Evidence Act, 1872 - Ss. 27 & 65B - Penal Code, 1860 - Ss. 120B, 147, 148, 149, 302 & 506B - Electronic Evidence - CCTV footages from Hard Disk, CD and DVD - Significant aspects to be noted in respect of electronic evidence produced - Identification of Accused - Unlawful Assembly - Criminal Conspiracy - Chain of the facts and circumstances established.
CORAM : R.K. DESHPANDE and M.G. GIRATKAR, JJ.
DATE OF PRONOUNCING THE JUDGMENT : 5th JUNE, 2018
CRIMINAL APPEAL NO.254 OF 2015 Bhupesh @ Rinku s/o Vitthalrao Tichkule, Aged 30 years, Resident of 103, Shyam
Palace, Congress Nagar, Nagpur, (Original accused No.5) Presently in Jail. …
Appellant Versus The State of
Maharashtra, through Police Station Officer, Sakkardara, Nagpur, District Nagpur. … Respondent With (2)
CRIMINAL APPEAL NO.255 OF 2015 Laxmikant @ Lacchu s/o
Ravindra Faye, Aged about
31 years, R/o Bhutiya Darwaja, Mahal, Nagpur, (Presently in Central Jail,
Nagpur). … Appellant Versus The State
of Maharashtra, Through P.S.O., Sakkardara,
Dist. Nagpur. … Respondent With (3)
CRIMINAL APPEAL NO.254 OF 2015 Tushar s/o Sahebrao Dalal, Age 33 years, Occupation – x blank x, R/o
Dattatraya Nagar, Nagpur, (At present in Central Jail, Nagpur). … Appellant Versus
State of Maharashtra, Through PSO,
Sakkardara, Nagpur. …
Respondent With (4)
CRIMINAL APPEAL
NO.121 OF 2016 Sameer s/o Suresh Katkar,
Aged about 32 years, Occ. Labour, R/o Qtr. No.157/116, New Somwari Peth, Raghuji
Nagar, Nagpur, (In Jail). … Appellant Versus The
State of Maharashtra, Through P.S.O., Sakkardara, Sakkardara, Dist. Nagpur. … Respondent With (5)
CRIMINAL APPEAL NO.180 OF 2016 Kunal Motiram Maske, R/o Gangabai Ghat, Corporation Colony, Nagpur,
At present, Central Jail, Nagpur. … Appellant Versus State of Maharashtra, (Through P.S.O., PS Sakkardara, Nagpur). … Respondent With (6)
CRIMINAL APPEAL NO.181 OF 2016 Amol s/o Mahadeo
Mandale, Aged about 30 years, Resident
of Plot No.50, Bhande Plot, Nagpur, (In Jail). … Appellant Versus The State of Maharashtra, through Police Station Officer, Police
Station Sakkardara, Nagpur. …
Respondent
Criminal Appeal No.254 of
2015 : Shri S.P. Dharmadhikari,
Senior Advocate, assisted by Shri U.P. Dable, Advocate for Appellant. Shri
J.Y. Ghurde, Additional Public Prosecutor for Respondent.
Criminal
Appeal No.255 of 2015 : Shri
R.M. Daga, Advocate for Appellant. Shri
J.Y. Ghurde, Additional Public Prosecutor for Respondent.
Criminal
Appeal No.393 of 2015 : Shri
Varun K. Chopra, Advocate for Appellant. Shri
J.Y. Ghurde, Additional Public Prosecutor for Respondent.
Criminal
Appeal No.121 of 2016 : Shri
R.K. Tiwari, Advocate for Appellant. Shri
J.Y. Ghurde, Additional Public Prosecutor for Respondent.
Criminal
Appeal No.180 of 2016 : Shri
R.R. Rajkarne, Advocate for Appellant. Shri
J.Y. Ghurde, Additional Public Prosecutor for Respondent.
Criminal
Appeal No.181 of 2016 : Shri
A.S. Manohar, Advocate for Appellant. Shri
J.Y. Ghurde, Additional Public Prosecutor for Respondent.
J U D G M E N T
(PER
R.K. DESHPANDE, J.) :
1. All the accused persons are convicted for
the offences punishable under Section 302 read with Sections 120B and 149 of the
Indian Penal Code (“IPC”) apart from the offences under Sections 147, 148, 506B
and 149 of IPC in relation to the murder of one Jitendra Marotrao Gawande on
1012013 between 5.30 p.m. and
6.30 p.m. in the Seven Hills Bar and Restaurant at Sakkardara, Nagpur. All of
them are sentenced to suffer rigorous imprisonment for life for the offences
punishable under Sections 302, 120B and 149 of IPC with fine of Rs.2,000/, to
suffer rigorous imprisonment for a period of one year with fine of Rs.5,000/for
the offence punishable under Section 147 of IPC, and to suffer rigorous
imprisonment for a period of two years for the offences punishable under
Sections 506B and 149 of IPC with fine of Rs.5,000/. All
the sentences are directed to run concurrently.
Facts
of the case :
2. The incident of murder of Jitendra
Marotrao Gawande at 5.30 p.m. on 1012013 in the Seven Hills Bar and Restaurant (“the
said Bar”) at Sakkardara, Nagpur, is not in dispute. The story deposed by PW 1
Raghuveer Ramesh Vallabhdas, the Manager of the said Bar, is that on the date
of the incident at about 5 to 5.30 p.m., four persons entered the said Bar and
one of them came to his counter and made a demand for a peg (liquor), which he
gave it to him in the glass. The other three persons were standing behind him and
all of them were looking outside the door again and again, giving an impression
of waiting for someone's arrival. After some time, a big white car came, from
which one person (victim) alighted and entered the said Bar. There were
altercation between the four persons and the victim who came in the car, which
resulted into quarrel. Out of four persons, two persons started assaulting the victim
by means of knife and rest two went outside. The victim, who was assaulted,
fell down, the assault continued and thereafter two assailants left the said
Bar and the victim was lying in a pool of blood. PW 2 Raju and PW 3 Sitaram,
the waiters in the said Bar, were also the eyewitnesses to an incident. PW 1
Raghuveer informed the incident on phone to the police.
3.
PW 16 Rupali Bawankar, working as PSI at
Sakkardara Police Station, states that she received the information from the Control
Room that in the said Bar one person is assaulted by a knife at about 6 p.m. She,
therefore, proceeded along with the Head Constable Sawarkar and other staff to
the said Bar. Inside the said Bar, she found the victim lying in a pool of
blood and he was dead. She
arranged two panchas and prepared the inquest panchanama at Exhibit 162. She
arranged to collect the blood samples with the help of cotton swab and also
seized the glass from the counter of the said Bar, used for consuming peg by
one of the assailants, as was told by PW 1, the Manager of the said Bar. PW 1
showed her the cameras installed in the said Bar, the description of which she
mentioned in the spot panchanama at Exhibit 163. PW 1 also showed her LCD TV where
the live video of the camera was being displayed. The Finger Print Expert PW 8
Sunil Lonarkar was called, who, after encircling finger prints on the glass,
asked the photographer to snap it. The body of the deceased was sent for post
mortem examination to the Government Medical Hospital along with the
requisition at Exhibit 164.
4.
PW 16 called the owner of the said Bar, PW
5 Kailash Gulhane, and after getting the information, the Expert PW 14 Shubham
Narayan Padgilwar, who installed the CCTV system in the said Bar, was called.
The Expert PW 14 told that he installed the cameras in the said Bar and the
same were working properly. According
to PW 14, the DVR contains the recording of camera and he showed the recorded
footages of the incident from DVR on LCD TV. The camera No.1 contained the
footage of two persons assaulting one person by a sharp weapon and the other
persons were instigating the assailants. The footage recorded in the camera
No.7 showed that the assailants came inside the said Bar and thereafter the
deceased came there. It also indicated the assailants running away from the said
Bar.
5.
The Expert PW 14 Shubham told that the copy
of the said footage can be done and, therefore, PW 16 PSI Rupali arranged the blank
pen drive and two DVDs (CDs). PW 14 took the copy of the said footages from DVR
in the pen drive and copied in DVD with the help of the laptop. On verification
of the pen drive and the DVD in the laptop, it was found that the copies were
properly done. The pen drive and the two DVDs were seized and sealed. PW 14
took out the Hard Disk from the DVR, which was seized and sealed. The DVR was also
seized and sealed along with the Charging Wire, the Mouse and the Remote. The
seizure panchanama of these articles was prepared at Exhibit 99. PW 16 obtained
the bills of pen drive and DVD, which were placed on record at Exhibit 165. She
prepared the rough sketch of the spot at Exhibits 166 and 167, including the
location of the cameras.
6.
PW 16 PSI Rupali further states that the
complaint dated 1012013 at Exhibit 85 by PW 1 Raghuveer, the Manager, was recorded.
Printed FIR at Exhibit 86 was prepared initially against unknown persons, as PW
1 did not state the names of assailants. On the next date, PW 1 gave the names
of accused Nos.1 to 5 as assailants. The statements of the Bar owner and the Expert
PW 14 Shubham were also recorded and the Scorpio Car in which the deceased came
was also seized at Exhibit 107. She identified the articles seized, viz.
Article1 DVR, Article4 Hard Disk, Article7 Adapter, Article10 Mouse, and
Article13 Remote. She states that the labelled Articles 2, 5, 8, 11, 14 and 15
bear her signature whereby the said articles were seized. The CD (DVD) was marked
as 'X' for identification and it was played in the laptop. The footages of the
camera Nos.1, 2 and 7 were seen by the witness. She states that the footages
contained in the CD (DVD) are the same, which were copied from DVR to pen drive
and from the pen drive to DVD.
7.
In the wee hours of 1112013, the accused
Nos.1 and 2 were arrested and investigation was handed over to PW 18 API Vitthal
Salunke. PW 18 API Vitthal Salunke, attached to Sakkardara Police Station,
carried further investigation in the matter. He
recorded the supplementary statement of the complainant and also the statements
of PW 6 Vinay Dubey on 1112013. He
arrested the accused No.3 Laxmikant, accused No.4 Amol Mandale, and accused
No.5 Bhupesh alias Rinku Tichkule vide arrest panchanama at Exhibits 176 to
178. He seized the clothes of the accused Nos.3 to 5 vide seizure memo at
Exhibit 175.
8.
On 1212013, PW 18 recorded the memorandum
panchanama of the accused No.1 Tushar at Exhibit 138 under Section 27 of the
Evidence Act upon expressing an intention to make a voluntary statement and to
show the place where he concealed the clothes and the knife. The accused No.1
took them to one heap of soil and after removing one stone from the heap, took
out the clothes and the knife. The knife Article 1A was of the size of 14.5
inches, including the handle. It was stained with blood. The clothes were consisting
of black and while shirt and bloodstained blue coloured jean. All these
articles were sealed under the seizure panchanama at Exhibit 139. Article 16 is
the jean and Article 17 is the shirt.
9.
On 1312013, the accused No.2 Kunal Maske
also intended to make a voluntary statement. The memorandum panchanama at Exhibit
146 under Section 27 of the Evidence Act was prepared. PW
18 API Vitthal took the accused No.2 along with the panchas and the police
staff in a Government vehicle. The accused No.2 took them to one house in the
slum area and knocked the door. The accused No.2 went inside the house along
with the staff. He took out one knife from the loaf (sajja)
behind the speaker. The knife Article 2A was having blood stains. It was
wrapped, seized and sealed under the seizure panchanama at Exhibit 146.
10.
On 1412013, the accused No.5 Bhupesh @
Rinku intended to make a voluntary statement and it was recorded under the memorandum
panchama at Exhibit 181. Along with him and the police staff, PW 18 API Vitthal
went in front of Shyam Palace building, Congress Nagar Square. The accused No.5
Bhupesh showed them a car besides the said building. It was 'Ritz' car, having registration
No.MH31 EA 6696, which was seized under the seizure panchanama at Exhibit 182.
It was in the name of Dr. Vitthal Tichkule, the father of the accused No.5.
11.
The accused No.6 Sameer Katkar was
arrested on 1712013 under arrest panchanama at Exhibit 186. On
1812013, PW 18 API Vitthal got full size photographs of the accused persons,
snapped for the purpose of investigation, by PW 20 Nitin Watkar of Diamond
Photo Studio while the accused persons were in police custody. The photographs
were handed over and the bill of payment prepared on 1812013 is marked as Exhibit
204. PW 18 states that on 1912013, he sent the clothes of the accused and the
deceased and the blood samples of the accused and the deceased under the
covering letter at Exhibit 189 to the Regional Forensic Science Laboratory,
which were kept in the Malkhana.
12.
The accused No.6 Sameer Katkar intended
to make a voluntary disclosure in respect of the bike used in the crime. It was
recorded on 1912013 in the memorandum panchanama at Exhibit 148. He took PW 18
API Vitthal along with the police staff in the Government vehicle to show the
way and eventually reached the place near Shrikrishna. Outside one house, the
accused No.6 showed one covered bike 'Hero Honda Splendor' bearing registration
No.MH31 AW 7400. After a minute observation, the blood stains were found on the
pillion seat cover. It was collected with the help of cotton, which was sealed
in a plastic packet under the seizure panchanama dated 1912013 at Exhibit 149.
The said bike standing in the name of Suresh Pandurang Katkar was seized under
the seizure panchanama at Exhibit 188.
13.
PW 18 API Vitthal prepared the request
letter on 222013 and sent it to the Forensic Science Laboratory at Kalina, Mumbai
for examination of Hard Disk and comparison of photographs of the accused with
CCTV footage under the letter at Exhibit 195. All the articles were bearing
seal as 'VSS'. He also sent the weapons and samples from Malkhana to the Chemical Analyzer for analysis
under the covering letter dated 422013 at Exhibit 207. The
witness identified the photographs of the accused persons at Exhibits 197 to
202, snapped by Nitin, the Photographer. He also identified the photograph of
the deceased Jitendra at Exhibit 196. He identified the clothes of the deceased
at Exhibit 152A. He also identified fifteen photographs snapped from the spot
of the incident and sealed, marked as Articles A to O, and CD as ArticleP. On
422013, the Test Identification Parades of the accused persons were conducted
by the Executive Magistrate at Exhibits 89 and 94 and accordingly the report
was prepared. The thumb impressions of the accused were taken at the time of
arrest and were sent to the Finger Print Expert for comparison. The reports
dated 2222013 and 1432013 at Exhibits 129 and 128 respectively were received. PW
19 Ms Puja Madhukar Nevage examined the CCTV footages and accordingly issued
the report dated 1312014 at Exhibit 57 stating that the persons in the selected
CCTV footages are similar with the photographs of the accused Nos.1 to 6.
Controversy
in brief :
14. The incident of murder of Jitendra on
1012013 at 5.30 p.m. at the said Bar is not in dispute. But it is the identity
of the assailants or involvement of accused in this case, is in dispute. The deceased
was stabbed with multiple injuries by the two knives causing his death by the
assailants on the spot, is not in dispute. The entire incident was recorded in
CCTV cameras installed and functioning in the Bar. PW 4 Pramod, the real
brother of the deceased, has identified each of the accused as the participant
in the conspiracy and a member of an unlawful assembly, which blotted out the
deceased Jitu, when he was confronted with CCTV footages during his
examinationinchief. The
core issue is, therefore, of the admissibility of electronic evidence of
footages in CCTV cameras, to identify the assailants as the accused persons.
Since PW 1 Raghuveer, the Manager, and PW 2 Raju and PW 3 Sitaram, the waiters
in the said Bar and the eyewitnesses to an incident refused to identify the accused
as the assailants, they were declared as hostile and crossexamined.
15.
The identification of the accused persons
was a fact in issue and in terms of Section 5 read with Section 9 of the
Evidence Act, it was required to be established beyond reasonable doubt. The prosecution
has relied upon the direct evidence of PW 6 Vinay, the chance witness, sitting
on his motorcycle at some distance from the said Bar, who saw the accused
persons coming out of the said Bar and running away on the motorcycle and in
the car. PW 4 Pramod, the brother of the deceased, has deposed about the motive
and also identified the assailants in CCTV footages as the accused persons. The
Sessions Court found the evidence of both these witnesses trustworthy to
identify the accused persons as the assailants. The Sessions Court also relied
upon the other corroborative evidence and the circumstances to hold that the
identity of the accused as the assailants of the deceased Jitendra is
established beyond reasonable doubt.
16.
We now, therefore, proceed to consider
the entire evidence on record, the challenges to it and record our findings
under different headings.
Spot
of incident, its surroundings and installation in the Bar :
17. PW 1
Raghuveer, the Manager in the Seven Hills Bar and Restaurant, has described the
spot of incident, surroundings and installation in the Bar. The incident
occurred inside the Bar on the ground floor. He states that the Bar is located
on the road, which is divided. Adjacent to the road, there is a compound wall
of the Bar, affixed with the iron gate. There is a glass door adjacent to the shutter
of the Bar. Adjacent to the glass door, there is a partition of glass. After
entry in the Bar from the glass door, there is a hall, thereafter a kitchen,
thereafter a lawn and immediately towards left side after entry, there is a
counter and adjacent to it, starts kitchen, and towards right side, there is a
sitting arrangement for the customers. In the hall, there are eleven tables for
the customers.
18.
PW 16 Rupali is the Investigating
Officer, who reached the spot of incident at about 6 p.m. on 1012013. She
prepared the inquest and spot panchanamas at Exhibits 162 and 163 respectively,
signed by the panch witnesses, one of which is PW 3 Sitaram Wankhede. PW 3
identifies the inquest panchanama as Exhibit 92 and the spot panchanama as
Exhibit 93 (Inquest Panchanama bears Exhibits 162 and 92, whereas Spot
Panchanama bears Exhibits 163 and 93). The documents at Exhibits 162 and 163 describe
the spot of incident. The glass door of the Bar is fixed facing the northern
side. Immediately after entering the Bar, on the eastern side of the wall, a
showcase containing the liquor bottles is mounted, in front of which, there is
a northsouth counter table of 8 feet in length and 4 feet in breadth. In the
open space immediately after the counter, the dead body of the deceased was
found lying in a pool of blood, having its head on the northern side and legs
on the southern side.
19.
PW 1 further states that for security
purpose, CCTV cameras were installed in the Bar on 21122012, consisting a system
of eight cameras and one Digital Video Recorder (DVR). The first camera is installed
towards left side of the extreme corner of the hall, over the wall, situated
behind the counter. This camera used to record the visual activities on the
counter and entries in the hall. There is space of 15 to 20 square feet between
the counter and the tables of the customers. The distance between the counter
and the tables of the customers is 5 to 6 feet. The second camera is installed
on the beam, attached opposite to the wall where the first camera is installed.
This camera covers half portion of the hall. The third camera is installed in
the hall and used to cover the passage towards lawn. The fourth camera is
installed in the kitchen. The fifth camera is installed in the godown on the
first floor.
20.
About installation and functioning of
CCTV cameras in the Bar, PW 1 states that the said system was purchased by him
from ITG Solution Company on 21122012 for an amount of Rs.39,100/and produced
the receipt at Exhibit 84. DVR of the said system was installed at the counter
and it contains a chip of 500 GB. DVR also contains Hard Disk. The footages of
all cameras are being stored in DVR. The DVR has a capacity to store the
footage of 10 to 15 days. Thereafter
recent footage is stored and footage of first day is deleted automatically. He
states that “Sometimes I used to see the recorded footages and the system used
to remain on 24 hours.” PW 16 Rupali states that after preparing spot
panchanama, the Manager PW 1 Raghuveer of the Bar showed her the cameras installed
in the Bar, the description of which she mentioned in the panchanama. Manager
showed us LCD TV wherein the live video of cameras were being displayed. She
states in para 3 that “I have prepared rough sketch of the spot including
location of cameras. The sketch of spot of the incident is the same. These bear
my signatures. They
are marked as Exhibits 166 and 167.”
21.
PW 16 further states that after receiving
the information from the Bar owner, the Expert, who installed the CCTV system,
was called. The name of the said Expert is Shubham Narayan Padgilwar (PW 14).
PW 17 states that “he told me that he used to visit Seven Hills Bar and to see
the proper working of cameras. He saw the cameras and told us that they are
working properly. He told that recording of cameras is being recorded in DVR.”
PW 14 Shubham was working in ITG Solution Company, which is engaged in installation
of CCTV camera and thumb impression machine, apart from dealing with
development of software and security system. He states that “In December 2012,
we installed CCTV camera in Seven Hills Bar. We had installed eight cameras
there. Four cameras were of IR Dom and four cameras were of IR Bullet. In the
said system, there was one DVR, containing Hard Disk of 500 GB for the storage of
video recording. All the cameras were connected with DVR by cable. In front of
counter, one LCD TV was there. The DVR was connected to the said LCD TV for
viewing video recorded. One camera was installed at the entrance gate. One
camera was installed on wall behind the counter. Two cameras were installed in
the hall. One
camera was installed in the kitchen and one in the godown at the first floor.
Two cameras were installed behind the door in open space.”
22. PW 14 Shubham
further states that the Hard Disk was of the capacity of storage of video
recording of 15 days. After the recording of 15 days, video recording of camera
of first day, is automatically deleted from the storage and video recording of camera
of 16th day is saved. He states that “I checked the picturization of all the
cameras on LCD TV. All cameras were working properly. I set the time and date
in the system. I started recording by all 8 cameras. I also checked and found
that video recording is properly being stored. After installation, I apprised
the Bar Manager the procedure of operating system. We used to visit once in a
week to verify whether the system is working properly. I
also visited Seven Hills Bar for verification and found that the system was
working properly. I also enquired on phone from Seven Hills Bar and found that
the system is working properly.”
Our
findings on the spot of incident, its surroundings and installation in the
Seven Hills Bar :
23. In our view, the spot of incident, its
surroundings, installation of CCTV cameras and their functioning at the time of
incident on 1012013 at 5.30 p.m. in the Seven Hills Bar are completely
established on the basis of the oral evidence of witnesses PW 1, PW 3, PW 14,
PW 15, PW 16 and the documents at Exhibits 160, 162, 163, 84, 166 and 167.
There is no challenge to it in the crossexamination. The
evidence is corroborative and we do not finding any reason to discard it. We
find such a view taken by the Sessions Court, relying upon the oral evidence of
PW 1 Raghuveer, PW 2 Raju, PW 3 Sitaram, PW 14 Shubham, PW 15 Sachin, PW 16
Rupali and Exhibit 84 receipt, to be legal, correct and proper.
Arrest
of the accused persons :
24.
The case of the prosecution is that two
knives and two vehicles were used in the crime. Accused No.1Tushar came out of the
Beer Bar with a bloodstained knife in his hand and along with accused
No.5Bhupesh and accused No.4Amol, sat in a car, which was driven by accused
No.3Lashu and fled away from the spot. Accused
No.2Kunal was having bloodstained knife in his hand and he occupied a seat of a
pillion rider on a twowheeler, of which accused No.6 Sameer was a rider.
Accused No.1Tushar and accused No.2Kunal were arrested by Suresh Dambre on
1112013 at 05.30 hours vide arrest memos at Exhibits 179 and 180 respectively.
Accused No.3Lashu, No.4Amol and accused No.5Bhupesh were arrested subsequently
on 1112013 vide Exhibits 176, 177 and 178 respectively. Accused No.6Sameer was arrested
on 1712013 vide arrest memo at Exhibit 186. They continue to remain in jail
till today.
Discovery
under Section 27 of the Evidence Act by accused No.1Tushar :
25. Exhibit 138
is the confessional statement under Section 27 of the Evidence Act, of the
accused No.1, and Exhibit 139 is the seizure memo of knife, having total length
of 14.5 inches, of which the blade was of 9.5 inches and the grip was of 5
inches. The seizure memo shows the blood stains on the blade as well as the
grip of the said knife. Article 16 is the blue coloured jeans of 'Wrangler',
and Article 17 is the black coloured full shirt, having white strips, containing
blood stains, were also seized under seizure memo at Exhibit 139.
26.
PW 18 Vitthal Salunke is the
Investigating Officer and in his oral evidence he states in para 3 that on
1212013, the accused No.1Tushar told him that he is intending to make voluntary
statement. PW 18, therefore, arranged for two panchas through constable, one of
which was PW 9 Lalit Meshram. PW 9 Lalit states in his oral evidence that he
agreed to act as a panch at the request of the Police Inspector. He states that
at about 4.30 to 4.45 p.m. he went to the Police Station Sakkardara and the
Police Inspector called one accused and asked his name. He was Tushar Dalal. He
states that the Police Inspector told us that the said accused had hidden the articles
and he is going to discover it. The statement of the accused was reduced in
writing in memorandum panchanama of 1212013, marked as Exhibit 138.
27.
PW 9 states that he along with one
another panch, Police Inspector and other staff and the accused Tushar sat in
one white coloured Jeep and went to Sakkardara Chowk, then to Chhota Tajbag,
then to Tukdoji square and thereafter in front of Ajni Police Station as per the
direction of the accused. He further states that after reaching Ramteke Nagar,
the accused asked to take turn and accordingly the vehicle was turned and it
was stopped on kaccha road. All of them alighted from the
vehicle. The accused along with one constable were ahead and behind them the
police and the panchas. There was heap of soil and there was ditch, full of
water. There
was one big stone on the heap. Accused moved the said stone beside. Beneath the
said stone, accused took out jeans pant, shirt and one knife. The accused
showed articles to them. There were blood stains on the jeans pant, shirt and
knife. Police took possession of the articles and then they returned towards
Jeep. The articles were wrapped in the separate brown colour envelope which was
signed by the panchas, accused and the Police Inspector.
28.
PW 9 further states that the seizure memo
dated 1212013 shown to him was prepared, bearing his signature, marked as
Exhibit 139. He identified the clothes seized in the Court as also the knife.
The knife seized from accused No.1Tushar is marked as Article 1A, whereas his
jeans is marked as Article 16 and the shirt as Article 17. PW 9 thus
corroborates the evidence of PW 18 Vitthal Salunke. There is no
crossexamination on all these points. Relying upon the evidence of PW 9 and PW
18, it has to be held that the document at Exhibit 139 is proved and the
discovery of knife as Article 1A and the clothes as Articles 16 and 17 of the accused
No.1Tushar at Exhibit 139 becomes admissible in evidence.
Discovery
under Section 27 of the Evidence Act by accused No.2Kunal :
29. PW 18 Vitthal
Salunke, the Investigating Officer, states in para 4 of his evidence that on
1312013, the accused No.2Kunal Maske told him that he is intending to make voluntary
statement and, therefore, two panchas were arranged, one of which was PW 11
Akash Dhawale. PW 11 Akash states in his evidence that he was asked the
willingness to act as panch which he expressed and accordingly when he went to
the Police Station Sakkardara, the constable brought one accused who told his
name as Kunal Maske. PW 11 identifies him in the Court. The
accused No.2Kunal told that he would take out the knife which is used in the
crime and clothes which he wore at the time of committing crime. The memorandum
panchanama at Exhibit 146 was prepared.
30.
PW 11 states that he along with other
panch, the accused No.2 Kunal, constable and PSI Salunke left the Police
Station between 11.15 and 11.30 a.m. by the Government vehicle and through
Tiranga Chowk, Jagnade Chowk, Gangabai Ghat by cement road, the accused asked
to stop the vehicle in front of Syyed Ali Dargah. All of them alighted from the
vehicle. The accused was heading them and all others followed him. The accused
took them in front of his house and knocked the door. One lady opened the door.
The accused called her as mother and went inside. There was a speaker box on
the loft (sajja). The accused No.2 took out the knife
behind the speaker box and gave it to PSI Salunke. PSI
Salunke measured the said knife. The drawing of it was drawn. The
knife was wrapped in Khaki envelope and it was sealed with lock
seal. The seizure memo at Exhibit 147 is proved to have been drawn by PSI
Salunke in presence of PW 11 Akash. There is no crossexamination on these
points. Relying upon the oral evidence of PW 11 and PW 18, it has to be held
that the documents at Exhibits 146 and 147 are proved. Consequently, discovery
of knife as Article A2 vide Exhibit 147, at the instance of accused No.2Kunal becomes
admissible in evidence.
Discovery
under Section 27 of the Evidence Act by accused No.5Bhupesh @ Rinku :
31. Exhibit 181
is the confessional statement of accused No.5Bhupesh on 1412013 under Section
27 of the Evidence Act, and Exhibit 182 is the seizure memo of 'Ritz' car, having
registration No.MH31 EA 6696. It is the name of Dr. Vitthal Moritam Chitkule,
the father of accused No.5. The photostat copies of tax invoice, RC book and
insurance of the said car are marked as Exhibit 183. PW 18 Vitthal, the
Investigating Officer, states that accused No.5 made a voluntary statement that
he is going to show the place where he has kept the vehicle used in the crime. He
proves Exhibits 181 and 182. He states that he went along with the accused
No.5, panchas and the staff in the Government vehicle, and the accused No.5
showed the way and took them in front of Shyam Palace Building, Congress Nagar
Square. The vehicle was stopped. All of them alighted from the vehicle. The
accused No.5 showed the car besides the said building. PW 13 Jagdish Wankhede, a
panch witness, admits his signatures on seizure panchanama of car at Exhibit
153 and on the seizure memo of clothes of accused No.5 at Exhibit 154 and also
on Exhibits 155 and 156, but denies the contents of it.
Discovery
under Section 27 of the Evidence Act by accused No.6Sameer :
32. According to
PW 18 Vitthal, accused No.6Sameer intended to make a voluntary statement on
1912013 that he is going to show the place where he has kept the bike used in
the crime. Two panchas were arranged, one of whom was PW 12 Suresh Gupta, and
the memorandum of panchanama under Section 27 of the Evidence Act was prepared
at Exhibit 148. It was signed by him, panchas and the accused No.6. All of them
went in the Government vehicle and the accused No.6 showed the way and took
them near Shrikrishna. The vehicle was stopped and all of them alighted from
it. The accused No.6 went near one house and knocked the door. One middleaged person
came out of the house and the accused No.6 called him as 'Papa'. Outside the
house, the accused No.6 showed one covered bike, i.e. 'Hero Honda Splendor',
bearing No.MH31 AW 7400. PW
18 further states that after minutely observing the bike, some blood stains
were found on the pillion seat cover, and the same were collected with the help
of cotton, which was sealed in one plastic bag. The bike was seized under the
seizure panchanama at Exhibit 149. PW 18 is completely supported by PW 12
Suresh Gupta, a panch witness, to prove Exhibit 149. The bike was standing in
the name of Suresh Pandurang Katkar, the father of the accused No.6. The tax
receipt and the original invoice of the vehicle were seized under the seizure
panchanama at Exhibit 188.
Seizure
of the clothes of the deceased :
33.
PW 18 states that on 1112013, he seized
the clothes of the deceased from Police Constable Premkumar under the seizure panchanama
in presence of panchas, bearing his signature and marked as Exhibit 152A. The
white coloured half shirt, sando baniyan, jeans pant, underwear, pair of shoes,
blue coloured socks, chocolate coloured belt, white coloured handkerchief and
wrist watch of 'Titan' were shown to him and he identified the said items. All
these items were marked as Exhibits 18 to 26.
Forwarding
of clothes and articles seized and sealed, to the Chemical Analyzer for opinion
:
34. PW 18 further states that “On the same
day (i.e. 1912013), I sent the clothes of the accused and the deceased and the
blood samples of the accused and the deceased with my covering letter to RFSL,
which were kept in Malkhana.” The blood samples were sealed by CMO,
who affixed his seal impression on the covering letter dated 1912013, marked as
Exhibit 189. PW 18 took out the weapons and samples from Malkhana and sent to the Chemical Analyzer for
analysis under the covering letter dated 422013 at Exhibit 207.
Our
findings on the issues of arrest of the accused persons and discovery under
Section 27 of the Evidence Act at their instance :
35. The entire
evidence on the arrest and discovery from the accused persons, as narrated
above, is not seriously challenged in the crossexamination. The
accused Nos.1, 2, 3, 4 and 5 were arrested on 1112013. Weapons
from accused Nos.1 and 2 were seized vide Exhibits 138 and 139 on 1212013 and
on 1312013 vide Exhibit 147 respectively. Seizure from accused Nos.5 and 6 was
on 1412013 vide Exhibit 182 and on 1912013 vide Exhibit 149 respectively. The
clothes seized were forwarded on 1912013 vide Exhibit 189 to the Regional
Forensic Laboratory at Nagpur. The weapons seized and sealed were taken out
from Malkhana and sent to the Chemical Analyzer for
analysis under covering letter dated 422013 at Exhibit 207. There is no
question of any explanation in respect of clothes and articles seized, or the
delay, if any, as alleged. The defence under Section 313 of the Code of Criminal
Procedure is that it is false. There is a corroborative evidence available on
record and discussed above. We have, therefore, no hesitation to accept the
entire evidence and we do not find any valid reason to discard it. We concur
with such a view taken by the Sessions Court. What is the effect of it and in
what manner it forms a chain of circumstantial evidence against the accused,
can be seen at a later stage.
Query
Report in respect of weapons seized :
36.
PW 10 Dr. Nitin Shyamrao Barmate
conducted post mortem over the body of deceased Jitu and has described 11 stab
injuries, 12 incised wound, constituting external injuries and internal
injuries in thorax, abdomen, cavity, stomach and kidney. He has proved the post
mortem report at Exhibit 141. In response to the requisition letter dated
222013 at Exhibit 142 for weapon query in respect of two knives – Articles 1
and 2 – sent to him, he gave his opinion on 222013 at Exhibit 143. Paras 4, 5
and 6 of his opinion being relevant, are reproduced below :
“4] First knife was having blade and handle.
Length of blade was 24 cm., breadth 5 cm, thickness .1 cm, 1 edge was sharp
other edge sharp and distal 1/3 portion and blunt and serrated, pointed tip,
reddish brown stains present over both sides of the blade. Joint of blade and
handle was fixed. Handle
of the said weapon was yellowish metal and wooden covering, length 13 cms,
breadth 6.5 cms and thickness 1.5 cm. Hilt of size 9 cm in length and 15 m
breadth. Reddish
brown stains present over the handle.”
“5] Second
knife was having blade and handle. Length of blade was 19 cm, breadth 4 cm,
thickness .1 cm, 1 edge was sharp, other edge sharp and distal 1/3 portion and
blunt and serrated pointed tip, reddish brown stains present over both sides of
the blade. Joint of blade and handle was fixed. Handle
of the said weapon was yellowish metal and wooden covering, length 11 cms,
breadth 5.5 cms and thickness 1 cm. Hilt
of size 7 cm in length and 1 cm in breadth. No evidence of stains or foreign
body.”
“6]
All injuries No.1 to 24
mentioned in column no.17 of PM report are possible by first knife. Injuries No.1,
4, 5, 9, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, mentioned in
column No.17 of PM report are possible by second knife.”
The report issued is along with
diagrammatic representation of the weapons, which is reproduced below :
37. Exhibit 66 is
the report of the Chemical Analyzer in respect of the blood sample of the
accused No.2Kunal, showing his blood group as 'A'. Exhibit 72 is the report of
the Chemical Analyzer in respect of the blood sample of the accused No.1Tushar,
showing his blood group as 'A'. The report of the Chemical Analyzer at Exhibit
68 in respect of the blood found on the knives seized from the accused Nos.1
and 2 shows the human blood. Exhibit 69 is the report of the Chemical Analyzer,
showing the blood detected on Articles 16 and 17, the clothes of the accused
No.1Tushar, as of human, and the group of it, is found to be inconclusive. The
blood on the clothes seized from the person of the deceased is found to be of
group 'B' in Exhibit 69, the report. Exhibit 69 shows that the blood stains on
the seized pant of accused No.3Lashu were washed and no blood was detected on
his full shirt. On the clothes of accused No.5Bhupesh, No.4Amol and No.6Sameer,
no blood was found.
Our
findings on the weapons seized and the report of the Chemical Analyzer:
38. The oral
evidence of PW 10 Dr. Nitin, the post mortem report at Exhibit 141, the query
report at Exhibit 143 about two knives, viz. Articles 1 and 2, and the reports
of the Chemical Analyzer at Exhibits 66, 68, 69 and 72, constitute an incriminating
evidence proved against the accused Nos.1 and 2. In response to the question
Nos.114 in respect of report at Exhibit 143, put in the statement under Section
313 of the Code of Criminal Procedure is that “I do not know”; whereas in
response to the question Nos.186 to 196 regarding the Chemical Analyzer's
reports at Exhibits 66, 68, 69 and 72 is that “It is false”. The discovery of
the weapons of knife under Section 27 of the Evidence Act at the instance of
accused No.1Tushar and accused No.2Kunal at Exhibits 139 and 147 is established
and its user in crime is established as per query report at Exhibit 143 and the
reports of Chemical Analyzers at Exhibits 66, 68, 69 and 72. We concur with
such a view taken by the Sessions Court.
39.
It may have happened that some of the
panch witnesses on the weapons or clothes or other articles seized have not
supported the story of prosecution or have become hostile. In our view, once the
discovery is proved by examining the Investigating Officer, who seized the
weapons, clothes or other articles from the accused persons under Section 27 of
the Evidence Act and nothing is brought adverse to the prosecution in his
crossexamination, there cannot be any hesitation to accept his evidence to hold
that the discovery or seizure is established. This is in concurrence with the
view taken by the Sessions Court.
40.
In this regard, we may usefully refer to
the recent decision of the Apex Court in the case of Mukesh and another v. State
(NCT of Delhi) and others,
reported in (2017) 6
SCC 1. Paras 448 to 450 of the
said decision being relevant, are reproduced below :
“448. While the prosecution has been able to
prove the recoveries made at the best of the accused, the defence counsel repeatedly
argued in favour of discarding the recoveries made, on the ground that no
independent witnesses were examined while effecting such recoveries and
preparing seizure memos.”
“449.
The above contention of
the defence counsel urges one to look into the specifics of Section 27 of the
Evidence Act. As
a matter of fact, need of examining independent witnesses, while making
recoveries pursuant to the disclosure statement of the accused is a rule of
caution evolved by the Judiciary, which aims at protecting the right of the
accused by ensuring transparency and credibility in the investigation of a
criminal case. In the present case, PW 80 SI Pratibha Sharma has deposed in her
crossexamination that no independent person had agreed to become a witness and
in the light of such a statement, there is no reason for the courts to doubt
the version of the police and the recoveries made.”
“450. When recovery is made pursuant to the
statement of the accused, seizure memo prepared by the investigating officer
need not mandatorily be attested by independent witnesses. In State (Govt. of
NCT of Delhi) v. Sunil, [(2001) 1 SCC 652 : 2001 SCC (Cri) 248], it was held
that nonattestation of seizure memo by independent witnesses cannot be a ground
to disbelieve recovery of articles' list consequent upon the statement of the
accused. It was further held that there was no requirement either under Section
27 of the Evidence Act or under Section 161 CrPC to obtain signature of
independent witnesses. If the version of the police is not shown to be
unreliable, there is no reason to doubt the version of the police regarding
arrest and contents of the seizure memos.”
Oral evidence of PW 6 Vinay :
41. We now
consider the oral evidence of PW 6 Vinay Ramraj Dubey, a chance witness, about
its trustworthiness. PW 6 states that on the day of incident, i.e. 1012013, he
wanted to have beer at the Seven Hills Bar and hence he proceeded at 6 to 6.30
p.m. In order to see a missed call, he stopped just before Seven Hills Bar,
outer wall of petrol pump, near small tree. At that time, he saw the accused
No.3 Lashu Faye (Laxman) coming out of the said Bar hurriedly and sitting in
the car. The
car then moved from the place and stopped at some distance away, proceeding
towards Chhota Tajbag Chowk. The next was the accused No.6 Sameer Katkar, who
came out of the Bar on a two wheeler. The third was the accused No.2 Kunal
Maske, possessing a bloodstained knife, who sat on the pillion seat on the
vehicle of Sameer Katkar. After some time, the accused No.1 Tushar Dalal came out
of the Bar, holding in his hand a bloodstained knife. The accused No.5 Rinku
(Bhupesh) and the accused No.4 Amol Mandale also came along with Tushar and all
of the three sat in the car, which was standing ahead of Bollywood Centre Point
Hotel and the car left. He claimed to be knowing the accused as criminals in
the locality and identified all of them in the courtroom. PW
6 admits in his examinationinchief that though he stayed at that place for some
time and came to know that somebody was murdered, he did not speak of it to
anybody. He was knowing that the area comes within the jurisdiction of Police
Station Sakkardara, and on the next day morning at about 9 to 9.30 a.m., he
went to Police Station Sakkardara and stated the incident to the police. His
statement was typed on the computer in Marathi and was read over to him by translating
it in Hindi.
42.
PW 6 Vinay states that Bhande Plot Chowk
is towards north of the said Bar, at the distance of 300 meters. The distance
between Chhota Tajbag Chowk and Bhande Plot Chowk is about one kilometer. There
is a road in front of the Seven Hills Bar, flowing from Bhande Plot Chowk to
Bollywood Centre Point Hotel, and thereafter up to Tpoint of Chhota Tajbag, the
road has a cement divider. He states that when one goes to Chhota Tajbag from
Seven Hills Bar, there is a road towards left after the petrol pump. Bollywood
Centre Point Hotel is facing road, which ends towards Chhota Tajbag Chowk,
where the divider ends at the Tpoint. He
states that if one has to go to Bhande Plot Chowk from Bollywood Centre Point
Hotel, he has to take Uturn.
43.
PW 6 further states that he stayes at
Dwarkapuri, and Bhande Plot Chowk is about 4 to 5 kms. away from his house. He admits
that in the locality where he resides, there are 5 – 6 Beer Bars. He
states that he filled petrol in his two wheeler from the petrol pump, which is
at the distance of 25 to 30 feet from Bollywood Centre Point Hotel. He
volunteers that the petrol pump is facing 25 to 30 feet on the road and the
Bollywood Centre Point Hotel is facing on the road about 300 to 325 feet. He
then took Uturn, and since there was a call on his mobile, which he missed, he
stopped just before Seven Hills Bar, outer wall of petrol pump, near small
tree, to see the call. It is from that place he claims to have seen the accused
persons at the distance of 25 – 30 feet.
44.
In the crossexamination, PW 6 Vinay
claims ignorance about the existence of Battery Shop, Pan Thela, Tea Stall or
Fabrication Shop, near the petrol pump where he filled the petrol in his two wheeler.
He also claims ignorance about existence of certain landmarks, confronted to
him in the crossexamination. He
states that “I cannot assign any reason as to why the fact that he filled
petrol in his two wheeler from the petrol pump besides Bollywood Centre Point
Hotel and thereafter he took Uturn, does not find place in his statement”. He
states that “Since the police did not ask him about it, I did not state”. He
states that “I had stated to the police that Lashu left from there and stopped
some distance away, Lashu was proceeding towards Chhota Tajbag Chowk and
thereafter Sameer Katkar came to Seven Hills Bar and thereafter Tushar Dalal
came out of the said Bar and he was holding bloodstained knife, all the three sat
in the car by running, which was standing ahead of Bollywood Centre Point
Hotel, the car left, I was frightened and I stayed there for some time”.
However, he further states that “I cannot assign any reason as to why these
facts do not find place in his statement to the police”. He states that “I
cannot assign any reason why the portion marked 'A' is appearing in my
statement”. He denies the suggestion that he is the childhood friend of Jitu
Gawande and that he never went to Seven Hills bar on 1012013 and that he was a
regular witness of Sakkardara Police Station. He denies the suggestion that – (1) he had not
seen the incident and police had falsely planted him as an eyewitness, (2) he never
visited Sakkardara Police Station prior to incident, or (3) he acted
panch in murder case of Sheetal Kale.
45.
PW 18 Vitthal Salunke was the
Investigating Officer, who took over the investigation on 1112013 from PW 16
Rupali Bawankar, who conducted initial investigation in the matter. In
para 30 of his crossexamination, he states that “I visited Seven Hills Bar on
1012013 at 7 p.m. to 8 p.m., but did not take part in the investigation”. He
started investigation on 1112013 at 7 p.m. He
recorded the statement of PW 6 Vinay on 1112013 from 9.30 a.m. to 9.45 a.m. In
para 29, he states that the portion marked 'A' in the statement of PW 6 Vinay
was recorded as per his say and it is at Exhibit 210. The said statement in
Marathi, marked as portion 'A', is reproduced below : “[Vernacular Language Omitted]” [Later on I came to know
from the Police that a person murdered is Jitendra Gawande] He further states
that PW 6 had not stated that “I filled petrol in my two wheeler from the
petrol pump besides Bollywood Centre Point Hotel and took Uturn, there was a
call on my mobile which I missed to see, I stopped just before Seven Hills Bar,
outer wall of petrol pump and near small tree, Lashu left from there and
stopped some distance away, Lashu was proceeding towards Chhota Tajbag Chowk,
thereafter Sameer Katkar came out of Seven Hills Bar, thereafter Tushar Dalal
came out of Seven Hills Bar and he was holding bloodstained knife (the omission
is in respect of coming out of Seven Hills Bar and bloodstained), all the three
sat in the car by running which was standing ahead of Bollywood Centre Point Hospital,
the car left, I was frightened and I stayed there for some time, I returned
back to house as I was frightened, I did not tell the incident to anybody as I
was frightened and I could not sleep for whole night”.
46.
In the crossexamination, PW 18 Vitthal,
the Investigating Officer, was shown rough sketch of the site location map,
taken on record and marked as Exhibit 209. He categorically states that the position
shown in the map is correct. Perusal of the map at Exhibit 209 shows that to
the north of Seven Hills Bar and Restaurant, there is Bhande Plot Chowk, and
the Bar is located on the road flowing from Bhande Plot Chowk to Chhota Tajbag
Chowk Tpoint. Adjacent
to Seven Hills Bar on the eastern side, is the place of Ahmed Classes, and on
the west side, is the Supreme Services. The Indian Oil Petrol Pump is adjacent
on the western side of Supreme Services. The map at Exhibit 209 further depicts
that adjacent to the western side of Supreme Services, is the Hindustan Steel
Traders, and thereafter a lane before and adjacent to Bollywood Centre Point Hotel.
Thus, there is a plot in between the Indian Oil Petrol Pump and Seven Hills Bar
and Restaurant on the western side.
Our
findings on the oral evidence of PW 6 Vinay Dubey :
47. Except the
aforesaid evidence, there is no other evidence on this point, relevant to be
considered. We, therefore, proceed to appreciate the evidence to test the
veracity of the testimony of PW 6 Vinay. On the eastern side of Seven Hills Bar
and Restaurant is Bhande Plot Chowk and on the western side of it is Chhota
Tajbag Chowk. This is very clear from the site location map at Exhibit 209. The
said Bar is on the road from Bhande Plot Chowk to Chhota Tajbag. The road is
30meter wide and divided by a cement divider in two parts – one for going to
Tpoint at Chhota Tajbag from Bhande Plot Chowk, and other, after Uturn, from
Tpoint at Chhota Tajbag, return to Bhande Plot Chowk. One cannot go to the
other side of the road divider, unless there is a crossing provided. It is not the
evidence that there is any crossing provided in the divider for the vehicles.
Even the map at Exhibit 209 does not show any crossing. Once
Seven Hills Bar is crossed while coming from Bhande Plot Chowk, and Uturn is
taken from the Tpoint at Chhota Tajbag, one cannot reach to the said Bar again
unless, either another Uturn is taken from Bhande Plot Chowk after crossing a
distance of one kilometer or comes back from Tpoint at Chhota Tajbag. This
position becomes very clear and established from the reading of oral evidence of
PW 6 Vinay in the light of the site location map at Exhibit 209, proved by PW
18, the Investigating Officer.
48.
The Seven Hills Bar is located on the
left side of the road flowing from Bhande Plot Chowk and going to Chhota Tajbag
Chowk, which is clear from the site location map at Exhibit 209. The vital evidence
as to the end from which PW 6 Vinay was going to the Seven Hills Bar – whether
Chhota Tajbag Chowk on the western side or Bhande Plot Chowk from eastern side
– is totally absent. It is not the case of PW 6 that he went to Seven Hills Bar
by entering wrong side from Chhota Tajbag Chowk, located on the western side of
the said Bar. He also does not say that he went to the said Bar from Bhande
Plot Chowk on the eastern side.
49.
If it is assumed that he was going from
Chhota Tajbag Chowk on the western side and had reached the petrol pump near Seven
Hills Bar, it is not the version of PW 6 that before taking Uturn, he witnessed
the incident. Taking of Uturn means he was on return from the Seven Hills Bar
and also the petrol pump to Chhota Tajbag and turning to the other side of the
divider on the Tpoint to reach Bhande Plot Chowk. In such situation, unless he
takes another Uturn from Bhande Plot Chowk after crossing the distance of one kilometer
and thereafter half kilometer, he will not reach to the Seven Hills Bar. It is
not the version of PW 6 that he took another Uturn from Bhande Plot Chowk to
reach the said Bar. In such a situation, PW 6 could not be near Seven Hills Bar
or the petrol pump, but he went away from it, at the time of the incident.
50.
If it is assumed that PW 6 went to Seven
Hills Bar from Bhande Plot Chowk on the eastern side, he will have to cross the
said Bar to reach to the petrol pump located on the western side of the Bar. It
is not his version nor it appears from the map at Exhibit 209 that the petrol
pump is located on the eastern side of the said Bar. It is also not his version
that he went to the petrol pump after crossing the said Bar. Be that as it may,
it is his version that after filling petrol, he took Uturn after Bollywood
Centre Point Hotel, which means that he went away from the said Bar up to
Chhota Tajbag on the western side and thereafter to the other side of road divider.
It is not the version of PW 6 that he witnessed the incident before taking
Uturn after Bollywood Centre Point Hotel. In such a situation also, PW 6 could
not be near the said Bar or the petrol pump at the time of incident.
51.
The positive case of PW 6 is that he
stopped just before the Seven Hills Bar, outer wall of petrol pump and near
small tree, to see a missed call at the distance of 25 to 30 feet and witnessed
the incident. It is, therefore, probable that he was going to Seven Hills Bar
from Bhande Plot Chowk on the eastern side. Though the petrol pump shown in
Exhibit 209, a site location map, is on the western side of the said Bar, it is
not adjacent to it, but there is one plot of Supreme Services in between the
said Bar and the petrol pump. There
is no evidence to show the width of this plot, though the width of the plot of
the petrol pump, as deposed by PW 6, is 25 to 30 feet, facing the road. In such
a situation, it is improbable that PW 6 was at the distance of 25 to 30 feet on
the western side of the said Bar and from the outer wall of the petrol pump,
adjacent to the said Bar, he witnessed the incident.
52.
The theory of witnessing the incident
from the petrol pump, taking Uturn and thereafter checking missed call, is a
complete omission, which has been pointed out in earlier paras, is established. There
is complete improvement in the version of PW 6. His previous knowledge about
the accused persons has become doubtful. Leaving apart inherent
inconsistencies, the version of PW 6 Vinay becomes untrustworthy and
unbelievable. Not only that, but his acquaintance with the accused persons is
doubtful. The presence of PW 6 on the spot at the time of incident seems to be
also doubtful. The Sessions Court ought not to have treated him as an
eyewitness to establish the identity of the accused persons. We do not concur
with the view taken by the Sessions Court to accept the version of PW 6 Vinay
as trustworthy.
Finger
Print of Accused No.1Tushar :
53.
PW 1 Raghuveer, the Manager of the Seven
Hills Bar, deposed that the incident took place on 1012013 at about 5 to 5.30 p.m.
when four people entered the Bar. One of them came to his counter and asked
counter peg of Rum. PW 1 prepared a peg (liquor) and gave it to him in a glass.
The other three people were standing behind him. In para 8, he deposes after
watching the footage of camera No.1 in which the incident, which happened in
the Bar, appears. He states that “In footage of camera no.1, on counter, there are
glasses on right side”. In the crossexamination, a suggestion was put to him in
para 26, in response to which, he states that “It is not correct to say that
the glasses which were lying on the counter broke down in the said quarrel”.
Except this, there is no crossexamination on this aspect.
54.
PW 16 Rupali, the first Investigating
Officer, states in para 2 of her deposition as under :
“2] Manager told me that the glass which
were kept on the counter used by the assailants. Investigation Car had come there.
Finger Print Expert took the finger prints from the glass. Thereafter, the said
glass were sealed. I also mentioned location of camera in spot panchanama.
Accordingly, spot panchanama was prepared. I and panchas were put signature on
it. Spot panchnama now shown to me is the same. It bears my signature and the
panchas. It is marked at Exhibit
163.”
Exhibit 163 is the spot panchanama under
which four glasses used for serving peg were seized.
55.
PW 8 is Sunil Laxman Lonarkar, working as
Junior Expert API (finger print in I Car Unit Crime Branch, Nagpur). He states
in para 2 that on 1012013, he received message from police control room at about
630 p.m. to visit the place of scene of crime of murder at Seven Hill Bar,
Nagpur. He states in para 2 that on 1012013, he received the message from the
police at about 6.30 p.m. to visit the place of incident and, therefore, he
along with the driver of the vehicle and photographer went on the spot at about
7 p.m. API Salunke and PSI Bawankar were there, who told him to check four glasses
kept on the counter of the Bar. In para 3, he states that “I applied the
universal powder on the said glasses with the help of brush. Out of four, I
could find the finger print on one of the glass. I
encircled the said finger print and put my signature on it beside the encircle
on the glass. Photographer snapped photographs of the said finger prints”. He
states that the police gave him requisition and he also issued spot inspection
report dated 1012013 to the police, which is at Exhibit 116 and it bears his
signature.
56.
Exhibit 116, which is the panchanama of
four glasses on which gray powder was applied, shows that on glass No.1, one
finger print was found, and on glass No.2 two finger prints were found. In para
4, he states that after 2 – 3 days he received three photographs of finger
print of the said glasses, and out of it, he declared two photographs as not
fit for further process, and one photograph was found fit for the process, as
it contained 8 ridge character in the said photograph. Exhibit 120 is the left
thumb impression, marked as 'A1' of accused No.1 Tushar, encircled with red
ink, and Exhibit 127 is the enlarged photograph of Exhibit 120. Exhibit 126 is
the enlarged finger print impression developed on drinking glass, marked as 'A'. He
states in his evidence that “During my examination, I found Nine ridge
characteristics of Exhibits 126 and 127 were matching”.
57.
Exhibit 128 is the report by the Deputy
Director/Deputy Superintendent of Police, Finger Print Bureau, CID, stating
that out of three chance finger prints, one chance finger print developed on
the glass (dkpspk Xykl) concerned in Sakkardara Police Station.
It states that the left thumb finger print on the F.I. Slip of suspect( 1)
Tushar Sahebrao Dalal received for comparison. Exhibit
129 is the report stating that out of three chance finger prints, one chance
finger print, marked 'A', developed on the glass is identical with the left
thumb finger print, marked 'A1' on the F.I. Slip of suspect( 1) Tushar Sahebrao
Dalal received for comparison vide letter No.604/2013, dated 2122013. Exhibit
131 is the statement of reasoning and opinion in connection with crime in
question, opining that the chance finger print, marked 'A' is identical with
left thumb finger print, marked 'A1' on the finger impression clip of suspect –
Tushar Sahebrao Dalal.
Objection
of the defence to the oral evidence of PW 8 Sunil, Finger Print Expert, and his
reports at Exhibits 129 and 121 :
58.
The objection to the admissibility of the
evidence of PW 8 Sunil, the Finger Print Expert, and the reports submitted by
him at Exhibits 129 and 131 is that there is no evidence on record to show as
to when and how the finger prints of the accused No.1Tushar were obtained at
Exhibits 120 and 127, which were found matched with the chance finger print. In
this regard, paras 5 and 6 of the oral evidence of PW 8 Sunil need to be seen,
and hence the same are reproduced below :
“5] I requested PS Sakkardara to send the
finger impression slip (specimen) of the suspected. On 1912013, I received
request letter of PS Sakkardara along with six finger impression slips
(specimen). I have brought the original request letter. Witness produced the
request letter, it is taken on record and it is marked at Exh118. (On
oral request of witness the original letter is returned back to him after verifying
the xerox copy of the letter). On the said six finger impression slips
(specimen), there was no plain finger print of the suspected and only rolled
prints were there. Therefore, I requested on telephone to send fresh finger
print impression slips containing plain print and roll print. I had also made endorsement
to that effect on the requisition letter Exh 118.”
“6] On 2222013, I received letter of P.S.
Sakkardara dt2122013 along with finger print impression slips containing plain
print and roll print of six suspects. I have brought the original letter.
Witness produced the letter dt 2122013. It
is taken on record and it is marked at Exh119. (On
oral request of witness the original letter is returned back to him after
verifying the xerox copy of the letter). I have brought the original finger
print impression slips. Witness produced the six finger print impression slips,
these are taken on record and these are marked at Exh120 to 125. (On oral
request of witness the original letter is returned back to him after verifying
the xerox copy of the letter). Chance finger print/photographs of finger print collected
from glass, was enlarged. Enlarge copy of photograph of finger print collected
from glass, now shown to me, is the same. Enlarge copy is marked at Exh 126.”
The only crossexamination on the point is
contained in para 11, which is reproduced below :
“11] The earlier finger impression slips
which I returned back to police, are not on record. It is not correct to say
that as fresh finger prints were not sent to me along with letter Exh119, therefore,
it is not mentioned so in the said letter. It is not correct to say that letter
Exh 118 and 119 are fabricated by me in connivance with I.O.”
59. Query No.103
put to accused No.1Tushar and answer to it, are reproduced below :
“Q.103 : It has further come in his evidence that
on 22.2.2013 he received letter from PS Sakkardara along with finger print
impression slip containing plain print and roll print of six suspects. What do
you want to say about it?
Ans.
: I do not know.”
60. The finger
prints of all the accused were forwarded to PW 8 Sunil under covering letter
dated 2122013 at Exhibit 119, received by PW 8 on 2222013. There
is no objection to mark the finger print of accused No.1Tushar as Exhibit 120. The
crossexamination tries to raise a doubt about communications at Exhibits 118
and 119 and without background, the suggestion is that the said letters are
fabricated. While recording the statement under Section 313, in reply to a
question about receipt of letter at Exhibit 119 and finger prints at Exhibit
120, the stand is that “I do not know.”
Our
findings on the issue of Finger Prints of accused No.1Tushar :
61. There is
absolutely no crossexamination to raise any doubt about the finger print at
Exhibit 120 and enlarged at Exhibit 127 of accused No.1Tushar, so obtained and
forwarded under the letter at Exhibit 119 to PW 8 Sunil, the Finger Print
Expert, to compare it with the chance finger print on Exhibit 126. There is no
suggestion that the finger prints of the accused No.1Tushar were not obtained. In
the absence of any such crossexamination, we do not find any reason to discard
the oral evidence of PW 8, the documents at Exhibit 120 and its enlargement at
Exhibit 127 in respect of the finger prints of the accused No.1Tushar, and
Exhibit 126 in respect of chance finger print along with the report at Exhibit
131. We, therefore, reject the contention of the accused that there is no evidence
to show that the finger prints at Exhibits 120 and 127 are not of the accused
No.1Tushar. We
hold that the prosecution has proved the finger prints of accused No.1Tushar, which
established his presence on the spot at the time of incident.
Core
Issue :
62. The identification of the accused persons
as the assailants in the present case constituting an unlawful assembly and
conspiring to commit an act of murder of Jitu Gawande on 1012013 between 17.45
and 17.56 hours in the Seven Hills Bar and Restaurant, is the core issue to be
decided in this case. Basically, there is no challenge to the mode and manner
in which an act of murder is committed, the investigation carried out, and the
arrest of and recovery from the accused persons, and all these things are
otherwise amply proved. We
now, therefore, turn to the core issue. The Sessions Court essentially relied
upon the oral evidence of PW 6 Vinay, a chance witness, who saw the accused
persons as the appellants fleeing away from the spot of incident on the
twowheeler and the car with knives, stained with blood, in the hands of the two
accused, namely, the accused No.1Tushar and the accused No.2Kunal. We
have already found the evidence of PW 6 Vinay to be untrustworthy. We have also
held that the presence of the accused No.1 on the spot at the time of incident
is established on the basis of his finger prints found on the glass of liquor
in the said Bar.
63.
The other evidence available on record to
identify the accused as the assailants is the oral evidence of PW 19 Ms Puja,
the Scientific Officer in the Forensic Science Laboratory, Mumbai, who proved
her report at Exhibit 57, opining that the accused persons are similar to the
assailants, who committed the crimes in question. It is based upon the
photographs of the accused persons at Exhibits 197 to 202 and the persons
selected as the assailants from the DVD, marked as Article 18A, which is the
backup or a copy of the footages contained in the Hard Disk at Exhibit 1. The
another evidence is that of PW 4 Pramod, the brother of deceased Jitu Gawande,
who identified all the accused persons as the assailants and described the role
played by each of the accused in the crimes in question. This is based on the
CD, marked as 'X' for identification, or the DVD, marked as Article 18A. We have,
therefore, to see whether the photographs at Exhibits 197 to 202 are proved.
The another aspect is of the admissibility of electronic evidence in the form
of the DVD at Article 18A and the CD marked as 'X' for identification. All the
arguments, therefore, essentially revolve around it and we, therefore, proceed
to discuss it one by one.
Consideration
of electronic evidence in the form of CD – 'X' marked for identification to
establish the entire incident of murder of Jitu at Seven Hills Bar :
64. PW 16 Rupali
states in para 3 that “On our request, Shubham showed us the recorded footage
of the incident from DVR on LCD TV. In footage recorded by camera no.7, we saw
the assailants came inside the Bar, thereafter, we saw the deceased came inside
the Bar. Thereafter we saw in the footage the assailants while running away
from the Bar.” PW 14 Shubham states in para 4 of his deposition that “On the request
of police, I showed them footage recorded in CCTV system, on the LCD TV of Bar.
I showed them footage recorded after 500 p.m. to 530 p.m. In the said footage, some
people were assaulting one person.”
65.
PW 16 Rupali states that “On enquiry,
Shubham told us that copies of the said footage can be done. I arranged a blank
pen drive and two DVD (CD). Shubham took the copy of said footages from DVR in
pen drive and copied it in DVD with the help of laptop. We
verified the pen drive and DVD in laptop and found the copies were done
properly. The said pen drive and two DVD were seized and sealed. On our
request, Shubham took out Hard Disk from DVR which was seized and sealed. DVR
was also seized and sealed. DVR Charging Wire, Mouse and Remote were also
seized and sealed. I
and panchas signed on it. Seizure panchanama (Exhibit 99) (Dated 1012013) now
shown to me is the same. It bears my signature and panchas. Its contents are
correct. I had obtained the bills of pen drive and DVD. The bills of pen drive
and DVD now shown to me are the same. It is marked at Exhibit 165.”
66. PW 16 Rupali
identifies all the articles seized and her deposition in para 7 being relevant,
is reproduced below :
“7] I can identify the articles seized by me. Article1
DVR, Article4 Hard Disk, Article7, Adapter, Article10 Mouse, Article13 Remote,
now shown to me are the same which were seized by me. Label Article2, 5, 8, 11,
14 and 15 bear my signature. These are the same whereby the above said articles
respectively were sealed. (CD(DVD) X for identification is now played in
laptop. The footage of camera nos.1, 2 and 7 are seen by the witness.) The footages
contained the CD(DVD) X for identification are the same which were copied from
the DVR to Pen Drive and Pen Drive to DVD.”
PW
5 Kailash Gulhane is a panch witness on the seizure panchanama at Exhibit 99
and was called by PW 16 Rupali from cyber cafe near the said Bar. He says that
on 1012013, PW 14 Shubham showed footages of all cameras one by one in the said
LCD TV. He saw the footages and thereafter in his presence, PW 14 Shubham
copied the data in footages in DVD and Pen Drive. He
saw the copied data on the laptop and he found it to be correctly recorded in
the Pen Drive and DVDs. All these articles were seized and sealed in his
presence. He says Hard Disk in DVR was of Toshiba Company and it was taken out
in his presence and sealed.
67.
PW 14 Shubham further states in para 4 of
his examinationinchief that “On the request of the police, I prepared copy of
footage of three cameras from DVR and gave to the police. For
that purpose, police had provided me laptop, pen drive and two CDs. Pen drive
and CDs were brand new. I had provided copies of footage, wanted by the police
in pen drive. I had also copied the wanted footage in two CDs from pen drive. I
gave pen drive and both CDs to the police. On enquiry by the police, I told
them the footage are recorded in the Hard Disk of DVR. On the request of police,
I took out Hard Disk from the DVR and gave to the police. On request of the
police, I also detached DVR and provided to police. Thereafter,
police were engaged in the proceedings.
Our
findings in respect of electronic evidence of CD – 'X' for identification :
68. Immediately
on 1012013 itself, within thirty minutes of the occurrence of an incident, i.e.
at 6.00 p.m., the police personnel, led by PW 16 Rupali, the Investigating
Officer, reached the spot. The inquest and spot panchanamas were prepared. The
installation and locations of all the eight cameras were noted down in the
sketch of the spot at Exhibits 166 and 167. For the purposes of security, a system
of CCTV, consisting of eight cameras and one DVR containing Hard Disk of 500 GB
for storage of video recording, wellconnected with the cables, was found
installed and functioning properly. The entire incident of murder of Jitu
Gawande was recorded in the Hard Disk at Exhibit 1, contained in the DVR. The
Sessions Court accepts the evidence of PW 14 and PW 15, the independent
witnesses, who have stated that the Hard Disk is of the same Company, which
they had supplied and identified. The Sessions Court accepts such a view corroborated
by PW 5 Kailash and PW 16 Rupali, as all the witnesses are found to be
independent. We concur with such a view.
69.
The evidence of PW 16 Rupali is supported
by the oral evidence of PW 14 Shubham and PW 5 Kailash Gulhane, a panch witness.
PW 16 Rupali, PW 5 Kailash and PW 14 Shubham identified in their evidence before
the Court the articles seized, viz. DVR, Hard Disk, Adapter, Mouse and Remote,
as also the CD, marked as 'X' for identification, which was played in the
laptop before the Court, from which the footages from camera Nos.1, 2 and 7
were seen by the witnesses. PW 5 Kailash, a panch witness, identifies the DVR
as Article 1 and label thereon as Article 2. He identifies envelope in which
DVR and label (Articles 1 and 2) were sealed in his presence. He
identifies Hard Disk as Article 4 and its label and envelope as Articles 5 and
6 respectively. He identifies footages shown by Shubham, i.e. DVDX played in
the laptop as the same. We, therefore, hold that the DVR, Hard Disk, Adapter,
Mouse, Remote, CD marked as 'X', produced before the Court are the same which were
seized and sealed under seizure panchanama at Exhibit 99 on 1012013 on the spot
of incident.
70.
At the request of PW 16 Rupali, the
Expert PW 14 Shubham, showed the recorded footages of the incident from DVR on
LCD TV. In the footages, the assailants and the deceased were seen inside the
Bar. Some people were assaulting one person and subsequently the assailants ran
away from the Bar. On the request of PW 16 Shubham the Expert PW 14, took the
copies of the footages from DVR in pen drive and copied it in DVD (CD) with the
help of laptop. The pen drive and DVD were verified and the copies were found
to be done properly. The pen drive and DVD were seized and sealed along with
the Hard Disk, taken out from DVR, the DVR Charging Wire, Mouse and Remote
under the seizure panchanama at Exhibit 99. PW 16 states that CD (DVD) X for
identification is played in the laptop and the footages contained in it are the
same which were copied from the DVR to Pen Drive and Pen Drive to DVD. This version
is fully supported by PW 14 Shubham and PW 5 Kailash. There
is no reason to doubt the oral version of PW 5 Kailash, PW 14 Shubham and PW 16
Rupali and we, therefore, hold that the footages contained in CD marked as 'X'
for identification were copied from those contained in the Hard Disk at Exhibit
1. CD – 'X' is, therefore, a true and genuine copy of the footages in camera
Nos.1, 2 and 7 in the Hard Disk at Exhibit 1.
Appreciation
of the evidence on the snapping of the photographs of all the accused persons –
our findings on it :
71. The photographs of all the accused
persons at Exhibits 197 to 202, are compared with the frames of persons
selected as assailants in the CCTV footages copied in DVD at Article 18A from the
Hard Disk at Exhibit 1. Hence, we consider the evidence of snapping the
photographs of the accused persons. PW 18 Vitthal states in para 13 of his
examinationinchief that “On 1812013, on my instructions, full size photographs
of the accused were snapped by Nitin Watkar, PW 20, of Diamond Photo Studio. At
that time, accused were in police custody. The said photographs were snapped
for investigation purpose and were handed over to me in the evening. The amount
was paid as per bill dated 1812013 at Exhibit 204.”
72. PW 20 Nitin,
in his examinationinchief, states that a Digital Camera is used by him for
snapping the photographs and they are saved in the memory card of the camera.
Thereafter, the photographs are uploaded on computer and with the help of pen
drive, the same are sent for developing. He further states that six photographs
at Exhibits 197 to 202 in the size of 4 x 6 inch might have been snapped by him
and he identifies bill at Exhibit 204 issued to PW 18 Vitthal. He subsequently
states that the photographs might have been snapped by his worker. This witness
was allowed to be crossexamined as he resiled from his statement. The factum of
snapping photographs of the accused persons, has been proved. In the
crossexamination, no questions are put to challenge the method by which
photographs at Exhibits 197 to 202 were prepared. No objection was raised at
the time of his evidence in respect of the mode and manner of proof of
photographs or its admissibility in evidence. We, therefore, hold that the
photographs of accused, at Exhibits 197 to 202 are proved.
73.
PW 18 Vitthal states that on 222013, he
prepared the request letter to Forensic Science Laboratory, Kalina, Mumbai, for
examination of Hard Disk and comparison of photographs of accused with CCTV
footage. The letter is at Exhibit 195, which he identifies. He
states that on 322013, he sent Hard Disk, blank Hard Disk, DVR, Adapter,
Remote, Mouse, photographs of the accused and deceased in sealed condition
along with covering letter at Exhibit 195 through Police Constable Premkumar.
He states that all the articles were bearing seal as 'VSS'. He states that
Police Constable Premkumar collected those articles from Malkhana of Police Station Sakkardara. He
states that the officials at Kalina were not accepting the photographs without
seal on each photograph, and this was informed to him by Police Constable
Premkumar on mobile phone. Hence on 622013, he put the seal on all seven
photographs and after resealing photographs, he sent Police Constable Premkumar
along with all articles to Kalina, Mumbai. There is no reason to doubt the seizure,
sealing and forwarding of all the photographs at Exhibits 197 to 202, to the
Forensic Science Laboratory, Mumbai, under the covering letter at Exhibit 195,
which we accept it as proved. Its receipt in sealed condition by the office of
the Directorate of Forensic Science Laboratory, Mumbai, on 822013 is also
proved by PW 19 Puja, who has vouched for it.
Electronic
evidence in the form of DVD – Article 18A :
74. On 822013, the
office of the Directorate of Forensic Science Laboratory, Mumbai, received all
six photographs of the accused snapped on 1812013, marked as C to I in Exhibit
195letter along with Hard Disk marked as Exhibit A, DVR marked as Exhibit B,
and Remote, Charging Cable, Mouse, marked as Exhibits B(1), B(2) and B(3)
respectively. PW 19 Ms Puja, working as Scientific Officer, prepared forensic
image of the data, contained in Exhibit 1 Hard Disk to blank Hard Disk provided
by Police Station Sakkardara. For the purposes of identification, the primary
evidence of Hard Disk having Image of CY 66/13 was marked as Exhibit 1. The
DVD in which images were copied, was marked as “Annexure DVD CY 66/13”. We do
not find any reason to create any doubt about the receipt in a sealed cover, an
electronic evidence of Hard Disk, other connections, and blank Hard Disk by the
Forensic Science Laboratory, Mumbai, under covering letter at Exhibit 195 dated
222013. Hence,
we accept such evidence.
75.
We have gone through the covering letter dated
222013 at Exhibit 195, under which PW 18 Vitthal forwarded on 622013 all the
Articles 1 to 15 seized in connection with CCTV cameras, including the Hard
Disk of 500 GB of 'Toshiba' Company Model No.HDKPC05A0A02J Part No.(P/N)9F13178
vide Exhibit 99 on 1032013, full size photographs of all the accused persons snapped
on 1812013 at Exhibits 197 to 202, to the Director, Forensic Science
Laboratory, Kalina, Santacruz, Mumbai, with a request to submit the report on
the following three queries, which are in Marathi, but translated in English :
(1) Recordings of
eight cameras in the Hard Disk at ExhibitA be seen in respect of the crime
occurred on 1012013 between 17.30 to 18.30.
(2)
Whether frames of persons appearing in
the Hard Disk seized at Exhibit No.A are the same in the photographs of the
persons at Exhibit No.C to Exhibit No.I ?
(3)
The backups of recording be obtained in
DVD.
76.
PW 19 Ms Puja, working as Scientific
Officer in the office of the Directorate of Forensic Science Laboratory at
Mumbai, states that “On 822013, our office received 12 sealed parcel from PS Sakkardara
and one blank Hard Disk (According to us, instead of “blank Hard Disk”, it
should be “blank DVD”) in Crime No.12/13 of PS Sakkardara under letter dated
222013 at Exhibit 195.” The parcels were inspected with regard to seal and
numbering and were found in sealed condition and the same were sent for cyber
analysis of CCTV footage dated 1012013 between 5.30 p.m. to 6.30 p.m. She
states that all parcels were opened and were given Exhibit Nos.1 to 12 to the
articles.
77.
Paras 4, 5 and 6 of the deposition of PW
19 being relevant, are reproduced below :
“4] On
16122013, the above said case came to me for analysis. All the articles Exhs 1
to 12 were received by me. I
prepared forensic image of data contained in the Exh.1harddisk to blank
harddisk provided by PS Sakkardara. We gave identification to said harddisk as Image
of CY 66/13 Ex1. The
DVR was connected to the said harddisk, wherein image was prepared. DVR was connected
to our screen and image was played. We searched the question footage in the
said image. We extracted footage 8 channel (camera) of the time 530 to 630 pm dt1012013
from said image, and it was written in DVD. We
marked the DVD as Annexure DVD CY 66/13. We put said DVD in system. We compared
the reference photograph Exhs 6 to 12 with the footage of DVD. We selected the frames
of persons from the footage and compared the said frames with reference
photograph Exhs 6 to 12. The frames of persons selected, appeared to be similar
with the reference photograph of Exhs 6 to 12.”
“5] Each digital record has its unique hash
value. I
extracted the hash value of the entire data of harddisk. Accordingly,
I noted the hash value in my report. I
conducted the test of restoring CCTV harddisk, using Tableau Forensic
Duplicator Model D2. Hard
disk Exh1 was in proper and working condition. I extracted the hash value of
question footage channel 1 to 8 and mentioned in my report. After consultation
with HOD, Jt. Director, and Director, I prepared my report. Report Exh 57 now
shown to me, is the same. On 1312014 I sent the report along with property and
DVD in which footage was extracted in sealed condition to PS Sakkardara through
PC Dhok, B.No.5710. I also sent Art.1 DVR, Art.4 Hard disk, Art.7 Adapter,Art
10 Mouse, Art.13 Remote, now shown to me, are the same. 7 brown colour sealed
parcel, having seal of FSL are opened, wherein each envelope 1 photograph with one
torn envelope are found. Exh 7 to 12 Photographs now shown to me are the same,
which were sent to me for reference. These are the same, which were sent to me
as a reference photographs. These are marked at Exhs 196 to 202. The envelopes in which these
photographs are found, are marked at Exh. 196A to Exh 202A and the respective torn envelopes are
marked 196B
to 202B. DVD
X for identification now shown to me, is the same, in which the image was
extracted from Harddisk. DVD
is marked at Art.18A.”
“6] During comparison of reference
photographs, we scanned the reference photographs. In the report, against selected
photographs, scanned reference photographs are shown for ready reference.”
PW 19 states that the Hard Disk has Image
of CY 66/13 and it was marked as Exhibit1 for identification. The DVR was connected
to the Hard Disk, where the image was prepared and transferred to the blank
Hard Disk (According to us, instead of “blank Hard Disk”, it should be “blank
DVD”) provided by Police Station Sakkardara. DVR was connected to the screen
and image was played. The footage concerned was searched. PW 19 states that “We
extracted footage 8 channel (camera) of the time 5.30 to 6.30 p.m. dated
1012013 from said image, and it was written in DVD. We marked the DVD as
Annexure DVD CY 66/13. We put the said DVD in system. We compared the reference
photograph Exhibits 6 to 12 with the footage of DVD. We selected the frames of
persons from the footage and compared the said frames with reference
photographs Exhibits 6 to 12. The frames of persons selected, appeared to be similar
with the reference photograph of Exhibits 6 to 12.”
78. PW 19 Ms Puja
extracted the hash value of the entire data of the Hard Disk, which was noted
in her report. She conducted the test of restoring CCTV Hard Disk, using
Tableau Forensic Duplicator Model D2. She
found that the Hard Disk Exhibit1 was in proper and working condition. She
extracted the hash value of question footage channel of 1 to 8 and mentioned in
her report. She identifies the report at Exhibit 57, which was sent along with
the property and DVD in which the footage was extracted in sealed condition to
Police Station Sakkardara through Police Constable Dhok, Buckle No.5710. She
also sent Article 1 DVR, Article 4 Hard Disk, Article 7 Adapter, Article 10
Mouse, Article 13 Remote, which she identifies. She also identifies the
photographs at Exhibits 7 to 12 sent to her for reference, which were marked as
Exhibits 196 to 202. She states that “DVD X for identification now shown to me,
is the same, in which the image was extracted from Hard Disk and it was marked
as Article 18A.”
79. The report at Exhibit 57 given by PW 19
Ms Puja shows the comparative analysis of selected frames of video files, named
as “CH01. AVI”
and “CH07AVI”, with reference to photographs at Exhibits 6 to 12 with the
finding that “the persons present in the mentioned video files are found
similar with the photographs.” PW 19 states that the report is in respect of
comparison of selected frames of the persons from the footages with those
photographs of the accused, marked as Exhibits 6 to 12 in the report (According
to us, it should be “Exhibits 7 to 12”). The photographs are identified at
Exhibits 197 to 202, and “Annexure DVD CY 66/13” was marked as Article 18A in
the deposition of PW 19. The opinion expressed was that the photographs of the
accused are found to be similar to the frames of the persons selected from the
footages.
80.
We have been taken through the
crossexamination of PW 19 Ms Puja by Shri Subodh Dharmadhikari, the learned
Senior Advocate for the accused. In the crossexamination, she states that “I
have done restoring process of CCTV, Hard Disk, extracting the data and
comparison with my eyes. I have not conducted any other examination for
comparison of reference photographs with selected frames from the footage other
than visual examination.” She states that “I enlarged the pictures of people
appearing in question footage for comparison. I enlarged the photographs from
the footage to the size of the selected frames as appearing in the Court. I did
not measure the width and breadth of various parts of the faces of selected
frames for comparison with reference photographs.” In para 9, she says that “I
did not compare the hash value of the Hard Disk with hash value of the footage
of the DVD.” She states that if the files of footage are tampered, it will have
different hash value than the hash value appearing in the Hard Disk. She states
that “I cannot certify the tampered media as an authenticated media.” She
states that “I have not conducted any test for ascertaining that the samples
received are not tampered, edited or mastered.
Our
findings on electronic evidence of DVD – Article 18A and the report at Exhibit
57 :
81. We hold that the DVR, Hard Disk, Remote,
Charging Cable, Mouse along with blank DVD (Hard Disk) seized and sealed on 1012013
were forwarded by Police Station Sakkardara to the Forensic Science Laboratory,
Mumbai, under covering letter dated 222013 at Exhibit 195. The same were
received by the Forensic Science Laboratory on 822013 in a sealed condition for
cyber analysis along with photographs of accused at Exhibits 197 to 202 with a
request to submit report on the query. DVD, marked as Exhibit 18A, is proved to
be true and genuine copy of the CCTV footages contained in the Hard Disk at
Exhibit 1. The frames of persons selected from CCTV footages are found matching
with those reference photographs at Exhibits 197 to 202. The report to that effect
at Exhibit 57 is proved.
82.
We find that, PW 19 Ms Puja has furnished
an explanation in respect of the statements given by her in the
crossexamination. She
states that it was not necessary to compare the hash value, because the Hard
Disk contained the entire files, including footage, and it has different hash
value than the files of footages. She states that the video was continuous and
there was no tampering in the footages. She denies the suggestion that her
comparison was not based on any scientific experiment, and all the experiments
which she did, was mentioned in her report at Exhibit 57. She states that Tableau
Forensic Duplicator Model D2 is an equipment, and if one has licence of the
said equipment with proper training, can restore the data. She denies the
suggestion that the reference photographs are not even similar to selected
photographs.
83.
What we find from the crossexamination of
PW 19 is that, in the present case, it was not necessary to compare the hash
value of Hard Disk with the hash value of the footages of DVD, as the Hard Disk
contained the entire files and it has different hash value than the files of
footages. The video was continuous and there was no tampering in the footages.
The Sessions Court holds in para 66 that nowhere it is the case that what is
contained in the DVD – Article 18A, is not contained in the Hard Disk (Article
4). The primary evidence was produced on record and it is only for the purposes
of reference, DVD – Article 18A was prepared by PW 19 Puja to prepare her
report and is shown to the witnesses. It is never contended that DVD – Article
18A does not contain footages in the Hard Disk (Article 4). We concur with such
findings.
84.
The crossexamination of PW 19 reflects
the suggestion that the hash value of the Hard Disk is different from the hash
value of the footages contained in CD – 'X' or DVD and, therefore, the only inference
which can be drawn is that there was tampering in the recordings of CD – 'X'
and DVD. We have seen the Hard Disk, CD – 'X' and DVD. The report of PW 19 at
Exhibit 57 shows the storage capacity of Hard Disk as “465.76 GB”, whereas the
capacity of CD – 'X' is “52X 700 MB 18 MIN” and that of DVD is of “4.7 GB/16X”.
The report shows that 8 CCTV footage files (.AVI) of time period 17.30 to 18.30
of date 1012013 found in the Hard Disk at Exhibit 1 were given in the enclosed
DVD, i.e. Article 18A. What we find is that there was a comparative analysis
made of the selected frames of the video files named as CH01. AVI
and CH07. AVI
with the reference photographs at Exhibit 6 to Exhibit 12. It is in this background,
PW 19 has explained that it was not necessary to compare the hash value of Hard
Disk with the hash value of the footages contained in the DVD, as the Hard Disk
contained the entire files and it has a different hash value than the files of
the footages. We,
therefore, are of the view that the suggestion in the crossexamination was of
no significance in the facts and circumstances of this case.
85.
We find from the evidence discussed
earlier that there was no scope left out for tampering in the process of
seizure, sealing, forwarding and receipt of all the concerned articles by PW
19, who has vouched that it is untampered and has withstood it in her crossexamination
on all the questions in respect of it. No questions were put to this witness
impeaching her credit, as required by Section 155 of the Evidence Act. We,
therefore, do not find that the crossexamination of PW 19 is of any help to the
accused persons. On
the contrary, we are of the view that there is no reason to disbelieve the
version of PW 19 on the comparison of photographs with the faces of selected frames,
as shown in the report at Exhibit 57.
Oral
evidence of PW 4 Pramod to identify the assailants as accused persons:
86. PW 4 Pramod
Gawande is the real brother of the deceased Jitu Gawande. He claims to be
knowing the accused Nos.1 to 6 as the friends of the deceased Jitu and on
visiting terms to his house. He
talks about the motive of the accused Nos.1, 2 and 3 to assault the deceased,
who used to repeatedly demand the amount of Rs.50,000/paid to the accused
No.1Tushar Dalal on credit. Undoubtedly,
he is not an eyewitness to the incident, but claims to have seen the accused
persons not only in the crime in question on the basis of CCTV footages shown
to him in the Police Station on 1112013. This
witness was also confronted in the Court with the footages from camera Nos.1, 2
and 7. However, it is not clear whether footages were from CD marked as 'X' or
from DVD marked as Article 18A. Be that as it may, CD – 'X' was confronted to PW
1 Raghuveer, who identified it.
87.
PW 4 Pramod identified all the accused
persons. According
to him two accused were assaulting Jitu by knife, two were watching outside the
Bar, and remaining two accused were inside the Bar with the accused, who were
assaulting Jitu. He states that the accused No.1Tushar and the accused
No.2Kunal were assaulting Jitu by knife, the accused No.5Rinku provided the knife,
the accused No.3Lashu Faye was standing along with the accused Nos.1, 2 and 5
inside the Bar, the accused No.4Amol Mandale came from backside of the Bar and
took cold drink bottle and brandished to the persons, including the waiters
inside the bar, and the accused No.6Samir was standing outside, near the gate
of the Bar.
Our
findings on the oral evidence of PW 4 Pramod on the identification of accused
persons :
88. The oral evidence of PW 4 Pramod claiming
to have seen CCTV footages on 1112013 in Police Station, was possible to get corroboration
from the Investigating Officer. The evidence of PW 4 that he was shown CCTV
footages on 1112013 in the Police Station does not find any corroboration. In
fact, all the items seized on 1012013 were sealed and there is no evidence of
reopening of it. However, his oral evidence about previous acquaintance with
the accused persons as the friends of deceased Jitu and in respect of motive,
seems to us as natural. It is not questioned in the crossexamination. We,
therefore, do not find any impediment in accepting this evidence and we hold
that PW 4 Pramod has unequivocally established the motive of the accused to
finish the deceased Jitu and has identified all the accused persons as the assailants
of Jitu, on the basis of CCTV footages shown to him in the Court.
89.
The objection before the Court to
confront PW 4 Pramod with CCTV footages was that he is not an eyewitness and,
therefore, the footages can only be confronted to him in the crossexamination. The
Court has held that the witness has stated to have seen the footages in the
Police Station and, therefore, the objection was overruled. The Court has also
held that the footages were shown only for the purposes of identification of the
accused persons. The crossexamination of PW 4 on the aspect of his acquaintance
with all the accused persons is conspicuously silent. Whether
PW 4 was confronted the CCTV footages from CD – 'X' or DVD – Article 18A does
not make any difference, as, in our view also, CCTV footages were shown only to
identify the assailants, which he has done. This witness has clearly
established his previous acquaintance with all the accused persons as the
friends of deceased Jitu and in respect of money transaction between accused No.1Tushar
and deceased Jitu. We do not find any reason to disbelieve the version of PW 4
and we hold that he has identified all the accused persons as the assailants of
deceased Jitu Gawande and has attributed each of them the specific role which
he has played in the crime in question.
Rival
contentions on the question of admissibility of the certificate at Exhibit 160
issued under Section 65B of the Evidence Act :
90. The
prosecution has relied upon the certificate dated 1222013 at Exhibit 160,
issued under the signature of PW 15 Sachin, the owner of ITG Solution Company,
which installed CCTV cameras in the Seven Hills Bar on 21122012 and continues
to monitor its working by sending the employees, including PW 14 Shubham, the
Hardware Operator. The certificate at Exhibit 160 is reproduced below :
“ITG
Solution Date : 12022013
Certificate
(U/S
65B of Indian Evidence Act) I Sachin Kshirsagar Proprietor of M/s ITG Solution,
Plot No79 Radhakrishna Nagar Behind Radhakrishna Temple, Hudkeshwar Road,
Nagpur. To the best of Knowledge and belief certify as under :
1) That I Sachin
KS am running the Business of CCTV System and IT Solution by ITG Solution.
2) That I have Installed the CCTV System
in 7 Hill BAR, Near Sakkardhara lake, Sakkardhara Nagpur On 21st Dec 2012,
Receipt NoITG026
3) That CCTV System in 7 Hill BAR, Sakkardhara Nagpur was
installed by our Technical Team.
4) That the CCTV System was in Operation
from 21st Dec 2012 to till Date of Incidence That is 10th Jan 2013.
5) That
On dated 10th Jan 2013 the CCTV System was working till time after 8:30 pm when
Mr. Shubham Padgilwar visited 7 hill Bar, Sakkardhara Nagpur, and CCTV System
(HDD and DVR) in the Presence of Investigation Team Of Sakkardhara Police
Station and Handed Over CCTV System (HDD and DVR) to the Police
Note:Copy of
Bill is Already Hand Over to the Police Station Seal of ITG Solutions, Nagpur
and Signature asSachin Place:Nagpur Signature and
Seal Regd.Off.79,
Rarhakrishna Nagar, B/H Radhakrishna Temple, Hudkeshwar Rd, Nagpur34.”
The prosecution claims it to be one
issued under Section 65B of the Indian Evidence Act.
91.
Relying upon the provision of Section 65B
of the Indian Evidence Act, it is urged by the learned counsels appearing for
the accused persons that unless the conditions mentioned under subsection (4)
therein are complied with, the proof of an electronic record by oral evidence
is not permissible. Our attention is invited to a threeJudge Bench decision of
the Apex Court in the case of Anvar
P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473, more particularly para 14 therein,
which is reproduced below :
“14. Under Section 65B(4) of the Evidence
Act, if it is desired to give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following conditions are
satisfied:
(a)
There must be a
certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner
in which the electronic record was produced;
(c) The certificate must furnish the
particulars of the device involved in the production of that record;
(d) The certificate must deal with the
applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a
person occupying a responsible official position in relation to the operation of
the relevant device.”
It is
urged that the certificate in the present case, marked as Exhibit 160, does not
comply with the mandatory conditions (a) to (e), as aforestated, laid down by
the Apex Court. It is, therefore, inadmissible in evidence.
92.
According to the defence, the certificate
at Exhibit 160 ought to have been signed either by the owner of the Seven Hills
Bar and Restaurant or PW 1 Raghuveer, the Manager, who were occupying the responsible
official position in relation to the operation of the CCTV system installed in
the Seven Hills Bar and Restaurant, as required by condition (e) in para 14
above. The certificate at Exhibit 160 is signed by PW 15 Sachin, the owner of ITG
Solution Company, who has installed the CCTV cameras, and this is no compliance
of the mandatory provision. It is further urged that the certificate at Exhibit
160 also does not conform to the conditions stipulated under clauses (a) to (d)
in para 14 of the decision in Anvar's
case, reproduced above.
93.
According to the defence, though there
was primary evidence available, what was used during the investigation and also
before the Court to confront the witnesses, was the secondary evidence in the
form of CD, marked as 'X' for identification, and DVD, marked as Article 18A,
in respect of which the certificate, as contemplated under Section 65B of the
Evidence Act has not at all been issued. It is, therefore, urged that the
identification of the accused persons as the assailants in the present case
being based exclusively upon the secondary evidence of electronic record, the same
is inadmissible.
Consideration
of precedents :
94. In the decision of a twoJudge Bench of
the Apex Court in the case of State
(NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, reported in (2005) 11 SCC 600, an issue of production of electronic evidence
on record was considered. In para 150 of the said decision, it was held as
under :
“150. According to Section 63, secondary
evidence means and includes, among other things, “copies made from the original
by mechanical processes which in themselves insure the accuracy of the copy,
and copies compared with such copies”. Section 65 enables secondary evidence of
the contents of a document to be adduced if the original is of such a nature as
not to be easily movable. It is not in dispute that the information contained
in the call records is stored in huge servers which cannot be easily moved and
produced in the court. That is what the High Court has also observed at para
276. Hence, printouts taken from the computers/servers by mechanical process
and certified by a responsible official of the serviceproviding company can be
led in evidence through a witness who can identify the signatures of the
certifying officer or otherwise speak of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements of Section 65B, which is a
provision dealing with admissibility of electronic records, there is no bar to adducing
secondary evidence under the other provisions of the Evidence Act, namely,
Sections 63 and 65. It may be that the certificate containing the details in
Subsection (4) of Section 65B is not filed in the instant case, but that does
not mean that secondary evidence cannot be given even if the law permits such
evidence 5to be given in the circumstances mentioned in the relevant
provisions, namely, Sections 63 and 65.”
The
aforesaid decision holds that “It may be that the certificate containing the
details in subsection (4) of Section 65B is not filed in the instant case, but
that does not mean that secondary evidence cannot be given even if the law
permits such evidence to be given in the circumstances mentioned in the
relevant provisions, namely Sections 63 and 65.”
95. The aforesaid
decision came up for consideration before a threeJudge Bench of the Apex Court
in the case of Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473. In para 21 of the said decision, the
Court holds that in Navjot
Sandhu's case, cited supra, a responsible
official had duly certified the document at the time of production itself. The
signatures in the certificate were also identified. That is apparently in
compliance with the procedure prescribed under Section 65B of the Evidence Act.
Probably what the Court intended to say is that the question did not fall for consideration
in Navjot Sandhu's case.
96.
The Apex Court, however, holds that in Navjot Sandhu's case, the Court omitted to take note of
Sections 59 and 65A dealing with the admissibility of electronic record. It
holds that Sections 63 and 65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly governed by Sections
65A and 65B. The Court, therefore, holds that the statement of law on admissibility
of secondary evidence pertaining to electronic record, as stated in Navjot Sandhu's case, does not lay down the correct legal
position. The decision in Navjot
Sandhu's case to the effect that though
the certificate containing details in subsection (4) of Section 65B is not
filed, that does not mean that the secondary evidence cannot be given, even if
the law permits such evidence to be given in the circumstances mentioned in the
relevant provisions, viz. Sections 63 and 65, has been overruled. The Court
holds in para 22 of Anvar's case that an electronic record by way of
secondary evidence shall not be admitted in evidence unless the requirements under
Section 65B are satisfied.
97.
In Anvar
P.V.'s case, the Apex Court
holds in para 22 that in the case of CD, VCD, chip, etc., the same shall be
accompanied by the certificate in terms of Section 65B obtained at the time of
taking the document, without which, the secondary evidence pertaining to that electronic
record, is inadmissible. In para 24, the Apex Court holds that the CDs cannot
be admitted in evidence since the mandatory requirements of Section 65B of the
Evidence Act are not satisfied. It holds that only if the electronic record is
duly proved in terms of Section 65B of the Evidence Act, the question as to its
genuineness thereof in that situation, resort can be made to Section 45A – Opinion
of Examiner of Electronic Evidence. It is held that Section 65B of the Evidence
Act is a complete Code.
98.
The Court in Anvar P.V.'s case, however, clarifies that notwithstanding
what we have stated in the preceding paragraphs on the secondary evidence on
electronic record with reference to Section 59, 65A and 65B of the Evidence
Act, if an electronic record as such is used as primary evidence under Section
62 of the Evidence Act, the same is admissible in evidence, without compliance
of the conditions in Section 65B of the Evidence Act.
99.
In the decision of a threeJudge Bench of
the Apex Court in the case of Tomaso
Bruno and another v. State of Uttar Pradesh, reported in (2015) 7 SCC 178, it was a case where it was held that CCTV
footage is a strong piece of evidence which would have indicated whether the
accused remained inside the hotel and whether they were responsible for the
commission of the crime. It further holds that it would have also shown whether
or not the accused had gone out of the hotel. CCTV footage being a crucial piece
of evidence, it is for the prosecution to have produced the best evidence which
is missing. It holds that omission to produce CCTV footage, in our view, which
is the best evidence, raises serious doubts about the prosecution case. The
Court, therefore, drew an adverse inference against the prosecution under
Section 114, illustration (g) of the Evidence Act, that the prosecution
withheld the same as it would be unfavourable to them had it been produced. The
conviction was, therefore, set aside.
100.
In the decision of the Division Bench of
the Apex Court, consisting of two Judges, in the case of Sonu @ Anvar v. State
of Haryana, reported in 2017 SCC OnLine SC 765, it was a case where CDRs were not
certified in accordance with subsection (4) of Section 65B of the Indian
Evidence Act. The question, which fell for consideration, was about
permissibility of an objection regarding inadmissibility of CDRs in evidence
before the Apex Court. In
para 29, the Court holds that admittedly, no objection was taken when the CDRs
were adduced in evidence before the Trial Court. It holds that it does not
appear from the record that any such objection was taken even at the appellate
stage before the High Court.
101.
In para 32 of Sonu @ Anvar's case, the Apex Court holds that it is
nobody's case that CDRs which are a form of electronic record are not
inherently inadmissible in evidence. The objection is that they were marked
before the Trial Court without a certificate as required by Section 65B(4). The
Court holds that the crucial test in such a case is whether the defect could
have been cured at the stage of marking the document. Upon an objection
relating to the mode or method of proof, the Courts holds that in the present
case if an objection was taken to the CDRs being marked without a certificate, the
Court could have given the prosecution an opportunity to rectify the
deficiency. It holds that the mode or method of proof is procedural and
objections, if not taken at the trial, cannot be permitted at the appellate
stage. It holds that if the objections to the mode of proof are permitted to be
taken at the appellate stage by a party, the other side does not have an
opportunity of rectifying the deficiencies. An example was taken as to the
statements under Section 161 of the Code of Criminal Procedure, which fall
under the category of inherently inadmissible evidence and CDRs do not fall in the
said category of documents.
102.
In the order dated 3012018 passed by a
twoJudge Bench of the Apex Court in the case of Shafhi Mohammad v. The
State of Himachal Pradesh, all
the decisions, cited supra, were taken into consideration and it is held in
paras 14 and 15 as under :
“14. The applicability of procedural
requirement Under Section 65B(4) of the Evidence Act of furnishing certificate is
to be applied only when such electronic evidence is produced by a person who is
in a position to produce such certificate being in control of the said device
and not of the opposite party. In a case where electronic evidence is produced
by a party who is not in possession of a device, applicability of Sections 63
and 65 of the Evidence Act cannot be held to be excluded. In such case,
procedure under the said Sections can certainly be invoked. If this is not so
permitted, it will be denial of justice to the person who is in possession of
authentic evidence/witness but on account of manner of proving, such document
is kept out of consideration by the court in absence of certificate Under Section
65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus,
requirement of certificate Under Section 65B(h) is not always mandatory.”
“15. Accordingly, we clarify the legal
position on the subject on the admissibility of the electronic evidence, especially
by a party who is not in possession of device from which the document is
produced. Such party cannot be required to produce certificate Under Section
65B(4) of the Evidence Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of justice so justifies.”
The aforesaid decision of a twoJudge Bench
accepts the view taken in Anvar
P.V.'s case delivered by a
threeJudge Bench, but creates one more exception by clarification that in a
case where electronic evidence is produced by a party who is not in possession
of a device, the applicability of Sections 63 and 65 of the Evidence Act cannot
be excluded. It holds in such situation, there cannot be insistence upon the
production of certificate under Section 65B( 4) of the Evidence Act. It further
holds that the applicability of requirement of certificate being procedural can
be relaxed by the Court wherever interest of justice so require.
Law
summarized on electronic evidence :
103.
We are not impressed by an argument that
the order in Shafhi
Mohammad's case is not
the law laid down under Article 141 of the Constitution of India. We may now,
therefore, summarize the law laid down by the Apex Court in the aforesaid decisions
in respect of admissibility of electronic evidence :
(1) The purpose
of the provisions of Sections 59, 65A and 65B of the Evidence Act, is to
sanctify secondary evidence. (Para 14 of Anvar's
case ).
(2)
Only if the electronic record is duly
produced in terms of Section 65B of the Evidence Act, the question would arise
as to genuineness thereof and in that situation, resort can be made to Section
45A – Opinion of Examiner of Electronic Evidence. (Para 17 of Anvar's
case ).
(3)
The Evidence Act does not contemplate or
permit the proof of an electronic record by oral evidence, if requirements
under Section 65B are not complied with. (Para 18 of Anvar's
case).
(4)
An electronic record by way of secondary
evidence shall not be admitted in evidence unless the requirements under
Section 65B of the Evidence Act are satisfied. In the case of CD, VCD, chip,
etc., the same shall be accompanied by the certificate in terms of Section 65B of
the said Act, obtained at the time of taking the documents, without which, the
secondary evidence pertaining to that electronic record is inadmissible. ( Para 22 of Anvar's
case ).
(5)
The view taken by the Apex Court in Navjot Sandhu's case that even if the certificate
containing the details in subsection (4) of Section 65B of the Evidence Act is
not filed, that does not mean that secondary evidence cannot be given even if
the law permits such evidence to be given in the circumstances mentioned in the
relevant provisions, namely, Sections 63 and 65 of the said Act, stands overruled
and is declared to be no longer a good law. (Para 22 of Anvar's
case ).
(6)
If an electronic record as such used as
primary evidence under Section 62 of the Evidence Act, the same is admissible
in evidence without compliance of the conditions in Section 65B of the said Act. (Para 24 of Anvar's
case ).
(7)
The objection that the electronic record
tendered in evidence is inadmissible in the absence of a certificate, as required
by Section 65B( 4) of the Evidence Act pertains to the mode or method of proof
which is procedural, and objections, if not taken at the trial, cannot be
permitted to be taken at the appellate stage. (Paras 29 and 32 of Anvar's
case ).
(8)
Withholding of the best evidence in the
form of electronic record clinching the issue, raises a serious doubt about the
case of the prosecution and an adverse inference against the prosecution under
Section 114, illustration (g) of the Evidence Act can be drawn that the
prosecution withheld the same, as it would be unfavourable to them had it been
produced. ( Paras 21 and 28 of Tomaso Bruno's case ).
(9)
The applicability of procedural
requirement under Section 65B of the Evidence Act of furnishing certificate is to
be applied only when such electronic evidence is produced by a person who is in
a position to produce such certificate being in control of the said device and
not of the opposite party. In a case where electronic evidence is produced by a
party who is not in possession of a device, applicability of Sections 63 and 65
of the Evidence Act cannot be held to be excluded. The requirement is not always
mandatory. ( Para 14 of Shafhi Mohammad's case).
(10)
The applicability of requirement of
certificate being procedural can be relaxed by Court whenever interest of justice
so justifies. ( Para 15 of Shafhi Mohammad's case ).
Certificate
at Exhibit 160 does not fulfil the requirements of subsection (4) of Section
65B of Evidence Act :
104. Keeping in view, the law laid down by the
Apex Court, we must hold that the certificate at Exhibit 160 does not comply
with all the requirements of subsection (4) of Section 65B of the Evidence Act
in relation to the proof of CD, marked as 'X' for identification, and DVD,
marked as Article 18A, though it may be possible to urge that some of the
conditions are complied with. The certificate is in fact not in respect of the
secondary evidence of CD – 'X' or DVD – Article 18A, which are used in
evidence. Exhibit 160Certificate is proved in respect of the evidence of what
it conveys through it, but it does not satisfy the requirements of subsection (4)
of Section 65B, as are laid down in para 14 of Anvar's case by the Apex Court and is, therefore,
inadmissible in evidence as certificate under Section 65B. We,
therefore, hold it against the prosecution that the certificate at Exhibit 160
cannot have presumptive value as is attached to it under the said provision.
The Sessions Court has held that PW 15 Sachin has issued such certificate at
Exhibit 160 and he was occupying a responsible position in respect of
installation and functioning of the system. In our view, this is not enough to
hold that Exhibit 160 satisfies the requirements of Section 65B.
105.
The findings recorded by us in the
aforesaid paras on the inadmissibility of Exhibit 160 as an evidence under Section
65B of the Evidence Act does not relieve us from considering the position of law
laid down by the Apex Court in its various decisions on the question as to
whether the provision of Section 65B of the Evidence Act is attracted or not in
the facts and circumstances of this case. Hence, we proceed to deal with all
such decisions.
Our
understanding of law on electronic evidence:
106. What we
understand from the law summarized as above is that Section 65B of the Evidence
Act deals with the secondary evidence and not with the primary evidence in the
form of electronic record. If the reliance is placed on the primary evidence,
then it is not necessary to produce the certificate under Section 65B of the Evidence
Act in compliance with the conditions stipulated by the Apex Court in para 14
of its decision in Anvar's case. In case where the electronic
evidence is produced by a party, who is not in possession of the device, the
applicability of Sections 63 and 65 of the Evidence Act is not excluded, and in
such a case, the procedural requirement under Section 65B of the Evidence Act
is not at all attracted. In cases where the provision of Section 65B is not attracted,
oral evidence of electronic record becomes admissible and recourse could be to
the provisions of Sections 59, 63 and 65 of the Evidence Act.
107.
Though the provision of subsection (4) of
Section 65B of the Evidence Act is mandatory and noncompliance of it, makes the
secondary evidence of electronic record inadmissible, nonetheless, it is
procedural dealing with the mode and manner of proof. Any objection as to its
admissibility has, therefore, to be raised at the time when such evidence is
sought to be tendered. However,
if such secondary evidence is permitted to be tendered without any objection,
the demand for compliance of the conditions in subsection (4) of Section 65B is
deemed to have been waived, as has been considered in the case of Tomaso Bruno, cited supra. Such objection cannot
subsequently be entertained by the Court to deprive the party tendering such
evidence, an opportunity to rectify the defects or the deficiencies. Therefore,
the question as to whether the provision of subsection (4) of Section 65B of
the Evidence Act is attracted or not, will have to be decided in the facts and circumstances
of each case and the Court can relax such requirement whenever interest of
justice so requires or justifies.
Our
view on the admissibility of electronic evidence in the facts and circumstances
of this case :
108. PW 14 Shubham states that he had also
copied the wanted footage of three cameras from DVR in the Pen Drive. He states
that “I had also copied the wanted footage in two CDs from the Pen Drive, which
were given to the police.” The Sessions Court, relying upon the oral evidence
of PW 14, holds in para 66 that the copies of footages, which were made in Pen
Drive, were kept by police for investigation purpose and they are not produced
before the Court. We do not find any fault in such a view taken by the Sessions
Court.
109.
The Hard Disk, which is a primary
electronic evidence, containing Image of CY 66/13, is marked as Exhibit 1
without any objection as to its admissibility. A DVD, which is the copy of the Image
or a copy of the Hard Disk prepared and identified by PW 19 Ms Puja is marked
as “Annexure DVD CY 66/13” Article 18A is also admitted in evidence without any
objection of it being a true copy of the footages in the Hard Disk. On our
independent consideration of the entire evidence, we find that the DVD at Article
18A is the true and genuine copy of footages contained in the Hard Disk and no
fault can be found with the comparison report at Exhibit 57. The Sessions Court
records the finding in para 78 that PW 19 Ms Puja has clarified that the video
is continuous and she ruled out the possibility of tampering of Hard Disk or
even DVD – Article 18A. We concur with it. Thus, the primary as well as the secondary
evidence of electronic record produced on record is true and genuine.
110.
On the basis of the oral evidence of PW 5
Kailash, PW 14 Shubham, PW 16 Rupali, Exhibit 99 seizure panchanama, bill of
Pen Drive and DVD/CD at Exhibit 165, sketch of spot at Exhibits 166 and 167 and
bill for purchase of CCTV system at Exhibit 84, we have already held that – (1) CCTV system
containing Hard Disk and cameras to record all happenings in the Bar was installed,
(2) it
was functioning on the date of incident, (3)
it recorded the entire incident of murder
of Jitu on 1012013 at 5.30 p.m. onwards, (4)
recorded footages in cameras were viewed
on LCD TV on the spot, (5) copies of footages from cameras 1, 2 and
7 in the Hard Disk, taken in CD – 'X' are true and genuine, and (6) CD – 'X' and
entire system of CCTV cameras was seized and sealed under panchanama at Exhibit
99, and (7) all these articles are identified by the
witnesses in Court. The Sessions Court also records the finding in para 73 that
from the date of seizure till opening of parcel, containing Hard Disk, by PW 19
Ms Puja, the label seal (Article 5) on the parcel was intact. We accept such
finding.
111.
One more additional aspect we would like
to consider. On
CD – 'X' placed on record, it is written “CAPTAIN PRO COMPACT DISC RECORDABLE”
and on DVD, it is written as “DVDR”. After
its search on Internet, we find that it is known as “CDR” or “DVDR”, which is a
type of “Write Once, Read Many” (WORM) compact disc format that allows onetime recording
on disc and it is different from CDRW which allows you to write data and then
erase to reuse the disc. As long as CDR disc has not been finalized, you can
erase it and reuse it the same way you could a standard CDRW disc. The finalization
process makes it impossible to reuse a CDR after its been recorded to and so
long as that has not happened you can continue to record data to a disc as
often you would like. In our view, it means that the CD – 'X' and DVD – Article
18A placed on record are of type “Write Once, Read Many” and are not capable of
multiple recordings, once the process is finalized. No questions were put in
the crossexamination of PW 14 Shubham or PW 19 Ms Puja, on the question of
reuse of CD – 'X' and DVD – Article 18A before finalization of recording. It
was not the suggestion to PW 14 Shubham or PW 19 Puja that multiple CDs or DVDs
were used while copying the data in CD – 'X' or DVD – Article 18A. It was not the
suggestion that CD – 'X' or DVD – Article 18A were of “RW” type and not “R”
type. There was no suggestion that the Hard Disk, other than one at Exhibit 1,
was used for copying purposes. Once the recording in CD – 'X' and DVD was
complete, there was no scope to tamper with it as they were not reusuable.
Significant
aspects to be noted in respect of electronic evidence produced :
112. We would like
to note most significant aspects in respect of the electronic evidence produced
on record. It was not the objection raised that the CCTV system installed in
the said Bar was neither functioning at the time of incident nor did record the
incident of murder of Jitu Gawande. It was also not the objection raised that the
Hard Disk at Exhibit 1 was tampered or contained something other than what was
recorded by the cameras in operation connected to it. It was neither the
objection raised nor was there any crossexamination suggesting that the CD 'X'
in question does not contain images of the footages contained in the Hard Disk
or that it is not a true copy of footages contained in three cameras recorded
in the Hard Disk at Exhibit 1. It is also not an objection that DVD at Article
18A is not the true copy of the Hard Disk at Exhibit 1. It was also not the
objection raised before the Court that the witnesses should be shown the CCTV
footages from the primary evidence of Hard Disk produced on record. PW 14
Shubham, who prepared CD – 'X', and PW 19 Puja, who prepared DVD – Article 18A,
have deposed that they have copied it from the Hard Disk at Exhibit 1. There
is no challenge to this version of independent witnesses, which is not tested
in the crossexamination, as required by Section 155 of the Evidence Act;
impeaching their credit. In view of such position, we hold that the objection
raised to the admissibility, loses its significance and is, therefore, rejected.
Other
objections to electronic evidence :
113.
The Sessions Court has dealt with two
objections raised by the defence in paras 76 and 77 as under :
“76. Evidently, in the requisition letter
(Exh. 195) model number of harddisk, which was sent for forensic examination is
HDKPOK02J, whereas in report (Exh. 57), the number of harddisk is mentioned as
WD5000AAKX00ERMA0. Taking
help of this discrepancy, learned Advocate for the accused No.1, vehemently
submits that the harddisk examined by the expert is not the same. Bare perusal
of harddisk (Article4) goes to show that apart from number mentioned in the
requisition letter (Exh. 197), various other numbers are mentioned on the
harddisk itself. The number WD5000AAKX00ERMA0 is one of the numbers printed on
the said hard disk Apart from HDKP05AOK02J. So, it appears that the expert has
written in her report one of the another number, which is appearing on the
harddisk (Article4) containing number HDKP05AOK02J. Therefore, I do not find
force in the argument of learned Advocate for accused No.1 that it is not the
same harddisk.”
“77.
It is also submitted by
learned Advocate for the accused that the CD as well as harddisk are not
exhibited and they have been given Article Numbers, therefore, they cannot be
read in evidence. Let me state, in general practice any document of paper is
given an exhibit number and whereas, any article, though it may be document
within the meaning of Evidence Act, are given article numbers for the convenience
purpose. So, mere on this ground it cannot be said that harddisk and DVD/CD are
marked as Article No.4 and 18, respectively and not given exhibit numbers, therefore
they cannot be read in evidence. Article or Exhibit Numbers are given only for
identification and convenience purpose during the trial. Deciding its probative
value is entirely different thing. So, if the other criteria is satisfied, then
they can be read in evidence, irrespective of the fact that they are given
article numbers. Therefore I do not find force in the argument of Learned
Advocate for defence.” We do
not find any fault in rejecting the objection and we concur with it.
Ourselves
witnessing CCTV footages from the Hard Disk, CD and DVD :
114. The Hard Disk
at Exhibit 1 contained in the DVR is available on the record of the Sessions
Court. The witnesses PW 1 Raghuveer, PW 2, Raju, PW 3 Sitaram, PW 4 Pramod, PW
5 Kailash, PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal were confronted with
the relevant portion in CD – 'X' and Annexure DVD CY66/ 13 (Article 18A) during
the course of their examinationinchief. We
asked the learned counsels appearing for the parties as to whether there is
legal impediment for this Court to view the footages from the Hard Disk, DVD
and CD, and their response is that there cannot be. In fact, all of them
expressed that the Sessions Court should have got the entire system produced on
record assembled and the witnesses should have been confronted with the
footages recorded in the Hard Disk at Exhibit 1. We,
therefore, called upon the Technicians from the establishment in the High Court
in our Chamber. We opened the seals of the articles sealed and produced. We got
it assembled and have ourselves viewed the footages contained in the Hard Disk
at Exhibit 1, which was connected to the DVR, CD – marked as 'X' and DVD at Article
18A.
115.
After witnessing the footages in the Hard
Disk, CD and DVD, we neither find any difference nor any discontinuity or insertions
in the Hard Disk at Exhibit 1. On the contrary, we find that the recordings in
the Hard Disk and the DVD and CD are in the same continuity and corresponds
with each other. We find that the DVD at Article 18A and CD – 'X' are the true
and genuine copies of the footages in camera Nos.1, 2 and 7 in CCTV recorded in
the Hard Disk at Exhibit 1. We also find that the entire electronic evidence produced
on record is not only consistent with each other, but also consistent with the
oral evidence of the witnesses. Probably for this reason, there was no
insistence from the defence for showing the footages from the Hard Disk, which
is a primary electronic evidence.
116.
We do not find it necessary to consider
the question as to the admissibility of secondary evidence produced by a person
not in power and possession of the CCTV system. We find that the primary as
well as secondary evidence of electronic record is produced, and that the
secondary evidence is a true and genuine copy of relevant primary evidence
available on record. In the absence of any objection or crossexamination of the
witnesses, PW 1 Raghuveer, PW 2 Raju, PW 3 Sitaram, PW 4 Pramod, PW 5 Kailash,
PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal, on the aspect of CD – marked as
'X' and DVD at Article 18A not being the true and genuine copies of the
footages contained in the Hard Disk at Exhibit 1, in our view, the provision of
Section 65B of the Evidence Act is not at all attracted so as to make the
electronic evidence in the form of CD and DVD inadmissible to establish the
incident and the identity of the assailants. We, therefore, hold that the
electronic evidence tendered in the form of Hard Disk at Exhibit 1, CD – 'X'
and DVD – Article 18A is admissible in the facts and circumstances of the case without
a certificate under Section 65B of the Evidence Act. We, therefore, accept such
a view taken by the Sessions Court to be legal, correct and proper.
Activities
in the Seven Hills Bar :
117.
PW 1 Raghuveer states that the Bar used
to open at 10.30 a.m. and used to close at 11 p.m. There are six waiters, one cook
and one security guard. In the morning, two waiters used to come for a work and
they used to remain in the Bar upto 2 p.m. Four
waiters used to come at 2 p.m. and used to remain in the Bar till 11 p.m. Cook
and guard used to come at 2 p.m. He states that “I used to come to Bar at 2
p.m. and my job was to provide service to the customers by sitting on the
counter.” He states that the Bar provides service of liquor for drinking to the
customers at the counter. Waiters used to provide service to the customers at
the table. After taking orders from the table, waiters used to come to the counter
and used to take liquor from him as per the orders of the customers. He states
that in the year 2013, Raju Vargat, Anil Tiwari, Vinay Tiwari, Manish Tiwari,
Devendra and Gajanan were working as waiters in the Bar, whereas Rupesh Gade
and Sitaram Wankhede were the security guard and cook respectively.
Actual
incident, complaint, the persons present on the spot, and their oral evidence :
118. PW
1 further states that the incident took place on 1012013, on which date he came
to the Bar at 2 p.m., and Sitaram Wankhede, Anil Tiwari, Raju Vargat and Rupesh
attended the duty. At
about 5 to 5.30 p.m., four people came in the Bar. He states that “One of them
came to my counter and asked counter peg of Rum. I
prepared peg (liquor) and gave it to him. Other three people were standing
behind him. I provided Rum to the said person in a glass. Thereafter,
I was busy in my work. In our Bar, there is door of glass which is adjacent to
the shutter of the Bar. Besides the said door, there is partition of glass. I
saw from the glass partition, one car came there. Those three persons were
looking towards car. I felt that they were waiting for somebody because those
persons were looking outside the Bar again and again. The said car was of white
colour. It was big car. After some time, one person came out of the said car and
entered in the Bar. He was talking to all four persons. They were talking in
Marathi. I do not know Marathi. They started talking loudly, therefore, I paid
attention towards them. One of them, closed the door of the Bar. The said
person was one of the four persons. Those four persons started quarrelling with
a person who came in the car. Out of four, two persons started assaulting the said
person by means of knives. Those knives might have brought by those persons.
Rest of two persons went outside. The person to whom assault was made fell
down. In spite of that those persons were assaulting the said person, who fell
down. Thereafter they left the Bar. There was pool of blood. I had been to
rescue him but one of them brandished knife towards me and asked me to go
inside. Therefore,
I went inside the counter.”
119. PW 1 Raghuveer states that at the time of
incident, CCTV cameras were on. In para 7, he states that “When incident happened,
I, Raju Vargat, Sitaram Wankhede and Anil Tiwari were present. Nobody other was
present there except us. I made phone call on 100 number and informed the
incident.” In para 11, he states that within 20 to 25 minutes, police came
there and enquired with him about the deceased. He further states that “I told
police that I do not know deceased. I was taken to police station. I informed
the police about the incident.” He states that “What I told, police wrote.” He
identifies the oral complaint dated 1012013 at Exhibit 85, and the printed
complaint at Exhibit 86. He says that “No further enquiry was made by police
with me at Bar.”
120. PW 1 states that “I do not remember the
description of the said persons. I cannot identify those persons due to passage
of time.” The Court, therefore, granted permission to the prosecution to
crossexamine PW 1. The portions marked 'A', 'B', 'C', 'D', 'E' and 'F' in the complaint
at Exhibit 85 were confronted to this witness in the crossexamination. The
said statements are reproduced below :
“Portion 'A' : [Vernacular Language Omitted]
[Portion
'A' – Translated – After some time one amongst them brought
a person aged about 30 to 35 years wearing white Tshirt.]
“Portion 'B' : [Vernacular Language Omitted]
[Portion 'B' – Translated –
Subsequently a person wearing white
shirt was checking the person wearing blue shirt and rest of the persons
standing were watching him.]
“Portion 'C' : [Vernacular Language Omitted]
[Portion
'C' – Translated – They were keeping hands on the shoulder
of each other and were talking and hugging. I therefore thought that they were
knowing each other. At that time person wearing blue shirt started abusing the person
wearing white shirt.]
“Portion 'D' : [Vernacular Language Omitted]
[Portion
'D' – Translated Again he
came near the counter and asked one of his accomplices to give weapon and the accomplice
gave it to him and threatening started to a person wearing white shirt.]
“Portion 'E' : [Vernacular Language Omitted]
[Portion
'E' – Translated – At that time, the accomplice or one
another of slim and heighted personality with long hair came in the Bar, took
up a bottle of cold drink and started threatening the waiters. Two other
persons accompanying them started watching outside to see if there is someone coming
inside and they were going out and coming in.]
“Portion 'F' : [Vernacular Language Omitted]
[Portion 'F' – Translated –
If I see the said persons I can identify
them.]
The witness says that
“I do not remember whether deceased was wearing white shirt. I do not remember
whether I had stated to police that after some time one of them brought a
person aged 32 to 35 years wearing white shirt. I cannot assign any reason why
portion 'A' is appearing in my report.” PW 1 further states that “I do not
remember whether I had stated to the police that the person wearing white shirt
was checking the person, wearing blue shirt. I do not remember whether other persons
were looking to them. I cannot assign any reason why portion 'B' is appearing
in my report.” He further states that “I do not remember that all persons were
talking each other by hugging. It is not correct to say that I felt that all
those persons might be knowing each other. I do not remember person wearing
blue shirt, started abusing the person wearing white shirt. I do not know why
portion 'C' is appearing in my report.” PW 1 further states that “As I was busy
in my work, therefore, I could not pay attention whether the person wearing
blue shirt, demanded weapon to the person who showed the weapon to the person
wearing white shirt and frightened him. I do not know why portion marked 'D' is
appearing in my report.” PW 1 further states that “I do not remember whether
out of four persons, a thin person having long hair came from one side of hall
by taking one cold drink bottle and threatened the waiters of the Bar. I do not
remember out of those, two persons were looking outside to see whether anybody
come inside the bar and were coming and existing from the door. I cannot assign
any reason why portion marked 'E' is appearing in my report.” He further states
that “I do not remember whether I stated to police if, I had seen assailants, I
can identify them. I
cannot assign any reason why portion marked 'F' is appearing in my report.” PW
1 further states that “It is not correct to say that I am deposing false that I
do not remember, portion marked 'A' to 'F' to police. It is not correct to say
that I had stated portion marked 'A' to 'F' to police.”
121. The complaint
at Exhibit 85 by PW 1 Raghuveer was recorded by Police SubInspector Jagdish
Pawar, PW 17. He states that “I was asked to take the complaint of complainant.
At about 8.00 p.m. complainant came to police station. I recorded his oral complaint
on computer. Complainant signed on the said computerized report.” He identifies
the complaint at Exhibit 85 shown to him and states that it bears his
signature. He states that the contents are written as per the say of the
complainant and he prepared the printed FIR and registered the offence under
relevant Sections vide Crime No.12/13 and the printed FIR is identified at Exhibit
86, which bears his signature and the signature of the complainant. He states
that the portion marked 'A' to 'F' in the complaint at Exhibit 85 are written
as per the say of the complainant. In
the crossexamination, he denies that the said portions were written by him on
his own.
122.
PW 18 Vitthal, who took over the
investigation on 1112013 at 9 a.m., states that the complainant approached him
and told that he wants to state something and, therefore, the supplementary
statement of the complainant was recorded as per his say. The portions marked
'A' to 'F', appearing in the statement of PW 1, recorded on 1112013, were
confronted to him as Exhibits 174A to 174F. The
said statements are reproduced below :
“Portion 'A' : [Vernacular Language Omitted]
[Portion
'A' – Translated – Yesterday I witnessed the murder.
However, I was scared and because of terror of gundas I could not give the
complete information to the police in spite of knowing their names.]
“Portion 'B' : [Vernacular Language Omitted]
[Portion
'B' – Translated – Yesterday on 1012013 at about 5.30, the
usual customers in the Bar Tushar Dalal, Kunal Maske, Lashu Faye and Rinku
Tichkule came. I had supplied them liquor on credit on earlier occasions and therefore
I know them very well. On that day I served them liquor in the glass as usual,
when they came in the Bar.]
“Portion 'C' : [Vernacular Language Omitted]
[Portion
'C' – Translated – After some time Lashu Faye who is our
usual customer to whom I know and used to serve liquor regularly brought with
him Jitu Gawande.]
“Portion 'D' : [Vernacular Language Omitted]
[Portion 'D' – Translated –
Tushar said in Hindi to Jitu Gawande
“Sale bar bar paise mangta hai, tuze dikhata hu”. Immediately
Tushar demanded something from Rinku and Rinku immediately gave him weapon like
knife to Tushar.]
“Portion 'E' : [Vernacular Language Omitted]
[Portion 'E' – Translated –
Immediately Kunal took out the knife and
started assaulting Jitu Gawande and at that time Lashu Faye told Kunal and Tushar
“Don't leave Jitya, kill him.” At that time Tushar and Kunal started assaulting
Jitu Gawande with knife.]
“Portion 'F' : [Vernacular Language Omitted]
[Portion 'F' – Translated –
Immediately Amol Mandale our usual
customer came inside the Bar from the open restaurant.]
PW 18, in response to the questions put
to him in crossexamination in para 22, states that on 1112013 at about 9 a.m.,
he recorded the statement of the complainant and it lasted for 15 minutes.
123.
PW 1 Raghuveer states that “On 1112013, my
statement was not recorded by police.” He states that “I cannot assign any reason
why portion marked 'A' is appearing in my supplementary statement.” He states
that “It did not happen that the customer Tushar Dalal, Kunal Maske, Lassu Faye
and Rinku Chitkule who used to visit frequently in our bar, had been to my bar
on 1012013 at about 5.30 p.m.” He states that “I cannot assign any reason why
portion 'B' is appearing in my supplementary statement.” PW 1 states that “It
did not happen that after some time, Lashu Faye brought Jitu Gawande in the
bar. I cannot assign any reason why portion marked 'C' is appearing in my
supplementary statement.” He states that “As I was busy in my work, therefore,
I do not say that after some time Tushar asked Jitu Gawande “sale bar bar Paise mangta hai, tuze
dikhata hu”, therefore, Tushar
demanded something to Rinku then Rinku gave weapon like knife to Tushar. I
cannot assign any reason why portion marked 'D' is appearing in my supplementary
statement.” PW 1 states that “It did not happen that when Kunal also rushed
to assault Jitu Gawande by taking out knife, Lashu Faye told Kunal and Tushar “Jitya ko chodo mat, mar dalo”.”
He states that “It is not correct to say
that I had stated to police that Tushar and Kunal started assaulting Jitu
Gawande by means of knife.” He further states that “I cannot assign any reason
why portion marked 'E' is appearing in my supplementary statement.” He states
that “It did not happen that Amol Mandale, who used to often visit my bar, came
there. I cannot assign any reason why portion marked 'F' is appearing in my
supplementary statement. It
is not correct to say that as I was knowing the name of assailants, therefore,
I had stated their names to police. I cannot say that accused are the same
persons, who are assailants in the incident dt1012013.”
124. Though PW 1
Raghuveer stated that Raju Varghat was present on the spot of incident when the
incident happened, PW 2 Raju denies his presence on the spot and claims
ignorance about the incident. He was confronted with the statements said to have
been recorded by the police under Section 161 of the Code of Criminal Procedure
on 1012013, marked as 'A', 'B', 'C', 'D', 'E', and 'F', which are reproduced
below :
“Portion 'A' : [Vernacular Language Omitted]
[Portion 'A' – Translated –
In the evening at about 5.30 there was
no rush in the Bar and at that time 4 to 5 persons aged about 25 to 30 years
came near the counter in the Bar and gave order. After some time one person
wearing white shirt aged about 30 to 35 years came inside and all of them were
standing in front of the counter and talking in Marathi. At
that time, person wearing white shirt started talking to person wearing blue
shirt in a loud voice on the money transaction.]
“Portion 'B' : [Vernacular Language Omitted]
[Portion
'B' – Translated – Subsequently the altercations between
them started, converting in quarrel and abusing each other. At that time person
wearing blue shirt aged about 25 to 30 years having slim personality demanded
knife from a person with a round face aged about 25 to 30 years, who gave it to
him.]
“Portion 'C' : [Vernacular Language Omitted]
[Portion
'C' – Translated – At that time, person wearing blue shirt
started assaulting the person wearing white shirt.
At
that time Manager started intervening. One amongst the assaulters wearing white
Tshirt, heighted and having beard, took out the knife and started assaulting a
person wearing white shirt.]
“Portion 'D' : [Vernacular Language Omitted]
[Portion 'D' – Translated –
At that time Manager tried to pacify but
the person having beard threatened the Manager with knife.]
“Portion 'E' : [Vernacular Language Omitted]
[Portion
'E' – Translated – At that time, a person aged about 30 to
35 years, having thin hair on the head and came along with the assailants, was
also standing near the counter. He started saying the assaulters “Kill Jitya”.]
“Portion 'F' : [Vernacular Language Omitted]
[Portion F – Translated –
The person wearing white shirt was not
falling down and he caught the knife in his hand.
At
that time, another person of a slim personality, having long hair, aged about
25 to 30 years, accompanying the assailants, picked up a cold drink bottle. In
the meantime, the person wearing white shirt fell down and we were threatened
with the bottle of cold drink.]
PW 16 Rupali, the Investigating Officer, states in para 4 of her deposition
that “I recorded the statement of Raju Varghat. Portion
marked 'A' to 'F' in his statement were recorded as per his say. It is marked
at Exhibits 168A to 168F.”
125. PW 1 Raghuveer also states that Sitaram
Baburao Wankhede, PW 3, was also present when the incident occurred. The statement
of PW 3 was recorded on 1012013 by PW 16 Rupali, the Investigating Officer.
Portion marked 'A' in the statement of PW 3 recorded in Marathi is reproduced
below :
“ Portion 'A' : [Vernacular Language Omitted]
[Portion 'A' – Translated –
I heard the noise from the counter and
therefore I went there. I saw that a person wearing white shirt was being
assaulted by two persons with knife. One was strong and stout, having beard,
wearing white shirt, and the other was slim and wearing blue shirt. At
that time our Manager asked them not to quarrel, but he was threatened by a
person having beard with knife. In the meantime, one accomplice aged about 30
to 35 years was standing on the counter and asking the assailants to kill. At that
time, one of the assailants, having a round face, fair in colour, wearing full
Tshirt, aged about 20 to 30 years, was going out and coming in the Bar. Along
with him, one more accomplice of slim personality, having long hair, came
inside from the open restaurant and picked up a cold drink bottle, as he saw
the person assaulted was not falling on the floor and had caught hold of the
knives. However, immediately the person assaulted fell on the floor and the
person having cold drink bottle in his hand came back and started threatening
us. Subsequently all of them left, presuming that the person assaulted has
died.]
PW 16 states in her
deposition in para 5 that “I recorded statement of Sitaram Wankhede. Portion
marked 'A' in his statement was recorded as per his say and it is marked as
Exhibit 169.”
126. PW 1 Raghuveer, the Manager, though
deposed the entire incident, states in para 7 of his deposition that “I do not
remember the description of the said persons (assailants). I cannot identify those
persons due to passage of time.” He stated that at the time of incident, CCTV
cameras were on and he can identify footages of the incident, and after seeing
it, he can identify the assailants. At that stage, APP made request to the
Court to show CCTV footage from the CD deposited in the Court. It was objected
on the ground that the accused are not shown to the witness and the witness has
not turned hostile. Keeping the objection open, the Court granted permission to
the learned DGP to show the CCTV footage. The CD deposited in the Court was,
therefore, opened and played in the laptop. The Court noted that none of the
defence counsel or the DGP objects about nonfunctioning of the laptop. However,
the objection of the defence was that it is only after showing CD, further
evidence of this witness can be recorded. The Court, keeping aside the
objection to be decided subsequently, permitted playing of CD in the laptop.
127.
In the footage of camera No.1 started
running, PW 1 identified himself and one Anil Tiwari present at the time of happening
of the incident and says that “I can identify the assailants”, immediately
turns around, and says that “I cannot identify the assailants because the video
is not so clear.” Except refusing to identify the accused persons/assailants,
the deceased and the clothes worn by them, there is complete narration of incident
– step by step – identifying every other thing shown in the footages. The CD,
which was played, was marked as 'X' for identification and it was resealed by
the Court.
128.
PW 2 Raju Vargat, the Waiter in the Bar,
who also admits his presence at the time of incident along with 2 to 3 other
Waiters, refused to identify the accused persons even in the Test
Identification Parade. He states that at the time of incident he was inside the
kitchen and does not know what happened after 2.30 p.m. He was permitted to be
crossexamined by APP. In crossexamination, he states that “My statement was
recorded by police on 1012013.” He further states that “I cannot assign any
reason why portion marked A, B, C, D, E and F is appearing in his statement.”
After he was confronted with CD, marked as 'X' for identification, which was
run in the laptop, he fails to identify the accused persons or the assailants.
129.
PW 3 Sitaram, working as Cook, admits
that at the time of incident, he was himself and PW 1 Raghuveer, PW 2 Raju
Vargat, and one Tiwari were present inside the Bar. He, however, says that “I
was inside the kitchen and, therefore, I do not know what happened in the Bar
and I came to know about murder after the incident, which took place near the
counter.” He accepts to have signed the inquest panchanama at Exhibit 92. This
witness also refused to identify the assailants in the Test Identification
Parade. The
Court permitted APP to crossexamine him. He claimed complete ignorance about
the incident and the assailants.
Concurring
with the findings of Sessions Court :
130.
The Sessions Court holds that though PW 1
Raghuveer, the Manager, identified his Bar, the entire articles in the Bar, including
the staff, and also the incident happened, as appearing in the CD, he fails to
identify the assailants as the accused persons. This
witness did not support the theory of the prosecution to identify the
assailants. It further holds that PW 2 Raju saw the murder, but went on
deposing that he does not know who committed the murder. He
identified the Bar and the Manager, but failed to identify the assailants as
the accused persons when he was confronted with DVD – Article 18A. It further
holds that PW 3 Sitaram was also shown CCTV camera footages. Though he
identified the Manager, waiter Anil did not identify the assailants in the CD
as the accused persons. We endorse the view taken by the Sessions Court. Not
only that, but we proceed further and hold that there is a deliberate design on
the part of the eyewitnesses in failure to identify the assailants as the
accused persons, obviously for the reasons best known to them.
Law
on unlawful assembly and criminal conspiracy :
131. The accused
are held guilty of the offences punishable under Sections 302 read with
Sections 120B and 149 apart from the offences under Sections 147, 148 and 506B
of IPC. The offences under Section 147 deals with punishment for rioting,
Section 148 deals with rioting, armed with deadly weapon, and Section 149 makes
every member of unlawful assembly guilty of offence committed in prosecution of
common object. Section 120B of IPC deals with punishment for 'criminal
conspiracy', as defined under Section 120A of IPC.
132.
So far as the offence punishable under
Section 149 of IPC making a member of unlawful assembly guilty of offence
committed in prosecution of common object is concerned, three ingredients are required
to be satisfied – (1) there must be an unlawful assembly of five
or more persons, (2) there must be commission of offence by
any member of an unlawful assembly, and (3)
such offence must be committed in
prosecution of the common object of that assembly, or such as the members of
that assembly knew to be likely to be committed in prosecution of that object.
The common object has to be inferred from the facts and circumstances of the
case. It is enough if each has the same object in view and their number is five
or more and they act as an assembly to achieve that object. The common object
may be formed at any stage by all or a few members of the assembly and the
other members may join or adopt it. Once the ingredients of the offence
punishable under Section 149 of IPC are established, it is immaterial that any
person of unlawful assembly did nothing with his own hands. It is the common
object which makes the person vicariously liable for the acts of an unlawful
assembly.
133.
Section 120A of IPC defines 'criminal
conspiracy'. It states that when two or more persons agree to do, or cause to
be done ( 1) an illegal act, or (2) an act
which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy. The proviso clarifies that no agreement except an
agreement to commit an offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more parties to such agreement
in pursuance thereof. The explanation clarifies that it is immaterial whether
the illegal act is the ultimate object of such agreement, or is merely
incidental to that object. Section 120B of IPC, dealing with the punishment of
criminal conspiracy, stipulates in subsection (1) that whoever is a party to a
criminal conspiracy to commit an offence punishable with death imprisonment for
life or rigorous imprisonment for a period of two years or upwards, shall, where
no express provision is made within Code for the punishment of such a conspiracy,
be punished in the same manner as if he had abetted such offence.
134.
In the decision of the Apex Court in the
case of Mukesh v. State
(NCT of Delhi), reported in
(2017) 6 SCC 1, the purpose of the provisions and
principles are highlighted, which we propose to state. The
underlying purpose for the insertion of Sections 120A and 120B of IPC was to
make a mere agreement to do an illegal act or an act which is not illegal by
illegal means punishable under law. Criminal
thoughts in the mind when take concrete shape of an agreement to do or cause to
be done an illegal act or an act which is not illegal by illegal means then
even if nothing further is done an agreement is designated as a criminal
conspiracy.
135.
The decision in Mukesh's case lays down that it is extremely rare
that direct evidence in proof of conspiracy can be forthcoming from wholly
disinterested quarters or from utter strangers. Hence, the criminal conspiracy
can be proved by circumstantial evidence. The illegal act may or may not be
done in pursuance of agreement, but the very agreement is an offence and is punishable.
Entering into an agreement by two or more persons to do an illegal act or legal
act by illegals means is the very quintessence of the offence of conspiracy.
While dealing with the act of criminal conspiracy, the Court has to enquire
whether the two persons are independently pursuing the same end or they have
come together in the pursuit of an unlawful object. The former does not render
them conspirators, but the latter does. It is essential that an offence of
conspiracy requires some kind of physical manifestation of agreement. The
evidence as to the transmission of thoughts sharing the unlawful design may be
sufficient.
136.
The decision in Mukesh's case further holds that to constitute a
criminal conspiracy, it is not necessary that all the conspirators must know
each and every detail of the conspiracy. Neither
is it necessary that every one of the conspirators takes active part in the
commission of each and every conspiratorial acts. The conspiracy is seldom an
open affair and agreement can be inferred by necessary implication. Everything
said, written or done by any of the conspirators in execution or furtherance of
the common purpose is deemed to have been said, done, or written by each of
them. And this joint responsibility extends not only to what is done by any of the
conspirators pursuant to the original agreement, but also to collateral acts
incident to and growing out of the original purpose.
Objection
to the identification of accused :
137.
Shri Adwait Manohar, the learned counsel
appearing for one of the accused, invited our attention to the oral evidence of
the complainant PW 1 Raghuveer, who has deposed that on the date of the
incident at about 5 to 5.30 p.m., four persons entered the Bar and one of them
came to his counter and made a demand for peg. The
other three persons were standing behind him and all of them looking outside
the Bar again and again giving an impression of waiting for someone's arrival.
He submits that in the absence of identification of these four persons out of
six, and attributing specific acts to each of them, it is not possible to
convict the accused persons in respect of the offences alleged to have been
committed by them.
Our
findings on identification of accused, unlawful assembly and criminal
conspiracy :
138. It is not in dispute that PW 1 Raghuveer
was the Manager in the enclosed Bar, sitting on the counter. Obviously, he
could say something definite about the persons who entered the Bar. He deposes
that the four persons entered the Bar and one of them came to his counter and
demanded a peg. The other three persons were standing behind him. He deposes
that the assault was by two persons by means of knives which they might have
brought with them. He does not speak of the remaining two assailants, other
than four. In our view, if the evidence brought on record establishes an unlawful
assembly of six persons/assailants, who have conspired to commit an offence of
murder of deceased Jitu, which is accomplished, the question as to which four
out of six assailants have assaulted the deceased by knives, loses its
significance, for the reason that they are found to be the members of unlawful
assembly and the participants in the conspiracy. Merely because PW 1 Raghuveer could
see only the activities of four assailants, would not be enough to destroy the
story of the prosecution.
139.
We ourselves have seen the CCTV footages
recorded in the primary document of Hard Disk seized at Exhibit 1, by getting
DVR seized assembled. We also saw the footages in CD – 'X' and DVD Article 18A
seized, in the laptop. The assailants were six in number. Four of them came
inside the Bar. They were waiting for someone to come in the Bar. One of them
wearing blue coloured shirt was near the counter and started consuming a peg of
liquor served to him, probably on his demand. The other three assailants were
standing behind him and all of them were seen to be waiting for somebody, as
they were looking outside the Bar again and again. After
some time, a white coloured big car came outside the Bar and a person wearing
white shirt (referred to now as “the deceased”, since his identity is not in
issue) alighted from it and came along with one another accomplice, inside the
Bar. Thus we found in the CCTV footages a group or an assembly of five
assailants/persons inside the Bar along with the deceased.
140.
Then we saw in the footages, the
altercations were between the deceased and the person wearing blue shirt who
was consuming liquor. The accomplice, who brought the deceased, left the Bar
and went outside. One of the accomplices in the assembly of four inside the
Bar, supplied a knife to a person wearing blue shirt, who started assaulting
the deceased. Thereafter one another assailant/person in the assembly wearing
white Tshirt having beard and heighted strong personality, took out a knife,
which was already with him, and joined the assault on the deceased. When the
inmates other than the assailants in the Bar tried to proceed, one of the accomplices
brandished them with cold drink bottle picked up from the Bar. After some time
only two persons assaulting the deceased remained in the Bar and others went
outside. After the object was accomplished, one of the two assailants firstly
came out and fled away from the spot as a pillion rider, on a motorcycle of one
more accomplice waiting as rider on it. The assailant wearing blue shirt came
outside the Bar and along with four others, boarded a 'Ritz' car standing
outside the gate of the Bar and fled away. Thus, it was clearly a group or an
assembly of six assailants involved in the attack on the deceased Jitu, playing
different roles to attain a common object.
141.
We find that an assembly of six
assailants was constituted, as all of them came together at the Bar. Some of
them were inside the Bar and the others were outside. Their body language and
the movements in and out of the Bar were uncomfortable and suspicious. The
stability was in the movement of one of the assailants in blue shirt, consuming
a peg of liquor besides the counter. There was a close watch by all of them on
the inmates of the Bar as well as the surroundings outside the Bar. One of the
assailants outside the Bar brought the deceased inside the Bar. The deceased
also seemed to be in a drunken condition, as he came with the support of one of
the assailants. The assailant in blue shirt and the deceased started talking to
each other. The deceased was also hugging the said assailant and the body
language of both showed their previous acquaintance or friendship.
142.
After some time, the deceased checked the
person of the assailant in blue shirt. The other assailants were in a position protective
to the assailant in blue shirt. None other than the assailant in blue shirt was
talking to the deceased and they were watchful on the movements of both. The
assailant in blue shirt was trying to find an opportunity which he exploited
when none other than the four assailants were in the Bar, apart from the staff.
He shut the glass door, demanded the knife, which was provided by one of the
assailants, and started assaulting the deceased. The other assailant, who was
already having a knife, took it out and joined the assault on the deceased.
Rest of the assailants inside the Bar took care to see that no one intervenes
and at times brandished those who tried to intervene. The deceased was
multipally stabbed by both the assailants. After some time, the other
assailants left the Bar, except the two who continued the assault probably till
the deceased was finished. The assaulter in white Tshirt having beard and
strong personality tried to leave the Bar, but then again turned and pulled the
assailant in blue shirt to come out. The assailant in blue shirt was continuing
the assault probably to ensure that the deceased does not survive and
thereafter both of them went outside. Four assailants boarded the 'Ritz' car
standing outside the gate of the Bar and one assailant having beard, sat as a
pillion rider on the motorcycle. Thus, the two assailants fled away on the
motorcycle.
143.
PW 4 Pramod was shown CCTV footages and
he has identified all the six accused and attributed to all of them the
specific acts appearing in the CCTV footages. His evidence of identifying the assailants
as the accused persons has already been held to be trustworthy by us. He states
that accused No.1Tushar and accused No.2Kunal were assaulting Jitu by knife,
accused No.5Rinku Tichkule provided the knife, accused No.3Lashu Faye was
standing along with the accused Nos.1, 2 and 5 inside the Bar, accused No.5Amol
Mandale came from backside of the Bar and brandished the persons in the bar
with a cold drink bottle, accused No.6Sameer was standing outside the Bar near
the gate, and he identified all the accused Nos.1 to 6.
144.
We are of the view that the oral evidence
of PW 4 Pramod and the CCTV footages contained in the primary evidence of Hard Disk
and those contained in CD – 'X' and DVD – Article 18A read with the oral
evidence of PW 19 Ms Puja and her report at Exhibit 57 clearly establish an
unlawful assembly of six accused persons, who had conspired to commit the
murder of deceased Jitu at the given time and place. It was preplanned or
premeditated. Each
of the member of unlawful assembly was assigned a specific role, which everyone
has performed. It was a smooth operation carried out. The offence of murder was
committed in prosecution of common object to get rid of the demand for money by
the deceased. Upon accomplishing the purpose, they fled away from the spot of
incident with the bloodstained knives in their hands on two vehicles, i.e. 'Ritz'
car and Hero Honda 'Splendor' motorcycle. The common object of murder of the
deceased got terminated or accomplished. We have, therefore, no hesitation to
confirm the findings of the Sessions Court that the offences punishable under
Section 149 and 120B of IPC are fully established.
Chain
of the facts and circumstances established :
145. We now turn
to the facts and circumstances of the case, which are established and we
narrate the same serially as under : (1)
The deceased Jitu was murdered in the
Seven Hills Bar and Restaurant (“the said Bar”) on 1012013 at 5.30 p.m.
(2)
The spot of incident, its surroundings,
installation of CCTV system and its functioning on the date and time of incident
are established. [Para 23].
(3)
The accused No.1Tushar and accused
No.2Kunal were arrested on 1112013 at 05.30 hours, the accused No.3Lashu, No.4Amol
and No.5Bhupesh were arrested subsequently on 1112013. The
accused No.6 was arrested on 1712013. They
continue to remain in jail till today. [Para
24].
(4)
Consequent upon the information given by
the accused No.1Tushar, knife stained with blood as Article 1A, was recovered
under Section 27 of the Evidence Act along with jeans and shirt, i.e. Articles
16 and 17, having blood stains, wore by him vide Exhibit 139. [Paras
28 and 35].
(5)
The information furnished by the accused No.2Kunal
led to recovery of bloodstained knife under Section 27 of the Evidence Act,
seized on 1312013 vide Exhibit 147 and marked as Article A2. [Paras 30 and 35].
(6)
The accused No.5Bhupesh alias Rinku
furnished the information on the basis of which the 'Ritz' car having registration
No.MH31 EA 6696 was recovered and seized on 1412013 vide Exhibits 182 and 153. [Paras
31 and 35].
(7)
The accused No.6Sameer furnished the information
in respect of twowheeler Hero Honda 'Splendor', bearing registration No.MH31 AW
7400, which was seized on 1912013 under the seizure memo at Exhibit 149. [Paras 32 and 35].
(8)
The clothes of the deceased having blood
stains were seized on 1112013. [Para
33].
(9)
All the clothes seized and sealed were
forwarded to the Regional Forensic Science Laboratory at Nagpur for chemical
analysis on 1912013 vide Exhibit 189. The weapons, i.e. knives, seized and
sealed were forwarded on 422013 to the Chemical Analyzer vide Exhibit 207. [Para
34].
(10)
Exhibits 68 and 69 are the reports of the
Chemical Analyzer in respect of the blood found on the knives seized from the
accused Nos.1 and 2 and on Articles 16 and 17, the clothes of the accused
No.1Tushar as of human. [Para
37].
(11)
PW 10 Dr. Nitin, who conducted the post mortem
over the body of the deceased Jitu, gave his opinion at Exhibit 143 on 222013 in
respect of the weapon queries at Exhibit 142 dated 222013, stating that the
injuries on the body of the deceased Jitu are possible by the knives at
Articles 1A and A2. User of weapons recovered and seized under Section 27 of
the Evidence Act, in the crime in question, is established. [Para 38].
(12)
The finger prints of the accused
No.1Tushar are found on the glass seized from the counter of the said Bar on
1012013 and the report at Exhibit 131 compares the chance finger prints at
Exhibit 126 with the finger prints of the accused No.1Tushar at Exhibit 120 and
establishes the presence of accused No.1 on the spot of incident at the time of
occurrence. [Para 61].
(13)
For the purposes of security, a system of
CCTV, consisting of eight cameras and one DVR containing Hard Disk of 500 GB
for storage of video recording, well connected with cables, was found installed
and functioning properly. The entire incident of murder of Jitu Gawande was
recorded in the Hard Disk at Exhibit 1, contained in the DVR. [Para 68].
(14)
The entire system of CCTV cameras
installed and functioning in the said Bar at the time of incident, consisting
of DVR, Hard Disk, Adapter, Mouse, Remote, and CD ' X' were seized and sealed
at Exhibit 99 on 1012013 and PW 16 Rupali identified the same in Court. [Para
69].
(15)
CD – 'X' is a true and genuine copy of
the footages in camera Nos.1, 2 and 7 in the Hard Disk at Exhibit 1. [Para 70].
(16)
Full size photographs of all the accused
were snapped by PW 20 Nitin Watkar of Diamond Photo Studio on 1812013 at
Exhibits 197 to 202. All these photographs of the accused along with the Hard
Disk, DVR, Remote, Charing Cable, Mouse, etc., were forwarded on 322013 in a
sealed envelope along with the covering letter dated 222013 at Exhibit 195 to
the Directorate of Forensic Science Laboratory at Mumbai for submitting the report
on the queries made therein. [Paras
71 to 74].
(17)
PW 19 Ms Puja, the Scientific Officer,
working in the office of Forensic Science Laboratory at Mumbai, has proved the
DVD, marked as “Annexure DVD CY 66/13” (Article 18A), as the true and genuine
copy of the Hard Disk at Exhibit 1. The frames of persons selected from CCTV
footages are found matching with those reference photographs at Exhibit 197 to
202 and report at Exhibit 57 is proved. [Para
81].
(18)
There was no scope left out for tampering
in the process of seizure, sealing, forwarding and receipt of all the articles
sent to PW 19 and no questions were put to PW 19 impeaching her credit, as
required by Section 155 of the Evidence Act. [Para
85].
(19)
PW 4 Pramod, the brother of the deceased,
has proved motive on the part of accused No.1Tushar, to whom the deceased was
demanding refund of Rs.50,000/lent to him. [Para
88].
(20)
PW 4 Pramod identified the assailants as
the accused persons and attributes to each of them the specific role played by
them, on the basis of the CCTV footages shown to him during the examinationinchief
before the Court. [Para 89].
(21)
The primary evidence in the form of
electronic evidence of Hard Disk and the copies of it in the form of CD, marked
as 'X' for identification, and DVD as Article 18A, found to be true and genuine
copies of the footages contained in the Hard Disk, are produced on record and
proved. [Paras 109 to 113].
(22)
We ourselves have seen/viewed the primary
electronic evidence in the form of CCTV footages from the Hard Disk at Exhibit
1 and we have also viewed CD – 'X' and DVD – Article 18A and we neither find
any difference in it or discontinuity or insertions not found in the Hard Disk
at Exhibit 1. On the contrary, we find that it corresponds with each other and
are true and genuine. It is consistent with the oral evidence of the witnesses
also. [Paras
114 and 115].
(23)
The electronic evidence tendered in the
form of Hard Disk at Exhibit 1, CD – 'X' and DVD – Article 18A, is admissible
in the facts and circumstances of this case, without a certificate under
Section 65B of the Evidence Act. [Para
116].
(24)
The eyewitnesses to the incident, who are
PW 1 Raghuveer, PW 2 Raju, and PW 3 Sitaram, have turned hostile and refused to
identify the accused persons for the reasons best known to them. [Para 130].
Unlawful
assembly and criminal conspiracy :
(25) CCTV footages in the Hard Disk at Exhibit 1 clearly indicate that the assailants were six in number, constituting an unlawful assembly, out of whom, four were inside the Bar, one of them wearing blue shirt was near the counter and consuming the peg of liquor, and the other three were standing behind him. [Para 138].
(25) CCTV footages in the Hard Disk at Exhibit 1 clearly indicate that the assailants were six in number, constituting an unlawful assembly, out of whom, four were inside the Bar, one of them wearing blue shirt was near the counter and consuming the peg of liquor, and the other three were standing behind him. [Para 138].
(26)
A person wearing white shirt (the
deceased) alighted from the car outside the gate and he was brought inside the
Bar by one another accomplice. Thus, there was a group of five persons inside
the Bar along with a person who came in the white shirt. [Para 139].
(27)
A person wearing blue shirt was supplied
a knife by one of the accomplices and he started assaulting the deceased who
came in the car. One another assailant wearing white Tshirt having beard and
heighted personality also joined the assault on a person wearing a white shirt.
One of the five accomplices in the Bar brandished the inmates of the Bar other
than the assailants with cold drink bottle when then tried to intervene. [Para
140].
(28)
After the object of killing the deceased
was accomplished, the assailant wearing blue shirt came out of the Bar and
along with four others boarded the 'Ritz' car outside the gate and fled away
and two others fled away on the motorcycle. [Para
140].
(29)
PW 4 Pramod has identified all the six
accused persons as the assailants and attributed to all of them the specific
acts appearing in the CCTV footages confronted to him during the course of his
examinationinchief. [Para
143].
Our
conclusion :
146. After narrating the facts and
circumstances proved on record and keeping in view the law laid down in para
153 by the Apex Court in the matter of circumstantial evidence in the case of Sharad Birdhichand Sarda v. State
of Maharashtra, reported in
(1984) 4 SCC 116, we hold that the facts and
circumstances established in the present case are conclusive in nature pointing
towards the guilt of all the accused persons for the offences alleged against them.
The chain of circumstantial evidence is completely established, without any
missing link. The facts and circumstances proved are consistent only with the
hypothesis of the guilt, without leaving any reasonable ground for the
conclusion consistent with the innocence of the accused persons and exclude
every possible hypothesis except the one which is proved, i.e. the guilt of the
accused for the offences alleged. The offences alleged against all the accused
are established beyond reasonable doubt. We are, therefore, constrained to
maintain the conviction of the accused persons recorded by the Sessions Court
for the offences punishable under Sections 302, 120B, 147, 148, 149 and 506B of
IPC along with the sentence imposed upon each of them for the offences
established and the fine imposed.
147.
We, therefore, dismiss all these appeals.
We direct the office to reseal all the articles, which were opened by us, and
remit back to the Sessions Court along with the R & P.
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