- 1 - J- SC 685/07

EXH.

IN THE COURT OF SESSION FOR GR. BOMBAY AT
BOMBAY
SESSIONS CASE NO.685 OF 2007
(C.C. No.1279/PW/2007)
The State (at the instance of M.I.D.C. )
P. Stn. C.R. No.251/07) ) ..Complainant
V/s
Manish Naresh Thakur )
Age: 35 yrs., Occ.Service- Indian Navy)
R/o. Vidyasagar Park, 1
st
Lane, )
P. Pukur Road, Bansdroni, )
Kolkatta, Pin - 700070. ) ...Accused
Coram : H.H.J. the Additional Sessions
Judge Shri D. W. Deshpande,
(C.R. No. 16.)
Date : 4
th
March, 2014.
(Dictated in the open court)
Mrs. S.S. Ghodke, APP for State.
Mr. S.R. Pasbola, Advocate for accused.
ORAL JUDGMENT
1. Accused Manish Naresh Thakur stands charge-sheeted
by M.I.D.C. Police Station for having committed murder of
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Kaushambi Dinesh Layek between night hours of 13.05.2007 to
14.05.2007 from 22.30 hrs. and before 13.00 hrs. by fire arm in
Room No.202, “Hotel Sun .N. Sheel”, Andheri-Kurla Road,
Andheri, Mumbai, punishable u/s.302 of the Indian Penal Code
(hereinafter referred to as the 'I.P.C.'). The accused is also
charged for possessing two country-made revolvers (katta) and
one big knife without having any licence u/s.3 r/w. Sec.25 of the
Indian Arms Act, 1925 and for using the same in commission of
crime punishable u/s. 4 r/w. Sec.27 of Indian Arms Act, 1925.
2. Facts leading to the prosecution are narrated as
under:-
PW-1 Anup Harish Lal is an Accountant working in
“Sun .N. Sheel Hotel”. On 14.05.2007, he was on duty in hotel.
On that day at about 01.00 p.m. he received a phone message
from reception counter informing that nobody from Room No.202
is responding to the calls given. PW-1 Anup Lal then told PW-12
Robin Varghese, house keeping Supervisor, to visit Room No.202
and to see what is happened. Within 5 minutes, PW-12 Robin
Varghese called PW-1 Anup Lal at Reception Counter and
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informed that he saw blood on the bed in Room No.202. At that
time, PW-1 Anul Lal alongwith Robin checked the entry
pertaining to Room No.202 and noticed that entry was in the
name of Manish Thakur, Navy, Address - Bansdroni, Kolkatta.
PW-1 Anup Lal then immediately went to the said Room and
opened the door of the room. PW-1 Anup Lal saw that the bed
was in rolled condition and it was found with blood. Further he
noticed hairs of the lady in the rolled bed.
3. PW-1 Anup Lal then closed the door and immediately
informed his boss Lalji Singh about what he saw in the room.
Lalji Singh advised him to visit M.I.D.C. Police Station and
informed the police about the incident. PW-1 Anup Lal then went
to M.I.D.C. Police Station and informed accordingly. PW-26 API
Lagvankar, Sr.P.I. Kale and PSI Surve along with PW-1 Anup Lal
came to the Hotel. PW-1 Anup Lal and the said police officers
entered in the room and the police inspected the rolling bed and
also removed blanket. The police noticed one lady lying on the
bed having no movements. There was injury found on the
forehead of the said woman and also neck and shoulder were
having injuries. Police also noticed the said lady dead.
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4. API Lagvankar called the register and verified the
name in the register pertaining to Room No.202. The entry was
in the name of Manish Thakur and Kaushambi. Upon inspecting
the room, the police also found one cartridge lying below the cot
towards left side and one knife was also found in the drawer of the
dressing table. Police also found I-card of the lady in the purse.
Thereby police found her name as Kaushambi Layek, working in
Tata Consultancy.
5. API Lagvankar then called the crime number from
police station which was 251/07. API Lagvankar then recorded
the complaint (Exh.24) of PW-1 Anup Lal.
6. PW-26 API Lagvankar then secured two panchas
including one lady panch i.e. PW-2 Pranila Parulekar and PW-3
Raju Shivprasad Thakur and drawn spot panchanama as well as
inquest panchanama (Exh.30). IO API Lagvankar then seized
Kurta (Art.A), pyjama (Art.B), bracier (Art.C), nicker (Art.D),
white slip (Art.E), blanket (Art.F), 2 bedsheets (Art.G - colly.), 2
pillow covers (Art.H - colly.), 2 pillows (Art.I colly.), 2 chappals
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(Art.J colly.), 2 glasses (Art.K colly.), plastic bottle (Art.L), powder
of a plaster wall in bottle (Art.M), bullet (Art.N), purse (Art.O),
Identity Card (Art.P), black bag (Art.Q), and red bag (Art.R),
knife (Art.S), pair of shoes (Art.T), pant (Art.U), T-shirt (Art.V),
socs (Art.W) and ladies chappals (Art.X). There were clothes i.e.
sando baniyan, T-shirt, jeans pant, in bag.
7. Vandana Sarkar identified the dead body being of
Kaushambi Layek, daughter of her sister Ranjana Layek. At the
time of preparing the spot panchanama, PW-13 Rahul Bolke, Dog
Squad, PW-20 Rajendra Kulkarni (finger print expert) and
chemical analyser PW-27 Vikas Gite and police staff were
present. Fingerprint expert collected fingerprints from the water
glass. The dead body of Kaushambi Layek was sent to J.J.
Hospital for postmortem.
8. Printed form of FIR (Exh.24) was also drawn. It
transpired during investigation that accused and Kaushambi
Layek first visited “Classic Residency Guest House”, but as they
could not get accommodation, PW-17 Maria Paul Chettiar
suggested them to make inquiry in “Sun .N. Sheel Hotel”. On
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their request, PW-17 Maria Paul made inquiry with “Sun .N.
Sheel Hotel” and found accommodation available. Accused and
deceased then went to “Sun .N. Sheel Hotel”. PW-26 API
Lagvankar recorded statements of Robin Varghese (PW-12) and
PW-17 Maria Paul Agnelo Chettiar. PW-26 API Lagvankar also
collected the entries from the register (Exh.97 and Exh.98).
Xerox copy of the extract shows that on 23.03.2007 and
06.04.2007, accused and deceased stayed in “Classic Residency
Guest House”.
9. PW-26 API Lagvankar also went to J.J. Hospital on
15.05.2007 to remain present at the time of post-mortem of the
deceased.
10. On 16.05.2007 in the morning, statement of Ranjana
Layek (not examined) and PW-7 Shaunak Layek (Exh.47) were
recorded. The dead body of Kaushambi was given in their
possession. On 17.05.2007, statements of PW-11 Ceaser
Fernandes (Exh.58) - Receptionist in “Sun .N. Sheel Hotel”, PW-6
Jogindar Singh (Exh.45) - watchman in “Sun .N. Sheel Hotel”,
PW-5 Raviprakash Singh (Exh.39) - Watchman in “Sun .N. Sheel
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Hotel”, Suresh Timbadia and PW-15 Vipul Pathak (Exh.78) was
working with Kaushambi in Tata Consultancy were recorded.
11. On 18.05.2007, IO PW-26 API Lagvankar also drawn
panchanama (Exh.38) regarding clothes wore by the deceased
brought from J.J. Hospital after post-mortem in presence of PW-4
Jitu Singh (Exh.37) and Raju Gautam. Statement of Police
Constable Chandorkar, who had brought the clothes, was also
recorded. On 21.05.2007, statement of PW-13 Rahul Bolke
(photographer) was recorded. On 19.05.2007, blood samples of
deceased were sent to C.A. for analysis. On 21.05.2007, five
sealed packets, which were received from J.J. Hospital, were sent
to C.A. On 22.06.2007, seized articles were sent to C.A. for
analysis. Forwarding letter is at Exh.172. Further investigation
was handed over to PW-28 P.I. Pascal D'Souza.
12. PW-28 Sr.P.I. Pascal D'Souza also assisted API
Lagvankar, PI Kale, Sr.PI Sonawane, PI Chavan in investigation
of the said murder case. It appears that when the Room No.202
was allotted, it is alleged that accused Manish Thakur filled the
Guest Registration Card (Exh.60) showing his address. Guest
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Registration Card (Exh.60) reveals that accused belongs to Navy.
On the basis of the Guest Registration Card (Exh.60), PW-28 PI
Pascal D'Souza visited Naval Command Office, Mumbai, on
14.05.2007, but duty officer refused to give information. Upon
directions given by Sr.P.I., again PW-28 PI Pascal D'Souza visited
Naval Office Mumbai on 15.05.2007 and the duty officer
Mr.Avhad told PW-28 PI Pascal D'Souza to go to Naval Office,
Goa, for further inquiry.
13. On 16.05.2007, PW-28 PI Pascal D'Souza along with
API Dongre, and staff went to Naval Office, Goa Hansa and met
duty officer Mr. Satvir Singh and letter was handed over to him to
furnish information. However, on that day, no information was
furnished.
14. On 17.05.2007, accused by name Manish Thakur was
handed over in the custody of PW-28 PI Pascal D'Souza by officer
Mr.Satvir Singh. Exh.132 is the letter in respect of handing over
the accused. Exh.133 is the body receipt. Inventory of the
accused (Exh.134) is also given and Genform-Sailors is at Exh.135
i.e. Service Record. Service record letter is at Exh.136 was
furnished to police from Naval office.
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15. On 17.05.2007, the accused was arrested under arrest
panchanama (Exh.189) by PW-28 PI Pascal D'Souza. On
17.05.2007, accused made voluntary statement (Exh.190) to
produce the clothes which he wore at the time of alleged crime.
At the instance of accused, one jeans pant and one T-shirt were
seized under panchanama (Exh.191) in presence of Kodai Prasad
Yadav and PW-23 Mrutyunjay Tripathi. Exh.192 is the certified
copy of letter dated 15.05.2007 addressed to Commanding Officer
for handing over the accused. Exh.193 is the letter addressed to
the Commanding Officer for furnishing service record of the
accused. After arrest, the accused was also medically examined
by PW-24 Dr. Sandip Karna and issued Medical Certificate (Exh.
130).
16. PW-28 PI Pascal D'Souza recorded the statements of
Satvir Singh (not examined), PW-22 Dr.Vasudha Bhaskar who
taught Russian language to the accused and Premsingh
Silviramsingh. On 18.05.2007, accused was brought to Mumbai.
17. On 19.05.2007, statement of Pradeep Arjunsingh was
recorded. On 20.05.2007, the accused made voluntary statement
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to recover two country-made revolvers and cartridges (used in the
crime), kept hidden by him at Vasco. Accordingly, memorandum
panchanama (Exh.100) was drawn in presence of Dr. Milton
Fernandes (not examined) and PW-19 Amarjeet Yadav. PW-28 PI
Pascal D'Souza along with panchas, police and accused then went
to Goa and reached on 21.05.2007 at 07.00 a.m. After securing
the entry pass, PW-28 PI D'Souza met with Regulating Officer.
Accused then led police and panchas towards 'P' Mess and
produced one plastic packet kept below manglori tiles of the roof
and handed over to police. PW-28 PI D'Souza found one country-
made revolver of 10 inches in length single bore and one more
country-made revolver of silver colour five and half inches single
bore and six cartridges. Out of them, four were of 8 mm with
mark 'KF' and rest 2 ½ cmm in length with description KIF 64
and 380 MK-2. Goa police called with seal and weapons were
seized and sealed. Paper slips with signatures of panchas and
signatures of PW-28 PI D'Souza were affixed. Exh.100/A is the
panchanama of seizure of weapons.
18. PW-28 PI Pascal D'Souza then went to Vasco Police
Station and entry was made in the police station and then the
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police, accused and panchas returned back to Mumbai on
22.05.2007. At Goa, PW-28 PI Pascal D'Souza recorded
statements of Anand Maruti Waghmare, Amandeep Satnam
Singh, Anilkumar Shivkumar Sharma, Narayan Jay Kamraj and
M. Prasad Tripathi (Witnesses not examined by prosecution).
19. On 25.05.2007, accused made voluntary statement to
produce mobile instrument and also to point out the place from
where the chopper was purchased (chopper was found in the
drawer of dressing table in Room No.202). Exh.56 is the
memorandum panchanama drawn in presence of PW-10 Mario
Chettiar. Accordingly, accused led PW-28 PI Pascal D'Souza,
police staff and panchas to Hansa, Goa. Before going to INS
Hansa, they went to Vasco Market. Accused then led the police
party to the shop from where chopper was purchased from Babita
Madhurkar for Rs.75/-. The statement of Babita Madhurkar was
recorded (not examined). Thereafter accused led the police party
and panchas to Hansa. Gate pass (Exh.200) was obtained and
then police party went to Regulating Office. There accused asked
one Gadgil to produce mobile instrument which was handed over
to him. From drawer of the table of Gadgil in C-41 mess, mobile
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instrument of Nokia make i.e. 6101 of silver and black colour
alongwith four telephone bills in the name of deceased
Kaushambi was recovered. The accused then led to another D.O.
mess at P11 room and by the side of drainage, one broken sim
card in two pieces produced, which was taken in possession by the
police. Accordingly, panchanama (Exh.56A) was prepared. The
articles seized and labelled.
20. On 26.05.2007, statement of Dattaprasad Gadgil was
recorded. On 27.05.2007, police returned to Mumbai. On
30.05.2007, test identification parade was also conducted and
Receptionist in “Classic Residency” as well as “Sun .N. Sheel”
Watchman identified the accused. On 01.06.2007, statement of
PW-8 Kaushik Layek was also recorded and one bill of mobile was
obtained from him. On 02.06.2007, PW-28 PI Pascal D'Souza
recorded statement of PW-14 K. Satishkumar (Exh.76), Assistant
System Engineer in Tata Consultancy, Mumbai, who knew
deceased and PW-15 Vipul Pathak. On 22.06.2007, the seized
articles were sent to C.A. vide forwarding letter (Exh.155).
Statement of Anthony Jagtap was recorded on 22.06.2007. On
25.07.2007, statement of Vipul Pathak was recorded who handed
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over E-mail copy. On 29.07.2007, statement of PW-16 Anil Gala
was recorded from whom Nokia mobile was purchased by
deceased in presence of PW-8 Kaushik Layek. On 31.07.2007,
statement of Meghna Acharya was recorded (not examined). On
30.07.2007 certain page from hotel register (Exh.59/65) was
seized. Guest Registration Card (Exh.60) was also seized under
panchanama. The said documents were handed over by Ceaser
Fernandes and therefore, his supplementary statement was
recorded. Finger print report (Exh.111) was also collected. The
Ballistic reports (Exh.166 to Exh.168) were also received.
According to finger print expert PW-20 Rajendra Kulkarni, one
chance print developed on drinking glass water is identical with
left ring finger print of accused.
21. The Ballistic reports (Exh.166 to 168) were also
received. The IO also obtained the sanction order to prosecute
the accused under the Arms Act from PW-29 Vijaysingh Jadhav.
The post-mortem report (Exh.86) also collected wherein the cause
of the death was mentioned as “Haemorrhage and shock due to
multiple fire arm injuries (unnatural).” The C.A. reports (Exh.
204 to Exh.207) are also collected. After completion of
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investigation, charge-sheet was filed before the ld. Metropolitan
Magistrate, 22
nd
Court, Andheri (E), Mumbai.
22. On 18.08.2007, the ld. Metropolitan Magistrate
committed the case to the Court of Sessions.
23. It appears that the charge was framed against the
accused vide Exh.9 on 21.01.2008 u/s.302 of the IPC as well as u/s.
3 r/w. Sec.25 and u/s.4 r/w. Sec.27 of the Indian Arms Act, 1925.
Accused pleaded not guilty. Thereafter accused filed an
application (Exh.15) contending that while committing the case,
ld. Metropolitan Magistrate has not complied with the provisions
laid down in Sec.475 of the Cr.P.C. and no notices were sent to the
concerned Navy Officers to conduct the trial. The said
application was allowed on 25.03.2008 and accordingly, notices
were sent to Commanding Officer, Kochi, and Commanding
Officer, INS Hansa, Naval Office Goa respectively. Commanding
Officer, INS Garuda vide letter dated 22.04.2008 (Exh.18)
informed that Indian Navy do not wish to take over the case and
the Court may continue with the proceedings. Captain
Commanding Officer, INS Hansa, vide letter dated 13.05.2008
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(Exh.19) also communicated to the Sessions Court that accused
cannot be tried under the Navy Act 1957 and requested to proceed
with the case. It appears that the earlier charge was quashed
before giving notices to the respective naval officials. When the
respective naval officials informed the Court to proceed with the
case and they were not interested to try the case, new charge was
framed on 27.06.2008 u/s.302 of the IPC and u/s.3 r/w. Sec.25 and
u/s.4 r/w. Sec.27 of the Indian Arms Act and explained to accused
by my ld. Predecessor on 27.06.2008. Accused pleaded not guilty
and claimed to be tried.
24. To unfold its case, the prosecution has examined the
following witnesses:-
(1) PW-1 Anup Harish Lal (Exh.23), Accountant in
“Sun .N. Sheel Hotel”, lodged FIR (Exh.24),
(2) PW-2 Pranila Dudhaji Parulekar (Exh.29), spot
panchanama (Exh.30),
(3) PW-3 Raju Shivprasad Thakur (Exh.33), witness on
spot panchanama and also identified the muddemal articles,
(4) PW-4 Jitu Babu Singh (Exh.37) witness on seizure
panchanama of clothes of deceased (Exh.38) and also a witness of
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identification parade,
(5) PW-5 Raviprakash Sabhajit Singh (Exh.39),
Watchman in “Sun .N. Sheel Hotel” and also identified the
accused in T.I. parade,
(6) PW-6 Jogindar Mukutdhari Singh (Exh.45),
Watchman in “Sun .N. Sheel Hotel” (hostile),
(7) PW-7 Shaunak Dinesh Layek (Exh.47), brother of
deceased Kaushambi,
(8) PW-8 Kaushik Sukhendu Layek (Exh.48), in his
presence Nokia mobile was purchased by deceased from Anupam
Stationary Store of PW-16 Anil,
(9) PW-9 Pradip Arjun Singh (Exh.54), Waiter in “Hotel
Sun .N. Sheel”,
(10) PW-10 Mario Lazar Chettiar (Exh.55), panch witness
on memorandum panchanama (Exh.56) and seizure panchanama
(Exh.56-A),
(11) PW-11 Ceaser Kashmiro Fernandis (Exh.58),
Receptionist in “Hotel Sun .N. Sheel”, had given key to accused of
Room No.202, Exh.59 copy of register and Exh.60 Guest
Registration Form exhibited in his evidence,
(12) PW-12 Robin T.V. Varghese (Exh.61), house keeping
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supervisor in “Sun .N. Sheel Hotel” (hostile),
(13) PW-13 Rahul Bhanudas Bolke (Exh.74), taken
photographs of dead body of Kaushambi,
(14) PW-14 K. Satishkumar Subuddhi (Exh.76), Assistant
System Engineer in Tata Consultancy, Mumbai, knew deceased
and Vipul Pathak.
(15) PW-15 Vipul Hemant Pathak (Exh.78), Colleague of
deceased Kaushambi, working in Tata Consultancy,
(16) PW-16 Anil Gala (Exh.80), sold Nokia handset to
deceased,
(17) PW-17 Maria Paul Agnelo Chettiar (Exh.83),
Receptionist in “Classic Residency Guest House” who directed
accused and deceased to go to “Sun .N. Sheel Hotel” for getting
accommodation, Exh.97 and Exh.98 copy of the registers
pertaining to entries dated 23.03.2007 and 06.04.2007 in the
name of accused and deceased,
(18) PW-18 Dr.Mahadev Eknath Bansode (Exh.85),
conducted post-mortem of deceased Kaushambi, Exh.86 is post-
mortem report,
(19) PW-19 Amarjeet Kashiram Yadav (Exh.99), panch
witness of memorandum panchanama (Exh.100) and seizure
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panchanama (Exh.100-A) regarding seizure of one revolver, one
katta, six cartridges (four live) at the instance of accused from
INS Hansa, Goa,
(20) PW-20 Rajendra Baburao Kulkarni (Exh.105), finger
print expert,
(21) PW-21 Gulam Gilani Shah (Exh.116), in his presence,
register from “Hotel Sun .N. Sheel” seized regarding entry Exh.
59,
(22) PW-22 Dr. Vasudha Bhaskar (Exh.122), taught
Russian language at INS Hansa Goa to accused and others and
according to her, accused was absent on 14.05.2007,
(23) PW-23 Mrutyunjay Tripathi (Exh.126), serving in INS
Hansa, he was present at the time of alleged recovery of weapons
at the instance of accused vide Exh.100-A panchanama,
(24) PW-24 Dr. Sandip Arjun Karna (Exh.129), Medical
Officer issued Medical Certificate (Exh.130) of examining accused
in Goa after his arrest,
(25) PW-25 Naorem Arun Singh (Exh.131), Commander,
INS, Hansa, in his evidence, the documents - i.e. letter of arrest
(Exh.132), body receipt (Exh.133), inventory (Exh.134), genform
letter dated 17.05.2007 (Exh.135), service record letter of accused
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(Exh.136), gatepass of confiscated country made revolver (Exh.
137), gatepass for confiscated items (Exh.138) - are exhibited.
(26) PW-26 Prabhakar Sonu Lagvankar (Exh.152), first
I.O., visited Room No.202, collected C.R. No.251/07, drawn
inquest panchanama, spot panchanama. Recorded statement of
Vandana Sarkar, recorded FIR of PW-1 Anup Lal, collected
entries from the hotel register of “Sun .N. Sheel”, recorded
statements of mother and brother of the deceased, seized clothes
of the deceased, sent muddemal, blood samples to C.A.
(27) PW-27 Vikas Vitthal Gite (Exh.153), examined
revolvers, bullet and submitted report (Exh.156),
(28) PW-28 PI Pascal D'Souza (Exh.188), IO, visited Naval
Office, Goa Hansa, on 16.05.2007. On 17.05.2007 accused was
handed over to him, arrest panchanama was drawn, one jeans
pant, T-shirt of accused were seized under panchanama (Exh.
191). He also seized two country-made revolvers, 6 cartridges at
the instance of accused under panchanama (Exh.100-A) and also
visited the place from where chopper was purchased by the
accused. Mobile and bills were recovered which alleged to have
been given by accused to one Gadgil. Broken pieces of sim card
were also seized. The alleged e-mails (Exh.79) sent by accused to
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Vipul Pathak also collected. He also seized hotel register page of
“Sun .N. Sheel” (Exh.59) and guest registration card (Exh.60). He
also collected finger print report (Exh.111), ballistic reports (Exh.
166 to Exh.168), handwriting report (Exh.202) admitted by
defence, C.A.reports (Exh.204 to Exh.207), and post-mortem
report (Exh.86). He recorded statements of witnesses at Goa and
filed charge-sheet after completion of investigation.
(29) PW-29 Vijaysingh Jadhav (Exh.238), accorded sanction
to prosecute under Arms Act.
25. Statement of accused is also recorded u/s.313 of the
Cr.P.C. The defence of the accused, as revealed from the tenor of
the cross-examination of witnesses and from his statement
recorded u/s.313 of the Cr.P.C., appears to be that of total denial
and false implication. Accused took a defence of alibi. According
to accused, he did not come to Mumbai on the alleged day of the
incident and he was in INS Hansa, Goa. According to accused, IO
PI Pascal D'Souza has concocted the entire case with help of his
relatives who are the key witnesses and also habitual panchas
were examined. Further according to the accused, PW-25 Naorem
Arun Singh (Exh.131), Commander, INS, Hansa, has not
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conducted any basic inquiries and has handed over him to
Mumbai Police in violation of Navy Rules and Regulations.
Further he contended that IO in collusion with PW-25 Naorem
Arun Singh has deliberately not recorded the statements of
witnesses who had seen accused inside the Naval base at alleged
time period. Further according to accused, attendance register of
Russian language course, daily parade has deliberately
suppressed and concealed by the IO in liaison with Arun Singh to
deny the accused an opportunity to prove his innocence. Further
according to accused, it is impossible for a person working in
Navy, subject to Naval law, to remain absent for three days
without giving notice to superior officers.
26. In defence, accused also examined DW-1 Aman Deep
Singh (Exh.254) to show that accused was playing cricket in Goa
on the day of alleged incident. DW-2 Ketan Pravin Ranga (Exh.
257) - Journalist, DW-3 Rashmi Anand Rajput (Exh.260) -
Journalist, DW-4 Shagnik Deepanwita Chaudhary (Exh.262) -
Journalist, DW-5 Uttam Singh Awnandan Singh (Exh.264) who
met accused on 13.05.2007 in visitors' room, INS Hansa to collect
the cheque from accused for investing money in ICICI Bank.
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DW-6 accused Manish Thakur examined himself (Exh.270) and
produced voluminous documents.
27. I have heard Mrs. Ghodke, ld. APP for the State. I
have also heard marathon argument of Mr. Pasbola, ld. Advocate
for accused. I have also gone through the voluminous
documentary evidence minutely, which I will discuss at the
appropriate stage in the judgment.
28. Following points arose for my consideration and I have
recorded my findings thereon for the reasons as follow:-
Point Finding
1. Whether the death of Kaushambi
Layek was homicidal ?
Yes.
2. Does prosecution prove that on or
about and between the night hours
of 13.05.2007 and 14.05.2007 from
22.30 hrs. and before 13.00 hrs. in
Room No.202 of “Hotel Sun .N.
Sheel”, at Kurla-Andheri Road,
M.I.D.C., Andheri (E.), Mumbai, the
accused committed murder of
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Kaushambi Dinesh Layek by fire
arms ?
Yes.
3. Does prosecution prove that on the
same date, time and place, accused
was found in possession of two
country-made revolvers (katta) and
one big knife without having licence
punishable u/s.3 r/w. Sec.25 of the
Arms Act ?
Yes.
4. Does the prosecution prove that on
the same date, time and place, the
accused used country-made
revolvers in order to commit murder
of Kaushambi Layek and thereby
committed the offence punishable
u/s.4 r/w. Sec.27 of the Indian Arms
Act ?
Yes.
5. Whether this Court has jurisdiction
to try the case ? Yes.
6. What order ? As per final
order.
REASONS
As to Point Nos.1 & 2 :-
29. The ld. APP vehemently submitted that the
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prosecution has proved beyond reasonable doubt that accused
murdered Kaushambi Layek, a Technician working in Tata
Consultancy, in Room No.202 of “Hotel Sun .N. Sheel”. According
to ld. APP, there was relationship between accused and deceased.
Further it was also argued that accused is a married person and
when Kaushambi got knowledge about the said fact, she avoided
to proceed further. Further according to ld. APP, earlier of the
incident, on 23.03.2007 and on 06.04.2007, the accused and
deceased stayed together in “Classic Residency Guest House”. On
12.05.2007 also, accused and deceased went together in “Classic
Residency Guest House” where they did not find any
accommodation, thereby they went to the “Hotel Sun .N. Sheel”
and got Room No.202. The ld. APP also argued that there is also
documentary evidence to show that the room was allotted in the
name of accused and deceased and both stayed together in the
said room. On 14.05.2007, the hotel management noticed about
the death of Kaushambi in the Room No.202 and also there was
absence of the accused in the room. Ld. APP further submitted
that on the same day i.e. 14.05.2007, when police visited the room
and searched, they noticed a travelling bag wherein they also
found a paper in the name of INS Garuda and also yellow chit
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having written mobile numbers in the name of Rai and Vipul
(PW-15). Further police also found sando baniyan of Southern
Naval Command. Police also found the clothes of the lady in bag.
On the basis of the Guest Registration Form (Exh.60), police
swung into action and proceeded to Colaba Naval Office.
According to ld. APP, Colaba Naval Office directed the IO Shri
D'Souza to proceed to INS Hansa. According to ld. APP, the
accused is a Sailor and was attached to INS Garuda at Kochi. He
was deputed for Russian language course at INS Hansa, Goa.
Accused was learning Russian language at INS Hansa.
According to ld. APP, the accused then handed over to IO PI
Pascal D'Souza on 17.05.2007. He was also found absent on
12.05.2007, 13.05.2007 and 14.05.2007 in INS Hansa. According
to ld. APP, on 14.05.2007, in hotel room, the finger print expert
PW-20 Rajendra Kulkarni also found two fingerprints on the
glass and one on the plastic bottle of Oxirich Co. According to ld.
APP, accused who examined himself, admitted u/s.313 of the
Cr.P.C. that his fingerprints were taken. According to ld. APP, as
per the finger print expert, the left ring finger of the accused
matched with the finger print found on the water glass. Hence,
according to ld. APP, it demonstrates beyond reasonable doubt
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that it was the accused who stayed in the said room and was
present at the time of incident. Ld. APP vehemently submitted
that fingerprint science is exact science and therefore, it can be
relied straight way.
30. Further according to ld. APP, at the instance of
accused, the fire arm was recovered. It is argued by ld. APP that
the fire arm, which was seized at the instance of accused, and
cartridges, which were recovered at the instance of accused from
INS Hansa, were examined and bullet found in the body of
deceased was also examined. Ballistic reports are in favour of the
prosecution. The Receptionist in “Hotel Sun .N. Sheel” and
Receptionist in “Classic Residency Guest House” also identified
the accused in identification parade, which also shows that the
accused was present along with the deceased in the “Hotel
Sun .N. Sheel”.
31. According to ld. APP, absence of accused after the
incident in Hotel itself would demonstrate that it is only accused
and none other else who committed the incident. The ld. APP
further submitted that burden u/s.106 of the Evidence Act is on
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the accused to explain as to when he parted company with the
victim which he has not done. The ld. APP submitted that as
there is no direct evidence in the present case, however, the
circumstantial evidence adduced by the prosecution is so strong
and chain is so complete to show that it is the accused who has
done the said act.
32. Mr. Pasbola, ld. Advocate for accused, in the marathon
argument, vehemently submitted before me that the prosecution
failed to prove charge against the accused beyond reasonable
doubt. According to him, the accused has taken the plea of alibi.
The ld. Advocate for accused further submitted that accused was
not in Mumbai, but he was present in INS Hansa. Further it is
submitted that it is for the prosecution to prove its case beyond
reasonable doubt. According to him, witnesses examined in the
present case are highly interested and very close to the IO Shri
Pascal D'Souza. It is submitted by Mr.Pasbola, ld. Advocate for
accused, that the prosecution has not examined scribe of alleged
entry (Exh.59). According to ld. Advocate for accused, PW-11
Ceaser Fernandes did not fill up the entry in register and
therefore, it is highly improbable for PW-11 Ceaser Fernandes to
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witness alleged visit of accused and deceased to “Hotel Sun .N.
Sheel”. Further according to ld. Advocate for accused, the
evidence of PW-17 Maria Paul Agnelo Chettiar, Receptionist in
“Classic Residency Guest House”, is also not reliable. Xerox copy
of the register showing entry in the name of accused Exh.97 and
Exh.98 is inadmissible and cannot be read in evidence. The
original is not on record. Further according to ld. Advocate for
accused, the alleged identification parade held in the jail is also
defective and witnesses had an opportunity to see the photograph
of accused, which was published on television and newspapers.
Mr.Pasbola, ld. Advocate for accused, vehemently submitted that
panch witnesses examined by the prosecution are the habitual
panchas, appeared in many cases and to act on evidence of such
panchas, is very dangerous. Therefore, their evidence cannot be
taken into consideration.
33. Mr. Pasbola, ld. Advocate for accused, vehemently
submitted that the report of fingerprint expert cannot be read in
evidence as there is breach of Sec.5 of the Identification of Indian
Prisoners Act. According to ld. Advocate for accused, IO has
taken fingerprints without obtaining order from the Magistrate
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for proceeding u/s.5 of the Identification of Prisoners Act. It is
argued that as there is violation of not taking order from the
Magistrate for taking fingerprints of accused, the said report
cannot be read in evidence.
34. Mr. Pasbola, ld. Advocate for accused, also vehemently
submitted that the IO has not even uttered any word in his
evidence regarding taking fingerprints of accused. According to
ld. Advocate for accused, what was the mode and in what manner
the finger prints were collected is not at all established on record
and therefore, such evidence as regards to the fingerprint is of no
use for the prosecution and straight way be rejected.
35. Further Mr. Pasbola, ld. Advocate for accused, also
submitted that recoveries at the instance of accused are also not
reliable. The panchas are the habitual panchas and they never
stated that in their presence, fire arms were recovered at the
instance of accused. Further according to ld. Advocate for
accused, the evidence of Ballistic Expert cannot be relied.
36. Mr. Pasbola, ld. Advocate for accused, further
submitted that the prosecution has not examined the important
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witnesses from INS Hansa which are Gadgil, Satvir Singh,
Premsingh, Bhattacharya.
37. Lastly it is submitted that the IO did not collect any
material from INS Hansa to show absence of accused during the
relevant period. On the contrary, according to ld. Advocate for
accused, accused had examined defence witnesses and also
examined himself to show his presence in INS Hansa. The ld.
Advocate for accused also urged that accused also tried to show
his innocence by demanding the documents about his presence
under the R.T.I. Act from the Naval Officers, but the documents
were not supplied to him.
38. Lastly the ld. Advocate for accused submitted that the
prosecution also failed to demonstrate the motive about
eliminating Kaushambi Layek. According to ld. Advocate for
accused, when the case is based entirely on circumstantial
evidence, then the prosecution must prove the motive behind
crime. Mr. Pasbola, ld. Advocate for the accused, also submitted
that this Court has no jurisdiction to try the case as the matter
was committed by the ld. Metropolitan Magistrate without
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following the mandatory Rules. It is submitted that the accused
belongs to the Navy and therefore, the ld. Magistrate ought to
have issued notice to the Commandant before taking cognizance
that whether Naval Department at Goa wants to proceed for
Court martial against the accused. Hence, According to ld.
Advocate for the accused, there is breach of mandatory procedure
and rules. Therefore, the Sessions Court has no jurisdiction to
try the case. Hence, the ld. Advocate for accused submitted that
the accused is entitled for an acquittal.
39. Before touching to the circumstances emerging in the
present case, I would first discuss as to whether the death of
Kaushambi is homicidal or not.
40. From the evidence collected during investigation, it is
not in dispute that the dead body of Kaushambi was found in
Room No.202 of “Hotel Sun .N. Sheel”. PW-1 Anup Lal had seen
the dead body and informed his owner Lalji Singh. Lalji Singh
instructed him to visit M.I.D.C. Police Station and informed the
police about the incident. The IO Lagvankar and police officer
then visited the Room No.202 and noticed injuries on forehead
and on the neck of the deceased and face was stained with blood.
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41. After drawing spot panchanama, inquest panchanama,
body was sent for post-mortem to J.J. Hospital, Mumbai, on
15.05.2007. PW-18 Dr.Mahadev Bansode was attached to J.J.
Hospital on 15.05.2007 and he was on duty from 08.00 a.m. of
15.05.2007 to 08.00 a.m. of 16.05.2007. At about 12.10 a.m. the
dead body of female Kaushambi Layek was brought by M.I.D.C.
Police for post-mortem purpose. According to PW-18 Dr.Bansode,
as per A.D.R. and inquest panchanama, there was fire arm injury
caused to the deceased. During post-mortem, PW-18 Dr.
Mahadev Bansode found regar mortis, postmortem lividity is
fixed and blood was oozing from mouth and nose. There was no
injury on external genital. As per column no.17 of postmortem
report, the following injuries were noticed by PW-18 Dr. Mahadev
Bansode:-
(i) Firearm entry wound over right side of forehead, star
shaped, size - 10 cm x 8 cm with 1.5 cm circular defect in frontal
bone situated 8 cm above right ear. Evidence of blackning,
burning, sinjeing tatoing seen over surrounding skin, black entry
seen on the track, on decection a circular 1.5 cm defect with
bevelled margins on inner table seen at entry wound. The bullet
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passed through dural right celebral hamisphere posterioraly and
lodged in occipital area with fracture of occipital bone due to hit
by bullet. A copper jacketed bullet with deformed tip is retrived
from there. All the track is lacerated and heamorahagic.
(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 desection, the
bullet passed through subtutanious mussel posterior aspect of
tracia to the left and downwards and backwards and passed out
through mussel of back on left side through firearm exit wound.
(iii) 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 heamorahagic.
(iv) 4 abrasion seen over left breast of size 1 x 0.5 cm each
red colour horizontally placed, 1 cm away from each other.
42. Postmortem report (Exh.86) is in the handwriting of
PW-18 Dr. Mahadev Bansode and cause of death given by him is
“Haemorrhage and shock due to multiple firearm injuries
(unnatural)”.
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43. PW-18 Dr. Mahadev Bansode also opined that injuries
mentioned in column no.17 are sufficient, in the ordinary course
of nature, to cause death. Injury no.1 was inflicted on the vital
part of the body. According to PW-18 Dr. Mahadev Bansode,
death was caused before 24-36 hours of postmortem examination.
44. PW-18 Dr. Mahadev Bansode took sample of blood,
vaginal swab, smear, hairs, bullet and nail clipping, sealed them
by putting labels and sent to C.A. along with seven forwarding
letters. The copies of letters are duly proved at Exh.87 to Exh.93.
45. PW-18 Dr. Mahadev Bansode also identified the bullet
shown to him during evidence, which was found in the dead body
of Kaushambi and seized at the time of postmortem examination.
It is marked as Art.Z/1. According to him, injury mentioned in
column no.17 can be caused by firearm and the fire was made in
this case from the distance of about 30 c.m. PW-18 Dr. Mahadev
Bansode also cross-examined at length by Mr.Pasbola, ld.
Advocate for accused. He admitted that his statement is not
recorded and also nobody asked him the time of death of deceased
Kaushambi. He also admitted that firearm is classified in three
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categories i.e. contact wound, close contact and distance contact.
He also admitted that a Doctor can give opinion on the basis of
appearance of the body noticed during postmortem to that effect.
He also admitted that in case of contact wound and close contact
both, there may be singeing, burning, blackening and tatouing.
He also admitted that all the postmortem changes since 12.10
a.m. would be minimal as the body was stored in cold storage.
46. Further he stated that regar mortis present on all over
the body and it starts within 2-3 hours of death and within 3-6
hours, it spreads all over the body. After 36 hours, process of
decomposition starts and it depends on the atmosphere.
Postmortem levidity becomes fixed within 12-18 hours.
47. According to PW-18 Dr. Bansode, as per column no.21,
stomach was found empty and in his opinion, the food was taken
before 6-8 hours of death. He also admitted that only on seeing
the type of exit and entry wound, a Doctor cannot opine exactly
what kind of firearm or weapon was used. So if the evidence
adduced by PW-18 Dr.Bansode is looked into and having regard to
the injuries mentioned by PW-18 Dr.Bansode in column no.17 and
19, it can be seen that the death of Kaushambi was caused by
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firearm. Moreover, there were two firearm injuries noticed - fire
arm on the right side of forehead and firearm on the right side of
neck. In such circumstances, it can safely be said that deceased
Kaushambe met with homicidal death. Hence, I answer point no.
1 accordingly.
48. In the present case, admittedly, there is no direct
evidence and entire prosecution case rests on circumstantial
evidence. In landmark judgment of Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116, it is held
by the Apex Court that “the onus was on the prosecution to prove
that the chain is complete and falsity or untenability of the
defence set up by the accused cannot be made basis for ignoring
serious infirmity or lacuna in the prosecution case. The Court
then proceeded to indicate the conditions which must be fully
established before conviction can be based on circumstantial
evidence. These are:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned must or should and not may be established;
(2) the facts so established should be consistent only with
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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 evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
49. It is pertinent to note that the accused took a stand of
alibi on the ground that at the relevant time of the alleged
incident, he was in INS Hansa and not in Mumbai. The ld.
Advocate for accused also relied on the case of Jayantibhai
Bhenkarbhai Versus State of Gujarat, 2002 Supreme Court
Cases (Cri) 1873. In the said case, the Hon'ble Apex Court
observed as under:-
“The plea of alibi flows from Section 11 and is
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demonstrated by Illustration (a). Sarkar on Evidence (15
th
Edn.,
p.258) states the word “alibi” is of Latin origin and means
“elsewhere”. It is a convenient term used for the defence taken by
an accused that when the occurrence took place he was so far away
from the place of occurrence that it is highly improbable that he
would have participated in the crime. Alibi is not an exception
(special or general) envisaged in the Indian Penal Code or any
other law. It is only a rule of evidence recognized in Section 11 of
the Evidence Act that facts which are inconsistent with the fact in
issue are relevant. The burden of proving commission of offence
by the accused so as to fasten the liability of guilt on him remains
on the prosecution and would not be lessened by the mere fact that
the accused had adopted the defence of alibi. The plea of alibi
taken by the accused needs to be considered only when the burden
which lies on the prosecution has been discharged satisfactorily. If
the prosecution has failed in discharging its burden of proving the
commission of crime by the accused beyond any reasonable doubt,
it may not be necessary to go into the question whether the accused
has succeeded in proving the defence of alibi. But once the
prosecution succeeds in discharging its burden then it is
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incumbent on the accused taking the plea of alibi to prove it with
certainty so as to exclude the possibility of his presence at the place
and time of occurrence. An obligation is cast on the court to weigh
in scales the evidence adduced by the prosecution in proving the
guilt of the accused and the evidence adduced by the accused in
proving his defence of alibi. If the evidence adduced by the
accused is of such a quality and of such a standard that the court
may entertain some reasonable doubt regarding his presence at
the place and time of occurrence, the court would evaluate the
prosecution evidence to see if the evidence adduced on behalf of the
prosecution leaves any slot available to fit therein the defence of
alibi. The burden of the accused is undoubtedly heavy. This flows
from Section 103 of the Evidence Act which provides that the
burden of proof as to any particular fact lies on that person who
wishes the court to believe in its existence. However, while
weighing the prosecution case and the defence case, pitted against
each other, if the balance tilts in favour of the accused, the
prosecution would fail and the accused would be entitled to the
benefit of that reasonable doubt which would emerge in the mind
of the court.”
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50. So in view of ratio laid down in above case, the plea of
alibi taken by the accused needs to be considered only when the
burden which lies on prosecution has been discharged
satisfactorily. If the prosecution has failed in discharging its
burden of proving the commission of crime by the accused beyond
any reasonable doubt, it may not be necessary to go into the
question whether the accused has succeeded in proving the
defence of alibi. If the prosecution succeeds in discharging its
burden, then it is incumbent on the accused taking the plea of
alibi to prove it with certainty so as to exclude the possibility of
his presence at the place and time of occurrence.
51. So now it is necessary to ascertain first as to whether
the burden which lies on the prosecution has been discharged
satisfactorily to prove the commission of the offence. As stated
above, the present case entirely rests on the circumstantial
evidence. It is to be seen as to whether the prosecution has
proved the circumstances levelled against the accused.
52. The prosecution relied on the following circumstances:-
(i) There was some kind of relationship between
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Kaushambi Layek (deceased) and accused.
(ii) They stayed together in “Classic Residency Guest
House”.
(iii) Deceased was last seen with accused in “Hotel Sun .N.
Sheel”.
(iv) Absence of the accused from the “Hotel Sun .N. Sheel”
after the incident.
(v) Finding of Sando Baniyan of Southern Navy Command
in Room No.202 of “Hotel Sun .N. Sheel” and finding of chit of
INS Garuda in Room No.202 along with yellow chit showing the
mobile number 9323287753 in the name of Rai, mobile no.
9810440903 in the name of Rahul, mobile no.9820821169 in the
name of Vipul (PW-15).
(vi) Finger print found on the water glass in Room No.202
matched with the left ring finger print of the accused.
(vii) Recovery of two country-made revolvers, six cartridges
at the instance of the accused.
(viii) Identification Parade of the accused.
(ix) Recovery of the mobile of the deceased and broken sim
card.
(x) Ballistic Report.
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53. As to circumstance No.(i) There was some kind of
relationship between Kaushambi Layek (deceased) and accused
and circumstance no.(ii) They stayed together in “Classic
Residency Guest House”.:- There is no dispute that the accused
was posted at INS Garuda, Air Engineering Department, Kochi,
Kerala. The accused was also selected to undergo Pilot Simulator
(Mechanical) Training at Moscow, Russia, for MIG-29K aircraft.
The accused was required to undergo Russian language training.
On 24.02.2007, the accused left INS Garuda, Kochi, and reported
at INS Hansa, Goa, on 25.02.2007. It is also not in dispute that
the residential address of the accused is “Vidyasagar Park, 1
st
Lane, Paripurkar Road, Bansdroni, Kolkatta, West Bengal”. The
accused was first posted in Mumbai on INS Kunjari for the period
from 1999 to 2002. The second training of accused was on INS
Shivaji at Lonavala for six months. The accused was also at
Kochi Keral since 2003. The accused is a married person. Nitu
Naval Singh is the name of wife of accused. The accused is also
having basic knowledge of computer.
54. The prosecution claims that there was love affair
between Kaushambi Layek and accused. The accused denied the
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said allegation. PW-7 Shaunak is the brother of deceased
Kaushambi. Kaushambi had completed her M.B.A. from Birla
Institute of Technology, Ranchi, and also obtained degree of
M.C.A. in the year 2005. According to PW-7 Shaunak,
Kaushambi had undergone training at Tata Consultancy at
Trivendram with him. According to him, he along with
Kaushambi were proceeding by Hawra-Trivendram Express. At
about 11.00 p.m. both slept in the train and when PW-7 Shaunak
got up, he saw Kaushambi talking with one boy who was accused
going to Kochi. PW-7 Shaunak also identified the accused in the
Court.
55. The evidence of PW-7 Shaunak further reveals that in
the year 2005, he received a phone call on his mobile from one
lady who was Nitu, wife of accused. She informed PW-7 Shaunak
that her husband is insisting her for divorce and she found a
photograph of her husband with Kaushambi. The said fact was
disclosed by PW-7 Shaunak to his mother and also to Kaushambi.
The evidence of PW-7 Shaunak also reveals that deceased
informed him that after making enquiry, she came to know that
accused is already married and she will not keep any relations
with him.
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56. The evidence of PW-7 Shaunak also reveals that in
April 2007, he received a phone call from the accused who
informed him that he intends to marry Kaushambi. PW-7
Shaunak asked the accused when he was already married person,
how he can marry with Kaushambi and thereby PW-7 Shaunak
disconnected the phone call. In cross-examination, PW-7
Shaunak stated that only once he had seen the accused and i.e. in
the train. It appears that in the cross-examination, it is brought
on record that the person, who was talking with Kaushambi in
the train, had told PW-7 Shaunak, his name as Manish Thakur
and he was going to Kochi, but the said fact is not mentioned in
the statement. Though there is an omission on the part of PW-7
Shaunak to state in the statement, however, in cross-
examination, it is brought on record that for the first time, PW-7
Shaunak had seen the accused in the train. He also admitted in
cross-examination that on the same day when he had received the
phone call of Nitu, he had talked with Kaushambi on phone.
Thereafter he had not talked with Kaushambi on this subject. So
from the above cross-examination, it is established that PW-7
Shaunak received the phone call from Nitu and he talked with
Kaushambi about receiving phone from wife of accused regarding
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finding of photograph of her husband with Kaushambi and her
husband was insisting her for divorce. The accused also produced
on record SDR details of Mobile No.9334810328 of Shaunak
Layek. According to accused, the said mobile was activated on
31.05.2006. However, the accused has not examined the Nodal
Officer to prove Exh.220. Hence, Exh.220 cannot be admitted in
evidence.
57. The accused also examined himself as DW-6. In cross-
examination by ld. APP, accused admitted that he was knowing
Kaushambi since September 2006 through internet. He also
admitted that he and Kaushambi came in contact through online
messages and Kaushambi had seen his photograph from website.
He denied that he and Kaushambi personally met on 08.03.2005
in Hawda Trivendram Express. However, in view of cross-
examination of PW-7 Shaunak, he had seen the accused in the
train for the first time. In cross-examination, accused was unable
to say whether deceased was interested in marrying with him.
However, the accused stated that he claimed that relations were
never like that. He admitted that when he and Kaushambi came
to know each other, he was married with Nitu.
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58. PW-15 Vipul Pathak was also recruited in Tata
Consultancy where the deceased was also an employee. As per
his version, in February 2007, his group members had gone to
take lunch at Food Court and he saw deceased Kaushambi
talking with one person. Kaushambi introduced the said person
as her friend as Manish (accused). The witness also identified
the accused Manish in the Court. Further according to PW-15
Vipul Pathak, his friendship with Kaushambi became close and
she used to say him that she likes him. According to him,
occasionally he and deceased Kaushambi used to go at Worli sea-
face and once they had gone to see movie at Cinemax, Kandivali.
59. Further according to PW-15 Vipul Pathak, in last week
of March 2007, he received a phone call of accused on his cell
phone and accused said that he and Kaushambi loves each other
and asked him to stay away from Kaushambi. However, PW-15
Vipul Pathak told him that whatever accused is thinking, is not
at all correct and he and deceased were only friends. According to
PW-15 Vipul Pathak, when he told this fact to Kaushambi, she
told him that she had a love affair with Manish for one year, but
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as Manish was already married, she wanted to depart from him.
On 06.04.2007, PW-15 Vipul Pathak met Manish at Food Court.
At that time, Kaushambi was with Manish. According to PW-15
Vipul Pathak, he told Manish that there is nothing in between
him and Kaushambi and Kaushambi also clarified that there is
nothing in between her and PW-15 Vipul Pathak. It appears that
on 28.03.2007, an e-mail was sent to him by accused Manish. The
said printout was given by PW-15 Vipul Pathak to police on
25.07.2007 after the murder of Kaushambi. The said printout is
at Exh.79 which is exhibited subject to objection raised by the ld.
Advocate for accused. It is pertinent to note that Exh.79 is not
signed by PW-15 Vipul Pathak, nor there is signature of the IO.
The ld. APP submitted that on perusal of the said e-mail, it
transpires that there is mention by the accused that he and
deceased stayed together in “Hotel Classic Residency”. Further it
is mentioned in the e-mail that Kaushambi is life of accused and
the accused would not live without her. Mr. Pasbola, ld. Advocate
for the accused submitted that the said e-mail cannot be admitted
in evidence for want of certificate. He drawn my attention to the
Sec.65B(4) of the Indian Evidence Act which reads as under:-
“In any proceedings where it is desired to give a
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statement in evidence by virtue of this section, a certificate doing
any of the following things, that is to say, -
(a) identifying the electronic record containing the
statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in
the production of that electronic record as may be appropriate for
the purpose of showing that the electronic record was produced by
a computer;
(c) dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible
official position in relation to the operation of the relevant device
or the management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section it shall be
sufficient for a matter to be stated to the best of the knowledge and
belief of the person stating it.”
60. I find substance in the argument of Mr. Pasbola, ld.
Advocate for the accused, for the reason that the said e-mail does
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not bear the signature of PW-15 Vipul Pathak, nor it is signed by
the IO. Further no panchanama is drawn while collecting the
said e-mail printout from PW-15 Vipul Pathak and also there is
no certificate given in view of Sec.65-B(4) of the Indian Evidence
Act. So Exh.79 - printout cannot be admitted in evidence.
61. Further in cross-examination PW-15 Vipul Pathak
admitted that he met with accused on 07.04.2007 / 08.04.2007.
He also admitted that whatever explanation he had given to
Manish was absolutely true. It has come in the cross-
examination that PW-15 Vipul Pathak told Kaushambi about the
phone call of Manish Thakur, but the said fact is not mentioned in
the statement before police. However, the statement recorded on
17.05.2007 would reveal that the said fact finds in the statement.
Even PW-15 Vipul Pathak admitted in cross-examination that
during the period when he became close to Kaushambi, he came
to know about the love affair of deceased Kaushambi and Manish.
If the above evidence of PW-15 Vipul Pathak is looked into, there
appears to be love affair between deceased Kaushambi and
accused Manish Thakur. If Manish Thakur was not knowing
Kaushambi, what was the reason for him to remain present for
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lunch at Food Court. Accused Manish Thakur was serving in
Navy and deceased Kaushambi was serving in Tata Consultancy,
Mumbai. As brought on record, in train going to Trivendram and
also through internet, the contact between the deceased and
accused was established. Even PW-15 Vipul Pathak admitted in
cross-examination that he met with accused in Food Court in first
or second week of February 2007. Even PW-15 Vipul Pathak
stated in cross-examination that on 07 or 08.04.2007, he met with
accused and around 23.04.2007, Kaushambi went to her native
place and she was continuously calling him from her new mobile
number. Even PW-15 Vipul Pathak stated in cross-examination
that after giving explanation to Manish, he does not know
whether he was satisfied or not because thereafter he did not
receive any phone call, message, or e-mail from the accused. Even
PW-15 Vipul Pathak admitted that whatever explanation he had
given to accused was absolutely true. So the evidence adduced on
record would demonstrate in clear terms that there was some
kind of relationship between the deceased and accused. Even
PW-15 Vipul Pathak stated that during the period when he
became close to deceased Kaushambi, he came to know about the
love affair between Kaushambi and the accused Manish. Though
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the accused (DW-6) stated in his evidence that he never went at
Food Court in Mumbai and met Kaushambi, however, the above
evidence clearly demonstrates that the accused met with
Kaushambi at Food Court and Kaushambi introduced the
accused with PW-15 Vipul Pathak. So prosecution has proved the
first circumstance that there was some kind of relationship, more
so which can be said as love affair between the deceased
Kaushambi and accused.
62. The prosecution also claims that in view of
relationship between the deceased and accused, they used to come
together and stay in “Classic Residency Guest House”. In this
regard, the prosecution has also adduced the evidence of PW-17
Maria Paul Agnelo Chettiar. He was Receptionist in “Classic
Residency Guest House”. As Receptionist, he used to maintain
visiting register and also used to maintain the names and
addresses of the guests. As per his version, he knows accused
Manish Thakur as 2-3 times he had been to their guest house for
stay. He identified the accused in the court. As per his version,
on 23.03.2007, in the evening accused along with one lady came
and stayed in the Guests House and left the Guest House on
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25.03.2007. Accordingly, the entry was taken in the register.
According to him, on 06.04.2007 also, accused and deceased
stayed in Guest House in Room No.129 and left the Guest House
after 2 days. On 12.05.2007 in between 06.30 to 06.45 a.m., again
the accused along with deceased came to “Classic Residency
Guest House” and as there was no accommodation, they were
asked to stay in “Sun .N. Sheel Hotel” where the alleged incident
occurred. On 14.05.2007, PW-17 Maria Paul was also called to
Room No.202 of “Sun .N. Sheel Hotel” where he identified the
dead body of Kaushambi being the same girl who used to come in
“Classic Residency Guest House” along with the accused.
63. The evidence of PW-17 Maria Paul further reveals that
after checking the register, he learnt that her name was
Kaushambi. The police obtained xerox copy of entry of register of
“Classic Residency Guest House”. When PW-17 Maria Paul was
examined, register was not available. It was informed to the
Court that the visiting register of the “Classic Residency” was
burnt and not available.
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64. According to PW-17 Maria Paul, he had given the xerox
copy of the entry of visit of accused and deceased to the police,
which was prepared from original. Exh.97 is the entry dated
23.03.2007 regarding Room No.125. The said entry is in the
name of accused Manish Thakur. Exh.97 was exhibited subject to
the objection raised by the defence Counsel. Further according to
PW-17 Maria Paul, on 06.04.2007 also, the accused and deceased
resided in Room No.129 of “Classic Residency”. The said entry is
at Sr. No.939 (Exh.98). The said entry was also exhibited subject
to objection raised by the defence Counsel. It is pertinent to note
that in test identification parade dated 30.05.2007, PW-17 Maria
Paul identified the accused. I will discuss issue regarding test
identification parade at the appropriate stage in the judgment.
65. PW-17 Maria Paul is also cross-examined at length by
Mr. Pasbola, the ld. Advocate for the accused. The dead body of
Kaushambi was noticed on 14.05.2007 in Room No.202 in
“Sun .N. Sheel Hotel”. On the same day, statement of PW-17
Maria Paul was recorded. He admitted that he did not carry the
xerox copy of the Hotel Register to police station on 14.05.2007.
However, at about 6.00 - 7.00 p.m. he provided the xerox copy of
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register to the police after recording of his statement at 04.30
p.m. Mr. Pasbola, ld. Advocate for accused submitted that no
panchanama was drawn by the IO regarding seizure of xerox copy
of hotel register and therefore, no reliance can be placed on such
xerox copy of register.
66. Further it has come in his cross-examination that at
the time of recording his statement, PW-17 Maria Paul had told
his name as Maria Paul Angelo Chettiar. At the time of
identification parade, he told his name as Paul. He stated that
when Lagvankar asked his name, he told his name as 'Paul
Girijaswami Chettiar'. He stated that 'Paul Girijaswami
Chettiar' is not his name. However, he stated that in School
Leaving Certificate, his name is written as “Maria Paul Angelo
Chettiar”. He left the job of “Classic Residency” on 30.05.2007.
67. Further PW-17 Maria Paul stated that PW-26 PI
Lagvankar came to “Classic Residency” to see the hotel register,
but did not encircle or initial near the entry. PW-17 Maria Paul
stated that date and time in the copy of hotel register is in his
handwriting and all other columns were filled up by the
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customers. He stated that all the date and time of every entry
are not written by him in Exh.97 and Exh.98. It is pertinent to
note that PW-17 Maria Paul stated that there are two
Receptionists in “Hotel Classic Residency”. So in such
circumstance, the entries might be in the handwriting of other
Receptionist. Further PW-17 Maria Paul admitted that check out
time and date is never mentioned in the hotel register. He also
admitted that there is no record to show that at what time,
customer left the hotel. He admitted that there is no entry in the
copy of hotel register that the accused came in hotel on
23.03.2007 and left the hotel on 25.03.2007. Similarly there is no
entry to show that the accused came on 06.04.2007 and left the
hotel after two days. However, Exh.97 would reveal that at about
06.30 p.m. on 23.03.2007, the accused came in “Classic Residency
Guest House”. His address is also mentioned as “Naval Base
Rameswaram Kochi, Kerala”. On 06.04.2007, the entries are in
the name of deceased and accused at Sr. No.939 of copy of register
(Exh.98) and time is also mentioned. It is admitted fact that
check out time and date is kept blank for all entries. PW-17
Maria Paul stated in cross-examination that time and date
written in Sr. No.939 is in his handwriting. He also identified the
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accused in identification parade on 30.05.2007. He denied that
his statement was not recorded on 14.05.2007. He admitted that
PW-10 Mario is his cousin. He denied that Pascal D'Souza
(PW-28) and PW-10 Mario are his close friends and on their say,
he is deposing false.
68. Mr. Pasbola, ld. Advocate for the accused, submitted
that the accused under R.T.I. Act sought information regarding
incident of fire in “Classic Residency” from 01.05.2007 to
01.12.2009. It was informed to the accused by Public Information
Officer, Deputy Chief Fire Officer, Mumbai Fire Brigade, vide
Exh.292 that as per Marol Fire Station record, there is no
incident of fire to “Hotel Classic Residency” for the period from
01.05.2007 to 01.12.2009. Hence, Mr. Pasbola, ld. Advocate for
accused submitted that the xerox copies of Exh.97 and Exh.98 are
fabricated documents and no reliance can be placed on such
documents. PW-17 Maria Paul stated in Examination-in-Chief
that Hotel Manager Babu Shaikh informed him that visiting
register of “Classic Residency” was burnt and not available. As
per report (Exh.292), there was no fire occurred in the “Classic
Residency”. According to PW-17 Maria Paul, it was not the case
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that the hotel caught fire. According to PW-17 Maria Paul, the
register of relevant time was burnt and therefore, it was not
available. So incident of burning register might be small one and
for that, matter was not reported to the Fire Brigade to seek help.
69. There is no reason for “Classic Residency Guest
House” to prepare the bogus documents against accused. It is
pertinent to note that immediately after the incident on
14.05.2007, the statement of PW-17 Maria Paul was recorded.
Though the panchanama was not drawn in respect of xerox copy
of hotel registers (Exh.97 and Exh.98), that would not disbelieve
the version of PW-17 Maria Paul. There is no enmity between
PW-17 Maria Paul and accused and what was the reason for him
to tell lie against the accused. Further the entry in the name of
accused also shows his address of Kochi. If according to accused
he never visited “Classic Residency”, then, how the address of
Kochi is reflected in Exh.97 and Exh.98. How the names of
accused and deceased Kaushambi were recorded in the entry Exh.
97 and Exh.98. The evidence of PW-17 Maria Paul inspires
confidence. According to him, for two times, accused and the
deceased Kaushambi visited “Classic Residency Guest House”.
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The entries dated 23.03.2007 and 06.04.2007 do support the
version of PW-17 Maria Paul. Even according to PW-17 Maria
Paul, on 12.05.2007 in the morning at about 06.30 or 06.45 a.m.
accused and deceased came to “Classic Residency”, but as
accommodation was not available, they were directed to see
accommodation in “Sun .N. Sheel Hotel” where they got
accommodation. Even PW-17 Maria Paul was called in “Hotel
Sun .N. Sheel” and he identified the dead body of lady being the
same who visited “Classic Residency Guest House” for two times
with accused. So there is no necessity for PW-17 Maria Paul to
tell lie against the accused. I found his evidence trustworthy and
reliable. Moreover, the accused stayed in “Classic Residency
Guest House” on 06.04.2007 also get corroborated by the evidence
of PW-15 Vipul Pathak. As per his version, on 06.04.2007, he
received a phone call of accused Manish and he asked him to
come to meet him in Hotel. PW-15 Vipul Pathak asked the
accused that he does not know the way of that hotel. Then
accused suggested him to meet in the office of Bandra-Kurla
Complex or at Food Court. PW-15 Vipul Pathak met accused at
Food Court where Kaushambi was with accused. Even in the
cross-examination, PW-15 Vipul Pathak stated that “It would be
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correct to say that, I met with Manish Thakur on 07-08
th
April,
2007 and around 23
rd
April, 2007 Kaushambi went to her native
place and she was repeatedly calling me by her new mobile
number on my mobile.”
70. Even the evidence of PW-14 K. Satishkumar Subuddhi
also corroborates the prosecution case regarding the presence of
accused in Mumbai. PW-14 K. Satishkumar also stated that he is
serving as an Assistant System Engineer in Tata Consultancy.
According to him, once in February 2007, at noon time, accused
came to his office at Bandra-Kurla Complex and he was
introduced by Kaushambi as her friend. PW-14 K. Satishkumar
also stated that Kaushambi and accused went to Food Court for
taking lunch and at that time, he was present. Even in cross-
examination, it is brought on record that in the month of April
2007, the accused made phone call to PW-14 K. Satishkumar and
asked him the address of TCS office of Gate-way Park. In cross-
examination, PW-14 K. Satishkumar admitted that he met
Manish in February 2007 at the gate of the office.
71. The accused also produced on record the list of the
hotels in the vicinity of Andheri, Mumbai. Mr. Pasbola, ld.
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Advocate for accused, vehemently submitted that the name of
“Classic Residency Guest House” is not mentioned in the said list.
Having regard to the facts and circumstances, the submission of
Mr. Pasbola, ld. Advocate for accused, that the “Classic
Residency” was not in existence, cannot be accepted, when there
is copy of register produced on record, which goes to show that
hotel is in existence. For what reason, “Classic Residency Guest
House” would prepare the forged copy of register ? Hence, I find
that the evidence of PW-17 Maria Paul does inspire confidence
and it is well collaborated by the documentary evidence Exh.97
and Exh.98. The circumstance is established by the prosecution
that the accused and deceased Kaushambi stayed together in
“Classic Residency Guest House”.
72. Circumstance no.3 - Deceased was last seen in
company of accused in “Hotel Sun .N. Sheel”. The most important
aspect is to be decided i.e. theory of last seen. The prosecution
claims that the deceased and accused were last seen together in
“Sun .N. Sheel Hotel” before the murder of Kaushambi. The
prosecution claims that accused and deceased Kaushambi could
not get accommodation in “Classic Residency Guest House”.
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Therefore, upon being suggested by “Classic Residency”, the
deceased and accused went to “Hotel Sun .N. Sheel”.
73. Regarding the evidence of last seen, the prosecution
has examined PW-5 Raviprakash Singh (Exh.39) - Watchman in
“Sun .N. Sheel Hotel”, PW-6 Jogindar Singh (Exh.45) - Watchman
in “Sun .N. Sheel Hotel”, and PW-11 Ceaser Fernandes (Exh.58) -
Receptionist in “Hotel Sun .N. Sheel”. According to prosecution,
the evidence of PW-11 Ceaser Fernandes and PW-17 Maria Paul,
Receptionist in “Classic Residency”, assumed importance. The
above witnesses are examined on the last seen theory.
74. PW-5 Raviprakash Singh is the Watchman in “Sun .N.
Sheel Hotel”. According to him, on 12.05.2007, he was on duty
from 08.00 p.m. to 08.00 a.m. and at about 07.00 a.m., one girl
and boy came in the hotel in Maruti car. PW-5 Raviprakash
asked PW-6 Jogindar to take them to the reception counter with
their bags. At about 08.00 a.m. the duty of PW-5 Raviprakash
was over, therefore, he went back to his home. On 14.05.2007 at
about 02.30 p.m., Jogindar came to his house and informed him
that murder has taken place in the hotel. PW-5 Raviprakash
then went to the hotel and saw the dead body of the girl in Room
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No.202. He identified the accused being the same person who
had come with the deceased girl on 12.05.2007. His statement
was recorded on 17.05.2007.
75. In cross-examination, PW-5 Raviprakash denied that
on 17.05.2007, the accused was shown to him in police station. In
cross-examination, PW-5 Raviprakash stated that he had seen the
boy on 12.05.2007 for 2 to 4 minutes. He also admitted that the
driver of the car had asked him to take the persons to the
reception counter. PW-5 Raviprakash stated that Jogindar
(PW-6) opened the door of the car and took out their bags from
the car. PW-5 Raviprakash admitted that he did not tell
description of the accused to police at the time of recording his
statement. He did not tell the police while recording his
statement that boy and girl came to hotel in a Maruti car. There
is only an omission of “Maruti car” in the statement. But the fact
of coming to “Hotel Sun .N. Sheel” is corroborated by the
statement of PW-5 Raviprakash before the police. Even the
evidence of PW-5 Raviprakash do corroborate by his statement
that Jogindar lifted the bags upto the reception counter. So if the
cross-examination of PW-5 Raviprakash is looked into, it is
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brought on record that PW-5 Raviprakash had seen the boy i.e.
accused on 12.05.2007 for about 2 - 4 minutes at the time of his
arrival in the hotel. The driver of their car asked PW-5
Raviprakash to take these persons to reception counter. PW-6
Jogindar opened the door and took their bags from the car. So
whatever cross-examination is done regarding PW-5 Raviprakash
had seen that boy, means “the accused”. In cross-examination,
PW-5 Raviprakash stated that it is his guess that the accused
present before the Court is the same person who had been to their
hotel on 12.05.2007 along with the deceased girl.
76. Mr. Pasbola, ld. Advocate for accused, vehemently
argued by giving stress on the word “guess”, that PW-5
Raviprakash is not sure as to whether the accused was the same
person who visited “Sun .N. Sheel Hotel” along with the deceased.
In my opinion, while appreciating the evidence of PW-5
Raviprakash, his entire evidence is to be taken into consideration
and requires appreciation. I find that the evidence of PW-5
Raviprakash appears to be reliable and trustworthy. There is no
reason for PW-5 Raviprakash to depose falsely against the
accused.
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77. PW-6 Jogindar Singh turned hostile and does not
support the prosecution. However, in cross-examination by the ld.
APP, he admitted that on 12.05.2007, at about 07.00 a.m. one
person along with a girl had been to their hotel by “Classic
Residency” and he had reached their luggage near the counter.
Though PW-6 Jogindar does not support the prosecution, that the
person along with girl were accused and deceased, however, he
admitted in cross-examination that one person alongwith a girl
came to their hotel from “Classic Residency” at about 07.00 a.m.
PW-5 Raviprakash also stated that at about 07.00 a.m. on
12.05.2007, one boy and girl came to the hotel.
78. The most important witness is PW-11 Ceaser
Fernandes. He was serving as a Receptionist in Hotel “Sun .N.
Sheel”. On 11.05.2007, he was having duty in third shift i.e. from
11.00 p.m. to 07.00 a.m. He received a phone call from “Classic
Residency Guest House” that a couple wanted room in the hotel.
He informed to the caller that the room is available in “Sun .N.
Sheel Hotel”. At about 07.15 or 07.30 a.m., a couple came to the
hotel and the gent asked whether room is available. PW-11
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Ceaser informed the gent that room is available and also told the
charges Rs.2,000/- per day. PW-11 Ceaser identified the accused
before the Court as the said gent who had asked him about the
room and charges. According to him, the accused paid Rs.2,000/-
and made entry of his name and the name of lady for Room No.
202. The said gent told his name as Mr. and Mrs. Manish Thakur
and also his address and put his signature in the register (Exh.
59). PW-11 Ceaser Fernandes also got filled the Guest
Registration Form from accused. According to him, the original
hotel register and guest registration form were seized by the
police during investigation. The relevant page of the hotel
register is shown to the witness during course of evidence. The
entry in the register is at Exh.59 and at Sr. No.616. According to
him, the said entry is in his handwriting and bears signature of
accused. The entries are at Exh.59. According to PW-11 Ceaser,
Guest Registration Form is also in the handwriting of accused
and bears his signature (Exh.60).
79. Further according to PW-11 Ceaser Fernandes, after
completion of all the formalities, he gave key of Room No.202 to
accused Manish and they went in the room. As the duty of PW-11
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Ceaser was over, he went to his home. On 14.05.2007 at about
01.30 to 02.00 p.m., he received a phone call from hotel that
something wrong happened in the hotel. He immediately came to
the hotel and came to know about the murder of lady in Room No.
202. His statement was recorded on 17.05.2007.
80. PW-11 Ceaser Fernandes is also cross-examined at
length by Mr. Pasbola, the ld. Advocate for accused. According to
PW-11 Ceaser, spot panchanama was prepared in his presence.
He was also interrogated on 14.05.2007 at about 04.30 or 05.00
p.m., however, it appears that his statement was recorded on
17.05.2007.
81. According to PW-11 Ceaser Fernandes, on 15
th
, 16
th
and 17
th
May, 2007, police did not come to the hotel and during
that period, he was in the night duty. It appears that the
statement of PW-11 Ceaser was also recorded on 01.06.2007 when
he produced the hotel register. The said statement dated
01.06.2007 is supplementary statement. There is omission on the
part of PW-11 Ceaser to state in the statement dated 17.05.2007
that he received a call from “Classic Residency” that a couple
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wanted room in the hotel. It appears from the cross-examination
that there is also omission on the part of PW-11 Ceaser to state
before the police that gent asked him whether room is available
and PW-11 Ceaser told him, 'yes'. However, this would not be an
omission because the said fact is stated in statement dated
17.05.2007.
82. Mr. Pasbola, the ld. Advocate for accused, submitted
that evidence of PW-11 Ceaser Fernandes does not inspire
confidence and the entry Exh.59 recorded in the register is not
proved at all. According to ld. Advocate for accused, entry (Exh.
59) in the hotel register is not in handwriting of PW-11 Ceaser
Fernandes and in the handwriting of his reliever. According to ld.
Advocate for accused, the said reliever is not examined by the
prosecution and therefore, the said entry (Exh.59) is not proved at
all. During the cross-examination, the hotel register was shown
to the witness. The entry nos.610 to 615 dated 12.05.2007 are on
page nos.158 and 159 and out of them, entry nos.611 to 615 are in
the handwriting of PW-11 Ceaser Fernandes. The entry nos.616
to 625 on page no.159 and entry nos.634 to 642 on page no.160 are
not in the handwriting of PW-11 Ceaser Fernandes.
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83. It is pertinent to note that the entry no.603 on page no.
158 was also shown to the witness. PW-11 Ceaser Fernandes
unable to tell who was other receptionist in the night of
11.05.2007. The said entry no.603 on page no.158 is not in the
handwriting of PW-11 Ceaser. PW-11 Ceaser stated that as per
entry no.603, Room No.202 was allotted to one Mr. Jabel Nema on
11.05.2007. Further it appears that every after 2 - 3 days, police
used to visit the hotel and check the rooms. There is an
endorsement on Exh.59 (the copy of register) regarding ACP
Bhosale. Witness is re-examined by the ld. APP. PW-11 Ceaser
stated in re-examination that the Room No.202 was allotted to
Jabel Nema on 11.05.2007. A question was asked by the ld. APP
to PW-11 Ceaser as to why Room No.202 was allotted to accused
on 12.05.2007 at about 07.00 a.m. PW-11 Ceaser answered that
on the same night on the request of Mr.Jabel Nema, he was
shifted to Room No.219 and therefore, Room No.202 was allotted
to the accused on 12.05.2007. According to PW-11 Ceaser, the
said change was made in the hotel registration card and in the
computer, but the same was not made in the hotel register.
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84. PW-11 Ceaser Fernandes also stated that sometimes
companies for their employees, on the phone, book the rooms and
subsequently cancel bookings, therefore, some columns are left
blank in the hotel register.
85. PW-11 Ceaser Fernandes also stated in cross-
examination that entry no.616 (recorded in the name of accused)
made in the hotel register is not in his handwriting and it was
made by his reliever on his say. According to PW-11 Ceaser,
inadvertently in his earlier examination-in-chief, he stated that
the entry is in his handwriting.
86. So if the evidence of PW-11 Ceaser Fernandes is looked
into, the entry (Exh.59) is not in his handwriting, but it was in
the handwriting of his reliever, who made the said entry on the
say of PW-11 Ceaser.
87. It is pertinent to note that on 12.05.2007 at about
07.30 a.m. PW-11 Ceaser left the hotel and thereafter he returned
back on duty at 11.00 p.m. Further in examination-in-chief,
PW-11 Ceaser sated that he gave key of Room No.202 to accused
Manish and they went in the room. Even Guest Registration
Form (Exh.60) was filled and signed by the accused.
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88. The ld. APP vehemently submitted that the evidence
of PW-11 Ceaser Fernandes regarding giving key to the accused
and filling the Guest Registration Card (Exh.60) remained
unchallenged. The said evidence is not at all shaken in the cross-
examination. It is not in dispute that Kaushambi was found
murdered in Room No.202. There is also evidence on record to
show that one gent and one girl came to the “Hotel Sun .N. Sheel”
at about 07.00 a.m. on 12.05.2007. PW-5 Raviprakash Singh is
also examined by the prosecution. In his cross-examination, it is
brought on record that he had seen that boy on 12.05.2007 for
about 2 - 4 minutes after arrival in the hotel. PW-5 Raviprakash
also identified the accused being the same person who came along
with the deceased girl. Further in his cross-examination, it is
also brought on record that Jogindar (Watchman) opened the door
of the car and took out their bags from the car. In view of the
cross-examination of PW-5 Raviprakash, the boy who had come to
the hotel means the accused. PW-5 Raviprakash stated that he
had seen that boy on 12.05.2007 for about 2 - 4 minutes, means
the accused, because the question was asked in that context.
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89. PW-11 Ceaser Fernandes gave key of Room No.202 to
the accused. PW-11 Ceaser left the hotel at about 07.30 a.m.
According to him the entry no.616 regarding allotting the Room
No.202 in the name of accused was made by his reliever on his
say. The said evidence is also remained unchallenged as there is
no cross-examination done on behalf of accused. The said
evidence is not at all disturbed in the cross-examination. So in
my opinion, though prosecution has not examined the reliever, it
cannot be said that the entry is not proved at all. The entry (Exh.
59) is proved by the prosecution. Moreover, there was enough
time for PW-11 Ceaser to see the accused and deceased.
According to Mr. Pasbola, ld. Advocate for accused, the said entry
in the register is a fabricated document. I am afraid to accept the
contention of Mr. Pasbola, ld. Advocate for the accused, for the
reason that what was the necessity for “Sun .N. Sheel Hotel” and
PW-11 Ceaser to fabricate the document. PW-11 Ceaser has no
enmity with the accused. The entries in the hotel register are
maintained in day to day business and therefore, are the relevant
entries.
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90. The accused is one of the trainee in Goa for Russian
language. According to Mr. Pasbola, the ld. Advocate for accused,
copy of hotel register (Exh.59) is a fabricated document. In my
opinion, the said contention cannot be accepted because how the
“Hotel Sun .N. Sheel” would know the name of accused unless the
accused visits the hotel and tell his name. The accused was on
training in Goa. The name of the accused, which was reflected in
the hotel register, itself shows that the accused had visited the
hotel, otherwise, the entry would not have made in the name of
accused. Further it is important to note here that the accused is
a resident of “Vidyasagar Park, 1
st
Lane, Paripurkar Road,
Bansdroni, Kolkatta, West Bengal”. The said address is also
reflected in Guest Registration Card (Exh.60). How the hotel
authority could know the address of accused. In my opinion, it is
the accused who had come to the “Hotel Sun .N. Sheel” and the
address mentioned in the Guest Registration Card is mentioned
by the accused himself. Further the arrival time is also
mentioned in the Guest Registration Card as '07.00 a.m.' At that
time, PW-11 Ceaser was very much present on the reception
counter. At about 07.30 a.m., PW-11 Ceaser left the hotel after
giving key of Room No.202 to the accused. So there was sufficient
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opportunity for PW-11 Ceaser to see the accused and lady. PW-11
Ceaser also identified the accused in test identification parade,
which I will discuss later on.
91. Mr. Pasbola, ld. Advocate for accused, submitted that
the signature of the accused Q-1 at the entry Exh.59, Q-2 the
address mentioned in the Guest Registration Card and Q-3
signature of accused (Guest Signature on Guest Registration
Card) are also examined by Mr. J.K. Aher, State Examiner of
Documents CID Crime, Maharasthra State, Mumbai. Exh.202 is
the opinion. The said witness is not examined by the prosecution
as the accused had no objection to exhibit the document. It is
pertinent to note that though the accused has no objection to
exhibit the document, however, the accused never stated that the
said document is admitted by him. So as the said Exhibit 202 is
not admitted by the accused and only it is exhibited, in my
opinion, that will not be helpful to the defence. If the opinion of
Mr.J.K. Aher, State Examiner of Documents is looked into, it
states that “Having carefully examined the Questioned Writings
and Signatures in English in original with the aid of scientific
equipments, I am of the opinion that:-
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I am unable to express any definite opinion as regards the
identity of the writings and signatures in English marked Q-1 to
Q-3 with those on Exh.S-1 to S-18 and A-1 to A-5 for want of
adequate and suitable common text for the scientific expert
examination.”
92. So the State Examiner of Documents is unable to
express his opinion as regards the identity of the handwritings
and signatures in English marked as Q-1 to Q-3 with those on
Exh.S-1 to S-18 and A-1 to A-5 for want of adequate and suitable
common text for the scientific expert examination. S-1 to S-18
are the signatures of the accused and A-1 to A-5 are the address
written from the accused and these A-1 to A-5 and S-1 to S-18
(specimen handwriting of the accused) were examined by the
State Examiner of Documents.
93. So in view of Exh.202, the State Examiner of
Documents is unable to express his definite opinion. He is not
examined as the defence gave no objection to exhibit the
document. Mere giving exhibit will not prove the opinion.
Further the opinion of the State Examiner of Documents is not
conclusive proof of handwriting and signature.
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94. So in view of the evidence of PW-5 Ravishankar, PW-11
Ceaser Fernandes and PW-17 Maria Paul, would clearly
demonstrate that the accused and the deceased had come to the
“Classic Residency Guest House” on 12.05.2007 at about 06.30
a.m. and as no accommodation found in “Classic Residency Guest
House”, they visited the “Hotel Sun .N. Sheel”. There was enough
opportunity for PW-11 Ceaser Fernandes to witness the accused
and the deceased and also key of Room No.202 was handed over
to accused. It has also come in the evidence of PW-17 Maria Paul,
Receptionist in “Classic Residency Guest House”, that on
23.03.2007 and on 06.04.2007, the accused had come with the
deceased. PW-17 Maria Paul also identified the deceased by
visiting the “Hotel Sun .N. Sheel” after the incident. His
statement was immediately recorded on 14.05.2007. Mr. Pasbola,
ld. Advocate for accused, submitted that the statement of PW-11
Ceaser was recorded belatedly, but I am of the opinion that police
were busy in investigation and therefore, recorded the statement
of PW-11 Ceaser on 17.05.2007. It would not create any doubt in
prosecution story. So in view of evidence of above three
witnesses, I am of the opinion that the prosecution has proved
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beyond reasonable doubt that deceased was in company of
accused. The accused and deceased together stayed in the “Hotel
Sun .N. Sheel” on 12.05.2007. Kaushambi was murdered and
found in Room No.202. The said room was allotted to accused
and the deceased. In the case of Mahanand Naik Vs. State
through P.P. High Court, 2013 ALL MR (Cri) 4189, it is held
that “Evidence of last seen - Dead body found after 5 days of
deceased having been with accused - Contention that exact time of
death not established hence theory of last seen would not come into
play - Contention not tenable - Evidence on record establish that
deceased had left home on same day when she was seen with
accused and since then she was missing - Various other
incriminating circumstances also proved against accused -
Therefore, last seen theory established.” In view of the evidence
led on last seen, in our case, last seen theory is established
beyond doubt.
Hence, I answer the said circumstance accordingly.
95. Circumstance no.(iv) - Absence of the accused from the
“Hotel Sun .N. Sheel” after the incident. Mrs. Ghodke, ld. APP
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for the State, also vehemently submitted that the absence of
accused from the “Hotel Sun .N. Sheel” is also relevant
circumstance in the present case. According to the ld. APP, when
the deceased and the accused came together and stayed in Room
No.202 and entry in hotel register is in the name of accused, then
it is for the accused to explain where he had gone. The murder of
Kaushambi had taken place in Room No.202. At that time, the
accused was not present. So burden is on the accused to establish
where was he. Ld. APP for the State relied on the case of Pratap
Nathuji Dhikke Vs. State of Maharashtra, 2011 ALL MR
(Cri) 3172. It is held in the said case that “Conduct of accused -
Conduct can be taken into consideration under S.8 of the Act -
Held, the conduct of an accused soon after the incident plays an
important part in determination of guilt. AIR 1953 Bhopal 1 -
Rel. on.”
96. The ld. APP also relied on the judgment of Hon'ble
Apex Court in case of Sahib Hussain @ Sahib Jan - Appellant
Versus State of Rajasthan - Respondent, delivered on
18.04.2013. Relying on the said authority, it is argued by the ld.
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APP that the important aspect in the present case is the conduct
of the accused. It is argued by the ld. APP that the conduct of the
accused also requires to be seen in the present case. According to
ld. APP, though it may not be a main link in the chain of
circumstances to prove the guilt of the accused, however,
absconding from the scene would establish the guilt of the
accused and rule out hypothesis of innocence. Reliance is placed
on the case of Ramchandra @ Rama Shankar Madane Vs.
The State of Maharashtra, 2013 ALL MR (Cri) 2790. In the
said case, the Hon'ble High Court held that “Evidence Act (1872),
S.106 - Penal Code (1860), S.300 - Burden of proof - Murder case -
Evidence of last seen together - As per S.106 in such case burden is
on accused to explain how deceased sustained injuries - In case
resting on circumstantial evidence if accused fails to offer
reasonable explanation in discharge of burden placed on him, that
itself provides an additional link in chain of circumstances proved
against him.”
97. According to Mrs.Ghodke, ld. APP for the State, the
accused was absconding from Room No.202 where Kaushambi
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was found murdered. Hence, this is a strong circumstance
against the accused, which ruled out hypothesis of innocence.
98. Circumstance no.(v) - Finding of Sando Baniyan of
Southern Navy Command in Room No.202 of “Hotel Sun .N.
Sheel” and finding of chit of INS Garuda in Room No.202 along
with yellow chit showing the mobile number 9323287753 in the
name of Rai, mobile no.9810440903 in the name of Rahul, mobile
no.9820821169 in the name of Vipul. There is also a circumstance
regarding finding of Sando Baniyan of Southern Navy Command
in Room No.202 of “Hotel Sun .N. Sheel” and finding of chit of
INS Garuda in Room No.202 along with yellow chit showing the
mobile number 9323287753 in the name of Rai, mobile no.
9810440903 in the name of Rahul, mobile no.9820821169 in the
name of Vipul (PW-15).
99. It is pertinent to note that Kaushambi was found
murdered in Room No.202 on 14.05.2007. Immediately police had
arrived in Room No.202 upon receipt of information given by
PW-1 Anup Lal. Exh.30 is the spot panchanama drawn on
14.05.2007 at about 16.05 and ended at 20.35 hrs. The period of
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recording of panchanama was more than 4 hrs. The police also
found one blue colour travel bag in the room which was opened
and one white colour gents sando baniyan was found. The word
“SNC” was written on the front portion of baniyan and on the
back side of baniyan the words “SOUTHERN NAVAL
COMMAND” in blue were found written. Further the police
found two chits in the left packet of the bag. On one chit, “INS
GARUDA” was written and it was a time table between
18.04.2005 to 24.04.2005. There was also a yellow colour paper
having mobile no.9323287753 and the name 'Rai' was mentioned.
There was another mobile no.9810440903 written and in front of
it, 'Rahul' was mentioned. 9820821169 was another mobile
number written and in front of it, Vipul (PW-15) was written.
The said chits were taken in possession.
100. The ld. APP for the State submitted that the finding of
Sando baniyan in the name of Southern Naval Command and also
the chit revealing the name INS Garuda would clearly
demonstrate the presence of accused in Room No.202. According
to ld. APP for the State, the accused was working in INS Garuda.
The accused was also attached to Southern Naval Command,
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Kochi. The accused was sent for training of Russian language to
INS Hansa, Goa from INS Garuda. So finding of sando baniyan
and chit of INS Garuda would clearly demonstrate that it is only
related to accused as accused belongs to Navy. Mr. Pasbola, ld.
Advocate for accused, submitted that the accused has no concern
with the sando baniyan as well as INS Garuda chit and no
weightage can be given to sando baniyan and INS Garuda chit.
In cross-examination of the accused, Exh.314, which is
information under Right to Information Act, is produced by the
accused. It appears that the said information under R.T.I. Act
issued on 14.01.2009. It appears that the accused asked what is
the colour of sports of the Indian Navy and its Command.
Accordingly, reply was given by Public Information Office,
Command Met Office, Mumbai. It appears that Navy Blue is the
colour of sports wear of Indian Navy, Dark Blue is the colour of
sports wear of Western Naval Command, Maroon is the colour of
sports wear of Eastern Naval Command and Green is the colour
of Southern Naval Command. It is pertinent to note that in the
room no.202, Sando baniyan having words “Southern Naval
Command” in blue colour were found written. According to
accused, sports wears of Southern Naval Command are in green
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colour. However, there is also mention in the information given
by Exh.314 (a)(iii) that “However, design/patterns on sport wears
may differ in respective Commands and are subject to alteration.
So in view of this, it can be said that earlier the colour of sports
wears of the Southern Naval Command might be blue and it
might have changed afterwards. I am afraid to accept the
submission of Mr. Pasbola, ld. Advocate for the accused. The
court has to deal the evidence meticulously and court has to go to
the roots of the case. Even small factors are important piece of
evidence in the case like murder. Finding of sando baniyan
showing the name of Southern Naval Command cannot be found
in market as a regular sando baniyan. It shows the special mark
which is a Southern Naval Command. Even ordinary man would
not find daily time table of Navy like INS Garuda. So these two
factors are very important in the present case, which are going
against the accused. The said articles also demonstrate about
presence of accused in Room No.202. So this is a strong
circumstance against the accused. Hence, I answer the
circumstance accordingly.
101. Circumstance no.(vi) - Finger print found on the water
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glass in Room No.202 matched with the left ring finger print of
the accused. According to prosecution, presence of accused in
Room No.202 of “Hotel Sun .N. Sheel” stands proved in view of
fingerprint found on the water glass in Room No.202.
Panchanama Exh.30 was drawn on 14.05.2007 when the dead
body of Kaushambi was found in Room No.202. PW-26 first IO
Lagvankar along with the police staff arrived on the spot. Spot
panchanama was drawn in presence of PW-2 Pranila Parulekar
(Exh.29). PW-2 Pranila stated in her evidence that the
fingerprint expert and dog squad came on the spot. Police
sprinkled powder on the glass and bottle kept on the table. PW-3
Raju Thakur is also a witness of the spot panchanama. As per his
version, police seized various articles including bislery bottle,
glass, etc. Fingerprint expert had been on the spot and they
collected fingerprints from the glass. One photographer was also
called, who took the photographs of the scene of offence. In cross-
examination, PW-3 Raju Thakur stated that after about half an
hour of he visiting the room, fingerprint expert had come there
and they stayed there for about 45 to 60 minutes. Fingerprint
experts had sprinkled powder at 2-3 places in the room i.e. on the
glass, table and the drawer of dressing table. According to him,
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he does not remember how many photographs were taken by
fingerprint experts. Fingerprints were not developed in his
presence. 3 tapes of fingerprints were removed in his presence
and shown to him having one impression each. The police seized
the fingerprints tapes by putting it in the envelop and sealing
them and obtained his signature on the label. According to him,
photographs of the fingerprints were not taken in his presence.
According to him, Oxirich company bottle was found in the room.
He stated that bottle which was seized from the spot, was not of
bisleri company. Further he stated that there was no special
identification mark on the glass which was seized from the spot.
He stated that if the glass Art.K is mixed with similar type of
other glasses, he would not be able to identify it. Mr. Pasbola, ld.
Advocate for the accused, submitted that PW-3 Raju Thakur
acted as panch witness in police cases and therefore, he is not
reliable witness. PW-3 Raju Thakur admitted that he acted as
panch in other cases of M.I.D.C. Police Station. In my opinion,
though PW-3 Raju Thakur acted as panch in another case, his
version before the Court cannot be brushed aside. The court has
to see whether the evidence of PW-3 Raju Thakur inspires
confidence or not. Mr. Pasbola, ld. Advocate for accused,
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vehemently submitted that the IO did not utter any word
regarding taking fingerprint in Room No.202. The ld. Advocate
for accused further submitted that in cases where fingerprint
evidence is brought by the prosecution, the Court has to
appreciate the evidence of fingerprint expert with care and
caution.
102. PW-20 Rajendra Kulkarni is fingerprint expert
examined by the prosecution. As per his version, he has passed
fingerprints examination in 1986 from All India Board
Examination for Fingerprint Experts, Calcutta. Since April 1983,
he is serving as a fingerprint expert at Pune. On 14.05.2007, he
was posted at North Control, Kandivali. He received a message
from MIDC Police Station that he is required in C.R. No.251/07.
103. Accordingly, PW-20 Kulkarni along with photographer
Shri Ghadge (not examined by the prosecution) went to “Sun .N.
Sheel Hotel”, Room No.202, where he met with PW-26 IO
Lagvankar on 14.05.2007. PW-20 Kulkarni then inspected some
articles in the room i.e. glass, water, plastic water bottle, one
weapon of iron found in the room. PW-20 Kulkarni noticed
bloodstains on the wall.
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104. After inspection, PW-20 Rajendra Kulkarni found two
fingerprints on the glass and also on the plastic bottle of Oxirich
company. Photographs of fingerprints were taken. PW-20
Kulkarni then prepared a report of scene of offence (Exh.106).
105. On 05.07.2007, PW-20 Kulkarni received photographs
of fingerprints of glass (Exh.107) with negatives. On 05.06.2007
he had received photographs of specimen fingerprints of the
accused (Exh.108). Specimen fingerprints of the accused are at
Exh.109.
106. PW-20 Kulkarni deposed in the evidence that during
examination, he compared three chance prints with specimen
fingerprint of accused and he found that one chance print, which
was developed on drinking glass water, is identical with left ring
fingerprint marked as A/1 on the specimen fingerprint slip.
According to him, other two chance prints were found unfit for
comparison. Accordingly, he prepared report and submitted to
the Director/Superintendent of Police, Fingerprints, Mumbai. It
is at Exh.110. The Superintendent of Police directed to convey the
said report to Sr. P.I., M.I.D.C. Police Station. Copy of letter is at
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Exh.111. Forwarding letter (Exh.112) by which the specimen
fingerprints of the accused sent to the fingerprint expert
department is placed on record. PW-20 Kulkarni also identified
the glass from which fingerprints were collected which is at
Art.K. He is also cross-examined at length by the ld. Advocate
for the accused. In the cross-examination, PW-20 Kulkarni stated
that he is holding the post of the rank of P.I. He did B.Sc. in
Statistic subject from Pune University. He has undergone the
fingerprints training with his superiors. He also appeared in
departmental examination after one year and after 3 years, he
had appeared in All India Fingerprint Examination. At the time
of joining, he was appointed as a Searcher.
107. PW-20 Kulkarni admits that any report prepared by
any expert is to be circulated to all the fingerprint experts for
their approval and finally it is put up before the officer of the
rank of Superintendent of Police and finally the opinion comes
under his (Superintendent's) signature. PW-20 Kulkarni received
specimen fingerprints (Exh.109) on 05.06.2007 and chance
fingerprint on 05.07.2007. He admitted that the photographs
(Exh.107, 108) do not bear signature of photographer.
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108. In cross-examination, PW-20 Kulkarni stated that
direct photographs were taken with the chance prints from the
glass and the bottom. He admitted that there are numerous
edges in the fingerprints. The length, size and angle forms a
particular pattern of fingerprint and these patterns are divided
into 4 general categories i.e. arches, loops, wholes and composites.
He admitted that loops are of 2 types i.e. ulnar (left to right) and
readier (right to left). He also admitted that loops as the name
suggest a curve bending backward. In loops there are one delta
and one core. He admitted that delta and core there is fix point.
109. PW-20 Kulkarni also admitted that Exh.108 is a
photograph of left fingerprint specimen. In this fingerprint, the
loops are prominent and they are right to left, however, they are
of left hand, therefore, they are ulnar loops. He admitted that he
has not marked delta and core on Exh.108. In Exh.108, the points
1, 2, 3, 4, 5 and 6 are marks of ridges. He also admitted that his
opinion is on the basis of bifurcation of these ridges. While
comparison, he has not considered i.e. arches, wholes and
composites. Bifurcation means splitting of one ridge into two
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ridges. PW-20 Kulkarni also admitted that when any person
handles a glass, his thumb, ring finger and little finger comes in
contact with it. He admitted that on the glass he has taken two
chance prints and one on the Oxirich company bottle. He also
admitted that after seeing a chance print, one cannot say that it
is of which finger.
110. PW-20 Kulkarni further stated that the comparison is
always done by manually, first fingerprint experts see the pattern
of chance print and amongst the fingerprint pattern, they select
the similar pattern of chance print. He also stated that if the
ridge characteristic are less than 8, then those fingerprints are
discarded as unfit for comparison. According to him, as per his
office manual, there should be minimum 8 characteristics for
comparison.
111. PW-20 Kulkarni admitted that on fingerprints of 106
and 108, he found 8 similarities. After seeing chance print,
fingerprint experts try to determine peculiar ridge characteristic
and then try to see which characteristics are similar. According
to him, what kind of characteristic is to be taken is the decision of
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fingerprint expert. The chance print and fingerprint is always
having different clarity and completeness. He admitted that Exh.
107 was not complete and clear.
112. PW-20 Kulkarni further admitted that in Exh.108,
bifurcation of point nos.3 and 6 to 8 are from right to left and 1
and 2 is in upward direction. He denied that in Exh.107, the
bifurcation of ridges of point nos.1, 2, 4 and 5 are not clear and
complete. He denied that in point no.5 of Exh.107, there is break
at the bifurcation. He admitted that in Exh.108, the bifurcation
is continuous. The line which is going from point 5 in Exh.108,
below that line there is leg type pattern. He admitted that
similarities must be in same ridges and for that purpose expert
has to count the number of ridges. According to him, it is not
necessary that to find number of ridges, expert has to determine
the cores. According to him, they first mark the first ridge
characteristic and then start counting the ridge marks from
clockwise or anti-clockwise.
113. PW-20 Kulkarni denied that his report is scientifically
incorrect.
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114. So from the evidence of PW-20 Rajendra Kulkarni, it
reveals that he has passed fingerprints examination in 1986 from
All India Board Examination for Fingerprint Experts, Calcutta.
He is having long standing experience since 1983 as fingerprint
expert. Upon inspecting, he found two fingerprints on the glass
and also on the plastic bottle of Oxirich company. He also
submitted his report (Exh.106) regarding scene of offence. He
also examined bloodstains on wall and iron weapon, but did not
find fingerprint. Exh.110 is the report of PW-20 Kulkarni
communicated to the fingerprint experts that out of three chance
prints, one chance print marked A developed on the glass of water
is identical with left ring fingerprint marked A-1 of accused
Manish Thakur.
115. Mr. Pasbola, ld. Advocate for the accused, vehemently
submitted that the fingerprint evidence cannot be read in
evidence as there is contravention of Sec.5 of the Identification of
Prisoners Act, 1920. According to Mr. Pasbola, ld. Advocate for
the accused, the IO did not obtain the order from the Magistrate
u/s.5 of the Identification of Prisoners Act, 1920 for taking
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fingerprint of the accused. Hence, IO committed breach of Sec.5
of Identification of Prisoners Act, 1920 and thus, fingerprint
evidence cannot be read in evidence.
116. Mr. Pasbola, ld. Advocate for the accused, also
vehemently submitted that in what manner and how fingerprints
were taken is not at all established by the prosecution. Further it
is submitted that the photographer who had taken the
photographs of the articles is also not examined by the
prosecution. Further report submitted by PW-20 Kulkarni on
14.05.2007 regarding scene of offence and noticing fingerprints on
glass and bottle were not shown to panchas. No signatures of
panchas were obtained on the said report. Further there is no
evidence who has developed the fingerprints. According to Mr.
Pasbola, ld. Advocate for the accused, evidence laid down by the
prosecution so far as fingerprint is unreliable. Further on which
glass, the fingerprints were found is also not marked and
therefore, the evidence is unreliable. The photographer Ghadge
is not examined by the prosecution. Missing links are in the
evidence of prosecution and thereby fingerprint evidence is not
reliable.
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117. Mr. Pasbola, ld. Advocate for accused, also relied on
the case of Musheer Khan @ Badshah Khan & Anr. Vs. State
of M.P., 2010 ALL MR (Cri) 933 (S.C.). Relying on the said
authority, it is submitted that evidence of fingerprint expert falls
under the category of expert evidence under Sec.45 of the
Evidence Act and therefore, evidence of finger print expert is not
substantive evidence, but can only be used for corroboration.
In the said case, the Hon'ble Apex Court has held as
under:-
“42. According to the finger print expert (PW-23) 'C'
was found on the right side of the rear mudguard of the scooter
and 'F' was found on the side glass of the Matiz car.
43. Before this Court can appreciate the relevance of
those prints, the Court has to look to the substantive evidence on
record. It is nowhere alleged by the prosecution that there was any
altercation between the deceased and the accused persons at the
scene of occurrence. There is no whisper of any evidence that
accused persons had any physical contact with the deceased or
chased the deceased or dragged the deceased out of the car.
44. The evidence is only of hearing shots of fire arm
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and the further evidence is that the deceased was fired from a
point blank range and he immediately fell down and in such a
way as his body was half inside the car and half outside the same.
Therefore, there is no prosecution evidence to the effect that A-4
and A-5 had any occasion to touch the car and that too with the
ring finger. It is obvious that the accused, being hired criminals,
according to the prosecution, must be busy in escaping from the
scene of occurrence after the deceased had been shot from the point
blank range and immediately the deceased fell down. There is no
evidence of the deceased running away from his assailants or
offering any resistance. Having regard to this state of evidence the
evidence of finger print on the car ceases to have any relevance.”
118. There is no dispute regarding the proposition that the
evidence of fingerprint expert is not substantive evidence but can
only be used for corroboration. However, the facts of the cited
case are not applicable to our case in hand. In our case in hand,
presence of accused is established in Room No.202. It is pertinent
to note that accused examined himself as DW-6. He admitted
that when he was in police custody, on 18.05.2007, the police had
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obtained prints of his finger for examination with examination of
some glasses and some papers. The accused u/s.313 of the Cr.P.C.
also admitted that his fingerprint samples were obtained by the
I.O. for comparison with the fingerprint detected on the articles
examined on spot by PW-20 Rajendra. So in our case, accused
admitted about taking his fingerprints. The fingerprints were
found on the glass in hotel on 14.05.2007. The chance print
marked on the glass is identical with left ring finger print of the
accused found by expert PW-20 Rajendra Kulkarni. When
accused admitted u/s.313 of the Cr.P.C. and in his cross-
examination about taking his fingerprints by the IO, it will not
create any doubt so far as taking fingerprints of accused. I find
that the facts cited in the case of Musheer Khan @ Badshah
Khan (cited supra) are not applicable to the facts of the present
case.
119. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of Mohd. Aman, Babu Khan Versus State of
Rajasthan, LAWS (SC)-1997-5-58. In the said case, the accused
Mohd. Aman was convicted. His fingerprints were found on a
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brass jug in the house of the deceased. The brass jug and other
articles were sealed and seized on 14.04.1983 and forwarded to
the Fingerprint Bureau five days after. On 20.04.1983 the
Bureau sent the articles back after taking photographs of the
chance prints found on the jug and three other articles. Mohd.
Aman was arrested on 20.04.1983. His specimen finger-prints
were taken by H.C. Ramji Ram (PW-24) and forwarded to the
Bureau on 24.05.1983. As the prints were not clear, the same
were returned by the Bureau asking for better prints. Again
specimen fingerprints were taken on 20.06.1983 and sent to the
Bureau. These prints were also sent back and for the third time
prints of Mohd. Aman were taken and sent to the Bureau on
30.06.1983. The Bureau gave its report (Exh.115) with the
opinion that the chance fingerprints found on the brass jug were
similar to and identical with his specimen finger-prints. The
Hon'ble Apex Court held that they noticed a glaring missing link,
in that, the prosecution has failed to establish that the seized
articles were not - or could not be - tampered with before it
reached the Bureau for examination. Though evidence was led to
prove that after seizure the articles were packaged and then
sealed, no evidence was led to indicate what was the mark given
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in the seals and whether the Bureau received the packages with
the marked seals intact. Further it is also observed that the
articles were kept in the police station for five days without any
justifiable reason. The IO admitted that the seal, mark of which
was put on the articles, was with him since the time of seizure
and there was overwriting as regards the date of its
writing/despatch of forwarding letter. Further it was also
observed that the fingerprints which were taken on number of
occasion were never taken before or under the order of a
Magistrate in accordance with Section 5 of the Identification of
Prisoners Act. The Hon'ble Apex Court observed that u/s.4 of the
Identification of Prisoners Act, the police is competent to take
finger-prints of the accused, but to dispel any suspicion as to its
bonafides or to eliminate the possibility of fabrication of evidence
it was eminently desirable that they were taken before or under
the order of a Magistrate. Further brass jug, which was
examined by the Bureau, was not produced and exhibited during
trial. Hence, the conviction of Mohd. Aman was not sustainable.
120. In our case in hand, the fingerprint expert PW-20
Rajendra Kulkarni identified the glass (Art.K) before the Court
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and that is the same which he had examined. Further the
accused admitted that his fingerprints were taken by the IO and
therefore, in such case, there is no question of fabrication of
evidence. Hence, the facts cited in the case of Mohd. Aman
(cited supra), are not applicable to our case in hand.
121. Reliance can be placed on the case of Kalicharan
Mansaram @ Maniram Snaziand & Others Versus The
State of Maharashtra, 1986(3) Bom. C.R. 540. In the said
case, the Hon'ble Court held as under:-
“33. Mrs. Bhonsale tried to raise a basic objection to
the finger print evidence in this case. Relying on the decision in
(Mohan v. State of Uttar Pradesh), Cr. Law Reports (S.C.) 1975
Vol.II, p.614. Mrs. Bhonsale urged that the specimen finger prints
of accused Nos.2 to 5 were not taken before, or under the order of a
Magistrate and, as such, the whole procedure followed for
comparing the finger prints is illegal, being in contravention of
Section 5 of the Identification of Prisoners Act. We are not able to
accept this contention because section 5 of the Act is not applicable
when the finger impression of a person, who has been arrested in
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connection with an offence punishable with rigorous
imprisonment for a term of one year or upwards is to be obtained.
The Police Officer investigating such offence is empowered by
virtue of section 4 of the said enactment to compel such a person to
give his finger prints and allow his impressions to be taken in an
appropriate manner.”
122. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of Mahmood Versus State of U.P., 1976 Supreme
Court Cases (Cri) 72. In the said case, the trial Court
disbelieved the evidence of the witnesses, but found that the
presence of the fingerprints of the appellant on the handle of the
gandasa was a circumstance which by itself was sufficient to
show that the murder had been committed by the appellant. The
accused was convicted and in appeal, the Hon'ble High Court
affirmed the findings of the trial Court. The matter was carried
to the Hon'ble Apex Court. The Hon'ble Apex Court observed
that there are some suspicious circumstances. The complainant
admitted in cross-examination that when he first saw the
gandasa lying near the dead body at the scene of occurrence, its
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wooden handle was dirty, but when the weapon was shown to the
witness in court, the wooden part of its handle was clean and the
rest dirty. The inference is that somebody might have cleaned the
wooden handle and thereafter got the fingerprints of the
appellant on it. Cleaning would be necessary to obtain distinct
and decipherable finger impressions. Further the version of the
appellant was that he was arrested by the police and was kept in
the lock-up of the police station for the night and on the following
day at about noon, the Sub-Inspector bandaged the appellant's
eyes, applied some fluid on his fingers, then made him hold some
object and forcibly obtained his fingerprints on it. The appellant
sent two petitions through the jailor addressed to the District
Magistrate and Superintendent of Police, Saharanpur,
complaining how his fingerprints were forcibly taken by the
police.
123. I have gone through cited case law and with due
respect, in my opinion, the facts of the cited case are not
applicable to the case in hand. In our case in hand, the accused
never complained that the IO forcibly obtained his fingerprints on
the glass or he was asked to handle the glass, etc. On the
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contrary, the accused made no complaint about taking his
fingerprints.
124. Mr. Pasbola, ld. Advocate for the accused, relied on the
case of State of Uttar Pradesh v. Ram Babu Misra, AIR 1980
SUPREME COURT 791. It is held that “Court cannot take
specimen writings at stage of investigation”. The ld. Advocate for
the accused also relied on the case of Sukhvinder Singh and
Others Versus State of Punjab, (1994) 5 Supreme Court
Cases 152. In this case, the specimen writings of the appellant
were taken under the directions of Tehsildar-Executive
Magistrate. No enquiry or trial was pending in his court. The
direction given by the Tehsildar-Executive Magistrate to the
accused to give his specimen writing was clearly unwarranted
and not contemplated or envisaged by Sec.73 of the Evidence Act.
With due respect, I find that the facts of the cited case are not
applicable to the facts of the case in hand.
125. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of Kishorilal s/o Fulchand Baraskar v/s. State of
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Maharashtra through Police Station Officer, (2007) 109
BOM.L.R. 2363. In the said case, the accused was arrested on
17.01.2001 and then he gave the memorandum u/s.27, seizure
panchanama Exh.45, seizure of silver necklace Art.12, seizure of
register and receipt books vide Exh.46 was recorded and
specimen thumb impression and thumb impression in purchase
register at sr. no.162 were forwarded to finger print bureau.
PW-15 has not deposed as to how and when the specimen
impressions were obtained from appellant by him. It is held that
the perusal of above evidence does not conclusively establish that
it is appellant/ accused whose thumb impression is appearing in
the purchase register at sr. no.162. Seizure of register itself
become doubtful. It is held that there is absolutely no evidence to
connect said specimen impression with present appellant. The
mode and manner of procuring specimen is not stated by PW-15
PI Ajabrao Gawande. In his statement u/s.313 of the Cr.P.C., the
appellant has denied that any thumb impression was made by
him in purchase register. He has denied all memorandum of
admissions allegedly made by him under Section 27 and even
alleged recoveries in pursuance thereof. He denied that he
pledged or sold any necklace of PW-13. This evidence in relation
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to finger print needs to be appreciated in this background. The
evidence of expert also does not mention any reasons for the
conclusions reached and hence, defence could not effectively cross-
examine him. It is held that specimen impressions obtained by
PW-15 ought to have been independently proved by prosecution by
pointing out which impression is of which hand or finger.
Prosecution has only proved fact of forwarding alleged specimen
impression sheets but has failed to establish that said specimen
are of appellant before us. It is held that in absence of this
evidence connecting the specimen with accused/appellant, the
report of finger print expert does not assist the prosecution in any
way. I have also gone through the cited case law and with due
respect, I find that the facts of the cited case are not applicable to
the case in hand.
126. PW-20 Rajendra Kulkarni identified the glass (Art.K)
from which fingerprint was collected. In the report (Exh.111), he
also stated that one chance print developed on drinking glass
water is identical with left ring fingerprint marked as A/1 of the
accused.
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127. Mr. Pasbola, ld. Advocate for the accused, relied on the
case of Himachal Pradesh Administration Versus Shri Om
Prakash, 1972 Supreme Court Cases (Cri.) 88. In the said
case, it is observed that “the report regarding the finger print is
that of the Director of the Finger Print Bureau which under
Section 510, Criminal Procedure Code can be used as evidence in
any enquiry or trial without examining the person who gave the
report just in the same way as the report of the Chemical
Examiners or of the Chief Inspector of Explosives is evidence.
Under sub-section (2), however the Court may, if it thinks fit, on
the application of the prosecution or the accused, summon and
examine any such person as to the subject matter of his report.
128. In the case in hand, the fingerprint expert PW-20
Rajendra Kulkarni is examined by the prosecution. He was
present on the spot immediately when the dead body of the
Kaushambi Layek was noticed in Room No.202. Even PW-3 Raju
Thakur also deposed that fingerprint expert had been on the spot
and they collected fingerprints from the glass. In panchanama
(Exh.30), there is mention about presence of fingerprint expert on
the spot. Even though IO Lagvankar did not state in his
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evidence, I find that on that ground, the prosecution case will not
be vitiated. Further the fingerprint examination is exact science
and does not admit of any mistake or doubt. It is held in the case
of Jaspal Singh vs. State of Punjab, AIR 1979 SC 1708, that
“Learned Counsel for the appellants also relied on the evidence of
Dr. Mohinder Partap PW-1, who has stated that the deceased had
reached the hospital on 4.8.71 at 2 a.m. Although the injured was
speaking same thing his statement could not be recorded. On the
other hand, the witness recorded the statement of the mother Tej
Kaur who seems to have given a different version and suggested
that her son Bhupinder Singh deceased had an injury on his
abdomen which was caused by the falling of a bag containing
wheat on his stomach. The thumb impression of Tej Kaur was
sent to the expert who was of the opinion that this could not be the
thumb impression of Tej Kaur. The science of identifying thumb
impression is an exact science and does not admit of any mistake
or doubt. The report of Dr. K.S. Puri clearly demonstrates that the
thumb impression on the statement Exh.P B was not that of Tej
Kaur but was of some other woman who appears to have falsely
represented to the Doctor that she was the mother of the deceased.
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This is supported not only by the fact that the thumb impression of
Tej Kaur on the statement of P.B was forged but also by the
categorical statement of PW-6 wherein she denied having made
any such statement before the Doctor. The Doctor although
examined as a witness in court was never made to identify Tej
Kaur who was also one of the witnesses, nor was any application
given by the accused that the Dr. should be called upon to identify
Tej Kaur, PW-6 in order to test the validity of the statement that it
was really Tej Kaur who made the statement Exh.P.B. before the
Doctor. In these circumstances, therefore, the evidence of the
Doctor does not appear to be of any assistance to the defence.”
129. Considering the evidence led by the prosecution as to
the fingerprint, I find that the prosecution has proved beyond
doubt the said circumstance that fingerprint found on the glass in
Room No.202 matched with the left ring finger print of the
accused. Hence, I answer the circumstance accordingly.
130. Identification parade of the accused:- The prosecution
claims that after arrest of the accused, the identification parade
was held in Arthur Road Jail on 30.05.2007. PW-4 Jitu Babu
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Singh was a panch witness of identification parade. The
prosecution also claims that PW-5 Raviprakash Singh, Watchman
in “Sun .N. Sheel Hotel” identified the accused in test
identification parade. PW-11 Ceaser Fernandes, Receptionist
working in “Sun .N. Sheel Hotel” and PW-17 Maria Paul,
Receptionist in “Classic Residency Guest House” also identified
the accused. Mr. Pasbola, ld. Advocate for the accused,
vehemently submitted that panch witness Jitu Babu Singh is a
habitual panch appearing on behalf of police and therefore, no
reliance can be placed on such evidence. According to Mr.
Pasbola, ld. Advocate for the accused, PW-6 Jogindar Singh, who
was also a Watchman, turned hostile and he denied that he had
identified the accused in test identification parade.
131. PW-4 Jitu Babu Singh is also a panch witness of the
clothes of deceased which were brought from J.J. Hospital. The
seizure panchanama regarding clothes is at Exh.38. It appears
that Exh.120 is an application moved by the prosecution for
recalling PW-4 Jitu Babu Singh as the Executive Magistrate Mr.
Waman Sapre, who held identification parade, was expired.
Accordingly, PW-4 Jitu Singh was re-examined. As per his
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version, he along with another panch witness Piyush went in the
jail premises. The Special Executive Magistrate then demanded
six dummies from the Jail Superintendent. Thereafter SEO
noted down the names of dummy persons and stood the accused
along with dummies. As per version of PW-4 Jitu Singh,
identifying witnesses identified the accused. Further as per his
version, one by one all identifying witnesses were brought and
they identified the accused. Then T.I, parade panchanama was
prepared by SEO and signatures of PW-4 Jitu Singh and Piyush
were obtained on it. Exh.121 is the test identification parade
panchanama. PW-4 Jitu Singh also identified the accused in the
court.
132. Mr. Pasbola, ld. Advocate for the accused, vehemently
submitted that no reliance can be placed on evidence of PW-4 Jitu
Singh as he admitted in cross-examination that in 4-5 cases he
acted as panch witness. Further PW-4 Jitu Singh admitted that
before 30.05.2007 he acted as panch witness in 5 other criminal
cases on the say of IO Pascal D'Souza. He had also given the
evidence in other cases at Sewree Court and City Civil Court.
Further in cross-examination, he admitted that he was not with
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SEO till the end of T.I. parade. All the dummies were of different
height, weight and complexion. One sketch was shown to the
witness and the witness stated that sketch is not of the T.I.
parade. According to him, test identification parade room was
closed from three sides.
133. The prosecution has also examined PW-5 Raviprakash
Singh on the identification parade. It appears that on 12.05.2007
he was present in the Hotel till 08.00 a.m. At about 07.00 a.m.,
according to him, one girl and boy came to the hotel and the
watchman Jogindar had taken them to reception counter.
According to him, the accused was the same person who had come
to the hotel along with the deceased girl on 12.05.2007. On
30.05.2007, he attended T.I. parade and identified the accused.
134. In cross-examination, PW-5 Raviprakash Singh denied
that accused was shown to witnesses in the police station. He
also stated that he had not seen the witness Jitu Babu Singh and
he does not know any person by name Jitu Babu Singh. He also
stated in cross-examination that the persons who were standing
in a row were of different complex, height, hair, colour and size.
According to him, within a minute, he identified the accused.
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135. Further PW-5 Raviprakash admitted that T.I. parade
was held in a room having shade and net from 3 sides and door on
one side. There was no window in that shade and the light was
coming there from the outside. The persons who were standing in
the row were aged between 18 to 28 years. Further PW-5
Raviprakash also admitted that police did not ask him the
description of the accused at the time of recording his statement.
No photograph of the boy and girl was shown to him. He
admitted that he had seen the photo of the person to whom he
had identified in T.I. parade on newspaper and T.V. His photo
was published on 3
rd
or 4
th
day of the incident on T.V. and
newspaper. PW-5 Raviprakash admitted that he had seen that
boy on 12.05.2007 for about 2 to 4 minutes at the time of his
arrival in the hotel. PW-5 Raviprakash denied that he identified
the accused in T.I. parade because he had seen his photo on T.V.
and in newspaper.
136. Mrs.Ghodke, ld. APP for the State, relied on the order
passed in Criminal Appeal No.435 of 2008 by the Hon'ble Apex
Court on 08.07.2010 Maqbool @ Zubir @ Shahnawaz & Anr.
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Versus State of A.P. In the said case, the Hon'ble Apex Court
held that substantive evidence is the evidence of the witnesses in
the court on oath. Prosecution has examined Raviprakash who
identified the accused in Court. Hence, his evidence would
become substantive evidence.
137. PW-11 Ceaser Fernandes was the Receptionist working
in “Sun .N. Sheel Hotel” and he was present on duty at about
07.00 a.m. on 12.05.2007. The said witness also had given the key
of the Room No.202 to the accused. The Guest Registration Form
was also filled up by the accused in his presence. The said
witness is also witness on the last seen theory, which I already
discussed above in the judgment. This witness was also called on
30.05.2007 for identification purpose. The said witness identified
the accused in presence of SEO Sapre and the panch witnesses.
The supplementary statement of the witness was also recorded.
138. PW-11 Ceaser Fernandes is also cross-examined at
length by the ld. Advocate for the accused. He stated that at
about 10.30 a.m. he reached the jail. He did not meet anybody out
side the jail. PW-5 Raviprakash, PW-6 Jogindar Singh, waiter
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Patil, Pradip Singh and Paul were with PW-11 Ceaser Fernandes.
IO Pascal D'Souza also accompanied with the identifying
witnesses upto the jail. PW-11 Ceaser Fernandes does not
remember whether any entry was made in the register. The IO
did not enter in the jail. PW-11 Ceaser stated that he was at the
place of parade for 5 to 10 minutes and within 1 - 2 minutes, he
identified the accused. He had no talk with the SEO except he
asked PW-11 Ceaser to identify the accused. The sketch was also
shown to the witness, but PW-11 Ceaser did not agree with the
sketch. He denied that the place where parade held was having
brick wall having hight of 2.5 to 3.0 fts. and then wire mesh from
two sides. Exh.62 is the copy of sketch on record. PW-11 Ceaser
also denied that he identified the accused at the instance of the
police and on the basis of photographs seen in the newspaper and
on T.V.
139. PW-17 Maria Paul is also witness on identification
parade. According to him, on 30.05.2007, he was called by the
police at Arthur Road Jail for identification and he identified the
accused before the S.E.O. and his statement was recorded. In
cross-examination, he stated that total 5 to 6 persons went in the
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jail for identification purpose and token numbers were given and
they were asked to sign on the register. He also admitted that
there was no talk in between him and S.E.O. at the place of
parade. Six persons were standing in a row were of different
complexion, hight and size. After identifying the accused, he did
not go to police station. After T.I. parade, his statement was not
recorded. PW-17 Maria Paul denied that in police station the
accused was shown to him and therefore, he identified the
accused in the court. He also denied that there was police raid in
the hotel “Classic Residency” and he was caught along with the
girl.
140. If the evidence on record so far as identification parade
is concerned, it appears that the S.E.O. Mr.Waman Sapre was
expired. PW-4 Jitu Singh, who was witness of panchanama, was
again re-examined. Though PW-4 Jitu Singh is witness in so
many cases appearing on behalf of police and even if for the sake
of argument his evidence is excluded, however, PW-11 Ceaser
Fernandes and PW-17 Maria Paul Chettiar identified the accused.
Both were present at the respective time in their hotels when
accused along with deceased visited the hotel. There is no reason
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to speak false against the accused and there is no enmity between
them and accused. Even there is evidence of PW-5 Raviprakash,
who was working as a Watchman and also had an opportunity to
see the accused and deceased when they came in the hotel on
12.05.2007 at about 07.00 a.m. He also identified the accused.
Even he also identified the dead body of the girl in Room No.202.
So there is no reason to discard the evidence of PW-5
Raviprakash, PW-11 Ceaser Fernandes and PW-17 Maria Paul
Chettiar for identifying the accused in T.I. parade. Even if
evidence of PW-4 Jitu Singh is excluded for sake of argument, still
I find that the evidence of above witnesses can be taken into
consideration. More so PW-5 Raviprakash, PW-11 Ceaser
Fernandes and PW-17 Maria Paul Chettiar were present in the
respective hotels at the time when accused and deceased visited
the hotels. Hence, the prosecution also proved the said
circumstance against the accused.
141. As to circumstance regarding recovery of two country-
made revolvers and cartridges at the instance of accused :- The
prosecution claims that at the instance of the accused, the above
said incriminating articles were recovered. PW-19 Amarjeet
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Yadav is witness on memorandum panchanama (Exh.100) and
seizure panchanama (Exh.100-A). PW-23 Mrutyunjay Tripathi, a
witness serving in Navy, was also present at the time of alleged
recovery. Mr. Pasbola, ld. Advocate for the accused, vehemently
submitted that there is no recovery at all at the instance of the
accused. According to him, the IO Pascal D'Souza planted the
weapons. According to him, there is evidence on record to show
that the IO on 16.05.2007 and 17.05.2007, entered the naval base
and police took rounds of the place of recovery and other area.
Hence, Mr. Pasbola, ld. Advocate for the accused, vehemently
submitted that no reliance can be placed on the alleged recovery
at the instance of the accused. As against this, it is submitted by
Mrs.Ghodke, the ld. APP for the State, that the accused
voluntarily made statement and in pursuance of his statement,
recovery was made. Further according to ld. APP, PW-23
Mrutyunjay Tripathi, the naval person, was present at that time.
Further according to ld. APP, naval police were with the IO and
therefore, the argument raised by the ld. Advocate for the accused
- that the weapons were planted - is devoid of any substance.
According to ld. APP, why I.O. will plant the weapons.
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142. According to PW-19 Amarjeet Yadav, the accused made
voluntary statement before the police in his presence and another
panch on 20.05.2007 that he is ready to show the place where he
has kept the weapon which was used by him in the crime. Exh.
100 is the memorandum panchanama which bears his signature
as well as signatures of another panch and accused.
143. As per version of PW-19 Amarjeet Yadav, the accused
led panchas and police to Goa. They went by Scorpio vehicle and
reached at about 07.00 or 08.00 a.m. at Goa. Police officers then
met with Naval officers and after taking their permission,
entered in the naval area. Further as per the version of PW-19
Amarjeet, Naval police and Goa police were with them. Accused
Manish took panchas and police near 'C' type building where
there was a Mess. There were also quarters adjoining to Mess.
The accused Manish led police and panchas on the first floor of
the Mess where there was open terrace surrounded by 3 feet wall.
According to PW-19 Amarjeet, accused took out a plastic bag from
the beneath tiles (kaul) which was beside one shade. One katta,
one revolver and 4-5 live cartridges were found in that bag. He
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handed over the said bag and articles to police and the police
sealed and seized the same and affixed the label of signature of
PW-19 Amarjeet. Exh.100-A is the seizure panchanama prepared
by the police and signed by PW-19 Amarjeet and other panch.
PW-19 Amarjeet also identified the articles in the Court.
144. Mr. Pasbola, ld. Advocate for the accused, submitted
that PW-19 Amarjeet is a habitual witness on behalf of police.
PW-19 Amarjeet admitted that in so many cases of MIDC Police
Station, he has acted as panch witness. He is also acquainted
with some police officers of MIDC Police Station. Mr. Pasbola, ld.
Advocate for the accused, submitted that in presence of PW-19
Amarjeet, no alleged recovery was made by the police. In cross-
examination, PW-19 Amarjeet stated that the terrace was
admeasuring 12 x 12 fts. There was no staircase to reach on the
terrace. The staircase was from another building to reach on the
terrace. PW-19 Amarjeet was standing at the distance of about
15 to 20 fts. from the terrace. PW-19 Amarjeet stated that some
police men had gone on the terrace and they came back after 25
to 30 minutes and shown him the articles which were seized from
the terrace. So according to ld. Advocate for the accused, if the
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cross-examination of PW-19 Amarjeet is looked into, it cannot be
said that in his presence, the accused had produced the plastic
bag containing the incriminating articles.
145. PW-23 Mrutyunjay Tripathi was working in the
Regulating Office of INS Hansa. It appears that he also had gone
to the place of recovery along with Mumbai police, accused and
panchas. As per his version, his superiors instructed him and one
M.Kamraj to assist Mumbai Police. According to him, all went to
Block No.P/11. According to him, he, Kamraj, police, accused,
panchas went along with accused on the terrace of the Block and
from the terrace, from the side of one sintex water tank, one
polythene bag was seized by the police. In the said polythene bag,
weapons were found. He denied that accused removed tile and
took out polythene bag containing two country-made katta.
146. PW-23 Mrutyunjay declared hostile and cross-
examined by the ld. APP. In cross-examination, he admitted that
accused had removed tile and then he had taken out polythene
bag containing two country-made katta and 6 bullets and the
same were seized by the police with the help of Vasco Police.
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Panchanama (Exh.100-A) was drawn which bears his signature.
PW-23 Mrutyunjay also identified the articles. In cross-
examination on behalf of accused, he further stated that whatever
he had stated in examination-in-chief that polythene bag was
taken out by police, is correct. Mr. Pasbola, ld. Advocate for the
accused, relied on the case of Hari and Ors. Versus State of
M.P., 2009(1) Acquittal 296 (M.P.). Relying on the said
authority, it is argued by Mr. Pasbola, ld. Advocate for the
accused, that inconsistent statement even by such hostile witness,
testimony could not be relied to base conviction. PW-23
Mrutyunjay Tripathi is declared hostile, however, in cross-
examination by APP, he admitted that accused Manish Thakur
had removed tile and then he had taken out polythene bag and in
that bag, two country-made katta and 6 bullets were found which
were seized. In examination-in-chief, he denied that accused
removed tile and took out polythene bag. In cross-examination on
behalf of accused, PW-23 Mrutyunjay admitted that whatever
stated by him in examination-in-chief that polythene bag was
taken out by the police is correct. However, no suggestion was
given to him in cross-examination by the defence that whatever
stated by him in the cross-examination by the ld. APP that
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accused removed tile and taken out polythene bag containing
weapons, was not correct. Hence, in my opinion, the evidence of
PW-23 Mrutyunjay regarding recovery of alleged incriminating
articles at the instance of the accused can be taken into
consideration, even though the said fact is stated by him in the
cross-examination by ld. APP.
147. Mr. Pasbola, ld. Advocate for accused also relied on the
case of Ahmad alias Ahmad Chakri and others v. The State
of Maharashtra, 1994 CRI.L.J. 274. In the said case,
discoveries made after five days though accused were in the
custody of police. Held evidence of discovery was considerably
weakened because of unexplained delay. In our case in hand, on
17.05.2007, accused was arrested. The accused was taken to
Mumbai and thereafter the accused made statement on
20.05.2007. In such circumstances, with due respect, I find that
the facts of the cited case are not applicable to the case in hand.
148. Mr. Pasbola, ld. Advocate for the accused also relied on
the case of Peerappa and Ors. Versus State of Karnataka
and Ors., 2005 SAR (Criminal) 676 Supreme Court. In the
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said case, recovery witnesses stating that they did not go inside
dilapidated house in which accused allegedly pointed out weapons
which police seized. Recovery panch witness did not actually see
accused pointing out to police the hidden weapons. No reliance
could be placed on evidence as to such recovery so as to make it
admissible under Section 27 or Section 8 of Evidence Act. Relying
on the said authority, Mr. Pasbola, ld. Advocate for accused,
submitted that PW-19 Amarjeet though claimed to be a witness
on seizure panchanama, however, according to ld. Advocate for
accused, in his presence, recovery was not effected. According to
defence, the said witness was standing at the distance of about 15
to 20 fts. from the terrace. He has also admitted that some police
men had gone on the terrace and they came back after 25 to 30
minutes and they shown him the articles seized from the terrace.
So from the said evidence, it appears that PW-19 Amarjeet
actually had not seen the accused producing plastic bag
containing the incriminating articles. Even if on this ground and
also on the ground that PW-19 Amarjeet appears to be a habitual
panch witness, still the evidence of PW-23 Mrutyunjay can be
relied though he was turned hostile. Moreover, the evidence of IO
cannot be discarded on the ground that he is a police officer.
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Even if panch witnesses turned hostile, the evidence of IO can be
relied. In our case, PW-23 Mrutyunjay, who belongs to Navy, was
present at the time of alleged recovery at the hands of accused in
presence of PW-28 IO Pascal D'Souza. As per the version of
PW-28 IO Pascal D'Souza, the accused made voluntary statement
on 20.05.2007 in Mumbai to recover the alleged weapons used in
the commission of offence. Then IO along with panchas, accused
and police team left for Vasco, Goa, and on 21.05.2007 at about
07.00 a.m. reached Goa. Further as per version of PW-28 Pascal
D'Souza, they were allowed to enter in the naval base. He then
visited Regulating Officer. The said officer then deputed two
staff members which were PW-23 Mrutyunjay and Kamraj.
According to PW-28 IO Pascal D'Souza, then accused led police
and panchas to 'P' mess and from that place, PW-28 IO D'Souza
and others went to the roof and accused removed manglori tiles
and produced one plastic packet kept below manglori tiles and
handed over to police. The said plastic paper was opened and
there were three folded paper packets. The same were opened
and two country-made revolvers and 6 cartridges were found,
which were seized under the panchanama. Goa police were called
along with the seal for sealing purpose. The paper slips with
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signatures of panchas were also affixed. So the evidence of PW-28
IO Pascal D'Souza does inspire confidence regarding recovery of
alleged articles at the instance of accused. The evidence of PW-28
IO Pascal D'Souza as well as the evidence of PW-23 Mrutyunjay
can be taken into consideration so far as recovery of articles at
the instance of accused is concerned, even if the evidence of
PW-19 Amarjeet is excluded.
149. Mr. Pasbola, ld. Advocate for the accused, further
submitted that the IO Pascal D'Souza had planted the weapons
when the police had taken the rounds on 16.05.2007 and
17.05.2007 of the mess. Ld. Advocate for the accused drawn my
attention to the cross-examination PW-23 Mrutyunjay. PW-23
Mrutyunjay admitted in cross-examination that Mumbai Police
had visited Block-P/11 earlier before visit on 21.05.2007 i.e. the
day when recovery was made. Ld. APP submitted that the naval
police were along with PW-28 IO Pascal D'Souza and in such
situation, it is highly improbable that PW-28 IO Pascal D'Souza
would plant the alleged weapons. PW-19 Amarjeet admitted in
cross-examination of the accused that whole time, the navy police
was with them.
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150. PW-25 Naorem Arun Singh, Commander, INS Hansa,
is also examined by the prosecution. In cross-examination, he
stated that on 16.05.2007, he had first occasion to see Mumbai
police. He had sent his staff at the airport to receive Mumbai
police. Further he admitted that Mumbai police came at INS
Hansa after 1.00 p.m. on 16.05.2007. He also admitted that he
had deputed sailors of Naval police to assist Mumbai police and
they had taken round in INS Hansa. On 16.05.2007, the deputed
sailors briefed him orally and not in writing about the activities of
Mumbai Police. It is highly impossible and improbable that in
presence of Naval police, the IO PW-28 Pascal D'Souza would
plant the weapons beneath the manglori tiles of the roof of the
mess. Therefore, the arguments advanced by Mr. Pasbola, ld.
Advocate for the accused, that the weapons were planted by the
IO cannot be accepted. The ld. Advocate for the accused also
relied on the case of Ron Chayak Vs. State of Goa, 2007 ALL
MR (Cri) 2786. This is a case where the offence was registered
under the Narcotic Drugs and Psychotropic Substances Act
(1985). There is a Government Circular required that
Government employees be taken as panch witnesses. Search
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officer ignoring said Circular and taking along pliable witnesses
who had acted as panel witness on several occasions. Entire raid
rendered doubtful for lack and absence of independent witnesses.
The case in hand is not under the Narcotic Drugs and
Psychotropic Substances Act. PW-19 Amarjeet, who acted as a
panch witness on seizure panchanama, appears to be a witness on
behalf of police in other cases and even if his evidence is excluded
from consideration, still, evidence of PW-23 Mrutyunjay and
PW-28 IO Pascal D'Souza is reliable to be acted on, so far as
recovery at the instance of accused is concerned.
151. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of Sahib Singh Versus State of Punjab, (1996) 11
Supreme Court Cases 685. In the said case, there is recovery of
a revolver and six live cartridges u/s.5 of the Arms Act. There is
failure to join independent witnesses of locality who were
available. Arms and ammunition allegedly recovered from the
accused were not packeted and sealed. Hence, it is held that, “in
such circumstances, accused is entitled to the benefit of doubt.” I
have gone through the said case and find that with due respect,
the facts of the cited case are not applicable to the case in our
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hand. In our case, though the evidence of PW-19 Amarjeet is
excluded from consideration, still, the evidence of PW-23
Mrutyunjay and PW-28 IO Pascal D'Souza can be relied for
proving the recovery of articles at the instance of accused.
152. The prosecution also claims that one big knife was also
found in the drawer of the table in Room No.202. According to
prosecution, the accused also voluntarily stated to show the place
from where the big knife was purchased. The police, panchas and
accused then went to Goa in Tibet Market where the accused
shown the shop of chopper seller. One Babita Ramesh
Madhurkar was present there and she identified the accused and
told that she sold the chopper to accused for Rs.75/-. Accordingly,
statement of Babita Madhurkar was recorded. The said Babita
Madhurkar is not examined by the prosecution. Mr. Pasbola, ld.
Advocate for the accused, submitted that showing the place of
purchase by the accused, does not mean that the big knife was
recovered at the instance of the accused. In the case of
Himachal Pradesh Administration Versus Shri Om
Prakash, 1972 Supreme Court Cases (Cri.) 88, it is held by
the Hon'ble Supreme Court that “ 'Fact' discovered - Explained -
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Does not include Psychological or Mental fact - Discovery of
concealed article is fact discovered - Witness is fact discovered if
incriminating article produced from him - Information explaining
material thing discovered not admissible.” According to Mr.
Pasbola, ld. Advocate for the accused, showing the place of
purchase by the accused is not admissible in evidence and no
reliance can be placed on it. As held in the cited case, “What
makes the information leading to the discovery of the witness
admissible is the discovery from him of the thing sold to him or
hidden or kept with him which the police did not know until the
information was furnished to them by the accused. A witness
cannot be said to be discovered if nothing is to be found or
recovered from him as a consequence of the information furnished
by the accused and the information which disclosed the identity of
the witness will not be admissible.” In our case in hand, nothing
is discovered from the shop of Babita Madhurkar and therefore,
the said evidence is in admissible.
153. Hence, considering the evidence discussed above so far
as recovery of two country-made revolvers (katta) and 2 cartridges
at the instance of accused, I find that the prosecution has proved
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the circumstance about recovery of the articles at the instance of
the accused.
154. Circumstance no.(x) Ballistic Report :- The prosecution
also examined PW-27 Vikas Gite who is ballistic expert. As per
his version, he has undergone training of three months as
Assistant Chemical Analyser. Since 2005 to 2007 he had got
experience as Ballistic expert. On 14.05.2007, his office received a
message from MIDC Police Station and accordingly, he along with
his team members went to “Sun .N. Sheel Hotel”, Andheri (E.), in
Room No.202. There were three bullet injury marks on the dead
body. One injury mark was at the front portion of head, second
injury mark was on the back just below neck and third injury
mark was on the neck. One bullet, which was found to police at
the spot, was showed to PW-27 Vikas Gite and his team, while
process of panchanama was going on.
155. On 19.05.2007, one letter along with sealed sample
bottle was received from Grand Medical College, Mumbai, vide
No.BL-416/07. Exh.154 is the report of analysis carried on
13.08.2007.
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156. On 22.06.2007, three seal packets were received from
Sr. P.I., MIDC Police Station, along with forwarding letter Exh.
155. On 22.06.2007, said three packets were opened. PW-27
Vikas Gite found one single barrel breech loading country-made
handgun in parcel no.1, one single barrel breech loading country-
made handgun in parcel no.2 and three intact KF 8 mm rifle
cartridge, 1 KF 8 mm rifle cartridge having light Indentation, one
intact .38” revolver cartridge having head stamp marking K/F
MK2 64 and one .38” revolver cartridge having indentation cap
and head stamp marking K/F .38” MK2 64 were found in third
parcel.
157. On 10.08.2007, analysis was started and accordingly,
report Exh.156 dated 18.09.2007 was prepared.
158. Report Exh.156 is respect of three sealed packets
received from MIDC Police Station on 22.06.2007. Opinion was
sought in respect of two separate bullets fired vide articles
numbers 1 of BL 416/07 and Exh.17 of BL 516/07 and two country
made hand guns vide Art.1 and 2 of BL 516/07.
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159. As per the opinion of PW-27 Vikas Gite, Exh.1 and
Exh.2 are single barrel breech loading country made handguns in
working conditions. Exhibit 1 is capable of chambering and firing
8 mm rifle cartridges where as Exhibit 2 is capable of chambering
and firing .38” revolver cartridges. Exhibit 1 of BL 416/07 is the
bullet retrieved from the body of deceased vide MLPM No. FMT/
MEB/28/07 dated 15.05.2007 and Exhibit 17 of BL 564/07 (MIDC
Police Station, out ward No.8433/07 dated 22.06.2007) tally
among themselves. 8 mm rifle cartridges test fired from the
country made handgun in Exhibit 1 of present case showing that
the 8 mm rifle bullet in Exhibit 1 of BL 416/07 (retrieved from the
body of deceased) and Exhibit 17 of BL 564/07 have been fired
from the country made handgun in Exhibit 1 of present case.
160. Deformed copper jacketed bullet vide Art.Z-1,
correspondence bullet Exhibit No.1 of BL 416/07 and copper
jacketed bullet vide Art. No.N correspondence bullet Exhibit No.
17 which are identified by PW-27 Vikas Gite before the court were
fired from country made hand gun vide Art.Z-2 correspondence
hand gun Exhibit No.1 of BL 516/07 which are also identified by
PW-27 Vikas Gite.
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161. On 22.06.2007, 26 sealed parcels were received in the
office. Out of them articles Exh.17 and Exh.19 were referred for
analysis. Exh.17 is one cuprojacketed bullet wrapped in paper,
labelled, A-17 also labelled vide B-2515/07 and Exh.19 Kurta (cut)
wrapped in paper, labelled, B-1 also labelled, B-2515/07.
162. According to PW-27 Vikas Gite, the softnose
cuprojacketed bullet in Exh.17 is a fired 8 mm rifle bullet.
Detection of metallic lead and copper around periphery of
encircled shot hole on kurta in Exhibit 19 is consistent with
passage and wipe of copper jacketed bullet. Exh.163 is the report
of the said examination.
163. According to PW-27 Vikas Gite, in the office, matters
from through out Maharashtra are being referred for the purpose
of analysis and therefore, as per serial number articles are being
analysed and therefore, delay is occurred in the present matter.
164. PW-27 Vikas Gite is cross-examined at length by the
ld. Advocate for the accused. PW-27 Vikas Gite joined as an
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Assistant Chemical Analyser in the month of September 2005. In
May 1999, he completed his M.Sc. In the month of September
2005, he was pursuing his PHD as well as he was lecturer during
that period. In November 2007, he had resigned as Assistant C.A.
and joined as a lecturer in school of Chemical Sciences.
165. Since September 2005, PW-27 Vikas Gite was posted
in the Ballistic Department and he had undergone training in
General from his seniors regarding Ballistic and also had under
gone special training as Strace Elemental Analysis of Forensic
Samples. He admitted that he had not undergone any training in
National Institute of Forensic Science and Criminology. In the
initial three months training was given to PW-27 Vikas Gite with
his superior and thereafter in further training of three months
with his superior, he analysed the cases under supervision of his
superior. PW-27 Vikas Gite also stated that during his tenure, he
has published two articles on ballistic subject and out of them,
one was published in the month of October 2006 and second was
published in October 2007. The said articles were related to
bullet comparison and were published in proceeding of National
Conference on forensic science and these Articles were prepared
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with the help of Director and Assistant Director of the
Laboratory. PW-20 Vikas Gite also stated that his Director had
issued certificate in respect of his ballistic training.
166. If the above cross-examination is looked into, it can be
said that PW-27 Vikas Gite published the articles on the ballistic
subject regarding the bullet comparison. Further he has also
undergone training taken from Mr. Misal, Mr. Rokhade and Dr.
Ms. Deshpande. So it can be said that PW-27 Vikas Gite is an
expert regarding ballistic subject.
167. PW-27 Vikas Gite further stated in cross-examination
that in “Sun .N. Sheel Hotel” on 14.05.2007, he did not give any
report to the IO. When PW-27 Vikas Gite visited Room No.202,
police were preparing and drawing the panchanama and police
asked him to see the shot holes on the body.
168. PW-27 Vikas Gite also admitted that first batch of
article was received on 19.05.2007 and second batch of article was
received on 22.06.2007. He also admitted that two country made
hand guns were single shot hand guns. Single shot hand gun
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required to be loaded every time before firing. He admitted that
in respect of country made hand gun, there is no specification
mark, unlike the standard firearms. He denied that matching a
fire bullet always found difficulty in matching bullet. He stated
that both fire bullets sent to him were matched with the country
made handgun. He admitted that Exh.2 did not match the fire
bullets. According to him, three important things are required for
bullet identification, one is the direction and extent of twist of
rifling and third is number of lands and grooves.
169. PW-27 Vikas Gite admitted that in the present case,
there was no cartridge case for comparison. He admitted that two
things were absent i.e. direction and twist of rifling and lands
and grooms. He did not agree that lands and grooms play
important part in imprinting striations on the bullet when it
passes through the barrel. According to him, characteristics
striations and superficial brushing are one and the same. He
stated that there is no specific reason for referring to superficial
brushing marks in case of country made hand gun, but he denied
that they are not prominent as striations and therefore, they are
referred superficial brushing marks. He admitted that striations
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of brushing marks are because of the passage of bullet through
the barrel but not necessary they are always longitudinal. He
admitted that in both cases brushing marks are longitudinal. He
admitted that while comparing striations and longitudinal
brushing, it is necessary to look for number and width between
two marks under the comparison microscope. He stated that by
mounting the test fire bullet and the case bullet side by side, the
width between brushing marks is not measured. Further he
admitted that there is no mention in report (Exh.156) the number
of brushing marks and the width. He did not examine inside the
barrel of Exh.1. He stated that he had fired two test bullets from
Exh.1 and for comparison only one test bullet was utilized.
170. PW-27 Vikas Gite also admitted that one test bullet
was used for comparison with the case bullet. He admitted that
before test firing, the case bullets were not examined under
microscope. He also stated that it is possible independent of test
fire bullets case bullet can be compared and opinion can be given
regarding the fire arm. He admitted that there is no mention in
the report Exh.156 that live cartridges (8 mm rifle cartridges)
could have been chambered in any other weapon. He does not
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agree that it was not possible to chambered .38 cartridges in the 8
mm country made hand gun.
171. PW-27 Vikas Gite also stated that the empties of the
two hand guns were not fell out and remained in the hand gun
after firing i.e. in the chamber which is part of barrel.
172. PW-27 Vikas Gite stated that dimensions mentioned
in column nos.1 to 6 of the worksheet (Exh.165) of Forensic
Science Laboratory Mumbai vide BN No.516/07 in respect of Exh.
1 is centimetres. Dimensions mentioned in the worksheet (Exh.
166 and 167) vide B L Nos.516/07 Exh.3A and BL No.516/07 Exh.
3B respectively dated 10.08.2007 are also in centimetres.
Dimensions even in the worksheet (Exh.168) vide BL No.416/07
Exh.1 dated 13.08.2007 are also in centimetres.
173. PW-27 Vikas Gite admitted that diameter of country
made hand gun Art.'Z-2' of the barrel is not uniform and the
diameter is more at the breech end but at less muzzle end. He
does not agree that considering the specification mentioned in the
worksheets 165 and 166 weapon handgun Art.Z-2 is of under size
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bore. According to him, the said handgun is over size at the
muzzle end. He admitted that if the bullet passes through barrel
which is not in uniform skiding and if the bullet passes through
over size barrel then the same cannot come in continuous contacts
of such barrel. He also admitted that in case of handgun being
country made the in side barrel is rough and unfinished and
therefore, when bullet passes through such barrel there should be
rough marks on the bullet. He does not agree that if the bullet
passes through the over size bore/barrel, the same does not come
in contact to the inner surface of the bore. He denied that he is
not qualified as Forensic Ballistic Expert due to inadequate
training and qualification. He denied that his report is
erroneous.
174. If the examination-in-chief and evidence of ballistic
expert is looked into, nothing is brought on record to disagree
with his evidence. PW-27 Vikas Gite specifically stated in his
evidence that Exh.1 is single barrel breech loading country made
handgun and is capable of chambering and firing 8 mm rifle
cartridges. Further bullet Exhibit 1 of BL 416/07 retrieved from
the body of deceased fired from the country made hand gun in
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Exh.1 of present case. The said Exh.1 country made katta is
recovered at the instance of accused. So it is established on
record that bullet retrieved from the body of deceased was fired
from the Exh.1 country made katta recovered at the instance of
accused. It was argued by Mr. Pasbola, ld. Advocate for the
accused that the IO has planted the weapons in INS Hansa. This
contention was outedly rejected by this Court while discussing
the above paras of the judgment. How IO would anticipate that
the bullet retrieved from the body of the deceased was fired from
the revolver like Exh.1 prior to receiving the C.A. report. Hence,
in this situation, the contention raised by the defence that the IO
planted the weapons in INS Hansa is devoid of any substance and
merit. Hence, having regard to the evidence of PW-27 Vikas Gite,
I find that the prosecution established that bullet retrieved from
the body of the deceased was fired from the Exh.1 i.e. country
made revolver, which was recovered at the instance of accused
from INS Hansa. Hence, this circumstance is also established
beyond reasonable doubt.
175. Circumstance no.(ix) Recovery of mobile of the
deceased and broken sim card:- The prosecution claims that one
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Nokia mobile was also recovered at the instance of accused from
one Mr. Gadgil, friend of the accused. The said Gadgil was also
working in INS Hansa, Goa. Exh.56 is the memorandum
panchanama. Prosecution also claims that Exh.56 is the
memorandum panchanama of the accused signed by PW-10 Mario
Chettiar and Kisan Baban Pawar. It is alleged by the prosecution
that the mobile of the deceased was taken by the accused after
the alleged incident. The accused then led IO Pascal D'Souza,
panchas and police towards INS Hansa, Goa. The Investigating
Officer then obtained entry pass from one Narayan, in charge
I.N.S. Then Mr. Narayan called Gadgil as per instructions of the
accused. One Nokia mobile and 3-4 phone bills in the name of
deceased were produced by Gadgil which came to be seized under
panchanama Exh.56-A.
176. Further accused also led the police to back potion of
P-11 - D.O. mess. There was a safety tank and accused produced
broken sim card kept on the iron cover of the tank. PW-10 Mario
Chettiar also identified the mobile hand set, sim card and 3-4
phone bills.
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177. Mr. Pabola, ld. Advocate for the accused, submitted
that PW-10 Mario Chettiar is highly interested witness and also
having close intimacy with the IO. He admitted that he used to
go with Pascal D'Souza for picnic and parties. Mr. Pasbola, ld.
Advocate for the accused, submitted that no reliance can be
placed on the evidence of PW-10 Mario Chettiar being interested
witness. PW-10 Mario Chettiar also admitted that his signature
was never obtained on the bills which were produced by Gadgil.
The ld. Advocate for the accused also submitted that the
prosecution has not examined Gadgil to show that Nokia mobile
and phone bills were produced by him. Exh.201 is the gate pass
for confiscated item Nokia mobile. The said gate pass is signed by
Naorem Arun Singh (PW-25), IO Pascal D'Souza and D.
Sreenivas, Commander, Executive Officer, for Commanding
Officer. It appears that there is mention in the gate pass that one
Nokia mobile model no.6101 type RM-76 CE 168,
56661/00/015705/0 and phone bills for the months of November
2006, December 2006, January 2007 and February 2007
recovered from Gadgil. The above items were handed over to
D'Souza Pascal, Police Inspector, MIDC Police Station, Andheri,
Mumbai.
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178. The IO PW-28 Pascal D'Souza also deposed that at the
instance of accused, mobile model no.6101 silver and black colour
and telephone bills in the name of victim Kaushambi were
recovered from Gadgil. Further at the instance of accused, one
sim card broken in two pieces was also recovered by the side of
drainage under panchanama Exh.56-A. However, as per the
panchanama Exh.56-A, the broken sim card was found kept on
iron cover of the safety tank. However, as per the version of
PW-28, the broken piece of sim card was recovered by the side of
drainage near P-11 room. So there appears to be discrepancy as
regards the seizure of sim card.
179. The prosecution has also examined PW-16 Anil Gala.
As per his version, he had sold mobile handset Nokia-6101 to
customer and issued receipt. The said receipt is marked as Exh.
81. The said mobile was sold on 15.01.2006. He denied that Exh.
81 is a fabricated document and it was prepared at the instance of
the police. In the said receipt, IME No.35666100 is mentioned,
which is also mentioned in gate pass (Exh.138).
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180. U/s. 313 of the Cr.P.C., question was asked to the
accused regarding the mobile, phone bills of Kaushambi. The
accused only denied stating that nothing recovered at his
instance. The accused failed to explain as to how the mobile
phone was found with Mr.Gadgil. In the gate pass (Exh.138), it is
mentioned that the said mobile was produced by Mr. Gadgil. Mr.
Pasbola, ld. Advocate for the accused, submitted that Mr.Gadgil is
not examined by the prosecution. Even though Gadgil is not
examined by prosecution, but evidence of PW-28 PI Pascal
D'Souza can be relied. In gate pass (Exh.138) also, there is
mention of mobile. Hence, the said circumstance is established by
the prosecution. However, evidence regarding recovery of broken
pieces of sim card is not reliable and not to be acted upon. Hence,
I answer the said circumstance accordingly.
181. Mr. Pasbola, ld. Advocate for the accused, also
vehemently argued that there is tampering of evidence.
According to him, in the panchanama, there is reference of bisleri
bottle, however, according to the prosecution, it was water bottle
of Oxyrich company. In cross-examination of PW-26 IO
Lagvankar admitted that it is wrongly mentioned in the
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panchanama (Exh.30) as 'Bisleri bottle'. In my mind, that would
not make any difference. People generally termed mineral water
bottle as 'bisleri bottle'. There are many companies which provide
mineral water under their names.
182. Mr. Pasbola, ld. Advocate for the accused, submitted
that in panchanama Exh.30, pant and T-shirt are marked as
Art.U and Art.V which were alleged to be found in the bag on
14.05.2007. However, according to ld. Advocate for the accused, it
is the case of the prosecution that at the instance of the accused,
after his arrest, one jeans pant and T-shirt were recovered from
INS Hansa. On perusal of Exh.190, it appears that jeans pant
was of blue colour, Moustache company, and half T-shirt was of
ash and yellow colours of EMPORIO-ARMANI company having
no collar. However, it appears that in the evidence, Art.U and
Art.V which are recovered from Room No.202 were shown to the
witness as recovered on 17.05.2007. On perusal of spot
panchanama (Exh.30), there is mention of ash colour jeans full
pant and purple colour half sleeves T-shirt. So in my opinion, the
clothes recovered from Room No.202 on 14.05.2007 are different
than the clothes which are recovered at the instance of the
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accused on 17.05.2007 from INS Hansa. As stated above, the
clothes which are recovered on 14.05.2007 from Room No.202
were shown to the witness as Art.U and Art.V as recovered on
17.05.2007. So it cannot be said that the clothes Art.U and Art.V
were shown recovered from Goa vide panchanama Exh.190.
183. Mr. Pasbola, ld. Advocate for the accused, also
vehemently submitted that the articles country-made revolvers,
cartridges which were recovered at the instance of accused on
21.05.2007 were sent to C.A. on 22.06.2007. There is delay for
sending articles to C.A. and no explanation is given by the IO.
However, though there appears to be delay, the parcels containing
incriminating articles were received by the C.A. office in sealed
condition. Even on the count of the delay, the accused is not
entitled for any benefit. The Court has to evaluate the entire
evidence. Hence, in my opinion, though Mr. Pasbola, ld. Advocate
for the accused, raised ground of delay, I find that, that would not
be a ground to raise a doubt in the prosecution story.
184. So the circumstances relied by the prosecution if
looked into, the prosecution has established the presence of the
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accused along with the deceased in “Hotel Sun .N. Sheel”, absence
of the accused from “Hotel Sun .N. Sheel” after the incident,
finding of sando baniyan and also chit of INS Hansa in Room No.
202, finding of left finger print of the accused on the glass,
recovery of two country-made revolvers, six cartridges at the
instance of the accused and also ballistic report demonstrates
that accused is author of the crime. According to Medical Officer
PW-18 Dr.Mahadev Bansode, he started post-mortem on
15.05.2007 at about 12.10 a.m. According to him, the death was
caused before 24-36 hours of post-mortem examination. It means
that the murder had taken place in between intervening night of
13.05.2007 to 14.05.2007. The accused disappeared from Room
No.202 and failed to explain when he parted company of the
deceased. So it is the accused who committed the murder and
disappeared after the incident. So the prosecution has
established the circumstance.
185. It appears that the C.A. reports dated 04.12.2007 were
not exhibited. The ld. defence Advocate has no objection to
exhibit the C.A. reports. Hence, two C.A. reports are marked as
Exh.337-A (during course of dictating judgment). The C.A.
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reports are pertaining to the examination of the bedsheet,
blanket, pillow cover having blood, sura, the clothes of the
deceased, full pant and half T-shirt of accused. It appears that
the deceased was having “A” blood group. On sura also, there was
no blood detected. No semen was detected on the salwar and
nicker of the deceased. No blood is detected on full jeans pant
and half T-shirt of the accused. I find that Kaushambi was
murdered by firing from country-made revolver. In such
circumstances, the clothes of the accused would not come in
contact in stains of blood of deceased.
186. The accused also took plea of alibi by examining
witnesses and also by examining himself. The plea of alibi taken
by the accused needs to be considered only when the burden
which lies on the prosecution has been discharged satisfactorily.
As discussed above, the circumstances on which prosecution is
relied are established against the accused. As prosecution
succeeds in discharging its burden, then it is incumbent on the
part of the accused taking plea of alibi to prove its certainty so as
to exclude the possibility of his presence at the place and time of
the occurrence.
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187. It is the defence of the accused that he was at INS
Hansa from 11.05.2007 to 14.05.2007 and he had never visited
Mumbai during the said period. The accused had examined DW-1
Aman Deep Singh. He is a prosecution witness, but is not
examined by the prosecution.
188. Evidence of DW-1 Aman Deep Singh reveals that he as
well as accused were serving in INS Hansa, Goa. They used to
attend the physical training (P.T.) since morning 05.30 to 06.15.
Thereafter they used to attend the classes. After lunch, they used
to attend the classes till 05.30 p.m. According to DW-1 Aman
Deep, the attendance was recorded by the Department in-charge.
It is called daily parade statement. According to him, there are
four gates to INS Hansa and visitors are allowed to go through
Airport Gate i.e. Main Gate. He and accused were the sailors in
INS Hansa.
189. DW-1 Aman Deep then stated that if a sailor wants to
go away from INS Hansa, he has to fill up duty assure form and
to make the entry in the register kept at Airport Gate. Then he
has to deposit the form and mention the time of leaving INS
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Hansa. The said entry book is called as the liberty book and duty
assure book, if he is going away during duty hours, it is
maintained. If the sailor comes back to INS Hansa, the entry has
to be taken in the said books.
190. According to DW-1 Aman Deep, on 12
th
May being
Saturday, the sailors played cricket inside a base. On 13
th
May,
P.T. was attended by DW-1 and accused. Accused also played the
cricket. On 14
th
May, DW-1 Aman Deep had night duty and he
was at department for 24 hours. On 15
th
May, at 10.00 a.m., he
joined duty. He came to know that accused was taken into
custody by Navy Police. He went to Regulating Office of INS
Hansa and disclosed that accused was with him on 12
th
and 13
th
on INS Hansa. The officers told him to keep quiet and when
required they will call him.
191. According to DW-1 Aman Deep, if any visitor wants to
come on base of INS Hansa, he has to record his personal
particulars including vehicle particulars in the book of visitors
and can go inside the base of INS Hansa if the Regulating Officer
considers his request. According to him, ships logbook means the
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book which is kept with officer of the day and he has to post the
entries as to presence and absence of the sailors. The said
document is at Exh.142 (colly.). Further according to DW-1 Aman
Deep, visitor has to cross mess while going to Regulating Office
from airport gate.
192. In cross-examination by ld. APP for the State, DW-1
Aman Deep admitted that attendance since morning to evening is
recorded by the officers and it is submitted to Regulating Officer
at the end of very day. Mr.Arunkumar was the Regulating
Officer. DW-1 Aman Deep also admitted that if the sailor goes
away from the base of INS Hansa with permission, he has to
record the entries in the registers maintained at airport gate and
at the officers on the base. If the sailor went away from the base
of INS Hansa without permission of the officers, he is liable for
disciplinary action.
193. DW-1 Aman Deep admitted that for the first time in
the court, he has stated that the Regulating Officer asked him to
keep quiet and when required, he will call him to disclose that
accused Manish Thakur was with him on 12
th
and 13
th
May. He
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admitted that there were higher officers on the base than the
Regulating Officer, but he did not disclose the said fact to any
higher officers orally or in writing. He also admitted that N.
Arun Kumar was the Regulating Officer on the base of INS
Hansa, who used to record the register of day to day attendance.
Further according to him, the Regulating Officer prepares his
report to maintain record on the basis of reports given by the
officers who noted the attendance of sailors. He also admitted
that there are different officers at different duties for recording
presence or absence of the sailors.
194. DW-1 Aman Deep also admitted that he did not play
the cricket because his left hand was having fracture. Further
his accommodation and accommodation of accused were separate.
He admitted that he did not check the accused in his room.
195. If the above evidence is looked into, I find that DW-1
Aman Deep was having fracture to his left hand, therefore, his
evidence that he and accused played cricket on Saturday and also
on 13.05.2007 attended the morning P.T. cannot be accepted. If
the DW-1 Aman Deep was having fracture in his right hand, then,
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how could he play cricket and how he can participate in morning
P.T. Furthermore, the conduct of DW-1 Aman Deep requires to be
seen. If really according to him, the accused was with him at the
relevant time, then, he could have report about the same to the
higher officer of the Navy. When his friend i.e. accused was
arrested in an offence like murder, it is very surprising that DW-1
Aman Deep kept mum and did not disclose to his higher officers
that accused was with him during the said period. If the conduct
of DW-1 Aman Deep is seen, then it can safely be said that he
appears to be a got up witness by the accused for deposing in
favour of accused. So no reliance can be placed on the evidence of
DW-1 Aman Deep.
196. DW-2 Ketan Pravin Ranga was a Crime Journalist
attached to Mumbai Mirror daily newspaper. He had written
article regarding illegal things which were going on in the hotel
business of Lalji Thakur. The name of hotel was “Sun .N. Sheel”.
DW-2 Ketan claims that hotel owner was doing illegal
prostitution in the hotel. If the evidence of DW-2 Ketan Ranga is
looked into, I find that it is not at all useful to the accused
regarding his presence at INS Hansa base at the relevant period.
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197. DW-3 Rashmi Anand Rajput is also a Journalist and
she was covering the matter related to murder case of
Kaushambi. I have also gone through her evidence and her
evidence is not at all useful to the accused.
198. DW-4 Shagnik Chaudhary is also a Journalist. His
evidence is also not at all useful to the accused.
199. DW-5 Uttam Singh Awnandan Singh is also examined
by the accused. As per his evidence, he was investment manager
in ICICI Bank Branch at Borivali, Bhayander, Mira Road (E),
Malad and Kandivali Thakur Complex. According to him,
Prabodh Zha was his old customer and he was transferred to Goa
being officer in Navy. According to him, Prabodh Zha was posted
on INS Hansa. Through Prabodh Zha, he knew accused Manish
Thakur. According to him, accused intended to invest money in
ICICI Bank. On 13.05.2007, he went to INS Hansa and was in
visitors room with accused. He collected cheque and form from
the accused Exh.266 is the cheque of Rs.20,000/- issued by the
accused and Exh.267 is the letter issued by the Income Tax
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Department regarding PAN allotted to the accused and also the
acknowledgement.
200. If the cross-examination of DW-5 Uttam Singh is
looked into, he admitted that he has not submitted any document
to show that Prabodh Zha was his regular customer. Further he
also did not file any proof that he was working in ICICI Bank. He
also came to know that accused is prosecuted in murder case, but
he admitted that he did not disclose to his authority or anybody
that on 13.05.2007, accused was with him. Further it is very
surprising to know that DW-5 Uttam Singh did not submit the
cheque for encashment. He denied that the cheque was given to
him recently. The cheque was in the custody of DW-5 Uttam
Singh since 13.05.2007. Further there is no evidence on record to
show that DW-5 Uttam Singh met the accused in the visitors
room. Further the accused has also not examined Prabodh Zha to
show that through him, the accused met with DW-5 Uttam Singh.
201. According to ld. APP for the State, the original name of
said witness is Uttam Abhinandan Singh, who is a convicted
accused in C.C. No.35/11 dated 05.11.2011 u/s.406 of the IPC. The
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then J.M.F.C. convicted the said witness. The said witness was
languished in Taloja Jail where the accused met him. It is
alleged that the accused handed over the documents to the said
witness in the jail. It is pertinent to note that the ld. APP did not
file any application to recall the witness in view of new things
known to the prosecution. So we have to appreciate the evidence
whatever adduced by DW-5 Uttam Singh. The ld. APP also
produced on record the copy of judgment filed against Uttam
Singh and one Shailendra Singh u/s.467 and 420 of the IPC. On
05.11.2011, the accused no.1 Uttam Singh and Shailendra Singh
were convicted and accused no.1 Uttam Singh was sentenced to
suffer R.I. for two years and also sentenced to pay fine. However,
as stated above, the prosecution did not call DW-5 Uttam Singh
for cross-examination in view of the new facts known to the
prosecution. So whatever evidence adduced by DW-5 Uttam
Singh and after close scrutiny, I find that the evidence of DW-5
Uttam Singh does not inspire confidence. No proof is submitted
by him to show that he is working in ICICI Bank. No proof was
shown by him that he was permitted to enter in the visitors room
of INS Hansa. He did not submit the cheque for encashment. I
find that the evidence of DW-5 Uttam Singh cannot be relied on.
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202. The accused examined himself as DW-6 in the present
case. He was posted at INS Garuda, Air Engineering
Department, Kochi, Kerala. He was selected to undergo Pilot
Simulator (Mechanical) Training at Moscow, Russia. He was
selected for Russian language course at INS Hansa. He also
produced on record voluminous documents. Exh.271 is the
original copy of Genform, which is service record. Exh.255 is the
ships standing orders. Ships standing orders are in amplification
of and are complimentary to order contained in the Regulations of
Navy, Naval Orders, Naval Instructions, Captains Standing Order
and Goa General Order. According to DW-6 Manish Thakur,
Course Diary is used for all the courses in Navy and contains
daily details of course, training aids used and attendance record
of trainees. Course Diary is made available with the class during
Instructional period. Exh.273 (colly) is the statement/blank
format of sheets of Course Diary. There is a portion marked 'A'
shown as “Roll No. of absentees”. Portion marked 'B' is shown as
signature column.
203. From 26.02.2007 till 15.05.2007, the accused attended
Russian language class daily at INS Hansa. Commander
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Bhattacharya was officer in charge of the class and Prem Singh
was senior most of the class. Prem Singh is a prosecution
witness.
204. According to DW-6 Manish Thakur, Commander
Bhattacharya was responsible for accounting and physical
presence of personnel of Russian language. Roll Calls of trainees
were maintained by Cdr. Bhattacharya daily and Prem Singh and
PW-22 Dr. Vasudha Bhaskar used to assist him in maintaining
the attendance register. The course diary was used to be signed
by class instructor. According to DW-6 Manish Thakur, in
absence of Course Instructor PW-22 Dr. Vasudha Bhaskar, it was
Commander Bhattacharya who used to take roll calls and sign
the concerned column of Daily state sheet.
205. According to DW-6, he was present in the class on
14.05.2007 and Cdr. Bhattacharya took the roll call of the class
and recorded his attendance in the course diary. Thereafter the
class was taken to the projectors room where Russian movie to
get acquainted with Russian culture was scheduled. According to
DW-6 Manish Thakur, PW-22 Dr. Vasudha did not take class on
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14.05.2007 as she was busy in preparing question paper for exam.
It is pertinent to note that the accused has taken a stand that he
was present in INS Hansa from 12.05.2007 to 14.05.2007.
However, the accused did not examine Cdr. Bhattacharya to show
that on 14.05.2007 he (accused) was present in the class and also
watched the movie.
206. According to accused, he also filed the R.T.I.
application on 06.06.2009 to PIO, Headquarters Western Naval
Command (HQWNC) for obtaining Course Diary along with other
document but the documents were not supplied. According to
him, PIO as well as Appellate Authority refused to provide the
attendance register on the ground that it is personal information
and will impede the process of investigation. The accused
appealed to the Central Information Commission who in June
2010 directed Headquarters Western Naval Command to provide
the attendance register and subsequently HQWNC provided
information that the attendance register is not available with
Navy, but it is available with Course Instructor School of Foreign
Language. Exh.274 (colly.) is the reply of PIO dated 22.06.2009
Appellate Authority dated 30.07.2009 and direction of CIC dated
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01.06.2010. The accused also filed an application u/s.91 vide Exh.
115 for directing Commanding Officer, INS Hansa to produce the
attendance register and Daily Parade State from 15.03.2007 to
17.05.2007, but the same was not available.
207. According to accused, he also followed the normal
routine which is followed on all working days and Sunday duties
and on holidays. Normal routine commences with morning P.T.
The Senior most of each unit including the Russian Class
prepares the Physical Muster Report to the Officer of the Day at
the Guard room of INS Hansa. The whereabouts of personnel,
who is not present, are mentioned in the muster report. If any
person is missing during the physical muster without knowledge
of Officers-in-Charge disciplinary action is taken and the same is
recorded in his service record in the offence sheet Section.
Similarly, the Physical Muster (Both Watches) is carried out at
around 14.00 hrs. after lunch and then again before the end of
day at around 17.00 to 17.30 hrs. which is called evening quarters
and thereafter off-hours begins.
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208. On Sunday/holidays, the Physical Muster of personnel
living inside the Naval base is carried out at around 07.00 hrs.
and department wise report is submitted. In the morning and in
the evening also, the muster is taken and written report is
submitted to the respective heads.
209. According to the accused, it is the duty of Regulating
Officers and staff to maintain upto date records of all the muster
list and report any irregularities w.r.t. absence or run of sailors/
officers to the Executive Officer or Commanding Officers based
on the Daily Parade State of INS Hansa.
210. The records of the daily parade state is also
maintained by respective departments of Hansa. If any person is
absent during any of the physical muster, then the Divisional/
Department Officer of Russian Course forward the name of
individual to Regulating Office for further disciplinary action.
According to accused, only record of Daily Parade State is
maintained at Reg. Office and attendance register of the class is
maintained by O/C of Russian language Course.
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211. According to accused, Cdr. Bhattacharya and witness
Premsingh were responsible for department muster and
accountability of MIG-29K Russian Class.
212. According to accused, after attending morning P.T. and
both watches muster, he along with course mates used to attend
Russian language class and other training from 08.30 to 13.00
hrs. daily, except Sunday. After lunch again they used to attend
training schedule and other departmental work assigned by
officer-in-charge along with extra curriculum activities including
sports. The afternoon session used to start at 14.30 hrs. and used
to conclude at 17.00 to 17.30 hrs. At 17.30 hrs., again evening
muster reports are made and forwarded to Regulating Office. If
muster report is found correct, then the trainees and in-living
staff are granted permission to proceed on short leave, if wish to.
213. Further according to accused, after proceeding the
short leave, one has to write his name in the liberty book kept at
Guard Room at Barrack/Gate and permission is obtained from
OOD to leave the establishment without which the gate staff will
not allow short leave. The entry is made in the concerned register
by Security Staff.
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214. Any sailor after coming from short leave are inspected
by OOD or Provost Sailor at the gate and then his check in timing
is entered and signature is obtained. If any person is missing or
has not reported to ship by 01.00 hrs., then his name is
forwarded for further disciplinary action. The short leave of ships
company is allowed from 17.30 hrs. to 01.00 hrs. and 01.00 hrs. to
the OOD check the liberty book whether all the personnels who
have proceeded to such leave, have returned to establishment or
not.
215. According to accused, he never left INS Hansa during
the alleged time period. The copy of the liberty book is at Exh.
279 and weekend book is at Exh.280. According to the accused,
the entry/exit gate of INS Hansa is managed by Security Staff
and especially trained defense security corps. PW-15 Arunkumar
was in charge of the security gates of Hansa. Naval police
Kamraj, PW-23 S.K. Tripathi and security JCO were assisting
other Naval Police at gates. Every Service Personnel and their
bag suitcase dickeys are searched at Naval gates of INS Hansa.
Similarly particulars of every visitor visiting the Naval
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establishment with or without vehicle are to be entered in visitors
book. Important activities of the day including muster and both
watches of personnel and entries of any irregularities are made in
ships log book. The remarks are also to be noted. According to
accused, on 12.05.2007, 13.05.2007 and also on 14.05.2007, PT
muster was conducted at 06.00 hrs. Similarly, on 23.03.2007 P.T.
was conducted at 05.30 hrs., and both watches muster at 08.30
hrs. On 25.03.2007 both watches muster and PT Muster were
taken at 07.30 hrs. As per Exh.142, on 12, 13, 14.05.2007, 22 to
25.03.2007 and 05 to 08.04.2007, rounds were taken by OOD at
around 21.30 hrs. and has made remarks as “Rounds Correct”.
216. According to accused, on 12.05.2007 morning both
musters (physical muster) was conducted by officer of the Day
Lieutenant Commander M.Vipin. Thereafter the accused played
cricket inside the Naval base. Amandeep Singh was umpiring the
match as he was having hairline fracture in his hand. However,
Amandeep never stated in his evidence that he did umpiring.
According to accused, after the match in the evening, Prabodh
Jha informed him that he is likely to visit Hansa along with an
Investment Manager of ICICI Bank (DW-5) on 13.05.2007.
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However, the accused did not examine Prabodh Jha to prove the
said fact. On 13.05.2007, accused met Prabodh Jha in visitors
room where he introduced accused to Uttam. Thereafter the
accused issued a cheque of Rs.20,000/- along with PAN Card
proof. According to accused, permission for visitors is required, if
visitor wishes to enter inside the establishment of INS Hansa.
However, there is no documentary evidence to show that DW-5
Uttam Singh met the accused in visitors room. In this regard, the
evidence of Prabodh Jha would have played an important role, but
the accused failed to examine Prabodh Jha.
217. Further according to accused, on 14.05.2007, he
attended morning PT at 06.00 hrs. and attendance report was
taken. He attended Russian language class and roll call was
taken by Cdr. Bhattacharya and accused then proceeded to watch
Russian movie till lunch. After lunch also, attendance was taken.
On 15.05.2007, accused attended the class and at around 10.00 to
11.00 a.m. the Naval Police took him to Naval custody cell at
Barrack Guard Room. Later on accused was taken for medical
examination before the surge, Lt. Ardhana Panda. According to
accused, on 16.05.2007, from evening till late night PI Pascal
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D'Souza and API Dongre along with other unknown persons
interrogated him and pressing him to confess. According to him,
he was man handled with metal scale by PW-28 PI Pascal
D'Souza and he sustained injuries at left forearm. According to
him, at that time, Satvir Singh was also present in the room. The
accused failed to examine said Satvir Singh to prove his
contention.
218. So if the above examination-in-chief of the accused as
well as voluminous documents produced by accused are looked
into, the accused set out the case in his evidence that he was
present in INS Hansa from 12.05.2007 to 15.05.2007. Even he
never visited Mumbai on 23.03.2007 as well as on 06.04.2007.
According to him, he made efforts to bring on record the
documentary evidence of his remaining present in INS Hansa.
However, Navy did not produce the documents as sought by the
accused. According to the accused, it is highly impossible to leave
the Naval base without obtaining permission and if any sailor or
Naval Officer leaves the base without any permission or
intimation, then disciplinary action used to be taken. According
to him, he never left place and therefore, in his service record,
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nothing adverse is mentioned. Hence, according to him, he was
present at the relevant time of the incident in INS Hansa, Goa.
According to accused, the Naval official PW-25 Arunkumar in
collusion with the IO deliberately did not record the statements of
witnesses who had seen him inside the Naval base at the relevant
time. Further according to accused, there are systematic checks
at the Naval base and also there are attendance registers of
Russian language course, daily parade and these documents are
deliberately suppressed and concealed by the IO in collusion with
PW-25 Arunkumar to deny accused to prove his case.
219. According to accused, Cdr. Bhattacharya took the roll
call of the class and recorded the attendance of accused on
14.05.2007 in the course diary, however, the accused failed to
examine Cdr. Bhattacharya.
220. Ld. APP submitted that the accused failed to produce
any document to show that from 12.05.2007 to 14.05.2007, he was
present in INS Hansa. According to ld. APP, not a single
document is produced on record by the accused to show that at
the relevant period, the accused was present in INS Hansa.
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221. Mr. Pasbola, ld. Advocate for accused, submitted that
the accused demanded records of daily parade state between
15.03 to 17.05, records of attendance of Course of Russian
language between 26.02 to 26.05.2007, records of headquarters
Letter/Captains Temporary Memorandum related to routine of
Russian language course at Goa from 26.02.2007 to 26.05.2007,
records of officer of the day (OOD) rounds book from 15.03.2007 to
15.05.2007.
222. I have also gone through the documents produced on
record by the accused vide Exh.142, 140, 229. The documents are
Ships Log Book (Exh.142), visitors book from 14.05.2007 to
30.05.2007 (Exh.142B) and close custody register (Exh.140), Ships
standing order (Exh.255), copy of INBR - 1800 (Exh.281), liberty
book from 14.04.2007 to 14.05.2007 (Exh.279), weekend/short
leave register 26.02.2007 to 14.05.2007 (Exh.280), Inward mail
register from 15.05.2007 to 26.05.2007 (Exh.310), daily parade
state from 01.07.2011 to 04.07.2011 (Exh.277), Genform
(Procedure and Preparation) (Exh.272), entire service record
(Exh.230) . I have also gone through the documents collected by
the accused under the R.T.I. Act.
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223. On perusal of all documents, there is no documentary
proof specifically stating the presence of the accused at the
relevant period in INS Hansa.
224. The ld. APP submitted that the accused without
obtaining any permission left the place in between 11.05.2007 to
14.05.2007 and immediately he was taken in custody by Naval
police on 15.05.2007 and thereafter the accused was given in
custody of Mumbai Police. In such situation, Navy could not
initiate the procedure for taking action.
225. Further accused also failed to prove that he was
present in INS Hansa on 23.03.2007 and 06.04.2007.
226. According to Mr. Pasbola, ld. Advocate for the accused,
accused sought various documents from the Navy in order to
prove his innocence, but the documents were suppressed. In my
opinion, when the accused has taken a plea of alibi, then, it is for
the accused to establish his case and the heavy burden lies on
him. In the present case, the accused failed to discharge his
burden.
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227. The prosecution also examined PW-22 Dr. Vasudha
Bhaskar (Exh.122). She taught the Russian language at INS
Hansa in the year 2007 from 26.02.2007 to 26.05.2007. The
accused was a sailor learning in the class. According to PW-22
Dr. Vasudha, on 14.05.2007, the accused was absent from the
class. On 15.05.2007, accused was present in the class and Naval
police came in the class and took him.
228. In cross-examination, PW-22 Dr. Vasudha stated that
she is not aware that Course Diary is maintained for every
student. Neither she nor other instructor maintained attendance
register. According to her, she remember the date 14.05.2007
when Manish Thakur was absent, because on very next day i.e. on
15.05.2007, he was taken by police. She also admitted that
accused was one of the best students in their course. She also
admitted that she never made any complaint of the students who
were not attending the class regularly, to the superior officers.
Further She admitted that Commander Bhattacharya was the
senior most officer student in the class. Premsingh was senior
most sailor in the class. She admitted that it was the duty of
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Commander Bhattacharya and Premsingh to maintain record of
attendance. Further she stated that presence and absence of
officers and sailors was not recorded by her, but she stated about
absence of accused on 14.05.2007 on the strength of her memory.
229. So if the evidence of PW-22 Dr.Vasudha is seen, then it
appears that Commander Bhattacharya and Premsingh recorded
the attendance of the students. However, the accused did not
examine Commander Bhattacharya and Premsingh in order to
prove that he was present on 14.05.2007 in the class.
230. PW-25 Naorem Arun Singh was attached to INS
Hansa as a Commander. According to him, he was directed by
the Commanding Officer Shri. G.M. Kumar to take accused in the
custody. The accused was taken in custody from class on
15.05.2007. PW-25 Naorem Arun Singh made inquiry with the
accused and he told that he was in Mumbai from 11.05.2007 to
14.05.2007. The ld. APP submitted that this is a extra judicial
confession and is admissible in evidence. In the evidence of
PW-25 Naorem Arun Singh, body receipt (Exh.133) is proved
regarding handing over the accused in custody of PW-28 PI Pascal
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D'Souza. Inventory regarding belongings of the accused is at Exh.
134. Exh.135 is Genform letter dated 17.05.2007. Service record
letter is at Exh.136. Exh.137 is the gate pass of confiscated
country-made revolver and Exh.138 is the gate pass for
confiscated items.
231. It is pertinent to note that the inventory Exh.134 is the
list of articles i.e. (1) Executive Diary of 1996, (2) Reliance Mobile
(Non Ops), (3) Reliance Mobile (LG set), (4) Mobile Charger, (5)
Hotel Classic Residency Bill No.036 dated 25.03.2007, (6) Hotel
Classic Residency Bill No.064 dated 08.04.2007, (7) T-shirt, (8)
Trousers, (9) ICICI Bank Cheque No.030101 A/c No.
0002015511001, (10) Two 3 and ½ “ floppies and (11) Nineteen
Visiting Cards. However, exhibit number is given to only
inventory. It appears from the evidence that the Articles (1) to
(11) never shown to PW-25 Naorem Arun Singh nor to the IO. It
appears that only Executive Diary is on record.
232. PW-25 Naorem Arun Singh is also cross-examined at
length by the ld. Advocate for the accused. PW-25 Naorem Arun
Singh admitted that after the accused was put in detention,
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compliance report was reported to Captain Mr. Gopakumar.
PW-25 Naorem Arun Singh also admitted that at that time, he
had no knowledge about the nature of offence in which the
accused was involved. He also admitted that he did not verify the
record how the accused was out of INS Hansa during period from
11.05.2007 to 14.05.2007. He admitted that without liberty, none
of the officers or sailors leaves the premises of INS Hansa. He
did not verify the liberty book register and the same was not
brought to the notice of police.
233. PW-25 Naorem Arun Singh also stated that Teachers
of Russian language course were also maintaining attendance
register. He had not seen the attendance register and the same
was not even produced before the police. He also admitted that
Ships Log Book reflects the presence of persons who have arrived
on particular day on permanent in-transfer and out-transfer,
persons in hospital and persons who are sick. He also stated that
there is visitors book and gate pass register, but they are not
being signed by the officers of the day. He also admitted that it is
the duty of the offficer of the day to take rounds of the barracks
and the certain earmarks areas, during night and thereafter he
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puts remarks in the ships log book and in case of any irregularity,
he may report to the commanding officer.
234. PW-25 Naorem Arun Singh also stated that there are
minimum 12 gates to INS Hansa, Goa, but he does not agree that
2 to 3 gates are out of bound for the sailors and the same are used
exclusively by the officers. He also admitted that at the time of
entry and exit relating to non-defence personnels belongings are
being checked at the said gates. He also admitted that there are
standing orders, Captain's standing orders, ships standing orders,
security standing orders and other orders to regulate the
procedure of INS Hansa.
235. PW-25 Naorem Arun Singh admitted that whenever a
Naval personnel is put in close custody, board is constituted for
sealing the personal belongings. In this case also, board was
constituted for sealing the personal belongings of the accused and
in that regard inventory was prepared. Personal belongings from
R.No.P/11 of accused were taken charge of and the room was
sealed, but according to PW-25 Naorem Arun Singh, he was not
personally present.
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236. According to PW-25 Naorem Arun Singh, preliminary
enquiry was made regarding alleged absence of the accused from
11.05.2007 to 14.05.2007 and alleged recovery of firearms from
the accused and that enquiry was conducted by duty police staff,
but he does not remember the name of said police staff. So in
view of this, extra judicial confession alleged to have been made
by accused to PW-25 Naorem Arun Singh cannot be admissible.
237. PW-25 Naorem Arun Singh stated in cross-
examination that he himself also conducted the preliminary
enquiry. He further admitted that on the basis of such
preliminary enquiry, no action was taken against any of the Navy
personnels. So if the evidence of PW-25 Naorem Arun Singh is
looked into, he had conducted the preliminary enquiry. He has
not gone through the attendance register. Even PW-28 PI Pascal
D'Souza (IO) could not get the access to the record of INS Hansa
to ascertain on what date and when accused left the base. Be
that may be when the accused took a stand of alibi, he has to
establish that he was present in INS Hansa at the relevant time.
The accused failed to discharge his burden. On the contrary, the
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prosecution has established the circumstances beyond reasonable
doubt against the accused of presence of the accused with the
deceased on 12.05.2007 in “Hotel Sun .N. Sheel”, the dead body
was found in Room No.202 on 14.05.2007, absence of the accused
from Room No.202, failure to explain presence of the accused
after the incident, fingerprint of left hand found on the water
glass in the hotel, recovery of weapons at the instance of accused,
bullet retrieved from the dead body of the deceased Kaushambi
Layek fired from the country-made revolver recovered at the
instance of the accused, the accused was identified by the
witnesses, entries in the register of “Hotel Sun .N. Sheel”. All
this clinching evidence would demonstrate that it is the accused
only and none else who is the author of the crime.
238. The prosecution also examined PW-24 Dr. Sandip
Arjun Karna. He was attached to INS Hansa as a Principal
Medical Officer. He had examined the accused on 17.05.2007.
Exh.130 is the Medical Certificate. According to him, the accused
was having one and half inch liner abrasive healing injury on left
forearm. According to accused, he was man handled during
investigation, however, no complaint was made by him. In cross-
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examination, PW-24 Dr. Sandip Karna stated that the injury
referred might have been possible between 15.05.2007 to
17.05.2007. So the evidence of PW-24 Dr. Sandip Karna is not
helpful either to prosecution or to defence.
239. The accused relied on case of Ashish Batham Versus
State of M.P., (2002) 7 Supreme Court Cases 317. In the said
case, the accused had taken a stand of alibi. In the said case, two
girls were found murdered and were having number of injuries
and looking to the injuries, serious doubt was arose in the
prosecution story as to whether it was possible at all for a single
person to inflict so many injuries with one knife and within such
a short span of time left between PW-2 and his wife leaving from
the house and returning from their morning walk. It is also
doubtful as to whether one person could have, without getting
himself hurt, or receiving any form of injury during altercation, in
retaliation from the two girls, inflicted so many injuries. The
fingerprint reports were not marked, nor expert was examined.
Evidence collected by the prosecution regarding the journey of the
appellant/ accused from Bhopal to Dahod and materials to
evidence actual journey with his sister in its possession was also
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not marked though shown in the list of documents with the
charge-sheet. The accused in defence examined his sister (DW-1)
and a tenant (DW-2) in the house at Dahod where DW-1 also
lived. The appeal was allowed and the appellant was acquitted.
240. I have gone through the said case law and with due
respect, I find that the facts of the cited case are not applicable to
the case in hand.
241. The accused also relied on the case of Jayantibhai
Bhenkarbhai Versus State of Gujarat, 2002 Supreme Court
Cases (Cri) 1873. In the said case, the accused also took a stand
of alibi. The accused also gave the evidence in defence. The
accused was present at about 11.00 a.m. at Gandhinagar in the
office of the ADC. The accused also produced in evidence two
tickets of the zoo purchased by him for himself on 06.07.1989 and
also produced bus tickets issued by the conductor of the bus by
which he travelled from Ahmedabad to village. So accused has
proved his plea of alibi. I have gone through the said case law
and with due respect, I find that the facts of the cited case are not
applicable to the case in hand.
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242. Mrs. Ghodke, ld. APP for the State, submitted that
during recording statement of accused u/s.313 of the Cr.P.C.,
accused denied that he and deceased had been to “Hotel Classic
Residency” and also stayed in “Hotel Sun .N. Sheel”. According to
ld. APP for the State, the accused has taken false defence that he
was not present at the relevant time in Mumbai. Mr. Pasbola, ld.
Advocate for the accused, relied on the case of Tanviben
Pankajkumar Divetia Versus State of Gujarat, 1997
Supreme Court Cases (Cri) 1004. In the said case, Hon'ble
Supreme Court has held as under:-
“44. The Court has drawn adverse inference against
the accused for making false statement as recorded under Section
313 of the Code of Criminal Procedure. In view of our findings, it
cannot be held that the accused made false statements. Even if it
is assumed that the accused had made false statements when
examined under Section 313 of the Code of Criminal Procedure,
the law is well settled that the falsity of the defence cannot take the
place of proof of facts which the prosecution has to establish in
order to succeed. A false plea may be considered as an additional
circumstance if other circumstances proved and established point
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out the guilt of the accused. In this connection, reference may be
made to the decision of this Court in Shankarlal Gyarasilal Dixit
v. State of Maharashtra”.
In our case, the accused failed to explain when he parted company
of the deceased. He also had taken defence that he was not
present in Mumbai at the relevant time. However, I find that this
would be an additional circumstance, which goes against the
accused.
243. So considering the evidence led by the prosecution and
weighing the same against the defence evidence adduced by the
accused in support of his plea of alibi, I find that the accused
failed to discharge his burden. The circumstances relied by the
prosecution established beyond reasonable doubt against the
accused and the evidence of prosecution is clinching and
trustworthy. The accused though under the R.T.I. Act tried to
seek the documents, did not examine the crucial witnesses Cdr.
Bhattacharya and Premsingh. Mr. Pasbola, ld. Advocate for the
accused, submitted that the accused also sought information
under the R.T.I. Act regarding train reaching to Mumbai from
Goa which is 'Matsyagandha' reaching to Mumbai. The accused
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under the Right to Information Act, produced on record the
information (Exh.287) regarding the timing of Matsyagandha
Express reaching to Mumbai on 12.05.2007. As per the said
information, Matsyagandha reached late i.e. at about 10.12 a.m.
on 12.05.2007 instead of 06.35 a.m. However, the accused has not
examined the witness from railway in order to prove that
Matsyagandha Express reached Mumbai late. Only the letter
issued by the Divisional Office, Operations Branch, Mumbai CST,
dated 25.05.2009 is exhibited. However, the information
regarding reaching Matsyagandha Express to Mumbai given in
the chart is not proved by examining the witness. It is pertinent
to note that within 10 to 11 hrs. one can reach to Mumbai from
Goa either by private vehicle or by train. No doubt the IO did not
investigate the mode of travelling of accused from Goa to Mumbai.
However, said aspect would not affect the prosecution case. So in
view of the above discussion, I find that circumstances relied by
the prosecution are proved beyond reasonable doubt and the
defence of alibi taken is not proved by the accused. Hence, I
answer point no.2 in affirmative.
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244. Motive:- In this case, Mr. Pasbola, ld. Advocate for the
accused, also vehemently submitted that the prosecution failed to
establish the motive to connect the accused with the alleged
crime. It is established on record that there was love affair
between the deceased and accused and they stayed together
earlier the incident in “Classic Residency Guest House” and also
at the relevant period in “Hotel Sun .N. Sheel”, which itself
demonstrates about relationship. The accused is a married
person. It appears from the evidence of PW-7 Shaunak Layek,
brother of deceased Kaushambi Layek, that on 13.05.2007, he
received a phone call of Kaushambi from Mumbai at about 10.30
p.m. and she told him that accused wanted to marry her. PW-7
Shaunak scolded the deceased and asked her to come back to
Zharkhand. At that time, he realized that she was in tension and
her voice was very slow. When asked by PW-7 Shaunak about her
presence, deceased told him that she is in her room. Thereby
PW-7 Shaunak asked her to give phone to her room mate Megha
and then the phone was cut. Then he tried to call Kaushambi
and Metha, but could not contact either to deceased or Megha. In
view of above evidence, it is crystal clear that the deceased was at
that time in the room of “Hotel Sun .N. Sheel” on 13.05.2007
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because in the night of 13.05.2007 Kaushambi was murdered.
The ld. APP for the State submitted that as deceased came to
know that the accused was a married person, she was not
interested to continue the relations with the deceased. In the
night of 13.05.2007, Kaushambi telephoned her brother and
stated that accused wanted to marry with her. In the night of
13.05.2007, Kaushambi was found murdered. Presence of accused
was also established in the room. Further as per the version of
PW-18 Dr. Bansode, there was no sexual intercourse since last 4 -
6 days with Kaushambi before her death. It means that the
deceased was keeping herself away from the accused in the room.
The above evidence would demonstrate that the deceased wanted
to keep away the accused. So as deceased refused to marry with
the accused or wants to keep herself away from the accused,
Kaushambi was murdered. The present case is based on
circumstantial evidence. Therefore, motive requires to be
established. When the direct evidence is there in the form of eye
witnesses, motive looses its significance. In this regard, reliance
can be placed on the case of Sooguru Subrahmanyam Vs.
State of A.P., 2013 ALL MR (Cri) 2642 (S.C.). In the said case,
the Hon'ble Supreme Court has held as under:-
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“16. Now, we may deal with the submission that the
prosecution has not been able to prove any motive for the
commission of the crime because the suspicion on the part of the
husband has not been established. We have already recorded an
affirmative finding on that score. However, we may, in this
context, profitably refer to the pronouncement in Nathuni Yadav
and others v. State of Bihar and another, (1998) 9 SCC 238
wherein a two-Judge Bench has laid down thus:-
'17. Motive for doing a criminal act is generally a difficult
area for prosecution. One cannot normally see into the mind
of another. Motive is the emotion which impels a man to do
a particular act. Such impelling cause need not necessarily
be proportionally grave to do grave crimes. Many a murders
have been committed without any known or prominent
motive. It is quite possible that the aforesaid impelling
factor would remain undiscoverable. Lord Chief Justice
Champbell struck a note of caution in R. v. Palmer,
Shorthand Report at p. 308 CCC May 1856 thus:
“But if there be any motive which can be assigned, I am
bound to tell you that the adequacy of that motive is of
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little importance. We know, from experience of
criminal courts that atrocious crimes of this sort have
been committed from very slight motives; not merely
from malice and revenge, but to gain a small pecuniary
advantage, and to drive off for a time pressing
difficulties.”
Though, it is a sound proposition that every criminal act is
done with a motive, it is unsound to suggest that no such criminal
act can be presumed unless motive is proved. After all, motive is a
psychological phenomenon. Mere fact that prosecution failed to
translate that mental disposition of the accused into evidence does
not mean that so much mental condition existed in the mind of the
assailant.'
17. In the said case, it was also observed that in some
cases, it may not be difficult to establish motive through direct
evidence, while in some other cases, inferences from circumstances
may help in discerning the mental propensity of the person
concerned. In the case at hand, as is noticed, there is material on
record which suggests that there was some ire that had swelled up
in the mind of the accused to extinguish the life spark of the wife.”
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245. In this case, presence of accused along with two
revolvers in the room shows that it was the accused alone who
was aware of the circumstances that prompted him to adopt a
certain course of action leading to the commission of crime. The
circumstances on record suggest the existence of necessary motive
required to commit a crime. it may be conceived that the accused
has in fact committed the same.
As to point no.5:-
246. Whether this Court has jurisdiction to try the case? :-
Mr. Pasbola, ld. Advocate for the accused, vehemently submitted
that this Court is lacking the jurisdiction to try the case. Mr.
Pasbola, ld. Advocate for the accused, submitted that the accused
belongs to Navy and therefore, after filing charge-sheet before the
ld. Metropolitan Magistrate, the ld. Metropolitan Magistrate
ought to have issued a notice to the Commandant as to whether
Commandant would proceed with the Court Martial or whether
the Criminal Court can put the accused on trial. According to ld.
Advocate for the accused, this mandatory procedure is not
complied by the ld. Metropolitan Magistrate and he committed
the case to the Court of Sessions. Therefore, according to ld.
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Advocate for the accused, this Court is lacking the jurisdiction to
try the case. The ld. Advocate for the accused also drawn my
attention to Section 78 of the Navy Act, 1957, which reads as
under:-
“78. Jurisdiction as to place and offences. - (1) Subject to the
provisions of sub-section (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.”
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247. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of General Officer Commanding v. CBI & Anr.
with Additional Director General v. Central Bureau
Investigation, AIR 2012 SUPREME COURT 1890. In the said
judgment, the Hon'ble Supreme Court has held as under:-
“Thus, the law on the issue is clear that under Section
125 of the Army Act, the stage of making option to try an accused
by a court-martial and not by the criminal court is after filing of
the charge-sheet and before taking cognizance or framing of the
charges.”
248. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of Delhi Special Police Establishment New Delhi
v. Lt. Col. S.K. Loraiya, 1973 CRI.L.J. 33. In the said case, the
Hon'ble Supreme Court has held as under:-
“5. The Central Government has framed under S.
549(1), Cr.P.C. rules which are known as the Criminal Courts and
Courts Martial (Adjustment of Jurisdiction) Rules, 1952. The
relevant rule for our purpose is rule 3. It requires that when a
person subject to military, naval or air force law is brought before
a Magistrate on accusation of an offence for which he is liable to
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be tried by a court-martial also, the Magistrate shall not proceed
with the case unless he is requested to do so by the appropriate
military authority. He may, however, proceed with the case if he is
of opinion that he should so proceed with the case without being
requested by the said authority. Even in such a case, the
Magistrate has to give notice to the Commanding Officer and is
not to make any order of conviction or acquittal or frame charges
or commit the accused until the expiry of 7 days from the service of
notice. The Commanding Officer may inform the Magistrate that
in his opinion the accused should be tried by the Court-martial.
Subsequent rules prescribe the procedure which is to be followed
where the Commanding Officer has given or omitted to give such
information to the magistrate.
6. It is an admitted fact in this case that the procedure
specified in rule 3 was not followed by the Special Judge, Gauhati
before framing charges against the respondent. Section 549(1), Cr.
P.C. and R.3 are mandatory. Accordingly the charges framed by
the Special Judge against the respondent cannot survive. But
counsel for the appellant has urged before us that in the particular
circumstances of this case the respondent is not 'liable to be tried'”
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249. Mr. Pasbola, ld. Advocate for the accused, also relied
on the case of Kanwardeepsingh Harbansingh Bedi Vs. State
of Maharashtra, 2009 ALL MR (Cri) 1946. In the said case,
the Hon'ble Bombay High Court has held as under:-
“When an accused has been delivered by a Magistrate
under Rules 5 and 6 the Commanding Officer or the competent
military, naval or air force authority must, as soon as may be,
inform the Magistrate whether the accused has been tried by a
court martial or other effectual proceedings have been taken or
ordered to be taken against him. The communication of such
information is mandatory. When the Magistrate is informed that
the accused has not been tried or other effectual proceedings have
not been taken or ordered to be taken against him, he is obliged to
report the circumstance to the State Government and the State
Government, in consultation with the Central Government may
take appropriate steps to ensure that the accused person is dealt
with in accordance with law. The policy of the law is clear. Once
the criminal court determines that there is a case for trial, and
pursuant to the aforesaid rule, delivers the accused to the
Commanding Officer or the competent military, naval or air force
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authority, the law intends that the accused must either be tried by
a court martial or some other effectual proceedings must be taken
against him. To ensure that proceedings are taken against the
accused, the Rules require the Commanding Officer or the
competent authority to inform the Magistrate of what has been
done.”
250. As against this, it is submitted by Mrs. Ghodke, the ld.
APP for the State, that the accused never raised any objection
when the charge-sheet was submitted before the ld. Metropolitan
Magistrate.
251. Mrs. Ghodke, ld. APP for the State, relied on the case
of Sandeep alias Sanjay Vithal Shinde v. The State of
Maharashtra and others, 2004 CRI.L.J. 3678. In the said
case, the Hon'ble Bombay High Court held that “Accused, an
army personnel, while on leave committing offence of rape -
Accused being on leave and not 'on active service' - Can be tried
by Sessions Court and not only by Court-martial.” In our case in
hand also, the accused without remaining present in the Naval
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base, came to Mumbai and committed the crime. The ld. APP
also relied on the case of Umesh Singh Alias Umesh Prasad
Singh vs. State of Bihar, 2003 CRI.L.J. 2215. In the said case,
the Hon'ble Patna High Court held that “The Magistrate's order
committing the case of the petitioner for trial by the Court of
Sessions cannot be faulted because the petitioner never raised the
relevant issue before him. He also never challenged the said order
before the higher Courts. In such circumstances, there was no lack
of jurisdiction in the Magistrate to commit the case to the Court of
Sessions and in any event, the Court of Sessions at the end of the
trial rightly refused to entertain an application under Section 475
of the Code because under this provision of law and also under the
Rules all the duties are cast upon the Magistrate.”
252. However, in our case in hand, after the case was
committed, charge was framed against the accused vide Exh.9 on
21.01.2008. Thereafter accused filed an application (Exh.15)
contending that while committing the case, ld. Metropolitan
Magistrate has not complied with the provisions laid down in Sec.
475 of the Cr.P.C. and no notices were sent to the concerned Navy
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Officers to conduct the trial. The said application was allowed on
25.03.2008 and accordingly, notices were sent to Commanding
Officer, Kochi, and Commanding Officer, INS Hansa, Naval Office
Goa respectively. In response to the said notices, Commanding
Officer, INS Garuda, vide letter dated 22.04.2008 (Exh.18)
communicated to the Court that Indian Navy do not wish to take
over the case and the Court may continue with the proceedings.
Captain Commanding Officer, INS Hansa, vide letter dated
13.05.2008 (Exh.19) also communicated to the Sessions Court
that accused cannot be tried under the Navy Act 1957 and
requested to proceed with the case. It appears that the earlier
charge was quashed before giving notices to the respective naval
officials.
253. After hearing both the parties, my ld. Predecessor
quashed the charge framed vide Exh.9 and ordered to frame new
charge against the accused. My ld. Predecessor also observed in
the order that in this case, the provisions laid down u/s.475 of the
Cr.P.C. read with Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952 stands complied by this
Court by taking no objection from respective Navy Commander of
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Navy. The said order dated 23.06.2008 is not challenged by the
accused. In this case, the evidence was led. 29 witnesses are
examined by the prosecution and 6 witnesses including the
accused were examined in defence. Arguments were heard and at
the fag end of the argument, Mr. Pasbola, ld. Advocate for the
accused, raised the ground that this Court is lacking the
jurisdiction as the mandatory procedure is not followed by the
Magistrate and committed the case.
254. Having regard to the argument advanced before me, I
find that the accused never raised any ground before the
Magistrate when charge-sheet was filed. When the case was
committed, the accused filed an application before the Sessions
Court. The Sessions Court issued the notices to respective
Commandants of Navy and the Commandants informed the
Sessions Court that they are not willing to proceed with the trial
of the case. Hence, in the order dated 23.06.2008, my ld.
Predecessor observed that in this case, the provisions laid down
u/s.475 of the Cr.P.C. read with Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1952 stands complied
by this Court by taking no objection from respective Navy
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Commandants of Navy, for trial of the accused before this Court.
The said order is not challenged by the accused and now the
accused is estopped by raising similar ground before this Court at
the fag end that this Court is lacking the jurisdiction to try the
case. The contention of the accused cannot be accepted and
therefore, the point is answered accordingly.
As to point nos.3 and 4:-
255. In our case in hand, it is established that at the
instance of the accused, country-made revolvers (katta) are
recovered. According to the prosecution, the accused used the
country made revolver in the commission of offence and caused
murder of Kaushambi. Mr. Pasbola, ld. Advocate for the accused,
vehemently submitted that the said weapons are alleged to have
been recovered in Goa, therefore, the prosecution ought to have
obtained sanction from competent authority in Goa. It is
pertinent to note that Exh.239 is the Sanction Order issued by
PW-29 Vijaysingh Jadhav, Superintendent of Police, which is on
record. PW-28 PI Pascal D'Souza (IO) admitted that on the date
of filing of the charge-sheet, sanction order was not submitted. It
was received after filing of charge-sheet. He also admitted that
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no application is submitted along with charge-sheet for grant of
time to submit sanction order. The Sanction Order was received
on 16.08.2007, but it is placed on record in the year 2011.
256. PW-29 Vijaysingh also deposed in the evidence that he
had received FIR, arrest panchanama, memorandum of the
accused. However, the ballistic report was not in the proposal and
therefore, he had asked Sr.PI, MIDC Police Station, for sending
ballistic report. On 09.10.2007, ballistic report was submitted and
after perusal of the proposal for according sanction, PW-29
Vijaysingh accorded sanction by applying his mind on 16.10.2007.
According to him, he found prima-facie case of contravention of
Sec.3 of the Arms Act. In cross-examination, PW-29 Vijaysingh
stated that Police Commissioner with the consent of Government
delegates powers to accord sanction, under the Arms Act. In
pursuance of clause (d) of Sub-section (I) of Section 2 of the Arms
Act, 1959, S2(1) (54 of 1959) the Government of Maharashtra
specifies the Deputy Commissioner of Police (H.Q.) at Bombay
Nagpur and Poona for the purposes of the said clause (d) within
their respective jurisdiction vide order dated 12.07.1971. Further
PW-29 Vijaysing stated that papers in the present matter for the
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purpose of sanction were received by the concerned staff, from
MIDC Police Station. He also admitted that sanction order was
not accorded till 16.10.2007 as he was awaiting for the report of
the ballistic experts. He also admitted that at the time of arrest,
the accused was not found in possession of any firearm. He
denied that sanction was accorded without subjective satisfaction
and without proper application of mind. He denied that bad
sanction is accorded just to help the police of MIDC Police
Station.
257. Considering the evidence on record, I have no
hesitation to hold that PW-29 Vijaysingh accorded the sanction
for the prosecution of accused under the Arms Act. Hence, I find
that the accused was found in possession of two country-made
revolvers without any licence or permit. Therefore, Sec.3 r/w. Sec.
25 of the Arms Act is established against the accused.
258. The accused used one of the country-made revolvers in
committing the offence and therefore, Sec.4 r/w. Sec.27 of the
Arms Act is also proved against the accused. So far as knife is
concerned, I find that the Room No.202 was allotted in the name
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of accused and deceased. The accused and deceased stayed
together. The accused had showed the place in market at Goa
from where he purchased the big knife. In view of the discussion
in above para of my judgment that showing the place of purchase
of incriminating articles will not be admissible in evidence and
therefore, recovery of knife at the instance of accused is not
proved. However, there is sufficient evidence on record as to the
recovery of country-made revolvers from him. Prosecution has
proved all circumstances beyond reasonable doubt against the
accused.
259. I stop here to hear the accused on the point of
sentence.
(D.W. DESHPANDE)
Date : 04/03/2014. Addl. Sessions Judge,
Gr. Mumbai.
260. Heard the accused on the point of sentence. He
submits that he is young and therefore, lenient view be taken
while awarding sentence. I have heard Mr. Pasbola, ld. Advocate
for the accused. He submitted that the accused is in jail since last
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7 years and also this is not the rarest rare case. He submitted
that lenient view be taken while awarding the sentence.
261. Mrs.Ghodke, ld. APP for the State, who argued the
case, is absent when called. Ld. APP Mr. Kenjalkar present. I
have heard ld. APP Mr. Kenjalkar. He submitted that the present
case would not cover under the rarest rare case and therefore, the
accused be punished according to law.
262. Having given my anxious thought to the arguments
advanced before me by Mr. Pasbola, ld. Advocate for the accused,
and Mr. Kenjalkar, ld. APP for the State, and also after hearing
the accused, I am of the opinion that this is not the case which
would cover under the rarest rare case and only alternate
punishment is life imprisonment. Mr. Pasbola, ld. Advocate for
the accused, submitted that set off be given to the accused u/s.428
of the Cr.P.C. However, in my opinion, when the life
imprisonment is awarded to the accused, question of granting set
off does not arise. In view of this, I proceed to pass the following
order:-
- 198 - J- SC 685/07
ORDER
1. Accused Manish Naresh Thakur is convicted u/s. 235(2) of
the Code of Criminal Procedure for the offence punishable u/s.302
of the Indian Penal Code and he is sentenced to suffer
Imprisonment for Life and pay fine of Rs.1,000/- (Rs. One
Thousand only), in default, to suffer R.I. for one year.
2. Accused Manish Naresh Thakur is also convicted u/s. 235(2)
of the Code of Criminal Procedure for the offence punishable u/s.3
r/w. Sec.25 of the Arms Act and he is sentenced to suffer R.I. for
one year and pay fine of Rs.250/-, in default to suffer R.I. for one
month.
3. Accused Manish Naresh Thakur is also convicted u/s. 235(2)
of the Code of Criminal Procedure for the offence punishable u/s.4
r/w. Sec.27 of the Arms Act and he is sentenced to suffer R.I. for
three years and pay fine of Rs.500/-, in default to suffer R.I. for
one month.
4. Substantive sentences imposed on the accused shall run
concurrently.
5. Seized property vide panchanama Exh.30 be destroyed after
appeal period is over. Bullet seized under panchanama (Exh.30)
be sent to the Commissioner of Police for disposal according to
law. The property seized under panchanama Exh.100-A i.e. two
country-made revolvers and seven cartridges including four live
cartridges be destroyed after appeal period is over and sent to the
Commissioner of Police for disposal according to law.
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6. Mobile instrument of Nokia make model no.6101 of silver
and black colour seized vide Exh.56-A be returned to the PW-7
Shaunak Layek after appeal period is over. Telephone bills and
pieces of sim card be destroyed after appeal period is over.
Clothes of the accused seized under panchanama (Exh.190) be
destroyed after appeal period is over.
7. Copy of the Judgment be given to the accused free of costs.
8. Transcription of the judgement shall be expedited and copy
of full text of the Judgment be supplied to the accused at the
earliest.
Judgment dictated and pronounced in the open Court.
(D.W. DESHPANDE)
Date : 04/03/2014. Addl. Sessions Judge,
Gr. Mumbai.
Date of dictation : 04/03/2014
Date of Transcription : 04 to 06/03/2014
Date of signature :
Date of delivery to C.C.S. :

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