Manu @ Mohinder Madhuresh v. The State of Maharashtra

11. PW-19/Investigating officer was attached to the Chaturshringi Police Station since the year 2008 as a Senior Police Inspector. In his deposition, he has stated that on 21 October 2008, C.R. No. 493 of 2008 was handed over to him for investigation. He deposed that PW-14 Madhusudan (API) had received information of the crime. His testimony is that being in-charge of the investigation, he had earlier given instructions to PW-14 to visit the spot. Accordingly, PW-14 had been to the spot, as also recorded the complaint as registered by PW-3 Nimisha. The PW-19/IO has also stated that PW-14 had also drawn the spot panchnama and sent the body to the hospital for performing autopsy. The PW-19/IO deposed that the PW-14 had drawn an inquest panchnama and seized the clothes of the deceased. The IO deposed that from the investigation, it was revealed that it was the appellant/accused who had committed the crime and hence, he issued directions to PSI Sayyed for searching the accused, as also to collect ‘call details’ of the accused and the tower location of the mobile number of the accused. The IO deposed that he has also sought help from the Cyber Branch. The PW-19/IO stated that PSI Sayyed visited the house of the accused situated at Nisarg City and in the search of his house, he recovered the clothes of the accused, which were seized. PW-19/IO also deposed that from the tower location, presence of the accused was traced to Pune Station area, hence, PSI Sayyed visited the said area and found the parked motorcycle of the accused, which came to be seized by PSI Sayyed.

12. The PW-19/IO deposed that during his investigation, he recorded the statements of 14 witnesses. He has stated that on the next day of the incident i.e. on 22 October 2008 information was received from the Habib Ganj Police Station, Bhopal that the accused was arrested. Accordingly, the PW-19/IO stated that he sent a team headed by PSI Patil to Bhopal by a written order, which was identified by him to bear his signature (Exhibit 54). The PW-19/IO further deposed that PSI Patil brought the accused to Pune. PSI Patil also produced the entries made in the record of the Habib Ganj Police Station, Bhopal (Exhibit 56). Thereafter, when brought to Pune, the accused was arrested and produced before the Court of learned Judicial Magistrate First Class, and his Police Custody Remand (PCR) was obtained. PW-19 deposed that on 24 October 2008 along with his covering letter, he forwarded the seized articles, property and the samples (Exhibit 66) for chemical analysis [C.A.] which was identified by him to be true and correct. He further deposed that on 27 October 2008, blood samples, hair, nail clippings were sent for chemical analysis under his letter (Exhibit 67), which he identified to bear his signature. He deposed that C.A. report was obtained and enclosed along with the charge-sheet. The PW-19/IO further deposed that on 24 October 2008 on arrest of the accused, he was sent for medical examination along with the requisition letter signed by him (Exhibit-68) which he identified, to be bearing his signature, as also its contents to be true and correct. He further deposed that prior thereto i.e. on 22 October 2008 he had addressed a letter (Exhibit-69) requesting the Assistant Commissioner of Police (ACP), Pune to call for the ‘Call Detail Record’ (CDR) reports pertaining to the mobile number of the accused, as also of the deceased. He has identified the office copy of the said letter shown to him bearing his signature to state that the contents of the said letter were true and correct. The PW-19/IO further deposed that he has also received a copy of the letter sent by the ACP Shri. Karade addressed to the mobile company calling for the CDR report (Exhibit-70), which was also identified by him in his deposition. He has further deposed that the CDR reports were received by the ACP’s office and the same were sent to him by the ACP’s office which were enclosed with the charge-sheet. He deposed that after completion of investigation, he has submitted the charge-sheet against the accused.

13. The next witness is PW-18 Rakesh Mohan Shukla, Police Inspector, who at the relevant time was attached to Habibaganj Police Station, Bhopal, who deposed that on 22 October 2008 he was attached to the said police station as a Police Inspector. He deposed that on that day, the father of the accused came to the police station along with the accused. He deposed that prior to this, he was informed by PW-19/IO Suryawanshi attached to Chaturshringi Police Station about the murder of the deceased Khushbu; and that an offence was registered against the accused. He has deposed that PW-19 also informed him that the accused, may have come to meet his father at Bhopal and accordingly, PW-18 made the father of the accused aware about such incident. PW-18 has stated that he arrested the accused on 22 October 2008 by recording an entry of arrest in General Diary (Exhibit 56/1) as identified by him, to be correct and to be in his own handwriting. The arrest panchnama dated 22 October 2008 was also shown to him, which he has identified to be correct bearing his signature and bearing the signatures of two panchas. PW-18 also deposed that the arrest of the accused was entered by him in the case diary which was identified by him to be bearing his signature and the contents being true and correct. He further deposed that a request application for transit remand of the accused was made by him under his signature before the learned Judicial Magistrate at Bhopal, the contents of which were deposed to be true and correct and bearing his signature. He further deposed that as per the order passed by the Chief Judicial Magistrate, Bhopal, his colleague Mr. Hemant Barve, PSI, brought the accused before the Judicial Magistrate, First Class, Pune. PW-18 identified the accused who was present in the Court at the time of his deposition. PW-18 further deposed that the accused was not medically examined by the Government Hospital during his custody with PW-18.

14. The police officer attached to Chaturshringi Police Station, Pune was PW-17 PSI Udaysing Shamrao Patil. In his deposition, he stated that he was posted at Chaturshringi Police Station during the period from 2006 to 2010. He deposed that PW-19/IO Sheshrao Suryawanshi was in-charge of the said police station who by his order dated 22 October 2008 directed PW-17 to go to Bhopal and take custody of the accused from Habib Ganj Police Station, Bhopal. PW-17 has identified the order dated 22 October 2008 issued by PW-19 (Exhibit-54). He also identified the letter addressed by PW-19 to the Station Officer of Bhopal Police Station (Exhibit-55). He has deposed that the police station officer, Bhopal handed over the custody of the accused to him along with copy of order sheet, extract of station diary, case diary, arrest form of the accused, transit custody order/remand report. He identified these documents [Exhibit-56/1 to 56/4] to state that all these documents were bearing the signatures of Shri R. M. Shukla, Station Officer of Habibganj Police Station, Bhopal. PW-17 further deposed that he produced the accused before PW-19 on 24 October

2008. He also identified the accused who was produced before the Court.

15. Having noted the evidence as borne out from the deposition of the police officials connected with the investigation, we now refer to the evidence of witnesses who are the friends of the deceased as also of the accused, who are PW-3 Nimisha (complainant), PW-1 Deepak Agnihotri, PW-4 Prashant Ravindranath Shrivastav, PW-5 Archana Tirthshankar Yadav, PW-6 Abhishek Rakeshkumar Chancholiya, PW-

16. PW-3 Nimisha, age 24 years, was a resident of Indore, M.P., who at the relevant time was serving at Pune, she deposed that she was in Pune for completing her MBA from 2007 to 2009. She deposed that her native place was Bhopal. She deposed that she knew deceased ‘Khushbu Dinesh Mishra’ from Bhopal, as deceased Khushbu was her family friend. She deposed that in the year 2008, she was residing at Aditya Park Society, Balewadi, Pune. That she was residing along with her friend Nehal on rent, and as the deceased Khushbu had recently come to Pune, she was also residing with them. She deposed that as such, there was no agreement of the deceased with owner as tenant. She further deposed that as the deceased came to Pune for service at Capgemini and as she was alone, she was residing with them. She further deposed that she knew accused Manu from Bhopal and had met him at Pune on 2-3 occasions. She further deposed that on one of the days, the accused suddenly came to their house and at that time, there was a dispute between deceased Khushbu and the accused. She deposed that once when deceased Khushbu was not at home, as she had gone to Shirdi, the accused asked PW-3 to give the deceased an understanding. PW-3 has further deposed that the accused and deceased Khushbu were good friends and had a love affair, however, subsequently there were disputes between them. She further deposed that she came to know about their disputes as whenever the deceased received phone call from the accused, she used to cry and she used to talk in anger. She further deposed that at the time of incident on 20 October 2008, the other friend Nehal residing with them had gone to Bhopal as she was having holidays, hence, PW-3 was staying with deceased Khushbu. PW-3 has further deposed that on 18 October 2008 (Saturday) evening, she went to her maternal uncle’s house at Pimpri, Pune, when deceased Khushbu was alone at home. She has further deposed that there was a regular communication between herself and deceased Khushbu during the said period. She further deposed that on 19 October 2008, she asked deceased Khushbu whether she should return home, when deceased Khushbu told her that her friend Archana would give her company and therefore, she did not return home. She deposed that on 20 October 2008 (date of the incident) she went with her cousins Abhishek, Vibha and Prashant for dinner at Fountain Hotel at about 9.30 to 10.00 p.m. and after the dinner, Abhishek and Vibha went to their house and her brother Prashant dropped her at home at Aditya Park Society. She deposed that Prashant was with her when she came to her house. She deposed that she rang the bell and knocked the doors, but there was no response from inside, hence, she opened the door with her keys. She further deposed that on entering the house, she saw that there were blood spots on wall, mattresses and floor and the bed-sheet was also smeared with blood. She also deposed to have noticed one knife lying on the floor and bloodstains in the lobby towards bedroom were indicating that somebody had pulled the body. She deposed that thereafter she went to the bedroom and found that body was covered with blanket. She has further deposed that she received a phone call from the watchman and she came out to attend the said call when she was told by watchman that one boy Deepak (PW-1) had come to her house and was asking for deceased Khushbu. She further deposed that when she saw the body covered under blanket, her half face was visible and she recognized her to be deceased Khushbu. She deposed that thereafter she locked the door and went out with Prashant and told about the incident to the watchman. She deposed that thereafter the watchman called the police. The police enquired from her about the said incident and also recorded her statement. She deposed that she signed the said statement, and that she narrated the incident in Hindi. She also deposed that she read her complaint before signing it. She identified her signature and deposed the contents to be true and correct. She deposed that police recorded her complaint on the spot and thereafter they typed it in the police station and obtained her signature. She identified the accused who was present in the Court at the time of her deposition.

17. PW-1 Deepak Rakeshchandra Agnihotri, age 24 years, in his deposition, has stated that he was residing at Pune since about 2 and half years, as he had got a job in Capgemini Technologies Services, Nigdi, Pune as a Software Engineer. He deposed that he was from Bhopal and that he knew the accused and deceased Khushbu. He deposed that at the time of his selection in the year 2007, deceased Khushbu and the accused were with him, when he came to Pune by train to join the job, when the accused and 20 to 25 other persons were with him. He further deposed that from the year 2008, he was knowing the accused and deceased Khushbu and he got acquainted with the accused in train. Further PW-1 deposed that the accused was residing at Kalewadi and that he was residing at Sus-Road and deceased Khushbu was residing at Baner. He deposed that they together joined the same company, and that they were from the same batch. He deposed that he came to know about deceased Khushbu and the accused during their training. He deposed that they were friends, therefore, they used to chitchat at which point of time, the accused told him that deceased Khushbu and the accused were good friends and they were having love affair, however, since last year, there were differences between the accused and deceased Khushbu and therefore, there was no talk between them. He further deposed that the accused tried to talk with deceased Khushbu, but she always avoided him and that as there were differences between the accused and deceased Khushbu and as the accused insisted her to talk with him, in this regard, deceased Khushbu had given a written complaint against the accused to the company-Capgemini. PW-1 has further deposed that deceased Khushbu was having friendship with one Mr. Manish Singh, one of the colleagues and hence, the accused was annoyed and the deceased had lodged complaint against the accused and therefore, the accused was angry with deceased Khushbu. He further deposed that as the accused was angry with deceased Khushbu, the accused had told him one week before the incident that he would cut Khushbu into pieces and he will take revenge as deceased Khushbu had lodged complaint against him. He has further deposed that he tried to give the accused understanding as also he was under the impression that the accused was saying so as he was annoyed with her and therefore, he did not take the accused seriously. PW-1 has further deposed that as deceased Khushbu had lodged complaint against the accused, the accused was very much disturbed and annoyed with her. PW-1 has further deposed that on 20 October 2008 (date of the incident) at about 12.00 noon, the accused came to his office and asked him to call deceased Khushbu as he wanted to talk with her. He has deposed that thereafter he went to deceased Khushbu and told her that the accused wanted to talk with her. He has deposed that thereafter both talked with each other for one and half hour. PW-1 has deposed that after which the deceased Khushbu told him that the accused was insisting her to keep relations with him and she was not ready to revise the relations. He has further deposed that the deceased Khushbu told him that she was having gmail ID of accused and she used to read the chats of the accused on his g-mail with his friends and therefore, she was annoyed with the accused and hence, there were differences between them. PW-1 deposed that the accused was not ready to listen anything. He has further deposed that thereafter on the day of the incident (20 October 2008), deceased Khushbu left the office at about 05.30 p.m. and that he was in office as he had some work. He further deposed that thereafter he had left the office at 07.30 p.m. He has further deposed that when he was in the bus at about

07.45 p.m., deceased Khushbu called him on his mobile when she told him that the accused was trying to talk with her on mobile and that she did not want to talk with him. PW-1 has further deposed that before that at about 07.30 p.m., the accused had also called PW-1 on his mobile phone, when the accused asked him whether he had started for home. He has further deposed that at about 08.15 p.m. when he was in the bus, he was trying to call deceased Khushbu however, she was not answering and as he was in the bus, there were disturbances and the calls were getting cut. He has deposed that he was trying to contact her on her mobile again and again for the reason that she had earlier informed him about the accused. He has further deposed that after reaching home, he again tried to call deceased Khushbu, but her phone was not reachable. PW-1 has further deposed that he also called the accused and asked him about the mobile of deceased Khushbu and as to whether it was switched off, when he was told by the accused that as there was quarrel between him and deceased Khushbu, there was a possibility that she had switched off the mobile. He has further deposed that he was worried about Khushbu and felt that the accused and he should go to her as she might be depressed and would commit suicide, hence, they should go to convince her. He has further deposed that he was not knowing the exact address of deceased Khushbu and the accused was not ready to come with him, therefore, he took the address of deceased Khushbu from her friend PW-5 Archana Yadav. PW-1 has further deposed that he went to the residence of deceased Khushbu i.e. Aditya Park Society by auto-rickshaw at about 10.00 to 10.30 p.m. and asked about her with the watchman, when he was told that deceased Khushbu was not residing in the said flat. He has deposed that thereafter he gave the watchman her details when he was told by the watchman that three girls are residing in one flat and the watchman had showed him the said flat. PW-1 deposed that he knocked the door of the flat, but nobody opened it and hence, he continued to ring the door bell when the watchman came, stating that he was disturbing the neighbours by ringing the door bell and thereafter he was required to leave the premises. PW-1 has further deposed that after this at about 11.00 p.m., he again called the accused and told him that deceased Khushbu was not responding and was not opening the door and asked the accused to come with him. He has deposed that at that time, the accused was not giving him any response and when he insisted the accused, the accused told him that he will come there within 15 minutes. He has deposed that he thereafter waited for about half an hour and again called the accused, but his phone was switched off. Thereafter he left for his house and slept. PW-1 further deposed that at about 03.00 a.m. he received a call from Chaturshringi Police Station and he was called at the said police station. He reached the police station at about 06.00 to 07.00 a.m. with his friend Swapnil and others, when the police asked him about the address of the accused. He has deposed that he was not knowing the address of the accused, but his friend Swapnil was aware about it, hence, the police asked him and his friend to accompany them to show the house of the accused. PW-1 has deposed that when they were going to the house of the accused, police told him in the car that there was murder of Khushbu and in such context, had asked to show the house of the accused. He has further deposed that when they reached the flat of the accused, he was not present in the flat, however, the friends of the accused were present. He has deposed that police started taking search of the house of the accused and seized bloodstained jeans of the accused which were on the rope. He has deposed that the police were doing their work and as he was worried, he sat at one side. He has further deposed that when they came back, police took the body of deceased Khushbu to Aundh General Hospital, Pune. He has deposed that his statement was recorded by police on 21 October 2008. He identified the accused who was present in the Court at the time of his deposition.

18. PW-4 Prashant Ravindranath Shrivastav, aged about 24 years is a student. In his deposition, PW-4 has stated that he was residing at Pune since July 2005, as he was studying in the Symbiosis College, pursuing the LLB course. He has deposed that he knew deceased Khushbu Mishra as she was the friend of PW-3 Nimisha, who was his cousin. He further deposed that he knew accused from Bhopal as also he used to go to the accused. He further deposed that the accused and deceased Khushbu were friends and therefore, he knew the accused and that deceased Khushbu was residing with PW-3 and one Nehal at Aditya Park Society. He further deposed that he was not knowing the address of the accused. He deposed that deceased Khushbu was a Software Engineer and was serving in Capgemini where the accused was also working. PW-4 Prashant has further deposed that on 20 October 2008 he received a call from PW-3 Nimisha that all persons had gone out of station for vacation when she asked him to join her for dinner. He deposed that he reached at the house of Abhishek at about 09.30 p.m. when one Vibha was also with them. He has deposed that they went to Fountain Hotel for dinner and that Abhishek, cousin of PW-3 asked him to drop PW-3 at her residence and therefore, he dropped her at Aditya Park Society. PW-4 has deposed that he went with PW-3 at her flat when she rang the bell as also knocked the door, but there was no response, hence, PW-3 opened the door with her keys. He has deposed that when they entered the hall, there was a mattress and it was stained with blood and there were bloodstains near the said mattress. He has deposed that there were dragging blood marks in the lobby towards the bedroom. He has further deposed that when they entered the bedroom, he saw that one body was lying on the bed and there was a pool of blood. He has deposed that the body was covered upto half face with the blanket and he identified deceased Khushbu from her half face. PW-4 has further deposed that thereafter PW-3 received a call on intercom from watchman and that thereafter she told him that the watchman told her that one Deepak had come and he was asking about deceased Khushbu. He deposed that PW-3 thereafter called Abhishek as also the security guard. He deposed that one of the security guards called police and police took them on the spot and recorded their statements. PW-4 has deposed that police conducted spot panchnama and they requested him and Abhishek to act as panchas. He has further deposed that there was one investigation car as also police showed some things to them and they had taken photographs of all things in the said flat. He has deposed that in hall, one knife was lying on the bed as also one slipper of pink colour. He has deposed that when police uncovered the dead body, it was naked and one T-shirt of black colour was there which was lifted upto the neck. There was blood from the mouth of deceased Khushbu and there was stab injury on her neck. He has deposed that there were two knives lying on the bed near body, they were stained with blood. He has deposed that near almera, the clothes of the deceased Khushbu i.e. jeans and undergarments were lying and they were also stained with blood. He has further deposed that colour of the jeans was blue and colour of the undergarments was white. The cell phone was lying near the body and there was one knife lying near the clothes which was bent and without handle as also the handle was lying near it. PW-4 has deposed that police seized all the articles from the spot and labelled them and obtained their signatures on it. He has deposed that police thereafter prepared spot panchnama and obtained his signature which was shown to him, bearing his signature (Exhibit 13) which was exhibited on admission. He has deposed that the panchnama was in Marathi, however, the police explained him the contents of it in Hindi and thereafter he had signed it. He had identified the accused in the Court at the time of his deposition.

19. PW-5 Archana Tirthshankar Yadav, age 24 years, was also an employee of Capgemini from June 2008. In her deposition, she stated that she was residing at Datta Kripa Housing Society, at Karvenagar, Pune and her native place was Nagpur. She deposed that she knew deceased Khushbu and the accused, as they joined Capgemini at the same time. She has deposed that she knew the accused and deceased Khushbu very well and they were having love affair since college days and after coming to Pune for job, their relations were not cordial. PW-5 has deposed that deceased Khushbu wanted to break the relations and that the accused used to contact her and tried to talk with her, but deceased Khushbu was not giving response and she used to avoid him. She has deposed that deceased Khushbu had lodged complaint in the office against the accused, as he used to insist her to talk with him. She has deposed that she never went to the house of deceased Khushbu. PW-5 has further deposed that on 19 October 2008 in the evening, she went to the house of deceased Khushbu for the first time and house of the deceased was at Aditya Park Society, Balewadi, Pune. She has deposed that deceased Khushbu came down to receive her; and that there was no security guard. She has further deposed that on that day, the deceased was alone and therefore, she stayed with the deceased on that day. She has further deposed that the deceased Khushbu was staying with Nehal and PW-3 Nimisha who were her roommates. She has deposed that at that time, Nehal had gone to her native place at Bhopal and Nimisha had gone to her brother’s house at Pune. She further deposed that she was not knowing anything about PW-3 Nimisha’s brother. PW-5 further deposed that on the next day (20 October 2008), she went with the deceased to their office by bus. She has further deposed that on that day at about 11.00 a.m. the accused came to her to talk with her casually. She has deposed that on the very day, when the accused had told her to give deceased Khushbu an understanding to talk with him, she told the accused that she was with the deceased in the night as the roommates of the deceased were not there as PW-3 had gone to her brother’s house and Nehal had gone to her native place at Bhopal, and that deceased Khushbu was alone in her house. She has further deposed that on that day in the evening, deceased Khushbu called her on her mobile and asked her whether she was coming with the deceased to which she told that she had some work and she will go to her house. She has further deposed that at about 07.30 p.m. she left the office to return to her house. PW-5 Archana has further deposed that on the same day at about 09.00 p.m., Deepak Agnihotri (PW-1) called her on mobile phone and told her that he was trying to contact deceased Khushbu, but her mobile phone was not reachable and therefore, PW-1 asked her the address of the deceased Khushbu which she gave to him. She has further deposed that thereafter she called the accused and told him that mobile phone of deceased Khushbu was not reachable and therefore, she asked him to give her number of the deceased’s roommate PW-3 Nimisha at which point of time, she was told by the accused that PW-3 was having new mobile number which was not with him and that there was dispute between himself and deceased Khushbu and therefore, she must have switched off the mobile phone and asked her to try again after sometime. PW-5 has further deposed that on the next day (21 October

2008) at about 07.30 to 08.00 a.m. she came to know about murder of Khushbu. She identified the accused who was present in the Court at the time of her

20. PW-6 Abhishek Rakeshkumar Chancholiya, age 26 years, is PW-3 Nimisha’s cousin brother. He has deposed that in the year 2008, he was residing at Runwal Classic, Thergaon, Pune and at the relevant time, he was studying at Indira College at Pune. He has deposed that at that time, one Vibha Bithare, Nitu Upadhyay and Richa Khare were residing with him and that Nitu was his cousin and Richa and Vibha were her friends. He has deposed that his paternal aunt’s daughter Nimisha was residing at Aditya Park Society and deceased Khushbu and one Nehal Jain were residing with her. He deposed that he came to know about the incident on 20 October 2008 when PW-3 was with him on that day, as she had come to his house on 18 October 2008. He has deposed that on 20 October 2008 at about 10.00 p.m. he had gone to Fountain Hotel along with Vibha, Prashant (PW-4) and Nimisha (PW-3) for dinner and after dinner, he and Vibha went to their home and Prashant went to drop Nimisha at Aditya Park Society. PW-6 Abhishek has further deposed that on the same day at about 11.30 p.m. he received a phone call from Prashant who told him on phone that when they knocked the door of Nimisha’s house, nobody responded and therefore, Nimisha had opened the door with her keys and she found that there was blood in the front room. He has further deposed that thereafter Prashant told that he saw body of Khushbu covered with blanket and as he suspected about her murder, hence, he had called PW-6. PW-6 Abhishek has deposed that thereafter he went with his friend Nalin Agrawal on the spot when he saw that Prashant (PW-4) and Nimisha (PW-3) were standing along with watchman and the watchman was calling police. He has further deposed that after half an hour, police came on the spot. He has further deposed that thereafter they entered the spot and after verifying the spot, police called investigation car which reached on the spot after about half an hour. He has further deposed that after the investigation car came, the police asked him and PW-4 Prashant to be the panch witnesses of spot panchnama. PW-6 has further deposed that police showed all the rooms to them and in the front room, two mattresses and two pillows were lying as also one footwear was lying on one mattress. He has deposed that the mattresses were stained with blood and bloodstains were on the wall and large amount of blood was lying on the floor. He has deposed that one knife with blue colour handle which was lying, was also stained with blood. He further deposed that there were dragging blood marks from the front room to the room where body was lying. He has further deposed that inside the room, the body was lying on the bed and it was covered with blanket. The body was covered upto her neck and her face was opened. He has deposed that there were two knives and one mobile lying near the body and both the knives were stained with blood. PW-6 has deposed that one bunch of keys, ID card and the papers having bloodstains were lying near the bed. He has further deposed that in the same room near the cupboard, jeans pant of blue colour and nicker of white colour stained with blood were lying there. He has further deposed that one knife was also lying there which was having yellow handle and it was bent from front side and was stained with blood and the handle was lying near the said knife. He has further deposed that when the blanket was removed, the body was found naked, one black inner was on her body and it was lifted upto neck. He has deposed that her neck was cut and there were stab injuries on her throat. He has further deposed that the persons from investigation car were taking the blood samples and photographs of finger prints from the said spot. He deposed that police had seized four knives, one footwear, nicker, pant, bunch of keys, mobile and I-card. He has further deposed that police collected the blood sample and seized in his presence, sealed it, labeled it on which the police obtained his signatures and prepared panchnama which was signed by him. He identified the panchnama (Exhibit-13) as bearing his signature and deposed that the contents were true and correct. He has further deposed that he can identify the muddemal articles, if shown to him. He has deposed that muddemal articles 5 to 8 (knives), article 9 (slipper), article 10 (bedsheet cover), article 11 pillow cover of pink colour, article 12 blue colour bedsheet having flowers design, article 13 (pillow cover, article 14 blue colour jean pant, article 15 nicker, article 16 newspaper, article 20 black colour inner, which were shown to him, were the same, which were seized by police in his presence. He has further deposed that the police had enquired with him about the incident on that day and his statement was recorded on the next day at the time of postmortem. PW-6 identified the accused who was present at the time of his

21. PW-7 Deepali Ashok Patil, age 35 years, was working at Capgemini in the year 2008 as in-charge Human Resource Consultant where the accused and deceased Khushbu were working and therefore, she knew both of them. In her deposition, she deposed that both of them had joined the company on 28 June 2008 as freshers and they were undergoing training for freshers. She has deposed that on 22 August 2008 Khushbu had come to her and told her that another employee namely the accused was disturbing and harassing her at work place when she asked deceased Khushbu what exactly he was doing. She has deposed that deceased Khushbu told her that the accused yelled and disturbed her at work and tried to talk with deceased Khushbu forcibly. She has further deposed that when she asked deceased Khushbu why the accused disturbed her, deceased Khushbu told her that both of them were from Bhopal and they used to stay at Arora Colony and both of them were from same college and they were having love affair. She has deposed that deceased Khushbu had told her that she had ended their relationship and she did not want to talk or meet the accused. PW-7 has further deposed that after discussing with deceased Khushbu, she discussed the issue with her supervisor PW-9 Ashish Potdar when it was decided to keep watch on them and that security would keep watch on both of them in the premises. She has further deposed that the security in-charge Captain Jivak Shiralkar talked with the accused and made him understand not to talk with deceased Khushbu in the premises and not to try to meet her and warned him of dire consequences. PW-7 has further deposed that on 23 September 2008, she received a message from deceased Khushbu that the accused was harassing her at work place. She has further deposed that she immediately called deceased Khushbu after reading e-mail and asked Khushbu what exactly happened. When she asked deceased Khushbu, she told her that the accused forcibly talked with her in front of her other colleagues and when she tried to leave the place, he caught hold of her hand and pulled her and compelled her to talk with him. PW-7 has deposed that thereafter she called emergency meeting in which supervisor PW-9 Ashish Potdar, herself and security incharge were present. In such meeting, the accused was called. She has deposed that in the meeting, the accused was told that such message was received from deceased Khushbu that he harassed her, however, PW-7 has deposed that the accused denied it. She has further deposed that then they called deceased Khushbu in the meeting and she told everything about the background. She has deposed that thereafter the accused accepted it stating that he will not do it again. She has deposed that thereafter she made accused understand that the company will take disciplinary action against him and they might terminate his services, if he talks with deceased Khushbu. PW-7 has deposed that on 30 September 2008 they were waiting that deceased Khushbu would inform her parents and confirm them about the situation, however on the same day, deceased Khushbu confirmed them that she did not want to inform her parents, hence, it was decided to issue warning letter to the accused which she has deposed to have been issued on 01 October 2008 and he was asked to meet supervisor PW-9 Ashish Potdar on 15 October 2008 for counselling. PW-7 at the time of her deposition was shown warning letter (Exhibit 22), which was bearing signature of supervisor Ashish Potdar, which was identified by her, as she was working with him and which also was bearing the endorsement of the accused. She has further deposed that on 13 October 2008, deceased Khushbu met her and thanked her for taking action against the accused and deceased Khushbu also told her that the accused was not harassing her. She has further deposed that on 15 October 2008, the accused did not meet supervisor PW-9 Ashish Potdar, but met him on 16 October 2008. She has deposed that she was not present in the said meeting and PW-9 told her that the accused had told him that he was disturbed and could not

┌─────────────────────────────────────────────────────────────────────────────────────┐
│ sleep at night. She has further deposed that on 20 October 2008 (date of the        │
│ incident), deceased Khushbu met her personally at her work place and the deceased   │
│ asked her whether the warning letter was issued to the accused, as there was        │
└─────────────────────────────────────────────────────────────────────────────────────┘

22. PW-9 Ashish Abhay Potdar, age about 37 years old was in the employment of Capgemini since October 1997 as a Senior Manager (Human Resource). In his deposition, he has stated that he knew deceased Khushbu and accused as they were employees in the same company since 20 June 2008, as they had joined as Software Associate trainees. He deposed that his training period was of 2 – 3 months and at the time of the incident, their training was over and they were waiting for allocation. He stated that it was their waiting period for allocation. PW-9 further deposed that on 16 or 22 August 2008, PW–7 told him that she had received complaint from deceased Khushbu, against the accused. PW–9 deposed that deceased Khushbu told her that the accused yelled at her and that he had tried to catch hold of her hand. He further deposed that thereafter he called the accused. He further deposed that meetings were called by PW-7. He further deposed that on 16 October 2008, the accused met him although he had called the accused on 15 October 2008. He also deposed that prior to this, on 30 September 2008, a warning letter was issued to the accused. PW-9 further deposed that when the accused met him, he was sounding calm but he said that he was disturbed. PW-9 identified the warning letter (Exhibit –

22) bearing his signature and deposed that the contents were true and correct. PW-9 further deposed that the warning letter was handed over to accused on 1 October 2008 by PW-7. PW-9 also identified the email received from PW-7, stating that each page was bearing the signature and stamp of the company and that the contents were correct (Exhibit – 25).

23. PW–12 Pushpesh Kumar Jitendra Kumar Singh, age about 30 years, is a Software Engineer by occupation. In the year 2008, he was staying at Jagtap Dairy, Wakad, Pune. In his deposition, he has stated that he was working at Capgemini w.e.f. 20 June 2008 as a Software Associate. He deposed that the timings of his job were 9.00 am to 5.30 pm. He deposed that he was knowing the accused and deceased Khushbu as they were from the same training batch. He deposed that he also knew that they were from one college. He deposed that he came to know about the death of deceased Khushbu on the next day of the incident.

24. PW-12 further deposed that he had met the accused on 20 October 2008 when he was on duty. He deposed that on the date of incident, he completed his work at 5.30 p.m. Before that he used to go to office by Bus and on that day also he had gone to the office by Bus. He further deposed that on the day of the incident (20 October 2008) when he went to catch the bus, accused came there on his bike and told him that he will drop him, as he was going in the same direction. He deposed that he returned from the office and thereafter went with the accused to his house at

6.15 to 6.30 p.m. PW-12 has further deposed that he went to his house to see his new T.V. After half an hour, accused told him that he will drop PW-12 to his house. He further deposed that while going towards PW-12's house, they stopped to have tea near Jagtap Dairy. He further deposed that at about 7.00 p.m. to 7.15 p.m., accused received one phone call and he was talking on cellphone while walking. He deposed that the accused was away from him and from the actions of his hands, PW- 12 felt that he was giving understanding to somebody. PW-12 further deposed that after the phone call, accused went away from the spot on his motorcycle without stating anything to him and thereafter PW-12 went to his house by walking. PW-12 further deposed that on the next day, in the morning when he was going towards his office, he received one phone call and the person who was on call asked him whether he knew the whereabouts of the accused, to which PW-12 told that he was not aware. He further deposed that thereafter the said person asked him whether PW-12 could reach at Kalewadi at that time, to which he replied that he was going to his office and cannot come there. He further deposed that thereafter the said person asked him about the number of the motorcycle of the accused, to which he replied that he was not aware. PW-12 further deposed that when the accused dropped him near Jagtap Dairy, he went towards Kalewadi. He further deposed that he came to know on the next day about the death of Khushbu by a phone call which he received from Mr. Sayyed from Chaturshrungi Police Station. He deposed that his friend - Swapnil also talked with Mr. Sayyed on his mobile. He also identified the accused who was present at the time of recording his deposition.

25. PW-13 - Rahul Yeshwant Dubey, age about 28 years, he was like an elder brother to the accused. He deposed that on 21 January 2008, he was residing at Sus Road Pashan at Yesh Residency. He deposed that his native place is Bhopal. He deposed that in 2006 he came to Pune and had been working at Capgemini as an Associate Software Engineer. He further deposed that Swapnil Saxena, Anruddha Tiwari, Shrikant Maheshwari and his elder brother Rohit Dubey were staying at Yesh Residency, Pune. He deposed that he was knowing the accused and deceased- Khushbu and that both of them were working at Capgemini. He deposed that accused was a good friend of his younger brother Rohit Dubey and the accused treated him as his elder brother and his relations with the accused were cordial. He further deposed that he used to come to his room and stay with him and others once or twice a month. He further deposed that the accused had told him that he was having a love affair with deceased Khushbu since college days and after coming to Pune their relations were not good. He further deposed that the accused was not in a good mood as he had disturbed relationship with Khushbu. He further deposed that accused used to tell him that it was not good as to how she treated him and she was not having good relationship with him and therefore he was disturbed and he wanted to punish her. He further deposed that he had given the accused understanding and asked him to forgive and leave her. He further deposed that however, the accused was again disturbed and was in the same mood although 15 days before the incident, PW-13 had given him the understanding. He further deposed that on 20 October 2008 when the accused was also in the office and was found roaming, PW-13 asked the accused whether he was having any work but he did not respond to his question and he was in a sad mood. PW-13 deposed that thereafter he went to his home and slept. He further deposed that in the morning at about 6.00 am his roommate Swapnil Saxena woke him up and told him that there is some problem and Deepak, Ashish and Archana want to meet him. He has further deposed that Deepak told him that somebody was calling him on his mobile from the Chaturshrungi Police Station, telling him that deceased Khushbu was serious. PW-13 has further deposed that when he called back on the said number, it was of Chaturshrungi Police Station and thereafter PW-13 along with Deepak, Swapnil, Ashish and Archana went to the Police Station. He deposed that after reaching the Police Station, the Police asked as to who was Deepak and then the Police asked Deepak and Swapnil to take them to the house of the accused. PW-13 deposed that he was sitting at the Police Station and thereafter, when the Police came back, he was told by the Police that deceased Khushbu was murdered. He deposed that he was at the Police Station, as he was supposed to give statement and at about 12.30 p.m. accused called him on his mobile phone saying whether he was aware about the happening and to which he replied that he was aware about Khushbu being murdered. PW-13 deposed that when he asked accused as to where he was, he informed him that PW-13 would be in trouble, if the place is traced.

26. PW - 13 further deposed that the accused told him on telephone that he did not feel sorry and guilty for whatever he did and that he will come back and surrender himself as also the accused asked him to tell the Police not to trouble his parents at Bhopal. PW - 13 stated that accordingly he had given his statement to the Police which he deposed that the Police had recorded as per his say. It was explained to him in Hindi. He identified the accused who was present at the time of recording of his deposition.

27. Having considered the evidence of the friends of the accused and deceased Khushbu, we now delve on the evidence of the other witnesses.

28. PW - 8 Suresh Rambhau Tilave aged 54 years old was the watchman at Nisarg City, the building wherein the accused was residing. In his deposition, he has stated that he was working as a watchman since 8 to 9 months prior to the date of the incident. His duty timings were from 7.30 p.m. to 7.30 a.m. and that he was on duty at the main gate. He deposed that he was knowing the accused as he was residing at "C Building" in Flat No.403 of the said society. He deposed that there were 4 to 5 persons residing in the said flat. He deposed that he knew the accused as when he used to go out, he frequently talked with him. He deposed that the accused was having a red colour pulsar motorcycle and the number of the vehicle was 8877. He further deposed that on 22 October 2008 police came to him to enquire about the incident dated 20 October 2008. The police asked him for the information of the accused who was residing in Nisarg City. He deposed that on 20 October 2008 he came on duty at 7.30 p.m. and at that time accused went along with one boy on his motorcycle. He further deposed that at about 9.00 p.m. he came back and again went out on his motorcycle alone and returned. The accused again went out at about

10.30 p.m. to 11.00 p.m. and thereafter he never came back. He also stated that on that day he was driving fast. He identified the accused who was present in the Court, at the time of recording of the deposition.

29. PW-10 Sampat Gabaji Dorage is the Panch witness. In his deposition, he has stated that on 21 October 2010 police had called him at Chaturshrungi Police Station. He deposed that when he reached the Police Station, another Panch witness Yogesh Shankar Shelar was present in the Police Station, he was requested to act as a panch witness, for conducting panchnama of the flat of the accused. He gave his consent for conducting the panchnama. He deposed that thereafter he went with the police by private vehicle to Nisarg Society at Kalewadi Phata, Pune. He went to flat No.403 where one person named Dixit was present in the said flat. He further deposed that police enquired with the said person about the accused as to whether he was residing in the said flat, to which the said person answered in the affirmative, as also stated that the accused had told him that he was going to a party and went at

9.30 p.m. He further deposed that when police enquired and asked about as to when the accused returned back he replied that he never came back. PW-10 deposed that thereafter police asked him about the belongings of the accused when the said person showed one bag, one pant and one shirt of accused which were on roof. PW-10 deposed that the jeans pant as recovered was sky blue in colour and it was stained with blood. The blood stains were on the place of knees and joint of thighs and near the chain on the inner side. He deposed that T-shirt was of black colour having red and white strips which was also stained with blood at the place on stomach. He deposed that Police seized the said clothes and sealed it in brown paper and labeled it, and obtained his signature and as also the signature of other panch witnesses. He further deposed that the Police prepared seizure panchnama of the clothes and obtained his signature on the said panchnama. The document of the panchnama was shown to him during his evidence, which he has identified to bear his signature and stated that the contents were true and correct (Exhibit - 27). He further deposed that he can identify the clothes which were shown to him. The seal of the Muddemal clothes was opened and the articles were shown to him which he has identified to be the same which were seized in his presence. He also identified the labels (Exhibit - 28 & 29) on the articles bearing his signature.

30. PW-11 Chandrakant Deepaji Khamaitkar aged 53 years he deposed that on 21 October 2008 Police requested him to act as panch witness on the panchnama of the seizure of vehicle of the accused, in this case of murder. He deposed that the said vehicle was recovered from the Railway Station Parking. He deposed that another Panch witness Eknath Kasar was also present. He deposed that Parking Contractor Shankar Purshuram Shedge told the police that one person parked his red color Pulsar motorcycle at the parking place at the Pune Railway Station in the morning at

6.00 a.m. He showed the said motorcycle to the police it was a red colour motorcycle bearing MP 04 NJ 8877. He deposed that the police seized said vehicle labeled it and accordingly prepared seizure panchnama of the said vehicle in his presence and obtained his signature and signature of the other panch witness. The panchnama was shown to him which he identified to bear his signature at serial number 2 and of the other panch witness. The contents of it were stated by him to be true and correct. He further deposed that thereafter the Police sent the said motorcycle to the Police Station by Matador and it was locked. He deposed that he can identified the said vehicle, if shown to him.

31. PW-2 Dr. Bhausaheb Dada Bhalekar was the duty Medical Officer at Civil Hospital, Aundh, Pune, on 21 October 2008, when the body of the deceased was brought by the police for post-mortem at the said Hospital. In his deposition, he has stated that he conducted the post-mortem of the body at about 10.00 a.m. On 21October 2008, the autopsy started at about 10.30 a.m. and concluded at 11.30 a.m. In his deposition, he has described the external injuries on the body of the deceased which were recorded on a separate sheet of paper having with four incise wounds on the neck, left elbow, left arm. Total number of 18 injuries were recorded. He also recorded that there were internal injuries to left kidney incise wound at lower pole 1 c.m. The incise wounds described to be at Sr. Nos. 3, 4, 5, 6, 7 & 8 were possible due to the recovered knife which are articles 6 & 8 and the stab wounds which are mentioned at Sr. Nos. 15, 16, 17 & 18 were stated to be possibly caused by knife, i.e., recovered article Nos.[6] & 8. He stated that the contusion was possible due to hard and blunt object. He has stated that the injuries of the teeth marks were the human (bite) teeth marks from the nature of the injuries as observed in the postmortem. He deposed that the possibility of rape could not be ruled out. The nature of the injuries as recorded in his notes of postmortem and confirmed are as under: “(1) multiple teeth marks (bite marks) upper lip and below lower lip 3.[5] x 3.[5] cm. Distance between 4 cms.; (2) Contused lacerated wound below lower lip on left side 2 x 1 x ½ cm.; (3) Incise wound on left side of the neck anteriorly 4 x ½ cm. Long with tapering end anteriorly, muscle deep; (4) Incise wound on left side of neck 3 x ½ cm muscle deep.; (5) Incise wound on left side of neck 2 x ½ cm muscle deep.; (6) Incise wound on anterior side of the neck 4 cm x ½ horizontally cutting in direction on right carotid artery muscle deep.; (7) Incise wound on left elbow 2 x ½ cm. muscle deep: (8) Incise wound on left arm posteriorly 4 x ½ cm. muscle deep; (9) teeth (bite) marks on left breast oval shape 3.[5] cm. x 4 cm. distance between two teeth marks were horizontal; (10) teeth (bite) marks on left hypochondrium on upper part of abdomen 3.[5] x 4 cm. distance between both teeth marks was 4 cm. (11) Incise wound skin deep superficially extending from 2 cm. above xiphisternum upto pubic bone straight line; (12) contusion on the left palm 2 x 2 cm. (13) contusion on right elbow 3 x 2 cm.; (14) teeth (bite) marks on pubic region left side semicircular in shape 3.[5] x 4 cm. (15) stab wound above left iliac crest 2 x ½ cm. pelvic cavity deep; (16) stab, wound above sacral region medially 1 x ½ cm. muscle deep; (17) stab wound above the right side of back infra scapular region 1 x ½ cm.; (18) stab wound on the middle of back inter scapular region 1 x ½ cm. muscle deep; I also found internal injuries as follows: (1) left kidney incised wound at lower pole 1 cm. long; (2) organs of generation - hymen was ruptured old, no internal injury seen on the vaginal canal.”

32. At this juncture, we may also refer to the deposition of PW - 16 Dr. Vilas Ramchandra Nalawade, who examined the accused, who on 24 October, 2008 was attached to the General Hospital, Aundh, Pune as a Medical Officer. In his deposition, he has stated that Police Constable Khandagale of Chaturshringi Police Station bought the accused to the Hospital for Medical examination and for blood collection. He stated that he examined the accused at about 6.35 p.m. and found the following injuries on his person: “(i) abrasions 5 in number over left forearm; middle 1/3rd and lateral aspect about ½ cm. x ½ cm. Scaling + +, no fresh blood.

(ii) Abrasion 1 in number over upper 1/3rd of right forearm, lateral aspect ½ cm. Scaling + and blackening + no fresh bleeding.” He deposed that the aforesaid injuries would be caused by a hard and blunt object. He also deposed that the age of the injuries was more than 42 hours and those injuries were simple in nature. He accordingly issued a injury certificate which was shown to him bearing his signature which was identified by him. He also deposed that the injuries were possible by nails during scuffle at the time of either sexual assault or murder.

33. The cross examination of PW-16 has not revealed anything significant so as to discredit the nature of the injuries and the likely cause of injuries. The cross examination has not elicited anything contradictory to what has been stated in regard to the injuries suffered by the accused as noticed in his medical examination and as stated in the examination-in-chief by this witness.

34. We now come to the evidence of the Government Photographer, who had taken photographs of the place of the offence, namely, PW - 22 Shri Sharad Gorakhnath Kshatriya who was in service of the Police Department, Government of Maharashtra. He deposed that on the day of the incident dated 21 October 2008, he was on duty when he was called by the Control Unit at Chaturshringi Police Station in connection with Crime (Crime No. 493 of 2008). He had accordingly went to the Police Station and then he went to Balewadi with one Police employee. He deposed that he went to the Aditya Park Society, Balewadi to flat No.27. He has deposed that he inspected the spot along with officers and had taken photographs from different angles of different places. He deposed that there was one palm impression on the wall. It was an impression of blood-stained palm. He deposed that the finger print expert encircled the said palm impression and put his signature and date on the same. He deposed that he had taken photographs of the same by his digital camera. He deposed that he used to prepare Compact Disc (CD's) of the photographs taken by him. He deposed that the photographs of palm impression were handed over to the finger print expert and the photographs of scene of crime to the Investigating Officer. In his cross examination, he has deposed that he had taken photographs at the time of panchnama. He also stated that there were blood mark on the floor as appearing in the photographs as shown by the defence and that the police had not asked him to develop such photographs of the blood marks on the floor. He deposed that the Compact Disk (CD) was filed with pursis (Exhibit - 118) and it had 20 photographs. He also stated that it was not true to say that the CD was modified from time to time. He also denied the suggestion that it was not true to say that on 16 March 2015 at

6.04 p.m., the CD was modified. He stated that the CD was created at that time. He also deposed that it was correct that while taking photographs, he has used point and shoot camera. He deposed that whenever CD is created, the date comes on it, that it was not true to say that whenever access is made to CD, the dates appeared. He also deposed that he had taken photographs on digital camera and digital camera has no negatives.

35. PW-22 further deposed that it was true that after taking photographs they are saved in the memory card and that to get the print of the photographs, the memory card is required to be connected to the computer and the printer is required to be connected to the computer. He has deposed that he had taken photographs from the memory card on the computer and that he had not taken out the prints. He has also deposed that while taking the print, the photographs have to be opened in the photo editor software and only after the command is given to the computer, print out can be taken. He also deposed to be true that the image data is digitally processed in digital camera and thereafter it is saved in memory card. He also deposed that he has not given the camera or memory card to the IO or the finger print expert. He also deposed that he did not know as to whether panchnama was prepared about taking photographs. He also replied to the suggestion that before taking photographs of palm prints, he had not measured its width or length. He deposed that he had not measured the height of the palm print from the ground level. He also deposed that he had not taken the photographs of the palm print before it was encircled. He stated that it was true that he had not put the signature next to palm print before finger print expert signed it or after he signed it. He also deposed that he had not submitted any certificate to the investigation officer or to the expert about the photo prints, digital camera, computer and printer nor he had submitted details about the camera, company, model, shutter, speed, exposure, focal length and resolution state. He also deposed that he had not submitted any certificate about the quality of photo prints nor he had submitted any certificate about place, day, date, time and number of photographs to the IO or fingerprint expert. He deposed that he had not submitted the certificate about identification of photographs as also he did not submit the certificate as to how the camera was used. He stated that he had not submitted the certificate about default and automatic setting of the camera as also he had not submitted the certificate regarding life condition, color of wall and the distance from which the photographs was taken. He deposed that while taking photographs, he had used inbuilt flash as there was no day light. He also deposed that the quality of photographs would depend on camera setting and light conditions. He did not accept suggestion that there is a photo editing programme in his camera or that every digital camera there is a photo editing programme. He however voluntary stated that it depends on the make of the camera. He stated that his camera was of the Canon make and power shot GT make. He also deposed that he had not deposited the camera with the police. He stated that there is inbuilt photo editor software of the operative systems in the computer and by which the colour and resolution of the photographs can be edited. He also stated that it is true that by merging two photographs or by superimposing, new photographs can be made. He also deposed that it is not true to say that he had not taken any closer photographs. He also denied the suggestion that he had not taken any photographs on the spot. He also denied the suggestion that the fingerprint expert had not come in his presence and he had not signed and put the date. He denied the suggestion that he had manipulated the photographs. He also stated that he had not produced the memory card. He denied the suggestion that on 21 October 2008, there was no palm print on the wall. He also denied that being a police employee, he was deposing false to oblige the investigating officer.

36. PW - 20 Shri Mohan Nanu Rathod, aged 62 years is a finger print expert, in his examination in chief, he has stated that he retired in the year 2010 as finger print expert. He was attached to the CID Crime Branch, Pune. His qualification is M.A. Economics and that he had qualified the departmental examination and finger print examination conducted by All India Board for Examination of Finger Print Experts, in the year 1984. He deposed that he was having 30 years experience in such field. In regard to the incidence, he deposed that on 21 October 2008, a telephonic message was received by him from the Chaturshringi Police Station for providing finger print expert. In Crime Report No.493 of 2008 registered under Section 302 of the Indian Penal Code. He stated that he went to the Chaturshringi Police Station, by the investigation vehicle along with Government Photographer and Scientific Assistant. He further deposed that along with Police Inspector Shri Suryawanshi, he went to the crime spot. At the crime spot, he examined the articles like knife, door, walls and tiles. He deposed that on the wall, he found one blood palm chance print on the wall. He encircled the print and put his signature with the date. He deposed that Government Photographer (PW - 22) had taken the photographs of the same. He deposed that he called slips of palm of the accused from the Police Station. He deposed that on 24 November 2008, he received palm print slip. He deposed that he compared the "palm print slip" of the accused with "chance palm print". He deposed that he found that the "chance palm print" tallied with the "palm print slip" of the accused. He then sent his opinion to the finger print bureau and that the team of finger print experts bureau has agreed with his opinion. He deposed that such opinion was sent to the senior expert who also agreed with his opinion and put his signature. He deposed that the opinion/report was ultimately signed by Deputy Directors of Finger Print Expert Bureau and thereafter the report/opinion was sent to the Police Station (Exhibit - 84). The said report sent by him to the Deputy Director dated 25 November 2008 was showed to him during his examination in chief which was identified by him as also its contents to be true and correct. He stated that he retired in the year 2010 and on receiving summons, he made enquiry about the original documents and that he had found the photo copies with the officer. He deposed that the original was sent to the CID office. He accordingly produced the photo copy on record and said photo copy was marked as Article - A. He deposed that on 17 November 2008, he had sent a letter to the Chaturshringi Police Station asking palm print slip of the accused. Such letter was shown to him which was identified him to bears his signature and the contents of the same to be true and correct (Exhibit – 107). He deposed that he had also sent a letter with similar contents on 7 November 2008 (Exhibit - 108) which he had identified was bearing his signature and deposed that the contents of the same were true and correct. During his examination-in-chief, PW - 20 was also shown documents received from the Police Station about the palm print of the accused. He deposed that he also finds that on the date of the deposition, he had filed statement of reasoning on record which was shown to him, during his examination in chief. PW - 20 deposed that it bears his signature and that its contents are true and correct. He deposed that the photographs of the encircled chance palm print shown to him during his examination in chief, was the same and that it was bearing his signature. He deposed that it bears the date in his own handwriting. He deposed that its contents were true and correct. He further deposed that the signature was at Exhibit - 110 and that the chance palm print and the palm print slip sent by the Police Station is the palm print of the same person of left hand. In his evidence, PW - 20 further deposed that he was working with the Police Department since 1980 and was working as CID crime since then. He has also deposed that he was transferred to Mumbai and Jalana and then he came to CID Branch, Pune. He said that he has not taken education of finger print while graduation or post graduation and/or has any diploma or any other certificate about finger print science. There is nothing in the cross examination which would discredit his evidence as made in the examination-in-chief and passed departmental examination and finger examination conducted by All India Board for Examination of Finger prints in the year of 1984 and that he had 30 years experience in the said field. In the cross examination, he deposed that while encircling the chance palm print and put his signature, he had not obtained the permission of the magistrate and at that point of time there was no panchnama drawn. He denied that he was falsely deposing that the photographs was taken of chance palm print in his presence and that he had put his signature and put the date in his own handwriting. He also stated that it was not true to say that on 21 October 2008 the chance palm print was not appearing on the spot of crime. He further deposed that he had not gone to the Police Station personally to obtain specimen of the palm print of the accused. He also deposed that the Police did not send any panchnama about obtaining palm print specimen and that there was a procedure for taking the palm print as also he was not informed by the Police about any procedure to take the palm print. He also deposed that there was a difference between palm print and finger print. He further deposed that he had not personally taken photographs of chance palm print and specimen palm print while comparing. He also deposed that the photographs were not enlarged by him personally and no permission for the same was taken from the Court while obtaining photographs of specimen palm print. He also deposed that both the palm prints were not compared under the ultra-violet rays and that the finger print were not examined under transmitted light. He also deposed that he has not given any opinion about dis-similarity of specimen palm print and chance palm print. He also deposed that it was not true to say that it was necessary to give opinion about point of similarity and dis-similarity of palm print or finger print. He also deposed that he had not mentioned about type of pattern in his opinion and that he had not measured the ridged, core and delta.

37. PW-20 further deposed that the ridge characteristic means specialty of lines ridge. He also deposed that while obtaining print there should be proper inking. He however stated that it was not correct to say that if there was no proper inking, no proper opinion can be given. He also deposed to be true that the central portion of palm is hollow. He further deposed to be true that the specimen therefore obtained curved surface. He further deposed it to be true to say that if inking is proper ridge ending appear as bifurcation or vice-verse. He deposed that he has not mentioned about the whorn pattern, Arch pattern and composite pattern. He deposed that one point of dis-similarity is sufficient to state that the prints are not identified. He however deposed that he cannot give any reference of any book in this respect. He has deposed that not to be true to say that the chance print there was blur impression. He further deposed that it is true to say that the existence of several point of similarity is not sufficient to establish identity. He further deposed that there is no mention on any of the papers filed by him that any expert or senior are examined the papers and agreed with him. He denied that he had not carried out proper examination while comparing the prints and followed proper tests. He also denied the suggestion that he had not examined all the required characteristics. He further denied that it was not true that he has given false opinion being the police officer at the instance with senior.

I. Deputy Director of Finger Print

38. PW - 21 Shri Anand Maruti Pote age 61 who is retired as Deputy Director of Finger Print Bureau, Pune. In his examination-in-chief has deposed that in the year 2008, he was attached to the Finger Print Bureau, Pune as Deputy Director on 25 October 2008, Junior Expert Shri. M. N. Rathod (PW - 20) has sent a report of a chance palm print in connection with Crime No. 493 of 2008 of Chaturshringi Police Station. He deposed that he had sent the report for verification to eight different experts in his office and that all of them had agreed with the opinion of Shri Rathod and put their signatures on that report. He accordingly deposed that he put his signature as Senior Expert and Deputy Director and thereafter the opinion was sent to the concerned Police Station (Exhibit - 84) which was shown to him and which he identified to bear his signature as also the contents to be true and correct. In the cross examination, he denied that he had not compared the chance palm print and specimen palm print and that he had not issued any certificate. He further deposed that it was true to say that in Exhibit - 84 before putting his signature he had not written that he had agreed with Shri Rathod. He further deposed that it was not true to say that Exhibit-84 also did not mention that the opinion of Shri Rathod was sent to eight experts in his office and they had agreed with Mr. Rathod and they put their signatures. He also deposed that it was not true to say that he was deposing falsely and that he had sent the report to eight experts in his office and that they had agreed with Mr. Rathod and they put their signatures and he had also put his signature. He also deposed that it is not true to say that being police officer he had sent favourable report (Exhibit - 84) to the police. J Evidence on behalf of the Accused/Defence

39. On behalf of the accused, Dr. Vishal Kumar Khamra (D.W. 1), Medical Practitioner, District Hospital, Bhopal, is examined. He has deposed that he was on duty on 23 October 2008 when the accused was brought by a police constable attached to Habibganj Police Station with a requisition that he be medically examined. He deposed that he did not find any external injury on the body of the said patient, and systemic examination was normal, and has made an entry in the hospital register which bears his signature and identified it to be true and correct. He deposed that he issued the original certificate to the concerned police station and obtained a receipt on the register which he has identified to be true and correct (Exhibit 81). In cross- examination he admitted that journalist Rajendra Singh and RTI activist had lodged a complaint alleging that he and his cousin Dr. Shailendra Khamra had issued many fake medical certificates. He volunteered that Rajendra Singh is neither a journalist nor RTI activist. He admitted that later on Rajendra Singh had committed suicide. He has also stated that a chargesheet in the said case was yet to be filed against him. In the cross-examination he deposed that he does not have any copy of the requisition letter which he had received from Habibganj Police Station. He denied that he had issued a false medical certificate. K Submissions on behalf of the Appellant/Accused:-

40. Mr. Tripurari Ray, learned counsel for the appellant/accused has made the following submissions:-

(I) The impugned judgment and order is assailed with a primary focus on several aspects contributing insufficient circumstantial evidence, not justifying the conviction of the appellant/accused under Sections 302 and 376 of the Indian Penal Code. As the case is solely based on circumstantial evidence, there is no eye witness. The contention is that a closer scrutiny and appreciation of the evidence insofar as the following factors are concerned, are vital:-

(i) Firstly, PW-3 Nimisha was the first person who entered the flat where murder of the deceased had taken place and her evidence is vital as it disclosed the following facts:- (a) that she had opened the door with her keys, meaning thereby that the lock was not damaged as the entry of the assailant was friendly. (b) PW-3 Nimisha had informed the guard at the gate on intercom of the society about the murder of the deceased when the guard at the gate informed her of the fact that one Deepak Agnihotri (PW-1) had come to meet the deceased.

(c) PW-3 Nimisha in her evidence has stated about security measures in

Aditya Park Society in paragraph 4 of her evidence that there is a CCTV Camera at the right side and any guest entering in the building has to make an entry in the register of the security guard kept at the gate.

(d) If any guest comes to meet any resident, the security guard would first ask on intercom whether to send the guest. (e) Each flat is provided with zycon system by which one can see the visitors at the screen. ii. Since there were no signs of guest’s entry in the house, offenders were the persons to whom the deceased was acquainted with who came inside her flat with her consent. b. There being very strained relations between the accused and the deceased as per the prosecution evidence, there is no possibility that the appellant/ accused could have entered the flat. c. There being no evidence that the accused had entered the building- Aditya Park Society, the accusation against the accused is perverse.

41. The entire evidence is required to be discarded, as it is a biased and tainted investigation. The reason being that the circumstances, which were existing at the place of occurrence, reveals an altogether different story. The prosecution has in fact suppressed the material and crucial evidence and in fact, has fabricated and planted evidence. Also the Investigating Officer has treated the accused with an evil eye and uneven hand which is established from the following circumstances:i. Four bloodstained knives were recovered from the place of occurrence. The fingerprints were lifted. ii. Although the body of the deceased was naked, there is no recovery of torn clothes of the deceased from the place of occurrence.

42. In regard to the first point that though fingerprints were lifted as seen from the evidence of PW-14 API Madhusudan Joshi, however, the specimen fingerprints of the accused were not taken and no comparison of the fingerprints of the accused was carried out with the fingerprints present on the knives. Hence, very strong evidence, which could have been obtained from fingerprints on the weapons either in favour of the appellant/ accused or against him, has been deliberately ignored. In the absence of any evidence of connection of the accused with the weapons of offence, the accused is entitled to acquittal.

43. It is submitted that PW-14 Madhusudan Joshi, API, who was the first Investigating Officer did not bring on record and/or suppressed important evidence namely visitors register kept at the gate of the Aditya Park Society. He also did not produce the CCTV footage as also did not examine the security guard Mr. Amit Kamble and has proceeded to give hearsay evidence. The security guard Amit Kamble is also not in the list of witnesses filed by the prosecution.

44. It is next submitted that the evidence of recovery of blood stained clothes allegedly from the flat of the accused which was shared by him with four persons, is false evidence and planted against the accused and the same is inadmissible in evidence for the following reasons:

(i) On 21 October 2008 Mr. Sayyad Sabirali (PW-15) reached Nisarg City

Society at flat No.403 on 7th floor, where the accused was stated to be residing, he met a person named Prateek Dixit who told him that the accused had left at 9.15 a.m. and thereafter never returned. (Reference: Paragraph 1 of evidence of PW-15)

(ii) There were some clothes hanging on the rope. Dixit pointed out that some clothes were of the accused namely jeans pant and a T-shirt which Dixit pointed out as belonging to the accused and which were blood stained. These clothes were seized in the presence of the panchas as stated in paragraph 1 of PW-15.

(iii) As seen from paragraph 5 of the evidence of PW-15, he did not record the statement of Prateek Dixit. Considering the provisions of Section 60 of the Indian Evidence Act, 1872, he could be the only person who could have deposed to the fact that the blood stained clothes belong to the accused. The evidence of PW-15 to the extent he states that the blood stained clothes recovered from Nisarg City Flat No.403 at 7th floor belongs to the accused, is inadmissible in evidence. For such reason there is no evidence to the fact that the recovered blood stained clothes belong to the accused.

(iv) It is also doubtful as to on which floor the search was made, as PW-15 has stated in paragraph (1) that he reached Flat No.403 of Nisarg City Society and seized the blood stained shirts and jeans belonging to the accused.

(v) PW-10 Mr. Sampat Dorage, the panch witness to the recovery of the blood stained shirt and jeans as stated in paragraph 4 of his evidence that the recovery was made from flat on the second floor. Thus the evidence of PW-15 and PW-10 are contradictory which striked at each other and therefore, the search and seizure both are disproved. In fact, it would go to show fabrication of evidence against the accused.

(vi) The CDRs of the mobile data of the accused and other witness are also fabricated. This is clear from the evidence of PW-19 Sheshrao Suryawanshi, Investigating Officer, when in paragraph 4 he clearly stated that it was true that from the CDR report the tower location of mobile of accused was not appearing and as seen from the CDR report the tower location of the accused was blank. Also there was no certificate in regard to this document under Section 65B of the Indian Evidence Act.

45. It is next submitted that thus in the light of the fabricated nature of the CDR report of mobile phone calls of the accused, in the absence of any certificate under Section 65B of the Evidence Act, evidence of PW-13 Rahul Yeshwant Dubey alleging extra judicial confession becomes highly suspicious for two reasons; firstly the prosecution has failed to produce any evidence of such closeness between Rahul Dubey and the accused that would make it probable and natural for the accused to confide in him; secondly, there is no corroborative evidence that accused even made the alleged phone call at around 12.30 p.m. on 21 October 2008. Also the accused in his statement under Section 313 Cr.P.C. in answering question No.55 to 61 clearly denied the allegations of Rahul Dubey - PW-13.

46. Mr. Ray, learned Counsel or the appellant has made the following submissions on the conviction of the accused for rape:-

(i) It is submitted that no circumstance in the nature of opinion of PW-2 Dr.

Bhausaheb Dada Bhalekar relating to rape or its probability was not put to the accused in his examination under Section 313 of Cr.P.C. Considering that no semen was found in the vaginal swab, there was no basis for a finding on the probability of rape. The opinion of PW-2 appears to be solely based on bite marks found on the lips, breasts etc. It is submitted that there is no opinion of PW-2 that these bite marks are ante-mortem or post mortem. No comparison of the teeth mark on the body of the deceased with the dental impression of the accused was carried out by the prosecution and therefore, there is no basis to hold that the teeth marks on the body of the deceased were of the accused.

47. The next submission of Mr. Ray is on admissibility of Exhibit 84 namely the report of the Deputy Director/ Deputy Superintendent of Police, Fingerprint Expert, Maharashtra State, Pune, recording the result of comparison of chance print found when he records that one blood palm chance print found on the wall concerned with the case, was identical to the left hand palm portion of the accused received for comparison as forwarded to his Office. The submission of Mr. Ray is that the accused endorsed on this document is the remark that the document be admitted in the exhibit, as also the same remark was made by the Advocate appearing for the accused, as also an endorsement of copy being received on behalf of the accused. The document also appears the signature of the learned Sessions Judge admitting the document in evidence.

48. Mr. Ray would submit that in the course of criminal trial, the document is to be put up for admission or denial, it has to be put up thereafter in law as prescribed either in the Criminal Procedure Code or in the Evidence Act. His submission is that there is no provision under the Evidence Act for admission or denial of the documents by the accused. Referring to Section 294 of the Cr. P.C. providing for admission and denial of the documents under which one of the most important conditions that the document concerned should be put up by the Court for admission / denial. The other conditions being (i) only the documents which are contained in the list of documents filed by the prosecution, can be put up by the Court for admission or denial. It should be put up for admission or denial at the beginning of the trial and the only purpose of introducing Section 294 is to shorten the trial; (ii) it cannot be placed for admission or denial at a stage of conclusion of trial or while a judgment is dictated in the Court; (iii) admission and denial of documents in criminal trial in derogation of the provisions of Section 294 of Cr.P.C. is illegal and inadmissible in evidence for being not in accordance with the procedure established by law, and such illegality in fact becomes unconstitutional.

49. It is next submitted that in the present case neither the palm print obtained by PW-19 Sheshrao Suryawanshi, the Investigating Officer, was part of the list of documents filed by the prosecution alongwith chargesheet, nor was there any order passed by the Trial Judge to put up Ex.84, the report of the forensic expert to the accused for admission and denial. Further as to when, how and before whom was Ex.84 admitted by the accused is not known, or at least the record is silent on this aspect.

50. It is next submitted that a report of Forensic Expert’s report (Exhibit 84) is fabricated for the reasons that it is dated 27 January 2009; As per the endorsement on the said report, it was received on 6 February 2009 at the police station; The chargesheet was in fact filed on 19 January 2009. There is no whisper in the chargesheet of the fact that a specific palm print of the accused was obtained by PW- 19 – Investigating Officer, or that any chance blood stained palm print was found on any of the wall of the place of occurrence which has been sent to the Forensic Science Laboratory (FSL) for comparison and a report was awaited. There is no explanation of IO/PW-19 as to why and under what circumstances the document was sought to be placed on record at the time when the judgment was being pronounced. The prosecution witnesses both PW-20 and PW-22 have stated that palm print was on the walls of the flat, blood was found in two rooms, in which of the rooms the palm print was found is not known. Further the inspection report of the photographs placed on record, shows that the walls of room were stained with blood, however, photographs of wall on which palm print exists is yellow, it implies that the said wall was not of the place of occurrence.

51. It is next submitted that as a matter of reading of the provisions of Sections 293* * and 294* of the Cr. P.C. together with what becomes clear is that, Section 294 of the Cr. P.C. is a general provision empowering the Court to put up all documents filed alongwith the charge-sheet for admission/denial by the parties, however, Section 293 of the Cr. P.C. deals with a specific class of documents and therefore, on the principle that the specific excludes itself from the general provision will apply and thus, the documents covered by Section 293 of the Cr.PC cannot be put up for admission and denial. The Court has no power to admit in evidence a document admitted outside the Court during the course of the trial.

52. It is next submitted that the documents at Exhibit 84 namely the report of palm print dated 27 January 2009 is based on photographs taken by PW-22 Sharad Kshatriya, Government Photographer. It is submitted that the evidence of PW-22 brings out the facts that (i) the photographs (filed on 08 June 2015) were clicked by him on a digital camera, (ii) memory card on which the photographs are stored has not been produced before the Court. The memory card of a digital camera stands on the same footing as the negative of a traditional camera.

(iii) The photographs are * Section 293 of Cr.P.C. - Reports of certain Government scientific experts. * Section 294 of Cr.P.C. - No formal proof of certain documents. transferred from memory card on to a computer.

(iv) It is true to say that in the camera and computer, there is microprocessor. It is true to say that image data is digitally processed in digital camera.

(v) The evidence of PW-22 Sharad Kshatriya (page 287-288 of the paper-book) makes it evident that a digital camera is also a computer and with the aid of a computer, a photograph can be manipulated to create something different than what was photographed.

53. It is submitted that neither the memory card was produced before the Court, nor the digital camera on which the photographs were taken on 21 October 2008. It is submitted that there is no certificate under Section 65B of the Indian Evidence Act in respect of any of these electronic objects.

54. It is submitted that the photographs generated from these cameras are transferred through the memory card on the computer. All these three electronic devices or a computer system defined in Section 2(i) and 2(l) of the I.T. Act, 2000. It is submitted that unless the computer system is duly certified neither the photographs are admissible in evidence nor the report emanating out of the comparison of these photographs will be admissible in evidence. In this context, it is submitted that the evidence of PW-20 Mohan Rathod (finger print expert), PW-21 Anand Pote (Deputy Director [Sr. Finger Print Expert]) and PW-22 Sharad Kshatriya (Government Photographer) to the extent they deal with the photographs taken by PW-22 and expert opinion on the basis of photographs are inadmissible in evidence and therefore, Exhibit 84 is liable to be excluded from consideration by this Court. In supporting such submissions, reliance is placed on the decision of the Supreme Court in case of Anvar P. V. vs. P. K. Basheer & Ors.1.

55. It is next submitted that the appellant/accused in his examination under Section 313 of the Cr. P.C. has clearly denied that the Investigating Officer had ever taken his palm or finger prints for comparison. There is neither the signature of the appellant/accused on the sample palm print nor of any other witness before whom the palm print was taken, hence, every document signed by any person in jail is to be attested by the Superintendent of the jail. The palm print of the appellant was taken in jail, but there is no such attestation. It is submitted that in fact, PW-19 Sheshrao Suryawanshi (IO) has admitted that he did not draw any panchnama. It is submitted that the sample palm print which was used for comparison with the photographs taken by PW-22 Sharad Kshatriya. There is only evidence of PW-19/IO, who says in his further examination in chief that after he was re-summoned under Section 311 of the Cr.P.C. on the point of obtaining the palm print of the appellant. It is hence his submission that PW-19/IO is not a reliable witness as he has openly stated that he had filed Exhibit 84 along with the chargesheet, which was false as the same was received after filing of the chargesheet. Apart from Exhibit 84, there is no other evidence on record against the appellant. It is hence his submission that the appeal be allowed and the appellant is entitled to be acquitted. (2014) 10 Supreme Court Cases 473

56. On the other hand, Mrs. Mankuwar Deshmukh, learned Additional Public Prosecutor, has supported the conviction of the accused by the impugned judgment and order rendered by the learned Sessions Judge. Referring to the evidence of PW-1 Deepak Agnihotri who is the friend of deceased and accused, she has submitted that PW-1 knew the accused and deceased since 2007 as both of them were from Bhopal. He was also aware about their love affair and thereafter differences between them as he has admitted in his evidence that the appellant/accused always tried to speak with the deceased, but the deceased avoided him. She submits that the evidence would further clearly go to show that the accused and the deceased were working in the same company at Pune. As the appellant/accused was also insisting the deceased to talk to him, which was disliked by the deceased, she made complaint of the accused with the company. It is next submitted that from the evidence of PW-1, it is clear that the deceased Khushbu was having friendship with other boy Manish Singh and for such reason, the appellant/accused got annoyed and had said to PW-1 that he will cut her into pieces and will take revenge. It is submitted that PW-1 has clearly deposed that on 20 October 2008 at about 12.00 noon, the appellant/accused had desired to talk with the deceased, however, the deceased was not ready to revive their relation. She submits that at 07.45 p.m. of the same day, the deceased informed PW- 1 that the accused was trying to speak with her again, but she avoided. PW-1 also deposed that at 07.30 p.m. the accused had called him and asked him whether he had left for home. It is her submission that it is material that after 08.15 p.m. on the day of the incident, the deceased did not pick up her phone and therefore, PW-1 had visited the flat of the deceased, but no one responded when the watchman was also present. PW-1 further deposed that he called the accused, but he did not pick up the phone and on such backdrop, he had received a call next day early morning from the police station that the deceased Khushbu was found murdered in her room. He stated that he went to the home of the accused, but the accused was not found at home, however his blood-stained jeans which was lying on the rope in the room was seized by the police. Referring to the cross-examination of PW-1 Deepak Agnihotri, it is submitted by Mrs. Deshmukh that there is nothing of relevance has come on record to dislodge the evidence of PW-1 in the examination-in-chief. She submits that in fact, there is a clear statement in the examination-in-chief that PW-1 felt that the appellant/ accused was troubling the deceased and that he denied the question that he was falsely deposing that the accused was annoyed and that he had told PW-1 Deepak that he will cut the deceased in pieces. She submits that PW-1 Deepak also denied the suggestion that PW-1 was deposing falsely about the seizure of the bloodstained jeans of the accused.

57. Mrs. Deshmukh, thereafter referring to the evidence of PW-2 Dr. Bhausaheb Bhalekar, has submitted that PW-2 conducted postmortem of the deceased on 21 October 2008 between 10.00 a.m. to 11.30 a.m. when he has recorded finding of 2 internal injuries, 18 external injuries and hymen ruptured. She submits that the cause of death which has been set out in the report of PW-2 Dr. Bhalekar is “Hemorrhagic shock due to multiple injuries.” Incised wound 3, 4, 5, 6, 7 and 8 in column no.17 are possible due to ‘Knife’ (muddemal Articles 6 and 8). Stab wounds 15, 16, 17, 18 are also possible due to articles 6 and 8, human teeth bites sr. nos.1, 9, 10 and 14. Mrs. Deshmukh submits that possibility of rape cannot be ruled out. She also submits that if a person used condom, C.A. report in the said case about semen will be ‘nil’.

58. Mrs. Deshmukh refers to the cross-examination of PW-2 Dr. Bhalekar to submit that the cross-examination did not in any manner disturb his evidence in the examination-in-chief and the report. Moreover, it has come on record that the stomach of the deceased was empty and that he deposed that he cannot opine that the deceased was habitual to sex.

59. Mrs. Deshmukh, referring to the evidence of PW-3 Nimisha Abroal (complainant) who was the roommate of the deceased Khushbu, has submitted that even this witness has stated that she knew the accused and one day, the accused had come to their house at Pune and suddenly dispute between the deceased and the accused had taken place and that the accused asked her to give understanding to the deceased and that earlier the deceased and the accused had an affair and later on dispute had occurred between both of them. She also deposed that whenever the accused had called the deceased, the deceased used to get angry. She also deposed that on the day of the incident, her brother PW-4 Prashant dropped her to her room where the incident had taken place. She rang the bell and knocked the door, but there was no response. Hence she opened the door with other key and saw the deceased Khushbu murdered. She called the police. She also deposed that the watchman had told that one boy Deepak (PW-1) had come and was asking for the deceased. She has stated that she lodged complaint against the accused on 21 October 2008. She submits that in the cross-examination, she clearly stated that there is a security guard in the building.

60. Mrs. Deshmukh has taken us through the evidence of all the prosecution witnesses. Her submission is that the findings, which are recorded on the basis of documentary and oral evidence on record, clearly go to show that it is only the accused who has committed the crime, as according to her, the chain of circumstances is complete from the evidence of firstly PW-1 Deepak Agnihotri, PW-3 Nimisha Abroal, PW-5 Archana Yadav and PW-13 Rahul Dubey, which go to show that the accused and the deceased were from Bhopal. They were knowing each other and they had an affair and subsequently, there was break up and the deceased Khushbu had started avoiding the accused.

61. Mrs. Deshmukh referring to the second link in the chain, would refer to the evidence of PW-1 Deepak Agnihotri, PW-5 Archana Yadav and PW-13 Rahul Dubey that the accused was harassing her and expressed his anger to revenge and always was giving such understanding to the deceased.

62. She submits that the third link is the motive. Mrs. Deshmukh referring to the third link submits that there is a motive for the appellant/accused to commit the crime, which is clear from the evidence of PW-1 Deepak Agnihotri, PW-5 Archana Yadav and PW-13 Rahul Dubey who have deposed that the accused was aware that the deceased was avoiding him and in fact, was having affair with someone else. She submits that the deceased having lodged the complaint against the accused and warning letter was issued to the accused by the employees of the Capgemini is one of the vital links as seen from the evidence of PW-5 Archana Yadav, PW-7 Deepali Patil and PW-9 Ashish Potdar.

63. Insofar as the next link is concerned, referring to the conduct of the accused in very disturbed state of mind since the deceased was avoiding him, Mrs. Deshmukh has referred to the deposition of PW-5 Archana Yadav, PW-7 Deepali Patil, PW-9 Ashish Potdar and PW-13 Rahul Dubey, who according to her, have clearly deposed about the state of mind of the accused against the deceased. The evidence of PW-5 Archana Yadav is referred to be relevant in such chain of events which goes to show that the accused knew that the deceased was alone at home on 20 October 2008.

64. It is submitted that at about 07.30 p.m. on 21 October 2008, the evidence of PW-12 Pushpesh Singh (colleague of the accused) showed that the accused was in a very angry mood and was giving some understanding to someone on phone. The call details of the accused showed that such call was made by him at about 07.30 p.m. on 20 October 2008.

65. Insofar as the next link is concerned, it is submitted that the accused was leaving on his Pulsar motorcycle from his home as seen from the evidence of PW-8 Suresh Tilave (watchman of the housing society of the accused). It is submitted that on the day of the incident, in the evening after 08.00 p.m., friends had called the deceased, but she had not responded to their calls, which was clear from the evidence of PW-1 Deepak Agnihotri and PW-5 Archana Yadav, friends of the deceased and the accused. She submits that followed by this, was that PW-1 Deepak Agnihotri had called the accused to inform that the deceased was not responding to the phone calls as also the accused did not respond. She submits that followed by this, was at about

09.00 p.m. the accused had come to his flat and again came out at about 10.30 p.m. by his Pulsar motorcycle and thereafter did not come back which was clear from the evidence of PW-8 Suresh Tilave (watchman of the accused society).

66. Mrs. Deshmukh has submitted that the deceased was found having multiple stab injuries and she was lying as such in her flat in the evening as noticed by PW-3 Nimisha (roommate of the deceased) who had returned home and PW-3 Nimisha accordingly had lodged the F.I.R., as the deceased was murdered brutally. Referring to the evidence of PW-3 Nimisha, PW-4 Prashant and PW-14 API Madhusudan Joshi who registered the crime report. It is submitted that the postmortem report shows the cause of death of the deceased was due to multiple injuries and rape referring to the postmortem report of PW-2 Dr. Bhalekar. Mrs. Deshmukh has referred to PW-13 Rahul Dubey (so called elder brother of the accused) who was also working in the accused’s company. He deposed that the accused had called him on 21 October 2008 in the morning and had given extra judicial confession that he had murdered the deceased. Mrs. Deshmukh submits that from the seizure of knife from the spot and pant and nicker of the deceased near bed, which was stained with blood, intention of the accused was clear as deposed by PW-4 (friend of the accused). It is her submission that the seizure of the blood-stained clothes seized from the room of the accused is also proved, as seen from the evidence of PW-4 Prashant, PW-15 Sayyad Sabirali (Police Inspector) who seized the clothes of the deceased.

67. It is next submitted that the accused had absconded from Pune as his Pulsar motorcycle was seized from outside the railway station at Pune on 21 October 2008 which is seen from the evidence of PW-11 Chandrakant Khamitkar (panch witness in regard to the seizure of the motorcycle). It is her submission that the accused was arrested from Bhopal. He was produced by his father at Habibganj Police Station at Bhopal on 22 October 2008 and hence his abandonment of motorcycle at Pune Railway Station and arrest from Bhopal are material circumstances. She submits that it is further proved that he was arrested by Pune Police Station on 24 October 2008 by bringing him from Bhopal as seen from the evidence of PW-19 Sr. P.I. Sheshrao Suryawanshi (IO). Further when the accused after having arrested was produced for medical examination before PW-16 Dr. Vilas Nalawade, injuries were noticed on his body, which were stated to be caused during scuffle. She has lastly referred to the chemical analysis report to submit that ‘B’ blood group was noticed on the clothes of the accused and articles knives, etc. are also found at the spot, on the clothes of the deceased namely nicker and cut marks of knife on it.

68. It is submitted that fingerprints of the accused were found on the wall of the flat of the deceased and that palm print impression of the accused was tallied with wall palm prints as seen from the evidence of PW-20 Mohan Rathod (fingerprint expert) and PW-21 Anand Pote (Sr. fingerprint expert). It is lastly submitted that nowhere any incriminating material was explained by the accused. Further additional link to connect the accused with crime is clearly available in the statement of the accused as recorded under Section 313 of the Cr. P.C. It is hence her submission that the accused has been rightly held to be guilty of the offences as charged. Hence the impugned judgment and order passed by the Sessions Judge would not call for any interference and the appeal needs to be dismissed.

69. Before dealing with the submissions as advanced at bar, it will be useful to refer to the principles governing appreciation of evidence of a case based on circumstantial evidence. The Supreme Court in the case of Hanumant Govind Nargundkar vs. State of Madhya Pradesh[2] held that in cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and further all the facts so established should be consistent only with the hypothesis of the guilt of the accused. AIR 1952 SC 343 The circumstances should be of a conclusive nature and tendency so as to exclude every hypothesis but the one proposed to be proved. That the chain of evidence should be complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such to show that with all human probability, the act must have been done by the accused and the accused alone. In Sharad Birdhi Chand Sarda vs. State of Maharashtra[3], laying down the principles for conviction on the basis of circumstantial evidence, the Supreme Court held that the following conditions must be fulfilled, before the case against the accused can be said to be fully established:- “(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved;

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

70. In paragraph 153 of the aforesaid decision, Their Lordships observed that the said “five golden principles” constitute the "Panchsheel" of the proof of a case based on circumstantial evidence.

71. The aforesaid decisions are recently reiterated by the three Judge Bench of the AIR 1984 SC 1622 Supreme Court in Abdul Nassar vs. State of Kerala[4].

72. With the assistance of learned counsel for the parties, we have carefully examined the evidence on the record of the trial Court and the submissions as advanced on behalf of the appellant/accused and on behalf of the prosecution.

73. Considering the evidence of PW-3 Nimisha, roommate of the deceased and the complainant, as also the other friends of the deceased, namely, PW-4 Prashant Shrivastav and PW-5 Archana Tirthshankar Yadav and further corroborated by the testimony of PW-7 Deepali Ashok Patil and PW-13 Rahul Dubey, it is evident that the deceased had an affair with the accused, which had suffered a break up, as a result of which the accused was severely angry against the deceased and wanted to take a revenge. Deceased Khushbu had refused to maintain relations with the accused and /or was befriending other friends, which fueled the jealousy and anger of the accused. The testimony of PW-1 Deepak and PW-13 Rahul is unchallenged, on the accused stating that for such reasons he would kill the deceased (“by cutting her into pieces”).

74. Such conduct, behaviour and actions of the accused had not remained to be a matter, purely personal between the deceased and the accused, but it had also affected his employment with Capgemini, inasmuch as the deceased being extremely disturbed and aggrieved by such actions of the accused, had approached PW-7 Deepali (Incharge HR Consultant), who referred the complaint of the deceased to 2025 SCC OnLine SC 111 PW-9 Ashish Potdar [Senior Manager, HR of Capgemini] for action to be taken. From the reading of the testimony of these witnesses, the nature of the grievances “officially made” to the management of Capgemini, resulted in the accused being reprimanded and being asked to correct his behaviour towards the deceased on the complaints, made by the deceased. He was asked not to meet her by PW-7 Deepali and PW-9 Ashish.

75. The testimony of PW-1 Deepak clearly depicts that the accused had expressed extreme rage and resentment against the deceased to PW-1, who also hailed from Bhopal and was acquainted with the accused. PW-1 in his evidence has stated that the accused and deceased knew each other and that they had a broken love affair, as since about one year, there were disputes between the accused and the deceased and both were not talking to each other. He also deposed that the accused tried to talk with the deceased and that the deceased always avoided him. PW-1 also deposed that the accused had insisted deceased Khushbu to talk with him. It is against such actions of the accused of causing harassment to the deceased, the deceased had made a written complaint against the accused with Capgemini as noted hereinabove. PW-1 Deepak also deposed that deceased Khushbu was having friendship with one Manish Singh, one of the colleagues, and accused was annoyed, even on this count. Most significantly, the testimony of PW-1- Deepak has remained unshaken insofar as it records that one week prior to the incident, the accused had told PW-1 Deepak that “he will cut Khushbu into pieces”, as Khushbu had lodged a complaint against him with the employer, which he believed that such utterances were made in anger.

76. It is thus significant from the testimony of PW-1-Deepak that on the date of the incident, i.e., on 20 October, 2008 at about 12 noon, the accused had come to his office and asked him to call deceased Khushbu, as he wanted to talk with her. PW-1 Deepak having so informed the deceased and the accused met her in the office premises, there was a talk between the accused and deceased for about an hour and half. The testimony of PW-1 Deepak further shows that after such talk, the deceased told PW-1 Deepak that accused was insisting her to keep relations with him and that the deceased was not ready to do so.

77. The testimony of PW-1 Deepak further shows that on the day of the incident, deceased Khushbu left the office at about 5.30 p.m. whereas PW-1 Deepak left the office at about 7.30 p.m. At about 7.45 p.m. when he was travelling in the bus, deceased Khushbu called him on his mobile and told him that the accused was trying to contact her on mobile and she did not want to talk with him. PW-1 Deepak also stated in his testimony that around 7.30 p.m. the accused had also called him on his mobile enquiring whether he has left the office. PW-1 Deepak has further deposed that at about 8.15 p.m. when he was still in the bus, he was trying to call deceased Khushbu, however, she was not answering. He further deposed that he was desperately trying to contact the deceased on her mobile for the reason she had earlier informed him about the accused trying to contact her. PW-1 – Deepak after reaching home again tried to call deceased but her phone was not reachable. On such backdrop, PW-1 Deepak again called accused and asked him about the deceased answering her mobile phone. On this, accused informed PW-1 Deepak that there was quarrel between him and the deceased and there is possibility that she had hence switched off her mobile. PW-1 Deepak deposed that he was worried about deceased Khushbu and felt that he along with accused should go to deceased Khushbu’s home to convince her, as she might be depressed and would commit suicide. However, significantly, the accused was not ready to come with him.

78. PW-1 Deepak was not knowing the address of the deceased, hence he obtained the address of deceased Khushbu from the friend of the deceased PW-5- Archana Yadav. Thereafter, PW-1 Deepak went to the residence of deceased Khushbu (Aditya Park Society) by autorickshaw and reached at the spot at about 10 to 10.30 p.m. when he asked the watchman about deceased Khushbu. On receiving the information from the watchman that three girls were residing in one flat. Such flat was shown to PW-1 Deepak by the watchman. PW-1 has deposed that he rang the doorbell of the flat but nobody opened it. He continued to ring the doorbell when the watchman interrupted him, telling him that the neighbours are being disturbed by PW-1 Deepak continuous ringing the doorbell and thereafter PW-1 Deepak left the premises. It is significant that on these circumstances, at about 11 p.m. PW-1-Deepak called the accused and told that the deceased was not responding and was not opening the door and asked the accused to come with him, to which the accused did not give any response. Moreover, when PW-1 insisted him, the accused told him that he would reach the residence of the deceased within 15 minutes. On such assurance, PW-1 Deepak waited for almost half an hour, but the accused did not turn up. At such point of time, PW-1 Deepak again called accused when his phone was switched off. In these circumstances, PW-1 Deepak returned to his house. There is no explanation to this testimony or any cross-examination.

79. It is on such backdrop, PW-1 Deepak received a call from the Chaturshringi Police Station at 3 a.m. on 21 October 2008 that he should come to the Police Station. He reached the Police Station between 6 a.m. to 7 a.m. PW-1 Deepak accompanied the police officials to the residence of accused at the ‘Nisarg City’ premises. During the search of the house of the deceased, blood stained jeans and blood stained T-shirt of the deceased, which were lying on the rope were seized. The cross-examination, testimony of PW-1 on the recovery has remained unshaken. In the cross-examination, PW-1 Deepak has reiterated that accused was warned by the Management of Capgemini (PW-7 Deepali and PW-9 Ashish Potdar), and that he was aware that even after such warning, the accused was causing harassment to her. Thus, in our opinion, the deposition of PW-1 is very crucial, when the Court is required to consider as to whether such circumstantial evidence unequivocally raises its finger towards the person having a motive to commit the crime in question, and for the Court to consider all the cumulative circumstances, so as to determine whether they point out to the guilt of the accused and none other than the accused in commission of the offence of murder of Khushbu.

80. The next crucial evidence is of PW-3-Nimisha, who was the roommate and friend of the deceased. She was residing in the flat along with the deceased, as she was pursuing her MBA from 2007 to 2009 at Pune. Her native place was Bhopal. She deposed that she knew deceased Khushbu who was also from Bhopal, as deceased Khushbu was her family friend. She deposed that she knew the accused, as he also hailed from Bhopal and had met her at Pune on two to three occasions. Her deposition is significant so as to indicate that in the past the accused had suddenly come to her house, at which point of time there was a dispute between the deceased and the accused. PW-3 Nimisha also deposed that on one occasion, deceased Khushbu was not at home, as she had gone to Shirdi when the accused asked PW-3 Nimisha to give her an understanding. PW-3 Nimisha further deposed that earlier the accused and deceased were good friends and thereafter they had a love affair, however, the same had broken. She was aware of the disputes, as whenever the deceased received phone calls from the accused, she used to cry and talk with him in anger.

81. P.W.[3] Nimisha also deposed that on 11 October, 2008, other friend, namely, Nehal, who was also staying with PW-3 Nimisha and the deceased, had gone to Bhopal and further on 18 October, 2008 PW-3 Nimisha went to her maternal uncle’s house at Pimpri, Pune, when deceased Khushbu was alone at home. PW-3 Nimisha called the deceased on 19 October 2008, to ask her whether she would return home, when the deceased told her that her friend Archana would give her company and therefore PW-3 Nimisha did not return home. PW-3 Nimisha further deposed that on 20 October (date of incident), she went out for dinner at about 9.30 – 10 p.m with her cousins Abhishek, Vibha and Prashant (P.W.4) and after dinner Abhishek and Vibha went to their house and brother Prashant dropped her at home at the Aditya Park Society. PW-3 deposed that when she returned to her house, PW-

4 Prashant had accompanied her. She deposed that she rang the bell but there was no response from inside, so she opened the door with her keys. On entering the house, she saw that there were blood spots on wall and mattresses and bedsheet was smeared with blood. She also noticed one knife lying on the floor and the bloodstains in lobby towards bedroom indicating that somebody had pulled the body. When she went to the bedroom, she found that the body was covered with blanket. At that time she received a phone call from the watchman and so she came out to attend the call, when the watchman told her, that P.W. 1 - Deepak had come to her house and was asking for deceased Khushbu, She deposed that thereafter she locked the door and went out with Prashant and informed about the incident to the watchman, who called the police.

82. Thus, the testimony of PW-3 Nimisha points out that the deceased was having a love affair with accused and which had in fact stood broken, as the accused was causing harassment to the deceased and the deceased used to cry and get angry on receiving calls from the accused. The deposition of PW-3 Nimisha also shows that the deceased was alone at home, as neither PW-3 nor the other friend Nehal, who was staying with the deceased was present in the flat as she had also gone to Bhopal.

83. It thus becomes clear from the testimony of PW-1 Deepak, PW-3 Nimisha, PW-7 Deepali and PW-9 Ashish Potdar that there was a motive for the accused against the deceased to the extent that the accused intended to take revenge and kill her, as their relations had fallen apart.

84. The next issue in this chain of circumstances which would be necessary to be considered, is as to how the accused received the knowledge that the deceased was alone at home. PW-5 Archana was also an employee of Capgemini from June, 2008. She deposed that she knew Khushbu, as they joined Capgemini at the same time. She also deposed that she knew the accused and deceased Khushbu very well, as they were having love affair since college days and after coming to Pune for employment, their relations were not cordial. In her testimony, PW-5 Archana has categorically stated that deceased Khushbu wanted to break all relations with the accused and despite which the accused used to contact her and tried to talk with her, but deceased was not giving response and was avoiding him. She also stated in her testimony that deceased Khushbu had lodged a complaint in the office against the accused, as the accused insisted the deceased to talk with him. The second part of deposition of PW- 5 is that on the day earlier to the incident, i.e., 19 October, 2008 in the evening, she had gone to the house of deceased Khushbu for the first time at the Aditya Park Society, Balewadi, Pune. She stated that deceased came down to receive her and there was no security guard. She deposed that on that day the deceased was alone at home, as her other roommates Nehal and P.W. 3 – Nimisha, were also not available as Nehal had gone to her native place at Bhopal and PW-3 Nimisha had gone to her maternal uncle’s house at Pimpri, Pune. She also stated that on the day of incident, she went with the deceased to the office by bus. What is most significant that when she deposes that at about 11 a.m., accused came to talk with PW-5 Archana casually, the accused told her to give the deceased an understanding to talk with him. It is at such point of time, PW-5 Archana she told the accused that she was with the deceased on the earlier night, as her roommate Nimisha had gone to her maternal uncle’s place and Nehal had gone to Bhopal and the deceased was alone in her house. She also deposed that in the evening deceased Khushbu called Archana on her mobile to enquire whether she was coming to her house when PW-5 Archana told her that she had some work and she will go to her own house. PW-5 Archana left the office at about 7.30 p.m.

85. Further circumstances are important, namely, that PW-5 Archana at about 9 p.m. received a call from PW-1 Deepak on her mobile and told her that he was trying to call Khusbhu, but she was not responding to his calls. PW-1 Deepak hence asked her to give the address of Khushbu, which she gave it to him. P.W.[5] – Archana further deposed that thereafter she called the accused and told him that the mobile of deceased was not responding and therefore asked him to give her the mobile number of deceased’s roommate P.W. 3 - Nimisha. The accused informed PW-5 Archana that P.W.[3] Nimisha was having new mobile number, which was not known to him. The accused also told P.W.[5] – Archana that there was dispute between the deceased and accused, so she must have switched off her mobile phone, and asked her to try again after sometime. P.W.[5] Archana deposed that it is on the next date between 7.30 to

8.00 a.m. she came to know about the murder of Khushbu.

86. The deposition of PW-5 Archana assumes significance inasmuch as it is PW-5 Archana from whom the accused received information that the deceased on the date of the incident was alone in her flat, as her roommate PW-3 Nimisha and Nehal were away, and it was this information and the position of the deceased as revealed to the accused by PW-5 Archana, turned to be fatal to the deceased Khushbu, inasmuch as deceased Khushbu being alone in the flat, it was the best possible opportunity for the accused to commit the crime to which he was determined to commit as informed to P.W.[1] Deepak and P.W.13 Rahul in the absence of the likelihood of any witness being available, namely, her roommates, whose presence would have completely changed the scene of the crime.

87. The next question is as to what are the other circumstances which would point out to the guilt of the accused. In such context it may be observed that there is no evidence to indicate that the deceased had any enmity with any other person and of such a nature that such person would have an intention to physically harm her and/or kill her. Thus, such circumstances assume significance as the only person who had a motive and who intended to kill deceased Khushbu was none other than the accused, which has unequivocally been stated in the testimony of not only PW-1 Deepak and PW-13 Rahul and the circumstances as brought about in the evidence of the other witnesses who have deposed to strained relations between the accused and the deceased and the behavioural pattern of the accused. Thus, these circumstances would point out towards the accused waiting for revenge to be taken on his earlier intentions made known to PW-1 Deepak and PW-13 Rahul with the rage the accused wielded against the deceased having broken relationship with him.

88. Further, on the date of incident, there are circumstances which clearly point out the involvement of the accused, namely, the conversation the accused had with PW-1 Deepak held between 7.30 p.m. to 10.30 p.m. and the conversation which the accused also had with PW-5 Archana at about 9 p.m., and the versions of his response to both PW-1 Deepak and PW-5 Archana on the accused not answering the phone, namely, that there was dispute between himself and deceased Khushbu and therefore she must have switched off the phone. Such response of the accused to both PW-1 Deepak and PW-5 Archana, certainly was not a natural response. This is coupled with the fact that PW-1 Deepak called the accused between 10 to 10.30 p.m. to inform him that the deceased was not responding to which the accused responded that he would reach deceased Khushbu’s residence within 15 minutes. Although PW-

1 Deepak waited for about 30 minutes, the accused did not reach the residence of deceased Khushbu, such testimony in this regard of PW-1 Deepak as also of PW-5 Archana has remained unshaken.

89. The next circumstance is that after about 11 p.m., the accused switched off his mobile phone and/or was not available. In this context, the deposition of PW-8 Suresh Tilave is significant, in which he has deposed that he was the watchman of Nisarga Society where the accused was residing. He stated that he was on duty on the date of the incident (20 October 2008), and that he was knowing the accused who was residing at ‘C’ building in Flat No. 403 along with 4 to 5 persons. He also deposed that accused had red colour pulsar motorcycle bearing no. 8877. He deposed that on the date of incident, he came for the duty at 7.30 p.m. and at that time, accused went along with one boy on his motorcycle. He further deposed that about 9 p.m., the accused came back and went out alone on his motorcycle. He deposed that the accused, again returned and went out at about 10.30 p.m. to 11 p.m. and thereafter never came back. He deposed that on that day, the accused was driving fast. He also identified the accused. The accused had accordingly left his house at about 7.30 p.m. and came back at 9 p.m., which was a time gap of about 1½ hours and thereafter again left the house at about 10.30 p.m. to 11 p.m. and never came back, would show that the accused had a reason not to be in the house between

7.30 p.m. to 9 p.m. on the date of incident. His absence from the house and his hurried movements in and out of the house between 9 to 11 p.m. and thereafter not returning home, does not find any explanation in the chain of circumstances.

90. Coupled with such evidence are the recoveries which would assume significance, namely, the recovery of motorcycle at Pune Railway Station, the recovery of blood stained clothes at the residence of the accused and there being no explanation for what reason the accused was required to leave Pune to be in Bhopal where he surrendered himself to the police.

91. On arrest at Bhopal and being brought to Pune the medical examination of the accused was conducted by PW-16 Dr. Vilas Ramchandra Nalawade, who was attached to the General Hospital, Aundh, Pune and who examined the accused on 24 October, 2008. In his deposition PW-16 stated that there were abrasions 5 in number over left forearm, middle 1/3rd and lateral aspect about ½ cm X ½ cm scaling and blackening with no fresh blood and further abrasion 1 over upper 1/3rd right forearm, lateral aspect ½ cm X ½ cm scaling and blackening with no fresh bleeding. He deposed that such injuries were caused by hard and blunt object. He deposed that the age of the injuries was of more than 42 hours. He also deposed that nature of the injuries could be by nails during scuffle at the time of either sexual assault or murder. The cross-examination of PW-16 Dr. Vilas Nalawade also does not reveal anything significant to dislodge and discredit his evidence.

92. Now coming to the evidence of PW-2 Dr. Bhausaheb Dada Bhalekar, Medical Officer at Civil Hospital, Aundh, Pune, who conducted the post mortem. In his deposition he has stated that there were external injuries on the body of the deceased which were recorded in the notes of post mortem namely on a separate sheet of paper describing the wounds on the neck, left elbow, left arm. He has stated that there were total 18 injuries. (See: Paragraph 31 above) He has also stated that there were internal injuries to the left kidney, incise wound at lower pole 1 c.m. He described that the incise wound at Sr. Nos. 3, 4, 5, 6, 7 & 8 were caused by knife, which were possible due to the knife recovered (Articles 6 & 8). The stab wounds at Sr. Nos. 15, 16, 17 & 18 being caused by such recovered articles, was not ruled out. He has also stated that the contusion was possible due to hard and blunt object. He has also described injuries in the nature of teeth marks, stated to be human bite teeth marks. Considering such injuries, he deposed that the possibility of rape cannot be ruled out. PW-2 has also set out that the internal injuries to the organs of generation – hymen, which was stated to be ruptured (old), no internal injury seen on the vaginal canal. Juxtaposed to this evidence, is the evidence of PW-16 Dr. Vilas Nalawade, Medical Officer who examined the accused on 24 October 2008, when on examination of the injuries on the body of the accused, PW-16 Dr. Vilas deposed that the injuries described by him, were injuries caused were more than 42 hours prior to the medical examination of the accused as discussed by us hereinabove. He also deposed that the injuries were possible by nails during scuffle at the time of either sexual assault or murder. Such medical evidence certainly brings about the close connection of the injuries considering the incident, including on the age of the injuries and the injuries on the body of the deceased. The circumstances point out that it was the accused who had a scuffle in committing the murder of deceased Khushbu and in such scuffle he suffered these injuries. These circumstances exclude any other hypothesis, but the one proposed to be proved namely that there cannot be any other reading of the medical evidence and that she was killed by the articles which were recovered from the place of the incident. There is nothing contradictory which was elicited in the cross examination in the evidence of PW-2 and PW-16.

93. In the evidence of PW-2 Dr. Bhausaheb Bhalekar, in his cross examination he has also stated that considering such medical evidence, it did not appear that the deceased had an old rupture hymen or that she was habitual to sex, however, such hypothesis would not persuade us to conclude that the accused is guilty of the offence of rape as the provisions of law stood on the date of the offence. Although there were teeth (bite) marks on the left breast as also on left hypochondrium on upper part of abdomen, and even teeth (bite) marks on left side on pubic region, however, these injuries would not prove the offence of rape.

94. Now question is of the forensic evidence which was gathered by the forensic team and most importantly the fingerprints. Insofar as the forensic report is concerned, the same was placed on record before the trial Court being Report dated 27 January 2009 as issued by the Deputy Director / Deputy Superintendent of Police, Finger Print Bureau, which is to the following effect:- “One blood palm chance print found on the wall concerned in the case cited above is Identical with left hand palm print portion on the palm impression slip of the Mannu Mohinder Madhuresh, the accused received for comparison under No. quoted above.”

95. This document was admitted by the accused in the evidence and exhibited to this effect, signature was rendered on the said document, as also it bears the signature of Advocate for accused, both dated 10 February 2014, the said endorsement reads thus: “Document is Admitted and may be exhibited”

96. Once the said document was admitted and exhibited, there is hardly any scope for the accused to raise a contention in the present appeal, that the contents of the documents are not proved and more particularly on the ground that, the palm chance prints on the wall were taken in a photograph by a photographer, on the same being compared with the actual palm prints of the accused. Also on the assertion that there was a requirement of the photograph being considered to be electronic evidence requiring certification under Section 65B of the Evidence Act, in our opinion, such argument of the accused is misconceived, as once the document of the finger print expert’s report itself was admitted and exhibited, there was no scope to dispute such expert’s report on such ground as well as considering the settled principle of law. This also for the reason that it has come in the deposition of PW-22 Sharad Kshatriya, the Government Photographer that on the date of the incident, he had taken photographs of the ‘blood palm chance print’, on the wall of the flat where the deceased was residing. The evidence of PW-22 photographer was sufficient. The credibility of the evidence of PW-22 in no manner was shaken in the cross examination so as to create any doubt in regard to the blood palm chance print found on the wall and of which the photograph was taken by PW-22. In any event, there is no evidence which would doubt the credibility of report of the finger print expert at Exhibit 84, also the contention as urged on behalf of the accused doubting the credibility of the finger print expert, on the ground that one blood palm chance print/photograph being electronic evidence, required certification under the provisions of Section 65B of the Evidence Act, would lead to an absurdity, in the circumstances as exists, inasmuch as if such argument is accepted to such extent it would render the record qua such document (Exhibit 84) before the Trial Court as the accused himself put the signature on the report of the Finger Print Expert (Exhibit 84), confirming that the document is admitted and exhibited, as also the Advocate for the accused endorsing his signature with the same remark. Thus, to discard admission of the document is a position contrary to the record. On this count the report of the finger Print Expert (Exhibit 84) cannot be disbelieved. In such context, reliance on behalf of the accused for such proposition on the decision of Anvar P.V. Vs. P.K. Basheer[5] would not assist the accused. Further, the contention as urged on behalf of the appellant that the Finger Print / Palm Print Report is inadmissible in evidence, as it was based on the photographs and it could be required (2014)10 SCC 473 to be considered as electronic evidence requiring certificate under Section 65B(4) of the Indian Evidence Act, cannot be accepted, as in the facts and circumstances of the present case the legal position qua such document, in our opinion, would be squarely governed by the decision of the Supreme Court in Sonu @ Amar V. State of Haryana[6] wherein the Supreme Court observed thus: “29. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65-B(4) of the Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the trial court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. InGopal Das v.Thakurji [Gopal Das v. Thakurji, 1943 SCC OnLine PC 2: AIR 1943 PC 83], it was held that: (SCC OnLine PC) “… Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof.”

97. Now coming to the testimony of PW13 Rahul Dubey, we find substance in the contention of Mrs. Deshmukh, learned Additional Public Prosecutor referring to the following contents of the evidence of PW-13 Rahul when he deposed as under: “At about 12.30 p.m. Manu Abrol called me on my Mobile phone saying that whether I am aware about the happening and I replied that I am aware about the Khushboo's murder, When I asked him where he is, he told me that you will be in trouble if the place is traced. He told me on telephone that he did not feel sorry and guilt whatever he did and he said that he will come back and (2017)8 SCC 570 surrender himself and he asked me to ask police not to trouble his parents at Bhopal.”

98. Mrs. Deshmukh has submitted that this private confession is sufficient to bring home the guilt of the accused. We may observe that the crossexamination of PW-13 on such testimony does not discredit the aforesaid evidence of PW-13 and/or elicit anything of relevance so as to discard such testimony. Thus, in such context we are in agreement with the view taken by the learned Sessions Judge when he observed that such private confession of the accused to PW-13 certainly would satisfy the test of extra-judicial confession applying the principles as set out by the Supreme Court in Sahadevan and Anr. vs. State of Tamil Nadu[7], when the Supreme Court has categorically held that an extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. Considering the present extra-judicial confession, it does not suffer from any material discrepancies and inherent improbabilities, when tested on the abundant evidence on record in regard to motives and clear intention of the accused, consistent to the fact that the accused was hell bent to take revenge and murder deceased Khushbu. Thus, such extra-judicial confession in the facts of the present case is certainly admissible.

99. Now we deal with the contentions as urged by Mr. Ray in supporting the case of the accused. The submissions of Mr. Ray on the evidence of PW-3 Nimisha are not well founded when he gives an account of the entry of PW-3 Nimisha to the flat, to derive a logic that the accused could not have even entered the premises of Aditya Park Society and thereafter to enter the flat to commit the murder. Such contention of Mr. Ray cannot be accepted, more particularly when there is a clear evidence that neither the visitor’s register was maintained nor the CCTV cameras were functional. Such evidence as laid by the prosecution has remained unchallenged.

100. The next submission of Mr. Tripurari Ray is that the evidence of the prosecution is required to be discarded as biased and tainted when he contends that the circumstances, which were existing at the place of occurrence, reveal an altogether a different story. It is further quite bold to contend and without any material that crucial evidence was fabricated and planted by the prosecution. In the context of the arguments of recoveries of knives, Mr. Ray’s contention is that the body of the deceased although was naked, there is no recovery of torn clothes from the place of occurrence, when it has clearly come in evidence and as noted by us extensively in the aforesaid paragraphs, that all the clothes of the deceased were recovered and they were forming part of record of the proceedings as also identified by PW-4 Prashant.

101. We are also not persuaded to accept the submission of Mr. Tripurari Ray in regard to the evidence on the fingerprints, when the best possible evidence of the fingerprints on the wall was taken in the form of one blood palm chance print and the same was sent for opinion of the fingerprint expert on the comparative fingerprints of the accused as taken under the orders of the Court. To undertake investigation and to collect best possible evidence is within the domain of the investigating agency. The accused cannot contend that the best possible evidence which was collected, need to be discarded, as according to the accused, alternative evidence could have been collected. This is a misconceived proposition. In the present case, once the palm chance print was available, being the prominent evidence as collected by the investigating agency in terms of the photograph, as taken and proved in the evidence of the Government photographer and further an expert report thereon being obtained and admitted in evidence, on comparing the palm print of the accused taken by a proper procedure being followed under the orders of the Court, the contention of the accused that such evidence be discarded, is wholly not acceptable. It cannot result in discarding such evidence and which in fact clearly matches the fingerprints of the accused as seen from the forensic report. Accepting Mr. Ray’s contention that very strong evidence is not obtained by the prosecution, is an argument which cannot be accepted in the facts of the case.

102. Mr. Ray’s contention in regard to the recovery of the blood-stained clothes from the flat of the accused that it is a false evidence and planted against the accused, also cannot be accepted, considering the recovery panchnama and all the surrounding circumstances as seen from the evidence of watchman PW-8 Suresh Rambhau Tilave that the accused had left the society premises at 07.30 p.m. and returned at about 09.00 p.m. Then he again went out and returned back and thereafter he went out at about 10.30 p.m. and never came back. It is, therefore, not improbable that in the hurried sequence of his activities, the accused had not taken care to hide or dispose of his clothes, so that the same could not be recovered.

103. The next contention of Mr. Ray that the evidence of the Call Data Record (CDR) is inadmissible/fabricated, cannot be accepted. The call data record is not merely relevant in the context of the location of the mobile of the accused, but also, from the data of the calls made by the accused. Further the CDR report was admitted in evidence and hence, considering the settled position in law, once the said document is admitted in evidence, necessarily it will be available to the Court to be considered in the evidence and for such reason the contention on Section 65B of the Indian Evidence Act, and as same not being supported by certificate, would be required to be rejected considering the settled principle of law as laid down by the Supreme Court in the Sonu @ Amar V. State of Haryana.(supra). The CDR report indicating that a call was made by accused at 12.30 p.m. on 21 October 2008 and which is in fact the deposition of PW-13 Rahul Dubey, when he deposed in his evidence of the extra judicial confession when he narrated, that at about 12.30 p.m. accused called him on his Mobile phone stating whether the accused was aware about the happenings when the accused replied that he was aware about the deceased Khushbu’s murder. When PW-13 Rahul asked him about his whereabouts, the accused told PW-13 Rahul that PW-13 Rahul will be in trouble if the place is traced. The accused also categorically stated that he did not feel sorry and guilty for whatever he did, he will come back and surrender himself and asked PW-13 to inform police, not to trouble his parents at Bhopal. The cross examination of PW-13 Rahul did not elicit anything which would require the Court to discard such vital testimony of PW-13 as also clearly supported by the CDRs. Mere denial of such evidence by the accused in the statement made under Section 313 of Cr.P.C. cannot bring about a consequence to discard such evidence of PW-13 which, in our opinion, would completely point the finger to the guilt of the accused, as no explanation is coming forth.

104. Mr. Ray’s contention that Ex. 84, namely, the report of the finger print expert (PW-20) Mr. Mohan Rathod needs to be discarded as it is hit by the provisions of Section 293 and such report would stand outside the purview of Section 294 of Cr.P.C., is wholly untenable, for two reasons, firstly, that Ex.84 has been admitted in evidence being a document fully falling within the purview of Section 294 of Cr. P.C. and was accordingly exhibited being admitted by the accused by putting his signature making an endorsement “the document is admitted and may be exhibited". The said remark has been made by the advocate for the accused. Secondly, it cannot be overlooked that the finger print expert (PW-20) was being examined by the prosecution as its witness, and it was not the Court invoking the provisions of sub section (2) of Section 293 to summon PW-20 in intending to examine such expert, as to the subject matter of the report. This is the subtle distinction between the provisions of Section 293 and Section 294. Thus, the contention of Mr. Ray on the applicability of Section 293 is wholly untenable considering the admitted position of the evidence of PW-20 on record. It is well settled that recourse to Section 293 could have been taken in the event, the Court was to be of the opinion that the finger print expert is required to be examined as the Court thinks it necessary. Thus, the proof of the report of the finger print expert was not felt necessary by the Court and more particularly, when the accused himself was not disputing its genuineness. Thus, to raise such contention touching such procedural aspect as Section 293 and 294 would govern cannot assist the accused, in the Court not considering the report of the finger print expert as a document to be read in evidence. In any event such argument of Mr. Ray is not well founded.

105. Mr. Ray’s contention that the report of the finger print expert also need to be discarded on the ground that there was no evidence of the finger prints of the accused being obtained in the manner known to law to be compared with the finger prints recovered on the chance palm print, as collected on the spot of the crime, also cannot be accepted inasmuch as the finger prints of the accused to be sent for comparison/examination by the finger print expert were obtained by following the procedure in law namely by an application being made to the Court as deposed in the testimony of PW-19 Sheshrao Suryawanshi, when he has stated that “That he had received letter dated 7.11.2008 and 17.11.2008 from the MOB (Ex.107 and 108) as identified by him and as per the said letter finger prints of the accused were to be obtained.” PW-19 Sheshrao Suryawanshi deposed that on 18 November 2011 an application was moved before Judicial Magistrate First Class and a permission was obtained from the Court for getting the thumb impression of the accused. Such permission was granted by the Court by its order of the Court Ex.113, and accordingly letter dated 19 November 2008 was addressed to the Jailor. PW-19 has further deposed that he went through such permission and obtained the finger prints of the accused and on which he put necessary endorsement on such paper and put his signature. The paper with palm impression of the accused was shown to PW-19 in his evidence, and was identified by him to be the same as also bearing his signature (Ex. 114). PW-19 further deposed that the palm impression on the said paper, was the palm impression of the accused Manu. He further deposed that the palm impressions were sent to the MOB (Modus Operandi Bureau) on 21 November 2008, along with a letter of PW-19 dated 21 November 2008, which he identified during his testimony. PW-19 has further deposed that he has obtained a report of the finger print expert on 6 February 2009 when he has sent the report to the Court along with the chargesheet. The cross examination of PW-19 on this aspect does not elicit any evidence so as to discredit the testimony in regard to the procedure being followed in obtaining the finger prints of the accused and forwarding the same to the finger print expert and obtaining report and/or its authenticity. Thus, the contention as urged on behalf of the accused including on the report of the finger print expert not forming part of the record as the law would mandate making it permissible for the Court, to take into consideration the report of the finger print expert, in our opinion is wholly untenable.

106. Insofar as the evidence of defence witness Dr. Vishal Kumar Khamra is concerned, the same would not assist the case of the accused/appellant. Moreover, in the cross-examination of Dr. Vishal Kumar Khamra, he has admitted that one Rajendra Singh, RTI activist had lodged a complaint alleging that D.W.[1] and his cousin Dr. Shailendra Khamra had issued many fake medical certificates.

107. Thus, whether the chain of circumstantial evidence would point out, to the guilt of the accused, in our opinion, the following evidence and which in our opinion, is a complete chain of the circumstances to bring home the guilt of the accused, so as to clearly indicate that it is none other than the accused who committed the murder of the deceased:i. The accused and the deceased both hailed from Bhopal. They had admittedly a love affair. They were working in the same organization. ii. The relations between the accused and the deceased were severely strained which resulted into break-up. The entire evidence as discussed by us would indicate that the accused was continuously agitated and angry because of such break-up. iii. He also stated to PW-1 Deepak that he would “cut the accused into pieces”. The accused was continuously harassing the deceased not only by making telephone calls which made the deceased angry as also cry as deposed by PW-3 Nimisha, who was residing along with the deceased. The deceased troubled and harassed her at the workplace which resulted into a complaint being made by the deceased to the HR of Capgemini – employer. The accused was reprimanded as seen from the deposition of PW-7 Deepali Ashok Patil, In-charge H.R. Consultant of Capgemini Company and PW-9 Ashish Potdar, Senior Manager, HR of Capgemini Company. iv. The accused was aware that in the evening on the date of incident that the deceased was alone at home which was informed to him by PW-

5 Archana T. Yadav. The accused had left his residence (Nisarg City) on his motorcycle at 07.30 p.m. as deposed by the Watchman PW-8 Suresh Tilave. v. PW-1 Deepak had made a telephone call to the accused at about

7.30 p.m. P.W. 1 on the date of incident in the evening wanted to speak to the deceased as he was worried about his life and that she should not commit suicide. However, at 7.30 p.m. the deceased could not pick up PW-1’s call. Accordingly, PW-1 called the accused and informed the accused that the deceased was not picking up her phone. The accused informed that as the accused had a quarrel with her and as she was angry, she may not be answering the mobile phone. vi. At the relevant time, as deposed by PW-8 Watchman of the Nisarg City Society, the accused had in fact hurriedly returned to his flat in the evening at 9 p.m. and immediately thereafter again he went out between 10.30 p.m. to 11 p.m. Thus, at the time when PW-1 called the accused, he was not at his residence and it appears that he had prepared to leave Pune. As deposed by PW-1, the phone of the accused was thereafter not available after 11.30 p.m. as the accused had left Pune for Bhopal by parking his motorcycle at Pune railway station and the recovery of the motorcycle of the deceased from Pune railway stating indicates that the accused had left for Bhopal after he hurriedly left his residence as deposed by PW-8 Suresh Tilave. vii. As the deceased was not picking up the phone, PW-1 inquired about the address from PW-5 Archana and reached the residence of the deceased at about 10 p.m. and along with the watchman visited the flat and he rang the bell, however, nobody was responding to open the door of the deceased’s flat. However, his ringing of the bell was disturbing the neighbour and that is why he left the premises and from outside the premises, he called up the accused at 11 p.m., when the accused informed him that he would reach in 15 minutes. However, despite PW-1 waiting for half an hour, the accused did not turn up. viii. On 21 October 2008 at 12.30 p.m. the accused made a mobile phone call to PW-13 Rahul Dubey and made an extra judicial confession as also stated that if his location is traced, he would be inviting trouble. The accused also confessed to PW-13 that he did not feel sorry and guilty to whatever he did and that he will come back and surrender himself but the police should not trouble his parents. ix. The report of the Chemical Analysis clearly indicates that the blood group which was found on the articles i.e. the clothes of the accused, blue jeans pant and T-Shirt were matching to the blood group of deceased Khushbu. x. On the motive, a cumulative consideration of the evidence of PW-1 Deepak, PW-5 Archana, PW-13 Rahul clearly indicates that the accused was harassing the deceased and wanted to take revenge. xi. The accused was arrested at Bhopal and was brought to Pune and the medical examination indicate that there were injuries as noted by us hereinabove. There is justifiable explanation in the evidence of the defence as to how such injuries were caused. The injuries have complete relevance and nexus to the tussle which can be related to the incident in question i.e. the accused visiting the flat of the deceased and getting injuries in the course of commission of the crime.

108. The chain of all such circumstances, in our opinion, unequivocally pointed the finger towards the accused to have committed the murder of deceased Khushbu, inasmuch as there was a motive which was on account of anger and jealousy in the deceased breaking up the love affair the accused had with the deceased.

109. As a result of the aforesaid discussion, in our considered opinion, we do not find that the learned Sessions Judge, in any manner, has erred in coming to a conclusion that the accused is guilty of an offence under Section 302 of the Indian Penal Code. The orders passed by the learned Sessions Judge convicting the accused for an offence punishable under Section 302 of the Indian Penal Code, needs to be confirmed. However, for the reasons as observed hereinabove, the conviction of the accused under Section 376 of the Indian Penal Code, cannot be sustained and it is required to be quashed and set aside. We, accordingly, dispose of this appeal in terms of the following order:- ORDER i. The impugned judgment and order dated 14 December 2016 passed by the learned Sessions Judge, convicting the appellant / accused under Section 302 of the Indian Penal Code, stands confirmed and the appeal on such count stands dismissed. ii. The conviction of accused under Section 376 of Indian Penal Code is quashed and set aside and the Criminal appeal to this extent is allowed. Resultantly, the appellant/accused stands acquitted of the offence punishable under Section 376 of the Indian Penal Code. Also the order directing the accused to pay fine of Rs.1000/- stands set aside. If such fine is paid, the same be refunded to the appellant/accused. iii. In view of disposal of the appeal, Interim Applications would not survive and are accordingly disposed of. iv. A copy of this judgment be sent to the appellant/accused who is undergoing sentence in jail. (ADVAIT M. SETHNA, J.) (G. S. KULKARNI, J.)