3 vs . on 11 September, 2013

[Cites 41, Cited by 0]

Delhi District Court

3 vs . on 11 September, 2013

                                                               1

                        IN THE COURT OF SH. DHARMESH SHARMA, 
         ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
                                                 NEW DELHI.


                                          Date of filing of charge sheet :  16.07.2004
                                          Date of framing of charge :   12.04.2006
                                          Date of final arguments       :   17.08.2013
                                          Date of judgment              :   06.09.2013


SC No.  13/05
FIR NO. 336/04
PS  :  Malviya Nagar
U/s  302/201/34  of IPC


                                          STATE  


                                             Vs.      
      
                                          1. Vivek Madhok
                                             S/o Sh. Rajesh Madhok
                                             R/o 24/6, East Punjabi Bagh,
                                             New Delhi.

                                          2. Shankar Bhatia  
                                             S/o Sh. Ashok Kumar Bhatia
                                             H19/29, Sector7, Rohini,
                                             Delhi.

APPEARANCES

Present :            Mr.  Salim Khan,  Ld. Addl. PP for the State 
                     Mr. Shailender Babbar, Ld. Counsel for accused Vivek 
                     Madhok (A1).
                     Mr. R. N. Mittal, Ld. Senior Counsel alongwith Mr. Sachin 
                     Sharma, Ld. counsel for accused Shankar Bhatia (A2).




State   v.   Vivek Madhok & Anr.                                                              Page 1 of 70
                                                                2

06.09.2013
JUDGMENT

1. Accused Vivek Madhok son of Sh. Rajesh Madhok (A1) and Shankar Bhatia son of Sh. Ashok Kumar Bhatia (A2) have been arraigned for trial on the charge that on 04.04.2004 at about 1430 hours GMT while they were on ship MV Crimson Galaxy in mid Atlantic Ocean off the Cost of Brazil, they in furtherance of their common intention caused the death of Captain Rajan Aggarwal in his cabin and thereafter wipped the blood of the deceased from his cabin, wrapped his dead body in a bed sheet and took the same through the back side staircase / ladder up to the boat deck of the ship and threw the dead body in the high seas to destroy the evidence in order to screen themselves from legal punishment and thereby committed an offence u/s 302/34 IPC besides section 201/34 IPC. Both the accused pleaded not guilty and claimed trial. FACTS : INITIAL REPORTING

2. The case of the prosecution that unfolds in the police report/charge sheet is that a complaint dated 15.04.2004 Ex. PW2/A was lodged by Mr. B. M. Lal (PW2) with the police informing about the murder of his son Captain Rajan Aggarwal on board ship MV Crimson Galaxy, the gist of which is that his son was a qualified Merchant Navy Captain with over 30 years of experience and on 05.04.2004, Captain M. P. Bhasin, Incharge of Delhi Office of M/s State v. Vivek Madhok & Anr. Page 2 of 70 3 Univan Ship Management informed that his son Captain Rajan Aggarwal was missing from the ship since 4 PM local time (approximately 11 PM IST) from 04.04.2004 and the initial inquiries/investigation revealed that a scuffle had taken place in the cabin as there was blood stains in the room; that he requested the local office and the Hong Kong Headquarters of the company to carry out a thorough search of the vessel and the sea to locate his son and he learnt that there was found blood on ship deck clearly indicating cold blooded murder of his son on high seas. Mr. B. M. Lal (PW2) also informed that the ship reached at Las Palmas (Spain) which is first "Port of call" for investigation.

3. The said complaint was entrusted to Inspector G. L. Mehta (PW7) who made endorsement Ex. PW 7/A and sent the rukka which led to the registration of the present FIR Ex. PW1/A alongwith M/s Univan Ship Management's letter Ex. PW 2/B about such incident. The case was then handed over to Anti Homicide Section of Crime Branch and investigation was assigned to Inspector Ajay Sharma (PW48); that the accused Vivek Madhok and Shankar Bhatia alongwith Nekzad S. Cama had been disembarked from the ship MV Crimson Galaxy at Las Palmas as per information supplied to them by PW2 B. M. Lal vide letter Ex.PW2/C and they came to Delhi via Mumbai where they were interrogated and on 20.04.2004 accused Vivek Madhok and Shankar Bhatia were State v. Vivek Madhok & Anr. Page 3 of 70 4 arrested.

4. It is the case of the prosecution that during the investigation, it was revealed that the ship M. V. Crimson Galaxy with 20 members, all Indian crew with Captain Rajan Aggarwal loaded with consignment of Soya Bean Meal left San Lorenzo, Argentina on March 29,2004 bound for El Dekhelia near Alexandria, Egypt; that when the vessel was in position 11 degree 47 mins (South) 033 degrees 34 mins (West) heading course 025 degrees on 04.04.2004 at about 1805 GMT (4 PM IST) Captain Rajan Aggarwal was found missing; that his cabin was found open with blood stains on the floor and furniture in the day room of the cabin; that despite thorough search conducted at the behest of Binay Kumar Singh (PW4), Chief Officer and Manoj TE (PW10 who was Chief Engineer), missing Captain could not be found and ship was taken to the location where it was about 1430 hours as per direction of the Company but it did not yield any result and finally Manoj TR (PW20) Chief Engineer and Binay Kumar Singh (PW4), Chief Officer informed the shipping company at about 1830 GMT and put it on its original course; that the ship reached at Las Palmas, Spain where investigation was carried out by the local police that conducted thorough search of the vessel, collected available evidence and recorded statement of all crew members and ultimately accused Vivek Madhok, Shankar Bhatia and Nekzad S. State v. Vivek Madhok & Anr. Page 4 of 70 5 Cama were disembarked and the ship was allowed to sail towards the port in Egypt.

GIST OF THE CASE

5. It is the case of the prosecution that during the course of investigation, it was revealed that both the accused were appointed as cadets and undergoing training course in M/s Univan Ship Management Ltd., Wanchai, Hong Kong and the ship/vessel was under Panama flagship; that on 04.04.2004 at about 1415 hours local time both the cadets were watching a movie in the officers' smoke room when Captain Rajan Aggarwal arrived and shouted on them as to why they are watching the movie and not attending to their studies and he directed both the cadets to come to his cabin alongwith their cadet note books; that investigation revealed that Captain Rajan Aggarwal was sitting on the sofa and he allowed both of them to sit on the sofa and inspected their report book and reprimanded them for not completing their alloted tasks and their home work; that Captain Rajan Aggarwal started shouting on them as their work was not up to the work and threatened to spoil their career and all of a sudden Captain Rajan Aggarwal slapped accused Vivek Madhok which was objected by him; that Captain Rajan Aggarwal again confronted accused Vivek Madhok on which he pushed him with force as a result of which the Captain Rajan Aggarwal fell between the sofa and table of the cabin. State v. Vivek Madhok & Anr. Page 5 of 70 6

6. It is the case of the prosecution that suddenly there ensued a fight between Capt. Rajan Aggarwal and both the accused cadets and during this scuffle, the pieces of broken glasses from the show case of the cabin hurt the accused Vivek Madhok on his chin and hand and accused Vivek Madhok lifted a whisky bottle from the cabin and hit on the Captain's Rajan Aggarwal head thereby hurting him and on which blood started oozing out and there was kept a metal detector in a plastic cover lying in the cabin which was picked up by coaccused Shanker Bhatia who repeatedly hit Captain's Rajan Aggarwal with it on his head and in the melee accused Vivek Madhok took up the stool kept in the Cabin and hit on the head of the Captain; that on Capt. Rajan Aggarwal becoming unconsciousness, both the accused thought that Capt. Rajan Aggarwal on regaining his consciousness would ruin their career and, therefore, accused Vivek Madhok strangulated the Captain to death and both the accused cadets thereafter wrapped dead body of the captain in a bed sheet and took him through back door entry of the vessel and dragged him to the boat deck and threw it into the high seas through the railings of the deck to settle the matter once for all and to destroy the evidence.

7. It is then the case of the prosecution that they returned to the captain's cabin; that cadet Vivek Madhok was bleeding from his hand and removed the blood with the help of a towel; that since State v. Vivek Madhok & Anr. Page 6 of 70 7 in the melee both the accused cadets had got the blood at their clothes, they threw away their clothes and towel in the sea to destroy evidence; that both of them again went to the cabin of Capt. Rajan Aggarwal at 4:00p.m to ensure that everything was all right pretending to attend the class and a drama was enacted by accused Vivek Madhok by feigning unconsciousness by fainting inside the cabin on the pretext of seeing so much blood inside the cabin while coaccused Shanker Bhatia rushed towards the cabin of of Second Officer, Nekzad S Cama (PW34) who rushed to the Cabin of Capt. Rajan Aggarwal and attended upon accused Vivek Madhok; that in the meantime Chief Officer Vinay Kumar Singh (PW4) entered into the cabin and asked PW34 Nekzad Cama about the whereabouts of Capt. Rajan Aggarwal but there was no response from them; that all the crew members were mustered on the bridge and everyone looked for missing Capt. Rajan Aggarwal but in vain; that although the ship was taken to reciprocal course, where it was at about 2:30p.m., it did not reveal any result. On the instructions of PW10 Manoj TE, the iron railing at the boat deck that had blood with palm impression was cut and the same was kept inside the cabin of the Captain and the cabin was sealed so as to preserve the scene of crime.

8. It is then the case of the prosecution that the ship was taken to Las Palmas, Spain as per the directions of the shipping State v. Vivek Madhok & Anr. Page 7 of 70 8 company where the local police and forensic experts carried out detailed search of the vessels on 14/15.04.2004 and collected available evidence and recorded statements of crew members; that certain exhibits were seized from the scene of crime and the Spanish Police lifted the chance finger prints from the spot and took finger and palm prints of all the crew members for forensic analysis.

9. It is further the case of the prosecution that during the investigation the weapon of offence i.e metal detector was seized from M/s Univan Ship Management Ltd; that the documents regarding service agreement of Capt. Rajan Aggarwal besides that of the accused cadets were seized and also the documents concerning registration of the ship and deck log book of M. V. Crimson Galaxy for 04.04.2004, 05.04.2004 and 06.04.2004.

10. It is the case of the prosecution that accused persons were medically examined in regard to injuries on their bodies on 03.05.2004 by the Board of Doctors of M.A.M.C. New Delhi and their report was obtained which interalia suggested that the injuries on the body of accused Vivek Madhok were about a months old and were in the nature of defence wounds; that during the investigation blood samples of the accused persons and the parents of the Capt. Rajan Aggarwal were collected through AIIMS and DNA profile/ finger printing test were carried out by Doctor T. D. Dogra, Professor & Head of the Forensic Department, AIIMS, Delhi and report was State v. Vivek Madhok & Anr. Page 8 of 70 9 obtained.

11. It is further the case of the prosecution that during the investigation, statements of crew members were recorded u/s 161 of Cr.P. C besides statements of few crew members u/s 164 Cr. PC; that from the statement of witnesses it was revealed that yellow shirt with blue strips and blue shorts which accused Vivek Madhok was wearing on Sunday noon time were missing besides his bath towel while accused Vivek Mahdok was using towel of coaccused Shanker Bhatia; that during the investigation photographs of the scene of crime and forensic reports were collected from the Spanish Police through Interpol and the reports were translated in English from experts.

12. Needless to state that after completion of the investigation, the present charge sheet was filed against both the accused persons.

PROSECUTION EVIDENCE

13. The prosecution in order to prove its case examined as many as 52 witnesses.

14. The following witnesses were the Crew Members on the ship during the relevant time who were examined as under: PW4 was Mr. Binay Kumar Singh, Chief Officer, who testified that on the fateful day he was with Captain Rajan Aggarwal till about 12 o'clock noon (local time)and they conducted routine inspection and State v. Vivek Madhok & Anr. Page 9 of 70 10 thereafter Captain Rajan Aggarwal went to his cabin to have lunch while he went to his own cabin. The testimony of this witness is quite crucial to the prosecution in regard to the manner in which the incident was reported and the observation that were made by him on reaching the cabin at DDeck belonging to missing Captain Rajan Aggarwal and, therefore I shall dwell on his evidence later on in this judgment.

15. PW9 was Mr. Jasbir Singh, third Engineer who deposed that on 04.04.2004 at 4:05p.m on the sounding of an emergency alarm, everyone on the ship reached the bridge as directed and on further instructions of Chief Engineer Manoj, he conducted a search in the Engines area to see that no stowaway (unwanted person) was present thereat and Captain Rajan Aggarwal was found missing despite a thorough search of the ship; that his statement was taken by PW4 Binay Kumar Singh which is Ex. PW 9/A; and the ship was taken to Las Palmas, Spain where the Spanish police took their specimen finger prints He further deposed that a metal detector Ex.P3 was given to him for repairs that had a crack in its body on which he applied some tape and returned the same to the Chief Engineer and later the said metal detector was given by him to to Captain M. P. Bhasin, Delhi Office of Univan Ship Management Ltd. vide memo Ex. PW 9/B. This witness was cross examined by Ld. APP for the State as he appeared to be resiling from his previous State v. Vivek Madhok & Anr. Page 10 of 70 11 statement to the police. In his cross examination by the Ld. APP, the witness denied making any statement to the police and showed total ignorance as to what transpired on the ship besides throwing no light on the conduct of the two accused persons or the injuries on their body or about the blood trail.

16. PW10 was Mr. Manoj T. E, the Chief Engineer who reached the Captain's cabin on sounding of the emergency alarm and his evidence is quite crucial to the fate of the prosecution as regards the condition of the captain's cabin and the facts concerning the two accused and I would dwell upon the same visa vis the testimony of PW4 Binay Kumar Singh later on in this judgment.

17. PW11 was S. Saravanan, Second Engineer on the ship M V Crimpson Galaxy. He testified that after emergency alarm was sounded, he came on to the bridge and then went to Captain's Cabin where he found cadet Vivek Madhok lying on the sofa facing down with injuries on his bodies and observed the situation of the place of occurrence and later during the search finding blood trail on the deck upto the railings on the boat deck. He deposed that on the instruction of the Chief Engineer, he mustered all the crew members on the bridge and conducted a search to find out the missing captain and he further deposed that they searched the cabin of each crew member and found that blue shorts and yellow State v. Vivek Madhok & Anr. Page 11 of 70 12 shirt of that accused Vivek Madhok that he wore in the morning were missing. This witness gave a statement u/s 164 Cr. PC which is marked Ex. PW 11/A.

18. PW12 was Captain M. P. Bhasin, Second Officer with M/s Univan Ship Management Ltd. posted at Delhi. He testified that he had supplied certain documents viz. contract of service/ appointment letter of missing Captain Rajan Aggarwal and two cadets besides supplying the information regarding the general plan of the ship photographs that are Ex. PW 12/A to Ex. PW 12/E to Delhi Police.

19. PW15 was Raman Deep Singh. He made certain observation regarding the injuries and conduct of the accused persons soon after the emergency alarm was sounded on which I would dwell later on in this judgment. This witness testified that on the directions of Chief Engineer he took photographs inside the cabin of missing Captain Rajan Aggarwal besides the blood trail on the back stairs from 'D' Deck up to the boat deck on instructions of the Chief Engineer which photographs were identified by him in his testimony and he deposed about preserving the blood trail with plastic sheets. He further deposed that iron rails having blood palm prints were cut and kept in the cabin of the captain and the cabin was sealed to preserve the scene of crime. This witness also gave a statement u/s 164 of Cr. P.C which is marked Ex. PW 15/A. The State v. Vivek Madhok & Anr. Page 12 of 70 13 witness was cross examined by the Ld. APP on certain aspects of his earlier statement regarding the missing uniform of accused Vivek Madhok, the subsequent conduct of the accused duo on which I would dwell later on.

20. PW17 was Dahya Bhai Jeewan Bhai Amellia posted as Fitter on the ship and he testified that on the directions of Chief Engineer he along with another fitter man went to the boat deck where they cut iron hand railing on which were found some blood with palm impression and the railing was kept in the captain's room and he also stated that the railing blood trail were preserved with tape but after the photographs were taken, the blood stains out in the open were washed away due to rains.

21. PW23 was Mr. Prem Nath Pavitran, Steward on the ship. This witness did not support the prosecution case when it came to his version to the police that he had cleaned the captains's cabin and left the captain in the company of the two cadets at about 2:30 p.m seen and he denied making a statement that the accused Vivek Mahdok was seen by him taking a bath at about 3:00p.m and denied seeing both the accused cadets throwing certain bundle of clothes in an open sea at about 3:15 p.m.

22. PW27 was Mr. Sujit Kumar Majee, 3rd Engineer who also reached on the bridge after emergency alarm was sounded and met Chief Engineer and Chief Officer. He testified that he found State v. Vivek Madhok & Anr. Page 13 of 70 14 accused Vivek Madhok in the alley way and observed blood patches deck D, C and boat deck and blood patches on the railings.

23. PW30 was Mr. Kali Das Kanji Salet deputed as an A.B. on the ship (job of steering the ship) on the fateful day. This witness did not help the prosecution case except stating that he had seen blood in the cabin of the missing Captain Rajan Aggarwal and the boat deck besides admitted that blood stained railings were cut and kept in the captain's cabin and the same was sealed. He denied giving statement to the police that the accused persons were suspected behind the reason of missing Captain Rajan Aggarwal or that the accused persons were negligent and/or used to be scolded by the Captain.

24. PW31 was Subhash Chand Gupta stated that the two accused cadets used to take lessons from the Captain on Sundays and conceded that there were talks around that the two were suspected for killing the captain but he denied making any statement to the police implicating the two accused cadets.

25. PW34 was Nekzad S. Cama, Second Officer who as per the prosecution was on navigational watch on the bridge portion of the ship up to 4:00p.m and was the first one to reach the missing the Captain's cabin on information by accused Shanker Bhatia where he attended upon unconscious accused Vivek Madhok and his statement was recorded u/s 164 of CrPC Ex. PW 34/A on which I State v. Vivek Madhok & Anr. Page 14 of 70 15 would dwell later on in this judgment.

26. PW38 was Mr. C. Rajasekharan Pillai, a motorman on the ship who joined in the search of the missing captain but the witness denied making statement to the police and was not supportive of the prosecution case except for seeing the injuries on the body of accused Vivek Madhok.

27. PW39 was Mr. Masker Mohd. Ali , Motorman in the ship who was also treated as hostile witness for prosecution as the witness denied making of any statement to the police and denied observing any injury on the body of the accused cadet persons and denied seeing any chappel imprint of accused Vivek Madhok and sandal imprint of accused Shanker Bhatia on the blood trail.

28. PW40 was Mr. Maurelio Silva, a fitter man on the ship.

He was also of not much help to the prosecution case and denied any knowledge of injuries on the body of the accused except that he stated that he cut two hand rails of the boat deck containing palm prints with blood and kept the same in the cabin and identified certain photographs relating to the cabin of missing Captain Rajan Aggarwal but denying stating to the police that accused persons were seen wearing chappels and sandals.

29. PW41 was Mr. Anant Kumar Verjang Rajpoor, motor man on the ship and he was of no help to the prosecution as he denied making any statement to the police and denied that the two State v. Vivek Madhok & Anr. Page 15 of 70 16 accused were suspected to have killed the missing captain.

30. PW42 was Mr. Praveen Shivaji Aheer who had something to say about the injuries on the body of accused Vivek Madhok besides giving evidence about cutting of iron rails with blood and palm prints.

31. PW43 was Captain S. S. Nair. He took over command of the ship from Las Plamas Spain . His evidence is primarily in regard to Spanish Police coming on board and conducting investigation besides seizing certain articles for forensic examination.

32. The following witnesses were in the categories of doctors, medical experts or forensic besides judicial officers: PW5 Dr. S. K. Khanna, Professor Forensic Medicines, Maulana Azad Medical College, New Delhi and PW6 Dr. Anil Aggarwal were members of the Medical Board that was constituted by the Government of NCT of Delhi for the examining the nature of injury on the body of both the accused cadets besides giving an opinion on the age of such injuries. It is their evidence that on 03.05.2004, the Board under the Chairmanship of Mr. P. C. Dixit examined the two accused cadets and they submitted their reports Ex. PW 5/1 to Ex. PW 5/4 in respect of accused Vivek Madhok Ex. PW 5/5 to Ex. PW 5/6 in respect of accused Shankar Bhatia. I shall dwell upon the contents of the report and the inference drawn there upon later in this judgment.

State v. Vivek Madhok & Anr. Page 16 of 70 17

33. PW8 was Dr. K R S Kanwar, Medical Officer with M/s Univan Management Ship Ltd. He testified that he medically examined Captain Rajan Aggarwal on 14.01.2004 at the time of consideration for sea service to travel on ship Crimson Galaxy. He testified that as per report Ex. PW 8/A to Ex. PW 8/E the blood group of missing Captain Rajan Aggarwal was 'A' positive. Similarly, Dr. KRS Kanwar testified that he examined accused Vivek Madhok on 13.12.2003 and as per the report Ex. PW 8/F to Ex. PW8/H his blood group was 'B' positive. Further, testified that he medically examining accused cadet Shankar Bhatia on 13.01.2004 and as per report Ex. PW 8/J to Ex. PW 8/L, the blood group was 'O' positive.

34. PW29 was Dr. Anupama Raina, Secret Informer Scientist, Incharge DNA Finger Printing Lab, Department of Forensic Medicines Antexicology, AIIMS who conducted DNA test on samples of blood taken from accused persons in comparison with exhibits in the present case besides examining the blood samples of parents of missing Captain Rajan Aggarwal visavis the case exhibits of this case and she proved her report Ex. PW 29/B and Ex. PW 29/C inter alia bringing out that the blood stained pillow cover had traces of blood, the DNA profile of which belonged to the Biological offspring of DNA from the fresh blood B. M.Lal and Sudershan Devi parents of missing Captain Rajan Aggarwal. State v. Vivek Madhok & Anr. Page 17 of 70 18

35. PW36 was Ms. Nivedita Anil Sharma, Ld. ASJ01 West and PW36 was Sh. Digvinay Ld. CMM, THC who deposed recording statements of some of the witnesses u/s 164 Cr.PC.

36. PW44 was Mr. Shankaranarayanan, Sr. Scientific Assistant (Biology) FSL Rohini. He conducted serological examination of the case exhibits and deposed about his report Ex. PW 44/B with details in Ex. PW 44/C besides Ex. PW 44/D upon which I would dwell later on in this judgment.

37. PW45 was Dr. C. V. James, Director Public Relations from Instituto of Hispania, who authenticated translated copies of documents prepared by the Spanish police which are Ex. PW 45/A1 to A19. Same was position with PW46 who was Laura Benito, Director General of Instituto Hispania at Hauz Khas, New Delhi who authenticated English translation of documents in Spanish that were prepared by the Spanish police Ex. PW 46/A to E besides Ex. PW 46/A1 to A88 also ex. PW 46/E1 to E10.

38. The following witnesses were in the category of complainant and police witnesses: PW1 was HC Veer Sain, Duty Officer from PS Malviya Nagar on 17.04.2004 and on receipt of complaint that was given by Inspector G. L. Mehta, he recorded present FIR which is Ex. PW 1/A; PW2 was Mr. B. M. Lal, father of missing Captain Rajan Aggarwal who testified about the circumstances in which he came to know about his son missing and State v. Vivek Madhok & Anr. Page 18 of 70 19 his suspected murder and deposed about his complaint Ex. PW 2/B besides another letter written by him to the police Ex. PW 2/C about conclusion of investigation by Spanish Police and arrival plan of the accused persons along with Nekzad Cama.

39. PW18 was Ms. Jyoti Aggarwal was wife of missing Captain Rajan Aggarwal who testified that she had spoken to her husband at 1:00 p.m (Local time) (around 9pm IST) and narrated the circumstances in which she came to know about the fact of her husband gone missing.

40. PW 3 was SI Mahesh Narayan who testified that along with SI Sunil Jain went to Bombay on 18.04.2004 and notice u/s 160 of Cr. PC was served upon the two cadet besides Neckzad Cama. He deposed seizing emergency certificate of the trio Ex. PW 3/A to Ex. PW 3/C.

41. PW7 was Inspector G. L. Mehta whose role was confined to receiving the complaint Ex. PW 2/A of B. M. Lal dated 15.04.2004 and completing necessary documentation that led to the lodging of the present FIR.

42. PW13 was Inspector Ravinder Singh. He testified that he took both the accused cadets for medical examination to Sanjay Gandhi Hospital on 21.04.2004 where their blood samples were taken vide memo Ex. PW 13/A. State v. Vivek Madhok & Anr. Page 19 of 70 20

43. PW14 was SI Dharmender Singh. He joined the investigation with Inspector Ajay Sharma during which time certain photographs were seized which are Ex. PW 14/A1 to Ex. PW 14/A70 besides floppies Ex. PW 14/A71 to Ex. PW 14/A74.

44. PW 17 was HC Yashpal who testified receiving two sealed samples of blood with the seal of SJMH that was deposited in Malkhana of PS Malviya Nagar.

45. PW19 HC Ram Het, MHC(M) at PS Malviya Nagar who deposed about the entries in regard to handling of the case exhibits during the course of investigation which are Ex. PW 19/A to Ex. PW 19/ G.

46. PW20 was HC Hari Singh who was MHC(M) PS Malvia Nagar on 13.07.2004 and deposed about handling of sealed pullandas and the same getting deposited with him.

47. PW21 was Ct. Mukesh who deposed about depositing sealed blood samples with the seal of 'SS' with FSL Rohini on 13.07.2004.

48. PW22 was Ct. Krishan Kumar who obtained one sealed pullanda with the seal of 'SS' from Inspector Ajay Singh deposed MHCM PS Malviya Nagar.

49. PW23 was Ct. Joginder Pal who deposed that on 26.04.2004 he prepared the search slip of both the accused persons Ex. PW 24/A and B. State v. Vivek Madhok & Anr. Page 20 of 70 21

50. PW25 was HC Atar Singh who deposed collecting sealed pullanda from the MHCM PS Malviya Nagar April 2004 deposited forensic department at AIIMS.

51. PW26 was HC Rakesh Kumar who on 03.05.2004 took two sealed pullands with copy of seizure memo to SI Ravinder Pandit to PS Malviya Nagar deposited the same with MHCM.

52. PW28 was Ms Rita Chatterji.. Director Ministry of Human Resource Development, Shastri Bhavan, New Delhi who produced the file in relation to sanction u/s 188 of Cr. PC Ex. PW 28/A accorded by the then Hon'ble Home Minister.

53. PW33 was Mr. Arun Kumar Gupta, IGP Enforcement Branch. He deposed collecting the photographs Ex. PW 1 to 70 in hard copies with the floppy drives from N. K. Sharma Assistant Director Interpol besides receiving the statement of witnesses in the present FIR recorded by the Spanish Police.

54. PW34 was Mr. Harish Kumar Dutta from the Ministry of Home Affairs and he produced the original file in regard to deputation of Inspector Ajay Kumar Sharma for visit to Madrid, Spain in connection with this case.

55. PW47 was Inspector Sudhir Singh who testified that he joined the investigation with Inspector Ajay Sharma during which the clothes, slipper and sandals of the accused persons were seized. State v. Vivek Madhok & Anr. Page 21 of 70 22

56. Needless to state that PW48 was Inspector Ajay Sharma the main IO.

57. The following witnesses were examined from the Spanish police through video conferencing: PW49 was SI Guillermo Leon Valido, 2nd Chief Incharge of Finger Prints Investigation, Spain. He deposed that he was the Chief of Finger Prints Investigation unit and examined the finger prints of all the passengers/crew of the ship and submitted reports that are Ex. PW46/A77 to A81; PW50 was Mr. Luis Ramos Morino, from Scientific Police Brigade who collected the finger prints and the palm prints of the crew members Ex. PW46/A74 to A76 and Ex. PW 46/A82; PW51 was Inspector Ignacio Villar Perez, Chief in the Crime Branch at the Judiciary Police Brigade, Las Palmas during the relevant time who conducted visual inspection of the ship and deposed about the reports Ex. PW46/A13, A14, A15 besides declarations Ex. PW46/ A51 to A52 . He also deposed about the declarations of accused persons and Nekzad Cama that are Ex. PW46/A22 to A30; and PW52 was SI Lucas Medina Herrera from Las Palmas, Spain, who investigated the matter on the ship and proved his inspection report Ex. PW46/A36( also Ex. PW45/A36) and photographs that are Ex. PW46/A64 to A73. STATEMENT OF ACCUSED PERSONS AND EVIDENCE

58. On the close of the prosecution evidence, both the State v. Vivek Madhok & Anr. Page 22 of 70 23 accused persons were separately examined in terms of Section 313 Cr.P.C. On putting the incriminating facts and circumstances against them, both the accused persons denied that they committed the murder of missing Captain Rajan Aggarwal and/ or threw his body into the open sea. Both the accused admitted the correctness of the digital photographs taken by the prosecution witnesses depicting the scene of crime. Both the accused persons stated that they had gone to the cabin of Captain Rajan Aggarwal at about 4:00 p.m (local time) and they found blood splattered around and that accused Vivek Madhok fainted on seeing the blood, so much so accused Vivek Madhok sustained injuries on falling upon the broken glass pieces.

59. The defence in their evidence examined DW1 Dr. C. L. Gupta, Specialist Forensic from Aruna Asaf Ali Hospital, who deposed that anyone could faint after seeing a pool of blood anywhere which medical condition is known as "Vasco Vagal Shock".

LEGAL SUBMISSIONS

60. Mr. Salim Khan, Ld. APP for the State took me through the testimony of PW4, PW10 and PW15, PW34 and PW43 vis a vis photographs of the scene of the crime and he urged that the prosecution has brought home that there was a scuffle inside the cabin of captain Rajan Aggarwal and the trail of blood inside and State v. Vivek Madhok & Anr. Page 23 of 70 24 outside deck up to boat deck would show that his body was dragged and/or lifted over the passage and thrown out into the open sea; that there was found no outside person on search of the ship and the conduct of both the accused persons besides injuries on their bodies raise a strong inference that they had scuffle with missing captain Rajan Aggarwal.

61. Mr. Khan, Ld. APP urged that the entire scenario in which the crime was committed has to be gathered from the initial observations made by the witnesses who were present on the ship and he pointed out that it is in evidence that missing captain Rajan Aggarwal was a strict disciplinarian and hard task master that irked accused cadets who decided to teach him a lesson and killed him; that the very fact that the body of the captain Aggarwal was thrown out into the open sea exemplifies mens rea of the accused persons to kill captain Rajan Aggarwal.

62. Ld. APP for the State then heavily relied on the opinion on the nature and age of injuries, DNA report besides FSL and finger print report in India and by the Spanish Police. Lastly, referring to Section 106 of Indian Evidence Act, it was urged that accused persons have failed to account for their whereabouts from 2:30p.m to 4:05p.m besides giving a sham excuse as to how the injuries were sustained by accused Vivek Madhok. Ld. APP for the State has relied on decisions in Prithi v. State of Haryana, (2010) 8 Supreme State v. Vivek Madhok & Anr. Page 24 of 70 25 Court Cases 536; D. V. Paul v. Manisha Lalwani, (2010) 8 Supreme Court Cases 546; Mani Kumar Thapa v. State of Sikkim, 2002 III AD (Cr.) S.C. 469 Supreme Court.

63. Mr. R. N. Mittal, Ld. Senior Counsel for accused Shankar Bhatia argued that PW23 Prem Nath Pavitran who was the key witness to the prosecution case denied that he saw accused cadets entering into the room of the missing captain Rajan Aggarwal at 2:15p.m or that he rearranged the books in the cabin and denied that he saw accused Vivek Madhok at 3:00 p.m hurriedly coming out of the bathroom and / or found that the accused persons were throwing some bundle into the open sea at 3:15 p.m (LST). Ld. Senior Counsel then took me through the evidence of PW17 Daya Bhai and PW10 Manoj TE and argued that the prosecution case that the incident had occurred at 2:30pm was totally belied from the evidence brought on the record; that when PW10 and other witnesses reached the spot, his client Shankar Bhatia was not present in the cabin of missing Captain Rajan Aggarwal; that although there were sign of struggle / scuffle inside the cabin of missing captain, his client was the one who had alerted everybody about the missing of Captain Rajan Aggarwal and had no injury on his body that would rule out that he took part in any incident involving or resulting in the captain going missing. It was urged that in so far as the accused Vivek Madhok is concerned, it is State v. Vivek Madhok & Anr. Page 25 of 70 26 in evidence that blood was oozing out from his wound and those were fresh injuries on the body parts that contained high blood supply area and it is in evidence that A1 had fallen on sofa set where there was scattered pieces of broken glasses and it has been well explained by the defence as to how accused A1 suffered injuries on his body; and Ld. Senior counsel also pointed out that both the accused persons equally participated in the search of missing captain Rajan Aggarwal.

64. Much was argued about the tainted investigation in regard to seizure of metal detector at a later stage to give a colour to the prosecution case after recording fabricated disclosure statement of accused; that no evidence is led in regard to last scene evidence; that the prosecution has miserably failed to prove as to how the scuffle started, who started it, how it proceeded and to what end. Ld. Senior counsel challenging the evidence on the blood trail pointed out that although hair strands were recovered from the pillow Ex. P6 the same were not sent for DNA; that no blood of his client Shankar Bhati was found inside the cabin; that the prosecution has not explained as to how come when initially there were three suspects, a clean chit was given to Nekzad Cama who as per the Spanish Police behaved abnormally through out the day. Lastly, Ld. Senior Counsel has vehemently attacked the medical reports arguing that the opinion from the doctor concerned was State v. Vivek Madhok & Anr. Page 26 of 70 27 obtained on dictated lines and not only contrary to notion of common sense and logic but also medical jurisprudence.

65. Mr. Shailender Babbar, Ld. counsel for the accused Vivek Madhok urged that PW23 Prem Nath had a justification to deny statement u/s 161 of Cr.PC since his statement on the ship Ex. PW 4/N he did not incorporate such facts; that the prosecution story that captain Rajan Aggarwal had come to the officers' smoking room and reprimanded the accused cadets as to why they were watching movie, was not proved by the prosecution; that if the prosecution story is believed that scuffle took place around 2:30pm they are failing as to how the injuries on the body of Vivek Madhok was fresh at 4:05 (LST); that the injuries on the body of his client were minor and had the incident occurred at 2:30p.m the injuries would have healed in the ordinary course of nature and would not have been fresh. Ld. counsel referred to testimony of PW42 that his client was in fact deputed for security outside the cabin and urged that had he been a suspect, he would have been so deputed.

66. Mr. R. N. Mittal, Ld. Senior Counsel for accused Shankar Bhatia, in his submissions has relied on decisions in Mustkeen @ Sirajudee v. State of Rajasthan, (2011) 11 Supreme Court Cases 724; Sanjay Kumar Jain v. State of Delhi, (2011) 11 Supreme Court Cases 733; S. K Yusuf v. State of West Bengal, (2011) 11 Supreme Court Cases 754; Sharad Birdhichand Sarda v. State of State v. Vivek Madhok & Anr. Page 27 of 70 28 Maharashtra, (1984) Supreme Court Cases (Cri) 457.

67. Mr. Shailendra Babbar, Ld. counsel for accused Vivek Madhok in his submissions has relied on decisions in Rishipal v. State of Uttrakhand, JT 2013 (2) SC 200; Jaharlal Das v. State of Orissa, 1991 (2) SCR 298; Fatma Bibi Ahmed Patel v. State of Gujrat & Anr., AIR 2008, SC 2392; Rajesh Kumar @ Raju v. Yudhvir Singh & Anr. AIR 2008 SC 2396; Padala Veera Reddy v. State of Andhra Pradesh and Ors., 1989 Supp. (2) SCC 706; Arjun Marik and Ors v. State of Bihar, 1994 Suppl (2) SCC 372; Gambhir v. State of Maharashtra, (1982) 2 SCC 351.

68. I have given my thoughtful consideration to the submissions made by the ld APP for the State and Ld. defence counsel and I have meticulously perused the oral and documentary evidence on the judicial record.

PROPOSITION OF LAW ON MURDER

69. Section 299 and Section 300 IPC deal with the definition of "culpable homicide" and "murder" respectively. Section 299 defines "culpable homicide" as the act of causing death:

(i) with the intention of causing death, or

(ii) with the intention of causing such bodily injury as is likely to cause death, or

(iii)with the knowledge that such act is likely to cause death.

70. A bare reading of the section makes it crystal clear that the first and the second clauses of the section refer to intention State v. Vivek Madhok & Anr. Page 28 of 70 29 apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expressions "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.

71. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It is well settled that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.

72. At the outset, the prosecution case solely rests on circumstantial evidence. The prosecution case in a nutshell is that although nobody saw the two accused cadets committing the murder of Captain Rajan Aggarwal, but they were supposed to be State v. Vivek Madhok & Anr. Page 29 of 70 30 with the Captain during the relevant time to take lessons/study group; that there was erupted a sudden quarrel in the Cabin and in fit of rage accused Vivek Madhok hit the Captain and formed a common intention with coaccused Shanker Bhatia to kill the captain and both assaulted the captain with a whisky bottle, wooden glass frame and glass showcase containing Japanese doll and repeatedly hit the captain with a metal detector; and that when the captain became unconscious, he was strangulated to death and his body was dragged and thrown into the ocean; that the accused persons in the melee suffered injuries on their bodies which they have not satisfactorily explained and accused Vivek Madhok threw his blood stained clothes as well in the ocean and thereafter enacted a drama in active connivance with accused Shankar Bhatia.

73. Now, in the case of Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SUPREME COURT 1622, the conditions precedent for basing conviction on circumstantial evidence were laid down as under:

(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 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 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 the accused State v. Vivek Madhok & Anr. Page 30 of 70 31 and must show that in all human probability the act must have been done by the accused. Case law discussed. (Paras 152, 153) and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.

74. With the said proposition of law at the back of our mind, let us embark on an exercise for appreciating the evidence on the judicial record.

APPRECIATION OF EVIDENCE CASE LAW ON CORPUS DELICTI

75. This is a case, where the dead body was not found and the cause of death could not be ascertained. In the case of Rishipal v. State of Uttarakhand (Supra), cited by the defence, their lordships reiterated the decision of the Apex Court in earlier cases on law on corpus delicti murder cases. The Court referred to the decision in Rama Nand v. State of Himachal Pradesh (1981) 1 SCC 511, where the legal position on the subject was discussed as under:

"...........In other words, we would take it that the corpus delicti, i.e., the deadbody of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused caused the death" of the person alleged to have been killed.

28.This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the deadbody of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I State v. Vivek Madhok & Anr. Page 31 of 70 32 would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead". This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the deadbody of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the deadbody is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the deadbody of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti, i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned...." (emphasis supplied)

76. Their lordships further reiterated the decision in Ram Chandra & Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381, where the Court said: "It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not State v. Vivek Madhok & Anr. Page 32 of 70 33 traceable." Reference was also made to State of Karnataka v. M.V. Mahesh, (2003) 3 SCC 353, wherein it was observed: "It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court." and further was referred the case of Lakshmi v. State of Uttar Pradesh, (2002) 7 SCC 198, the legal position was reiterated thus:

"16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 I.P.C. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of the body and cause the death."

77. In the case of Rishipal v. State of Uttarakhand (Supra), the Court observed that in the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder.

State v. Vivek Madhok & Anr. Page 33 of 70 34

78. Reverting back to the present case, it is in the evidence of PW18 Jyoti Aggarwal that she had spoken to her husband Captain Rajan Aggarwal on 04.04.2004 at around 9:00p.m (IST) which was around 1:00 pm the ship time and discussed about certain visa formalities and it is then in the evidence of PW4 Binay Kumar Singh that he was with the Captain Rajan Aggarwal between 9:00 am to 12 O Clock (noon) when Captain went to his cabin which was located on DDeck of the ship for lunch. It is then in the evidence of PW10 Manoj TE Chief Engineer that at about 11 O Clock ship time Captain Rajan Aggarwal and Chief Officer Binay Kumar (PW4) came to his cabin for routine inspection and at about 12:40 day time captain called him to have lunch and he went to the Captain's cabin where the captain was having a beer during which time captain talked about his accommodation inspection and certain stores which were outside his cabin that were to be re arranged besides a locker adjacent to his cabin which contained some life saving appliances and desired to be shifted. PW10 also testified that captain talked about his family joining the next port and he was in a jolly mood talking about his wife and children joining on the next port; and that about 1:25 pm after lunch they went to the Officers' Smoking Room where they found third officer watching a movie and some discussion took place thereat when captain decided to go to his cabin. What emerges from the such State v. Vivek Madhok & Anr. Page 34 of 70 35 facts proved on the record is that till about 1:25pm or so the captain was hale and hearty and there is no iota of suggestion by the defence that there was anything observable from the conduct of the captain Rajan Aggarwal that he was in any disturbed state of mind, and although not suggested by the Defence, suicide is totally ruled out.

79. It is in evidence of PW4 Binay Kumar that at about 4:05p.m (local time) accused Shankar Bhatia came on to the bridge and reported to him that there was blood in the captain's cabin and accused Vivek Madhok on seeing the blood had fainted on the sofa and captain was missing from the cabin; that he immediately reached the captain's cabin on Ddeck where he saw blood on the floor of the cabin and broken glass pieces scattered around in the cabin and accused Vivek Madhok with his stomach on the sofa and Second Officer Nekzad Cama standing near Vivek Madhok and sprinkling water upon him; that he shouted/ called out the name of the captain few times but without any response and thus sounded emergency alarm when he received a telephonic call from PW10 Manoj TE Chief Engineer who inquired about the nature of emergency and he was informed that captain was missing. It is in the testimony of PW4 supported by PW10 as well as PW15 Raman Deep Singh that they went inside the cabin where there was a day room which was like an office and further inside there was bed State v. Vivek Madhok & Anr. Page 35 of 70 36 room where they checked the cupboards and searched around the bed and the bathroom but captain Aggarwal was not found; that they found that the bed sheet cover on the bed of Captain Rajan Aggarwal in the bed room was missing and white blanket (shown in the photographs Marked 11 and also 50) was lying on the floor of the bed room and there was water in the bed room just outside bathroom door depicted in the photograph Marked 9; further that these three witnesses described that there was blood on the sofa and the blood on the floor between sofa and the center table, and there was lying a blood stained pillow (Ex. P6) between Sofa and center table and on the floor of the room shown in the photographs Marked 8, 12, 14, 40 and there was a glass case broken in the day room which contained a face of a Japanese doll (Ex. P5) shown in photograph Marked 18 & 26 and 27.

80. It is further in their statement that one arm of the sofa was tilted as shown in photograph Marked 14 & 15 and one metal stool having its seat deformed Ex. P4 lying in the day room shown in the photograph Marked 15, 22, 26 and 40 and that a metal detector marked Ex. P3 with cover Ex. P7 was lying on the table in the day room besides the cadet record books lying on the centre table shown in the photograph Marked 12 which cadet books are marked Ex. PW 48/AC belonging to A1 and Ex. PW 48/D belonging to A2.

State v. Vivek Madhok & Anr. Page 36 of 70 37

81. It is further in the evidence of PW4, PW10 Manoj TE and PW15 Ramadeep Singh that they saw blood stains in the after part of the accommodation from the Ddeck up to the boat deck. PW 17, PW27, PW30, PW40 and PW42 also corroborated the evidence on such blood trail. Here, it may be appreciated that as shown in the photograph of the ship Ex. PW12/D and its sketch Ex. Pw12/ E, Edeck was the top floor where bridge of the ship was located; below it was Ddeck having the cabin of the Captain and below it on CDeck was the room of the Chief Engineer (PW10), below it was Bdeck which was officers deck and lastly on A deck was the deck meant for the crew of the ship and it is in their evidence that they saw blood stains on ship side railings of star board side boat deck and there was blood on two iron railings with palm impressions. Photograph Marked 21 shows ship side star board side boat deck railings that as per witnesses were cut and kept in the day room of the cabin of the captain and the room sealed till the arrival of the Spanish Police. The photograph marked 23 (also Ex. PW 40/3) shows the boat deck from which the railings were cut. PW10 Manoj TE categorically deposed without any challenge that in the backside of the accommodation, the ladders which were coming from each deck to the boat deck were having blood stains/ trail. It is pertinent to mention that the site plan of the relevant portions of the ship has also been prepared by the IO which is Ex. State v. Vivek Madhok & Anr. Page 37 of 70 38 PW 48/N (running into 8 sheets) after physical inspection of the ship and it is not controverted by the defence in any manner.

82. At the cost of repetition, the digital photographs which are marked NVC 50E , NVC 51F and NVC 52F show hand rails of the board deck smeared with blood and all these photographs are marked ex. PW 32/C (Colly). Now, it is in evidence of all the witnesses that all the crew was mustered on the bridge and a massive hunt for missing captain Rajan Aggarwal was launched but in vain. The inference from the testimony of the witnesses vis.avis photographs explaining the position of the day room and the bed room, blood trail from the stairs/ ladder on the back side of the accommodation from each deck up to the boat deck would invite an irrefutable inference that captain was probably injured and/or done to death and his body was wrapped in the bed sheet and lifted, dragged and/or carried to the boat deck portion shown in photograph marked Ex. PW 40/3 and thereafter thrown into the open sea to cause the evidence to disappear.

83. It is in evidence that when the matter came to light, as per instructions of the company, the ship was taken to reverse course to the point where at 2:30p.m local time some sounds were heard by PW10 Manoj TE from DDeck but no trace of missing captain was found. The prosecution in the light of the said unassailed facts and circumstances is able to bring home without State v. Vivek Madhok & Anr. Page 38 of 70 39 any reasonable doubt that captain Rajan Aggarwal met a homicidal death and his dead body was disposed of by throwing it into the open seas.

INSPECTION ON SHIP BY SPANISH POLICE

84. Although in the preceding paragraphs, the scene of crime in the Captain's cabin and blood trails from the back of the accommodation leading on to the ladder up to boat deck has already been described in detail and although such evidence is not controverted or challenged in any manner by the defence, it would be expedient to refer to the visual inspection of the ship and place of occurrence by the Spanish Police which is also not disputed by the defence. The visual inspection of the ship was made by a team of officers of Spanish Police PW 49 to 52 at 13:30 hours on 15.04.2004 and the report of investigation Ex. PW 45/ A36 to A38 and certified by the witness Ex. PW 45/A39 reads as under:

...............That the said cabin is formed by office pantry, with its office, its bar area hidden in a cabinet placed at the entrance of the cabin and at the right and the site of the office there was a bedroom joint to the office by a single inertial door that in the officer of the captain cabin is in great disorder specially where two sofas, one table and two arm chairs are kept, between the two sofas and the floor, lots of glass pieces are found spread, supposedly of the painting hung on the cabin's wall and of the frame, also are found glass pieces of a bottle of whisky, and a figure of porcelain imitating a geisha girl, of small size, broken on the floor, a black metal detector, wrapped in a plastic cover and stained with few red spots which appear to be of blood, on the wooden of the said cabin, it is observed near the sofa and on it, drops, scattered which appear to be of blood and on the same sofa there are glass pieces along with rest of red sports which appear to be of blood and hair are observed on the top of the same sofa and at one corner is observed a metallic stool with red spots, apparently blood, in the cylindrical area, which is uniform State v. Vivek Madhok & Anr. Page 39 of 70 40 in height, also on the same sofa is observed, one pillow with a white cover and with many red spots apparently blood. That the desk of Captain cabin is found in order and opposite to it there is a drop of red colour with appears to be blood and near the wooden bar and on the floor 2 white colour iron bars are observed, one of 4 cms of diameter x 96.5 cms and the others is 150 of length x 2 cm of diameter, both covered in plastic and insulting tape, with red spots with appears to be blood. That bars were brought to this plastic and insulting tape, with red spots with appear to be blood. That bars were brought to this place by the sailors and 2nd in command on board ordered to cut them from the right side of the ship, when he observed the stains on these which appear to be of blood, to submit it to the authorities, its indicate that the captain could have fallen from this area of the ship (the second in command on board narrated this act in presence of an interpreter who was on board. That in the room of Captain's cabin, it is observed that the surrounding beside table and in its interior there is room of Captain's cabin, it is observed that the surrounding besides table and in its interior there is a metallic safe of 45cms height and 35cms of width, with marks of application force but intact. That in the same room, many red coloured drops are observed which appear to be of blood, near the exist bedspread stained with red colour apparently blood and few changes of red colour which appear to be of blood on the wooden wall close to the exist door and the right side about 45 cms from the ground and these from suggests that they are made by hand.

That once outside the Captain's cabin and going in the direction of the area where the iron bars were cut, in the exterior area, the red spots appear to be blood are observed in the banisters of the metallic chair case in the below area. That from this zone to the place where the iron pieces are cut approximately there are some 20 meter of height, being the single way get down or to go up, through the fixed metallic chair there in the place, observing various areas covered with plastic covered area, and insulting tape, act that was ordered by the second in command to protect the zone and the stains which appear to be blood which the Captain had left or the chiller on the route from the captain cabin till the area were the iron bars are cut from the right side of the ship and scattered drops of red colour spots which appear to be of blood, that from the area where the bars are missing, it is empty towards the sea. That once taken the stains which appear to be of blood, the said stains are not observed since by passing the day and the colour effect, between the plastic and metallic floor of the ship had formed polls of water, oxidizing the said zone and removing the stains that the second in command saw at that moment. That they recovered samples of blood, hair, glass pieces with blood and hair, the plastic covered of the metal detector red colour stains which appear to be of blood, were there in the Captain's cabin, the same way samples of blood found on the handrails that has an exit from Captain cabin and to iron bars located in the said cabin by the second in command on board, for its analysis. That from all a photographic report was made. That the official bearing State v. Vivek Madhok & Anr. Page 40 of 70 41 professional card no. 55,404 was in charge to do the identification of finger prints of all the crew members of the mentioned ship. That in the morning of the same day 15th April, 2004 and already in these outbuildings, it was proceeded by the officials bearing ID card no. 77 122, the collection of the samples of saliva of the sailors; Shankar Bhatia, (with) passport no. Z051000 and to make a photographic report of the same, by own will, signing in agreement, file NDA Humanists, in presence of a translator, had in the murder squad while the declaration was heard. That also the samples of the saliva of Vivek Madhok were taken (with) passport no. B5050108 and to make a photographic report of the same, by own will, by agreeing, file NDA Humanists, in presence of a translator, had in the Murder Sqaud while the declaration was heard and for the last the samples of the saliva of Nekzad Shahrukh were taken (with) passport no. B0954358 they could not make a photographic report of the same, because of his deny, signing in agreement, file NDA Humanists, in presence of a translator, had in the Murder Squad while the declaration was heard. That of all Murder Squad of Judicial police instructed the inquiries 12.502/04.

85. It may be noted that that in regard to digital photographs that were taken by Spanish Police, a certificate has been given which is Ex. PW 45/A63 to A64 to the effect that photograph no. 1 showed the cabin door of the captain Rajan Aggarwal, interior of the cabin shown in photographs 2 to 14, metalic stairs to the deck vide photographs 15, deck of the ship photograph 16 to 18 and details of the whole body and injury on the crew member cadet Vivek Madhok photograph 19 to 22, details of whole body and partial body of Shankar Bhatia 23 to 24. The "authenticity" of such digital photographs have not been assailed by the defence in any manner and there is no iota of doubt about the same being real and genuine to allow the Court to look into its probative value. Section 65B of Indian Evidence Act has not State v. Vivek Madhok & Anr. Page 41 of 70 42 application here as the digital or eevidence could be appreciated de hor it and such evidence could be very well considered as per the traditional principles of appreciation of evidence: (I) to test whether it is relevant, and (ii) whether it is authentic or genuine or reliable, and (iii) what is the probative value or weight of such evidence for decision on matters in issue. At the cost of repetition, although such certificate is proved on the record albeit in a different format, there is no challenge to the digital photographs by the defence in any manner.

LAST SEEN EVIDENCE AND CONDUCT OF THE ACCUSED PERSONS

86. In the back ground of the report form the initial investigation by the Spanish Police referred above, it is but necessary to decipher that in a case like the instant one, where the police investigation was delayed due to circumstances beyond human control, the evidence that was collected at the earliest point of time assumes great significance. At the cost of repetition, PW4 Binay Kumar in his testimony before the court stated that he was on inspection with captain Rajan Aggarwal from 9:00 am to 12 O Clock (noon) local time and during such inspection Captain Rajan Aggarwal called upon the accused Shankar Bhatia to come to his cabin with accused Vivek for studies. Before we proceed further, we must remind ourselves about the proposition of law reiterated in a recent case by the Apex Court in the case of Lal Bahadur v. State State v. Vivek Madhok & Anr. Page 42 of 70 43 (NCT of Delhi), (2013) 4 SCC 557 referring to observations of the Court in Bharwada Bhoginbhai Hirjibhai v. State [(1983) 3 SCC 217 : 1983 SCC (Cri) 728] that much importance cannot be attached to minor discrepancies on the following reasons:

"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events.

The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him--perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

87. In the light of the said observations, while PW4 in his testimony before the Court when examined on 20.07.2006 and later State v. Vivek Madhok & Anr. Page 43 of 70 44 on 30.003.2007 and lastly on 31.04.2007 omitted to mention certain vital facts after almost after two years of the incident, in the statement Ex. PW 4/F given at the earliest point of time , which was typed by PW4 Binay Kumar and given to the Spanish Police on 15.04.2004, the unshattered version is that during the routine inspection Captain Rajan Aggarwal told accused Shankar Bhatia to come to his cabin at 16:00 hours for classes along with cadet Vivek Madhok and he further stated that along with Captain Rajan Aggarwal, went to C/E cabin where the Chief Engineer and Second Engineer were doing some paper work and after speaking to them for few minutes they came down to officers deck and as they reached near cabins, Vivek Madhok opened his door and the Captain asked him as to whether he was sleeping and on the cadet giving a reply in the affirmative, Captain asked PW4 as to why cadet was sleeping till then and on that PW4 replied that Vivek Madhok was on watch 00: 00 hours to 04:00 hours and after 10:30 hours he had given him 'off' and captain asked to remove all the "physical exercise equipments" i.e items form the cabin of Vivek Madhok and keep the same in Gymnasium and they then went to cadet Shankar Bhatia's cabin where he was sleeping but his cabin was clean.

88. It is further in his statement Ex. PW 4/F that after a while the Captain saw both the cadets in the alleyway and called them to come to his office; that PW4 stood outside the ship's office State v. Vivek Madhok & Anr. Page 44 of 70 45 when the captain called inside and asked cadet as to why mates locker had not been arranged properly and instructed the cadets that next time when they take inventory, they must arrange it properly; that then they came out of the ship office and captain went away while cadet Bhatia came along to cabin of PW4 and at about 12:20 or so cadet Bhatia went to Vivek Madhok's cabin. It is pertinent to mention here that the said facts have not been challenged in the cross examination of PW4.

89. If the statement of Vivek Madhok Ex. PW 4/H and that of accused Shankar Bhatia Ex. PW 4/J are read together which they had given voluntarily to PW4 much before they were accused of committing the crime, which is a relevant fact in terms of Section 8 of Indian Evidence Act, that would show that both took lunch together in ship office at about 12:30 or thereafter they went for playing table tennis at 12:40 hours and at about 1:00 pm they went to sleep in their respective cabin and got up around 15:35 hours which is not believable as they had already had their "sleeping time"

when the captain was on inspection earlier.

90. From the evidence discussed above, what the prosecution is able to bring home beyond reasonable doubt is that the Captain was little harsh on accused Vivek Madhok on the fateful day and both the accused had to visit the Captain during the relevant time for studies. None of the prosecution witnesses State v. Vivek Madhok & Anr. Page 45 of 70 46 were asked any question so as to establish whereabouts of the accused persons between 2:30 pm till about 4:00 p.m (local time) and none saw them going to the captain's cabin at 3:55 pm either. INJURIES ON THE BODY OF ACCUSED PERSONS

91. The most crucial evidence that comes out in the testimony of almost all the witnesses is about the injuries on the body of accused Vivek Madhok so much so that even the defence has tried to rely on such injuries albeit in a different manner. Let us scan such evidence.

92. PW5 Dr. S. K. Sharma, Professor Forensic Medicines, Maulana Azad Medical College, New Delhi and PW6 Dr. Anil Aggarwal, Professor and Head of the Department, Forensic Medicine Department, Vardhaman Mahavir Medical College were members of the Medical Board who examined the nature of injuries on the body of the accused persons on 03.05.2004 and the following injuries were found on the body of accused Vivek Madhok :

1) Old healed scar 2.5 x 0.2 cm, slightly raised, solt brownish, linear below the lower lip. The scar was obliquely placed in the midline.

2) Old healed scar 2 x 0.5 cm over palmer aspect of base of right thumb. The colour of the scar was brownish white, consistency soft, linear in shape.

3) Old healed scar 0.8 x 0.5 cm brownish white in colour, soft in consistency over palmer aspect of right hand 2.3cmproximal to the base of right middle finger. The scar was obliquely placed.

4) Old healed scar brownish white in colour, soft in consistency, slightly raised, linear in shape 1.2 x 0.2 cm, obliquely placed over lower aspect of forearm, radial aspect 3.5 cm above the wrist.

The scar was surrounded by a diamond shaped brownish discolouration 0.8 x 0.8 cm.

5) Old healed depressed scar, oval in shape 0.8 x 0.3 cm over middle front of left leg, 23 cm below the left knee, colour was brownish, consistency soft.

State v. Vivek Madhok & Anr. Page 46 of 70 47

6) Old healed depressed scar, oval in shape 3 x 1.5 cm over lower front of left leg, 5 cm below the injury no. 5 colour was brownish, consistency soft.

93. The sketch of the injuries were also prepared on the MLC Ex.PW 5/1 to Ex. PW 5/4 and the following opinion was answered to the queries:

1. No definite opinion regarding age of injuries could be given.

However, injuries no. 1 to 4 could be about one month old. Injuries no. 5 and 6 could be more than 6 months old. All injuries were simple in nature.

2. & 3 Injuries no. 2, 3 and 4 appeared to be defence wounds. Injuries no. 1 to 4 could be caused during a scuffle. It is unlikely that these injuries are self inflicted. However, such a possibility cannot be ruled out. Since, injuries no. 5 and 6 were more than six months old they were unrelated to the current incident.

4. Since the injuries were healed, no definite opinion regarding nature of weapon could be given.

94. On examination of accused Shankar Bhatia, the following injuries were found in the MLC Ex. PW 5/5 and Ex. PW 5/6:

1. Scar on level with surrounding skin .5 x .2 cm whitish in colour, soft in consistency over dorsum of left hand 4 cmm below left wrist.

Opinion/ answer to the queries:

1. No definite opinion regarding the exact age of this injury could be given, because this injury being caused during above mentioned scuffle cannot be ruled out. Injury was simple in nature.

2. & 3. The injury could be caused during a scuffle. However, the possibility of it being self inflicted cannot be ruled out.

4. Since the injury was healed no definite opinion regarding the nature of weapon could be given.

95. It is pertinent to mention here that both PW5 and PW6 were not tested by the defence in regard to opinion expressed about the injuries mentioned in their reports Ex. PW 5/1 to 6. Of course State v. Vivek Madhok & Anr. Page 47 of 70 48 such opinion is "merely an opinion", simply a relevant fact but not conclusive and we have to appreciate the same in the light of the ocular evidence and broad circumstances of the case. The defence on their part examined DW1 Dr. L. C. Gupta, Specialist Forensic from Aruna Asaf Ali Hospital, who after looking at the photograph Ex. PW 32/C (Colly) depicting the scene of crime i.e the Captain's cabin gave an opinion that anybody could faint after seeing a pool of blood anywhere which medical condition is known as "Vasco vagal shock" and the person may fall in any direction that is particular to the posture he was having.

96. Without much ado, while it is only one of the possibilities and not certainty, the defence plea that the injuries were sustained by accused Vivek Madhok on falling on to the sofa where there were scattered certain glass pieces cannot be fathomed. Admittedly, it was PW34 Nekzad Cama who was the Medical Officer on board and attended upon accused Vivek Madhok when he had fallen unconscious or semiconscious but he was not put any question in the cross examination that such injuries had been sustained by accused Vivek Madhok consequent upon falling on broken glass pieces on the sofa.

97. In fact, the defence in the cross examination of PW4 Vinay Kumar, PW10 Manoj TE and PW15 Ramandeep did not elicit any response or for that matter from other prosecution witnesses State v. Vivek Madhok & Anr. Page 48 of 70 49 viz. PW17, PW27, PW30, PW40 and PW42 that accused Vivek Madhok had sustained injuries on his chin and/or the right palm and/or on the right hand on falling on to broken glass pieces on the sofa. There is no defence suggestion that any broken glass pieces were removed from the wound of accused Vivek Madhok by PW34 Nekzad Cama or for that matter by anyone else. In all human probabilities, it was either a drama enacted by accused persons to save themselves or it was a scenario where accused Vivek Madhok was probably having a weaker heart and after the most trouble some gruesome incident developed bouts of anxiety and breathlessness and fainted. The accused Vivek Madhok was not a hardened criminal and it could be safely inferred that he was under

lot of mental stress and worried about the blood and other incriminating evidence in the cabin that would nail him and thus he snapped.

98. Although the medical opinion that injury no. 1 to 4 on the body of accused Vivek Madhok and a trivial injury at the back of the hand of accused Shankar Bhatia were in the nature of defence wound calls naturally for practical speculation but it is inescapably justified having regard to the notions of common sense and logic in the background of the whole scenario in the captain's cabin, that has been cogently established by the prosecution as discussed hereinbefore. It could be safely inferred that there was a sudden State v. Vivek Madhok & Anr. Page 49 of 70 50 fight or quarrel erupted and the wounds must have been caused while hitting captain Rajan Aggarwal with the glass doll Ex. P5 and/or with the wooden glass frame Ex. P8 or the bottle of whisky/beer besides the stool and the metal detector, and/or such injuries resulting from the the scuffle involving the accused persons and captain Rajan Aggarwal. It is safe to assume that the Captain too must have reacted and hit back and that explains injury on the chin of accused Vivek Madhok who was almost of the same height and weight as the captain.

99. In fact, Vivek Madhok in his statement Ex. PW 4/H at the first available opportunity did not state in his statement that he had sustained injuries due to falling on to the glass pieces on the sofa. On the other hand, accused Shanker Bhatia has offered no explanation about such injuries and deliberately concealed his own. In the said contextual circumstances, accused Vivek Madhok in his interrogation by Spanish Police which statement is Ex. PW 45/A13 failed to give any satisfactory explanation as to how he was wearing different clothes later in the afternoon than the one he was wearing in the morning and there is no iota of word in his statement that when he went out to search for missing captain Rajan Aggarwal, his palm impressions were put on the railing of the boat deck. It is also a circumstance that accused Vivek failed to account for missing towel in his cabin and how could he was using towel belonging to State v. Vivek Madhok & Anr. Page 50 of 70 51 accused Shankar Bhatia.

100. It may be indicated that the version of accused Vivek Madhok that he had used his towel to stop bleeding and had thrown it somewhere is falsified from the fact that after entering inside the cabin of Captain Rajan Aggarwal, he claimed to have fainted on seeing blood. It that is so where was an occasion available to him to go to his cabin located at Edeck and took his towel to apply on to his injuries to stop the bleeding and come back again to the Captain's cabin and fell unconscious. As a necessary corollary, where was the time to instead take and use towel of accused Shankar Bhatia. The said version although supported by accused Shankar Bhatia is also patently false and indicate his participation in the ghastly crime and sharing common intention with accused Vivek Madhok.

FORENSIC REPORT

101. It is in evidence of PW8 KRS Kanwar that he had medically examined captain Rajan Aggarwal on 14.01.2004 and the medical report vide documents Ex. PW 8/A to Ex. PW 8/E indicates that the blood group of missing Captain Rajan Aggarwal was 'A' positive. As regards accused Vivek Madhok, PW8 stated that he was medically examined on 13.12.2003 and the report Ex. PW 8/F to Ex. PW8/H, reveal that his blood was group 'B' positive. Further, he medically examined accused cadet Shankar Bhatia on 13.01.2004 State v. Vivek Madhok & Anr. Page 51 of 70 52 and as per report Ex. PW 8/J to Ex. PW 8/L, his blood group was found to be 'O' positive.

102. Now the defence has not assailed serological report of PW 44 V. Shankar Narayan which is Ex. PW 44/C to the effect that he had examined the iron stool found in the cabin Ex. P4, pillow cover Ex. P6 besides plastic cover Ex. P7 of the metal detector Ex. P3 on which as his report Ex. PW 44/D, he found traces of 'A' blood group. Although, he found that the blood on the piece of doll was human but there was no reaction found in regard to blood group and on pieces of broken glasses as well.

103. It must be seen that the said examination report was submitted on 12.05.2005 after about a year of the incident and it could very well be said that the case exhibits had been subjected to natural decay. However, the pant which was seized from accused Vivek Madhok had traces of human blood B positive. Further, DNA report of PW29 Dr. Anupama Raina Ex. PW 29/C is uncontroverted that DNA profile from the blood stain on the pillow cover marked Ex. E04 was of male origin and belonged to the biological off springs of Ex. 119 (fresh blood of B. M. Lal) and Ex. P 120 (fresh blood of Ms. Sudarshan Devi.

104. The initial forensic investigation into the case by the Spanish Police is very crucial to the prosecution case. It is in evidence that both the accused along with Nekzad Cama was put to State v. Vivek Madhok & Anr. Page 52 of 70 53 rigorous examination by the Spanish Police at Las Palmas and their blood samples as well as finger prints impressions were voluntarily collected as per General Station of Scientific Police report Ex. PW 46/B1 to B8 which have not been challenged by the defence. The police could not collect blood sample from the passage outside the cabin on 'DDeck' going through the ladder upto boat deck since it is testimony of PW15 and PW17 that the blood trail/ trades were washed away by rains which fact was not controverted. The blood samples were collected from the scene of crime by the Spanish Police using swabs Exhibit 4 from an iron rod of measurement 20 mm x 1500 mm from the cabin of the captain; Exhibit 4.1 with reddish substance which seemed like blood; Exhibit 4.2 grey substance taken as possible biological matter; Exhibit 5 Swab collecting reddish substance which seemed like blood, taken from the floor of the cabin of the captain, in front of the study desk; Exhibit 6 Swab impregnated with reddish substance which seemed like blood, taken from the head of a figure which was found in the cabin of the captain; Exhibit 7 Swab impregnated with reddish maroon substance, taken from an iron rod cut from 40mm x 960.5 mm from the cabin of the captain of the ship.

105. Further, the Spanish Police collected Exhibit 8 Swab impregnated with reddish substance which seemed like blood, taken from the floor of the cabin of the captain close to the shoes; State v. Vivek Madhok & Anr. Page 53 of 70 54 Exhibit 9 Cotton swab impregnated with reddish substance which seemed like blood, taken from the wall of the cabin of the captain, close to the exit; Exhibit 11 Cotton swab impregnated with reddish substance which seemed like blood, taken taken from the revolving metal stool in the cabin of the captain; Exhibit 12 Cotton swab impregnated with a reddish substance which seemed like blood, taken from the railings to the exit for outside, from the point.

106. Further, Spanish Police collected Exhibit 13 which is pillow case of white colour, taken from a sofa in the cabin of the captain, impregnated abundantly with reddish substance, for its study take the Exhibits 13.1 of a highest degree of the same and the Exhibit 13.2 of the other side and in the extreme opposite of the one before.

107. Lastly, the Spanish Police collected Exhibit 14 blood from the plastic case with a red dwarf label on its sides reddish substance which seemed like blood. The exhibits 1 to 14 are shown vividly in the photographs taken by the Spanish Police and not challenged by the defence. Now the report Ex. PW46/B6 to B8 explained as under:

First : Blood of human origin has been evidenced in the exhibits reviewed by this Laboratory like 4.1 (blood from an iron rod cut from 20mm x 1500) from the cabin of the captain), 5 (blood taken from the floor of the cabin of the captain, in front of the desk) 6, (blood taken from the head of a figure which was found in the cabin of the captain) 7 (blood taken from an iron rod cut from 40mm x 960.5 mm from the cabin of the captain of the ship) 8 (blood taken from the floor of the cabin close to the shoes) 9 (blood State v. Vivek Madhok & Anr. Page 54 of 70 55 taken from a piece of crystal from a painting in the cabin of the captain) 10 (blood taken from the wall of the cabin of the captain, close to the exit), 11 (blood taken from the revolving metal stool in the cabin of the captain) 12 (blood taken from the railings to the exit for outside, from the point) 13 (blood taken from the pillow case of the white colour, taken from the sofa in the cabin of the captain) and 14 (blood from the plastic case with a red dwarf label on its sides).

Second _ Have not succeeded in extracting nuclear DNA of the exhibit analyzed like 4.2 (greyish substance from an iron rod cut from 20mm x 1500 mm from the cabin of the captain.

Third Have succeeded in extracting nuclear DNA from all the exhibits analyzed blood, like the direct exhibits of the suspect Vivek Madhok (Exhibits 1) of the suspect Shankar Bhatia (exhibit 2) and of the supect Nezkad Sharukh Cama (exhibit 3).

108. The report Ex. PW 46/B8 drew the following conclusions can be established.

1. The same genetic profile of the male (profile 1) has been found in the exhibits analyzed like 4.1 (blood from an iron rod cut from 20mm x 1500) mm from the cabin of the captain, 5 (blood taken from the floor of the cabin of the captain, in front of the desk), 7 (blood taken from an iron rod cut from 40mm x 960.5 mm from the cabin of the captain of the ship) 8 (blood taken from the floor of the cabin close to the shoes) 9 (blood taken from a piece of crystal from a painting in the cabin of the captain) and 11 (blood taken from the revolving metal stool in the cabin of the captain), the said genetic profile coincide with the genetic profile of the suspect Vivek Madhok (exhibit 1).

The frequency with which this combination of genotypes presents itself in the Spanish population is one in three hundred thousand persons not related through marriage, approximately.

2. The same genetic profile of the male (profile 1) has been obtained in the exhibits like 12 (blood taken from the railings to the exit for outside, from the point) 13 (blood taken from the pillow case of the white colour, taken from the sofa in the cabin of the captain) and 14 (blood from the plastic case with a red dwarf label on its sides). The said genetic profile has been introduced as anonymous and collated with the evidence database existent in this Laboratory, where it will remain stored for later collations.

3. A mixture of at least two genetic profiles has been obtained in the exhibits described like 6 (blood taken from the head of a figure which was found in the cabin of the captain and 10 (blood taken from the wall of the cabin of the captain, close to the exit), feeling compatible with the hypothesis of that the said mixture comes from the genetic profile of Vivek Madhok (profile 1) and the genetic profile described in the earlier conclusion (profile IV). State v. Vivek Madhok & Anr. Page 55 of 70 56

4. The following would be needed in order to realize the pertinent studies of collation with the anonymous genetic profile (profile IV). Exhibit considered directly of the disappeared (tooth brush, shaving equipment etc.) and / or Exhibit undoubtedly coming from supposed family members through direct relation to the disappeared (preferably both parents or wife and children) consistent in both cases in epithelium cells of the oral mucous (saliva).

109. Exhibits 14 by the Spanish Police is plastic cover Ex. P7 of the metal detector Ex. P3 and it is quite a heavy object weighing about 1 ½ kg. Mere fact that metal detector was seized belatedly vide Ex. PW 9/A is hardly of consequence as testimony of PW9 Jasbir Singh is uncontroverted that he saw the metal detector at the scene of crime which had a crack that was applied by him with an adhesive tape.

110. In Selvi v. State of Karnataka, AIR 2010 SC 1974, it was held that DNA profiling is permitted by section 53 and 54 of the Code Of Criminal Procedure and the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3) of the Constitution.

111. Unfortunate for the prosecution case, the Police was not able to collect blood samples from the blood trail on the passage outside the cabin upto the boat deck since it is in the testimony of PW15 and PW17 the blood trail/tracks had been washed away by the rains during the interregnum. Anyway, much was argued about blood "oozing out" or "dropping abundantly" from the injuries on State v. Vivek Madhok & Anr. Page 56 of 70 57 the body of accused Vivek Madhok. Whatever meaning that we may gather of such words, it is not the case that blood was dripping like a current flowing from the wound, and one cannot loose site of the fact that how come the blood of the accused Vivek Madhok was found on the wooden frame as well as the doll face which was rather on the other side of the centre table where he had fainted on the sofa; more importantly how come his blood was found inside the bedroom near the shoes(Exhibit 8) much away from the adjoining office in the Captain's Cabin.

FINGER PRINT REPORT

112. Lastly, it is in evidence that the Spanish Police during its investigation studied glass/crystal pieces on which there was revealed seven tracks and the photographs were taken and analysis brought out in the papers which are Ex. PW 45/A59 to A80 is that on the glass pieces as many as 12 particulars of common characteristic were found tallying with thumb of right hand of accused Vivek Madhok. It is admitted fact that accused Vivek Madhok is a right hander. Needless to point out, the DNA and finger print report are not challenged in any manner nor this Court finds any discrepancy or shortcomings in the same.

FINAL CONCLUSIONS

113. Before I lay down the final conclusion drawn on the State v. Vivek Madhok & Anr. Page 57 of 70 58 appreciation of evidence in this case, it would be expedient to refer to the observations of their lordship in the case of G. Farishwanath v. State of Karnataka, (2010) 8 SCC 593, where it was reiterated that where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. It was observed that:

Although there should not be any missing links in the cases, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusions of guilty and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/ are not decisive.

The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude State v. Vivek Madhok & Anr. Page 58 of 70 59 every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone. It must exclude each and every hypothesis suggested by the accused. However, extravagant and fanciful it might be. 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 where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".(emphasis mine)

114. Applying the said proposition of law to the instant case, the conclusions that can be drawn in this case proved beyond reasonable doubt by the prosecution is that both the accused Vivek Madhok and Shankar Bhatia had a fight / quarrel with Captain Rajan Aggrwal who was a hard task master and on the day of incident was a little rough with accused Vivek Madhok; that during the sudden quarrel, Captain Rajan Aggrwal was hit probably with one item or the other involving a wooden glass frame Ex. P8, Japanese Doll Ex. P5, show case a whisky bottle, a steel stool Ex. P4 and a metal detector Ex. P3 with plastic seat Ex. P7 and in the process Captain Rajan Aggarwal probably tried to save himself as well as hit back at the accused persons causing injuries on the body of accused Vivek Mahdok. Although, it is not certain whether the Captain Rajan Aggarwal was killed or strangulated in the cabin. It is a matter of strong inference that his unconscious or still body was wrapped in the bed sheet and both the accused lifted the dead body or carried out the dead body from the cabin up to the boat deck State v. Vivek Madhok & Anr. Page 59 of 70 60 through the ladder and threw the body into the open sea to escape being caught.

115. In filling up the missing links, one cannot loose sight of the fact that missing captain Rajan Aggarwal weighed about 70 kg and height of 176 cm as per Ex. PW 8/A to Ex. PW 8/D while accused Vivek Madhok during the relevant time weighed about 68 kg height of 182 cms while accused Shankar Bhatia weighed 60 kg and height of 160 cm as per MLCs Ex. PW 5/1 to Ex. PW 5/6. The body weight and height of Captain Rajan Aggarwal was such that one accused alone could not have been able to overpower him and it is a strong inference that both the accused persons in the ensuing fight pinned down Captain Rajan Aggarwal and whether he was injured or dead, strangulated or not, one of the accused could not have carried the body all by himself from Ddeck to the boat deck and both the accused who have been together must have lifted, dragged or carried the body of captain Rajan Aggarwal up to the boat deck and throwing into the open seas.

116. AND before finally drawing the conclusion from the evidence brought on the judicial record, the plea by Ld. defence counsel that the blood stain palm prints of accused Vivek Madhok were put on the two hand railings at boat deck while he was in search of the captain with PW23 must be caste aside as no such suggestion was given to any of the main witnesses PW4, PW10, State v. Vivek Madhok & Anr. Page 60 of 70 61 PW15, PW17, PW27, PW30, PW40 and PW42 and this plea has come out of the blue for the sake of it in the testimony of PW 23 whose testimony is unworthy of any credit either way. So much so that even this plea was not taken by accused Vivek Madhok in his statement u/s 313 Cr. P.C.

117. Much was also argued about the irregularities committed in the investigation and I must say that the investigation in this case was totally lackadaisical devoid of any commonsense and vision. Infact a vain attempt was made by the I.O to plant evidence in the nature footprints from the sandals or chappels being worn by the accused persons during the relevant time that this Court discards anyway. All said and done, that by itself cannot throw away the prosecution case since the initial inquiries and observations made by the key witnesses and initial investigation by the Spanish Police tell its unassailable own tale . Although, in evidence established on the record, there is some diversion from the main story of the prosecution that is based on the disclosure statement of the accused Vivek Madhok Ex. PW 47/D and Ex. PW 47/E of accused Shankar Bhatia, the truth that comes out is crystal clear that the incident had occurred sometimes between 2:30p.m to 4:00p.m and no prejudice has been caused to the accused persons as they very well knew what has been the prosecution case that they have to meet.

State v. Vivek Madhok & Anr. Page 61 of 70 62

118. On the basis of the cumulative effect of the facts proved on record by the prosecution, the conclusions that can be derived from the evidence establishing the guilt of both the accused persons are as follows: (1). That as per the evidence of PW4 Binay Kumar Singh, Captain Rajan Aggarwal had been rough with accused Vivek Madhok on the day of incident and had told accused Shankar Bhatia to come to his cabin along with accused Vivek Madhok around 16:00 hours; and (2). That both the accused persons were scheduled to meet Captain Rajan Aggarwal sometimes between 2:30pm to 4:00p.m and they have adduced no alibi as to their whereabouts during the relevant time; and (3). That the condition of the room, blood on the floor, on the sofa and other item would show that there had been a struggle or scuffle probably between Captain Rajan Aggarwal and the assailants; and (4). That when the matter was reported at about 16:05 hours, firstly by accused Shankar Bhatia, accused Vivek Madhok although appeared to have fallen on the sofa set in the cabin could not have sustained the injuries as reflected in the MLC Ex. PW 5/4 due to broken glass pieces and no such case was put by accused Vivek Madhok at any point of time nor accused Shankar Bhatia explained the injuries on his hand, however a trivial it was and rather concealed it initially which was later detected when he was medically examined; and (5) That PW4 Binay Kumar, PW 10 Manoj TE and PW15 Raman Deep fully suspected the involvement of both the accused persons behind the fact of missing Captain Rajan Aggarwal and the crew was instructed to maintain cool and complete silence about the incident; and (6) That accused Vivek Madhok was not wearing uniform / dress that he was wearing on the day of incident in the morning and accused Vivek Madhok not only gave an evasive reply about whereabouts of his clothes but also failed to produce the same to the Spanish police or for that matter to PW4 Binay Kumar or PW10 Manoj TE or to the Delhi Police; and (7) That Forensic Report prepared by Spanish Police in the nature of DNA profile brought out the presence of blood of accused Vivek Madhok on the hand iron rod cut from railing of the boat, from the floor of the cabin in front of the desk; from the floor cabin inside in the bed room near shoes; from a piece of crystal from a painting in the cabin; from the revolving metal stool which established the presence of the accused Vivek State v. Vivek Madhok & Anr. Page 62 of 70 63 Madhok at the scene of the crime; and (8) That the finger print report Ex. PW 45/A59 to A80 reveal that seven clear tracks were found on broken glass pieces and as many as 12 particulars of common characteristic were found tallying with thumb impressions of the right hand of Vivek Madhok suggesting that it was he who had hit Captain Rajan Aggarwal with some glass item or the other thereby immobilizing the Captain; and (9) That the DNA report Ex. PW 29/B also brings out that there was blood on the white pillow cover Ex. P6 belonging to missing captain Rajan Aggarwal and there was blood on the plastic cover of the metal detector Ex.P7 that belonged to the captain Rajan Aggarwal. (10) that the cumulative proved facts about the state of the cabin, blood on the pillow and other places and the blood trail from outside the cabin up to the boat deck and the fact that Captain Rajan Aggarwal was not found on thorough search of the ship, prove beyond reasonable doubt that the victim had met a homicidal death;

(11) that the presence of blood on accused Vivek Bhatia on several items of which were not on the sofa but on the other side of the centre table on the floor much away from him falsified his defence that he fainted and his blood fell on the sofa and other items; and (12) that in any case the blood if any from the wound was in the nature of coming out like a current or stream that would fall on almost all side of the cabin room; and (13) That the version of the accused Vivek Bhatia that he collapsed on seeing blood in the cabin, there was no occasion to him to go to his cabin after the matter was reported to PW4 Binay Kumar and when others arrived and the very fact that his cabin towel was missing and he was instead using towel of coaccused Shankar Bhatia would indicate that they both were together in the entire scheme of the things. (14) That it was accused Shankar Bhatia who was all along present with accused Vivek Madhok and in view of the false explanation given by him in regard to whole episode of accused Vivek Madhok falling on the sofa on seeing so much blood, there is a strong inference that it was accused Shankar Bhatia who was particeps criminis and both disposed of the body of the missing Captain Rajan Aggarwal by throwing his body into open sea.

119. In the said view of the discussion, although the facts and circumstances established on record by the prosecution demonstrate that there was a sudden fight between accused State v. Vivek Madhok & Anr. Page 63 of 70 64 persons and Captain Rajan Aggarwal and probably there was no premeditation to kill the Captain, the Exception IV to Section 300 of IPC does not appear to be applicable as it is immaterial which party offered the provocation or committed the first assault and it is palpably a case where accused persons took undue advantage or acted in a cruel or unusual manner in disposing of the body of deceased Captain Rajan Aggarwal to let him die in all human probabilities. The actus reus started without mens rea but culminated in committing a murder by the accused persons who disposed of with the body of the victim in the open seas thereby ensuring that there was left no chance of his survival. FINAL ORDER

120. I therefore find that the prosecution has been able to prove its case beyond reasonable doubt against both the accused persons Vivek Madhok and Shankar Bhatia. Both the accused persons are convicted u/s 302/34 of IPC as well as u/s 201/34 of IPC.

121. Let the accused persons be heard on the point of sentence on 10.09.2013.

ANNOUNCED IN THE OPEN                               (DHARMESH SHARMA)
COURT TODAY i.e 06.09.2013                   ASJ01,NEW DELHI DISTRICT
                                                               06.09.2013




State   v.   Vivek Madhok & Anr.                                                              Page 64 of 70
                                                               65

                   IN THE COURT OF SH. DHARMESH SHARMA,

ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.

Date of filing of charge sheet : 16.07.2004 Date of framing of charge : 12.04.2006 Date of final arguments : 17.08.2013 Date of judgment : 06.09.2013 SC No. 13/05 FIR NO. 336/04 PS : Malviya Nagar U/s 302/201/34 of IPC In Re:

STATE Vs.

1.Vivek Madhok S/o Sh. Rajesh Madhok R/o 24/6, East Punjabi Bagh, New Delhi.

2.Shankar Bhatia S/o Sh. Ashok Kumar Bhatia H19/29, Sector7, Rohini, Delhi.

APPEARANCES Present : Mr. Salim Khan, Ld. Addl. PP for the State Mrs. Jyoti Aggarwal, wife of the deceased Captain Rajan Aggarwal is also present alongwith Mr. Ashwin Vaish, State v. Vivek Madhok & Anr. Page 65 of 70 66 Advocate.

Mr. Shailender Babbar, Ld. Counsel for accused Vivek Madhok (A1).

Mr. R. N. Mittal, Ld. Senior Counsel alongwith Mr. Sachin Sharma, Ld. counsel for accused Shankar Bhatia (A2). 11.09.2013 Order on sentence

1. I have heard the ld defence counsel and the ld APP on the point of sentence and perused the record.

2. Sh. R. N. Mittal, Ld. Senior Advocate for convict Shankar Bhatia has urged that at the time of commission of offence he was a young boy about 23 years of age and now he is married and having a baby girl about three years of age. It is also informed that convict Shankar Bhatia has a younger brother who is residing abroad and a married sister and the convict is the only support for his old aged parents.

3. It is urged by Mr. Mittal, Ld. Senior Counsel for the convict that the offence was committed in the heat of the moment without any pre meditation and whatever happened thereafter was not intended.

4. Mr. Shailender Babbar, Ld. counsel for convict Vivek Madhok has also urged that at the time of commission of offence he was a young boy about 21 years of age and now he is married and having a three months old son. It is informed that although the convict Vivek Madhok has two brothers, his client primarily takes care of his old aged parents.

5. Both the Ld. Defence counsel have vehemently urged that the present case does not fall in the category of "rarest of rare"

and request that death penalty may not be awarded to the State v. Vivek Madhok & Anr. Page 66 of 70 67 convicts u/s 302 IPC. Mr. Babbar, Advocate has further urged that a lenient view may be taken in regard to imposition of sentence u/s 201 IPC.

6. Per contra Mr. Salim Khan, Ld. APP for the State has urged that the convicts persons acted in a most cruel manner in disposing of the body of the victim and that demonstrates their diabolical state of mind and urged that only death sentence would meet the ends of justice as the victim was left behind by a young widow with two minor children.

7. In the causa célèbre Bachan Singh v. State of Punjab, 1980 CRI. L. J. 636, the Constitution Bench discussed the parameters for imposition of death penalty as versus life imprisonment and suggestion of Dr. Chitely was cited with approval that the Court shall take into account the following mitigating circumstances to divert from death penalty: (1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.

(3) The probability that the, accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally Justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

8. It was further observed that:

State v. Vivek Madhok & Anr. Page 67 of 70 68

207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation.

"We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Sec. 354 (3), viz. that for persons convicted of murder life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

9. Further in the case of Machhi Singh v. State of Punjab, 1983 CRI. L. J. 1457 it was observed that:

The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and pro vided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the State v. Vivek Madhok & Anr. Page 68 of 70 69 nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. AIR 1980 SC 898, Rel. on.(Para

33) In order to apply these guidelines inter alia the following questions may he asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

(Para 34) If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so. (Para 35)

10. In the light of the said proposition of law, having regard to the totality of the facts and circumstances of the case, I find myself in agreement with the submissions of Ld. defence counsel that the instant case does not fall in the category of "rarest of rare" cases to warrant death penalty and the alternative punishment of life imprisonment shall be the most appropriate punishment.

11. In the said view of the matter, convict Vivek Madhok son of Sh. Rajesh Madhok is sentenced to undergo imprisonment for life and imposed with fine of Rs.25,000/ in default to undergo rigorous imprisonment for a period of six months u/s 302 of IPC . Further, convict Vivek Madhok is sentenced to undergo rigorous imprisonment for a period of seven years State v. Vivek Madhok & Anr. Page 69 of 70 70 and pay fine of Rs.25,000/ in default to undergo further imprisonment for a period of six months u/s 201 IPC.

12. Similarly, convict Shankar Bhatia son of Sh. Ashok Kumar Bhatia is sentenced to undergo imprisonment for life and imposed with fine of Rs.25,000/ in default to undergo rigorous imprisonment for a period of six months u/s 302 of IPC. Further, convict Shankar Bhatia is sentenced to undergo rigorous imprisonment for a period of seven years and pay fine of Rs.25,000/ in default to undergo further imprisonment for a period of six months u/s 201 IPC.

13. The judicial record indicates that convict Vivek Madhok remained in judicial custody from 20.04.2004 to 09.08.2005 and convict Shankar Bhatia remained in judicial custody from 20.04.2005 to 20.05.2005. Both the sentences shall run concurrently and the benefit of section 428 Cr.P.C. shall be extended to the convicts.

14. The convicts have been supplied certified copies of judgment and order on sentence passed today free of costs.

15. The present file be consigned to the record room alongwith a copy of the judgment.


ANNOUNCED IN THE OPEN COURT                                        (DHARMESH SHARMA)
TODAY  i.e 11.09.2013                                               ASJ01/PHC/NEW DELHI
                                                                                  11.09.2013




State   v.   Vivek Madhok & Anr.                                                              Page 70 of 70

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