QUADRI - (1.) THE appellants (Nitin Anil Swargey (A-1), Ronny alias Ronald James Alwaris (A-2) and Santu alias Santosh Balkrishna Desai (A-3)), in these three appeals, have been guilty of offences under Section 302 read with Section 34, Indian Penal Code and are condemned to death; they are also awarded different punishment under various provisions of the Indian Code on their trial by the learned Additional Sessions Judge, Pune in Sessions Case No. 574 of 1992 vide judgment dated April, 28/29, 1995. In regard to sentence of death awarded to the three appellants, the learned Additional Sessions Judge referred the case, Confirmation Case No. 1 of 1995, to the High Court of Bombay, which was heard along with three appeals filed by the above said three appellants. They were disposed of by the High Court by a common judgment dated 27/03/1996, confirming the conviction of and sentences awarded to the appellants. Against the said judgment, by special leave, these appeals are filed.
(2.) THE case set up by the prosecution is as follows : A new colony, Varsha Park Society, is situate at Baner Road near Pune. Among newly constructed houses are two bungalows, 'Rooman Bungalow' of Mr.Mohan Ohol, the President of, and 'Rohini Bungalow' of Mr. Vyankat Krishnan, the Secretary of the Society, which are separated by kutcha road. In Rooman bungalow a well placed family of Ohols was residing. The family comprised of four members, namely, Mr. Mohan Ohol, a Mechanical Engineer, who was working as Executive Officer in Kirloskar Pneumatic Company at Hadapsar, Pune; Mrs. Ruhi Ohol, Ph. D., a research scholar, who having worked as Head of the Department of Master Degree in Business Management (M.B.A.) had started working with the Tata Management Institute as visiting Professor and was organising seminars for M.B.A. students; a seventeen years old son Mr. Rohan Ohol, a student studying in the last year of the Computer Engineering course and a sixteen years old daughter, Ms. Reina Mohan Ohol, who was doing course of diploma of Hotel Management and Catering Technology. To undergo practical training programme of two months, on 8/07/1991, she left Pune for Bombay where she was staying in MLA Hostel. Out of the relations of Mr. Mohan Ohol, his brother, Mr. Vijay Ohol who was working as Assistant Commissioner Revenue, his sisters, Mrs. Mandakini Gaekwad and Mrs. Rajni, his nephews Viren s/o Mr. Vijay Ohol, Nitin Anil Swargey (A-1) s/o Mrs. Rajni and niece Rhoda D/o Mrs. Mandakini and Mrs. Viola Muzaffar (mother of Mrs. Ruhi Ohol) who was a cancer patient and was undergoing treatment in Ruby Hospital, need be mentioned. Nitin Anil Swargey (A-1) and his two friends, Ronny and Santu, A-2 and A-3 respectively, are residents of Bombay; A-1 and A-3 reside at Borivili, Bombay, whereas A-2 resides at Vasal. Distt. Thane, Bombay. They went to Pune on 18/07/1992. There they contacted Tulsi Bhagwan Shetty, a partner of Natraj Hotel for a room. For obtaining the room. A-1 signed, what is known as "A Form" (Article 98). They were given Room No. 16 in that hotel. It appears A-1 left the hotel but A-2 and A-3 stayed there till the morning of 20th July. Ramesh Madhavkar (PW-47), a room boy, took them to that room and looked after them during their stay. After A-1 joined them on 20th July, they left. They paid the charges of the hotel under receipt (Article 97). They asked PW-46 about tourist vehicle to go to Panchgani. He suggested them to approach Deccan Luxury Service, near Deccan Gymkhana, Pune. They went there and contacted Dadasaheb Bhagaji Dhumal (PW-69), Manager of the said Deccan Luxury Service. As no vehicle was available with Deccan Luxury Service, he arranged Maruti Van No. MH-15A-263 of Sri Babar, a sub-contractor, whose driver was paid Rupees two hundred. The name of the hirer was noted as - Sunil Desai of 1312, Shivaji Nagar, Pune - on the chit (Article 89) (Exhibit 258) for booking the vehicle, which was signed by A-1. They then went to the hotel, took the luggage and left the hotel at about 1.30 p.m. From the statement of Mr. Sanjay Mantri (PW-45) it has come on record that from his medical shop. A-1 purchased adhesive tape. At about 6.30 p.m., they came to Bharti Vidyapeeth Rickshaw Stand at Dhankawadi, Pune and hired rickshaw bearing Registration No. MPF-1044. The rickshaw driver (PW-42) who was also the owner of the said rickshaw, took them to Deccan Gymkhana near Lalit Mahal Hotel on Fergusson College Road. From there, they went to Baner Road ahead of Green Park Hotel. To the left side of that hotel is a kutcha road leading to Varsha Park Society, which had become slushy due to rain. So the rickshaw driver refused to go further on the road but A-1 who was said to be wearing goggles took out a revolver and directed him to proceed. Accordingly he advanced further. The rickshaw was stopped near the Rooman bungalow wherein the lights inside and outside were 'on'. In the verandah of the bungalow, three persons were talking - Rohan and his two classmates, K. S. Pradhan (PW-29) and Rajesh Sundaram (PW -34). PWs. 29 and 34, stated that they were students of Computer Engineering in Pune Institute of Computer Engineering Technology at Dhankavadi; that Rohan was their friend from the first year of the course; that they were close to one another and were frequently visiting the house of Rohan; on the request of Rohan, they brought a book and a note book (Articles 30 and 31) to his house on 20th July between 8.15 and 8.30 p.m. When they were talking with each other in the verandah of the bungalow, having come down from the room of Rohan, which was on the first floor, they noticed that three persons came to the bungalow in a rickshaw and approached them; one of them wished Rohan saying "Hello Rohan". Rohan introduced that person as Nitin Swargey (A-1) who in turn introduced A-2 and A-3 as Ronny and Santosh to them. A-1 expressed to Rohan that they wanted to stay overnight at his bungalow as their vehicle had broken down on their way to Panchgani. All of them stood talking there for about eight minutes and then Rohan told them to sit inside the house. A-1, A-2 and A-3 left their muddy shoes in the verandah and entered in the house. Thereafter, PWs. 29 and 34 left and on their way, about 50-100 feet away from the bungalow, noticed that the parents of Rohan were coming in their Maruti car from the opposite direction. Smt. Asha Tarachand Kolge (PW-35) is the maid servant, who was attending to the work of cleaning utensils and washing clothes at the residence of Mr. Ohol. Her son and daughter also used to attend to the work at the bungalow. She was attending to the work at 5.00 p.m. or 5.30 p.m. for about one or two hours. On 20th July, she went to the residence of Mr. Ohol at 5.00 or 5.30 p.m. and pressed the door bell. Mr. Rohan opened the door. He was alone at that time. After attending to the work, she left. When she was leaving, she found that Mr. Ohol had come. He told her to come early on the next day as she would have to go the hospital to get his ailing mother-in-law discharged.
(3.) ON the night of 20/07/1992, Popat Kolge (PW-21), watchman of the society noticed Mrs. Ruhi Ohol in the house when he and the other watchman were collecting torch and other things from the rear side of the bungalow. Next day, i.e., on 21st July, in the morning, when he went to the bungalow to put back the torch, he found the footwears, containing mud, lying over in the verandah and lights of the bungalow 'on'. He kept the torch as usual and went home. At about 8.00 a.m. in the morning on 21st July, Balasaheb Hiraman Kalambkar (PW-22), the milkman, who went to deliver the milk, noticed that three persons were leaving the Rooman bungalow in the car. He went and kept the milk bags in the rack and the newspaper given to him by the newspaper man (PW-23) at the bungalow and gave the usual call "Doodh" Mr. Mhatre (PW-23) is the newspaper man. He was delivering 'Maharashtra Herald' and 'Sunday Times' newspaper at the residence of Mr. Mohan Ohol. He stated that on 21st July, he met PW-22 in the morning and handed over him the newspaper for delivering it at Ohols' bungalow as he was going there to supply milk. Mr. Vyankat Pandit (PW-24), who was a resident of that colony noticed, after he returned to his house leaving the children in the school, that the maruti car of the Ohols' family had stuck in the mud and that two persons, who came out of the car, were pushing the car on 21st July at about 8.00 A.M. Thereafter, they boarded the car and went away. At about the same time, Mr. Vyankat Krishnan (PW-26), owner of Rohini bungalow, referred to above, while he was taking his wife to Junior College in Loyalla, Pashan Road, Pune, found Maruti car of Mr. Mohan Ohol outside the gate but later it followed his car. After coming on the main Road, he stopped his car near Hotel Green Park and gave signal to stop Mr. Ohol's car. When the car stopped, he peeped through the door glass and saw two persons on the front seats and one person on the rear seat. He gave the descriptions of the driver and person sitting next to him, but not of the person sitting on the hind seat, which coincide with the identity of A-1 and A-2. Finding that Mr. Mohal Ohol was not in the car, he told them to go. The Maruti car was later found abandoned by A-1, A-2 and A-3 at Shirur. Thereafter, they started dealing with the properties of Ohols. At about 11.15 a.m., on the same day, from Shirur they boarded the bus; this fact is spoken to by the bus driver, Kundalik Bhanudas Garad (PW 55). At about 12.30 p.m., A-1 went to the Bank of Maharashtra, Hadapsar Branch, Pune, presented a cheque (Exhibit 146) for Rs. 12,000.00 purportedly signed by Mr. Mohan Ohol and drawn in favour of one Mr. M. K. Chavan, to the Bank clerk, Nand Kishore Tukaram Shinde (PW-31) who asked A-1 to sign at the back of the cheque and he signed as M. K. Chavan. P.W. 31 gave Token No. 109 (Article 142) and endorsed '109' on the cheque. The cheque was given to Mr. Damodar Apte, the Assistant Branch Manager (PW-30), for verification. He found that the signature of Mr. Mohan Ohol was not tallying and so A-1 was asked by him either to get Mr. Mohan Ohol's instruction or another cheque from him. He also asked A-1 to return the token and take back the cheque, but A-1 disappeared from the Bank. Consequently, the uncashed cheque remained with the Bank and the token remained with A-1. On the same day, A-1 went to Ravindra Babhutmal Oswal (PW-19) to pledge ear-tops (Article 83) but as he did not help, A-1 got the services of Prakash Kamble (PW-28), Ratan Kamble (PW-37) and Vishnu Ramchandra Randive (PW-36) for pledging the ear-tops.;