Criminal Trial - Investigating Officers should never lose sight of the fact that their investigation should be such that the material collected by them should stand the scrutiny of Courts in accordance with law. Merely nabbing the culprits should not be the ultimate aim of any investigation.
The Investigating Officer must be able to understand the possible objections and defence which could be raised on behalf of the accused during trial. Care and caution should be exercised by the Investigating Officer that their investigation passes the basic test of judicial scrutiny. Unless the accused are held guilty by the Court in accordance with law, the investigation is just an exercise in futility.
IN THE
HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CORAM :B. R. GAVAI & SARANG V. KOTWAL, JJ.
PRONOUNCED ON :12 JULY, 2018
CRIMINAL APPEAL NO.454 OF 2014
ALONG WITH CRIMINAL APPLICATION NO.1231 OF 2017 ALONG WITH CRIMINAL APPLICATION NO.105 OF 2017 ALONG WITH CRIMINAL APPLICATION NO.1191 OF 2015 ALONG WITH CRIMINAL APPLICATION NO.380 OF 2017
Manish Naresh Thakur v. State of Maharashtra
Mr. Akash Kavade for
Appellant. Mr.
J. P. Yagnik, APP for State.
JUDGMENT
(PER : SARANG V. KOTWAL, J.) :
1. By
this Appeal, the Appellant has challenged the Judgment and Order dated
04/03/2014 passed by the learned Additional Sessions Judge for Greater Mumbai,
in Sessions Case No.685 of 2007. By
the impugned Judgment and Order, the Appellant was convicted for commission of
offence punishable under Section 302 of the IPC and was sentenced to suffer
imprisonment for life and to pay a fine of Rs.1,000/and in default of payment
of fine, to undergo R.I. for one month. The Appellant was also convicted for
the offence punishable under Section 3 read with 25 of the Indian Arms Act and
was sentenced to suffer R.I. for one year and to pay fine of Rs.250/and in default
of payment of fine, to suffer R.I. for one month. The Appellant was further
convicted for commission of offence under Section 4 read with 27 of the Indian
Arms Act and was sentenced to suffer R.I. for three years and to pay fine of
Rs.500/and in default of payment of fine, to suffer R.I. for one month. All the
substantive sentences were directed to run concurrently.
2.
This is another case of a love affair going terribly wrong. The
Appellant herein was serving in Navy. In the year 2007, he was posted at INS
Garuda, Air Engineering Department, Kochi, Kerala to coordinate and supervise
maintenance / repair of aircraft and helicopter. After doing various courses,
he was selected to undergo Pilot Simulator (Mechanical) training at Moscow,
Russia for MIG29K aircraft. On 25/02/2007, the Appellant reported at INS Hansa
at Goa. There,
he was learning Russian language. The prosecution story is that the Appellant
developed a love affair with the deceased in this case. She was highly
educated. She had done her MBA from Birla Institute of Technology, Ranchi,
besides obtaining the degree of MCA in the year 2005. She was working with Tata
Consultancy Services at Mumbai and she had undergone training for the company
at Trivendram. The prosecution case is that, when the deceased was going to
Trivendram by HawrahTrivendram Express with her brother Shaunak, she got
acquainted with the present Appellant. In the month of September 2005, Shaunak
received a call from one Nitu who claimed to be the wife of the Appellant and
she informed him that friendship between the Appellant and the deceased had
become intimate. Shaunak discussed this fact with the deceased and she had told
him that she would not keep any relations with the Appellant. In April 2007,
the Appellant called Shaunak and expressed his desire to marry the deceased.
Shaunak did not accept his proposal for his sister. On 27/04/2007, the deceased
had gone to Jharkhand and had stayed with her family till 08/05/2007. After the
deceased returned to Mumbai, the whole affair took a tragic turn. According to
the prosecution case, on 12/05/2007 at about 7.00 a.m., the Appellant and the
deceased went to hotel Classic Residency in search of a room. On
that day, rooms were not available at that hotel and the receptionist made
inquiries with another hotel SunNSheel for vacant rooms. On getting a positive
response, he sent the Appellant and the deceased to hotel SunNSheel. The
couple reached there at about 7.30 a.m. and were allotted Room No.202. The
prosecution case is that the watchman of SunNSheel hotel had seen the couple
when they had arrived there. The Appellant filled the entry card of the hotel in
his own handwriting. His name was entered in the register. The evidence shows
that the room was occupied by the couple on 12/05/2007 and 13/05/2007. In the
afternoon on 13/05/2007, a waiter had given them lunch and had accepted the
bill amount for the same. Thereafter, nobody from hotel SunNSheel had seen the couple
or had heard anything from their room. At about 1.00 p.m. on 14/05/2007, the
Accountant Anup Lal of hotel SunNSheel received a message from the reception
counter that nobody was responding to the calls in Room No.202 and nobody was
opening the door. Anup Lal then asked the housekeeping supervisor Robin to
check the said room. Robin opened the room with a spare key to find the body of
the deceased rolled in the mattress with blood lying all around. On instructions
of his boss Lalji Singh, Anup Lal went to MIDC Police Station and reported the
matter. The police immediately came to the spot and took search of the room.
They recorded statement of Anup Lal and treated it as the FIR. The police
conducted spot panchanama minutely in presence of the panchas. Finger print experts
and dog squad were called for help. The police found one deformed live cartridge
below the mattress on the bed. There was one big knife found in one of the
drawers in the room. There was one purse and two bags. One of the bags
contained ladies clothes and the other bag contained gents clothes. In the bag
containing menswear, there was one white sando banian with letters in blue
'SOUTHERN NAVAL COMMAND'. It also contained a timetable between 18/04/2005 to 24/04/2005
with title 'INS Garuda' and there was one paper on which phone numbers of three
persons viz. Rai, Rahul and Vipul were written. The finger print expert could
find two finger prints on a glass and a plastic bottle. The position of the
dead body was also observed and it was all noted down in the spot panchanama.
3. The
registration card mentioned the word 'Navy' and therefore, the police focused
their investigation on the suspect working with Navy. The Naval Officers at
Mumbai informed their counterparts in Goa at INS Hansa. The Appellant was found
present in his Russian language class on 15/05/2007, from there he was detained
by the Naval Officers. His personal belongings were also taken charge of under
inventory. The Officers of MIDC Police Station, Andheri, Mumbai, went to INS
Hansa along with Officers of Vasco Police Station and took charge of the
Appellant. On 17/05/2007, the Appellant's custody was handed over to the Police
Officers of MIDC Police Station. On 17/05/2007 itself the clothes which were
allegedly worn by the Appellant at the time of the incident, were recovered at his
instance from Room No.P/11. During investigation, statements of various
witnesses from Mumbai as well as from Goa were recorded. On
20/05/2007, the Appellant made a statement under Section 27 of the Evidence Act
expressing his willingness to show the place where he had concealed the
countrymade gun, revolver and cartridges used in the crime. The police and
panchas reached INS Hansa on 21/05/2007 at 7.00 a.m. and those weapons were
recovered from the roof of terrace of a building in INS Hansa. On 26/05/2007
again, the Appellant led the Police Officers to Goa. First he led the Police Officers
and the panchas to a lady named Babita Madhurkar from whom he had purchased the
chopper, which was allegedly found in the drawer in Room No.202 of SunNSheel Hotel.
The said lady identified the Appellant and accepted the fact that she had sold
the chopper to him. Thereafter, the Appellant led the police and the panchas to
the Regulating Office at INS Hansa and led them to a person named Dattaprasad
Gadgil. From the said person a mobile instrument of Nokia company and four
telephone bills in the name of the deceased were seized. It is the prosecution
case that, the said phone instrument was that of the deceased. The Appellant
also produced a SIM Card broken in two pieces from a side of a drainage pipe.
On 30/05/2007, Test Identification Parade ('TI parade') was arranged at Arthur
Road Jail, Mumbai, wherein some of the witnesses identified the Appellant.
4.
The recovered firearms and the bullet found in the Room No.202 of SunNSheel hotel
as well as the bullet recovered from skull of the deceased were sent for
examination to ballistic experts. Specimen
finger prints of the Appellant were sent for comparison with the chance prints
found on the glass and the bottle in the room. Sanction
for prosecuting under the Arms Act was obtained. The various test reports were
collected and at the conclusion of the investigation, the chargesheet was filed.
5. As
the case was exclusively triable by the Court of Sessions, it was committed to
the Court of Sessions, Greater Mumbai. It
appears from the record that the learned Magistrate, while committing the case
to the Court of Sessions, had not complied with the requirements of Section 475
of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). This aspect is
important, as the learned Counsel for the Appellant has taken a serious
objection in respect of breach of the provisions of Cr.P.C. and of the Navy Act
in that behalf. The
further procedure followed by the Sessions Court and the effect of the
objection raised in this context, will be dealt with in detail at a proper
place in this Judgment. Suffice it to mention at this stage that, initially the
charge was framed u/s 302 of the Indian Penal Code, u/s 3 r/w 35 and u/s 4 r/w
27 of the Indian Arms Act, 1925 on 21/01/2008 vide Ex.9. The plea was recorded
on that day at Ex.10. After
that, the Appellant preferred an Application vide Ex.15 pointing out that the
learned Magistrate had not given written notice to the Commanding Officer. It
was contention of the Appellant that he was in the active naval service and
therefore, such written notice was mandatory. The learned Sessions Judge
allowed the Application vide his order dated 25/03/2008 below Ex.15 and issued
notice to the concerned authority of Naval Department of Central Government of India,
in respect of commission of offence by the Appellant and invited their remarks
about the case. A copy of the chargesheet was also sent. The Commanding Officer
from INS Garuda, Naval Base, Kochi, vide the letter dated 22/04/2008 informed
the trial Court that Indian Navy did not wish to take over the case and the
Court could continue with the proceedings. The said letter was taken on record
at Ex.18 and thereafter the charge was framed again on 27/06/2008 vide Ex.19
and the plea was recorded on the same day vide Ex.20 and thereafter the trial
proceeded.
7. We
have heard Mr. Akash Kavade, learned Counsel for the Appellant and Mr. J. P.
Yagnik, learned APP for State. With their assistance, we have gone through the
voluminous evidence on record of this case. Their submissions shall be referred
to when the context of their submissions is discussed hereinafter.
8. There are
no eyewitnesses to the incident and hence, there is no direct evidence
available for the prosecution to prove its case. The
case is based purely on the circumstantial evidence. The Hon'ble Supreme Court
in many cases has laid down the guiding factors in deciding a case based on
circumstantial evidence. One of them is the case of Sharad Birdhichand Sarda Vs. State
of Maharashtra, (1984) 4 SCC 116. In paragraph No.153 of the said
judgment the Hon'ble Supreme Court has laid down five principles which are
termed as “5 Golden Principles” by the Hon'ble Supreme Court itself. Paragraph
No.153 reads thus :
“153. A
close analysis of this decision would show that the following conditions must
be fulfilled before a case against an accused can be said to be fully
established : (1) the circumstances from which the conclusion of guilt of to be
drawn should be fully established.
It
may be noted that this Court indicated that the circumstances concerned 'must
or should' and not 'may be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and “must be or should be proved” as
was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783 where
the following observations are made : [SCC para 19, p.807 : SCC (Cri) p.1047] Certainly,
it is a primary principle that the accused must be and not merely may be guilty
before a court can convict and the mental distance between 'may be' and 'must be'
is long and divides vague conjectures from sure conclusions.
(2)
the facts so established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty, (3) the circumstances should be
of a conclusive nature and tendency, (4) they should exclude every possible
hypothesis except the one to be proved, and (5) there must be a chain of
evidenced so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability
the act must have been done by the accused.”
Keeping these principles in mind, we have analyzed the prosecution evidence.
9. Following
are the circumstances which the prosecution has endeavoured to establish to
complete the chain of circumstances :
(a) The Appellant and the deceased were
together from 12/05/2007 and they were seen by different witnesses on 12/05/2007
and 13/05/2007.
(b)
Recovery of weapon and ballistic expert's opinion.
(c)
Finding of the Appellant's fingerprints on the articles in Room No.202.
(d) Recovery
of mobile handset used by the deceased and the telephone bills which were
recovered at the instance of the present Appellant.
(e)
Absence of the Appellant from INS Hansa from 11/05/2007 to 15/05/2007.
(f)
Motive and burden of proof under Section 106 of the Evidence Act.
10. Before
referring to these circumstances visavis the evidence led by the prosecution,
some of the uncontroverted circumstances can be mentioned as follows : (a) dead
body of the deceased was found in Room No.202 of SunNSheel hotel on 14/05/2007,
(b) the deformed bullet was found in the room and another bullet was recovered
which was lodged in the skull of the deceased, (c) The deceased has died
homicidal death because of the firearm injury, (d) PW 18 Dr. Mahadev Bansode
attached to J. J. Hospital, Mumbai, had conducted the postmortem examination. He had
recovered a copper jacketed bullet with deformed tip which was lodged in the
occipital area. He had found the following injuries :
(i) Firearm entry wound
over right side of forehead, star shaped, size 1 cm X 8 cm with 1.5 cm circular
defect in frontal bone situated 8 cm above right ear. The
bullet passed through dural right cerebral hemisphere posteriorly and lodged in
occipital area with fracture of occipital bone due to hit by bullet,
(ii)
Firearm entry wound over right side of neck situated 11 cm below right ear and
2 cm from midline of size 3.5 X 3 cm with blackening in area of 2 cm diameter.
On dissection the bullet passed through subcutaneous mussel posterior aspect of
trachea to the left and downwards and backwards and passed out through mussel
of back on left side through firearm exit wound.
(iii)
Firearm exit wound of size 2 X 1.5 cm everted margins situated 5 cm below
shoulder and 10 cm from the midline. All the track is lacerated and haemorrhagic,
(iv) 4 abrasions seen over left breast of size 1 X 0.5 cm each red colour
horizontally placed, 1 cm away from each other. The
cause of death is 'haemorrhage and shock due to multiple firearm injuries'. He
has further opined that the weapon was fired from a distance of about 30 cms.
11. There
is not much controversy about the dead body being discovered at around 1.00
p.m. on 14/05/2007. PW 1 Anup Lal who was working as an Accountant in SunNSheel
hotel at that time, had reported the matter to the MIDC Police Station. The FIR
was registered vide C.R.No.251 of 2007 on 14/05/2007 at 3.15 p.m. The information
was given to the police station at 2.00 p.m. The FIR is produced on record at
Exh.24.
12. PW
2 Pranali Parulekar and PW 3 Raju Thakur were the pancha witnesses in whose
presence the spot panchanama at Exh.30 was conducted. PW 2 was working in the
same hotel. As mentioned earlier, during the spot panchanama, different
articles were seized. The spot
panchanama was conducted between 4.05 p.m. to 8.35 p.m. on
14/05/2007. The police had seized two bags containing menswear and ladieswear, a
ladies purse which contained the identity card of the deceased on the basis of
which her identify was found out. Importantly,
one deformed cartridge was found below the mattress. Certain
finger prints on the glass and the bottle in the room were observed by the
finger print expert and their photographs were taken. One
sando banian with the letters in blue 'SOUTHERN NAVAL COMMAND' was recovered.
The spot panchanama shows that the dead body was identified by one Vandana
Sarkar who was sister of the mother of the deceased. All these facts are
sufficiently established by the prosecution and we see no reason to disbelieve
the prosecution case in respect of discovery of the dead body and recovery of
the articles from the said room. The police machinery had acted swiftly at that
time and had immediately conducted the spot panchanama with the help of experts.
13. Insofar
as the incriminating circumstances against the Appellant are concerned, the
prosecution has led evidence through various witnesses. We shall consider each
of these circumstances hereinafter.
(a) The Appellant and the deceased were together from 12/05/2007 and they were seen by different witnesses on 12/05/2007 and 13/05/2007 :
14. The
sequence of events on these dates unfolds through the evidence of PW 17 Maria
Paul Angelo Chettiar. According to him, he was working as a receptionist at
Classic Residency Guest House, Chakala Road, Andheri, from April 2005 to May
2007. He has deposed that he knew the Appellant; as in the past, he had stayed at
their hotel. He has further deposed that on the first occasion, he had stayed
in the hotel between 23/03/2007 to 25/03/2007 with one lady and on the second
occasion, he had stayed there for two days from 06/04/2007. He has further
deposed that on 12/05/2007, he had come there at around 6.30 a.m. with the same
girl but on that day, there was no vacant room and this witness then made a
phone call to SunNSheel hotel to find the availability of a room. On getting a positive
response, he informed the Appellant and accordingly the Appellant and the girl
went to SunNSheel hotel. On 14/05/2007, the MIDC
police officers took this witness to Room No.202 of SunNSheel hotel and PW 17
then identified the dead body as being that of the girl who had accompanied the
Appellant on all the previous occasions mentioned by him. This witness has
given two photocopies of the entries of the visits of the Appellant and the
deceased to their hotel. Those two photocopies of the entries regarding their
past stay at the hotel are produced on record at Exh.97 and Exh.98. The original
register was not produced on record as the hotel manager Mr.Babu Shaikh had
submitted his report (which was taken on record at Exh.94) that the original
register was not available. According to PW 17, the original register was burnt
and was not available. PW 17 has further deposed that on 30/05/2007, he was
called to Arthur Road Jail to identify the suspect and he claims to have
identified the Appellant in the said identification parade. This witness was
crossmined at length. He admitted that he has no document to show that he was
working in the hotel Classic Residency at the relevant period. The
defence had tried to raise some controversy about his name. However,
we see no reason to doubt his version that he was working at hotel Classic
Residency during the relevant period. His evidence was also criticized on the
ground of his admission that PW 10 Mario Chettiar was
his cousin. PW 10 Mario Lazar Chettiar was examined as a pancha witness for
seizure of important articles. This witness PW 10 Mario, in turn, had admitted
that he had excellent relations with the Investigating Officer PW 28 Pascal
D'Souza. Mr. Kavade, learned Counsel for the Appellant, therefore, submitted
that PW 17 was amenable to the police officers and therefore, was not a
reliable witness. Just because he was related to PW 10 who was on excellent terms
with the Investigating Officer, that cannot be a reason to ignore his evidence,
if otherwise it is found reliable. We find that he is a truthful witness and
has given reliable evidence in Court. Very significantly, his claim that the
couple had stayed at their hotel in the month of March and April, is
corroborated by Exh.134 which is an inventory of the articles found with the
Appellant when he was taken in charge of by the Naval officers at INS Hansa on
15/05/2017. The said document is produced through the evidence of PW 25 Naorem Arun
Singh who was the Commander at INS Hansa, Goa. Exh.134 mentions at serial
numbers 5 and 6 the two bills dated 25/03/2007 and 08/04/2007 of hotel Classic
Residency. Therefore, PW 17 clearly knew the Appellant from the past occasions
and, in fact, there was no necessity to make him identify the Appellant at the
identification parade. In
this background, his evidence that on 12/05/2007, he made inquiries with
SunNSheel hotel and then directed the couple to that hotel, assumes great importance.
Thus, the prosecution has proved that on 12/05/2007, the Appellant and the
deceased had first come to Classic Residency hotel and then were directed to
SunNSheel hotel.
15. The
prosecution has examined PW 5 Raviprakash Singh who was the watchman and was on
duty at around 7.00 a.m. on 12/05/2007 at SunNSheel hotel. He has deposed that
at that time, the couple came to their hotel in a Maruti car and he had asked
his colleague Joginder to take them to the reception counter. He had identified
the Appellant at the TI parade held at Arthur Road Jail on 30/05/2007 and has
identified the Appellant in Court. His statement was recorded on 17/05/2007
during investigation, however, he had admitted that he had seen the photograph
of the person whom he had identified in the TI parade, in newspapers and on TV.
He has further admitted that the photograph was published on 3rd or 4th day of the incident.
Mr. Kavade rightly submitted that these admissions destroy his evidence and we
agree with him on this point. If the photographs were
seen by this witness, then his identification in the TI parade loses all its
significance. This witness has also deposed that the Appellant's photographs
were published in the newspapers and on TV after 3rd or 4th day of the
incident. The defence has tried to capitalize on this admission and, in fact,
the accused had examined DW 2 Ketan Ranga who was working in a daily Mumbai
Mirror as a crime reporter, DW 3 Rashmi Rajput who was also working similarly
and DW 4 Shagnik Chaudhary who was also a reporter. Out of them, the deposition
of DW 4 has no value because this witness does not have any personal knowledge about
the news item which he was seeking to produce on record. DW 2 has deposed
generally about his article dated 19/08/2011 regarding illegal activities which
were going on in the SunNSheel hotel. DW 3 Rashmi Rajput had deposed that her
article regarding this case was published in the daily on 18/05/2011 and she has
further deposed that the photograph of the accused and the victim were also
published along with the said article. The trial Court had declined to read
these articles in evidence because they were not properly proved. Therefore,
the defence was not successful in proving that the photograph of the accused
was published in the newspaper before the TI parade was conducted. At the same
time, the admission given by PW 5
Raviprakash Singh that he had seen the photograph cannot be ignored and
therefore, we are not taking into account the evidence of PW 5 Raviprakash
Singh against the present Appellant.
16. The
prosecution has examined another watchmen working with SunNSheel hotel who was
on duty at that time but he has not supported the prosecution case and was was
declared hostile.
17. PW
9 Pradip Arjun Singh was a waiter working in SunNSheel hotel and had served the
food around 1.00 p.m. on 13/05/2007 in Room No.202. He had seen a lady and a
man in the room. He had served the food and accepted the bill amount. He has
not identified the Appellant in the TI parade. Therefore, even his evidence is
of no help to the prosecution.
18. In
this context, the prosecution has relied on the evidence of PW 11 Ceaser
Kashmiro Fernandis who was the receptionist at SunNSheel hotel. He has deposed
that at 7.15 a.m. on 12/05/2007, a couple took a room in their hotel. The man
gave their names as Mr. & Mrs. Manish Thakur. The guest registration form
was filled by the Appellant. The
entry was made in the register at serial no.616 on page 159. The entry is
produced at Exh.59 and the guest registration card is produced on record at
Exh.60. This witness had identified the Appellant at the TI parade on
30/05/2007. Statement of this witness was recorded on 17/05/2007. He had gone
to the police station on 14/05/2007 at about 4.30 p.m. but at that time, the
register was not sealed by the police. The register was produced by him only on
01/06/2007. In the reexamination, he has admitted that the entry no.616 was not
in his handwriting but was made by his reliever on his direction, though in the
examinationinchief he had claimed that the entry was in his own handwriting. He
was also crossexamined on the aspect that the hotel register showed that the
entry no.603 in respect of Room No.202 mentioned that it was allotted to one
Mr. Jabel A. Nema
on 11/05/2007 and there was no entry of checkingout from the said room. This
witness had clarified in the reexamination that on the same night of 11/05/2007,
on the request of one Mr. Jabel Nema, he was shifted to Room No.219 and
therefore, Room No.202 was vacant and was allotted to the Appellant on
12/05/2007. In the crossexamination, he has deposed that before attending the
TI parade and after the incident, he had no occasion to see the photograph of the
Appellant on TV or in the newspaper. This witness has also identified the
Appellant before the Court. Incidentally, the SEO who had conducted the TI
parade, had expired before his evidence could be recorded and therefore, the
memo of the TI parade was brought on record in his absence. The guest
registration card was sent for opinion of the expert for comparison with the
specimen handwriting of the Appellant. However, there was no conclusive opinion
expressed by the expert that the questioned handwriting on the guest register
card was that of the Appellant. Though the hotel register is seized by the police
on 01/06/2007, there is nothing to indicate that the hotel register itself was
manipulated and all the entries therein were manipulated to show that the
Appellant had occupied Room No.202 with the deceased. Therefore, the prosecution
has proved that Room No.202 was occupied by the couple giving their name as Mr.
and Mrs. Manish
Thakur. Insofar as the identity of the Appellant is concerned, this witness has
stated that he had not seen any photograph of the Appellant before the TI
parade. In view of this specific deposition, we cannot presume that the
photograph of the Appellant was widely published by the police and therefore,
the identification of this witness in the TI parade is vitiated. In any case,
this witness had sufficient opportunity
to observe the Appellant when the registration form was filled by him. This
witnesses identifying the Appellant in Court is, therefore, of conclusive
nature. In this view of the matter, we are inclined to accept his evidence and
therefore, reading his evidence together with the evidence of PW 17, we hold
that the prosecution has proved beyond reasonable doubt that the Appellant
along with the deceased had checkedin the Room No.202 of SunNSheel hotel at around
7.30 a.m. on 12/05/2007.
(b) Recovery of weapon and ballistic expert's opinion :
19. The next circumstance
brought on record by the prosecution is the recovery of weapon at the instance
of the Appellant and the ballistic expert's opinion in respect of the bullet
recovered from the skull of the deceased. This circumstance, in our opinion, is
one of the most important circumstances and the evidence adduced by the
prosecution in that behalf goes a long way in determining the fate of the
present case. To establish this circumstance, the prosecution has examined PW
19 Amarjeet Yadav, PW 23 Mrutyunjay Tripathi, PW 25 Naorem Arum Singh and PW 28
Pascal D'Souza. PW 19 was a pancha in
whose presence the statement of the Appellant was recorded and the recoveries
were effected. PW 23 was employed at INS Hansa and he was present at the time
of recovery of weapons. PW
25 was the Commander at INS Hansa and PW 28 was the Investigating Officer who
had supervised and effected the recovery.
20. PW
19 and PW 28 have deposed about how the statement was made by the Appellant and
how the police party and the panchas went to INS Hansa to effect the recovery.
PW 28 deposed that on 20/05/2007, the Appellant made a voluntary statement in
presence of panchas that two countrymade revolvers and cartridges used in the crime
were kept hidden by him at Vasco and expressed his readiness to produce the
same. Accordingly, his statement was recorded under memorandum which is
produced on record Exh.100. A private vehicle was arranged and police and the
panchas were led by the Appellant to INS Hansa at Vasco, Goa. On 21/05/2007,
they were given entry passes and thereafter they entered the campus of INS
Hansa. PW 28 met the Regulating Officer who deputed two staff members to accompany
them. Thereafter, the Appellant led them to 'P' mess and from that place, they
were led to the roof. The Appellant removed one
plastic bag which was kept below the mangalore tiles. The packet was opened and
it was found that there were 3 folded paper packets inside. These packets were
also opened. Those packets contained one single bore countrymade revolver which
was 10 inches in length, another single bore silver coloured countrymade revolver
5.½ inches long and 6 cartridges. Four of the cartridges were 8mm cartridges and
the other 2 were 2.½ CMM. The weapons were sealed and seized with the help of Goa
police. The panchanama was produced on record at Exh.100A. These articles were
produced before the Court during trial vide Articles Z/2, Z/3 and 6 cartridges
were produced together vide Article Z/4 colly. These weapons were carried by
the Investigating Officer after he was issued gate pass for the confiscated weapons
and the cartridges. The gate pass was issued by the Commander and it was
produced on record at Exh.137. The gate pass which was issued when they had
entered INS Hansa is produced on record at Exh.199. These weapons and the
articles were then forwarded to the ballistic expert for further examination.
21. The
prosecution has examined PW 19 Amarjeet Yadav as a pancha who was present when
the recovery of weapons was effected. He has
deposed more or less on the similar lines as those deposed by PW 28. He has
identified those articles before the Court. In his crossexamination, he has admitted
that since past more than 15 years, he was visiting MIDC Police Station
whenever required. He has categorically admitted that he had acted as a pancha
in many cases for the MIDC Police Station and in particular he had acted as a
pancha in one or two cases which were investigated by PW 28 PI Pascal D'Souza. He
has not ruled out the possibility that such number may actually be up to 10
cases. He has also admitted that he knew PW 3 and PW 4 who were the panchas for
the spot panchanama and for panchanama of seizure of clothes of the deceased
respectively and he also knew Melton Fernandes who was one more pancha for the
prosecution. Thus,
there is no doubt that he was a stock pancha of the MIDC Police Station. He has
further admitted in his crossexamination that after 10 to 15 minutes of
recording the memorandum statement of the Appellant, they left the police
station to go to Goa and the vehicle was already parked outside the police
station. He has further admitted that before their departure, the police did
not give their personal search or the search of the vehicle to him. On the next
day morning, the Navy police were throughout with them and before collecting
the bag,
Vasco police had also come there. He has further deposed in his crossexamination
that he was standing at a distance of about 15 to 20 ft. from the terrace. He
has admitted that some policemen had gone to the terrace and they came back
after 25 to 30 minutes and they showed him the articles which were seized from
the terrace. He has further admitted that he did not remember as to how many
packets of seized articles were prepared in his presence. He has further
admitted that another pancha Milton was standing with him and he also did not go
to the terrace.
22. The
prosecution has examined PW 23 Mrutyunjay Tripathi in this connection for
proving the recovery of weapons at the instance of the Appellant. PW 23 was
serving as a Leading Patrol Man at INS Hansa, Dabolim in Goa and was attached
to the regulating office. He has deposed that on on 21/05/2007 at 8.00 a.m., Mumbai
police came to their office and his superior instructed him and one M. Kamraj
to assist the Mumbai police. He has deposed that he went with them to Block
No.P/11. He has deposed that he went along with the Appellant on terrace of
that Block and from that terrace, from the side of one Syntex water tank, one
polythene bag was seized by the police. He
has deposed that two weapons were found in that bag. He has deposed that the
polythene bag was taken out by the police and he has denied that the Appellant
himself removed the tiles and then took out the polythene bag. On his statement
that the police themselves removed the tiles, he was declared hostile at the
request of the learned APP and during crossexamination by the learned Prosecutor,
he further admitted that the Appellant removed the tiles and then took out the
polythene bag containing the weapons and the cartridges. He has signed the
panchanama at Exh.100A. The Advocate appearing for the Appellant before the
trial Court, crossexamined this witness not only on the point of recovery of
weapons but also on the point of general procedure when a staff member goes out
and enters the campus or when a visitor enters the campus. He was crossexamined
on the point of procedure of search in these cases of entry on and exit from
the campus. He has deposed that INS Hansa is a prohibited place and not
accessible to everyone and therefore, for a visitor's entry, record was
maintained in visitor's book, store register, liberty register, etc. He has
deposed that at the place of entry, the search of the visitors and staff is
taken and the entries were made in the relevant register. He has further
deposed that in case of a Sailor, they are
searched for their belongings, if suspected. In the crossexamination, he has
reiterated that his statement in the examinationinchief that the polythene bag
was taken out by the police, was correct.
23. The
prosecution has examined PW 25 Naorem Arun Singh who was the Commander at INS
Hansa, Goa. He has deposed that on 15/05/2007, he was directed by the
Commanding Officer Shri Gopalkumar to take the Appellant in custody and he was
informed that the instructions had come from the Commanding Officer of Western
Naval Command Headquarters at Mumbai. He has produced on record the inventory
of belongings of the Appellant which had this witness's signature. The said
inventory is produced on record at Exh.134. This witness has further produced
on record the gate pass of the confiscated countrymade revolver at Exh.137 and
gate pass for other confiscated items at Exh.138. He has deposed that INS Hansa
had 12 entry / exit gates and the person in service could move to and fro by
showing his identity card. In the crossexamination, he has categorically
deposed that at the time of entry and exit relating to nondefence personnel,
their belongings are checked. On further crossexamination,
he admitted that he was not remembering which standing order mentions such
procedure. He has further deposed that on 16/05/2007, he had met the Mumbai
police on the first occasion and that he had deputed Sailor of Naval police to
assist them even on that occasion.
24. The
defence has criticized the evidence of recovery of weapons at the instance of
the Appellant on various grounds. Mr.Kavade,
learned Counsel for the Appellant, submitted that the pancha PW 19 who had
accompanied the police party to INS Hansa, was a stock pancha as was admitted
by the pancha himself and therefore, his evidence was not reliable. He further
submitted that even the evidence of PW 23 Mrutyunjay Tripathi throws doubt on
the prosecution case in respect of the recovery. He submitted that PW 23 has
admitted that the police themselves had taken out the polythene bag from the
roof. He further submitted that the vehicle was already parked outside the
police station before the police and panchas started from Mumbai. He further
submitted that in any case, the pancha had admitted that he was standing at
some distance from the terrace with copancha and had not seen the Appellant
actually taking out the articles from
the terrace. He further submitted that the evidence of the Investigating
Officer Pascal D'Souza was not enough to hold that the recovery was
satisfactorily proved by the prosecution. Mr. Kavade further submitted that the
prosecution case shows that the Investigating Officers had already visited INS
Hansa on 16/05/2007 to take custody of the Appellant and therefore, planting of
the weapons at that time was not ruled out.
25. On
the other hand, Mr. Yagnik, learned APP for the State, submitted that just because
the pancha had appeared in other cases for the same police station, it was no
ground for rejecting his testimony outright. He further submitted that the
recovery was made from a place which was known only to the Appellant and
therefore, it satisfied all the requirements of law.
26. Having
given anxious consideration to this aspect of the matter, we are of the opinion
that though Mr. Kavade has raised some valid points in respect of the
reliability of the pancha witness, the evidence led by the prosecution in
respect of these recoveries is satisfactorily proved beyond reasonable doubt.
It is true that pancha PW 19
Amarjeet Yadav was with MIDC Police Station for a number of cases and he could
easily be termed as their stock pancha. He has also admitted that even his
copancha had worked with the police. Therefore,
these panchas cannot be termed as independent witnesses. Fortunately
for the prosecution, their evidence in respect of the recovery is saved by
other independent witnesses i.e. Naval officers. PW
23 Mrutyunjay Tripathi has given somewhat wavering evidence in respect of
seizure of the articles. At one place, he has deposed that the police took out
the articles and at the other, he has deposed that the Appellant took out the
articles. However, the fact remains that he was near the terrace when the
recovery was effected. He was deputed by his superior PW 25 Naorem Singh and
therefore, he was throughout present with the police party from Mumbai. The
gate passes produced on record show that the police party, when they had entered
INS Hansa campus, were searched. Thereafter, this witness PW 23 was always with
them till the articles were recovered and seized. The police party, the panchas
and the Naval officers were led by the Appellant to the terrace of 'P' mess in
INS Hansa. From the evidence, it is crystal clear that when the police party,
along with the Appellant, had gone to the terrace, they did not have the
articles with them. The
articles were certainly seized from the terrace. Though there is some
controversy as to whether the Appellant himself took out the articles or the
police took out the articles from under the tiles, one thing is certain that
the Appellant led the police to the terrace from where the weapons were
recovered. Therefore, in our opinion, all the requirements of Section 27 of the
Evidence Act are satisfied as the articles were recovered at the instance of
the Appellant from a place which was within exclusive knowledge of the
Appellant. Mr. Kavade tried to submit that there was a possibility that those
articles were planted on 16/05/2007 itself. We do not find any force in the submission
because as per the procedure, even on that day, it was not possible for the
MIDC police to carry with them these weapons and plant them on the terrace of
'P' mess. Therefore, we are of the firm opinion that the prosecution has been
able to prove this very important circumstance of recovery of the weapons at
the instance of the present Appellant.
27. The
prosecution has linked this weapon with the bullet recovered from the skull of
the deceased and the one which was found on the spot. For this purpose, the
prosecution has examined PW 27 Vikas Gite
who was examined as the ballistic expert. After deposing about his credentials,
he has deposed that on 14/05/2007, on the request of MIDC police, he and his
team members had gone to Room No.202 of SunNSheel hotel. He has described the bullet
injuries on the dead body. He was shown one bullet which was found by the police
at the spot. On 22/06/2007, their office received 3 sealed packets from Sr.P.I.
of MIDC Police Station. The first packet contained one single barrel breech
loading countrymade handgun, the second packet contained another similar gun
and the third parcel contained 3 intact KF 8 mm rifle cartridges, 1 KF 8 mm
rifle cartridge having light indentation, 1 intact 0.38” revolver cartridge and
another 0.38” revolver cartridge having indentation cap. On 10/08/2007, the analysis
was started and a report dated 18/09/2007 was prepared which is produced on
record at Exh.156. On his testing, he found that the weapons which were sent to
him were in working condition. Exh.1
was capable of chambering and firing 8 mm rifle cartridges and Exh.2 was
capable of chambering and firing 0.38” revolver cartridges (Exhibit numbers are
as per his office record). These two guns were the guns sent by the MIDC police
which were recovered at the instance of the Appellant. Thereafter, he compared
the 3 bullets for characteristic
lengthwise superficial brushing marks under comparison microscope. Exh.1 of
BL/416/17 was the bullet retrieved from the body of the deceased, Exh.17 of BL
564/07 was the bullet found on the spot. These two bullets tallied amongst
themselves and also tallied with 8 mm rifle bullet test fired from the
countrymade handgun in Exh.1. Thus, his evidence, in effect, shows that one of
the guns which was recovered at the instance of the Appellant from INS Hansa,
was used to fire bullet on the deceased. This witness had further tested the
bullet in Exh.17 of BL 564/07 for its corresponding hole on the kurta in Exh.19
and even this test showed positive result that the kurta of the deceased had a
hole caused by the bullet fired from the 8 mm rifle. This witness was
crossexamined at length, firstly on his experience and qualification and
secondly, on the tests conducted by him and comparison of bullets on the basis
of tests conducted by him in the background of some passages from the books on
the subject. We have gone through his crossexamination and we see no reason to
disbelieve his credentials and the result of his test analysis. In our opinion,
the prosecution has satisfactorily linked the recovery of weapons and the
bullets recovered from the spot and the dead body of the deceased.
(c) Finding of the Appellant's fingerprint on the articles in the Room No.202.
28. For
this purpose, the prosecution has examined the fingerprint expert Rajendra
Kulkarni as PW 20. He has deposed that on 14/05/2007 at about 4.00 p.m., he
received a message from MIDC Police Station requisitioning his services in
connection with their C.R.No.251 of 2007. Therefore, along with his
photographer Shri Ghadge, he went to Room No.202 of SunNSheel hotel at Andheri (East).
He inspected the articles which were lying in the room. On his inspection, he
found two fingerprints on a glass and on a plastic bottle in the room. The
photographer took the photographs of those fingerprints. On 05/06/2007, he
received the specimen fingerprints of the Appellant. On 05/07/2007, he received
the photographs of the fingerprints along with the negatives of the fingerprints
on the glass. He
then compared the 3 chance prints with the specimen fingerprints of the
Appellant and found that one chance print which was developed on the glass used
for drinking water, was identical with left ring fingerprint of the specimen
fingerprint of the Appellant. The other 2 chance prints were found unfit for
comparison. He then made his report
which is produced on record at Exh.110. He was crossexamined at length in
respect of the various characteristics vis. arches, loops, composites, etc. He
withstood the crossexamination and remained firm on his opinion. During
crossexamination, he admitted that the photograph of the fingerprint did not
bear the signature of the photographer. Mr. Kavade criticized his evidence on
the ground that the photographer who had taken the photographs of the fingerprints
on the said glass, was not examined. He also criticized that the police had not
followed the statutory procedure for taking fingerprints of the Appellant. Mr.
Yagnik, on the other hand, rightly submitted that the photographer Shri Ghadge
was brought by PW 20. This
photographer was not a police photographer. Therefore, there was no possibility
of tampering with the photographs which were received by this witness. We agree
with Mr. Yagnik that there is no reason to suspect that there was tampering
with the photographs which were given to PW 20 for comparison. Taking of
photographs for fingerprint examination was a process which was followed by PW 20
Rajendra Kulkarni and the photographer Shri Ghadge as a team. Therefore,
the evidence of PW 20 Rajendra Kulkarni was sufficient to establish the
procedure followed for comparison of the fingerprints. Therefore, in
our opinion, the nonexamination of the photographer in this case does not harm
the prosecution in any manner. Thus, the prosecution has been able to prove one
more important circumstance which also proves that the Appellant had occupied
that particular room.
29. Mr.
Kavade, learned Counsel for the Appellant, submitted that the provisions of The
Identification of Prisoners Act, 1920 (for short, 'the said Act') were not
followed while taking fingerprints of the Appellant and the evidence of the
fingerprint expert could not be taken into consideration. He submitted that the
fingerprints of the Appellant could only be taken under the orders of a
Magistrate and the police officers had no powers, on their own, to take
fingerprints of the Appellant. We are unable to accept these submissions of Mr. Kavade.
The question raised by him is no more res
integra. It is necessary to
consider the relevant provisions of said Act to deal with this submission.
Section 2(1)(a) of the said Act mentions that 'measurements' include finger
impressions and footprint impressions and Section 2(1)(b) defines the 'police
officer' to mean an officer incharge of a policestation, a police officer
making an investigation under Chapter
XIV of the Code of Criminal Procedure, 1898 or Chapter V of City of Bombay
Police Act, 1902 or any other police officer not below the rank of SubInspector. This
would, of course, include the corresponding provisions of the Cr.P.C., 1973
instead of the reference to the Cr.P.C., 1898. Section 4 of the said Act
provides for taking of measurements or photograph of unconvicted persons. The
relevant provision reads thus :
“4.
Taking of measurements or photograph of unconvicted persons Any person ( a) who has been arrested ( i)
under section 55 of the Code of Criminal Procedure, 1898 (V of 1898), or under
section 4 of the Bombay Beggars Act, 1945 (XXIII of 1945), (ii) in connection
with an offence punishable under section 61D of the Bombay District Police Act,
1890 (Bom. IV of 1890), or under section 112 of the City of Bombay Police Act,
1902 (Bom. IV of 1902), or under section 6 or 9 of the Bombay Beggars Act, 1945
(Bom. XXIII of 1945), or in connection with an offence punishable with rigorous
imprisonment for a term of one year or upwards, or (b) In respect of whom a
direction or order under section 46 of 46B of the Bombay District Police Act,
1890 (Bom. VI of 1890), or under section 27 of the City of Bombay Police Act,
1902 (Bom. IV of 1902), or under subsection (1) or (2) of section 23 of the
Bombay Beggars Act, 1945 (Bom. XXIII of 1945), or under section 2 of the Bombay
Public Security Measures Act, 1947 (Bom. VI
of 1947), has been made, shall,
if so required by a Police officer, allow his measurements or photograph to be
taken in the prescribed manner.”
Section 5 reads thus :
“5.
Power of Magistrate to order a person to be measured or photographed If a Magistrate is satisfied that, for
the purposes of any investigation or proceeding under the Code of Criminal Procedure,
1898 (5 of 1898) [or the City of Bombay Police Act, 1902 (Bom. IV of 1902) it
is expedient to direct any person to allow his measurements or photograph to be
taken, he may make an order to that effect, and in that case the person to whom
the order relates shall be produced or shall attend at the time and place
specified in the order and shall allow his measurements or photograph to be
taken, as the case may be, by a police officer: Provided that no order shall be
made directing any person to be photographed except by a Magistrate or the
First Class [or a Presidency Magistrate]: Provided further, that no order shall
be made under this section unless the person has at some time been arrested in
connection with such investigation or proceeding.”
Mr. Kavade, therefore, submitted that the
person arrested on the allegations of commission of the offence punishable with
life imprisonment or death penalty, was not covered under Section 4 because it
mentioned a restricted term of sentence and life imprisonment or death penalty
would not be covered. According to him, Section 5 of the said Act was attracted
and it was necessary to take
permission from the learned Magistrate before taking fingerprints of the
accused. This contention is in terms repelled by the Hon'ble Supreme Court in a
recent Judgment delivered on 02/07/2018 in the case of Sonvir Singh Vs. The State of NCT of
Delhi, Criminal Appeal No.958 of 2017, decided on 02 July, 2018. In the said Judgment, the Hon'ble
Supreme Court has squarely held that the person who is arrested for commission
of offence punishable with life imprisonment or death penalty, was covered
under Section 4 of the said Act. Hence, in the instant case before us, we are
satisfied that Section 4 of the said Act was applicable and the concerned
police officers were well within their rights to take the fingerprints of the Appellant.
These fingerprints were sent for comparison with the chance prints.
(d) Recovery of mobile handset used by the deceased and the telephone bills which were recovered at the instance of the present Appellant :
30. In this
connection, the prosecution has examined PW 8 Kaushik, PW 16 Anil Gala and PW
10 Mario Chettiar. PW 8 Kaushik was cousin of
the deceased. He has deposed that in January 2006, the deceased had purchased
mobile handset of Nokia company from Anupama Stationery Stores at Borivali. He
has mentioned the model number as 6101. This witness had produced the cash memo
of her mobile phone before the police. The cash memo was found in the room of
the deceased. PW
16 Anil Gala was working with the aforementioned Anupama Stationery Stores at
Borivali and he has deposed that he had sold one Nokia 6101 handset on
15/01/2006. He has produced the receipt at Exh.81. It bears the IMEI number of
the phone. The
prosecution has examined PW 10 Mario Chettiar as a pancha for recovery of the
mobile handset and the phone bill. He has deposed that on 25/05/2007, he was
called by MIDC Police Station to act as a pancha. In his presence, the
Appellant had shown his willingness to point out the person in Goa with whom he
had kept the mobile phone. He had also shown his willingness to point out the shop
from where he had purchased a chopper. Accordingly, his statement was recorded
which is produced on record at Exh.56. Thereafter,
they reached INS Hansa and entered the campus after obtaining entry pass. The
Appellant led them to one Mr. Dattaprasad Gagdil
and at the Appellant's instance, the said person Mr. Gadgil produced a mobile
phone and the telephone bills. The panchanama drawn in respect of the said
recovery shows that the said person Mr. Gadgil
had taken out these articles from the drawer of C41 Chief Mess. The panchanama
mentions IMEI number of the mobile handset and the bills mention the name of
the deceased to whom they were issued by the telephone service provider. Before
effecting this recovery, the Appellant had led the police party and the panchas
to one Babita Madhurkar from whom he had purchased the chopper. However,
since nothing was recovered or found on the basis of this information, this
particular circumstance of showing the place from where the chopper was
purchased, has no significance in the context of the present case. However,
recovery of the mobile handset and in particular, the telephone bills in the
name of the deceased, assumes great importance. Mr. Kavade submitted that the
aforementioned Mr. Gadgil was not examined and PW 10, the pancha, in his
crossexamination, had admitted that the Investigating Officer Mr. D'Souza was
known to him for the last 15 years and had close family ties with him.
Therefore, he was not an independent witness. While we agree with his
submission that PW 10 was not an independent witness and therefore
we are not relying on his evidence, however, the fact remains that the police
party had gone to INS Hansa and those bills and the mobile handset were
recovered from there at the instance of the Appellant, is a fact which is
proved by the prosecution mainly because as discussed earlier, it was not
possible to carry any article inside INS Hansa campus without being searched at
the entry gate. Thus,
we are of the opinion that the prosecution has proved that the telephone bills
in the names of the deceased and her mobile handset were recovered at the
instance of the present Appellant.
(e) Absence of the Appellant from INS Hansa from 11//05/2007 to 15/05/2007 :
31. To
establish this circumstance, the prosecution has examined PW 22 Smt. Vasudha
Bhaskar who was teaching Russian language to the Appellant at INS Hansa. She
has deposed that she was conducting her classes from 8.00 a.m. to 1.00 p.m.
from Monday to Friday. She knew the Appellant. In the past, she had scolded the
Appellant for not doing his homework. She has specifically deposed that on
14/05/2007, he was absent from the class. (The evidence shows
that 14/05/2007 was Monday. There were no classes on Saturday and Sunday i.e.
12/05/2007 and 13/05/2007.) On 15/05/2007, the Appellant was taken in custody
from her class. She has deposed that she remembers the date because the
Appellant was taken in custody from her class. Mr. Kavade submitted that her evidence
was not acceptable because she has not produced attendance register. We find
that she is an independent witness and has given sufficient reason for
remembering the date and there is no reason to disbelieve her deposition that
the Appellant was not present in her class on 14/05/2007.
32. In
this context, the prosecution has also relied on the evidence of PW 25 Naorem
Arun Singh who was the Commander at INS Hansa, Goa. On instructions, he had
taken the Appellant in custody on 15/05/2007 as mentioned earlier. He himself
made inquiries with the Appellant and at that time, the Appellant had told him
that he was at Mumbai from 11/05/2007 to 14/05/2007. The defence had raised an
objection that this part of his deposition was not admissible; but in our
opinion, his absence from INS Hansa during the relevant period is an important
circumstance and does point to his guilt.
Therefore, this amounts to an extrajudicial confession in that regard. This
witness is a Senior Naval Officer and we see no reason to disbelieve him. This
witness was crossexamined in respect of the procedure in respect of maintenance
of books regarding presence or absence of a Sailor. In the crossexamination, he
has deposed that the long leave for a Sailor is sanctioned by the Head of the
Department and for short leave, no sanction is required but the concerned
Sailor can write in the liberty book and proceed on a short leave. The short leave
meant that he could leave after day's work and had to return by 1.00 a.m. This
indicates that the Sailor could leave INS Hansa without making entry as per his
choice. If he did not make any entry, there was nothing to show that he had
left the place.
33. This
fact is important in the context of the specific defence of alibi taken
by the Appellant. For this purpose, the Appellant has examined DW 1 Aman Deep
Singh. This witness has deposed that during the relevant period, he was posted
at INS Hansa and he knew the Appellant as they were serving together. He has
deposed that a Sailor had to make an entry in the liberty book if he was going
away and he had to make entry in the same book when he came back. He has
deposed that 12/05/2007 was Saturday and the Sailors played cricket inside the
campus. He has deposed that on 13/05/2007, the Appellant was one of the players
who had played cricket. He has deposed that they were together and then had
gone to sleep. He has deposed that on 14/05/2007, he was on night duty and came
back on 15th morning. On that day, later, he came to
know that the Appellant was taken in custody. He has further deposed that he had
gone to the Regulating Officer of INS Hansa and had disclosed that the
Appellant was with him on 12th and 13th
May, 2007 at INS Hansa. He claimed that
the Officer had told him to keep quiet. In short, he had lend support to the
case of the Appellant in establishing the alibi. In the crossexamination, he has
admitted that he himself did not play cricket because his left hand was
fractured. He has also admitted that his accommodation was separate from that
of the Appellant. He has deposed that he had informed the Regulating Officer
that the Appellant was with him on 13/05/2007. He was asked in the
crossexamination as to who was the Regulating Officer. The crossexamination showed
that N. Arunkumar Singh was the Regulating Officer at INS Hansa. Considering the
evidence of DW 1, we find that he was a friend of the Appellant and has tried
to help him. If the Appellant was
really with him, this witness had not done anything substantial in pointing
this fact and pursuing the same before the higher authorities or before the
police. He himself had to admit in the crossexamination that he did not play
cricket and he has also admitted that for the first time during his deposition
he had disclosed that the Regulating Officer had asked him to keep quiet. The Regulating
Officer N. Arunkumar Singh was examined by the prosecution as PW 25 but he was
not crossexamined on these lines and no suggestions were put to him that DW 1
told him that the Appellant was with him on 13/05/2007. Because of these
aspects, we are not inclined to place reliance on his evidence.
34. The
Appellant has examined DW 5 Uttam Singh who claimed to be an investment manager
with ICICI Bank, for the branches at Borivali, Bhayander, Mira Road (East),
Malad and Kandivali Thakur Complex. He deposed that he and his old customer Mr.
Prabodh Zha had gone to Goa on 13/05/2007. They met the Appellant there and
discussed the investment plans. He has deposed that he was in the visitors room
with the Appellant for about 40 to 45 minutes after 1.30 p.m. on 13/05/2007. He
has deposed that he had collected the
cheque from the Appellant and came to Mumbai on the next day. He has produced a
cheque bearing no.380103 of ICICI bank dated 13/05/2007 having account
no.68229002 on record at Exh.266. In the crossexamination, he has admitted that
he had not deposited the cheque. Even mere perusal of the cheque shows that the
cheque was not deposited in the bank. No explanation is offered by this witness
as to why this cheque was not deposited in the bank. He
has claimed ignorance of any visiting book being kept at Navy base, which
itself is unbelievable. There is nothing on record to show his such visit at
INS Hansa on 13/05/2007. The conduct of this witness and his nondeposit of the
cheque dated 13/05/2007 shows that he is a false witness and is not reliable.
35. The
Appellant himself has deposed as DW 6. He has given background of his
association with Navy and he has claimed to be present at INS Hansa on the
relevant dates, but he has not produced a single document in his support to
show his presence at INS Hansa. He has deposed that on 12/05/2007, he played a
cricket match inside the naval base and at that time, DW 1 Aman Deep Singh was
umpiring the match. DW 1 Aman Deep Singh has not said anything about being an umpire
in the match. The Appellant has not examined any of the players who had
purportedly played that match. The Appellant has further deposed about the
visit of DW 5 and his colleague Prabodh Zha on 13/05/2007. In short, though he
has claimed to be present at INS Hansa from 12th
to 15th
May 2007, he has not supported his claim through
cogent evidence and his defence of alibi
is not acceptable. This
gives rise to an adverse inference against him. The Hon'ble Supreme Court, in the
case of Sahabuddin and Another Vs. State of Assam, (2012) 13 SCC 213 had an
occasion to lay down the effect of evidence of alibi being not acceptable to
the Court. The Hon'ble Supreme Court, in paragraph 27 of the said Judgment, has
discussed the effect thus :
“27.
Once, the Court disbelieves the plea of alibi and the accused does not give any
explanation in his statement under Section 313 CrPC, the Court is entitled to
draw adverse inference against the accused. At this stage, we may refer to the
judgment of this Court in the case of Jitender Kumar v. State of Haryana, (2012) 6 SCC 204 : (2012) 3 SCC (Cri) 67 where the Court while disbelieving the plea of alibi had drawn an adverse inference
and said that this fact would support the case of the prosecution. (SCC
p.226, paras 7071)
“70. The accused in the present appeal had also taken the
plea of alibi in addition to the defence that they were living in a village far
away from the place of occurrence. This plea of alibi was found to be without
any substance by the Trial Court and was further concurrently found to be
without any merit by the High Court also. In order to establish the plea of
alibi these accused had examined various witnesses. Some documents had also
been adduced to show that the accused Pawan Kumar and Sunil Kumar had gone to
New Subzi Mandi near the booth of DW1 and they had taken mushroom for sale and had
paid the charges to the market committee, etc. Referring
to all these documents, the trial court held that none of these documents
reflected the presence of either of these accused at that place. On the contrary
the entire plea of alibi falls to the ground in view of the statements of PW10 and
PW11. The
statements of these witnesses have been accepted by the Courts below and also
the fact that they have no reason to falsely implicate the accused persons.
71. Once PW10 and PW11 are believed and their
statements are found to be trustworthy, as rightly dealt with by the Courts
below, then the plea of abili raised by the accused loses its significance. The
burden of establishing the plea of alibi lay upon the appellants and the
appellants have failed to bring on record any such evidence which would, even
by reasonable probability, establish their plea of alibi. The
plea of alibi in fact is required to be proved with certainty so as to
completely exclude the possibility of the presence of the accused at the place
of occurrence and in the house which was the home of their relatives. (Ref. Sk. Sattar v. State of Maharashtra, (2010) 8 SCC 430 : (2010 3 SCC (Cri) 906 .)”
Thus, we find that the Appellant has
not only failed to establish his defence of alibi, but we are of the opinion that he has
taken a false defence
of alibi and
therefore, adverse inference is required to be drawn against him.
(e) Motive and burden of proof under Section 106 of the Evidence Act :
36. It is
difficult to find out the motive in such cases. It is always difficult to
extract the reason for commission of such an offence from the deep, dark
recesses of the human mind and convert it into any tangible evidence recognized
by law. Undoubtedly, it is a difficult task in such cases. In this case in
particular, the victim had willingly accompanied her potential murderer
unsuspecting of his intentions. The culprit had accompanied her after making
all the preparations and in particular, carrying weapons with him. The couple
had checkedin early in the morning of 12/05/2007. The waiter had seen the
couple around noon time of 13/05/2007. Nobody
had heard any quarrel or raised voices from their rooms. That
means at least for more that 24 hours nothing untoward happened and suddenly on
14/05/2007, the dead body of the victim was discovered. What transpired within
that period can be answered only by two persons, one of whom is the victim who
is dead and the other is the Appellant, who is denying presence on the scene.
Once we have reached the conclusion that the Appellant was present with the
deceased, then under Section 106 of the Evidence Act, the burden shifts on him
which, in this case, he has not discharged. This is one more circumstance
against the Appellant.
37. To
establish the motive, the prosecution has examined PW 7 Shaunak who was the
brother of the deceased, PW 14 K. Satishkumar
Subuddhi and PW 15 Vipul Pathak who were colleagues of the deceased working in
the same company. PW 7 has deposed as mentioned earlier that on a train
journey, the Appellant and the deceased met which ultimately led to her death.
He has deposed that he had received a phonecall from the Appellant's wife
informing about the love affair between the deceased and the Appellant. He has also
deposed about the phonecalls received from the Appellant to express his desire
to marry the deceased and finally he has deposed about the telephone call
received from the deceased herself on 13/05/2007 telling him that the Appellant
wanted to marry her. He has deposed that he had felt that she was tense at that
time. That was the last this witness had heard from the deceased. PW 14 and PW
15 have deposed that the Appellant was introduced to them by the deceased as
her friend. PW 14 has deposed that in the past, the Appellant had asked for
phone number of PW 15 Vipul. PW 15 Vipul Pathak is another important witness
and it appears that the friendship that the deceased had with this witness, was
not liked by the Appellant. PW 15 has deposed that in the month of March 2007,
he had received a call from the Appellant. At that time, the Appellant had
warned him to keep away from the deceased as the Appellant and the deceased
were in love. This witness had then informed the deceased whereon the deceased
told him that she did not want to marry the Appellant as he was already married
and she wanted to get separated from him. This witness claims to have distanced
himself from the deceased and had refrained from contacting her when she had
gone to Jharkhand around 22/04/2007. The prosecution has led this evidence to
show that there was a feeling of insecurity in the mind of the Appellant and
the closeness of PW 15 Vipul with the deceased had given rise to jealousy. This
evidence has not been shaken. The Appellant has examined himself as DW 6 but he
has not spoken a word about the deceased and his friendship with her in his examinationinchief. Only
in the crossexamination, he has acknowledged her presence. This, by itself, is
quite strange because while examining himself, he had sufficient opportunity to
describe the exact relationship he shared with the deceased.
38. Hence,
we are of the opinion that the prosecution has proved beyond reasonable doubt
that the Appellant was having love affair with the deceased, their love affair
was going through troubled times, that they were together from early morning of
12/05/2007, they were seen together by the receptionist of hotel Classic
Residency and then by the receptionist of hotel SunNSheel, the weapons were recovered
at his instance, the bullets found at the spot and recovered from the dead body
of the deceased matched with the weapon recovered at the instance of the
Appellant, Appellant's absence during the relevant time from his Naval base at
INS Hansa was established, the defence of alibi
taken by the Appellant was proved to be
false, the Appellant did not discharge the burden cast upon him under Section 106
of the Evidence Act. The prosecution has proved each of the circumstances
beyond reasonable doubt and has thus formed a chain so complete so as to leave
the only inference of the guilt of the Appellant. Hence, we are satisfied that
the Appellant is guilty of commission of murder of the deceased.
39. The
prosecution examined PW 29 who had accorded sanction for prosecuting the
Appellant for the offences under the Arms Act. Mr. Kavade submitted that the
sanction was not properly granted and therefore, cognizance under the Arms Act
was bad in law. We have gone through the evidence of PW 29 and we do not find
any infirmity in the sanction. Hence, we do not accept the submission of Mr.
Kavade that the sanction under the Arms Act for prosecution was not properly
granted.
40. Before
parting with the Judgment, we have to deal with an important issue raised by
Mr. Kavade. He has submitted that there was breach of mandatory provisions of
Section 475 of the Cr.P.C. The relevant provisions of Section 475 (1) reads
thus :
“475. Delivery
to commanding officers of persons liable to be tried by Courtmartial.(1) The Central Government may make rules consistent with this Code and the Army
Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act,
1950 (45 of 1950), and any other law, relating to the Armed Forces of the
Union, for the time being in force, as to cases in which persons subject to
military, naval or air force law, or such other law, shall be tried by a Court
to which this Code applies or by a Courtmartial, and when any person is brought
before a Magistrate and charged with an offence for which he is liable to be
tried either by a Court to which this Code applies or by a Courtmartial, such Magistrate
shall have regard to such rules, and shall in proper cases deliver him,
together with a statement of the offence of which he is accused, to the
commanding officer of the unit to which he belongs or to the commanding officer
of the nearest military, naval or airforce station, as the case may be, for
purpose of being tried by a Courtmartial.”
He has submitted that the Magistrate has not informed the Commanding Officer of
the Appellant as required under Section 475 of the Cr.P.C. He further submitted
that the learned Sessions Judge also erred in informing the Commanding Officer
about the case, because Section 475 had cast that duty only on the Magistrate.
He further submitted that the learned Sessions Judge erred in setting aside the
first charge and framing fresh charges after receiving the letter from Navy.
Mr. Kavade relied on a Judgment of a Division Bench of this Court in the case
of Kanwardeepsingh
Harbansingh Bedi Vs. The State of Maharashtra, Criminal Appeal No.89 of 1988, decided on 07/05/2009 in which case, the Division Bench had
quashed and set aside the order of conviction and sentence being nullity in law
for not following the required procedure under Section 475
of the Cr.P.C. The matter was remanded back for proper compliance of the
procedure.
41. To
consider his objection, it is necessary to refer to a few more provisions.
Section 78 of the Navy Act, which is a relevant provision, reads thus :
“78. Jurisdiction as to place and
offences.( 1)
Subject to the provisions of subsection (2), every person subject to naval law
who is charged with a naval offence or a civil offence may be tried and
punished under this Act regardless of where the alleged offence was committed.
(2)
A person subject to naval law who commits an offence of murder against a person
not subject to army, naval or air force law or an offence of culpable homicide
not amounting to murder against such person or an offence of rape in relation to
such person shall not be tried and punished under this Act unless he commits
any of the said offences( a) while on active service; or (b) at any place
outside India; or (c) at any place specified by the Central Government by notification
in this behalf.”
The
expression 'active service' is defined under the Navy Act under SubSection (1)
of Section 3 which reads thus :
“3(1)
“ active service' means service or duty( a) during the period of operation of a
Proclamation of Emergency issued under clause (1) of article 352 of the
Constitution, or (b) during any period declared by the Central Government by
notification in the Official Gazette as a period of active service with reference
to any area in which any person or class of persons subject to naval law may be
serving.”
This indicates that if
a person subject to naval law commits an offence of murder of a person not
subject to naval law, such person shall not be tried under the Navy Act unless
he has committed this offence while on active service. Without going into the
question as to whether the Appellant was in active service, this question can
be decided in the light of the procedure followed by the Sessions Court. The
learned Sessions Judge, in this case, after realizing the procedure envisaged under
Section 475 of the Cr.P.C. was not followed when it was brought to his notice
by the Appellant himself vide Exh.15; by the order dated 25/03/2008 passed
below Exh.15, had observed that the Navy should be informed about the pending
case against the Appellant. Accordingly, the Commanding Officer was informed
about the case. The Sessions Court received the reply dated 22/04/2008 which is
on record at Exh.18 wherein the Commanding Officer had clearly mentioned that
the Navy did not wish to take over the case and the Sessions Court could
continue with the proceeding. Thereafter,
the Sessions Court had framed the charge afresh and had proceeded with the
trial. In our opinion, the provisions under Section 475 of the Cr.P.C. as well
as under the Navy Act are enacted to enable the Navy in such cases to take a
decision as to whether the accused should face the proceeding before the Naval
Officer under the Navy Act or before the Courts of law under the Cr.P.C. The
accused, obviously, cannot choose the forum and the first option is given to
the Naval Officers. In the instant case, the Navy has clearly informed the regular
Court that the Navy did not wish to take over the case and the Sessions Court
could continue with the proceedings. This, in our opinion, is sufficient
compliance of the requirements under Section 475 of the Cr.P.C. and therefore,
in this case, the trial cannot be said to be vitiated and the further
proceedings continued by the Sessions Court. cannot be faulted with. In this
context, a reference can be made to the observations of the Hon'ble Supreme
Court in the case of Balbir
Singh and Another Vs. State of Punjab, (1995) 1 SCC 90. In the case before the Hon'ble Supreme
Court, the Air Force authorities had not made any grievance at any stage
regarding their right to decide whether to try the accused who were working
with them, by Courtmartial. The
Air
Force authorities had not questioned the validity of the trial of the accused
by the criminal Courts at any forum whatsoever. The right to exercise the
option was with the authorities and the accused had no right to choose a
particular forum for trial and therefore, it was held that the grievance raised
by the accused was untenable. Deriving support from these observations, we are
of view that the Navy was sufficiently informed about the pendency of the case
and since they had clearly requested the Sessions Court to proceed with the
trial, we do not think that the trial is vitiated.
42. Though
we have reached a conclusion that the prosecution has proved its case beyond
reasonable doubt, we must observe that the investigation in this case leaves a
lot to be desired. The Investigating Officers should never lose sight of the
fact that their investigation should be such that the material collected by them
should stand the scrutiny of Courts in accordance with law. Merely nabbing the
culprits should not be the ultimate aim of any investigation. The Investigating
Officer must be able to understand the possible objections and defence which
could be raised on behalf of the accused during trial. Care and caution should
be exercised by the Investigating Officer that their investigation passes the
basic test of judicial scrutiny. Unless the accused are held guilty by the
Court in accordance with law, the investigation is just an exercise in futility.
43. We
also record our appreciation for the manner in which this Appeal is conducted
before us by Mr. Kavade, the learned Counsel for the Appellant and Mr. Yagnik,
the learned APP for the State.
44. In
view of the above discussion, we find no merit in the Appeal and accordingly
the Appeal is dismissed.
45. With
the disposal of the Appeal, Criminal Applications do not survive and stand
disposed of accordingly.