Bombay High Court
Victor @ Vicky Julias Manthero vs The State Of Maharashtra on 8 June, 2022
Author: N.R. Borkar
Bench: Prasanna B. Varale, N.R.Borkar
J-cr-Apeal-668-10.doc
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
DINESH
DINESH SADANAND
SADANAND SHERLA
SHERLA Date:
CRIMINAL APPELLATE JURISDICTION
2022.06.08
17:14:59
+0500
CRIMINAL APPEAL NO. 668 OF 2010
Victor @ Vicky Julias Manthero
Age -26 yrs. Occ. Nil,
R/o. Jesainta House, near Dena Bank,
Malol Maroshi Road, Andheri (E), Mumbai.
(presently in Yerwada Central Jail) ..Appellant
Vs.
State of Maharashtra
(Through Ofcer in-charge
Hinjwadi Police Station,Pune) ..Respondent
WITH
CRIMINAL APPLICATION NO. 121 OF 2016
IN
CRIMINAL APPEAL NO. 668 OF 2010
Vicky @ Victor Julias Manthera ..Applicant
vs.
State of Maharashtra ..Respondent
AND
CRIMINAL APPLICATION NO. 392 OF 2016
IN
CRIMINAL APPEAL NO. 668 OF 2010
Sapana Vikram Potdar ..Applicant
In the matter between
Vicky @ Victor Julias Manthera ..Appellant
vs.
State of Maharashtra ..Respondent
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Mr. Shantanu Phanse, Appointed Advocate for the Appellant in
Appeal No. 668 of 2010 and Application No.392 of 2016 and
for the Applicant in Application No. 121 of 2016.
Mr. Balwant V. Salunkhe i/b Mr. Santosh Musale for the
Applicant in Criminal Application No. 392 of 2016
Mrs. Geeta Mulekar, APP for the Respondent - State .
-------
CORAM : PRASANNA B. VARALE &
N.R.BORKAR, JJ.
RESERVED ON : 24.08.2021.
PRONOUNCED ON : 08.06.2022.
Dinesh Sherla
1/14
J-cr-Apeal-668-10.doc
JUDGMENT (PER: N.R. BORKAR, J.)
1] This appeal takes an exception to the judgment and order dated 16.08.2010 passed by the Sessions Judge, Pune in Sessions Case No. 37 of 2007.
2] The appellant, who was the accused before the trial Court, was tried for the ofences punishable under sections 342, 363, 328, 394, 302 and 201 read with 34 of the Indian Penal Code, 1860 (for short "IPC"). By the impugned judgment and order, the trial Court convicted :
a] Accused for the ofence punishable under sections 342, 363 and 394 of the IPC and sentenced him to sufer rigorous imprisonment for six months, two years and seven years respectively;
b] He is further convicted for the ofence punishable under section 328 of the IPC and sentenced to sufer rigorous imprisonment for two years; and Dinesh Sherla 2/14 J-cr-Apeal-668-10.doc c] Accused is further convicted for the ofence punishable under sections 302 and 201 of the IPC and sentenced to sufer life imprisonment and three months respectively;
3] It is the case of the prosecution that the deceased Vikram Vijay Potdar, who was resident of Mumbai, was working as Software Engineer with Infosys Company at Pune. On every Friday evening, he used to come to Mumbai and used to return back to Pune on following Monday.
4] According to the prosecution, as usual on 14.03.2006, he made phone call to his wife Sapana Potdar (PW-23) and informed her that he left Pune to come to Mumbai. He did not reach home within expected time. PW-23 Sapana therefore, tried to contact him on his mobile phone. However, the phone was out of coverage area. PW-23 Sapana therefore, informed this fact to her father PW-3 Arun Shrof. Thereafter, they took search of the deceased. As the deceased was not found, on the next day, i.e., 15.03.2006, PW-3 Arun lodged the Missing Report with Hinjwadi Police Station.
Dinesh Sherla 3/14 J-cr-Apeal-668-10.doc 5] According to the prosecution, on the same day, i.e., 15.03.2006, in the afternoon PW-23 Sapana received information about use of Debit and Credit Cards of the deceased. She therefore, informed this fact to PW-3 Arun, who in turn informed the same to Hinjwadi Police Station. On enquiry by PW-25 Masaji G. Kale, who was then working as PSI with Hinjwadi Police Station, it was found that purchases were made using Credit and Debit Cards of the deceased from Centre-One Mall, New Mumbai. According to the prosecution, the Credit/Debit Card was also used for purchasing Trump recharge coupons, that is the coupon used for recharging mobile phone of M.T.N.L. On enquiry, it was found that with the said recharge coupon, mobile phone No.9869331437 was recharged. PW-25 Kale made enquiry about the name of subscriber of the said mobile phone with M.T.N.L. and he was told the name of the subscriber as Kevin John Dais, resident of Dena Bank Lane, Marol Village, Andheri (E).
6] Pursuant to said information, PW-25 Kale along with panch witnesses and PW-3 Arun Shrof visited the house of Dinesh Sherla 4/14 J-cr-Apeal-668-10.doc Kevin Dias. The mother of Kevin was present in the house. During search of the house, various articles including empty boxes of mobile phones of Nokia model, one brand new Microwave Oven and some articles from Food Bazaar were found. According to the prosecution, the Credit Card and Debit Card standing in the joint name of deceased and PW-23 Sapana were also found on the T.V. set in the house. According to the prosecution, on enquiry with the mother of Kevin, it was found that said articles were brought by the present appellant/ accused who is brother of Kevin.
7] According to the prosecution, the mother of accused further disclosed to the police that all the aforesaid articles were brought in Tata Indica Car, which was parked outside the house. The Car was searched and during search a plastic container containing pink colour powder was found. 8] According to the prosecution, while the search was going on, the mother of present appellant/accused received a phone call. The said phone call was of present appellant/accused. PW-25 Kale took mobile phone from mother of accused and Dinesh Sherla 5/14 J-cr-Apeal-668-10.doc made enquiry with the present appellant/accused about the deceased. In response to it, the present appellant/accused disclosed to him that on 14.03.2006 he had dropped the deceased near Pen.
9] According to the prosecution, pursuant to the said information search for the deceased was taken in the area disclosed by the appellant/accused and ultimately, the dead body of deceased was found near village Jitegaon by the side of road.
10] Report thereafter was lodged with Hinjwadi Police Station. On the basis of said report, crime vide crime No. 48 of 2006 was registered for the ofence punishable under sections 302, 363, 342, 387, read with 34 of the IPC. 11] According to prosecution, in the month of February, 2006, the present appellant/accused, who is Driver by profession, had taken a Tata Indica Car, i.e., tourist vehicle, bearing registration No. MH-04/E-6072 from Tejinder Singh Sandhu (PW-17) to ply the said car on hire. The present Dinesh Sherla 6/14 J-cr-Apeal-668-10.doc appellant/accused with his brother Kevin, who during the course of investigation was found to be juvenile, used to ply the said Car on hire between Pune and Mumbai. They used to pick the passengers on Highway with a promise to take them to Mumbai or Pune. According to the prosecution, on the way they used to ofer sedative mixed drinks to the passengers and when the passengers used to be under the infuence of said sedatives, they used to rob them of their valuables and then used to throw them out of their car.
12] According to prosecution, the present appellant/accused sometime before the present incident, procured 60 tablets of Ativan (a tranquilliser) from Chemist, viz., Silver Chemist situated in the vicinity of his house. According to the prosecution on 14.03.2006 at about 16:30 hrs, the present appellant/accused along with Kevin (Juvenile) picked up the deceased from Wakad, Pune and on the way to Mumbai, they ofered him Cold-drink by adding sedative drug viz. Ativan. According to the prosecution, while the deceased was under
the infuence of sedative, the present appellant/accused and his brother Kevin robbed him of Credit Card and Debit Cards Dinesh Sherla 7/14 J-cr-Apeal-668-10.doc and other valuables and then threw him out of their car near Village Jitgaon, Taluka Pen, District Raigad. It is alleged that the deceased died due to cardio respiratory arrest due to Lorazepam poisoning.
13] The trial Court while convicting the present appellant/accused recorded the following fndings:
"58) In view of this material, it has been proved beyond reasonable doubt that the deceased met with homicidal death on Pune-Mumbai Road due to poisoning by tranquilliser Lorazepam on 14th March, 2006. On the very same date, accused No.1 - Vicky told his tourist car controller-Tejindersingh that he would go on Mumbai-Pune, Pune - Mumbai trip. The powder of the said tablet was found in the Tata Indica car, which was in control and custody of accused No.1-
Vicky. Immediately after the incident of missing of the deceased, the accused was found purchasing various costly items in Centre-One Mall and in the nearby area through the I.C.I.C.I. Bank credit card of the deceased. The said card was found on the T.V. set in his house. He has a made a statement leading to the recovery of the gold ingot and the gold pendent, which was identifed by the wife and father-in-law of the deceased. Further, he had absconded from the State of Maharashtra and was arrested in Rajasthan.
59) All these circumstances on record are proved beyond reasonable doubt. They form a complete chain which leads to the only hypothesis that accused No.1 Vicky, with some participation from his younger brother - juvenile Kevin, has committed the ofences. Hence, point Nos.2, 3 and 4 are answered in the afrmative."
Dinesh Sherla 8/14 J-cr-Apeal-668-10.doc 14] After this appeal was listed for hearing, it was informed to this Court that the present appellant/accused was enlarged on parole leave on 25.10.2011 and since then he is absconding. Considering this fact, we appointed Advocate Mr. Shantanu Phanse to represent the appellant. 15] We have heard the learned appointed advocate for the appellant/ accused and learned APP for the respondent -State. 16] The Learned Counsel for the appellant/accused submits that according to the prosecution on the day of incident, the deceased had travelled in the car of the appellant/accused, however, there is no evidence on record to that efect, though it was possible for the prosecution to collect CCTV footage from Toll Collection Centres. It is further submitted that according to the prosecution, the credit/debit cards of the deceased were used to purchase mobile recharge coupons and other articles from Central-1 Mall, Navi Mumbai. It is submitted that PW-7 Ganesh Krishna Swami from whose shop alleged mobile recharge coupons were purchased has admitted that at the relevant time there were CCTV cameras in Dinesh Sherla 9/14 J-cr-Apeal-668-10.doc the Central-1 Mall, Navi Mumbai. It is submitted that Prosecution has, however, not collected the CCTV footage from the said Central-1 Mall. It is submitted that there are lot of discrepancies in the evidence of panch-witness on alleged seizure of credit/debit cards and therefore the trial court ought not to have relied upon his evidence. It is submitted that the Trial Court has rightly discarded the evidence in relation to test identifcation parade. It is submitted that considering over all facts and circumstances, the trial court was not justifed in convicting the appellant/accused for alleged ofence. 17] On the other hand, the Learned APP submits that credit/debit card of the deceased were found at the house of the present appellant/accused. It is submitted that deceased died due to Lorazepam poison, which was found in the car of the present appellant/accused. It is submitted that considering the overall evidence on record, the trial court was justifed in convicting the accused.
18] The fact that the deceased was resident of Mumbai and was working as Software Engineer with Infosis Company at Dinesh Sherla 10/14 J-cr-Apeal-668-10.doc Pune has not been challenged. According to PW-23 Sapana Potdar, the wife of deceased, every Friday evening, the deceased used to come to Mumbai and used to return back to Pune on the following Monday morning. According to PW-23, on 14th March, 2006, deceased called her on phone and told her that he left Pune to come to Mumbai. After about 3 hours, she rang up on the mobile phone of deceased but it was out of coverage area. The deceased did not reach home. They took search of the deceased, however he was not found. On the next day morning, they lodged a missing report with Hinjwadi Police Station.
19] PW-23 stated that on 15th March, 2006 she received information about the use of credit/debit cards of the deceased. She gave this information to her father (PW-3), who in turn informed about it to Hinjwadi Police Station. PW- 23 has identifed credit/debit cards of the deceased, so also gold pendent of Lord Balaji. In the cross-examination, there is no serious challenge to the evidence of PW-23. Dinesh Sherla 11/14 J-cr-Apeal-668-10.doc 20] According to prosecution, after receipt of information about use of credit/debit cards of the deceased, enquiry was made and it was found that credit/debit card was used for purchasing Trump mobile phone recharge coupon and the said recharge coupon was used for recharging the mobile phone of the brother of the present appellant/accused, namely, Kevin. Search was conducted at the house of the appellant/accused. According to the prosecution, during the search, the credit/debit cards of the deceased were found at the house of the present appellant/accused. Similarly, plastic bag containing Tranquiliser power was found from the car of the appellant/accused. To prove the said facts, the prosecution has examined PW-4 Amar Bahadur Singh, panch witness on the said seizure.
21] According to PW-4, in his presence, the house of appellant/accused was searched. During search of the house of the accused in addition to other articles, the credit/debit cards of the deceased were found. According to PW-4, one Indica Car which was parked outside the house of accused was also searched. According to him, one plastic bag containing Dinesh Sherla 12/14 J-cr-Apeal-668-10.doc pink colour powder was found in the car. PW-4 was cross- examined at length. However, no material could be elicited in the cross-examination to doubt the version of PW-4. 22] According to the prosecution, mobile recharge coupon was purchased by using credit/debit card of the deceased and the said recharge coupon was used for recharging the mobile phone of brother of present appellant/accused. The investigating ofcer has specifcally deposed all these facts. There is evidence of shop owners about purchase of articles by the accused by using credit/debit cards. The defence of the accused is, however, only of false implication. 23] In addition to above, pink powder which was recovered from the Indica Car was sent for chemical analysis. The C.A. report is at Exhibit 59. Report shows that the said powder was Tranquilliser Lorazepam. C.A. Report at Exhibit 60 shows that same Lorazepam poison was found in the 'viscera' which was sent for chemical analysis. Considering the overall evidence on record, the prosecution case cannot be doubted only on the ground of non-collection of CCTV footage. The trial court was Dinesh Sherla 13/14 J-cr-Apeal-668-10.doc therefore justifed in convicting the accused. No interference is called for in the impugned Judgment and Order. In the result, the following order is passed.
ORDER
1] Appeal is dismissed.
2] In view of dismissal of appeal, Criminal Application
No. 121 of 2016, which is for early hearing/release of appellant on bail, does not survive and same is disposed of.
3] Criminal Application No. 392 of 2016 for return of properties is allowed in terms of prayer clause (a) and accordingly, disposed of.
[N.R.BORKAR, J.] [PRASANNA B. VARALE, J.] Dinesh Sherla 14/14