a walk andhe has come back. Thereafter we had tea and breakfast.Thereafter Santosh Kokane said that he will go to the PoliceStation and left alone. In the afternoon at 01.00 hrs., I received acall from Sandip Kokane that Santosh Kokane’s wife Sangita,children Siddesh and Kalpesh are murdered”, was read over tohim. He denied that he had stated so to the police. He further denied having stated portion mark ‘B’ viz,“Thereafter when he inquired with Santosh Jaydutt Kokaneresident of Takwa Colony, Shukrwar Peth, Beed, he told that frommy house at about 04.15 hrs he woke up from the sleep andalone went to Sangita at his house. After reaching home heassaulted Sangita and Siddesh on head with wooden bat in thehouse. Thereafter he hit Sangita on head with stone. That timethey both expired. Thereafter he hit Kalpesh on head withwooden bat and then drowned him in the water barrel. Then he {29} CC 1-25.doc expired. Thereafter he again returned to his house (PW 14’s) atabout 06.00 hrs.” He admitted that his statement was recorded in the Courtas per his say. He was shown his statement. On perusal of thestatement, he stated that it was recorded as per his say and hesigned it thereafter. While recording the said statement, he andMagistrate were only present. He denied that he came to theCourt with his mother in law. He denied that when he went to thehouse of the Accused, he saw rope was tied for hanging. Hestated that, when he went to the house of the Accused on 24thMay, 2020 at that time, the Accused was present in the PoliceStation. Complaint was filed by brother of the Accused. He didnot have knowledge that the incident was told by the Accused tohis brother Sandeep, who lodged the first information report. Hedenied accompanying Sandeep to the police Station. He admittedthat when the incident happened, there was lock down and dueto the lock down all the works were stopped. He did not knowthat there was quarrel between the Accused and the deceased.He denied that on 25th May, 2020, the Accused had filed N Cagainst Sangita and he had come to his house. He admitted thatsince Santosh is his brother in law, he felt that he should not bepunished. {30} CC 1-25.doc 28.In the cross examination, conducted on behalf of thedefense, he stated that, Santosh was in his house from 23rd May,2020 till the next day. He did not come to the Court along withpolice. He received phone call from police for recordingstatement, after that he came to the Court. In the Court, he metpolice. He was brought by the police in the Court for recording hisstatement. He gave statement in the Court as per say of police.Accused was wearing same clothes which he was wearing on theprevious day. He had no concern whether the Accused isconvicted or acquitted as per law.29.Much stress is laid by the defence on the statement madeby this witness that, the Accused had come along with sonMayuresh on previous evening and slept in his house and theAccused was at his house till the next morning. It is to be notedhere that PW-14 is brother in law (sister’s husband) of theAccused. He has supported the Accused so as to save him. 30.PW-14 has admitted in his evidence that the Accused andMayuresh had slept in hall and he had gone to sleep in thebedroom. PW-14 has denied having made the statement underportion marked “A” which is to the effect that, “on next day on 24thMay, 2020, at about 6.00 a.m. Santosh Kokane was seen coming from outside. Atthat time, he asked him from where he had come. At that time, in frightenedcondition, Accused has stated that he had gone for a walk and he had come {31} CC 1-25.doc back.” Thereafter, after breakfast, Santosh stated that he will goto the police station and left. PW-14 further denied having statedportion marked “B” i.e. extra judicial confession made by theAccused to him to the effect that, “from his house at about 4.14 hrs,Accused woke up from sleep and alone went to Sangita at his house and afterreaching home, he assaulted Sangita and Siddhesh on head with wooden bat inthe house. That time they both expired. Thereafter he hit Kalpesh on head withwooden bat and then drowned him in the water barrel. Then he expired and heagain returned to PW-14’s house at about 6.00 hours”.Both these statements, portion marked “A” and “B” areproved in the evidence of PW-15 vide Exhibits-104-105.31.It is settled legal proposition that the evidence of aprosecution witness cannot be rejected in toto merely becausethe prosecution chose to treat him as hostile and cross examinehim. The evidence of such witnesses cannot be treated aseffaced or washed off the record altogether but the same can beaccepted to the extent that their version is found to bedependable on a careful scrutiny thereof. (vide Bhagwan Singh v.The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v.State of Orissa, AIR 1977 SC 170; Syad Akbar v. State ofKarnataka, AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v.State of Madhya Pradesh, AIR 1991 SC 1853). {32} CC 1-25.doc 32.On the point of appreciation of evidence of hostile witness,the Apex Court, in “Rameshbhai Mohanbhai Koli and OthersV//s State of Gujrat”4 has made following observations:“In State of U.P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC2766, this Court held that evidence of a hostile witness would not betotally rejected if spoken in favour of the prosecution or the accusedbut required to be subjected to close scrutiny and that portion of theevidence which is consistent with the case of the prosecution ordefence can be relied upon. A similar view has been reiterated by thisCourt in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC543; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516;Radha Mohan Singh @ Lal Saheb and Ors. v. State of U.P., AIR 2006SC 951; Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462”.33.In “Bhajju V/s State of MP5”, the Apex Court held :“35.Now, we shall discuss the effect of hostile witnesses as well asthe worth of the defence put forward on behalf of theAppellant/accused. Normally, when a witness deposes contrary tothe stand of the prosecution and his own statement recorded underSection 161 of the Code of Criminal Procedure., the prosecutor, withthe permission of the Court, can pray to the Court for declaring thatwitness hostile and for granting leave to cross-examine the saidwitness. If such a permission is granted by the Court then the witnessis subjected to cross-examination by the prosecutor as well as anopportunity is provided to the defence to cross-examine suchwitnesses, if he so desires. In other words, there is a limitedexamination-in-chief, cross-examination by the prosecutor andcross-examination by the counsel for the accused. It is admissible touse the examination-in-chief as well as the cross-examination of thesaid witness in so far as it supports the case of the prosecution. 36.It is settled law that the evidence of hostile witnesses can alsobe relied upon by the prosecution to the extent to which it supportsthe prosecution version of the incident. The evidence of suchwitnesses cannot be treated as washed off the records, it remains42010 ALL MR(Cri) 3968 (SC)5(2012) 4 SCC 327 {33} CC 1-25.doc admissible in trial and there is no legal bar to base the conviction ofthe accused upon such testimony, if corroborated by other reliableevidence. Section 154 of the Act enables the Court, in its discretion,to permit the person, who calls a witness, to put any question to himwhich might be put in cross-examination by the adverse party.41.These are matters of serious consequences and render thestatement of all these three witnesses unreliable and undependable.Thus, these statements we would refer and rely (examination inchief) only to the extent they support the case of the prosecution andare duly corroborated, not only by other witnesses but even by thedying declaration and the medical evidence.”34.Statement of this witness under section 164 of the CriminalProcedure Code is recorded before learned Judicial Magistrate,First Class. In this statement, he has stated that, the Accusedcame to his house at 9.30 p.m. on 24th May, 2020 for sleepingalong with elder son Mayuresh. They had dinner. Accused and hisson were sleeping in adjacent room. He was not aware as towhen the Accused went to his home. There was quarrel betweenthe Accused and his wife and they had gone to police station.The accused told him that the Police had called them in themorning. When he woke up at 6.00 a.m., that time, the Accusedhad come from outside. When he asked the Accused as to wherehe had been, that time, Accused told that he had gone for a walk.Thereafter, they had breakfast and the Accused went to policestation. Sandip Kokane called him and told that Sangita, wife of {34} CC 1-25.doc the Accused and sons Nilesh and Kaplesh have died. Thereafter,he went to the house of the Accused. Police were present there.Police enquired with him and thereafter recorded his statement inthe police station.It is pertinent to note that, this witness has admitted that,his statement under section 164 of the Criminal Procedure Codewas recorded in the Court, as per his say. When his statementwas shown to him, on perusal of the same, he stated that it wasrecorded as per his say and he signed it thereafter. He has alsostated that while recording the said statement, only he andMagistrate were present. 35.Principles for appreciation of retracted statement undersection 164 of the Criminal Procedure Code are laid down by theApex Court in “Vijaya Singh and Another V/s State ofUttarakhand”6, wherein it is observed ;27. The jurisprudence concerning a statement under Section 164CrPC is fairly clear. Such a statement is not considered as asubstantive piece of evidence, as substantive oral evidence is onewhich is deposed before the Court and is subjected to cross-examination. However, Section 157 of Indian Evidence Act, 1872makes it clear that a statement under Section 164 CrPC could beused for both corroboration and contradiction. It could be used tocorroborate the testimonies of other witnesses. In R. Shaji v. State of6(2025) 3 SCC 378 {35} CC 1-25.doc Kerala, this Court discussed the two-fold objective of a statementunder Section 164 CrPC as:“15. So far as the statement of witnesses recorded underSection 164 is concerned, the object is two fold; in the firstplace, to deter the witness from changing his stand bydenying the contents of his previously recorded statement,and secondly, to tide over immunity from prosecution by thewitness under Section 164. A proposition to the effect that if astatement of a witness is recorded under Section 164, hisevidence in Court should be discarded, is not at allwarranted …”The Court also recognized that the need for recording the statementof a witness under Section 164 CrPC arises when the witnessappears to be connected to the accused and is prone to changing hisversion at a later stage due to influence. The relevant para readsthus: “16. … During the investigation, the Police Officer maysometimes feel that it is expedient to record the statement of awitness under Section 164 Code of Criminal Procedure. Thisusually happens when the witnesses to a crime are clearlyconnected to the accused, or where the accused is veryinfluential, owing to which the witnesses may be influenced…”28. Considering the conceptual requirement of recording a statementbefore a Judicial Magistrate during the course of investigation andthe utility thereof, as prescribed in Section 157 of Evidence Act, itcould be observed that a statement under Section 164, although not asubstantive piece of evidence, not only meets the test of relevancy butcould also be used for the purposes of contradiction and {36} CC 1-25.doc corroboration. A statement recorded under Section 164 CrPC servesa special purpose in a criminal investigation as a greater amount ofcredibility is attached to it for being recorded by a JudicialMagistrate and not by the Investigating Officer. A statement underSection 164 CrPC is not subjected to the constraints attached with astatement under Section 161 CrPC and the vigour of Section 162CrPC does not apply to a statement under Section 164 CrPC.Therefore, it must be considered on a better footing. However,relevancy, admissibility and reliability are distinct concepts in therealm of the law of evidence. Thus, the weight to be attached to sucha statement (reliability thereof) is to be determined by the Court on acase-to-case basis and the same would depend to some extent uponwhether the witness has remained true to the statement or has resiledfrom it, but it would not be a conclusive factor. For, even if a witnesshas retracted from a statement, such retraction could be a result ofmanipulation and the Court has to examine the circumstances inwhich the statement was recorded, the reasons stated by the witnessfor retracting from the statement etc. Ultimately, what counts iswhether the Court believes a statement to be true, and the ultimatetest of reliability happens during the trial upon a calculatedbalancing of conflicting versions in light of the other evidence onrecord”.36.It is necessary to mention here that portion marked “A” and“B” from the statements u/s 164 of the Criminal Procedure Codeof PW-1 (informant) and PW-14 are proved to have been made bythem, in the evidence of PW-4 and PW-15.37.In “Karamjit Singh v. State (Delhi Admn.)7”, it is heldthat,7(2003) 5 SCC 291 {37} CC 1-25.doc “The testimony of the police personnel should be treated in thesame manner as the testimony of any other witness and there isno principle of law that without corroboration by independentwitnesses their testimony cannot be relied upon. Thepresumption that a person acts honestly applies as much infavour of a police personnel as of other persons and it is not aproper judicial approach to distrust and suspect them withoutgood grounds. It will all depend upon the facts andcircumstances of each case and no principle of generalapplication can be laid down.” 38.In “State Government of NCT of Delhi V/s Sunil andAnother”8, the Apex Court has observed;“It is difficult to lay down, as a proposition of law, that the documentso prepared by the police officer must be treated as tainted andrecovery evidence unreliable. ….. It is an archaic notion that actionsof police officer should be approached with initial distrust. It is timenow to start placing at least initial trust on the actions and thedocuments made by the police. At any rate, court cannot start withthe presumption that police records are untrustworthy. As aproposition of law the presumption should be other way round. Thatofficial acts of the police have been regularly performed is a wiseprinciple and presumption and recognized even by the legislature”. In the light of aforesaid observations, we do not find anyreason to doubt the testimony of the police witnesses, PW-4 andPW-15, who have proved portion marked statements of PW-1 andPW-14 from their previous statements and statements made u/s164 of the Criminal Procedure Code. 8(2001) 1 SCC 652 {38} CC 1-25.doc 39.In the light of above principles and from the statements,answers in the cross-examination, previous statement u/s 161 ofPW-1 informant and PW-14 and their statements recorded u/s164 of the Criminal Procedure Code, before the Magistrate, wehold that evidence of PW-1 and PW-14 corroborates prosecutioncase as well as the extra judicial confession made by theAccused.40.PW-5 Vilas Bamne, neighbour of the Accused has notsupported the prosecution case. He denied that on 24th May,2020, he got up at 4.30 a.m. for toilet and saw the Accused goingto his house.In the cross examination conducted by the learned APP, headmitted that his statement was recorded by police. He,however, denied having stated to the police that “On 24.05.2020at about 4.30 a.m. in the morning he woke up for urination. Atthat time he saw towards house of Santosh Jaydatta Kokane.Santosh was seen entering his house.” (Portion Mark ‘A’). Whenthis statement was confronted to him he denied it. He could notassign any reason as to why portion marked ‘A’ is mentioned inhis statement. He being neighbour of the Accused, he can be said to be anatural witness. Statement of this witness, under portion marked
Decision
{39} CC 1-25.doc “A” corroborates the prosecution case. As this witness has seenthe Accused entering his house at about 4.30 a.m. 41.PW-6 Sanjay Wadekar, neighbour of the Accused deniedthat on 24th May, 2020 at 5.15 a.m. while he was going for awalk, he saw the Accused coming out of his house. He wasdeclared hostile. In the cross-examination conducted by the learned APP, hedenied having stated to the police that “On 24.05.2020 at about5.15 a.m. when I was going out of the house for exercise he sawSantosh Jaydatta Kokane was going out of his house. I came backfrom walk. After coming home I got fresh and stayed home dueto Corona.” (Portion Mark ‘A’). He could not assign any reason asto why portion marked ‘A’ is mentioned in his police statement. Though this witness has not supported the prosecutioncase, in view of ratio in “Bhajju” (supra), we hold that hisstatement under portion marked “A” that, on 24th May, 2020, atabout 5.15 a.m. when he was going out of the house for exercise,he saw the Accused going out of his house, corroboratesprosecution case. 42.PW-7 Sachin Jagdale deposed that he knows Accused. On24th May, 2020, he was present near his house. Brother of the {40} CC 1-25.doc Accused Sandeep told him that children of the Accused weremissing. He and Sandeep went in the house of the Accused, therethey saw a woman was lying dead. Sandeep went to policestation. Police came there. One boy was missing. He was found inthe water barrel. He and Suresh Chandane took the boy out ofthe barrel.In the cross-examination, he admitted that he did not stateto the police that Sandeep Kokane told him that children of theAccused were missing and that Sandeep Kokane went to policestation. 43.PW-8 Rahul Wanarase, is brother of deceased Sangita. Hedeposed that Accused is his brother in law. Sangita married withthe Accused before 16 years. They had 3 children, Mayuresh,Siddhesh and Kalpesh. Accused was doing marketing ofconfectioneries and eatable like kurkure. During the Covid-19lock down, there were constant quarrels between the Accusedand Sangita. Accused used to call him and used to tell that hewas suspecting character of deceased Sangita. Sangita calledhim and told that the Accused has threatened her and she washaving an apprehension that the Accused would kill her and herchildren. When he tried to give understanding to the Accused, hethreatened him and also threatened to kill Sangita. Thereafter, he {41} CC 1-25.doc came to know about the incident. He learned that the Accusedcommitted murder of Sangita, Siddhesh and Kalpesh. Policeenquired with him twice. In the cross-examination, he stated that it was notmentioned in his statement that as to who gave him informationabout death of Sangita and her children. He admitted that theAccused had told him on phone that Sangita had gone to thehouse of another person. He had received photograph of thatperson on mobile,but his name was not told to him. He deniedthat the Accused called him 150 to 200 times and that theAccused had forwarded him mobile number of Vishal Wadmare.He had received call from unknown number. His sister had calledhim from that number. Name of the unknown number wasreflected on true caller relating to police department. He deniedthat when he called back on that unknown number, his sister andVishal Wadmare talked to him. Sanjay Jadhav is his uncle. Hestays at Baramati. He was elder member of the family and waspresent in the marriage. He told him regarding dispute betweenthe Accused and Sangita. Prior to lock down, they did not visitBeed to ascertain relations between the Accused and Sangita. Hedenied that the Accused called him on phone and asked him tocome to Beed and give understanding to Sangita. He denied thatsince last one year, the Accused was telling him about illicit {42} CC 1-25.doc relations of Sangita. He volunteered that prior to 2 days of theincident, he learnt that Sangita had gone with another person tohis house. That was told to him by the Accused. Since Sangitawas not having mobile phone, he could not talk to her. He deniedthat the Accused enquired with him whether Sangita had comewith two children to his house and he told the Accused to filemissing complaint with the police. He had called on unknownnumber twice and talked with that unknown person. He told thatlife of deceased was under threat and she was safe there. He toldthat person to take Sangita to police station. On next day, whenSangita left house, he tried to call that person again, but thephone was switched off. He told that person to take Sangita toher matrimonial house. He volunteered that, that person told thatSangita was like his sister. He denied that the Accused told himthat Sangita was not behaving properly and asked him to takeher back and since the Accused was constantly complainingabout Sangita, he stopped talking to him. He could not tell thedate and time when he gave understanding to the Accused.Sangita did not talk to him, she talked to his uncle. He deniedthat the Accused is not responsible for death of Sangita and herchildren. 44.PW-11 Sanjay Jadhav is uncle of deceased Sangita. Hedeposed that, the Accused is husband of daughter of his sister in {43} CC 1-25.doc law. Sangita married with accused 15 years ago. They had threechildren. Accused was selling package of food articles. Hereceived phone call of Sangita during the period of Covid lockdown. Phone call was received few days prior to the incident. Shesaid that the Accused was threatening to kill her and herchildren. He told that vehicles were not plying on the road and hegave her understanding not to quarrel and assured that he wouldcome after lock down restrictions are lifted. After 2 days, hereceived phone call of Rahul Wanarase (PW-8) that the Accusedhad killed Sangita and her two sons. Beed police came toBaramati and enquired with him. He told that he had talkedSangita two days prior and he had recorded conversation in themobile. His mobile was seized by police in the presence ofPancha vide Panchanama (Exhibit-77). He identified the mobile(Article-22).In the cross-examination, he deposed that Sangita used totell about ill treatment to Rahul, who in turn used to tell him andthereafter he used to give understanding to the Accused andSangita. He could not tell date, month or year when he gaveunderstanding to them. He was respected by the family of theAccused. He denied that the Accused called him and told thatSangita was having illicit relationship and asked him to giveunderstanding to her. He did not remember when he received {44} CC 1-25.doc phone call from Sangita, name appeared was of Vishal Wadmare.After death of Sangita, he did not come to Beed, as there waslock down. 45.Evidence of PW-8 and PW-11 is attacked on the ground thatthey are related to the deceased and they are interestedwitnesses, therefore, their evidence should be disbelieved. Incase of a related witness, the Court may not treat his or hertestimony as inherently tainted, and needs to ensure only thatthe evidence is inherently reliable, probable, cogent andconsistent.46.In “Jayabalan v. State (UT of Pondicherry)9 the ApexCourt observed :“23. We are of the considered view that in cases where the court iscalled upon to deal with the evidence of the interested witnesses, theapproach of the court, while appreciating the evidence of suchwitnesses must not be pedantic. The court must be cautious inappreciating and accepting the evidence given by the interestedPage 54 of 62witnesses but the court must not be suspicious of suchevidence. The primary endeavour of the court must be to look forconsistency. The evidence of a witness cannot be ignored or thrownout solely because it comes from the mouth of a person who isclosely related to the victim.”47.In the light of the aforesaid observations, we are notinclined to agree with the submission of the defence that PW-89(2010) 1 SCC 199 {45} CC 1-25.doc and PW-11 are related to the deceased and they are interestedwitnesses and hence their evidence should be discarded. 48.Evidence of PW-8 and PW-11 is consistent on the point ofill-treatment and threats given by the Accused to deceasedSangita and corroborates the prosecution case and also provesmotive on the part of the Accused. 49.Prosecution has examined PW-13 Vishal Wadmare, withwhom, Sangita allegedly had illicit relations. He deposed that heknew Sudhir Wanjare who stays in his locality. He knew him sincethey both were working together on brick kiln. Thereafter hewent to work with accused. Sudhir Wanjare used to call to thehouse of accused. Two to three times Sudhir Wanjare called atthe house of accused from his mobile phone. Wife of SantoshKokane was calling on his mobile phone. She used to tell him onphone that accused used to beat her and she is facing illtreatment from the Accused. She used to tell that accused wasthreatening to kill her. On 15.04.2020 Sangita came to his housealong with her son Kalpesh. He asked her as to why she came.She told that accused had beaten her and threatened to kill her.Hence she came to his house. She stayed in his house for threedays. Accused had filed missing complaint, due to that policepersonnel came to his house. On 21.04.2020 they were taken to {46} CC 1-25.doc Peth Beed Police Station. Police made enquiry. From the PoliceStation, Sangita along with her son Kalpesh went to the house ofaccused. On 22.05.2020 Sangita came at Barshi Naka and calledhim on phone. She told that there was dispute between her andaccused and accused beat her. On 24.05.2020 police personnelfrom Peth Beed Police Station came to his house and he wastaken to Peth Beed Police Station. They inquired with him. At thattime accused was present in the police station. In the PoliceStation he learnt that accused killed Sangita and her twochildren. His statement was recorded in the Court on 14.07.2020.50.In the cross he stated that he knows Sudhir Wanjare sincechildhood but denied that they were relatives and they belong tothe same community. He belongs to Scheduled Caste. He did notknow whether police constable Wadmare came to Barshi Naka totake him, he did not know whether he was his relative. Hisstatement was recorded on 24.05.2020. Police did not come tohim after 24.05.2020. He did not go to Police Station thereafter.He did not tell Sangita when she called on phone that, he willinform her husband or her parental relatives. He did not knowwhether parental house of Sangita was at Solapur. He was notknowing Rahul Wanarase, brother of Sangita. His mobile numberis 9552360518. He denied that mobile numbers of parentalrelatives of Sangita were saved in his mobile. His mobile was {47} CC 1-25.doc seized during the investigation and same was given back to him.He denied that his sister used to talk with Sangita on phone andthat on 20.02.2020 he along with Sangita had gone to parentalhome. He denied that since relatives of Sangita did not like himgoing there, he came back. He did not go to Police Station afterSangita complained him about ill treatment given by accused. On15.04.2020 he did not call Sudhir Wanjare on phone whenSangita came to him and did not inform him about it. He came toknow about Sangita through Sudhir Wanjare. He could not assignany reason why he did not inform Sudhir Wanjare. He denied thatas he wanted to marry Sangita hence he did not inform SudhirWanjare about it. He is not married. He had no reason to takecare of Sangita. His house is at a distance of approximately 1000feet from Barshi Naka police chowki. He did not inform any policechowki when Sangita came to his house. He did not feel thatthere was dispute between accused and Sudhir Wanjare. He didnot purchase mobile phone for Sangita. She took one sim cardfrom him, when she came to his house on 15.04.2020. She usedto call him from said sim card. He denied that he used to talk toSangita regularly after accused went on his work. Once Sudhirhad shown the house of accused to him. He denied that prior to15.04.2020 Sangita came to his house 15 to 20 times. Since hedid not have mobile numbers of relatives of Sangita he did not {48} CC 1-25.doc inform them that Sangita was calling him and coming to hishouse. He denied that since he had accepted the responsibility ofSangita with her two children, she was staying in his house, andthat Sangita was asking him to marry her and he refused tomarry. He denied that Sangita threatened to commit suicide if herefused to marry. He admitted that he received call from Sangitatelling him that she was going to Kankaleshwar, he asked her togo home. He denied that Sangita was constantly coming to hishouse and he was avoiding her. Sangita had come to his housewith Santosh. He denied that she stayed over night. He deniedthat Sangita was insisting to marry him and he denied and due tothat he committed murder of Sangita and her two children. Hedenied that witnesses in this incident were his relatives. Hedenied that in collusion with police constable Wadmare hegathered false witnesses and implicated accused in the crime. Hedenied that since accused used to go to sell kurkure, hecommitted the crime.51.It is necessary to mention here that the Accused had madeunsubstantiated suggestion to this witness that, he hascommitted murder of Sangita, Siddhesh and Kalpesh, as Sangitawas insisting him to marry her and he was not ready for thesame. However, nothing in this behalf is brought on record by theAccused to substantiate this suggestion. {49} CC 1-25.doc 52.Prosecution has examined PW-2 Raju Wanjare, an employeeof Municipal Council, Beed. He is panch to the spot panchnama.On 24.05.2020, he was in the office and on direction of hissuperior officer he and his colleague Anil Madhukar Rokde wentto Police Station Peth Beed to act as panch. Santosh Kokane hadshown the spot. Along with police they went to Shukrawar Peth atthe house of Santosh Kokane. It was a house (okMk) having tin roof.In front of open space their room was there. In the room one tile(stone), wooden bat was lying. There was blood on the stone.Police seized both the articles and prepared panchnama. Apartfrom that one handle of bat, white colour rope, green colourpieces of bangles and bangle, water sample from blue colourplastic water tank, blood samples, blue colour plastic tank, oldhandkerchief, one yellow red green rose colour scarf were alsoseparately seized from the spot and sealed. Same is mentionedin spot panchnama Exhibit-30. He identified the article No. 1Stone, article No. 2 bat, article No. 3 handle of bat, article No. 7pieces of bangle, blood sample, article No. 6 rope, article No. 11old handkerchief, article No. 12 scarf. He also identified thesignature over the seal. Three dead bodies were found. Head oflady was found pressed. Blood was oozing from ear and nose.One dead body of boy aged about 10 years having head injurywas also lying beside the dead body of the lady. Next dead body {50} CC 1-25.doc of boy was found in blue colour plastic tank containing water.Hands of said body was tied by scarf. Inquest panchnamas ofthree dead bodies were prepared in their presence vide Exhibits-31, 32 and 33.53.In the cross he stated that towards eastern side of saidroom, room of brother of Santosh is there. Towards northern sidetenants were residing. The distance between room andsurrounding room were so close to each other that if anybodytalk in any particular room it can be heard in another room. Thehouse of accused was surrounded by 100 houses. There is nospecial mark over seized articles. On that day about 12-13signature were obtained on chits, those chits were affixed on thearticles in their presence in the police station. He denied thatpanchnamas were not prepared on the spot and they wereprepared at police station.54.Prosecution by examining PW-3 Rahul Gopal Korde, panch,has proved the panchnama (Exhibit-43) of seizure of clothes ofSangita i.e. chocolate colour Salwar (Article -13) and creamcolour top (Article – 14), clothes of Siddesh i.e. pink colour shirt(Article-15), blue colour jeans, a blue colour underwear (Article-17) and seizure of blood stained yellow colour t-shirt (Article –18) and green colour pant (Article-19) of Kalpesh. {51} CC 1-25.doc Panchnama (Exhibit-46) of seizure of clothes of accusedSantosh i.e. chocolate colour full shirt article-20, cream colourpant article-21 is also proved by this witness. 55.He is also panch to the panchnama of obtaining CCTVfootage from one house at Mauli Chowk, from house of Sarda andfrom New Diamond Confectionery. Thereafter, police took himand another Panch Akash to Mauli Chowk, in front of one house.He did not remember name of the person who stayed there.CCTV camera was installed outside the house. They were shownCCTV footage by the owner of the house. They saw the Accusedin the CCTV footage going from Mauli Chowk to Kala HanumanThana. CCTV footage was obtained in a memory card, which wassealed in their presence and their signatures were obtained on it.From there, they proceeded to Kala Hanuman ThanaChowk. While going there, they came across house of Sarda.There was CCTV camera outside the house. They went inside thehouse and saw the CCTV footage, wherein the Accused was seengoing from in front of the house of Sarda towards Kala HanumanChowk. Said CCTV footage was obtained in a memory card andthe memory card was sealed in their presence and theirsignatures were obtained. {52} CC 1-25.doc From there, they went to the Kala Hanuman Thana Chowkand from there, they started towards Shukrawar Peth, on theway, shop called New Diamond Confectionery was seen. CCTVcameras were installed outside the shop. They inspected CCTVfootage. The Accused was seen going from in front of the shoptowards Mondha Naka. CCTV footage was obtained in thememory card and the memory card was sealed in their presenceand their signatures were obtained on it. All these findings andrecoveries were recorded in Panchanama Exhibit-47. Three sealed envelopes containing memory cards wereopened in the Court during his evidence and the memory cardswere given Articles “A” and “B”. 56.On 30.05.2020, Police took him and Akash to Sarda road tosee CCTV footage. They went to Rashtriya Nagari Co-operativeCredit Society. Bank Manager Mukeshkumar Dhage was present.On the request of police, Bank Manager showed CCTV footagedated 24.05.2020. In the CCTV footage he saw accused goingtowards Kala Hanuman Thana. Police obtained copy of CCTVfootage in the memory card and obtained their signature on itand the memory card was sealed. Panchnama (Exhibit-48) wasprepared in their presence. He also identified the memory cardArticle-C. {53} CC 1-25.doc 57.In the cross he stated that he went to the police station at9.00 a.m. and panchnama was started around 9.15 a.m. Theclothes were already kept separately by the police. When Article-13 was shown to him he stated that same is designer top ofyellow, blue, black colour. All the clothes did not bear any chithaving his signature. He has deposed that said clothes belong todeceased as he was told it during the panchnama. He admittedthat Article-15 is not of red colour. Police did not ascertainownership of house from where CCTV footage was copied. Hesaid that police inquired with the owner and he was presentthere. For panchnama police carried with them laptop andstationery. He did not know Vishal Wadmare resident of BarshiNaka, Beed. Panchnama was conducted during first stage ofCorona pandemic. It was mandatory for the person to wear mask.He admitted that face of a person in the footage is covered byhandkerchief. He denied that he cannot identify the person in thefootage as his face is covered by handkerchief. He admitted thatto identify a person his nose, lips and chin should be visible andin the footage nose, lips and chin of the person is not visible. Inanother footage back of the person is visible.58.Prosecution has also examined PW-10 Kailas Wable,Assistant Sub Inspector, who has investigated the missing {54} CC 1-25.doc complaint. He testified that on 17.04.2020, he was present inPeth Beed Police Station, on that day accused lodged missingcomplaint which was registered as Missing Complaint No. 7/2020.It was handed over to him for investigation. He identified themissing complaint (Exhibit-71). He was also handed over copy ofmissing person registration No. 7/2020 (Exhibit-72). He tried tosearch missing person with relatives. During inquiry of themissing complaint accused told him that his wife and son were atBarshi Naka. He went to the house of Vishal Wadmare (PW-13).There he found Sangita and Kalpesh. He brought them to thepolice station. Accused was present in the police station. Whenhe asked Sangita the reason why she left house, she told himthat accused used to beat her and her son on trivial reasons. Hegave understanding to them. He recorded statement of Sangitaand accused. Thereafter Sangita and her son went with theAccused to matrimonial home. He then filed first informationreport Exhibit-73 to P.I. and handed over the complaint andmissing report to P.I. along with statement of Sangita andaccused.59.In the cross he stated that in the complaint it wasmentioned that Sangita was constantly talking on phone and sheleft home without informing anybody. He searched with tworelatives of accused. He did not contact Sangita’s parents. In {55} CC 1-25.doc Sangita’s statement it is mentioned that she got angry due tobehavior of accused. She called Vishal Wadmare on mobile phoneand told that accused beat her, she does not want to stay andcalled him. He accordingly came on his motorcycle and she wentto his house at Barshi Naka where she stayed. Since herstatement was referred to him in the cross, it was marked atExhibit- 74. He further stated that he went to Barshi Naka andbrought Vishal Wadmare to police station. He did not record hisstatement. Any previous complaint filed by Sangita was nothanded over to him for inquiry. Santosh happily took Sangita andKalpesh to his house after they were handed over to him.60.Prosecution has examined PW-4 PSI Rajendra Bankar, whoat the relevant time was working as PSO at Peth Beed PoliceStation. He deposed that on 24.05.2020, he was working as PSO.On that day, Sandip Jaydatta Kokane (PW-1) came to policestation and told him that his brother Santosh had killed his wifeSangita, sons Siddesh and Kalpesh with bat and stone andthereafter put Kalpesh in water barrel. He had brought accusedto police station with him. Accordingly complaint (Exhibit-52) wasrecorded as per his say. He and complainant put their signatureson the complaint. Portion mark ‘A’, ‘B’, ‘C’ and ‘D’ were recordedas per say of complainant, they were given Exhibit-53. Heaccompanied I.O. to gather information regarding movement of {56} CC 1-25.doc accused from the spot and to collect CCTV footage. Panchas werewith them. They went to Mauli chowk. They found CCTV camerasinstalled outside the house of Tiwari. On inspecting footagecollected from camera No. 1 and 2 accused was noticed. Thatfootage was copied and pasted in the memory card of Toshibacompany. Hash value was obtained. Memory card was seized andsealed in presence of panchas. When they went ahead theynoticed CCTV camera outside the house of Sarda. They inspectedthe CCTV footage. Accused was seen in it. The footage wascopied and pasted in the memory card. Hash value was obtained.Memory card was seized and sealed in presence of panchas.Thereafter they came near Diamond Confectionery shop. Theynoticed CCTV camera outside the shop. They inspected the CCTVfootage. Accused was noticed in it. The footage was copied andpasted in memory card. Hash value was obtained. Memory cardwas seized and sealed in presence of panchas. He had obtainedtraining in computer operations, collection of data from electronicdevices, storing the data, obtaining hash value etc. He hadknowledge of the aforesaid things. He issued certificate underSection 65B of Indian Evidence Act (Exhibit-54). 61.He went along with I.O. to Rashtriya Nagari Sahakari pat-Sanstha on 30.05.2020. They inspected the CCTV cameras there.Accused was located in the footage. He was noticed going {57} CC 1-25.doc towards the spot. Said footage was copied and pasted in memorycard. Its hash value was obtained. Memory card was seized andsealed in presence of panchas. Thereafter he gave certificateunder Section 65B of Indian Evidence Act (Exhibit-55). He hasmentioned regarding device used by him for collecting thefootage. He has also filed hash value number obtained fromscreenshots regarding hash value from his computer. They arepart of certificate (Exhibit-55). The footage were collected asthey were. The instruments used for collecting the footage werein proper condition. Accused noticed in the footage and presentin the Court is one and the same.62.In the cross he denied that he has deposed false thatinformant came with accused to Police Station and that portionmark ‘A’, ‘B’, ‘C’, and ‘D’ were not told by informant. It did nothappen that he asked the question to the complainant and heanswered and accordingly complaint was recorded. He knowstyping. He has certificate of MSCIT. He denied that complaint atExhibit-52 was not recorded as per the say of informant. Hefurther stated that while collecting hash value he used KarensHasher software, the same is mentioned in panchnama (Exhibit-47). Screenshots did not bear his signature. Panchas were calledby I.O. prior to going for panchnama. He had seen accused fromthe distance of 50 feet. He admitted that during training they {58} CC 1-25.doc were taught how to recognize a person. A person can beidentified on observing his eyes, noes and ear. He volunteeredthat a person can be identified from his body language, headmovement, hand movement etc. He observed CCTV cameraswhen he went with I.O. In his presence. I.O. did not take theownership document of the house. For conducting bothpanchnamas he carried with him computer, memory card reader,03 memory cards, his mobile of OPPO company and externalhard-disc. There are 3 to 4 types of Hard-drive. No separatepanchnama was conducted that the memory card was empty. Hevolunteered that it is mentioned in the panchnama that memorycard was empty. On being questioned “Whether a new folder wascreated after taking footage and whether it was named?” heanswered that “footage was taken in hard-drive. It was attachedto computer and from there it was directly taken in memorycard.” Footage can be edited before taking hash value. Footagewas firstly collected in hard-drive and thereafter it wastransferred in the memory card. Original footage is in DVR. Clonecopy was not done by them. Clone copy is not available withthem. He denied that he edited the footage in his laptop. Headmitted that screenshot of hash value was not signed by him, itwas signed by I.O. There is no date below his signature at Exhibit-54 and 55. He denied that since he was not owner of the DVR he {59} CC 1-25.doc had no authority to issue certificates at Exhibit-54 and 55. Hedenied the suggestion that he is deposing false that CCTVfootage was taken in his OPPO mobile, that he deposed falseregarding hash value and no footage was collected from thehouse of Tiwari, Sarda and Rashtriya Nagari Sahakari Pat-Sansthaand he is deposing false.63.Prosecution has examined PW-9 Sunil Algat, Police HeadConstable, who was working at Peth Beed Police Station as PoliceNaik. On 24.05.2020 he was present in the police station. Ataround 1.45 p.m. he received call from his fried Girish Bagdeinforming him that a foul smell was coming from house in TakiaColony, Peth Beed. He accordingly informed to P.I. Shri. Patil, hetook entry in station diary (Exhibit-67) and they went towards thespot. On 09.06.2020 he was given two letters and muddemal inCrime No. 150/2020 by Mohril and I.O. to deposit with ForensicLaboratory. He deposited the muddemal in Forensic Laboratoryand obtained acknowledgment (Exhibit-68).64.In the cross he stated that there were 22 sealed envelopes.Panchnama was not conducted while handing over muddemal tohim.65.In re-examination he stated that on 25.02.2021 he was onduty, he was handed over two letters and four sealed envelopes {60} CC 1-25.doc in Crime No. 150/2020. On the same day evening he went toMumbai along with sealed envelopes and letters and deposited itin Forensic Laboratory on 26.02.2021 .66.Police Inspector Vishwas Patil PW-15 is the investigatingofficer. Spot panchnama, inquest panchnama and complaint werehanded over to him. He recorded statement of Rajendra Satputeas per his say. Portion Mark ‘A’ and ‘B’ in his statement are as perhis say. They were given Exhibit-104 and 105 respectively. Heseized clothes of deceased Sangita, Siddesh, Kalpesh and clothesof accused vide panchnamas Exhibits-43, 44, 45 and 46. Hearrested the accused vide panchnama Exhibit-107. He collectedCCTV footage from three places wherein accused was seenwalking. Prior to collecting the footage, notices (Exhibits-108, 109and 110) were given to concerned house owners. They gaveconsent and thereafter CCTV footage was collected. Panchnama(Exhibits-47 and 54) were conducted at the time of collectingCCTV footage. He proved the letter (Exhibit-113) given to Courtfor recording statements of PW-1 and PW-14 under section 164 ofthe Criminal Procedure Code. He proved portion mark ‘A’ in thestatement of PW5- Vilas Bamne, which was marked Exhibit-111.He proved portion mark ‘A’ (Exhibit-112) in the statement ofSanjay Wadekar. He stated that portion mark ‘A’ from thestatement of Sanjay Wadekar (PW-6) is recorded as per his say. {61} CC 1-25.doc He then described the steps taken by him during the course ofinvestigation including recording of statements of witnesses,forwarding of articles to Forensic Laboratory, forwarding of pendrive containing CCTV footage and its report Exhibit-118. Heobtained PTR record of the house of accused (Exhibit-116).During the investigation it was revealed that accused hadcommitted murder of Sangita, Siddesh and Kalpesh.APPRECIATION OF EVIDENCE67.HOMICIDAL DEATH OF SANGITA, SIDDHESH AND KALPESHHomicidal death of Sangita, Siddhesh and Kalpesh isproved by the Prosecution in the evidence of PW-12. The defencehas not disputed the homicidal deaths of Sangita, Siddhesh andKalpesh. 68.MOTIVE:a.It is the case of the prosecution that the accused wassuspecting that deceased Sangita had illicit relations withPW-13 Vishal. To prove the motive of the Accused, theProsecution has led evidence of PW-8 Rahul, brother ofdeceased Sangita, PW-11 Sanjay Jadhav, uncle of thedeceased and PW-13 Vishal Wadmare.b.PW-8 Rahul had categorically deposed about ill-treatment {62} CC 1-25.doc given by the accused to deceased Sangita. It has come inhis evidence that, there were constant quarrels betweenAccused and Sangita and the Accused used to call him andtell that he was suspecting character of deceased Sangita.Sangita called him and told that the Accused hadthreatened her and she was having apprehension that theAccused would kill her and her children. He has furthertestified that, when he tried to give understanding to theAccused, the Accused threatened him and also threatenedto kill Sangita.c.PW-11 Sanjay Jadhav, uncle of the deceased, also deposedabout the ill-treatment given to Sangita by the Accused.Few days prior to the incident, he had received a phone callfrom Sangita and she told that the Accused was threateningto kill her and her children. In the cross, suggestion wasgiven to him by the defence that the Accused told him thatSangita was having illicit relations and asked him to giveunderstanding to her. Thus, the Accused himself hassuggested about illicit relations of Sangita with PW-13Vishal Wadmare. d.Ill-treatment given by the Accused to deceased Sangita isalso stated by PW-13 Vishal Wadmare. He has stated that {63} CC 1-25.doc Sangita used to call on his mobile phone and used to tellhim that the Accused used to beat her and she is facing ill-treatment from the Accused and the Accused wasthreatening to kill her. On 15th April, 2020, Sangita hadgone to his house along with son Kalpesh. When he askedthe reason for coming to him, she told that the Accused hadbeaten her and threatened to kill her. Therefore, she hadcome to his house. At that time, Sangita stayed at hishouse for 3 days. The Accused had filed missing complaintdue to that Police Personnel from Peth Beed Police Stationcome to his house and on 21st April, 2020, they were takento Peth Beed Police Station. Then, again on 22nd May, 2020,Sangita came to Barshi Naka and called him and told thatthere is dispute between her and the Accused and theAccused beat her.e.It has also come in the prosecution evidence that prior tothe month of the incident, Sangita, along with her sonKalpesh left the company of Accused and Accused had filedMissing Complaint (Exhibit-71), which was registered atMissing Person Registration No. 7 of 2020 (Exhibit-72). PW-10 Kailas Wable was entrusted with the said inquiry. Duringthe inquiry, the Accused told him that his wife and son wereat Barshi Naka, at the house of Vishal Wadmare. When PW- {64} CC 1-25.doc 10 went there, he found Sangita and Kalpesh. He broughtthem in the police station. When he made inquiry withSangita, she told that the Accused used to beat her and herson for trivial reasons, therefore, she left the house of theAccused. He recorded statements of Sangita and theAccused and gave them understanding. Thereafter, Sangitawent along with the Accused to her matrimonial house.f.From the aforesaid evidence, the prosecution hasestablished that relations between the accused anddeceased Sangita were strained. According to Sangita, theAccused used to beat her and, therefore, she had leftcompany of the Accused and went to Vishal Wadmare tostay with him. The Accused was aware about this fact. Fromthe evidence of PW-8 and PW-11, it is brought on recordthat the Accused was suspecting character of deceased andthe deceased was apprehending that the Accused would killher and her children. g.The Accused, in his answer given to Question No. 161 in thestatement recorded under section 313 of the CriminalProcedure Code, has admitted that there were illicitrelations between Sangita and PW-13 Vishal. h.All the aforesaid evidence establishes that the Accused had {65} CC 1-25.doc strong motive to kill Sangita and her two children. Onappreciation of this evidence, we are of the considered viewthat the Prosecution has proved that the Accused hadmotive to kill Sangita.69.EXTRA JUDICIAL CONFESSION BY THE ACCUSED :a.Extra judicial confession by the Accused is reflected in thefirst information report (Exhibit-52) as well as in thestatement of PW-1, recorded under section 164 of theCriminal Procedure Code, on 27th May, 2020. Relevant extrajudicial confession is marked as portion “C” in the saidstatement. b.It has come in the evidence of PW-1 Sandip and PW-7Sachin that, when they went inside the house of theAccused, they saw dead bodies of Siddhesh and Sangitawere lying in a pool of blood. Obviously, they did not noticeKalpesh at that time and they were not knowing about hiswhereabouts. Evidence of PW-1 and PW-7 is consistent onthese points.c.Admittedly, after noticing the dead bodies of Sangita andSiddhesh, PW-1 proceeded to the police station. As ismentioned in the FIR (Exhibit-52), the Accused met himoutside the police station. When PW-1 asked the Accused {66} CC 1-25.doc about the incident, the Accused confessed to him that, ‘onthat day, at about 4.00 a.m. in the morning, he has killedhis wife Sangita and two sons Siddhesh and Kalpesh, byassaulting them with bat and stone and by drowningKalpesh in water barrel’. On hearing this confession, PW-1took the Accused inside the police station and handed himover to the Police and lodged the FIR (Exhibit-52). The factof PW-1 bringing the Accused in the police station, at thetime of lodging of the FIR (Exhibit-52) is also stated by PW-4 Rajesh Bankar, Police Sub Inspector, who registered thecrime No. 150 of 2020, on the basis of the FIR (Exhibit-52).The fact of handing over of custody of the Accused to thepolice by PW-1 further supports the making of extra judicialconfession by the Accused.d.Evidence on record further reveals that pursuant to theextra judicial confession, the whereabouts of dead body ofKalpesh were made known to PW-1 and the same werereported by him to the police vide FIR (Exhibit-52). In theportion marked “C”, in the statement of PW-1 recordedbefore the Magistrate under section 164 of the CriminalProcedure Code also, in verbatim the same extra judicialconfession is mentioned. This further lends support to theprosecution case that, the Accused made extra judicial {67} CC 1-25.doc confession having killed his wife and two sons. e.There is evidence on record that, after lodging of the FIR(Exhibit-52), police, along with PW-1 and PW-7 went to thescene of offence. They searched and found dead body ofKalpesh, in a barrel containing water. This fact iscorroborated by PW-7 Sachin. This fact also corroboratesextra judicial confession made by the Accused, wherein hehas disclosed that first he beat Kalpesh with bat and thendrowned him in a barrel containing water. This alsocorroborates the prosecution case that the Accused madeextra judicial confession.f.Discovery of dead body of Kalpesh on the informationgiven by the Accused, exhibits knowledge or mentalawareness of the Accused as to the existence of dead bodyof Kalpesh in the water barrel and proves his complicity inthe present crime. The discovery of the dead body ofKalpesh in the water barrel, on the basis of extra judicialconfession of the Accused further lends support to theprosecution case and proves the fact of Accused makingextra judicial confession. 70.CCTV FOOTAGE / ELECTRONIC EVIDENCE :a.In the present case, the police collected CCTV footage from {68} CC 1-25.doc the houses of Anand Mahesh Tiwari, Sharad Sarda andfrom New Diamond Confectionery. The CCTV footage wascollected by PW-4 Rajendra Bankar, who claims to haveobtained training in computer operations, collection of datafrom electronic devices, storing data etc. He has issuedcertificate under section 65B of the Evidence Act on all thememory cards on which he had downloaded the CCTVfootage. The memory cards were also forwarded to theforensic laboratory, which has issued examination report(Exhibit-56), confirming that “male person present inquestioned video file found as Exhibit-1, Exhibit-2 andExhibit-3, appears to be similar with referencephotograph”. (Said to be Santosh Jaydatta Kokane). b.The Trial Court has rightly disbelieved electronic evidence /CCTV footage evidence, by relying on decision of the ApexCourt in “Arjun Panditrao Khotkar V.s Kailas KishorGoryantal10”, wherein it is held that a person who givescertificate must be the person who occupies a responsibleofficial position in relation to the operation of the relevantdevice.c.Admittedly, in the present case, certificates under section65B of the Evidence Act, are not issued by the owners of10AIR 2020 SC 4908 {69} CC 1-25.doc the CCTV and, therefore, said certificates, issued by PW-4are not valid and, hence, the Trial Court is justified indiscarding the electronic evidence in the present case. d.We do not agree with the submission of the learned APPthat PW-4, having obtained computer training and beingexpert in the field, has issued certificates under section65B of the Evidence Act in official capacity. Requirement ofsub clause “a” of clause 2 of section 65B of the EvidenceAct is that, the computer output containing the informationwas produced by the computer during the period overwhich the computer was used regularly to store or processinformation for the purposes of any activities regularlycarried on over that period by the person having lawfulcontrol over the use of the computer.e.PW-4 cannot be said to have lawful control over the use ofcomputers and, therefore, he was not competent to issuecertificate under section 65B of the Evidence Act. In thisview of the matter, there is no merit in the said argumentof the learned APP. 71.FALSE PLEA OF ALIBI :a.It is the case of the prosecution that the Accused plannedmurders of Sangita, Siddhesh and Kalpesh. He, therefore, {70} CC 1-25.doc went to the house of PW-14 in the night between 23rd and24th May, 2020. He came from there at 4.00 a.m., enteredhis house, killed Sangita, Siddhesh and Kalpesh andreturned back to the house of PW-14, at about 5.30 to 6.00a.m.b.The Accused contends that he was not at all present in thehouse, when the incident had taken place and he was atthe house of PW-14. This stand of the accused is supportedby PW-14 in his evidence. However, the fact remains thatPW-14 has admitted in his evidence that the Accused cameto his house in the evening on 23rd May, 2020 along withMayuresh. After dinner, the Accused slept in the hall andhe went to sleep in bedroom. He has resiled from his policestatement. As per the portion marked “A” in his policestatement, he has stated that on 24th May, 2020, at 6.00a.m. he saw Santosh (Accused) coming from outside infrightened condition. On asking, he disclosed that he hadgone for a walk. After having breakfast, the Accused left forthe police station. Thus, it is clear that, to execute his planof killing wife and sons, the Accused had gone to the houseof PW-14 and as per his plan, he went to his own house at4.00 a.m. and killed Sangita, Siddhesh and Kalpesh andreturned to the house of PW-14. {71} CC 1-25.doc c.The Accused failed to bring on record any evidence to showthat he was far away at such a distance from the spot ofincident at the relevant time, so that it was impossible forhim to remain present at the spot of the incident at therelevant time. Even the distance between his house andhouse of PW-14 is not deliberately brought on record by theAccused. We are inclined to accept the submission of thelearned APP in this behalf that as per Google Map, distancebetween spot of incident and the house of PW-14 is 350meters and judicial notice of the same can be taken, in theinterest of justice. 72.In “Jagannath Laxman Pawar V/s State ofMaharashtra11”, this Court has held :“22.Their evidence thus does not substantiate the plea of alibi atall as raised by the Appellant. It needs to be stated that the plea ofalibi postulate the physical impossibilities of the presence of theAccused at the scene of offence by reason of his presence at someother place. Such a plea can succeed only if it is shown that theAccused was for far away at the relevant time that he could not bepresent at the place where the crime was committed. Such pleashould be capable of meaning that having been regard to the timeand place, where and when offence is committed, Accused could nothave been present. The burden to prove the plea of alibi lies on theAccused and he has to discharge the said burden strictly byproducing convincing and reliable evidence on record.”112016 ALL MR (Cri) 1168 {72} CC 1-25.doc 73.In the light of the aforesaid observations, there is nosubstance in the plea of alibi raised by the Accused. Thus, thefalse plea of alibi taken by the Accused can be held to be anadditional circumstance against him.74.FORENSIC EVIDENCE :a.PW-15 Investigating Officer forwarded the seized articles tothe forensic laboratory, vide Exhibit-16, which includedsquare stone having blood stains, wooden cricket bat withbroken handle, blood stained clothes of Sangita, Siddheshand Kaplesh, blood stained clothes of the Accused, bloodsamples of Sangita, Siddhesh and Kalpesh etc. b.PW-9, Police Head Constable Sunil Algat carried the articlesto the forensic laboratory. The report of the forensiclaboratory is at Exhibit-13. As per the CA report, stone,cricket bat without handle, broken handle of cricket bat andglass bengals found on the spot of the incident, werestained with blood. Handkerchief of the Accused was foundwith moderate number of blood stains. Blood stains werefound on the clothes of Sangita, Kalpesh and Siddhesh.Blood of blood group “A” was found on the handkerchief ofthe Accused, clothes of Sangita, Siddhesh and Kalpesh aswell as on the right sleeve of the shirt of the accused and {73} CC 1-25.doc on the lower portion of his pant. Blood group of Sangita,Siddhesh and the Accused is “A”. c.It is necessary to mention here that the Accused had noinjury on his person, when he was arrested, vide arrestPanchanama (Exhibit-107). Blood of blood group “A” foundon his clothes and handkerchief is a strong incriminatingcircumstance, which goes against the Accused. The CAreport (Exhibit-13) is also relevant incriminatingcircumstance against the Accused, which supports theprosecution case. 75.DELAY IN REGISTERING FIR:a.Learned Advocate for the Accused vehemently argued that,FIR (Exhibit-52) is belatedly registered and therefore, theprosecution case should be disbelieved. It has come in theevidence that, PW-9 received information about foul smellcoming from a house in Takia Colony. Station diary Entry (Exhibit-67) was taken and police proceeded towards the spot. It ispertinent to note here that, the spot was shown by the informant,Sandip Kokane (PW-1). It is recorded in the Spot Panchanamathat, information was received at 15.00 hours on 24th May, 2020about murder committed at the house of the Accused. SpotPanchanama was conducted between 15.00 and 16.30 hours. {74} CC 1-25.doc From the spot of the incident, Articles used in the commission ofthe crime i.e. wooden cricket bat with broken handle, handle ofcricket bat, water barrel in which dead body of Kalpesh wasfound, pursuant to the confession of the Accused and otherincriminating articles were seized. Immediately, thereafter,inquest Panchanamas (Exhibit-31, Exhibit-32 and Exhibit-33)were conducted on the three dead bodies, between 16.35 hoursand 18.15 hours. Record further reveals that, thereafter, on thebasis of information given by PW-1, FIR at Crime No. 150 of 2020for offence punishable under section 302 of the Indian PenalCode was registered at 23.35 hours and the investigation washanded over to Police Inspector, Patil (PW-15). While handingover the investigation, spot panchanama and inquestpanchanamas were also handed over to PW-15. b.It appears that though the informant (PW-1) approachedthe police station along with the Accused and disclosedcommission of offence of murder by the Accused, the Policefailed to register FIR and crime immediately. It seems that, policekept the Accused in the police station and accompanied theinformant to the spot of the incident and conducted spotpanchanama and inquest panchanamas.There appears somedelay on the part of the police authorities in registering the FIR. {75} CC 1-25.doc Fact remains that the defence has failed to cross-examinepolice station officer (PW-4) and investigating officer (PW-15) onthe point of delay in registering the FIR and crime. c.It is by now settled that merely because there are lapses onthe part of police to register the crime at the earliest, that byitself is not sufficient to give benefit to the Accused.d.In “Ravinder Kumar and Others V/s State ofPunjab12” it is held:13. The attack on the prosecution cases on the ground of delay inlodging FIR has almost bogged down as a stereotyped redundancy incriminal cases. It is a recurring feature in most of the criminal casesthat there would be some delay in furnishing the first information tothe police. It has to be remembered that law has not fixed any timefor lodging the FIR. Hence a delayed FIR is not illegal. Of course aprompt and immediate lodging of the FIR is the ideal as that wouldgive the prosecution a twin advantage. First is that it affordscommencement of the investigation without any time lapse. Second isthat it expels the opportunity for any possible concoction of a falseversion. Barring these two plus points for a promptly lodged FIR thedemerits of the delayed FIR cannot operate as fatal to anyprosecution case. It cannot be overlooked that even a promptlylodged FIR is not an unreserved guarantee for the genuineness of theversion incorporated therein.14. When there in criticism on the ground that FIR in a case wasdelayed the court has to look at the reason why there was such a12AIR 2001 SC 3579 {76} CC 1-25.doc delay. There can be a variety of genuine causes for FIR lodgment toget delayed…….”e.In “State of Karnataka V/s K. Yarappa Reddy”13 theApex Court has observed:“19.But can the above finding (that the station house diary is notgenuine) have any inevitable bearing on the other evidence in thiscase? If the other evidence, on scrutiny, is found credible andacceptable, should the Court be influenced by the machinationsdemonstrated by the investigating officer in conducting investigationor in preparing the records so unscrupulously? It can be a guidingprinciple that as investigation is not the solitary area for judicialscrutiny in a criminal trial, the conclusion of the court in the casecannot be allowed to depend solely on the probity of investigation. Itis well nigh settled that even if the investigation is illegal or evensuspicious the rest of the evidence must be scrutinized independentlyof the impact of it. Otherwise, the criminal trial will plummet to thelevel of the investigating officers ruling the roost. The court musthave predominance and pre-eminence in criminal trials over theaction taken by investigating officers. Criminal justice should not bemade a casualty for the wrongs committed by the investigatingofficers in the case. In other words, if the court is convinced that thetestimony of a witness to the occurrence is true the court is free to acton it albeit the investigating officer’s suspicious role in the case.” f.Applying aforesaid ratio to the facts of the present case,merely because there is some delay on the part of the police toregister the crime at the earliest, we are not inclined to givebenefit of the same to the Accused. The Accused has13(1999) 8 SCC 715 {77} CC 1-25.doc failed to show that due to the delayed registration of crime,serious prejudice is caused to him. The prosecution, by leadingcogent evidence, has proved that the Accused is the author ofthe crime. 76.CONDUCT OF THE ACCUSED:a.The Accused appears to have planned the murders. Hewent to the house of PW-14 in the evening of 23rd May,2020 along with elder son Mayuresh and slept there. At4.00 a.m. in the morning, he went to his house, killed hiswife and two sons and returned back to the house of PW-14. Thereafter, he went to the police station and met hisbrother, PW-1 Sandip, outside the police station. On asking,he confessed commission of the crime. PW-1 then took theAccused inside the police station and surrendered him. b.The plea of alibi raised by the Accused is found to be falseand not proved by him. Taking into consideration thedistance between the house of the Accused and the houseof PW-14 being 300 meters, it was easy for the Accused togo to his house, kill his wife and sons and return back tothe house of PW-14. c.While answering the questions put to him in his statementunder section 313 of the Criminal Procedure Code, the {78} CC 1-25.doc Accused has gone to the extent of denying his relationshipbetween him and his brother, PW-1 Sandip and that hisfamily consists of his mother, wife and four daughters, theAccused has answered the said question by saying “no”.The conduct of the Accused is an additional link in thechain of circumstances, proved by the prosecution showing hiscomplicity in the crime. 77.PRESUMPTION UNDER SECTION 106 OF THE EVIDENCE ACT:a.The incident in question has taken place during Covid-19time, when there were restrictions on the movement ofpeople. Admittedly, at the relevant time, the Accused wasstaying along with his family, which included his wifeSangita and sons Mayuresh, Siddhesh and Kalpesh. All thefamily members of the Accused were, therefore, in thecustody of the Accused at the time of the incident. It was,therefore, duty of the Accused to explain in whatcircumstances his wife Sangita and sons Siddhesh andKalpesh suffered homicidal deaths in the fateful night. TheAccused has failed to give any explanation in that behalf. b.Except giving unsubstantiated suggestion to PW-13 that hekilled Sangita, Siddhesh and Kalpesh, no explanation {79} CC 1-25.doc whatsoever is offered by the Accused about the homicidaldeaths of his wife and sons, who were in his custody. c.In this view of the matter, we hold that the Accused hasmiserably failed to discharge the burden under section 106of the Indian Evidence Act. This, therefore, needs to betaken as additional circumstance against the Accused. 78.On careful scrutiny of the material placed on record, we areof the considered view that prosecution has proved beyondreasonable doubt that :a.Accused was perturbed because of the illicit relationsof Sangita with PW-13 Vishal. b.Prior to one month of the incident, Sangita had leftcompany of the Accused and went to stay at thehouse of PW-13 along with Kalpesh. c.On 15th April, 2020, when PW-13 asked the reason ofher coming to his house, she told that the Accusedbeat her and had threatened to kill her. She stayed inhis house for 3 days.d.Accused filed Missing Complaint (Exhibit-71), whichwas registered at Missing Person Register No. (7 of2020) (Exhibit-72). He disclosed to police that {80} CC 1-25.doc Sangita, along with her son, was staying at the houseof PW-13.e.On 21st April, 2020, PW-10 Kailas Wable went to thehouse of PW-13 and brought PW-13, Sangita andKalpesh to Peth Beed Police Station and made inquirywith them. He recorded statement of Sangita(Exhibit-74). On the same day, Sangita and Kalpeshwent with the Accused. f.On 22nd May, 2020, Sangita came at Barshi Naka andcalled PW-13 on phone and told him that there wasdispute between her and Accused and the Accusedbeat her. g.During Covid-19 lock-down, there used to be constantquarrel between the Accused and Sangita. h.Accused used to call Sangita’s brother PW-8 Rahuland used to tell him that he was suspecting characterof Sangita and Sangita used to tell Rahul that theAccused had threatened her and she was havingapprehension that the Accused would kill her and herchildren. i.When PW-8 Rahul tried to give understanding to the {81} CC 1-25.doc Accused, he threatened him and also threatened tokill Sangita.j.Accused had also told PW-8 that Sangita had gone tothe house of another person. k.Sangita, in a phone call made few days prior to theincident to PW-11 Sanjay Jadhav, told that Accusedwas threatening to kill her and her children. l.Accused, along with elder son Mayuresh, went to thehouse of PW-14 in the evening of 23rd May, 2020.Accused woke up around 4.00 a.m. in the morningand went to his house and killed Sangita by hittingwooden bat and stone on her head. In similarmanner, he killed Siddhesh by hitting cricket bat onhis head and left them in a pool of blood.m.Accused then hit younger son Kalpesh with bat onhead, then tied his hands and drowned him in abarrel containing water.n.PW-5, neighbour of the Accused saw the Accused at4.30 a.m. on 24th May, 2020, when he woke up fortoilet. {82} CC 1-25.doc o.PW-6 saw the Accused at 5.15 a.m. on 24th May,2020, going outside his house. p.On 24th May, 2020 at about 6.00 a.m. PW-14 sawaccused coming from outside in frightened condition.When asked, the Accused disclosed that he had gonefor a walk. q.On 24th May, 2020, at about 11.00 a.m. PW-1 cameout of his house. Baliram Teke and Sachin PW-7 methim and asked him whereabouts of Santosh(Accused) and Sangita (deceased). He told them thatthe Accused had gone to police station. That time,door of the house of Accused was closed. PW-1,informant, Sachin and Baliram went to the house ofthe Accused and pushed the door. On being pushed,the door opened. They saw Siddhesh lying in injuredcondition and blood oozing from his head. BesidesSiddhesh, Sangita was found lying in pool of blood. r.They, therefore, came out of the house and PW-1went to Peth Beed Police Station. s.Outside the Police Station, PW-1 met the Accused. Heenquired about the incident and the Accused {83} CC 1-25.doc confessed to him that he killed his wife Sangita andtwo sons, Siddhesh and Kalpesh in the same morningat about 4.00 a.m. by hitting them with wooden batand stone and by drowning Kalpesh in barrel filledwith water. t.After hearing said confession, PW-1 took the accusedin the police station and handed him over in thecustody of police. He then informed the incident topolice, including the extra judicial confession madeby the Accused.u.In the meanwhile at 1.45 p.m., on receipt of phonecall about bad smell of dead body coming from thehouse of the Accused, PW-9 took station diary entry(Exhibit-67) and proceeded to the spot along withPolice Inspector Bharati, PSI Bankar, PHC Wadmareand other police constables.v.The spot of the incident was shown by PW-1 and SpotPanchanama (Exhibit-30) was conducted in thepresence of Pancha PW-2 Raju Wanjare at 14.50 hrs. w.As disclosed in the extra judicial confession, deadbody of Kalpesh was found in the barrel containing {84} CC 1-25.doc water, which was not noticed by the informant andPW-7, when they initially went to the house andopened door, they had only noticed dead bodies ofSiddhesh and Sangita lying in pool of blood. x.From the spot of the incident, cricket bat with brokenhandle having blood stains, its handle and squarestone having blood stains, plastic barrel in whichdead body of Kalpesh was found, blood spread on thepost of the incident, blood stained handkerchief ofthe Accused etc. were seized. y.Inquest Panchanamas on dead bodies of Siddesh(Exhibit-31), Sangita (Exhibit-32) and Kalpesh(Exhibit-33) were conducted on 24th May, 2020between 15.00 hrs and 18.15 hrs in presence of PW-3Rahul Korde.z.On the basis of information given by PW-1, FIR atCrime No. 150 of 2020 for the offence punishableunder section 302 of the Indian Penal Code wasregistered by the PSO, PW-4 at 23.35 hrs. aa.On the basis of first information report (Exhibit-52)lodged by PW-1, crime No.150 of 2020 for offence {85} CC 1-25.doc punishable under section 302 was registered at PethBeed Police Station on 24th May, 2020 at 23.35 hrsand the investigation was handed over to PoliceInspector Patil, PW-15. ab.Accused was arrested on 25th May, 2020 at 00.25 hrs,vide arrest Panchanama (Exhibit-107). Blood stainedclothes of the accused were seized on 25th May, 2020at 11.10 to 11.40 a.m. vide Panchanama (Exhibit-46).ac.PW-12 Dr. Dipali Gavhane conducted post mortem onthe dead body of Siddesh on 25th May, 2020 and gavereport (Exhibit-81) and opined that cause of death isdue to head injury. adPost mortem report of Sangita is at Exhibit-84 andcause of her death is stated to be ‘death due to headinjury’. ae PW-12 also conducted post mortem on the dead bodyof Kalpesh on the same day and gave report Exhibit-87 and opined that cause of death is due to drowningassociated with head injury. af.PW-15, Investigating Officer, seized clothes (Articles13 and 14) of deceased Sangita vide Panchanama {86} CC 1-25.doc Exhibit-43; PW-15 also seized clothes of Siddhesh(Articles – 15, 16 and 17) vide Panchanama (Exhibit-44). He seized clothes of Kalpesh (Articles 18 and 19)vide Panchanama (Exhibit-45). ag.Investigating Officer thereafter obtained CCTVfootage from the houses of Anand Mahesh Tiwari,Sharad Sarda and from New Diamond Confectionery,through PW-4 in the presence of Pancha PW-3. ah.Investigating Officer then forwarded CCTV footageand Articles seized during the course of investigationfrom the spot etc. to forensic laboratory, through PW-4 vide Exhibit-68. ai.CA report Exhibit-13 shows that blood stains of bloodgroup “A” were found on the shirt and lower part ofthe pant of the Accused. aj.As per Exhibits-14, 15 and 17, blood group of Sangita,Siddhesh and the Accused is “A”. ak.On 27th May, 2020, statement of PW-14 under section164 of the Criminal Procedure Code was recordedbefore the Magistrate. {87} CC 1-25.doc al.On 27th May, 2020 statement of PW-1 informantunder section 164 of the Criminal Procedure Codewas recorded before the Magistrate, which is in tunewith the FIR. am.Admission of the Accused about illicit relationsbetween Sangita and PW-13 in the statementrecorded under section 313 of the Criminal ProcedureCode. an.Due to the alleged illicit relations between Sangitaand PW-14, the Accused had strong motive to killSangita and her children. ao.Extra judicial confession finds support from thestatement made in the FIR as well as from the factthat, on making such confession, informant PW-1handed over custody of the accused to police at thetime of lodging of the first information report (Exhibit-52). ap.Medical record is in conformity with the firstinformation report (Exhibit-52) lodged by PW-1 andthus corroborates contents of the FIR. aq.No plausible explanation is offered by the Accused {88} CC 1-25.doc about death of his wife and two sons while they werein his custody. Therefore, the Accused has failed todischarge burden under section 106 of the EvidenceAct and this is an additional circumstance against theAccused. 79.In “Govardhan (supra) the Apex Court has observed:“20. As per Section 3 of the Indian Evidence Act, 1872, a fact can besaid to have been proved when, after considering the matters beforeit, the court either believes it to exist or considers its existence soprobable that a prudent man ought, under the circumstances of theparticular case, to act up on the supposition that it exists. The courtundertakes this exercise of examining whether the facts allegedincluding the particular criminal acts attributed to the accused areproved or not.21. It is also to be noted that the law does not contemplate stitchingthe pieces of evidence in a watertight manner, for the standard ofproof in a criminal case is not proof beyond all doubts but onlybeyond reasonable doubt. In other words, if a clear picture emergeson piecing together all evidence which indicates beyond reasonabledoubt of the role played by the accused in the perpetration of thecrime, the court holds the accused criminally liable and punishesthem under the provisions of the penal code, in contradistinction tothe requirement of proof based on the preponderance of probabilitiesas in case of civil proceedings.22. It will be relevant to discuss, at this juncture, what is meant by“reasonable doubt”. It means that such doubt must be free fromsuppositional speculation. It must not be the result of minute {89} CC 1-25.doc emotional detailing, and the doubt must be actual and substantialand not merely vague apprehension. A reasonable doubt is not animaginary, trivial or a merely possible doubt, but a fair doubt basedupon reason and common sense as observed in Ramakant Rai v.Madan Rai, (2003) 12 SCC 395 wherein it was observed as under :“24. Doubts would be called reasonable if they are free froma zest for abstract speculation. Law cannot afford anyfavourite other than the truth. To constitute reasonable doubt,it must be free from an overly emotional response. Doubtsmust be actual and substantial doubts as to the guilt of theaccused persons arising from the evidence, or from the lack ofit, as opposed to mere vague apprehensions. A reasonabledoubt is not an imaginary, trivial or a merely possible doubt;but a fair doubt based upon reason and common sense. Itmust grow out of the evidence in the case.”23. While applying this principle of proof beyond reasonable doubtthe Court has to undertake a candid consideration of all the evidencein a fair and reasonable manner as observed by this Court in State ofHaryana v. Bhagirath (1999) 5 SCC 96 as follows:“8. It is nearly impossible in any criminal trial to prove allthe elements with a scientific precision. A criminal court couldbe convinced of the guilt only beyond the range of areasonable doubt. Of course, the expression ‘reasonabledoubt’ is incapable of definition. Modern thinking is in favourof the view that proof beyond a reasonable doubt is the sameas proof which affords moral certainty to the Judge.9. Francis Wharton, a celebrated writer on criminal law inthe United States has quoted from judicial pronouncements inhis book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the12th Edn.) as follows:‘It is difficult to define the phrase “reasonable doubt”.However, in all criminal cases a careful explanation of theterm ought to be given. A definition often quoted or followed {90} CC 1-25.doc is that given by Chief Justice Shaw in the Webster case . Hesays:“It is not mere possible doubt, because everything relating tohuman affairs and depending upon moral evidence is open tosome possible or imaginary doubt. It is that state of the casewhich, after the entire comparison and consideration of allthe evidence, leaves the minds of the jurors in thatconsideration that they cannot say they feel an abidingconviction to a moral certainty of the truth of the charge.”’10. In the treatise The Law of Criminal Evidence authored byH.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.)thus:‘The doubt to be reasonable must be such a one as an honest,sensible and fair-minded man might, with reason, entertainconsistent with a conscientious desire to ascertain the truth.An honestly entertained doubt of guilt is a reasonable doubt.A vague conjecture or an inference of the possibility of theinnocence of the accused is not a reasonable doubt. Areasonable doubt is one which arises from a consideration ofall the evidence in a fair and reasonable way. There must be acandid consideration of all the evidence and if, after thiscandid consideration is had by the jurors, there remains in theminds a conviction of the guilt of the accused, then there is noroom for a reasonable doubt.’80.In “Ramakant Rai V/s Madan Rai14” it is held:“23. A person has, no doubt, a profound right not to be convicted ofan offence which is not established by the evidential standard ofproof beyond reasonable doubt. Though this standard is a higherstandard, there is, however, no absolute standard. What degree of14(2003) 12 SCC 395 {91} CC 1-25.doc probability amounts to “proof” is an exercise particular to eachcase.”81.On this point, Lord Denning, J. in “Miller v. Miller ofPensions”15 has observed:“That degree is well settled. It need not reach certainty, but it mustcarry a high degree of probability. Proof beyond reasonable doubtdoes not mean proof beyond the shadow of a doubt. The law wouldfail to protect the community if it admitted fanciful possibilities todeflect the court of justice If the evidence is so strong against a manas to leave only a remote possibility in his favour which can bedismissed with the sentence, “of course it is possible, but not in theleast probable” the case is proved beyond reasonable doubt, butnothing short of that will suffice. ”82.In “Govardhan” (supra), it is further held :“66. We must also keep in mind that in a trial, the assessment ofevidence cannot be made in a technical manner and the realities oflife must be kept in mind for arriving at the truth as observed by thisCourt in State of H.P. v. Lekh Raj (2000) 1 SCC 247 as follows; “10. The High Court appears to have adopted a technicalapproach in disposing of the appeal filed by the respondents.This Court in State of Punjab v. Jagir Singh [(1974) 3 SCC277 : 1973 SCC (Cri) 886] held: (SCC pp. 285-86, para 23)‘23. A criminal trial is not like a fairy tale wherein one is freeto give flight to one's imagination and fantasy. It concernsitself with the question as to whether the accused arraignedat the trial is guilty of the crime with which he is charged.Crime is an event in real life and is the product of interplay of15(1947) 2 ALL ER 372m 373 H {92} CC 1-25.doc different human emotions. In arriving at the conclusion aboutthe guilt of the accused charged with the commission of acrime, the court has to judge the evidence by the yardstick ofprobabilities, its intrinsic worth and the animus of witnesses.Every case in the final analysis would have to depend uponits own facts. Although the benefit of every reasonable doubtshould be given to the accused, the courts should not at thesame time reject evidence which is ex facie trustworthy ongrounds which are fanciful or in the nature of conjectures.’The criminal trial cannot be equated with a mock scene froma stunt film. The legal trial is conducted to ascertain the guiltor innocence of the accused arraigned. In arriving at aconclusion about the truth, the courts are required to adopt arational approach and judge the evidence by its intrinsicworth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not beallowed to divest the court of its responsibility of sifting andweighing the evidence to arrive at the conclusion regardingthe existence or otherwise of a particular circumstancekeeping in view the peculiar facts of each case, the socialposition of the victim and the accused, the larger interests ofthe society particularly the law and order problem anddegrading values of life inherent in the prevalent system. Therealities of life have to be kept in mind while appreciating theevidence for arriving at the truth. The courts are not obligedto make efforts either to give latitude to the prosecution orloosely construe the law in favour of the accused. Thetraditional dogmatic hyper technical approach has to bereplaced by a rational, realistic and genuine approach foradministering justice in a criminal trial. Criminaljurisprudence cannot be considered to be a utopian thought {93} CC 1-25.doc but have to be considered as part and parcel of the humancivilisation and the realities of life. The courts cannot ignorethe erosion in values of life which are a common feature ofthe present system. Such erosions cannot be given a bonus infavour of those who are guilty of polluting society andmankind.”83.Reference can also be made to the decision of the ApexCourt in “Sucha Singh V/s State of Punjab”16 wherein, theApex Court has reiterated the principle in the following words:“20.Exaggerated devotion to the rule of benefit of doubt must notnurture fanciful doubts or lingering suspicion and thereby destroysocial defence. Justice cannot be made sterile on the plea that it isbetter to let a hundred guilty escape than punish an innocent. Lettingthe guilty escape is not doing justice according to law. (SeeGurbachan Sing V Satpal Singh17). The prosecution is not required tomeet any and every hypothesis put forward by the accused..... Areasonable doubt is not an imaginary, trivial or merely possibledoubt, but a fair doubt based upon reason and common sense. It mustgrow out of the evidence in the case. If a case is proved perfectly, it isargued that it is artificial; if a case has some inevitable flawsbecause human beings are prone to err, it is argued that it is tooimperfect. One wonders whether in the meticulous hypersensitivity toeliminate a rare innocent from being punished, many guilty personsmust be allowed to escape. Proof beyond reasonable doubt is aguideline, not a fetish”.84.Keeping in mind the aforesaid observations and the golden16(2003) 7 SCC 64317(1990) 1 SCC 445 {94} CC 1-25.doc Rules in “Sharad Birdichand Sarda V/s State ofMaharashtra18” case, and applying them to the facts of thepresent case, we find that, circumstantial evidence against theaccused, taken cumulatively, forms a chain so complete thatthere is no escape from the conclusion that, within all humanprobability, the crime was committed by the accused and noneelse. Each of the circumstance established against the Accused isincriminating and all the circumstances cumulatively prove thecomplicity of the Accused. Circumstantial evidence relied uponby the prosecution lends assurance to the genuineness andvoluntary nature of the extra judicial confession. The entireevidence on record completes chain of events and establishescase of the prosecution beyond reasonable doubt. The FIRcorresponds the prosecution case. Medical evidence corroboratesprosecution case and thus corroborates contents of the FIR andthe confessional statement of the Accused.85.The chain of circumstances proved by the prosecution is sointerwoven to each other that it leads to no other conclusion thanguilt of the Accused. According to us, every other hypothesisexcept guilt of the Accused is ruled out in the present case. Weare, therefore, of the considered view that the convictionawarded by the Trial Court to the Accused, for the offence181984 AIR 1622 {95} CC 1-25.doc punishable under section 302 of the Indian Penal Code, warrantsno interference.86.Since we have held that accused is guilty of the offencepunishable under Section 302 of IPC, now the question to bedecided by us is as to whether the death penalty for the offenceunder Section 302 of IPC given by the Trial Court needs to beconfirmed or whether some other penalty to be imposed on theaccused.87.Learned advocate for the accused submitted that takinginto consideration report of the probation officer, Jail as well asreport from the Department of Psychiatry, Government MedicalCollege, Aurangabad, the death sentence awarded by the TrialCourt is harsh and excessive. According to him, this is not therarest of rare case wherein death sentence is required to beimposed.88.As against this, learned APP by relying on Psychologicalevaluation report of the Accused, strenuously submitted that, sixmembers’ Medical Board has opined that, there is less scope forreformation in the Accused. He submitted that, the Accusedsuspected character of his wife and he killed her because of thesaid suspicion. However, two minor innocent sons are also doneto death by the Accused. Kalpesh was drowned in water after {96} CC 1-25.doc assaulting him on head and after tying his hands. Murders of 3innocent persons are committed in most cruel and brutal manner.Accused assaulted vital parts of the bodies of all the threevictims i.e. head. Therefore, the Trial Court is justified in imposingdeath penalty on the accused.89.The law as to in what circumstances death penalty shouldbe awarded has been succinctly laid down by the ConstitutionBenches of the Apex Court in “Jagmohan Singh vs. State ofUttar Pradesh”19, “Bachan Singh vs. State of Punjab20”,and the bench of three Hon’ble Judges of the Apex Court in“Macchi Singh and Others vs. State of Punjab21”. The ApexCourt in “Shabnam vs. State of Uttar Pradesh22”, has culledout aggravating circumstances and mitigating circumstances asfollows;"25. The guidelines and principles for classification of circumstancesand determination of the culpability indicia as laid down by thisCourt in the aforesaid cases have been succinctly summarized inRamnaresh v. State of Chhattisgarh, MANU/SC/0163/2012 : (2012) 4SCC 257 : (2012) 2 SCC (Cri) 382. The said are extracted as under :(SCC pp. 285-86, paras 76-77):"Aggravating circumstances”:(1) The offences relating to the commission of heinous191973 (1) SCC 20201980 (2) SCC 684211983 (3) SCC 470222015 (6) SCC 632 {97} CC 1-25.doc crimes like murder, rape, armed dacoity, kidnappingetc. by the accused with a prior record of conviction forcapital felony or offences committed by the personhaving a substantial history of serious assaults andcriminal convictions.(2) The offence was committed while the offender wasengaged in the commission of another serious offence(3) The offence was committed with the intention to createa fear psychosis in the public at large and wascommitted in a public place by a weapon or devicewhich clearly could be hazardous to the life of morethan one person.(4) The offence of murder was committed for ransom or likeoffences to receive money or monetary benefits.(5) Hired killings.(6) The offence was committed outrageously for want onlywhile involving inhumane treatment and torture to thevictim.(7) The offence was committed by a person while in lawfulcustody.(8) The murder or the offence was committed to prevent aperson lawfully carrying out his duty like arrest orcustody in a place of lawful confinement of himself oranother. For instance, murder is of a person who hadacted in lawful discharge of his duty under Section 43of the Code of Criminal Procedure.(9) When the crime is enormous in proportion like makingan attempt of murder of the entire family or members ofa particular community.(10) When the victim is innocent, helpless or a person reliesupon the trust of relationship and social norms, like achild, helpless woman, a daughter or a niece staying {98} CC 1-25.doc with a father/uncle and is inflicted with the crime bysuch a trusted person.(11) When murder is committed for a motive which evidencestotal depravity and meanness.(12) When there is a cold-blooded murder withoutprovocation.(13) The crime is committed so brutally that it pricks orshocks not only the judicial conscience but even theconscience of the society.“Mitigating circumstances”:(1) The manner and circumstances in and under which theoffence was committed, for example, extreme mental oremotional disturbance or extreme provocation incontradistinction to all these situations in normalcourse.(2) The age of the accused is a relevant consideration butnot a determinative factor by itself.(3) The chances of the accused of not indulging incommission of the crime again and the probability of theaccused being reformed and rehabilitated.(4) The condition of the accused shows that he was mentallydefective and the defect impaired his capacity toappreciate the circumstances of his criminal conduct.(5) The circumstance which, in normal course of life, wouldrender such a behaviour possible and could have theeffect of giving rise to mental imbalance in that givensituation like persistent harassment or, in fact, leading tosuch a peak of human behaviour that, in the facts andcircumstances of the case, the accused believed that hewas morally justified in committing the offence.(6) Where the court upon proper appreciation of evidence is {99} CC 1-25.doc of the view that the crime was not committed in apreordained manner and that the death resulted in thecourse of commission of another crime and that therewas a possibility of it being construed as consequencesto the commission of the primary crime.(7) Where it is absolutely unsafe to rely upon the testimony ofa sole eyewitness though prosecution has brought homethe guilt of the accused.77 . While determining the questions relatable to sentencing policy,the court has to follow certain principles and those principles are theloadstar besides the above considerations in imposition or otherwiseof the death sentence.“Principles”:(1) The court has to apply the test to determine, if it was the'rarest of rare' case for imposition of a death sentence.(2) In the opinion of the court, imposition of any otherpunishment i.e. life imprisonment would be completelyinadequate and would not meet the ends of justice.(3) Life imprisonment is the rule and death sentence is anexception.(4) The option to impose sentence of imprisonment for lifecannot be cautiously exercised having regard to thenature and circumstances of the crime and all relevantcircumstances.(5) The method (planned or otherwise) and the manner(extent of brutality and inhumanity, etc.) in which thecrime was committed and the circumstances leading tocommission of such heinous crime."90.In the aforesaid rulings the Apex Court has laid downvarious aggravating circumstances and mitigating circumstances. {100} CC 1-25.doc The Apex Court has laid down that death sentence should beawarded only in rarest of the rare case. In Indian CriminalJurisprudence awarding death penalty is an exception and lifesentence is a rule. It is further laid down that death sentencemust be imposed only when life imprisonment appears to be analtogether inadequate punishment having regard to the relevantcircumstances of the crime.91.Keeping in mind aforesaid guiding principles we will firstconsider the aggravating circumstances as culled out by theApex Court in the case of Shabnam (supra).Aggravating Circumstances:(1)There is no record that the accused has committedoffences relating to commission of heinous crimes likemurder, rape, armed dacoity, kidnapping etc. There isalso no prior record of his conviction. Therefore,aggravating circumstance no. 1 would not be availablein the present case.(2)There is no material on record to show that the presentoffence was committed by the accused while he wasengaged in commission of another serious offence.Thus, aggravating circumstance no. 2 would not beavailable in the present case.(3)There is no evidence that offence was committed withan intention to create a fear psychosis in the public at {101} CC 1-25.doc large and was committed in a public place by a weaponor device which clearly could be hazardous to the life ofmore than one person. As such aggravatingcircumstance no. 3 is also not available in the presentcase.(4)Offence of murder was not committed for ransom orlike offences to receive money or monetary benefits.Thus, aggravating circumstance no. 4 would not beavailable in the present case.(5)Present case is not a case of hired killing and as suchaggravating circumstance no. 5 would also not beavailable in the present case.(6)Material on record does not indicate that offence wascommitted outrageously for want only while involvinginhumane and torture to victim. Therefore, aggravatingcircumstance no. 6 would not be available in thepresent case.(7)Material on record indicates that offence is committedby the accused while he was having lawful custody ofSangita, Siddhesh and Kalpesh. As such aggravatingcircumstance no. 7 would be fully available in thepresent case.(8)This is not a case where murder or the offence iscommitted to prevent a person lawfully carrying out hisduty like arrest or custody. Therefore aggravatingcircumstance no. 8 would also not be available in thepresent case. {102} CC 1-25.doc (9)Aggravating circumstance no. 9 is also not availableinasmuch as though accused has committed murder ofhis wife and two sons this cannot be prompted to be anattempt to murder entire family or members ofparticular community.(10) In the present case prosecution has proved that victimSangita and minor sons Siddhesh and Kalpesh wereinnocent, helpless and they relied upon trust ofrelationship with accused and they are inflicted withthe crime by the accused who was husband and father.Therefore, aggravating circumstance no. 10 would beavailable in the present case.(11) Material on record indicates that illicit relations of wifeSangita with PW13 drove accused to commit themurder. Therefore it cannot be conclusively said thatmurders were committed for a motive which evidencestotal depravity and meanness. As such aggravatingcircumstance no. 11 is not available in the presentcase.(12) Accused has committed murder of his helpless wifeand two minor sons in a cold blooded manner anddrowned Kalpesh after tying his hands in a barrelcontaining water. But the element of provocation ispresent in this case. As such aggravating circumstanceno. 12 is partly available in the present case.(13) Material on record indicates that accused hascommitted crime in a brutal manner which pricked orshocked not only the judicial conscience but even the {103} CC 1-25.doc conscience of the society. As such aggravatingcircumstance no. 13 is also fully available in thepresent case.92.Let us now examine that what are the mitigatingcircumstances in the present case.Mitigating Circumstances:(1)Material on record indicates that the offence wascommitted by the accused in extreme mental oremotional disturbance or extreme provocation. As perthe prosecution illicit relations of wife Sangita withPW13 led the accused to commit the murders. As suchsaid circumstance is available in the present case.(2)At the time of commission of offence accused was 42years old. This circumstance, therefore, can be taken infavour of the Accused. (3)There is no material on record to show that there arechances of accused indulging in commission of thecrime again.From the report of accused received from theprison authority, it can be seen that after he wasadmitted in the prison, he was made aware of thediscipline and prison rules and his counseling wasdone. He is placed in the high security section of theprison and he is regularly taking his food and he is {104} CC 1-25.doc observing and following rules. He is of quiet nature andhe follows daily instructions given by officers andemployees of prison. He gives proper and satisfactoryanswers to the questions asked to him. He maintainscleanliness. His behavior in the prison is satisfactory. In the psychological evaluation report submittedby board of six doctors including Dean, GovernmentMedical College, Head of professor and Head ofPsychiatry, Assistant Professors and expert doctors inclinical Psychology and medical superintendent, it isstated that there is no evidence of malingering. He isnot pretending to be mentally ill. There is no evidenceof psychopathology. The Board in answer to question“Is there capability in examinee to be reformed?” hasanswered, “Though, examinee has admitted to killinghis wife, with wooden bat, while she was asleep, inearly hours of morning, he is persistent with denialabout killing two children. He also mentioned about hisinability to forgive himself about what happened. Toovercome the guilt, he is engaging in jaapa and pujarituals. He does have an aging mother, to which, heintends to care for. He expressed concern about theson’s education. In view of limited self acceptance, in {105} CC 1-25.doc spite of there being family reasons to live, there is lessscope for reformation in the examinee.”Considering the above answer we do not agreewith the opinion expressed by Medical Board that thereis less scope for reformation in the accused. Our view isbased on prison report as well as the statements madein the answer given by Medical Board. In the light of the above, we hold that mitigatingcircumstance No. 3 would be available in the presentcase. (4)There is no material on record that accused wasmentally defective and the defect impaired his capacityto appreciate the circumstance of his criminal conduct.As such mitigating circumstance no. 4 would not beavailable.(5)The circumstance of illicit relations of Sangita withPW13 has led to commission of murders. This in ourview had been the effect of giving rise to mentalimbalance in that given situation. In the facts andcircumstances of the case, the accused believed thathe was morally justified in committing murder of hiswife. As such this circumstance would be available inthe present case.(6)This is not a case based upon testimony of sole eye {106} CC 1-25.doc witness. The prosecution on the basis of circumstanceswhich are proved beyond reasonable doubt has fullyestablished the case that accused has committed thecrime. Therefore, this circumstance would not beavailable in the present case.93.In the light of the aforesaid discussion, we find that, in thepresent case, three aggravating circumstances i.e. aggravatingcircumstances No. 7, 10, 13 are fully available and aggravatingcircumstance No. 12 is partly available against the Accused.Whereas, mitigating circumstances No.1, 2, 3 and 5 are fullyavailable.94.Infidelity of wife has provoked accused to commit hermurder. Possibility cannot be ruled out that due to infidelity ofwife, accused might be under impression that Siddhesh andKalpesh were not his sons. In the fit of anger, therefore, heappears to have killed his two sons. Fact remains that accusedhas not used any dangerous weapon, but has used cricket batand stone to inflict blows on the head of deceased.In the spot panchnama (Exhibit-30), a noose of cotton ropewas found tied to the roof. It appears that the accused intendedto commit suicide after committing the murders. However, hecould not muster the courage to do so and he went to policestation and outside the police station, he confessed to his brother {107} CC 1-25.doc PW-1 that he has committed murders of his wife and sons. Weare of the view that this factor needs to be taken intoconsideration as one of the mitigating circumstance in favour ofthe accused. 95.After assessing the aggravating and mitigatingcircumstances, as enumerated hereinabove and keeping in mindthe principles laid down in “Shabnam” (supra), that lifeimprisonment is rule and death sentence is an exception,coupled with the fact that infidelity of his wife has led theAccused to commit the murders and the Accused intended tocommit suicide after committing the murders, we are of theconsidered view that this case does not fall within the fourcorners of the principles of rarest of rare case in which deathpenalty should be awarded.However, taking into consideration the brutal manner inwhich the Accused has killed his wife and two innocent sons,particularly Kalpesh, we are of the view that sentence ofimprisonment of life would be grossly inadequate. 96. The prosecution has failed to bring on record anything toshow that the Accused is continuous threat to the society andthat he is beyond reform and rehabilitation, which is required tobe proved by the prosecution as held by the Apex Court in the {108} CC 1-25.doc case of “Rajesh Kumar V/s State through Government ofNCT of Delhi.”2397.While deciding the quantum of punishment, we are guidedby the decision of the Apex Court in “Swamy Shraddananda @Murli Manohar Mishra V/s State of Karnataka24” , wherein itis held:"92. The matter may be looked at from a slightly different angle. Theissue of sentencing has two aspects. A sentence may be excessive andunduly harsh or it may be highly disproportionately inadequate.When an appellant comes to this court carrying a death sentenceawarded by the trial court and confirmed by the High Court, thisCourt may find, as in the present appeal, that the case just falls shortof the rarest of the rare category and may feel somewhat reluctant inendorsing the death sentence. But at the same time, having regard tothe nature of the crime, the Court may strongly feel that a sentence oflife imprisonment that subject to remission normally works out to aterm of 14 years would be grossly disproportionate and inadequate.What then the Court should do? If the Court's option is limited onlyto two punishments, one a sentence of imprisonment, for all intentsand purposes, of not more than 14 years and the other death, thecourt may feel tempted and find itself nudged into endorsing thedeath penalty. Such a course would indeed be disastrous. A far morejust, reasonable and proper course would be to expand the optionsand to take over what, as a matter of fact, lawfully belongs to thecourt, i.e., the vast hiatus between 14 years' imprisonment and death.It needs to be emphasized that the Court would take recourse to theexpanded option primarily because in the facts of the case, the23(2011) 3 SCC 70624(2008) 13 SCC 767 {109} CC 1-25.doc sentence of 14 years imprisonment would amount to no punishmentat all.93. Further, the formalisation of a special category of sentence,though for an extremely few number of cases, shall have the greatadvantage of having the death penalty on the statute book but toactually use it as little as possible, really in the rarest of the rarecases. This would only be a reassertion of the Constitution Benchdecision in Bachan Singh (supra) besides being in accord with themodern trends in penology.94. In light of the discussions made above we are clearly of the viewthat there is a good and strong basis for the Court to substitute adeath sentence by life imprisonment or by a term in excess offourteen years and further to direct that the convict must not bereleased from the prison for the rest of his life or for the actual termas specified in the order, as the case may be."98.We are inclined to follow the aforesaid middle path as laiddown by the Apex Court in “Swamy Shraddananada” (supra).99.Taking into consideration circumstances of the case, in ourview, it will be in the interest of justice to commute the deathsentence in the sentence of life imprisonment with furtherdirection that the Accused must serve in jail for a minimumperiod of 30 years without remission, before his case can beconsidered for premature release.100.Criminal Appeal is therefore, partly allowed. Deathsentence awarded to the Accused by the learned Sessions Court {110} CC 1-25.doc is commuted to the sentence of life imprisonment. However, wedirect that the Accused Santosh s/o Jaydatta Kokane must servein jail for minimum period of 30 years, without remission beforeconsideration of his case for premature release.101.The Reference stands disposed of in the aforesaid terms. 102.The Reference and the Criminal Appeal are accordinglydisposed of. [ MANJUSHA DESHPANDE ] [ NITIN B. SURYAWANSHI ]JUDGEJUDGE drp/CC 1-25.doc