Bombay High Court
Krunal @ Golu S/O Anil Jaiswal And Others ... vs State Of Maharashtra, Through P.S.O. ... on 18 August, 2017
Bench: B. P. Dharmadhikari, V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.205/2015
1. Krunal @ Golu s/o Anil Jaiswal,
aged about 28 years, Occ. Teacher,
r/o Gram Sawargaon, Near Bus Stop,
Tq. Narkhed, Dist. Nagpur.
2. Pradeep Mahadeorao Sahare,
aged about 27 years, Occ. Labourer,
R/o Gram Rajani, Post Dorli,
Tq. Narkhed, Dist. Nagpur.
3. Umesh @ Bhurya s/o Mohan Marathe,
aged about 28 years, Occ. Labourer,
r/o Rohidas Nagar, Balaji Square,
Near House of Ganesh Zade,
Yavatmal, Dist. Yavatmal.
4. Shrikant s/o Bhaucharan Sonekar,
aged 31 years, Occ. Labourer,
r/o Hudkeshwra, Rajapeth,
Plot No.93, Nagpur.
(All accused are in jail) .....APPELLANTS
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Police Station,
Nandanvan, Nagpur. ...RESPONDENT
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Mr. S. S. Jaiswal, Advocate for appellants.
Mr. S. S. Doifode, A.P.P. for respondent-State.
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CORAM:- B. P. DHARMADHIKARI & V. M. DESHPANDE, JJ.
Date of Reserving the Judgment
:02.05.2017
Date of Pronouncing the Judgment
:18.08.2017
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J U D G M E N T (Per : V. M. Deshpande, J.)
1. The present appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge-2 Nagpur in Sessions Trial No. 294/2011. By the impugned judgment and order of conviction the appellants are convicted for the offence punishable under Section 302 read with Section 120-B of the Indian Penal Code and they are directed to suffer rigorous imprisonment for life. Insofar as the fine amount is concerned, the appellant no.1-Krunal is directed to pay a fine of Rs.1,00,000/- and in default to suffer simple imprisonment for 2 years. The appellant no.2-Pradeep, appellant no.3-Umesh and appellant no.4- Shrikant were directed to pay a fine of Rs.5,000/- each and in default to suffer simple imprisonment for 2 years. PROSECUTION CASE:
2. Murlidhar Pandurang Burade (PW30) was attached to Police Station, Nandanvan, Nagpur as Police Inspector from 09.03.2009 to 21.03.2011. On 11.03.2011 at about 11.00 a.m. he received message from Control Room that one girl is assaulted near KDK College. He therefore rushed to the spot along with his staff. When he reached to Darshan Colony in front of Sachin Beer ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 3 apeal205.15.odt Bar, he noticed that blood was scattered there. There, he got information that the injured girl who was assaulted is moved to the Medical College and Hospital. He therefore deputed his staff on the spot of the incident and proceeded to GMCH, Nagpur. There he met Dr. Singh in the Casualty Department. He informed him that the girl was brought dead and her dead body is sent to Mortuary. He therefore went to the mortuary and conducted inquest over the dead body. The inquest panchanama is at Exh.-
138. While preparing the inquest panchanama, he came to know the name of the deceased as Monika Dashrath Kirnapure. He thereafter contacted Police Station from where he got knowledge that one person has lodged the complaint about the incident.
3. Harishchandra Kaithe (PW28) was Assistant Sub Inspector and was attached to Police Station, Nandanvan. On 11.03.2011 his duty hours were from 10.00 a.m. to 10.00 p.m. On the said day, at about 11.15 a.m. Umesh Avtahnkar (PW1) came to the Police Station and gave his oral report (Exh.73). Upon his report, Harishchandra Kaithe registered a crime vide Crime No. 51/2011 against the unknown persons for an offence punishable under Section 302 read with Section 34 of the IPC and Sections 4 ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 4 apeal205.15.odt and 25 of the Arms Act. Harishchandra also informed about the same to PI Burade (PW30).
4. As per the report Exh.-73, informant Umesh Avthankar, a teacher resides at plot no. 74, Darshan Colony near KDK College, Nandanvan, Nagpur. He is engaged in the profession of taking tuitions for the students of 5th to 10th standard. His tuition class hours are 7.00 O'clock to 9.30 in the morning and from 05.00 O'clock to 8.00 in the evening.
As per the oral report, on 11.03.2011, after finishing his tuition classes when he had been to his house, he noticed gathering of the persons in front of Sachin Bar. Therefore, he went there. On reaching to the said spot, he noticed a girl aged 20 to 21 years was lying there in an injured condition. He also noticed that a knife was pierced from her shoulder and it was fixed in the body. He was informed by 3-4 unknown persons from the said gathering that 3-4 persons assaulted on the girl by means of knife and they ran away. He therefore immediately informed the said fact to Mr. Mama Dhote, a Corporator from Ward No. 97 on cellphone. Mama Dhote (PW2) asked Umesh, the informant that he should immediately move the girl to the hospital. He and his ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 5 apeal205.15.odt one friend Sumedh took the injured girl to GMCH, Nagpur in an auto rickshaw. As per the FIR though she was alive, she was not in a position to speak. When they reached to the Hospital, doctors declared her "brought dead". Thereafter, police came to the hospital. There they revealed the identity of the deceased to this informant and it was also made known to him that she was taking education in 3rd year of engineering at Radhikabai Mulak College.
5. After registration of the crime, Harishchandra Kaithe (PW28) went to the spot. In presence of the panchas, spot panchanama was drawn at Exh.-83. He also seized simple as well as blood mixed earth from the spot and also took the blood on the cotton swab and blood stained small concrete stone. The articles were seized and sealed.
6. While drawing the inquest panchanama, PI Muridhar (PW30) noticed that knife was present in the back of the deceased. He took out the said knife with the help of the doctor and seized it in presence of two panchas by drawing the seizure panchanama Exh.-139. PI Murlidhar Burade (PW30) took the investigation of Crime No.51/2011 to him. He seized the clothes of the deceased ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 6 apeal205.15.odt under seizure panchanama Exh.-153. He prepared teams of police personnel to search the assailants. The broad daylight brutal murder in a thickly populated locality resulted into agitations from the people resulting into the question of law and order. He therefore was busy in tackling the said law and order situation. On 16.03.2011, he handed over the investigation of the crime to Police Inspector Giri of Crime Branch (PW29).
7. Investigation of Crime No.51/2011 was entrusted to PI Madhav Giri (PW29) by order of Commissioner of Police, Nagpur. He received the investigation papers which consist of FIR, spot panchanama, inquest panchanama, seizure memo, clothes of the deceased, seizure of weapon and bag from the person of the deceased. On 16.03.2011 itself PI Giri visited the spot of incident. He noticed that the place of occurrence was a public place. The incident occurred in broad daylight. PI Giri felt that the incident must have been seen by the persons. He therefore instructed the informants to find out the people who were present on the spot at the time of incident. During investigation, he was informed the names of 18-20 persons who were present at the time of incident. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
7 apeal205.15.odt During investigation, he recorded statement of Mohammad Mudassir @ Rajakhan (PW5) on 16.11.2011 itself.
On the next day, he recorded statements of Pravin Tambore (PW6) and Raju Sarode (PW7) and other witnesses. From the statements of witnesses, PI Giri was able to get the description of the culprits. He therefore deputed teams and also instructed the secret informants for searching the culprits as described by the witnesses.
On 19.03.2011, he recorded statements of some witnesses. On 21.03.2011 he recorded statements of Vandana Kirnapure (PW3) and Dashrath Kirnapure (PW4), parents of the deceased.
8. On 31.03.2011, PI Giri received a secret information from the informant about involvement of the appellant no.4- Shrikant Sonekar in the crime. He was therefore called and during the detailed inquiry with him, it was revealed about the involvement of the appellant no.4 in the crime. Therefore on 01.04.2011, appellant no.4-Shrikant Sonekar was arrested under arrest panchanama Exh.-210. At the time of his arrest, the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 8 apeal205.15.odt investigating officer also seized mobile from his possession under seizure panchanama Exh.-158.
9. During further investigation, he revealed involvement of appellant no.1-Krunal, appellant no.2-Pradeep, appellant no.3- Umesh and accused Raju Yadav, who remained absconding till culmination of the trial. The investigating officer searched for them in their houses, their friends and relatives but they were not traced. The investigating officer found that appellant no.1-Krunal and appellant no.2-Pradeep are residents of tahsil Katol, district Nagpur. On the secret information which he received it was revealed to him that they are at Chandrapur and therefore police team was sent to Chandrapur. They were brought at Nagpur. Upon interrogation with them, PI Giri found their involvement in the crime and therefore they were arrested vide arrest panchanama Exhs.211 and 212 respectively.
At the time of arrest of the appellant no.1-Krunal, 2 mobile handsets of Nokia company and 8 SIM cards were found with him. Those were seized in presence of panchas by drawing seizure panchanama Exh.-195.
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9 apeal205.15.odt On 02.04.2011, the investigating officer sent a request letter to Assistant Commissioner of Police for obtaining call detail reports and customer ID of the mobile phones and SIM cards those were found in possession of accused persons vide Exh.-217.
10. On 03.04.2011, appellant no.4-Shrikant Sonekar when he was in Police Custody Remand shown his willingness to make voluntary statement. His statement was recorded in presence of panchas. By the said statement, he agreed to show the place where he kept the weapon, the place where the cell phone of the deceased was burnt and the place where he handed over his shirt and also the shirt which was then obtained by him from his uncle. Admissible portion of his memorandum statement is at Exh.-95.
Pursuant to the disclosure statement, appellant no.4- Shrikant led the police party with pancha and took out a knife which was hidden under the shrubs near Nag river. The knife was stained with blood and mud. It was seized and sealed. The seizure panchanama is at Exh.-96. Thereafter, appellant no.4 led them to the shop of his uncle at Gandhibagh. The shirt was seized from the house of his uncle Rameshwar which was stained with blood. It was seized vide recovery panchanama Exh.-97. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
10 apeal205.15.odt Thereafter the appellant no.4 took the police party to Mhalgi Nagar from where he procured the shirt of Rameshwar which was seized under panchanama Exh.-98.
11. On 03.04.2011, the investigating officer arrested the appellant no.3-Umesh Marathe under arrest panchanama Exh.-
213. One silver ring and one T-shirt was seized from him under seizure panchanama Exh.-218.
12. On 04.04.2011, the appellant no.3-Umesh made his disclosure statement in presence of panchas and he agreed to show the place where he had hidden the shirt which was on his person at the time of incident. The admissible portion from the statement of appellant no.3-Umesh is at Exh.-205. From the place shown by the appellant no.3, the shirt was seized under seizure panchanam Exh.-206.
13. During investigation, statements of other witnesses were also recorded. The blood sample of the accused persons were seized under seizure panchanamas Exh.-196 to 202. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
11 apeal205.15.odt On 08.04.2011, the investigating officer arrested accused no.5-Rameshwar and accused no.6-Geeta.
14. On 26.04.2011, the investigating officer requested the Additional Commissioner for providing Executive Magistrate for holding test identification parade vide letter Exh.-225.
On 06.05.2011, Executive Magistrate conducted test identification parade. Since, after recording of the statements, the eye witnesses Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) were out of town and as the accused persons were lodged in different District Prisons outside Nagpur, the test identification parade could not be conducted prior to 06.05.2011.
Call detail records were also obtained. After completion of the investigation, charge-sheet was filed.
15. After committal of the trial to the Court of Sessions, the learned Additional Sessions Judge, Nagpur framed the charge against the appellants and accused no.5-Rameshwar and accused no.6-Geeta. All the accused persons denied the charge and claimed for their trial.
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12 apeal205.15.odt In order to prove the charge against the accused persons, the prosecution has examined in all 30 witnesses and also relied on various documents which were proved during the course of trial.
All the appellants were also examined under Section 313 of the Cr. P. C. and incriminating evidence that was appearing against them was brought to their notice. In chorus, they stated that they are falsely implicated in the crime and they belong to good family. No defence witness was examined by them.
After a full dress trial, the learned Judge of the Court below acquitted the accused no.5-Rameshwar and accused no.6 Geeta from the charge of the offence punishable under Section 201 and 202 of the Indian Penal Code. The learned Judge also acquitted appellant no.1-Krunal and appellant no.2-Pradeep of the offence punishable under Section 111 of the IPC. The appellants were also acquitted of the offence punishable under Sections 4 and 25 of the Arms Act and Section 135 of the Bombay Police Act. However, convicted the appellants for the offences punishable under Section 302 read with Section 120-B of the IPC and directed that they should suffer rigorous imprisonment for life and also directed payments of fine by them.
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13 apeal205.15.odt SUBMISSIONS:
16. Heard Mr. S. S. Jaiswal, learned counsel for the appellants and Mr. S. S. Doifode, the learned A.P.P. for the State.
Mr.Jaiswal, learned counsel for the appellants vehemently submitted that the appellants are falsely implicated in the crime. He submitted that the evidence of eye witnesses Mohd. Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) is required to be discarded since their statements are recorded at belated stage. According to him, their evidence is marred by improvements. He also pointed out that the conduct of these witnesses of not reporting the matter raises a reasonable doubt as to really whether they were present on the spot of the incident at the time of attack on the deceased. He has relied on various judgments of the Hon'ble Apex Court to buttress his point that the delay in recording of the statements of the eye witnesses which remained unexplained renders the evidence of the said witnesses as untrustworthy. The judgments relied upon by the learned counsel for the appellants on this point are as under:
1. Alil Mollah and anr. vs. State of W.B.; (1996) 5 SCC 369.
2. Ashraf Hussain Shah vs. State of Maharashtra;
1996 CRI. L. J. 3147.
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3. State of Maharashtra vs. Raju Bhaskar Ptophode;
2007 (4) Crimes 193 (SC)
4. The State of Tamil Nadu rep. By Secretary to Government Vs. Subair alias Mohamed Subair & Ors.; AIR 2009 SC 1189
5. Gopal Singh and others Vs. State of Madhya Pradesh;
(2010) 6 SCC 407.
6. Laxman Bapurao Ghaiwane vs. State of Maharashtra;
2012 (4) Bom. C. R. (Cri) 580.
7. Kishor Pandurang Garad vs. State of Maharashtra;
2012 (4) Bom. C. r. (Cri). 589
8. Ganesh Bhavan Patel and anr. vs. State of Maharashtra;
AIR 1979 SC 135.
He also attacked the conduct on the part of the prosecution inasmuch as it is the submission that all the eye witnesses surfaced only after the investigation was handed over to PI Giri (PW29). He also attacked the evidence of Vrushali Sambhare (PW13) with whom there was a love affair of the appellant no.1, which was failed. He submitted that it is the case of the prosecution that there was intention on the part of the appellant no.1 to eliminate Vrushali Sambhare however, mistakenly the deceased Monika was done to death. He submitted that there was no proper investigation about the special motive and therefore the prosecution must fail.
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17. The learned counsel for the appellants relied on various decisions in respect of the test identification parade and submitted that the identification by the prosecution witnesses needs to be discarded. He therefore submitted that the appeal be allowed.
18. Per contra, Mr. Doifode, the learned A.P.P. vehemently submitted that not only through the eye witnesses but also through the unbroken chain of circumstances, the prosecution has proved the guilt of the appellant. He submitted that Mohd. Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) who identified appellant nos.3 and 4 as assailants not only during the course of test identification parade but also from the witness box as the assailants of Monika. He also submitted that from the circumstances which were duly proved by the prosecution, appellant no.1-Krunal and appellant no.2-Pradeep who were in contract with each other hatched a criminal conspiracy to eliminate Vrushali (PW13). He also submitted that the appellant nos. 1 and 2 were in touch with Shailaja (PW11) till the time of incident. He also relied on various decisions of the Hon'ble Apex Court and prayed for dismissal of the appeal. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
16 apeal205.15.odt EVALUATION OF PROSECUTION CASE:
(A) Nature of death of deceased Monika:
19. Exh.-138 is the inquest panchanama. It was drawn by Murlidhar (PW30) in presence of pancha when he visited the Mortuary of GMCH, Nagpur where the dead body of Monika was kept. This document is admitted by the defence during the course of trial. The investigating officer and pancha noticed in all 10 injuries on the person of the deceased.
20. The prosecution has examined Dr. Vipul Ambade (PW17) who conducted post mortem over the dead body of Monika. Dr. Vipul, prior to the autopsy over the dead body of Monika has conducted more than 3500 post mortems. Thus, Dr.Vipul, who is an Associate Professor, is an experienced doctor.
21. While conducting autopsy, Dr. Vipul noticed that there were 9 cuts over the full shirt with sleeves on the body of the deceased. He also noticed 5 cuts over the white inner baniyan.
One school bag was hanging on the shoulder of the dead body having one cut. On external examination of the dead body, Dr.Vipul Ambade noticed following injuries: ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
17 apeal205.15.odt "1. Incised wound over medial aspect of left arm lower 3rd size 1 ½ " X ¾" muscle deep, traverse, margin clean.
2. Stab wound over left flank just above iliac crest in anterior axillary line 1 " X ½ " cavity deep, transverse angles acute, margins clean, directed medially and upward.
3. Stab wound left interscapular space at T2 level, 1" left midline, ¾" X 2" muscle deep, horizontal angles acute, margin clean, directed laterally and downward.
4. Stab wound 2' below injury no.3, 1 ¼ ' X ½"
X cavity deep, horizontal angles acute, margins clean directed laterally and downward.
5. Stab wound right scapular region, 2 ½" right to midline, oblique, 1 ½ X ½" X cavity deep, angles acute, margin clean directed medially and upward.
6. Stab wound- left axillary region in posterior axillary line, 1 ½ X ½" X cavity deep, at level of nipple angles acute margin clean, directed anteriorly and medially.
7. Two stab wounds over back at level of T-8, ½ apart, 4" acute, margin clean, directed medially and downward.
8. Stab wound back at level of T-7, 1' right to midline verticle. ½ X ¼ X muscle deep, angles acute, margin clean directed anteriorly.
9. Stab wound left flank posteriorly 4" left to ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 18 apeal205.15.odt midline 1 ¾ X ½" X cavity deep, angles acute margin clan, directed anteriorly medially and upward.
10. Stab wound, back at level of T-7, 5 ½ right to midline 1' X ½" X cavity deep, angles acute, margin clean, directed medially."
As per the evidence of Dr. Vipul all the injuries were ante mortem. He also noticed following internal injuries on the dead body of the deceased.
"1. Cuts present to the walls of thorax and pleura corresponding to external injury no.3,4, 5, 6, 7, 8 and 10 with 1 ½ liter blood and clots present in the plura cavity.
2. Through and through stab wound to lower lope of right lung corresponding to injury no.10.
3. Stab wound present to upper lope of right lung near lower margin corresponding to injury no.5.
4. Through and through stab wound to lower lob of left lung corresponding to injury no.6.
5. Cuts present to wall of internal peritoneum corresponding to injury no.2 and 9 with approximately 750 ml of blood and clots in the abdomen cavity.
6. Cuts present in mesentry of small intestine corresponding to injury no.2 and 9.
7. Stab wound to spleen corresponding to injury no.2.
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19 apeal205.15.odt According to the autopsy surgeon, injury nos, 2, 4, 5, 6, 9 and 10 were individually sufficient in the ordinary course of nature to cause death. Dr. Vipul prepared post mortem notes and they are at Exh.-135. As per the autopsy surgeon, the cause death was shock and hemorrhage due to stab wound to the vital organs.
In view of the evidence of Dr. Vipul and the injuries as mentioned in column no.17 of the post mortem report Exh.-135 there cannot be any hesitation in our minds that the nature of unnatural death of Monika was homicidal one. (B) FIR:
22. The printed FIR Exh.-74 is drawn on the basis of the oral report Exh.-13 lodged by Umesh Avthankar (PW1). As per the FIR, Umesh (PW1), after returning from conducting his tuition classes which he runs at Kharbi, Saibaba Nagar by name 'Abhinav Tuition Classes' was present in the house. He noticed a gathering of various persons behind Jai Ganga Maa Apartment, in front of Sachin Bar at plot no.20 on the road. He therefore went there.
After reaching there he noticed a girl aged between 20-21 years was lying in an injured condition having injuries on her back, face ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 20 apeal205.15.odt and waist. There he was informed by some unknown persons that 3-4 unknown persons assaulted her and they ran away. He therefor informed the said fact to Mama Dhote (PW2) who directed him to shift the injured to the hospital. Therefore, Umesh and his friend Sumedh shifted the injured to the hospital in an auto rickshaw. Though that time she was alive, she was not in a condition to speak. After reaching to the hospital, before any treatment the Doctor declared her dead.
23. From the FIR it is clear that the first informant is not a witness to the actual assault. His evidence which is in conformity with the FIR shows that when he reached to the spot, the injured was having injuries on her body and one knife was pierced into her left shoulder and it was present there.
The fact of laying the girl in an injured condition was immediately conveyed by Umesh to Moreshwar @ Mama Dhote (PW2) on phone. This is corroborated by Moreshwar Dhote (PW2) that he has received a phone call from Umesh (PW1).
24. In the FIR itself it is stated that it was revealed to the first informant on the spot by some unknown persons who were ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 21 apeal205.15.odt present on the spot that 2-3 persons assaulted on the girl. Thus, it is clear that the incident of assault was witnessed by some persons.
The conduct of Umesh shows that he is a dutiful and concerned citizen who shifted the injured to the hospital. As a concerned citizen, he appears to have made inquiries though cursorily with the persons who were present as to whether anybody has witnessed the incident.
There was no reason for Umesh (PW1) to state incorrect fact while lodging the report that it was revealed to him by some unknown person that she was attacked by unknown assailants.
The learned counsel for the appellants invited our attention to the cross-examination of Umesh and submitted that Umesh has admitted that none had narrated to him who had stabbed the girl.
In the FIR or even from the witness box it was never the claim of Umesh that anybody has narrated to him the name of any of the assailants.
25. Crime No.51/2011 was registered on the basis of the oral report lodged by Umesh by Harishchandra Kaithe (PW28). ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
22 apeal205.15.odt The report was lodged against the unknown persons. The report was lodged immediately.
From the FIR and from the evidence of Umesh (PW1) that the prosecution has established that the deceased was attacked. The said incident is witnessed by 2-3 persons. During the course of investigation, ultimately it was revealed that Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) had witnessed the incident of assault on the deceased.
(C) About deceased Monika:
26. Vandana Kirnapure (PW3) and Dashrath Kirnapure (PW4) are parents of deceased Monika. It is stated that Monika was taking education at KDK Women's Engineering College. She was studying in 3rd year. She was residing at Pratibha Pawar Women's Hostel at Nandanvan. She was having a cellphone.
27. The version of parents of Monika that she was studying in KDK Women's Engineering College and was staying in Pratibha Pawar Women's Hostel is corroborated by Shailaja Shende (PW11) and Vrushali Sambhare (PW13).
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28. The uniform which Monika used to put on her person while attending the college is similar to the uniform which Vrushali Sambhare (PW13) used to put on her person as it could be seen from the evidence of Shailaja (PW11) and Vrushali (PW13).
As per the evidence of Shailaja, the deceased was slim and fair in complexion and was about 5.5" tall.
Vrushali (PW13) is also slim and was having near about same height as that of the deceased and both Monika the deceased and Vrushali (PW13) used to go to their college on foot, is the evidence of Shailaja (PW11).
The description of the deceased and Vrushali (PW13) is required to be observed since it is the case of the prosecution that the accused persons were intending to eliminate Vrushali. However at the time of the assault they mistook the deceased Monika as Vrushali and killed her.
29. As per the version of Vandana (PW3) mother of deceased Monika, she used to contact her on cellphone. Her evidence shows that on 11.03.2011 at about 10.30 a.m. i.e. the date and time of assault when Vandana was at Ramtek she ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 24 apeal205.15.odt received a phone call from Monika. It is her evidence that when they were talking, she heard a sound of shriek. Therefore, Vandana made inquiry. However, there was no reply. Hence she disconnected the said call and then again tried to contact. However, the said call was not materialized.
In the cross-examination itself, Vandana has described the shriek from Monika as, "Aai ga" (Oh! Mother). She also stated from the witness box that before that shriek, Monika informed her that there is a good news since she was declared winner in a presentation and on the day of the incident she was going for her viva and therefore she asked for blessings. That time Vandana gave her best luck. As per Vandana, thereafter immediately she heard the shouts of Monika.
30. From the evidence of Shailaja it is brought on record that generally the girls of hostel used to tie scarf to their faces while going to the college.
Vrushali (PW13) not only corroborates the said aspect but also stated that whenever she used to go out of the hostel she used to tie scarf on her face so also the deceased Monika also used to tie scarf to her face when she used to step out of the hostel. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
25 apeal205.15.odt (D) Evaluation of evidence of eye witnesses:
31. As per the evidence of the prosecution, the incident of assault was witnessed by Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) Mohd. Mudassir (PW5) is also known as Raja Khan. As per his evidence when he was present in the house at Shrinagar where the incident took place at about 10.45 a.m. he heard loud shouts. Therefore, he came out of his house. That time he noticed two boys were assaulting a college girl by means of knife. As per his evidence, he witnessed the incident from about 15-20 ft. As per his evidence, he raised shouts and ran towards the injured.
Some other persons also ran towards the injured. By that time, the assailants ran away. As per Mohd. Mudassir, when he reached near the girl, she was breathing and he noticed that a knife was stabbed in her shoulder from behind and he could see that only the handle of that knife was outside.
From the witness box, he gave the description of the assailants as one was tall and another was dwarf and they were aged between 21 to 22 years. It is also his evidence that both of them were having knives with them. The taller one took his knife along with him so also the cellphone of the girl. From the witness ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 26 apeal205.15.odt box, he identified the assailants as accused no.3-Umesh and accused no.4-Shrikant as assailants. He also pointed out that it is accused no.3-Umesh who gave a knife blow on the shoulder of the girl. This prosecution witness also identified the knives which were shown to him. He also states on oath that the victim girl was wearing gray coloured pant and yellow coloured shirt and blue coloured shoes. He also identified her scarf.
32. Pravin Tambore (PW6) states that on the date and time of the incident, he had been to Nandanvan locality for his work as property dealer. At the time of the incident, he was standing near a pan shop in front of Sanchin Beer Bar which is on the other side of the road. On oath the said Pravin (PW6) states that the incident occurred at about 15-20 ft. away from him. He witnessed two accused were assaulting one girl with knives. He ran towards the spot. That time, the assailants fled away. He found that the girl was lying and the knife was stabbed to the backside of her shoulder. He states that two persons from the persons gathered there took her in an auto rickshaw.
Pravin (PW6) also gave description of the assailants that one was tall and another was short. Also from the witness ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 27 apeal205.15.odt box he identified the accused no.3 Umesh and accused no.4- Shrikant as assailants. He also identifies the knife so also the clothes of the deceased including the scarf.
33. The other eye witness is Raju Sarode (PW7). At the relevant time he had been to Darshan Colony for his work and was going to his maternal aunt. At the time of the incident, he was present in front of Sachin Beer Bar. As per the evidence of Raju, he witnessed the incident from about 12 to 15 ft. As per his evidence two boys were assaulting the girl with knife and when he ran towards them the boys ran away. He also states that the knife was pierced in the backside from her shoulder and the knife was having circular handle. Two persons took the said girl to the hospital in the auto rickshaw.
From the witness box the said Raju identified the clothes of the deceased including scarf and also weapon, the knife. Also he gave the description of the assailants and pointed out the finger towards accused no.3-Umesh and accused no.4-Shrikant as the assailants at the time of identification of these accused in the Court.
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34. The learned counsel for the appellants seriously challenged the version of these three eye witnesses. According to him, none of these eye witnesses were present on the spot. These three eye witnesses are purposefully introduced by the prosecution as eye witnesses. He submitted that their police statements are recorded belatedly. That shows that these persons are not witnesses to the assault made by the accused nos.3 and 4 as claimed by them. In order to buttress the submission in that behalf he relied on various decisions which are already mentioned in the earlier part of the judgment.
The statement of Mohd. Mudassir was recorded on 16.03.2011. The learned counsel for the appellants submitted in the cross examination that this prosecution witness has admitted that he has not lodged the report about the incident to the police.
The law laid down in respect of appreciation of the belated recording of police statements of the witnesses is not res integra. Only on the ground of recording the police statement belatedly, that by itself the evidence of such witness does not earn disqualification as witness to the incident. If the said witness gives explanation regarding his recording of the statement belatedly and ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 29 apeal205.15.odt if the said explanation is acceptable to the Court, the evidence of said witness need not be discarded.
Insofar as the Mohd. Mudassir (PW5) is concerned his evidence shows that he has given explanation. The cross- examination shows that he was frightened and disturbed due to his witnessing the said incident and since he was frightened he did not narrate the same to the police.
The aforesaid explanation is also seriously challenged by the learned counsel for the appellant by pointing out that this prosecution witness is seen sacrifices of about 15 goats on Bakri Eid and he does not get frightened or disturbed. Therefore according to the learned counsel, the explanation as given by this witness that he was frightened cannot be accepted.
Sacrificing of goat on the eve of Bakri Eid and witnessing horrified incident of assault on an aspiring college going girl by two full grown assailants by means of deadly weapons like knives can never be equated. Therefore, in our view if this witness was frightened especially when he has seen the incident just from 15 ft. from him it cannot termed as unusual and therefore merely because his statement is recorded after 6 days, we are not agreeing to the submissions made by the learned ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 30 apeal205.15.odt counsel for the appellant that this prosecution witness was introduced purposefully as an eye witness.
Further the evidence of this prosecution witness is found to be unshattered in respect of the assault made on the deceased. This witness has also identified the appellant nos. 3 and 4 as assailants from the witness box and even at the time of test identification parade that was conducted by the prosecution.
In view of the unshattered evidence of this prosecution witness about the incident and the fact that he has given explanation for his recording of belated police statement which is found to be plausible, this Court accepts the evidence of this prosecution witnesses to the effect that he has seen the actual assault by the appellant nos. 3 and 4 on the deceased Monika.
35. Insofar as the evidence of Pravin Tambore (PW6) is concerned, his statement is recorded on 17.03.2011. In the examination-in-chief, he has given his explanation as under:
"At the time of incident, I ran behind the assailants. One of them had raised knife against me and threatened me. Therefore, I got frightened and immediately went to my house and thereafter I fell ill."
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31 apeal205.15.odt His evidence further shows that he is recovered from his illness in the evening of 16.03.2011 and on 17.03.2011 he on his own went to Nandanvan Police Station within whose jurisdiction the incident had occurred. There he disclosed to the officer that he is the eye witness. That time, he was asked to go to the Crime Branch. Thereafter he went to the Crime Branch where his statement was recorded.
The omission sought to be brought on record in respect of the explanation given by this prosecution witness is not at all proved. Thus, the evidence of this witness also can safely accepted about the assault made by the accused nos.3 and 4 on the deceased.
36. There are no good reasons for not accepting the version given by Raju (PW7) in respect of the incident which he has seen. The omissions found in his evidence are minor in nature and those do not touch the core of his evidence in respect of the actual assault.
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37. The evidence of Madhav Giri (PW29) who has conducted investigation shows that the investigation was handed over to him by order of the Commissioner of Police, Nagpur. Earlier to that investigation was with Murlidhar (PW30) From the evidence of Murlidhar, it is clear that due to this broad daylight murder of a helpless girl, there was law and order problem in the locality and he was busy in tackling the same.
38. As per the evidence of Madhav Giri, on being entrusted with the investigation on 16.3.2011, on the said day itself, he visited the spot and since it was a public place and the incident took place in a broad daylight, he felt that the incident must have been seen by people and, in our view, correctly. Further, in the FIR it was disclosed by Umesh (PW1) that he gathered information from the persons that the incident was seen by 2-3 persons. As per the evidence of Madhav Giri, he instructed the informants to find out the persons who were present on the spot at the time of the incident. He was informed that near about 18 people were present at the time of incident.
Thus, till 16.03.2011 till the investigation was handed over to Madahv Giri (PW29) there was no progress in the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 33 apeal205.15.odt investigation. As per the evidence of Madhav Giri on 16.03.2017 and 17.03.2017 itself, he has recorded statements of the eye witnesses. Thus, the investigating officer had acted swiftly. Swiftness in the action of the investigating officer cannot be construed as an interested investigating officer and thereby introducing the witnesses of his own choice and hence submission of the learned counsel for the appellants in that behalf is unacceptable, especially when the eye witnesses themselves have given a reasonable and acceptable excuse for not approaching to the police.
39. In view of above, though there is a delay in recording the statements of the eye witnesses, in our view, it is not fatal to the prosecution. These three prosecution witnesses have seen the murderous assault in which the unfortunate girl lost her precious life. We find the version of these three eye witnesses as credible and cogent one. Thus in view of the scrutiny of evidence of these three prosecution witnesses, there is no hesitation in our mind that these three persons are witnesses to the truth. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
34 apeal205.15.odt (E) MOTIVE:
40. According to the prosecution, appellant no.1 had a love affair with Vrushali (PW13) which failed. Therefore he planned to eliminate Vrushali however mistakenly, Monika lost her life.
41. Vrushali Sambhare (PW13) is the resident of village Pandhurna in Madhya Pradesh. She took admission in the engineering college at Nagpur in the year 2008. She completed her graduation in Bachelor of Engineering in the year 2012.
During her stay at Nagpur for her education purpose, she used to reside at Pratibha Pawar Ladies Hostel, Nandanvan, Nagpur where the deceased Monika also used to stay. Both these girls were studying in the same college. Both these girls were staying in the same ladies hostel. This prosecution witness states that whenever she used to go out of the hostel she used to tie scarf on her face like Monika.
42. Her evidence shows that she knows accused no.1- Krunal. Her evidence shows that their informal introduction with each other turned into love affair between them. She states that the cellphone of her which was having SIM No. 9021312272 was ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 35 apeal205.15.odt given to her by appellant no.1-Krunal himself. As per the evidence of this prosecution witness, their love affair was continued till November, 2010. During their courtship, Vrushali noticed that appellant no.1-Krunal is irritating one and used to extend threats to her. Therefore, dislike to him was developed in her mind.
43. As per her evidence, once when she was proceeding to Nagpur from Pandhurna, she received a message from appellant no.1-Krunal that she must alight at Katol else he will commit suicide by leaving a suicide note mentioning her name. It is not in dispute that at the relevant time, appellant no.1-Krunal was staying at Katol and was working as a teacher in the school. Due to the threat, she alighted at Katol and met him.
Her evidence also shows that she informed Krunal that due to his irritating nature, he was not liked by her and she wishes to discontinue the friendship with him. On that as per the evidence of this prosecution witness he requested that they will celebrate a small party and thereafter he would stop even sending messages to her. He also asked her to bring her laptop to upload a song to which Vrushali consented.
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44. According to the evidence of Vrushali, on 17.01.2011, she along with her friend went to Haldiram Hotel at Sitabuldi, Nagpur by taking her laptop. There the appellant met her. He took her laptop bag. When Vrushali asked to place an order of snacks, he got annoyed and left the place along with her laptop bag, is the version of Vrushali from the witness box.
In the said bag, apart from her laptop, pendrive, mobile and identity card was also there. Therefore, Vrushali was required to make a phone call from the mobile of her friend to appellant no.1 and requested him to return her laptop bag. Upon that appellant no.1-Krunal stated that if she wishes to get her laptop bag, she should meet him alone. On getting such answer from appellant no.1-Krunal, Vrushali suspected about his object and therefore she refused to meet him alone. He did not turn up and therefore Vrushali was required to return to her hostel.
45. It is further the evidence of Vrushali that on the next day, at her request, her father Dilip Sambhare (PW14) came to the hostel. She narrated the incident to her father. After getting the information about laptop, Dilip Sambhare (PW14) had a talk with ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 37 apeal205.15.odt the appellant no.1-Krunal who asked him to come to Sakkardara on the next day. As per the evidence of Dilip, he informed the appellant no.1 that he should return the laptop else he would report the matter to police and will also inform to the inmates of his house. According to the evidence of Dilip, that time the appellant informed him on phone that Vrushali had a love affair with him. However, now she has a love affair with other boy. As per the evidence of Dilip on the next day he had been to Sakkardara where he met Krunal who returned the laptop to him. Dilip identified appellant no.1-Krunal from the witness box.
46. According to the evidence of Vrushali (PW13) when she took the laptop, she found that her entire data was deleted and obscene pictures and videos were uploaded.
47. It is further evidence of Vrushali that on 22.02.2011, appellant no.1-Krunal along with one of his friend came to her college and pleaded for excuse. However, that time Vrushali even refused to recognize him and therefore the security guard ousted them. That time, appellant no.1-Krunal got annoyed and extended threat to her that she will be killed. It is further the evidence of ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 38 apeal205.15.odt this witness that since she stopped contacting with him, he extended threats to kill her.
48. The entire evidence as stated above by these two prosecution witnesses is not challenged at all when they were cross-examined. The only suggestion given to Vrushali was that she knows that if some untoward incident happens it has to be reported to police. According to the learned counsel for the appellants since all these facts were not narrated to police therefore they never existed.
49. Merely because the incident was not reported to police, the Court cannot put question about the truthfulness of the version given by Vrushali or her father.
50. Vrushali was taking education in the engineering college. She was away from her house and she was staying at the hostel. Before breaking up, she was in love with Krunal. Therefore, there is every possibility of not reporting the matter to police since it would have unnecessarily precipitated the matter. In our view, in fact both; Vrushali (PW13) and Dilip (PW13) have ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 39 apeal205.15.odt shown maturity in not reporting the matter to police to avoid unnecessary precipitation of the matter.
51. The prosecution has also examined Kunita Barai (PW15). She also was one of the inhabitant of Pratiba Pawar Ladies Hostel and was taking education at Chaturvedi College of Engineering.
This prosecution witness was room-mate of Vrushali (PW13). Though she never met appellant no.1-Krunal, she was knowing him since it was informed to her by Vrushali that he was her boyfriend.
52. The evidence of Kunita (PW15) shows that in the month of January, 2011, Vrushali was disturbed. She asked her the reason that time it was disclosed to her by Vrushali that appellant no.1-Krunal used to make frequent phone calls to her even when she is in college. It was also disclosed to her by Vrushali that Krunal has asked her not to talk or go out with anybody. He used to get annoyed and therefore she is unable to match with him and she would like to break up their relationship. On getting such an information, Kunita deposed that she told ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 40 apeal205.15.odt Vrushali if there is no match between them then it will be very difficult for them in future and thereafter she left the decision to herself.
Kunita's evidence further shows that one day she had been to the hostel, at 6.30 p.m., Vrushali returned and started weeping. On that she asked Vrushali that when she has decided to break up the relation then why she is weeping. On that it was disclosed that appellant no.1-Krunal took away her laptop and informed that if she wants her laptop back, she will have to spent a night with him. As per the evidence of Kunita, it was informed by Vrushali that appellant no.1-Krunal always want to establish physical relationship with her and therefore she is disturbed.
As per the evidence of Kunita (PW15) on the next day, at the request of Vruhali, she made a call to Krunal and requested to return the laptop. As per the evidence, appellant no.1-Krunal told that he does not have any laptop. She informed Krunal that if the laptop is not returned, the matter would be informed to father of Vrushali. On that Krunal disconnected the phone call and thereafter Vrushali called her father and brought her laptop.
Kunita was not at all cross-examined by the defence. In fact the defence lawyer declined to cross-examine Kunita. Thus, ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 41 apeal205.15.odt from the unchallenged version of Kunita, evidence of Vrushali (PW13) and Dilip (PW14), the incident of taking away the laptop from Vrusahli and thereafter returning the same is duly corroborated.
53. The evidence of Shailaja (PW11) also throws light not only in respect of the motive on the part of the appellant no.1 but also his interaction with the appellant no.2 from which it can be reasonably deduced that they were planning to kill Vrushali.
54. At the relevant time, Shailaja (PW11) was taking her education in first year of Polytechnic in KDK College. She was also residing in Pratibha Pawar Ladies Hostel where the deceased Monika and Vrushali (PW13) were residing.
55. Her evidence shows that she knows appellant no.1- Krunal. Not only that she knows his nickname is Golu. She was introduced to him prior to about three months of the incident by her friend Mangesh Kawale. She was also having mobile number of Krunal. She has identified Krunal who was sitting in the dock in the Court. She also states on oath that she knows appellant no.2 ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 42 apeal205.15.odt Pradeep since he was introduced her by Krunal. She also gave the mobile number of appellant no.2-Pradeep. This prosecution witness was having two mobile phones. One was in the name of her father Bhimrao and another in the name of Dipak Kawale, the elder brother of his friend Mangesh Kawle who is not only her friend but her relative also.
56. According to this prosecution witness once when she and Mangesh were taking tea at a tea stall near her hostel that time the appellant Krunal came there and had a talk with Mangesh. Mangesh introduced him with her and informed that he is resident of Sawargaon. Krunal made inquiry about Shailaja about her education and where she is residing. When she disclosed that she is resident of Pratibha Pawar Ladies Hostel, he asked her whether Vrushali Sambhare resides in the said hostel. Shailaja pleaded ignorance. However she told that she will make inquiries as to whether the person by name Vrushali stays in the hostel. She made inquiries in the hostel and found that Vrushali stays in the hostel and she made a call to Mangesh and informed the said fact. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
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57. As per the evidence of Shailaja, after eight days, when she was taking tea at tea stall, appellant no.1-Krunal came there and inquired with her about Vrushali and asked her to give her mobile number. Though she was not in a mood to disclose her mobile number but that time the appellant no.1-Krunal disclosed her that prior to break up he and Vrushali were in love. He also informed her that he has to take Rs.14,000/- from Vrushali and therefore he has asked her mobile number. Thereafter she gave her mobile number to Krunal. It is her evidence that Krunal informed him that he will call her whenever he will come to Nagpur. After 2-3 days, she received a call from Krunal and he asked as to whether Vrushali has left the hostel. On that it was informed by her that Vrushali had gone to college.
58. As per the evidence Shailaja, prior to 5-6 days of the incident, she has received a phone call from Krunal who informed her that he is sharing her mobile number to his friend, appellant no.2-Pradeep Sahare and she should talk to him when he will be calling her. It was also informed that Pradeep also knows Vrushali and since it is not possible for him to come to Nagpur on and often, his friend Pradeep will recover the amount from Vrushali. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
44 apeal205.15.odt He also asked Shailaja that whenever she receives phone call from Pradeep she should inform about Vrushali's leaving hostel is her version from the witness box.
59. According to the evidence of Shailaja, she received a phone call from appellant no.2-Pradeep. He asked her whether Vrushali had gone to the college. She tried to see Vrushali, however she was not found in the hostel. Therefore, it was informed that she had left for the college.
60. It is also the evidence that on 10.03.2011, she received a phone call from appellant no.1-Krunal at about 9 to 10.30 a.m. to inform that he had come to Nagpur and he is accompanied with appellant no.2-Pradeep and his two other friends. It is also stated by Shailaja that Krunal informed her that on that day anyhow, they were intending to get Vrushali and they are standing outside the hostel. Therefore, she came to the balcony of the hostel to notice the presence of the appellant no.1-Krunal, appellant no.2- Pradeep and two other boys who were standing outside the hostel. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
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61. From the witness box, she gave description of those two other boys who were standing along with appellant nos.1 and 2. Not only that she identified them as accused no.3-Umesh and accused no.4-Shrikant as the boys who were present along with the appellant Krunal on 10.03.2011.
62. It is further the evidence of this prosecution witness that she received a phone call from Pradeep who informed her that she should keep watch on Vrushali. Thereafter she received a phone call from Krunal who informed her that he is leaving the place from where he is standing since if Vrushali noticed his presence, she will not come out of the hostel. He also informed her that appellant no.2-Pradeep will be standing there and she should inform about Vrushali to Pradeep.
63. It is further the evidence of Shailaja that on 11.03.2011 i.e. the day of incident, she received phone call from Pradeep in the morning. He asked her whether Vrushali had gone to the college. That time it was informed that she had not gone to the college. Thereafter also he received a phone call from Krunal asking about the same thing. Therefore, she searched for Vrushali ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 46 apeal205.15.odt in the hostel by going to her room. That time she was not present her room. As per her version, then she came to the balcony of the hostel noticing a girl with scarf tied on her face and uniform of the college was going to the college. That time she thought probably Vrushali had left the hostel and accordingly she informed Krunal that she had left. This information was given by Shaileja to Krunal on phone when the said girl was leaving the hostel. According to the version of this witness, she received a phone call of Krunal at 10.30 a.m.
64. The evidence of this witness shows that she fell in the trap of Krunal in respect of giving information about Vrushali because she relied on the version of Krunal that he was to recover Rs.14,000/- from Vrushali and since he was her friend.
On 11.03.2011 ultimately at about 10.30 a.m. the girl was assaulted and she was done to death.
65. The evidence of this prosecution witness clearly establishes not only the motive of the appellant no.1 to eliminate the Vrushali but also that the prosecution has proved a conspiracy was hatched in between the appellant nos.1 and 2 to execute the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 47 apeal205.15.odt plan to eliminate Vrushali and appellant nos.3 and 4 were introduced and in fact they executed the plan. However on a wrong person.
(F) Corroborative Evidence:
(i) Test Identification Parade:
66. Before the Court, accused no.3-Umesh and accused no.4-Shrikant were identified by Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7), these accused persons were also identified by these witnesses when the test identification parade was conducted.
Madhav Giri (PW29), the investigating officer on 26.04.2011 requested the Collector for providing Executive Magistrate for holding test identification parade. In that behalf, he gave a request letter to the said authority (Exh.225).
67. The test identification parade was conducted by Prasad Shantaram Mate (PW9), the Tahsildar. The District Magistrate, Nagpur directed him to hold the test identification parade. Accordingly, on 30.04.2011, Tahsildar Mate sent a letter to Crime ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 48 apeal205.15.odt Branch and informed that the test identification parade will be conducted on 03.05.2011. On 02.05.2011 he inquired with the Jail Superintendent about the presence of accused nos. 3 and 4 in jail. On that it was informed that both of them are not in jail at Nagpur. Accused no.3-Umesh is in Jail at Akola whereas accused no.4-Shrikant was at Bhandara jail. He requested the authorities for brining them at Nagpur Jail by 05.05.2011. Therefore, on 03.05.2011, identification parade could not be held.
On 05.05.2011, Tahsildar Mate again informed the Crime Branch, Nagpur that the identification parade will be held on 06.05.2011 at Central Jail, Nagpur so as to serve the summons to the witnesses and keep them present for identification parade.
68. Accordingly on 06.05.2011, test identification parade was conducted in presence of panchas.
In the said test identification parade, Mohammad Mudassir (PW5) identified accused no.4-Shrikant whereas Pravin Tambore (PW6) and Raju Sarode (PW7) identified both accused i.e. Umesh and Shrikant. Accordingly, he prepared memoranda of test identification parade which are at Exh.-90 and 91. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 :::
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69. The learned counsel for the appellants assailed the procedure of holding test identification parade. According to him, copy of letter Exh.-93 issued by Tahsildar Mate to the Jail Superintendent does not mention that he requires 12 dummy persons of physique and personality similar to that of the accused. He submitted that since there are procedural lapses, the entire test identification parade is of no value.
70. Test identification parade is not a substantive piece of evidence. The object of holding test identification parade is to enable the investigating agency to satisfy themselves that they are in right direction of the investigation and to satisfy the witnesses that the person who they suspect is real one whom they have seen. A useful reference of the authoritative pronouncements of the Hon'ble Apex Court in State of Maharashtra vs. Suresh; 2000 SCC (Cri) 263, can be made which was pointed out by the learned Special Public Prosecutor before the learned trial Court during trial and which finds place in the judgment of the lower Court.
71. In one of the decisions of the Hon'ble Apex Court in Mukesh & Anr vs. State For NCT Of Delhi & Ors.; AIR 2017 SC ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 50 apeal205.15.odt 2161, wherein in paragraph 145, the Hon'ble Apex Court observed thus:
"In the case at hand, the informant, apart from identifying the accused who had made themselves available in the TIP, has also identified all of them in Court. On a careful scrutiny of the evidence on record, we are of the convinced opinion that it deserves acceptance. Therefore, we hold that TIP is not dented."
72. Thus as observed above in the preceding paragraphs, accused no.3-Umesh and accused no.4-Shrikant were identified by Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) as assailants of the deceased Monika. All the accused persons were identified by the witnesses during the course of trial is a substantive piece of evidence. Said evidence, in our view is duly corroborated even by the test identification parade.
(ii) Seizure of Cellphones:
73. On 31.03.2011 when Prakash Urkude (PW21) was returning from movie at Liberty Cinema along with his friend Dipak, 3-4 persons gave their introduction to them as police personnel from Crime Branch and requested him to act as pancha. They were taken to the Crime Branch. There they were introduced ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 51 apeal205.15.odt to PI Giri (PW30). In their presence, a mobile phone was seized from a person who was introduced to him by PI Giri as accused no.4-Shrikant Sonekar. This prosecution witness pointed out finger towards accused no.4-Shrikant during recording of his evidence at trial. Exh.-158 is seizure panchanama under which mobile handset from accused no.4-Shrikant was seized.
74. It is further his evidence that on 01.04.2011, when he had been to City Survey Office for some work, that time also the person who met him in the earlier night took him and his friends in the office of the Crime Branch. The investigating officer Giri was present there. He introduced a person by name Krunal Jaiswal i.e. the accused no.1. He gave 4 SIM cards and 2 mobile phones to PI Giri. PI Giril opened the mobile and noted the numbers of the 2 mobile phones in panchanama. Exh.-159 is relevant panchanama. From the accused no.1-Krunal in his presence 6 separate SIMs were seized whereas 2 SIMs were in the 2 mobiles
75. Mr. Jaiswal, the learned counsel for the appellants challenged his testimony on the ground that this pancha witness is a man of choice of the investigating officer. However, nothing ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 52 apeal205.15.odt that sort of is brought on record during the course of his cross- examination. Further the judicial note can be taken of the fact that the City Survey Officer and the office of the Crime Branch are situated in the same building.
76. The prosecution has also examined Makrand Vidhvans (PW22). He was serving as Nodal Officer with Tata Tele Services. On 07.04.2011, he received a request letter, Exh.-161, from Mr.Savant, Assistant Commissioner of Police, Crime Branch, Nagpur for providing call details of mobile No.7276633814, 8149975303 and 8983939580. These three mobile numbers belong to Rambhau Pandar, Nilesh Jaiswal and Dipak Kawle, respectively. Exh.-163 is Call Detail Reports of Mobile No. 7276633814, 8149975303 and 8983939580. Similarly, Call Detail Records of Mobile No.7276633814, 8149975303 and 8983939580 are available at Exh.-164 to 166 respectively and those are proved by Makrand Vidhvans (PW22).
77. Similarly, the prosecution has examined Chadrakant Bhor (PW23) who was serving as Nodal Officer with Reliance Communication Limited. He received a requisition letter from ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 53 apeal205.15.odt Mr.Savant, Assistant Commissioner of Police, Crime Branch, Nagpur to provide I/d and Call Details of mobile no. 9021312272 and 9595327099 from 01.05.2010 to 31.03.2011 (Exh.-168). As per his evidence, he provided Call Detail Reports of the aforesaid mobile numbers and those are available at Exh.-171 and 172 respectively. It is to be noted that Markand Vidhvans (PW22) and Chandrakant Bhor (PW23) also produced the required certificates under Section 65 (B) of the Evidence Act and those are duly exhibited.
78. As per the document Exh.-162, mobile no.8149975303 was standing in the name of Mr. Nilesh Jaiswal. His address is shown as Plot No. 288, Sawargaon, Tq. Narkhed, Dist. Nagpur. Exh.-211, arrest panchanama shows that accused no.1-Krunal is resident of Sawargaon. Further, it is not in dispute that Nilesh Jaiswal is brother of appellant no.1-Krunal.
79. According to the evidence of Ku. Manjusha Mohriya (PW24) who works as Assistant Teacher in Saint Paul English Medium School, Katol, the mobile nos.9595327099 and 8144975303 were given to her by appellant no.1-Krunal who also ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 54 apeal205.15.odt used to work as Assistant Teacher in the said school.
Further, the evidence of Shailaja (PW11) shows that she was knowing Krunal as he was introduced to her by her friend Mangesh and his mobile number is 8149975303.
The evidence of Shailaja also shows that accused no.2- Pradeep who was noticed by her with Krunal was having mobile no.7276633814.
80. The prosecution has brought on record Call Detail Records to show that appellant no.1-Krunal and appellant no.2- Pradeep were in contact with each other as per Exh.-164 to 166. So also these two accused persons were in contact with Shailaja (PW11) till the actual assault. In fact, Shailaja (PW11) has specifically stated that she received a phone call from accused no.1-Krunal and accused no.2-Pradeep on 05.03.2011, 07.03.2011, 09.03.2011 and 10.03.2011. It is also her evidence that on the day of the incident i.e. on 13.03.2011 at about 10.21 and 10.30 a.m. she received phone calls from accused no.1-Krunal and accused no.2-Pradeep thereby they made inquiries with her as to whether Vrushali (PW13) has left the hostel or not. Thus, it is clear that evidence of Shailaja (PW11) is duly corroborated ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 55 apeal205.15.odt through the Call Detail Records which are brought on record by the prosecution that accused no.1-Krunal and accused no.2- Pradeep were in touch with Shailaja for tracking the movements of Vrushali (PW13).
(iii) Absence of accused no.1-Krunal from duty:
81. Smt. Manjusha Joshi (PW20) was Principal at St. Paul English Medium School till May-2011. She knows accused no.1-
Krunal. As per her evidence, Krunal was serving as Assistant Teacher at St. Paul School, Katol during her tenure at Katol. Her evidence shows that on 09.03.2011, 10.03.2011 and 12.03.2011, he was absent from his duty without prior permission. Accordingly, Leave Without Pay (LWP) was endorsed at the attendance register Exh.-156. On 11.03.2011 i.e. on the day of the incident, appellant no.1-Krunal was present in the school. The learned counsel for the appellant therefore submitted that the prosecution has failed to prove the conspiracy.
The aforesaid submission of the learned counsel, in our view is meritless. On 10.03.2011, appellant no.1-Krunal was absent from his duty. For that no permission was obtained from the school authority. As per the evidence of Shailaja (PW11) on ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 56 apeal205.15.odt 10.03.2011 at about 9.00 to 9.30 a.m. she received phone calls from Krunal informing her that he had come to Nagpur and he is accompanied by accused no.2-Pradeep and two more friends. Her evidence shows that when she came in the balcony of the hostel that time she noticed the presence of appellant no.1-Krunal with other accused persons. Thus, presence of Krunal one day prior to the actual incident at Nagpur is proved. He was absent from his duty on that day. Even Shailaja does not claim the presence of Krunal on 11.03.2011. Her evidence shows that she received a phone call from Krunal in between 10.00 to 10.15 a.m. asking the movement of Vrushali (PW13) so also her movements were gathered from her by accused no.2-Pradeep. From the evidence of Shailaja, it is clear that even on the day of the incident, Krunal was keeping a close eye and watch on the movements of Vrushali. Though away from Nagpur he was continuously in touch with Shailaja and appellant no.2-Pradeep, on cellphone.
(iv) Recovery:
82. When accused no.4-Shrikant was in the Police Custody Remand, on 03.04.2011, he made his discovery statement. The said discovery statement was made by him in presence of Suhas ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 57 apeal205.15.odt Khare (PW10). The admissible portion of his discovery statement is at Exh.-95. By the said, he agreed to show where he has concealed the weapon, knife, the place where he destroyed the mobile of the deceased Monika, the place where he gave his shirt to his uncle and the shirt of his uncle which he put on his person.
The evidence of Suhas (PW10) shows that he led the police party to Nandanvan hutment area. He directed the Police party and the pancha till the end of the hutment area and there was one nullah and also one wall. Thereafter, he jumped on the other side of the wall and went towards nullah about 50 to 60 yards. There were shrubs of about 1½ to 2 ft. and from there he took out a knife. The same was seized under seizure panchanama Exh.-96. During the course of his evidence, this witness was shown 2 knives and he identified article 15 as a knife which was taken out by Shrikant. Thus, it is to be noted that article 11 is another knife which was removed by PI Burade (PW28) from the body of the deceased Monika with the help of the doctor. Similarly, he has shown the place which was near the shop of his uncle at a public toilet where he destroyed the mobile phone of deceased Monika, so also Exhs.-97 and 98, seizure panchanam which shows that the shirts were seized.
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83. According to the learned counsel for the appellants, these recoveries are bad for two grounds. Firstly, the pancha witness is a stock pancha of police and secondly the recovery is from an open place.
84. Closer scrutiny of the record does not show that the defence was able to point out that the prior to this, these two witnesses have acted as pancha in any other police case. Insofar as the place from where the knife was recovered, in our view cannot be termed as an open place since as per the evidence of Suhas, accused no.4-Shrikant took the pancha and the police party at the end of the hutment area where there was a wall. Thereafter he jumped to the other side of the wall having nullah and after going to 50 to 60 yards, there were shrubs of about 1 to 2 ft. and from there he took out the knife. This place was not easily accessible to the public.
85. In view of the law laid down by the Hon'ble Apex Court in the case of Yakub Abdul Razak Memon vs. State of Maharashtra thr. CBI, Bombay; 2013 (13) SCC 1, in paragraph no.1708 and in view of the evidence as brought on record about ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:28 ::: 59 apeal205.15.odt the place, we are unable to agree with the submission made by the learned counsel for the appellants that the recovery was made from the open place and the place is accessible to everybody.
(v) Scientific Evidence:
86. On 13.04.2011, Madhav Giri, the investigating officer vide letter dated 13.04.2011, Exh.-191, sent all the seized articles in a sealed condition to the Chemical Analyzer (CA). Exh.-192 is the invoice challan showing the receipt of the articles by CA. As per the said CA report, the shirts of accused nos. 3 and 4 were having stains of human blood. So also the knife which was recovered at the instance of accused no.4-Shrikant was also having human blood. This incriminating circumstance was put to accused nos. 3 and 4. However, they have failed to offer any explanation.
87. Exh.-124 is DNA report. This report is proved by Vaishali Mahajan (PW26) Assistant Chemical Analyzer. Her evidence shows that he extracted DNA from blood found on T-
shirt, knives and shirt of accused no.3-Umesh, from the blood sample of the deceased Monika and accused nos. 3 and 4. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:29 :::
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88. DNA report Exh.-194 shows that the DNA of the blood found on the shirt of accused no.3-Umesh matches with the DNA of blood of the deceased Monika. It also reveals that the blood found on Articles 11 and 15 is of the deceased Monika. Thus, the scientific evidence also points out the finger of guilt towards the appellant nos. 3 and 4 as the actual assailants of the deceased Monika.
(G) Conclusion:
89. On reappreciation of the entire prosecution case, we are of the view that the prosecution has proved its case by adducing the trustworthy and cogent evidence of eye witnesses Mohammad Mudassir (PW5), Pravin Tambore (PW6) and Raju Sarode (PW7) which is duly corroborated by the other evidence as discussed in the foregoing paragraphs. Thus, we find no merit in the present appeal. The same is therefore dismissed. The Muddemal property be dealt with as directed by the learned trial Judge, after the appeal period is over.
(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.) kahale ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:24:29 :::