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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELALTE JURISDICTION
CRMINAL APPEAL NO. 173 OF 2008
ALONGWITH
CONFIRMATION CASE NO.1 OF 2008
Deepti Anil Devasthali and
Leena Anil Devastnali .. Appellants
Vs.
State of Maharashtra .. Respondent
Ms. Rohini Salin, Amicus curiae
Convicts/Appellants present in person
Shri Mundargi, Special Prosecutor with Ms. U. K. Kejriwal and
Ms. S.D. Shinde APPs. For the State
Mr. S.V. Marwadi for the Applicant in Application No.1 of 2008
CORAM: J. N. Patel &
Mrs. Mridula Bhatkar, JJ.
DATE: 30th September, 2009
P. C . (Mrs. Mridula Bhatkar, J.)
1. Accused no.1 Deepti Anil Devasthali (daughter of
Accused no.2) and Accused no.2 Leena Anil Devasthali are convicted
by the learned Ad Hoc Sessions Judge,Pune by judgment and order
dated 27th December, 2007 for committing the offence of abduction
and murder of one Dr.Deepak Mahajan alongwith other offences.
They are sentenced to death for the offences of abduction for
ransom and murder. Hence this appeal against the conviction filed
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by both the Accused and the reference for confirmation.
2. As per the case of the prosecution Accused no.1 Deepti
and Accused no.2 Leena who are related as daughter and mother
conspired to abduct Dr. Deepak Mahajan in order to demand
ransom and commit his murder. Both the ladies started a detective
agency by name Blue Bird Detective Agency having its office at
Shaniwar Peth, Near Omkareshwar Temple, Pune. On 11/6/2006 they
gave an advertisement in newspaper Sakal that they wanted to
employ young, healthy and clever men to work in their detective
agency. In response to their advertisement, PW-3 Pravin Dnyaneshwar
Kamble, PW-2- Ashok Jagannath Magar, PW-1 Ketan Pramod Kale
and Court witness(CW-1) Rahul Abhimanyu Bhosale amongst others
have applied and were interviewed by Accused no.1 and Accused no.
2. Accused no.1 and Accused no.2 did not disclose their identity and
real names but they represented to be one Joshi Madam and Miss
Pradnya Kale. In furtherance of the conspiracy out of these four
persons PW-2 Ashok Jagannath Magar had accompanied Accused no.
1 Deepti to Yashwantrao Chavan Memorial Hospital (in short
Y.C.M.Hospital) and introduced himself as Yogendra Shirke to Dr.
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Deepak Mahajan. While visiting Y.C.M.Hospital Accused no.1 had
changed her appearance with Wig, dentures, and spectacles, looking
like a character in one Hindi Serial which was aired on the
television earlier by name Jassi Jaisi Koi Nahi.
3. In the year 2006 Dr. Deepak Mahajan was working as
the Head of Orthopedic Department in Y.C.M.Hospital at Pimpri,
Pune. On 29/6/2006, Accused No.1 wearing wig, spectacles and
dentures had visited YCM Hospital and handed over one envelope
to his colleague Dr. Ajay Bajirao Sonawane with message that the
said envelope was to be given to Dr. Deepak Mahajan. It was
containing a letter from Omkar Charitable Trust requesting Dr.
Deepak Mahajan to accept a post of Honorary Surgeon in the
hospital proposed to be run by the said Trust on honorarium of Rs.
15,000/- per month. On 30.6.2006 Dr.Deepak Mahajan was contacted
in Y.C.M.hospital by Accused No.1 and PW-2 Ashok Jagannath Magar
and who introduced himself as Yogesh Shirke, the signatory of the
said letter and they both again handed over copy of a similar letter
to Dr.Mahajan. Dr.Mahajan sought time to think over the offer.
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4. PW-1 Ketan Pramod Kale and CW-1 Rahul Abhimanyu
Bhosale were employed in the Blue Bird Detective Agency by the
Accused. They were told that they have to abduct one doctor who
was involved in kidney scandal and he was to be interviewed by
the Head of their detective agency. On 1/7/2006 the Accused
alongwith PW-1 Ketan Kale and C.W-1 Rahul Bhosale searched for a
lodging house and booked room no.7 in one lodge named Shantanu
Lodge on 2/7/2006. On the previous day i.e. on 1/7/2006 the
Accused with the help of P.W.1 Ketan Kale and C.W-1 Rahul Bhosale
performed rehearsal of overpowering the doctor as soon as he
would enter the room. Accused no.1 told P.W.1 Ketan Kale and CW-1
Rahul Bhosale how to hold the mouth and legs of Dr.Deepak
Mahajan after the signal was received by them. It is the
prosecution’s case that the Accused in the course of their
preparation had purchased drug by name Thisol Sodium/
Pentathol/Thipentone from the chemists by name Darpan and
Tashiba Medical & General Stores, Nasik. This drug is used to give
anesthesia and also to put the animals to sleep in Veterinary
hospitals.
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5. On 2/7/2009 the Accused persons contacted Dr.Deepak
Mahajan and invited him for lunch at Durvankur Hotel, at Pune.
However,the doctor did not accept the invitation for lunch but
agreed to have meeting at around 4’O clock. Dr.Mahajan had
discussion with his wife Dr. Smita Mahajan about this offer from
Omkar Charitable Trust and his meeting with the Trust people. Dr.
Deepak Mahajan left home around 3.45 p.m. on an Activa scooter
and went to Shantanu Lodge. At that time Accused no.1 Deepti who
had changed her identity like Jassi, received him at Shantanu Lodge
and brought him to room no.7 where CW-1 Rahul Bhosale and PW-1
Ketan Kale shut his mouth and held him as per their plan. Accused
no.1 Deepti injected drug Thiosol Sodium in the wrist of Dr.Mahajan
due to which Dr. Deepak Mahajan became unconscious within a
minute in the said room. Accused no.1 with the help of PW-1 Ketan
Kale and CW1-Rahul Bhosale lifted him and put him in her Matiz
Car with changed registration number, which she had parked at the
gate of the Shantanu Lodge. Dr.Mahajan was kept in sitting position
on the back side seat between Ketan Kale and Rahul Bhosale and
Accused no.1 drove her Car towards Karve road, where Accused No.2
was waiting for them. Ketan Kale and Rahul Bhosale were asked to
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get down from the vehicle and both the Accused along with Dr.
Deepak Mahajan drove away.
6. Dr. Smita Mahajan, wife of Deepak Mahajan was
worried as her husband was not responding on his phone and some
other person spoke to her and threatened in muffled voice that
doctor was abducted by them and told her to follow their orders, if
she wanted him alive. Dr. Smita Mahajan thereafter contacted Dr.
Parag Mahajan, the brother of Dr. Deepak Mahajan and Dr. Deepak’s
brother in law Mr. Phansalkar who also tried to contact Dr. Deepak
Mahajan on his cell. However, they could not. When Dr.Smita
Mahajan again contacted the cell phone of Dr. Deepak Mahajan the
person on the other end told that they had abducted Dr .Deepak
Mahajan and want a sum of Rs.25 Lacs . Dr.Smita Mahajan
thereafter rushed to Prabhat Road police chowky under Deccan
Gymkhana Police station and lodged complaint about missing and
abduction of her husband and demand of ransom. P.S.I. Mr .Yadav
registered the offence at C.R.No. 386/06 under sections 366,384 of the
Indian Penal Code and forwarded it to Deccan Gymkhana police
station for further investigation. Police Inspector Shri.V.R.Patil took
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charge of the investigation and police officer Mr. Agashe from Anti
Extortion Cell also tried to find out the details of the phone number
9960224773 which was written on the backside of the letter of
Omkar Charitable Trust. On that basis Mr.Agashe could trace P.W.3
Pravin Kamble who had come for the interview in Blue Bird
Detective Agency. On the same night police could trace Shantanu
Lodge and found that Dr. Deepak Mahajan had visited Shantanu
lodge on that day. On 7.7.2006 with the help of PW-3 Pravin
Kamble and other clues they laid a trap in front of the office of
Blue Bird Detective Agency. On the very day, Accused no.1 and 2
visited their office of Blue Bird agency and they came to be
arrested by the police in the morning. Immediately thereafter on
the basis of disclosure by Accused no.2 parts of the body of Deepak
Mahajan except the head and hands were recovered by the police
under panchanama from different spots at Katraj Ghat and some
parts of the body were found in two plastic bags at Bhosari. The
Police in the presence of Panchas prepared an Inquest and
Recovery Panchanamas. The parts of Human Body were sent for
autopsy to Sasoon Hospital Pune. Thereafter the offence under
section 302 of the Indian Penal Code was registered against
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Accused no.1 and 2 alongwith offences under Section 366 and 384
of the Indian Penal Code and they were arrested for an offence of
murder of Dr.Deepak Mahajan. The police during the course of
investigation recovered articles from the room at Uttamnagar under
panchanama and also searched the residence of the Accused persons
in Shrikrishna Watika, at Dahisar. The police were able to locate
Chemist Darpan and Tashiba at Nashik from where the drug
sodium thiosol was purchased by the Accused. In the course of
investigation, police recorded statements of witnesses and recovered
property and Activa Scooter. Matiz Car was recovered in the
month of September, 2006 i.e. two months after the date of the
incident. The police filed chargesheet against Accused No.1 and
Accused No.2. After committal of the case learned Ad Hoc Additional
Sessions Judge, Pune framed charges and tried the Accused. The
Accused persons did not engage advocate of their choice. So the
learned trial Judge offered and made them aware of the facility of
the legal aid service. However,both the ladies refused to avail of
legal aid facility. Accordingly the learned trial Judge has maintained
the record and finally went on with the trial and examined 46
witnesses. The Accused had cross examined first 12 to 13 witnesses
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and thereafter they declined to cross examine other witnesses. The
learned Trial Judge sentenced both the Accused to death on count
of abduction for ransom and murder. The trial court also awarded
different punishments for the charges, they were found guilty.
7. When the Criminal appeal filed by the Accused was
heard by this Court, the Division Bench found certain lapses in the
trial viz. some important witnesses were not cross examined. One
Rahul Bhosale deserved to be examined. Therefore, it held that
Accused should have been given proper opportunity to defend
themselves. The Division Bench remanded the case for recording of
evidence and cross examination of material witnesses under section
367 of the Criminal Procedure Code.
8. The learned Sessions Judge, thereafter recalled PW-1,
PW-4, PW-6, PW-8, PW-30, PW-32, PW-33, PW-40, PW-43, PW-5 and
PW-46 and examined Rahul Bhosale as Court Witness No.1. Both the
Accused, in the second round of the trial, engaged their respective
Advocates. Cross examination of the witnesses recalled was taken
extensively. Both, the prosecution and the Accused, were given
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opportunity to cross examine the Court Witness (CW-1) Rahul
Bhosale. After recording of evidence and further statement of the
Accused under Section 313, the matter was sent to the High Court.
The appeal and the reference thereafter came to be assigned for
hearing before our Bench by Hon’ble the Chief Justice.
9. When we took up the appeal and the submission
for confirmation of capital punishment it come to our notice that
both the Accused have discharged their previous Counsel and while
answering question No. 85 of their further statement recorded
under Section 313 of the Criminal Procedure Code, they had stated
that they wanted to give evidence on oath. However, they did not
press for the same before us but insisted that they wanted to
argue in person. However, this being an appeal against capital
sentence and a confirmation matter, it was our duty to take care
that the Accused should be adequately defended through counsel.
So, Ms. Rohini Salian was appointed as amicus curiae to defend
them. The Accused, though did not make any grievance about
appointment of the amicus curiae, insisted that they be also given
opportunity to argue their case in person as it is a matter of their
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life and death, which was allowed.
10. The Sessions Judge did endeavor to give legal aid
to appoint Advocate from the Panel of the legal aid which is
brought on record by examining PW-38-Sanjay Kadu. However, the
Accused did not want him to represent them in the Court but
wanted only his legal advice. The lawyer (PW-38) has stated on
oath that he was not in position to give correct legal advice without
going through the Court papers and cooperation from the Accused
and therefore, some important witnesses were not cross examined
in the first round of the Trial and the Accused were not properly
defended in the beginning.
11. Evidence tendered by the Prosecution is of a very
peculiar nature. The facts and circumstances brought on record of
this case reflect on the manner in which investigation was
carried out leaving a number of loose ends between the
commission of offence and the Accused. In the present case the
crime is committed not in a usual/conventional manner, but the
crime has been committed by exploring novel and different
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methods. Peculiar situations have come on record sufficient to
mislead everybody.
12. In the present case, the main attack of defence was
on the dishonest, shoddy and incomplete investigation by the
Police. The defence has highlighted some points to which the
prosecution could not give any answer. The lacunae reflecting the
quality of the investigation and how far they are fatal to the
prosecution is to be examined.
13. Accused Nos. 1 and 2 have been charged for the
offence of conspiracy under Section 120-B of the IPC in committing
offence viz. of cheating by impersonation under Section, 419 of the
IPC, forgery under Sections 564, 468 of the IPC and 471 of the IPC,
for causing hurt with intent to commit offence under Section 328
of the IPC, wrongful confinement under Section 342 of the IPC, for
extortion and murder under Sections 387, 302 of the IPC and under
section 201 of the IPC for causing disappearance of evidence or
giving false information to screen offender. Abduction under Section
346-A of the IPC. Causing hurt under Section 328 of the IPC and
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of murder under section 302 of the IPC are major offences and the
evidence is much interlinked with these charges.
Sr. No. Points for determination Findings
(1) Does the prosecution prove that the Yes
Accused No.1 and 2 have conspired to
abduct Dr. Deepak Mahajan and have
abducted in order that he may be
murdered or may so disposed of as to be
put in danger of being murdered under
Section 364-A read with Section 120 (b) of
the Indian penal Code.
Does the prosecution prove that the Yes
Accused No.1 and 2 have committed
offence of extortion under Section 387-A
read with Section 120 (b) of the Indian
penal Code.
(2) Does the prosecution prove that the Yes
Accused have conspired and have
committed an offence of cheating by
personation, punishable under Section 419
read with Section 120 (b) of the Indian
penal Code.
(3) Does the prosecution prove that the Yes
Accused have conspired and have
committed forgery for the purpose of
cheating and thereby have committed an
offence punishable under Section 465/468
read with Section 120 (b) of the Indian
penal Code.
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(4) Does the prosecution prove that the Yes
Accused Nos. 1 and 2 have committed an
offence of causing hurt with intent to
commit an offence punishable under Section
328 read with Section 120 (b) of the
Indian penal Code.
(5) Does the prosecution prove that the Yes
Accused Nos. 1 and 2 have conspired and
have committed an offence of confining
wrongfully Dr. Deepak Mahajan which is
punishable under Section 342 read with
Section 120 (b) of the Indian penal Code.
(6) Does the prosecution prove that the Yes
Accused Nos. 1 and 2 have committed an
offence of extortion by putting Dr. Smita
Mahajan under the fear of death of Dr.
Deepak Mahajan and thereby committed an
offence punishable under Section 387 read
with Section 120 (b) of the Indian penal
Code.
(7) Does the prosecution prove that the No
Accused Nos. 1 and 2 have committed an
offence of causing disappearance of
evidence to screen the offender, punishable
under Section 201 read with Section 120
(b) of the Indian penal Code.
(8) Does the prosecution prove that Dr. No
Deepak Mahajan was murdered for ransom
by accused person?
(9) Does the prosecution prove that the No
Accused have committed offence of murder
punishable under Section 302 read with
Section 120 (b) of the Indian penal Code.
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14. On 2nd July, 2006, after 4.00 p.m. Dr. Deepak
Mahajan after he left home to attend the meeting with Trustees
of Omkar Charitable Trust, his wife Dr. Smita Mahajan learnt that
he has been actually abducted and his abductors were demanding
ransom of Rs. 25/- lacs. Dr. Smita Mahajan PW-11 gave a first
information in respect of Dr. Deepak Mahajan on 2nd July, 2006 at
about 21.15 hours (FIR Exh. 58). She was aware that Dr. Mahajan had
received an offer from one Omkar Charitable Trust to work as
Honourary Orthopedic Surgeon in Sanjivani Hospital run by the
said trust. She has stated that in that context the Doctor had left
his house at about 4 p.m. to meet the person concerned i.e.
trustees of Omkar Charitable Trust. She also gave details that
those persons had invited the Doctor for lunch at Hotel
Durvankur. However, the Doctor opted to meet them after having
his lunch at home. PW-39 Atmacharan Balasaheb Shinde who
was attached to Vishram Baug Police Station has stated that he
received information on 3.7.2006 about registration of offence
under Sections 366 and 364 of the Indian Penal Code at Deccan
Police Station of kidnapping Dr. Deepak Mahajan and as per the
directions he conducted a surprise check of the lodges situated
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near Hotel Durvankur. Photographs of Dr. Deepak Mahajan were
supplied to them. On the night intervening 2nd and 3rd July, they
took search of Shantanu Lodge and on seeing the photograph of
Dr. Deepak Mahajan, Shri Vikas Harischandra Garad (PW-4)-
Manager of Shantanu Lodge had identified the said photgraphs
and informed that in between 4 to 4.30 p.m. on the previous day,
Dr. Deepak Mahajan had been to their Lodge to meet Veena
Ranade who had booked room no.7. PW-4 Vikas Harischandra Garad
has confirmed the visit of PW-39-Atmacharan Shinde at
night at about 1 a.m. and also he supplied him the said
information. PW-4 Vikas Garad is an important independent
witness on the point of visit of Dr. Deepak Majan to Shantanu
Lodge to meet Ms Veena Ranade. He also mentioned that Dr.
Deepak Mahajan came on Activa Scooter of Silver colour and he
saw him parking the scooter. He has seen Mrs. Ranade waiting
near the main gate of Shantanu Lodge and then she received
Dr. Mahajan and took him to Room No.7. He had deposed that
one lady who has introduced herself as Pathak Bai came to the
Lodge on 1.7.2006 and she enquired about availability of a room
and she informed that Mr. & Mrs. Ranade from Mumbai wants the
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room and she booked Room No.7. PW-4 handed over his visiting
card (Exh.34) of Shantanu Lodge, which was subsequently
recovered from the Accused. PW-4 Vikas Garad identified
Accused No.1 as Mrs. Veena Ranade and has identified Accused
No.2 as Pathak Bai. He has also given details about the clothes of
Dr. Mahajan. He has described that Ms. Ranade and one person of
the age group of 30 years had come and he had an opportunity
to see that person and Mrs. Veena Ranade. In the cross
examination of Vikas Garad, the photograph on the application form
i.e. Exh.23 was shown to him and he has identified the
photograph of Ketan Kale as the person who had visited on that
day as Mr. Ranade, so also he has identified him as the person
who used the telephone of Shantanu Lodge and talked with the
person on the other end of the telephone and called him at Hotel
Durvankur. Thus, the visit of Dr. Deepak Mahajan to Shantanu
Lodge is established by the prosecution through the evidence of
Dr. Smita Mahajan, Manager of Shantanu Lodge Shri Vikas Garad
and PSI Atmacharan Shinde.
15. The Learned Amicus curaie has challenged the
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identification by Vikas Garad of Accused No.1 as Veena Ranade as
according to Vikas Garad Mrs. Veena Ranade was having Sadhana
Cut, protruded dentures and round spectacles and Vikas Garad at
any time had no opportunity to see Accused No.1 in her normal
look.
16. PW-11- Dr. Smita Mahajan, in support of her evidence
about the offer which the Doctor had received from Omkar
Charitable Trust, has produced the letter Exh.28. PW-17-Dr.
Ashutosh Vitthalrao Dabare, and PW-29- Dr. Ajay Bajirao Sonawane,
the colleagues of deceased Dr. Deepak Mahajan in YCM Hospital,
Pimpri, were examined on the point of offer given to deceased Dr.
Deepak Mahajan by Omkar Charitable Trust and handing over of
letter of Omkar Charitable Trust. PW-17 Dr. Ashutosh Dabare and
PW-29 Dr. Ajay Bajirao Sonawane corroborate that people from
Omkar Charitable Trust had contacted Dr. Depeak Mahajan in the
month of June, 2006 and both of them have stated that one
lady looking like Jassi had visited Dr. Deepak Mahajan in YCM
Hospital. PW-29 Ajay Sonawane has referred that said lady had
handed over one letter to Dr. Deepak Mahajan. Dr. Ashutosh
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Dabare mentioned that on 30.6.2006 one lady looking like Jassi
had come alongwith one male person and they had meeting with
Dr. Mahajan.
17. PW-11 Dr. Smita has further deposed when she
tried to contact her husband Dr. Deepak Mahajan from her
mobile No. 9822018863 on his mobile No. 9422511574 he did
not reply for a longtime and after some time some person replied
and disclosed that they had abducted Dr. Deepak Mahajan and there
was threat that if she wanted Dr. Deepak Mahajan alive, then she
should act as per their directions. After this call she contacted her
relative and, alongwith her relative went to Prabhat Road Police
Chowky and lodged the complaint about missing of her husband.
Thereafter again, when Dr. Smita Mahajan and Dr. Parag Mahajan-
brother of the Dr. Deepak Mahajan, contacted on the Cell of Dr.
Deepak Mahajan, the threats were repeated. All these facts are
incorporated in the FIR which is marked as Exhibit-58. Accordingly
the offence of abduction under Section 366 read with Section 34 of
the Indian Penal Code was registered. Dr. Smita Mahajan has
deposed that during the night when she was at the Police station,
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she received phone calls demanding Rs.25 lakhs ransom.
18. PW-43, Uttam Yadav who was attached to Prabhat
Road Police Chowki has corroborated the evidence of Dr. smita
Mahajan and has stated in his evidence that the complainant (Dr.
Smita Mahajan) has lodged the complaint of kidnapping of Dr.
Mahajan in the late evening of 2.7.2006. He corroborates that the
complainant had called on the Cell No. from Police Station and he
could hear threats as the phone was kept on loud speaker. Thus
the prosecution has established the fact of abduction of Dr. Deepak
Mahajan under the pretext of giving him Honourary Post of
Orthopedic Surgeon in the Hospital run by them, by the persons
who were related to Omkar Charitable Trust. It was also
established that the Dr. Depeak Mahajan had visited Shantanu
Lodge around 4 to 4.30 on Activa Scooter and the couple who
introduced themselves as Ms. Veena Ranade and Mr. Ranade had
received the Doctor and took him to room No. 7 of the Lodge. All
these facts are established by the prosecution. Nothing was
brought in the cross examination of PW-11 Dr. Smita Mahajan and
also PW-4 Mr. Vikas Garad to show that their evidence on this
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aspect cannot be accepted.
19. As per the evidence of Dr. Smita Mahjan and PW-43
Atmacharan Shinde, the complainant Dr. Smita contacted on the
Cell No. 9422511574 of Dr. Deepak Mahajan on the night intervening
2nd and 3rd July 2007 and that the person on the other end told
that Activa Scooter of Dr. Mahajan was kept near Shivaji Nagar
ST stand, whereas the keys were kept on the electric meter at the
house situate near Tambdi Jogeshwari, Budhwar Peth, Pune i.e. the
house of the father of Dr. Deepak Mahajan. Pursuant to this, the
Scooter was found at Shivaji Nagar. Thus the prosecution has
proved that somebody has informed that somebody has abducted Mr.
Mahajan and his scooter was taken from Shantano Lodge and was
left at Shivanagar by those persons, and the person who informed
about the key was aware that the said house was at Budhwar Peth
Pune. PW-31- Shridhar Dattatraya Mahajan is the father of Dr.
Deepak Mahajan and he has deposed that it is his residential
address.
20. Thus, in view of the above discussion, the fact of
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abduction is proved by the prosecution. However, it is necessary for
the prosecution to prove further as to whether Dr. Deepak Mahajan
was abducted by Accused No.1 and 2.
21. The Prosecution has tendered evidence on calls
made immediately after the abduction. There are Exh.88- i.e. call
details of Cell No. 9422511574 (Cell Phone of Dr. Deepak Mahajan)
and call details Exh.130-1 9960224773 (Cell No. in the name of Rui
Raj Mathur). Call details of Cell No. 9422511574 are proved through
PW-14 Shailaja S. Kulkarni, Divisional Engineer of BSNL (Exh.88) and
call details of Cell No. 9960224773 were proved by PW-25 Vijay
Eknath Shinde- Nodal Officer of Bharti Airtel Ltd. (Exh.130-1). Dr.
Smita Mahajan, in her evidence has stated that she went on calling
her husband Dr. Deepak Mahajan- after she realized that he has
not come back on the time given by him. Her phone was
attended not by Dr. Deepak Mahajan but it was attended by some
other persons. Call details of Cell No. 9422511574 discloses incoming
calls from Cell No. 9822018863 (Cell of Dr. Smita Mahajan) which
corroborates the call details (Exh.190) of Cell No. 9822018863.
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22. IMEI (International Mobile Equipment Identification)
No. is given to a particular handset. Exh. 88 discloses that the call
received on 2.7.2006 at 17.44 hours on Cell phone 9422511574 of Dr.
Deepak Mahajan was from the residential phone No. 02025454699
of Dr. Deepak Mahajan and the said call was made by Arjun-Son
of Dr. Deepak Mahajan. It was attended on the Nokia handset of
Dr. Deepak Mahajan having IMEI No. 35253600483225. However,
after one minute i.e. at 17.45 Dr. Smita Mahajan contacted Dr.
Deepak Mahajan from her Cell No. and it was attended by
another person who disclosed that Dr. Deepak Mahajan was in
their custody and IMEI No. was changed as 351130741540560.
23. Letter Exh.28 was the first lead in the hands of the
Police. The letter Exh.28 produced by Dr. Smita, wife of the
deceased was the master key which opened the first door of the
investigation. Cell Phone No. 9960224773 written on the rear side
of Exh.28 was the first lead the police found. Production of the said
letter by Dr. Smita Mahajan on 2nd July, 2006 was challenged by
the defence.
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24. It was argued that Exh.-28 is not proved as none of
the witnesses has stated about its authorship. As per section 61
of the evidence Act, the document may be proved either by
primary or by secondary evidence. If the document itself is
produced for the inspection of the Court, it is a primary evidence.
In the present case Exh. 28 produced by the prosecution and PW-2
Ashok Jagannath Magar has stated about the contents of the said
letter. He deposed that Accused No.1 has told him that a letter of
Omkar Charitable Trust was to be handed over to Dr. Deepak
Mahajan in YCM Hospital and she also explained him that letter
was pertaining to appointment of Dr. Deepak Mahajan in Sanjavani
Hospital run by Omkar Charitable Trust. He has further deposed that
he had gone through the contents of the letter and the name of
one Yogendra Shirke as trustee was appearing on the letter. He
has admitted that Accused no.1 introduced him as Yogendra Shirke
and she took that letter from him and handed it over to Dr. Deepak
Mahajan. Further, the said letter Exh.28 was shown to him and he
deposed that signature of Yogendra Shirke was not made by him.
Section 60 is about direct oral evidence. PW-2 has seen and read
that document and has used the document and therefore, he is
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competent witness to prove the said document. Section 67 is in
respect of proof of the signature and handwriting of the person
alleged to have signed or written the documents produced. However,
in this case, the prosecution has proved the contents of the
document and not the handwriting and the signatory of the
document. Thus, in the present case, who signed that document as
Yogendra Shirke though is not proved, the contents of the
documents are proved as the said letter is produced before the
Court by PW-2 who was aware of the contents of the letter as he
himself had read it, and he was asked to introduce himself as a
signatory of the said letter. The prosecution has tendered the
evidence of PW-26 Sukdeo Nana Gaikwad who was working as
Inspector in Public Trust Registration Office. He has deposed that
there was no person by name Yogendra Shirke as Trustee of
Omkar Charitable Trust, Mumbai, though he found that Omkar
Charitable Trust was registered under Bombay Public Trust Act at
the address Shivaji Park Mumbai and the names of the trustees
of the Omkar Charitable Trust were Mr. and Mrs. Vaze and one
Mahadeo Katre. Thus, Exh.28 is a forged letter with bogus
contents, used by the Accused.
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26
25. It was argued that Uttam Krishna Yadav (PW-43) did
not mention about the letter Exh.28 in Exh.193 Yadi (list) dated
2.7.2006 and the said letter was also not sent to the handwriting
expert. PW-11 (Dr. Smita Mahajan) has stated in her evidence that
she has produced the letter Exh.28 to the police not at the time of
giving the FIR as she did not bring that letter when she gave the
FIR but she produced it one hour later. The omission to record in
her supplementary statement to that effect is not put to her or
the police officer who recorded the supplementary statement.
Hence, no opportunity was given to the witness to explain the
circumstance.
26. Accused No. 1 pointed out a mistake at the time of
the recording of the evidence. On Page No. 493 i.e. Cross
examination of PW-43- Uttam Krishna Yadav, in para 29, initially a
sentence was typed as ” she has produced that letter after about
one year from lodging the complaint” (emphasis placed). This
evidence was recorded by the Sessions Judge, Pune on 29.12.2008, of
which the Accused applied for certified copy and the certified copy
of the said evidence was supplied to the Accused on 7 th January,
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2009, which shows the word as “year”. However, in the paper
book, the word “year” is scored off and “hour” is written. The
learned Judge has put her initial after correcting the word. Hence,
it is evident that the correction in the evidence was carried out
after 7th January, 2009. The Accused, by pointing out these two
documents, has submitted that the Sessions Judge has wrongly
made correction as “hour” instead of “year” at the instance of the
prosecution, because the said letter Exh.28, in fact, was not
submitted by the wife of the deceased, Dr. Smita Mahajan. After she
gave the F.I.R. and letter Exh.28 was deliberately suppressed and
kept back by PW-11 Dr. Smita Mahajan from the police. The
Accused NO.1, in the course of her argument, pointed out that Exh.
193 Yadi ( list) dated 2.7.2006 was prepared by the Police person
Uttam Krishna Yadav (PW-43) while sending FIR. However in that
Yadi (Exh.193), there is no mention of Exh.28.
27. Further, the said letter was never sent to the
handwriting expert though it bears the signature of Yogendra
Shirke- the alleged Director of Omkar Charitable Trust. The PW-11-
has not deposed that her supplementary statement was recorded
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when she handed over the letter of Omkar Charitable Trust. On
the back side of the said letter Cell No. 9960224773 was written and
the said number, as per the case of the prosecution, was of Rui
Raj Mathur and on the basis of that Cell Number, prosecution
claimed to trace Cell No. of one Shri Vikrant Ghone who is
relative of PW No.3- Mr. Pravin Dnyanehwar Kamble from whose
Cell No. he has phoned to Cell No. of Accused No.1. Thus, letter
Exh. 28 is very important. However, this letter was not sent to
handwriting expert.
The two letters having signature of
Yogendra Shirke were available with the prosecution, one is dated
23.6.2006 and another is of 30.6.2006 (Exh.28). The prosecution opted
to send the first letter i.e. letter dated 23.6.2006 as the signature
appearing on both the documents were of one and the same person
i.e. Yogendra Shirke. The prosecution kept back the letter Exh.28
on which the material Cell No. was written.
28. Secondly, it appears that Learned Sessions Judge has
corrected the evidence definitely after 7th January, 2009. However,
it cannot be said that it is done at the instance of the prosecution,
as the learned Judge who records the evidence is supposed to
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correct the typographical, arithmetical or spelling mistakes after
recording of the evidence, preferably immediately before signing the
record. If it is not done so then after pointing out the said
mistake to both the parties evidence is to be corrected. If the
mistake is innocuous, after comparing the evidence recorded in
vernacular language i.e. in Marathi, the learned Judge can correct
that particular innocuous and obvious mistake. The record in
vernacular language i.e. in Marathi is always considered as
authentic. We, therefore, perused Marathi record to compare
whether the said word is ” hour” or “year”. We found that in
Marathi the word “hour” was recorded. Hence there is no doubt
that it was sent not after a year, but after an hour and no fault can
be attributed to the learned Sessions Judge. The Accused have
unnecessarily tried to capitalize this circumstance in their favour. We
cannot nullify Exh.28 which is most formidable incriminating
evidence.
29. Cell No. 9960224773 of Rui Raj Mathur- Letter from
C.P. to Airtel Cellular (Exh.185). How P. I. Barge was sent to Dahisar
on 5th July, 2006 when P. I. Balkrishna Bhikaji Agashe (PW- 40) has
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admitted that he received call details of Cell No. 9821486650-Cell No.
of Deepti- Accused-No.1 on 6th July, 2006. Details of Other Cell No.
i.e. 9890565992 of Deepti were received on 5th July, 2006. There
were three calls – one of 36 Seconds, and two of 15 seconds each
from the cell No. 9821486650 on Cell No. 9890060496- Cell of
Vikrant Ghone and as per the admissions given by Mr. Agashe
(PW-40) there were several calls of longer duration from Cell No.
9821486650 of Deepti as per the call details. Learned Amicus Curie
Ms. Salian has argued that though it was admitted that there was
no contact between Cell No. 9821486650 (Deepti) and Cell No.
9890060496 (Vikrant Ghone ) for a period of 8 days prior to 6th July,
2006, why the Police suspected Vikrant Ghone ? Learned Special
prosecutor Mr. Mundargi, in reply, has submitted that Police have
collected all the call details urgently and then they verified
income/outgoing calls and used the process of elimination.
However, out of those calls, the call details of Phone No. of
Vikrant Ghone was the relevant and material evidence as PW-3
Dnyaneshwar Kamble was found on the phone No. of Vikrant
Ghone, PW-3 corroborates the same and he was the one who first
disclosed to the police about the connection of Blue Bird
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Detective Agency and the Accused. The defence could not
demolish the evidence of PW-3.
30. The prosecution has produced clinching evidence
which the defence could not shatter on the point of phone calls. It
is earlier discussed that SIM Card having Cell No. 9960224773 was
purchased in the name of Rui Raj Mathur. PW-15- Bhavarlal Kojaram
Mali who was seller of SIM card and recharge voucher for Airtel
has deposed and confirmed that he had sold a charger of Alkatel
mobile and on the next day two ladies have asked for Nokia
handset and they have purchased SIM Card by filling the
application form (Exh.98) in the name of Rui Raj Mathur and driving
licence (Exh.98/2) and photograph were given by them. On the
basis of copy of the driving licence and photograph, the SIM card
which was initially not activated, was subsequently activated. PW-25
Vijay Eknath Dhinde- from Bharti Airtel has proved Ex. 98 i.e.
mobile enrollment form filled in by Rui Raj Mathur wherein
residential address was given as 80-90, MG Road, Yeotmal. He
corroborated that the form was submitted to retailer Mahavir
Photoshop which was run by PW-25 Bhawarlal Kojaram Mali. He
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corroborates Cell No. 9960224773 and that the SIM card was
activated on 26.5.2006( Call Details Exh.130). The Prosecution has
examined PW-35 Sudhakar Pillewar. Prosecution witness PW-35
who was working as Head clerk at RTO Yeotmal proved that no
such driving licence was issued in the name of Rui Raj Mathur on
10.1.2006 and the address has also appeared to be wrong. He also
confirmed that the validity period shown on the licence of two
years is found wrong as the validity is always for a period of five
years or till the age of 50 years. With this evidence the
prosecution could successfully prove that the said licence in the
name of Rui Raj Mathur was false and that the SIM card was
obtained on the fake identity.
31. Learned Amicus curiae Ms. Rohini Salian has
submitted that the evidence of Mr. Agashe (PW-40) that they have
intercepted Cell 9821486650 or any other Cell numbers which are
involved in this matter is incorrect because for keeping phones
under observation one needs requisite permission of the Government
under Section 5 of the Indian Posts and Telegraphic Act. It was
further argued that the statement of Vikant Ghone is not recorded.
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Police have arbitrarily connected Kamble, Vikrant Ghone and Cell
No. of Rui Raj Mathur (9960224773). Cell No. in the Advertisement
of Blue Bird Agency was 9821486650. Call details at Exhs. 127, 128
and 130 are suspicious. Exh.88 shows transfer of Phone No. of Dr.
Mahajan- 9422511574 to IMEI No. 351307415405600 Mobile Handset
of Deepti Devasthali. The evidence of Tower location though was
available to the Police, if is not brought on record why
locations were so frequently changed while 14 calls were made
from 9890565992 to 9821486650. Original Papers of Cell No.
9821486650 are not produced. The documents Exh.127/2 i.e. BPL
Mobile Application Form and Exh.127/3- Outgoing calls – all are
false and fabricated. Sanjay Kamble- PW 24 (Nodal Officer- on BPL
Mobile ) is not a witness on facts and he does not know anything.
The entries made in Exh.88 at Serial No.111- dated 1st July, 2006 of
Cell No. Dr. Mahajan – 9422511574 and the IMEI No. do not
match. When Dr. Smita Mahajan, in her evidence has deposed
that Dr. Deepak Mahajan was having only one handset, then how
call details of his Cell No. 9422511574 disclose different IMEI Nos.
showing use of more than one handset by changing SIM cards.
Why Police have not taken out the call details of Phone No. of
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Dr. Smita Mahajan. It was argued by the Accused No.1 that even
Page Nos. 2 and 3 of Exh. 88 disclose that at the same time,
there are calls to two cell Numbers. Thus, there was use of
SIM Card of Cell No. 9422511574 of Dr. Deepak Mahajan on different
handset having changed IMEI Nos.351307415405600. It was
submitted that the entire episode very suspicious. It is further
argued by Ms. Salian that, the claim of the Police that they could
trace Vikrant Ghone, Pravin Kamble and then Accused on the basis
of call details of 9960224773 is false and she prayed that the
Court may discard this evidence .
32. PW-40- Balkrishna Bhikaji Agashe has said that
Complainant Dr. Smita Mahajan had phoned him and informed that
Cell No. 9960224773 was of one Ms. Joshi. Accused No.1 has raised
question how Dr. Smita Mahajan knew the name of Joshi when she
has not stated in her evidence that her husband has ever
mentioned the name of the lady as Joshi from Omkar Charitable
Trust. Accused No. 1 indicated that if Dr. Smita Mahajan said so
then on the basis of this discrepancy, Smita Mahajan herself was
involved and knew the names of the persons who abducted Dr.
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Deepak Mahajan because there was no reason for PW-40 Balkrishna
Bhikaji Agashe to state that Cell No.9960224773 belonged to Ms.
Joshi. Dr. Smita Mahajan had not claimed in her evidence that she
knew such name as Ms. Joshi. It is PW-40 Balkrishna Bhikaji
Agashe who has put that name in the mouth of Dr. Smita
Mahajan. Thus it can only be said that PW-40 Agashe, on the basis
of his investigation, call details and information had formed the
opinion that it was a phone number of Ms. Joshi and therefore,
at the time of giving evidence, he has deposed that the said
phone number belonged to Ms. Joshi. Evidence on the point of
IMEI Nos., SIM Card and change of those numbers the Call details,
exhibits of respective witnesses is explained by the prosecution
with the help of charts. Hence, the submissions of the Ms. Salian
and Accused No.1 cannot be accepted.
33. Learned Trial Judge has dealt with all the
telephone Nos. and has properly analyzed the evidence on the Cell
numbers of the deceased, Dr. Smita Mahajan, and of three SIM cards
and two mobile handsets used by the Accused at the time of
commission of the offence. Manipulation and fabrication of the call
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details is the main line of defence adopted by the Accused, which is
not accepted by us as the accuracy found after tallying incoming
/outgoing calls, IMEI Nos. disclosing use of particular handset.
34. Learned Prosecutor Mrs. Kejriwal has produced
separate charts showing connections of the phone numbers.
Through the evidence of PW-40- Balkrishna Bhikaji Agashe and
PW-25- Vijay Eknath Shinde, the prosecution could bring on record
that the Cell No. 9960224773 stands in the name of Rui Raj Mathur
on Yaotmal address. Exh. 130/1 is the call details of Cell No.
9960224773 and ownership of SIM of Cell no. 9960224773. Exh.
129/2 is enrollment form of Airtel Cell No. 9890565992. Two Mobile
phones of Bharti Airtel belongs to Accused No.1. The investigating
officer has sent letter to this mobile Company i.e. Bharti Airtel and
call details of these phones were furnished accordingly.
35. The ownership of the Mobile handsets is denied and
challenged by the Accused. One handset of Alkatel Company
was found in the purse of Accused No. 1, having its IMEI No.
351307415405600 and another one was found in the Matiz Car of
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the Accused. It was of Saffron Colour of Nokia Company having
IMEI No. 351486609417510. Purse was neither sealed nor seized under
the Panchanama. Recovery of handsets in the Matiz Car is
mentioned in the Panchanama. If a person is not found in physical
possession of a particular article, then it cannot always be
contended that said article does belong to that person. If an
article carries any identification mark and the link between that
identification mark and the identity of the person is associated then
it can be said that article belongs to that person. Purchase of
handsets, if proved, by the prosecution in the name of Accused no.1,
it can safely be said that two handsets belong to Accused No. 1
36. Three handsets and four SIM cards are relevant
articles and police have produced consistent evidence to show the
ownership of the Cell No. and the handsets through representatives
of the mobile Companies i.e. PW-24 Sanjay Dagdu Kamble of BPL
Mobile, PW-25- Vijay Eknath Shinde of Bharti Airtel and PW-41
Sachin Shinde of Idea Cellular Company. Accused no.1 was having
two handsets one Alkatel and other Nokia. They are seized and
produced before the Court. Their IMEI Nos. are as follows:
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Name of subscriber Mobile No. IMEI No.
1. Deepti Anil Devasthali 9890565992 351486609417510
(Accused No.1)
2. Deepti Anil Devasthali 9821486650 3151307415405600
(Accused No.1)
3. Rui Raj Mathur 9960224773 351486609417510
Dr. Deepak Mahajan was having handset of Nokia with IMEI
No. 35253600483225 and SIM of Airtel, Mobile No. 9422511574.
37.
Call details of Cell phone of Dr. Deepak Mahajan
Exh.-88 are proved through PW-14 Shaileja Kulkarni. In the entire
episode, the evidence of call details has played a crucial role.
Rather this evidence is connecting the Cell Numbers of Dr. Deepak
Mahajan, Dr. Smita Mahajan and Accused by use of different
handsets, change of handsets and SIM Cards. Two handsets of
Accused no.1 and use of three SIM cards by Accused No.1, so also
use of SIM Card of Dr. Deepak Mahajan in the handset owned by
Accused No.1 unmistakably establishes the nexus of the Accused with
the offence. It reveals that Accused No. 1 and 2 were constantly in
touch with Dr. Smita-PW-11 after 4.30 p.m. on 2.7.2006. If the
prosecution establishes the missing of the person and thereafter
demand of ransom amount through a particular Mobile phone
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which is owned by the Accused, then it invariably connects the
Accused with the missing person. It is always within the knowledge
of the Accused first and then known to the family members of the
person missing.
38. The police have issued letters to the concerned
telephone/Mobile companies i.e. Airtel, BPL and BSNL for the supply
of the call details in respect of Cell Nos. of the Accused and also
Dr. Deepak Mahajan and pursuant to these letters, information was
supplied and also the information of the subscription form and
the call details was furnished. However, the statement giving call
details of incoming and outgoing calls of a particular Cell Phone
are electronically printed. So, the possibility of manipulation by
human being is overruled. The Accused had pointed out in the
course of the argument that all these statements were given on
the date which is much after the date of the forwarding letter by
the Company and so, it was submitted that the dates appearing on
these statements are after the date of the forwarding letter and no
explanation is tendered by the witnesses/representatives of the
respective telephone companies, then it is to be presumed that
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these call details supplied by the company were replaced by the
police and the fabricated call details were attached and produced.
The discrepancy is shown in the dates appearing on the call
details and the dates of forwarding letter. For example, forwarding
letters of Airtel Company is marked as Exh 129 and the Call
details of Cell No.9890565992 is marked as Exh. 129/4. Forwarding
letter is dated 19.6.2006 and at the foot of the statement of the
calls details (Exh.129/4) the date is appearing 9/27/2006 (27.9.2006).
Though this fact is true, it can only be said that the company
has forwarded the call details along with the letter which was
prepared earlier or the company has sent this forwarding letter and
independently further provided these call details. The submission of
the Accused that the dates at the foot of the statements of the
call details are not in consonance with the dates of the forwarding
letter as they are beyond the dates of the forwarding letter and so
they are fabricated is too technical and incorrect so cannot be
accepted. The details in respect of Cell numbers, IMEI Nos. and call
details are established through cogent and consistent oral
evidence,hence we hold that these call details are genuine and
authentic. When two contradictory circumstances are pointed out
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and it is evident that they cannot coexist but one negates the
other, then it is not always a case to apply the principle
mechanically that when two inferences are possible then one
favourable to the Accused be adopted. The Court needs to
examine on the basis of other independent evidence how such
circumstance can exist otherwise. Court should not go by
fallacious logic or take a narrow approach while applying the
above principle. Two plus two is four is a simple arithmetical
calculation. However, other calculation viz. one plus three is also
four and five minus one is also four are to be taken into account
while appreciating evidence if such other evidence is available.
39. The submissions advanced by Accused No.1 and Ld.
amicus curiae Ms. Rohini Salian about the non finding of the exact
tower location on IMEI No. 35130741540560. Sometime it appears
as 600 or some times appears as 5608 is minor electronic error as
other digits are same and call details, if tallied are correct. The
defence, while assailing the said evidence raised perfunctory points
which were explained by the prosecution. Learned Trial Judge has
scrutinised this evidence in depth and we do not find any fault or
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illegality in it. The prosecution could explain all the call details
and also could successfully prove the same. The evidence on the
point of Phones and call details can be summarised as follows.
Relevant Witnesses on Call details.
Exh. Name of the Role of the witnesses
Nos. witnesses
PW-14 88 Shailaja S. Divisional Engineer, BSNL
Kulkarni
PW-24 127-3 Sanjay D. Senior Executive BPL Mobile
Kamble
PW-25 Vijay E. Shinde
ig Nodal Officer Bharti Airtel Ltd.
129 Letter from Airtel regarding
information of Mobile No.
9890565992(Deepti Devasthali
Nashik Address) SIM Card
activated on 16.10.2004
129-2 Airtel Prepaid Enrollment form
of Deeptia Devasthali
129-4 Call Details report of Mobile
No.9890565992 of A-1 (Nashik
address)
98 Airtel Prepaid Enrollment form
of Ruiraj Mathur- Yavatmal
address, SIM card activated on
26.5.2006
130-1 Call details report of Mobile no.
9960224773 of Rui Raj Mathur
(Yavatmal address)
PW-41 190 Sachin M. Woking with IDEA Cellular Co.
shinde call details of Mobile No.
9822018863 of Dr. Smita Mahajan
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Exh. Name of the Role of the witnesses
Nos. witnesses
PW-15 98 Bhavarlal K. Selling SIM Card Vouchers/
Mali Recharge vouchers/ accessories
of mobile, in 2006 was selling
Airtel Co. SIM card.
Enrollment Form in the name of
Ruiraj Mathur.
PW-11 Dr. Smita Wife of deceased-complainant.
Mahajan After Dr. Deepak Mahajan was
abducted, calls made and
received on her mobile No.
9822018863 ( Exh.190)
Accused No.1 had used the Mobile/SIM No. 9960224773 (Rui Raj
Mathur)
(i) Call details of Mobile /SIM No 9890565992 (Accused -1
Nashik address) Exh.129-4 – Call details for the period April,
2006 to 4th July, 2006
(ii) Call Details of Mobile /SIM No. 9960224773-Rui Raj Mathur,
Exh.130-1 Cal details for the period from 1.6.2006 to 2.7.2006,
it shows that for the said SIM Card the handset used is
having IMEI No. 3514866094 17510
(iii)Call details report of Mobile/SIM No. 9890565992 (Accused No.
1 ) for the period from April, 2006 to July, 2006 – Exh.129-4
shows that April, 2006, May, 2006, 24th June to 30th June, 2006
and 1st July 2006 to 4th July, 2006, the hand set used for the
said SIM card is having IMEI No. 351486609417510
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Ransom Demand
(i) The call details Exh.88 at page 2, 4th calls from bottom
show that Mobile/SIM No.9422511574 Dr. Deepak Mahajan
was having handset bearing IMEI No. 3525360048 3225.
(ii) At page 2 sr. No. 3 onwards i.e. 2.7.2006 at 17.45, the said
SIM Card was now used in handset having IMEI No.
351307415405600, this shows that the handset is changed and
Doctor’s Moble/SIM Number is used in the changed handset.
(iii) The Call Details of Dr. Deepak Mahajan at Sr. No. 88 shows
that various calls were made and received upto 6.7.2006 and
the handset which was used was having IMEI No.
351307415405600.
(iv) The above said call details show that the Dr. Deepak
Mahajan was in the custody of the person i.e. Accused who
was using handset having IMEI No. 351307415405600.
(v) Exh.129-4 (Mobile/ SIM No. 9890565992 of Accused No.1) the
call details of 12.6.2006 show that the said handset having
IMEI No. 351307415405600 was used by Accused No.1 for
Mobile No. 9890565992 clearly reveals that handset having
IMEI No. 351307415405600 was also used by Accused No.1
much prior to the incident.
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(vi) Call details Ex.130-1 of Mobile SIM Card No. 9960224773 of
Rui Raj Mathur for the period 1.7.2006 and 2.7.2006 shows
that calls were made to deceased Dr. Deepak Mahajan on his
mobile number by using the same handset having IMEI No.
351307415405600.
(vii) This clearly indicates that the calls made from Mobile/SIM
Card No. 9960224773 (Rui Raj Mathur) to Dr. Deepak Mahajan
on 1.7.2006 and 2.7.2006 was in use by Accused No.1 only and
none else as the SIM Card which stands in the name of
RUI Raj Mathur was also used in the handset having IMEI
No. 351307415405600 on 1.6.2006 and 2.6.2006 as the call
details of Mobile No. 9890565992 at Exh.129-4 for the period
April, 2006 to 4.7.2006 shows that the handset n use was
having IMEI No. 351486609417510.
(viii) Ex. 190 the call details of Dr. Smita Mahajan Shows various
calls received to Dr. Deepak Mahajan on 2.7.2006 and tallies
with Exh. 88 i.e. Call details of Dr. Deepak Mahajan.
40. The SIM having Cell No. 9960224773 which stands
in the name of Rui Raj Mathur was found with Accused No.1. There
was no reason to hold SIM card of any other person by name Rui
Raj Mathur and make use of said said SIM Card in the handset of
Accused No.1. This circumstance establishes that Rui Raj was none
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but a fictitious name on which a SIM card was acquired by
Accused No.1 by furnishing false information to the Mobile
Company.
41. On seizure of the register of Shantanu lodge
(Article/Exh.35), Accused No.1 in the course of argument was
successful in raising doubt. As per the case of the prosecution, the
evidence given by PW-16- Namdeo Narayan Kunjer-Panch and PW-4
Vikas Garad- Manager of Shantanu Lodge about seizure of Register
of Shantanu lodge on 4.7.2006 under the Punchanama Exh.12. The
entry appearing at Serial No.16 disclosing signature of Meena Joshi
of Room No.7 on 2nd July was marked and was proved by PW-4.
It is the case of the Investigating officer PW-46 that the police
seized the said register of Shantanu lodge showing the entry of
booking room No.7 by alleged Meena Joshi of 2nd July, 2007. The
Police could trace Shantanu Lodge and room No.7 which is the
place from where Dr. Deepak Mahajan was abducted in the
night intervening 2nd and 3rd July, 2006. How the police could reach
Shantanu Lodge without any specific information was explained by
the learned counsel for the prosecution that the orders of search of
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the lodges and Hotel at random were given and pursuant to this
direction, the police took search in the Hotels and lodges near
Hotel Durvankur where Dr. Mahajan was invited for the lunch. After
getting trace of Shantanu lodge and information from Mr. Vikas
Garad, the said register was seized on 4th July, 2006. When the
register was seized on 4th July, then obviously, no entires of the
future date i.e entries after 4th July, 2006 could appear in the said
register. However, though the witnesses have signed at the end of
the page at the time of panchanama, on the next page the entires
are appearing upto 6th July, 2006. The entires of 5th and 6th July,
2006 are appearing. Thus, the submissions were made by the
defence that under this circumstance, the seizure of the register at
Shantanu Lodge is false and the register is bogus and the police
have planted this register against the Accused. This argument is
definitely based on sound logic and it is to be accepted that the
said seizure was not taken on 4th th July, 2006 and the claim of the
police of the seizure of the register on that day is false. However,
it will not nullify the register itself and the entires appearing
therein due to other evidence adduced by the witnesses.
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42. In experts evidence, the prosecution has relied on the
evidence of the hand writing expert PW-30 Deepak Uttamrao
Pandit. The signature of Yogendra Shirke appearing on the letter
dated 23.6.2006 on the letter head of Omkar Charitable Trust was
a questioned document (and the letter Exh.28 ) and the entry
appearing in the register of Shantau lodge of Veena Ranade
appearing of the said register were disputed documents. Along
with these documents the specimen of the natural handwriting of
the Accused Nos. 1 and 2 were sent to the handwriting expert for
comparison.
Entry in the Shantano lodge register marked as Ex.Q-1
Signature of Veena Ranade in the said register is marked as Ex.Q-2
Signature of Yogendra Shirke was marked as Ex. Q-3.
The opinion of the handwriting expert which is marked
as Exh.145 discloses that Q-1 was in the handwriting of
B-1 to B-6 i.e. Accused.
The handwriting expert could not opine about Article Q-2
and Q-3 i.e. signature of Signature of Veena Ranade and signature
of Yogendra Shirke. Hence, the evidence about Exh.Q-2 and Exh. Q-3
is negative.
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43. The document which was sent as a natural
handwriting is a portion of the confessional statement of Accused
no. 2. The police need to send the natural handwriting so also
the specimen handwriting. The specimen handwriting is always
collected in the presence of Panchas. However, the natural
handwriting is the handwriting on the document which the
Accused has earlier written/signed. Sending confessional
statement of the Accused no.2 as a natural handwriting is callous
on the part of the police. Such statement is inadmissible under
Section 25 of the Evidence Act.To make the use of the confessional
statement as a natural handwriting is to be strictly avoided. It
leads to create bias against the Accused in the mind of the
handwriting expert, which may tend to give opinion against the
Accused. In this back ground alone, we discard the evidence of the
handwriting expert.
44. Section 73 of the Evidence Act enables the Court to
compare the handwriting. The handwriting on the register of
Shantanu lodge and the specimen handwriting appear different
with naked eye and therefore Section 73 of the Evidence Act is
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not helpful to the prosecution. The fact of handwriting in the
lodge register i.e. the entry marked Exh. 30 is independently proved
by PW-4 Vikas Garad. Entry at Sr. No.16 dated 7.6.2006 in the
register is identified by PW-4 as that of Mrs. Veena Ranade-
Accused no.1 who was present in the Court. He deposed about
wearing a wig of shoulder cut with hair on the forehead and use
of upper dentures of protruded teeth outside lips by Accused No.1.
45.
PW-1 Ketan Kale has deposed that he has acted as
husband of Joshi Madam who has taken name as Veena Ranade
and has filed in the register of the Lodge. CW-1 Rahul Bhosale
corroborates the booking room at Shantanu Lodge and thus, the
fact of booking room in Shantanu lodge and making the entry
by name Veena Ranade is independently proved by the other
witness. The entry in the register is a contemporaneous
documentary evidence which corroborates the ocular evidence.
46. Opening of Blue Bird Detective Agency and
employment in the said agency is another major evidence
tendered by the prosecution. Evidence of PW-19 Atmaram Namdeo
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Ingawale who let out the office premises for Blue Bird Detective
Agency has identified the Accused as they have taken office
premises from him on rental basis. The set of four witnesses i.e.
PW-1-Ketan Pramod Kale, PW-2-Ashok Jagannath Magar, PW-3-Pravin
Dnyaneshwar Kamble and CW-1-Rahul Abhimanyu Bhosale
established the fact that Accused have given advertisement in
newspaper Sakal dated 11.6.2006 regarding employment in Blue Bird
Detective Agency. Accused have denied the fact of giving
advertisement in Sakal. Cutting of advertisement in Sakal
newspaper found in the room at Uttamnagar discloses Phone
No. 9821486650 of Deepti- Accused No.1 as a contact number. In
response to this advertisement all the above four witnesses- i.e.
PW-1, PW-2, PW-3 and CW-1- have contacted Accused no.1.
47. The prosecution has tendered evidence about the
residence of the Accused at Nashik and also at Krishnawatika
Dahisar. PW-34 has acted as Panch in the Panchnama of residence
of Accused at Krishnawatika Dahsir. Airtel Prepaid Enrollment
Form Exh.-98 discloses their addresses at Yeotmal.
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48. Exh.127/3 i.e. mobile No. 9821486650 belongs BPL
company. PW-24 Sanjay Dagdu Kamble-Nodal Officer of BPL has
proved Exh.127/3, Prepaid Card Form and the call details discloses
address of Accused No.1 at Krishnawatika Dahisar. So, the Accused
have two residences, one at Nashik and one at Dahisir ,Mumbai.
49. Temporary residence of the Accused in the first
first week of June i.e. from 1.6.2006 to 6.6.2006 was in Hotel Ratna
Regency, Pimpri (PW-2 Mansi Sandip Vinod) and another temporary
residence was at Uttamnagar, Kondwa which was taken on rental
basis for a period of one month in the last week of May, 2006.
PW-5 Maroti Bajirao Gawande is the owner of the Uttamnagar room.
PW-5 has deposed that both ladies have resided in that room for a
period of one month in June, 2006. Evidence of these temporary
residences and Panchanama of the property recovered from the
Krishnawatika-Dahisar residence of the Accused is concrete
circumstantial evidence establishing link between the Accused and
the commission of offence.
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50. Accused No. 1, as per the prosecution, used to
change her appearance and looks by wearing wig, dentures of
protruded teeth and round black frame spectacles. On the point of
change appearance- PW-20- Mansi Sandip Vinod has deposed that
Accused no.1 sometimes used to change her look by using these
three articles i.e. wig, denture of protruded teeth, round black
frame spectacles. PW-20 is the witness who has seen the Accused in
her normal normal look and also in her changed look and there is
no reason to discard her evidence.
51. Panchanama Exh.69 was drawn by the Police of
the room at Uttamnagar on the same date of arrest i.e. on 7th
July, 2006. The said panchanama was proved by PW-12- Preet
Chandrakant Babil. PW-12 is B.Com. MBA (Finance) and serving in
ICICI Bank in Risk Analysis Department. This panch-PW-12 is an
independent, educated witness and has given consistent and reliable
evidence on the point of Panchanama which was drawn in three
parts started at 12.46 on 7.7.2006 and ended at 22.15 Exh. 68,69 & 75.
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52. After recording memorandum of panchanama under
Section 27 of the Evidence Act, the police went to the room at
Uttamngar where the Accused have resided for a period of one
month. In the said Panchanama (Exh.75), many articles were found
and list of the articles prepared. In the said room three wigs, two
dentures, round black frame spectacles, beard, mustaches were
found. Thus, seizure of these article and description given by the
witness Mansi Sandip Vinod(PW-20), PW-4 Vikash Garad and Dr.
Ashutosh Dabre (PW-17) corroborate each other and prove the fact
that the Accused No.1 used to change hear appearance and looks
with the help of these articles i.e. artificial wig, dentures of
protruded teeth and round black frame spectacles.
53. Accused No.1 has challenged her identification as
Jassi by PW-4-Vikas Garad and PW-17 Dr. Ashutosh Vitthalrao
Dabare. It was argued that if these witnesses had never seen her in
her normal look, then assuming that she had changed her looks
and appearance by using different wig, dentures and spectacles,
these witnesses cannot identify her when she is in the normal look
in the Court. She has submitted that such identification in the Court
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is tutor by the Police and is to be disbelieved. This argument is
very logical and it is to be accepted. If a person was never seen
in his/her normal look, then identification of that person in
makeup and changed look, disguising the original look, by the
person who had no opportunity to see that person earlier in the
original look cannot be believed. In this context we notice that
the police have shown over enthusiasm in asking the Accused no.1
to wear the wig and spectacles and put on the dentures and
shoot it and prepared a CD, disclosing the goofy look of Accused
no.1 in the character “Jassi”. Learned Sessions Judge was also
swayed and allowed the identification of Accused no.1 as Jassi
by the witness believing the CD at the time of trial. Article
20(3) of the Constitution of India states that no Accused of any
offence shall be compelled to be a witness against himself. Asking
the Accused in the police custody to change the makeup for the
purpose of making CD amounts to compelling the Accused to give
incriminating evidence against herself which is prohibited under
Article 20 (3) of the Constitution. It is to be noted that if the
Accused is having a peculiar look i.e. lame or having curly hair
or squint eye, then for the purpose of identification parade the
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police have to find out the persons similar to the look of the
Accused and among those, the witness is to be asked to identify
the person/Accused. In the present case, the Accused was made to
put/wear all these accessories to show how she was looking at the
time of incident. This may be relevant but it is an evidence
illegally collected and inadmissible in law. Suspicion however
grave it may be, cannot take place of legal proof.
54.
Curiously, through out the evidence, the Investigating
officer and all the witnesses have described this changed look of
Accused No.1 as “Jassi” which is explained as the well known
fictitious character in the popular contemporary TV serial namely
“Jassi Jaisi Koi Nahin”. The Accused have objected to the use of
this word “Jassi” by the witnesses when deposed and pointed out
that it is improved by them in the Court. Though the witnesses
have not used the word ‘Jassi’ at the time of recording their
statement and have admitted the improvement, it does not reduce
the credibility of the witnesses on the proved fact that Accused
No.1 used to change her looks and appearance with the help of
the accessories as mentioned above. The word ‘Jassi’ was coined
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by the Police and the Police have described her appearance as
Jassi. Wearing a typical wig having hair style which was popularly
known as Sadhana Cut, dentures with protruded teeth and round
frame black spectacles gives a distinguishable look to a person
and that look was very much like the fictitious character “Jassi”
and, therefore, all the witnesses have used this word. However, the
fact of the change of the appearance is proved by all the
witnesses.
55. While assessing the evidence of the prosecution,
on the point of abduction one has to take note of the conduct of
the Accused under Section 8 of the Evidence Act. The prosecution
has tendered sufficient and reliable evidence through the witnesses
on the point of conduct of the Accused and their peculiar modus
operandi of using different names, preparing and using forged
documents to stage-manage the incidents under disguise.
56. Deceased Dr. Deepak Mahajan was admittedly
related to the Accused Nos. 1 and 2. Relationship between the
Accused and the deceased is proved by PW-10 Pramod Falgune, who
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happens to be a real brother of Accused No.2. He has given
evidence that Shridhar Mahajan-father of Dr. Deepak Mahajan was
maternal brother of the mother of Accused No.2. Shridhar Mahajan
who is PW-31 has supported PW-10 on the point of relation with
Accused Nos. 1 and 2. Thus, Accused No.1 was distantly related to
deceased Dr. Deepak Mahajan through Accused no.2. PW-31 has
stated about the visit and meeting of Accused Nos. 1 and 2 with
deceased Dr. Deepak Mahajan and they both requested him to
give one false certificate in respect of cause of death of the mother
of Accused no.2 which was refused by Dr. Deepak Mahajan. That
discloses that Dr. Deepak Mahajan has seen Accused No.1 in her
normal look and she was known to deceased. Thus, it is to be
safely inferred that previous acquaintance of the Accused no.1 and
the deceased is the reason for Accused no.1 to change her looks
and appearance. Accused No.1 wanted to present herself in a
goofy look so that her identity should not be revealed.
57. It was argued that if the prosecution witness like
Mansi Sandip Vinod(PW-20) and PW-2 Vikas Gard could identify
Accused No.1 in her changed look then Dr. Deepak Mahajan who
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was related to her should have identified her. This argument is not
tenable if the back ground of the said meeting at YCM Hospital
and at Shantanu Lodge is taken into account. Dr. Deepak Mahajan
was given the offer of an Honorary Post in the Orthopedic
department at Sanjivani Hospital run by Omkar Charitable Trust.
He was given the impression that trustees of the said trust were to
meet him. Under such circumstances, naturally Dr. Deepak Mahajan
believed the information ex-facie and accepted it. One cannot
imagine that any distant relative may approach as a person in
disguise. Moreover, the deceased is not closely related to
Accused no.1 but was distantly related and was not in constant
touch with Accused no.1. Further the capacity to identify the
disguise and to identify the person behind the mask differs from
man to man. If a person is very simple and naive, cannot
imagine such goofy look and so it is not unnatural for the
deceased to accept Accused no.1 in the manner in which she had
presented herself. This disguised personality was one of the means
to commit the offence of abduction.
58. Learned Prosecutor has submitted that the opening of
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Blue Bird Detective Agency was the part of the conspiracy of
abduction of Dr. Deepak Mahajan. On the pretext of Blue Bird
Agency, the Accused could hire the service of PW-1, PW-2 and CW-1.
Opening of Blue Bird Detective Agency in fact went unchallenged by
the defence. There is mere denial of evidence. However, the
evidence of the set of four witnesses(PW-1,PW-2,PW-3 and C-1) who
have applied to Blue Bird Detective Agency is consistent on certain
facts that after reading the advertisement in Sakal of Blue Bird
Detective Agency they found Cell Phone No. 9821486650 as contact
No. and thereafter on the basis of that advertisement they
contacted Accused Nos. 1 and 2. All the four witnesses have
identified Accused Nos. 1 and 2 as the persons who were running
Blue Bird Detective Agency.
59. Among the set of these four witnesses, evidence of
PW-1 and CW-1 can be considered later. Witnesses PW-2 Ashok
Jagannath Magar and PW-3 Pravin Dnyaneshwar Kamble have
deposed that they had gone to meet these ladies at the office of
Blue Bird Detective Agency near Vaibhaveshwar Mandir, Shanivar
Peth, Pune and Accused No.1 has informed them that in Pune City,
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some medical practitioners were involved in Kidney scandal and
they had to catch those Doctors and collect information from
them. Both of them have submitted their bio-data and filled up the
forms. PW-3 has deposed that Accused No.1 told him that one
Doctor from YCM Hospital was to be contacted for the purpose
of giving invitation and some papers were to be handed over to
the said Doctor. The presentation of the letter and conversation with
the Doctor was practiced. PW-3 has stated that Accused no.1
applied white colour to her hair and also instructed that he should
apply the colour to his hair like a senior person. However, he
took objection. At that time, Accused No.1 convinced him that he
was doing the work for the Nation. However, he left the job.
60. PW-2 Ashok Jagannath Magar corroborates all the
details in respect of giving invitation and papers to Dr. Deepak
Mahajan. However, Accused did not ask him to change his looks.
He has deposed that Accused no.1 changed her identity/looks by
using makeup accessories and was looking like Jassi. He has
deposed that he acted as a person by name Yogendra Shirke whose
name was appearing as signatory of Exh.28. PW-2 has given
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details of his meeting along with Accused No.1 in her goofy looks
to deceased Dr. Deepak Mahajan and handing over letter to Dr.
Deepak Mahajan on 30th June, 2006.
61. Both the witnesses PW-2 and PW-3 corroborate on
the material aspect of advertisement of employment in Blue Bird
Detective Agency given by the Accused, the interviews taken by
Accused of the candidates and story of Kidney Scandal in respect
of Dr. Deepak Mahajan who was working in YCM Hospital so also
the change of looks with make-up and and handing over of letter
Exh. 28 to the Doctor.
62. PW-2 and PW-3 were cross examined by the Accused
Nos. 1 and 2 in person. Nothing damaging was brought in the cross
examination of these two witnesses. In this background, the
contention of the Accused that the Police have not conducted the
TI parade and the identification in the Court is not properly
proved, does not hold substance. When the witnesses have enough
opportunity to see the Accused Nos. 1 and 2 on different occasions
in their normal look and Accused No.1 in her changed look on
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certain occasions and they have specifically stated about her
distinguishable identity, then identification parade is not necessary.
The fact of identity is proved by the prosecution independently.
The purpose of Test Identification parade is to test the memory and
retention capacity of the witnesses and to rule out the possibility
of mistaken identity, when the witnesses have seen the Accused
only once and had no chance to see them on more occasions
prior to the incident or after the incident. This, should ensure the
correctness of investigation to eliminate the error of mistaken
identity. If correctly identified, it definitely gives assurance to the
investigating machinery about the proper direction of the
investigation.
63. Learned amicus curiae and the Accused No.1, both
have challenged the evidence of both the eye witnesses (PW1 and
CW-1) on various grounds. It was argued that if the case of the
prosecution is accepted as it is, then these two witnesses- PW-1 and
CW-1 are the accomplice and the evidence of accomplice is not
admissible in the absence of corroboration. It is further submitted
that the corroboration of one accomplice to the other accomplice is
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of no use and such evidence is not credit-worthy. Section 133 and
illustration of Section 114 of the Evidence Act were referred.
“Illustration of Section 114- That an accomplice is
unworthy of credit, unless he is corroborated in material
particulars.”
“Section 133 : An accomplice shall be a competent
witness against an Accused person; and a conviction is not
illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
64. However, before we begin to assess the evidence of
PW-1 and CW-1 it is necessary to fix their status; whether they are
accomplice or not ? As per their own evidence, they were employed
in Blue Bird Detective Agency by both the Accused and they have
participated in the actual act of abduction. The deceased was
abducted by making him unconscious and they have participated
actively and put him in the Matiz Car of the Accused.
65. The learned Trial Judge has discussed the evidence
of PW-1 at length as to how he and Accused No.1 went to
Shantanu Lodge. Accused No.2 has booked room No.7 in the
Shantanu Lodge. He stated the details of the role played by CW-1 as
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he was throughout present alongwith PW-1. The incident was to
take place on 1st July, 2006. However the Accused No.1 could not
book the room in the Hotel of their choice and they got the
booking in Shantanu lodge on 2nd July, 2006. Dr. Deepak Mahajan
was called for lunch. However, he did not accept the invitation for
lunch at Durvankur Hotel which was near Shantanu Lodge. PW-1
has deposed about the presence of Accused No.1 in goofy look like
Jassi. He mentions about the phone calls made to Dr. Deepak
Mahajan from Shantanu Lodge on 2nd July, 2006. He deposed about
the rehearsal taken by the Accused Nos. 1 and 2 of PW-1 and CW-1
of holding legs, hands and mouth of Dr. Deepak Mahajan on the
previous day. He says how Accused No.1 had received the Doctor
outside Shantanu Lodge. The Accused were having a Matiz Car of
grey colour. He has further deposed that the Doctor was received
and brought in the room by Accused No.1. He came on Activa
Scooter. PW-1 and CW-1, after receiving signal from Accused No.1,
both caught hold of the Doctor and the Accused No.1 took out
injection and inserted in the hand of Dr. Mahajan. He
elaborately described further that when the Doctor resisted, the
needle which was inserted in the hand of Dr. Mahajan bent. Dr.
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Mahajan bit the Accused no.1 on her wrist so she could not inject
the medicine in the body of the Dr . Mahajan. The Accused threw
that bent needle and took out another needle and used another
needle for injecting the medicine in the hand/body of the Doctor
and thereafter they both lifted the Doctor and put him into the
Matiz Car and took him to the corner of Karve Road.
66. While assailing the evidence of PW-1 and CW-1, the
prosecution could not answer satisfactorily regarding delay in
recording statement of these witnesses. The Accused were arrested
on 7.7.2006. Search of Uttamnagar room was carried out on the
same day and the file containing of the applications of the
candidates who have applied for employment in Blue Bird
Detective Agency was recovered. Learned prosecutor has submitted
that on the basis of those applications in the file, they could trace
PW-1- Ketan Kale, PW-2- Ashok Magar, PW-3 Pravin Kamble and
CW-1 Rahul Bhosale. Statement of PW-2 was recorded in the last
week of July, 2006 and the statement of both PW-1 and CW-1 were
recorded on 15/9/2006. Thus, nearly two months and one week after
the recovery of the file and arrest of the Accused the statement of
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these witnesses were recorded. The learned prosecutor tried to
explain that besides the applications of these two persons there
were applications of other candidates also and the Police took
time to trace out the other persons. The Police interrogated them
and it took time in getting these two candidates. It was further
explained that the Police did not look into it and tried to investigate
on that line. Thus, even though we accept these explanations, it
reveals a gross negligence on the part of the Investigating officer
who failed to be alert and prompt. We have to treat it as failure
of the investigating officer to study and analyze the evidence in
hand diligently. Similarly this throws light on the disapprovable
conduct of these two witnesses. They both have admitted that
after the incident of abduction and their participation in the said act
they came across the news of murder of Dr. Mahajan and arrest of
these two ladies and it shows that they realized that they have
committed a wrong by getting involved in the commission of the
offence. It is the tendency of the human being to stay away from
any problematic situation where he is likely to get entangled and
will have to face the police. However any good citizen respecting
rule of law will come forward and approach the police. It would
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have appreciated if these persons would have been approached the
police of their own and informed them about such participation.
However, it did not happen. Both of them tried to hide themselves.
67. It is required to be mentioned that, in the first
round of trial the CW-1 was not examined but was examined on
the direction given by the High Court. The evidence of CW-1 was
not available to the Trial Court. Non examination of this witness
was also a loophole in the case of the prosecution. While
explaining the reason, Mr. Mundergi has pointed out that the
Accused have written two letters separately to PW1-Ketan Kale and
CW-1 Rahul Bhosale that they should not support the prosecution
under the pressure of police. These two letters are not denied by
the Accused. It is to be remembered that the conduct of the
Accused during the trial should not be mixed up by the Trial Judge
under Section 8 as a conduct which is to be taken as an
incriminating circumstance and relate it to the commission of
offence. However, as the contents in the said letters are admitted by
the Accused, it shows the prior acquaintance of the Accused with
these two witnesses. Learned Prosecutor has submitted that the
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evidence of PW-1 Katen Kale along with evidence of PW-3 Pravin
Kamble, PW- 2 Ashok Jagannth Magar is sufficient to prove the fact
of abduction and therefore to avoid repetition, CW-1 Rahul Bhosale
was dropped. Though the explanation of dropping CW-1 is given,
the delay in tracing PW-1 and CW-1 and recording their statements
by the police officer discloses lethargy of the Investigating Officer.
We hold the Investigating officer PW-46 responsible for such
tardy and loose investigation.
68. Witness CW-1 was examined in the second round of
the trial when the matter was sent for recording of further
evidence. He has corroborated PW-1, in all material particulars
except very minor discrepancies like the name of the Accused.
However the identity of Accused No.1 and Accused 2 can be fixed
on the basis of the acts attributed to them by the witnesses
which corroborates with the evidence of PW-1. At the time of
kidnapping the deceased was given anesthesia and was made to
sleep by the Accused. For the purpose of giving general anesthesia,
the drug- Thipentone was used. The said drug is available in the
market in white powder in the quantity of 500 mg or 1000 mg.
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69. To prove the purchase of the drug namely
thipentone or Sodium Pentothol/Thisol prosecution has examined
five witnesses. PW-7 Vishal Vaswani- Owner of Darpan Medical
General Store and and PW8- Jayesh Dilipkumar Magetia owner
of Kashiba Medical and General Stores. Thereafter PW-9 Ajit
Bhagwan Mandle- Panch witness, PW-28 Milind Somnath Potnis a
service Manager in Neon Laboratory and I. O. PW-46 were
examined. The Bills pertaining to date 23.4.2006 25.4.2006, 29.4.2006
from PW-8 Jayesh Majethia i.e Exh. 46 to 49 from Kashiba
Medical and General Store were proved through panch.
70. Learned Special prosecutor has submitted that
Mr. Milind Somnath Potnis- PW-28 has deposed that Neon
Laboratory is manufacturing thipentone drug and said drug is used
for the purpose of anesthesia and also he has confirmed that
batch no. 172134 was supplied to the Distributors at Pune and
Mumbai. He has identified the seven bottles of Thipentone
injections, two bottles powder and five empty bottles and
confirmed the Batch No. 172134 on the labels of those bottles. Ld.
Prosecutor has further submitted that PW-7 has deposed that in
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June, 2006 he was having the stock of Sodium Pentathol and
19.4.2006 he had sold one vial of Sodium Pentathol to D. A.
Devasthali on the prescription of one Dr. G. Patil and he has also
issued the bill accordingly and he has deposed that the said lady is
before the Court. Further learned Prosecutor pointed out that PW-8
has given the evidence on the similar lines that he has purchased
25 vials of Sodium Pentathol from Neon Laboratories of Batch
172134 from Neyon and on 13.9.06 Police had come alongiwth
Accused no.1 and he identified Accused no.1 as the lady who had
come on 24.4.2004 and have purchased six vials of thisol sodium
of batch no. 172134 alongwith six bottles of distilled water so also
on 25.4.2006 and 29.4.2006 both of them have purchased Injection
Thisol Sodium 500 gms. from batch no. 172134, seven vials and
four vials and so also bottles of distill water. PW-8 has
identified the Accused No. 1and also the bills issued in the name of
Deepti Devasthali were proved by them. Ld. Prosecutor has
submitted that in the search of the house of the Accused at
Krishniwatika, Police has seized a box vials of the injections
sodium Pentathol and thus the prosecution has proved that
Accused no.1 has purchased sodium pentathol from Nashik.
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Learned counsel Rohini Salian appearing for the Accused has
drawn our attention to the cross examination of these two medical
shopkeepers PW-7 and PW-8.
71. Accused No.1 and Accused No.2 both have cross
examined these two witnesses at length. In the cross examination
PW-7 has admitted that nearly 40 to 50 persons purchased drug
from his shop through the day and he did not recollect that
Accused had purchased any drug from his shop on any occasion.
He saw Accused no.1 only once i.e. on 19.4.06 and thereafter, on
13.9.06 he identified her. He has also admitted the overwriting of the
date of the bills Exh.41 and 43. Similarly PW-8 has given
admission that prescription of Dr. Patil were used to come
regularly to his shop and he knew that Dr. Patil and Dr. Gaikwad
were from veterinary hospital. He has also given admission that
one or two injunctions are prescribed for the purpose of one
operation by the Doctor and he did not ask the reason for
purchase of injection in bulk quantity to the Accused.
72. The Learned Amicus curiae and also Accused no.
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1 on the basis of these submissions argued that the prosecution
have not examined Dr. Gaikwad or Dr. Patil. Though their statements
were recorded it was necessary for the prosecution to show that
the prescriptions were false. Identification by both the witnesses of
the Accused is also challenged.
73. Medical Bills Exh.41 and 43 show overwriting and
alteration in the date. It is not possible for the chemist to
remember the face of the person who has visited to his shop only
once after four months. The submissions of Accused no. 1 and
learned amicus curiae Ms. Rohini Salian on known examination
of Dr. Patil and Dr. Gaikwad are convincing. The bills 41, 43 so
also Exh. 48 appear manipulated document and there was no reason
for these two chemists to remember the face of the Accused in the
absence of any special incident. Hence the evidence of the
purchase of thisol sodium of PW-7 and PW-8 by the Accused is
found not reliable. The prosecution has, therefore, failed on this
point of purchase of thisol sodium from PW-7 and PW-8.
74. The learned special prosecutor has successfully
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connected the articles which were found in the Uttamnagar room
during the panchanama of seizure with the use of thipentone by
the Accused. Article 22. Exh.69- seven bottles were found in one
hand bag of 500 mg. of Neon Laboratory of which two bottles were
sealed containing white powder and five bottles were empty having
batch No. 172134 manufacturing date October, 2005. PW-34 in the
Panchanama Exh.163 dated 11.7.2008 of Krishna Vatika, Dahisar Flat
No. 1, a Box of 25 bottles, 12 bottles were used and 13 were
containing powder, 15 Bottles of distilled water were found. Exh.
163- Thisol having batch No. 172134 manufacturing date October
2005. The defence could not demolish this concrete circumstantial
evidence. Thus seizure of thisol in Uttamngar and at Krishna
Vatika and use of Thisol at the time of commission of offence by
the Accused is proved by the prosecution by leading consistent
and cogent evidence.
75. We are required to see whether the prosecution has
proved that Accused no. 1 and 2 have committed culpable
homicide amounting to murder punishable under Section 302 read
with Section 34 of the Indian Penal Code ? The exact cause of
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death could not be given as the whole body was not available for
postmortem examination and the parts available were decomposed.
The body parts were cut probably after the death. All these parts
may be of one person. Separation of the parts is possible with
the knife which was shown i.e. Articles 45/47 recovered from the
room hired by the Accused at Uttamnagar. On the characteristic of
Thipentone drug and method of its use PW 28-Milind Somkant
Potnis and PW-45-Balasaheb Dagdu Pande both have corroborated
that the effect of the drug is based on the quantity of the dose.
It is to be administered Intravenously (IV). Over dose of thipentone
affects respiratory system and sudden fall of blood pressure
resulting in death. It is important to note that thipentone is the
drug which does not leave its trace. This drug, when
administered, within 15 to 30 second affects the brain so that the
person goes to sleep. Thereafter the drug is distributed/spread in
the body and is detoxified in the liver. The drug thipentone has
unique characteristic that after a period of some hours it leaves
no trace of it in the blood or body. It is to be remembered that
the thipentone is a drug mainly used for induction of anaesthesia
and it is not a poison. However there is no conclusive proof to
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accept that Dr. Mahajan died due to the said drug only. It only
can be said Dr. Mahajan might have died due to overdose of
thipentone.
76. A person can be said to be an accomplice who
actually participates in the commission of offence and shares a
similar intention to do so along with the Accused. If a person is
hired for the commission of offence by paying some money and he
accepts to commit the crime, then that person is an accomplice.
CW1 and PW-1, as per the case of the prosecution, have actually
participated in abducting Dr. Mahajan which is an illegal act. They
both helped Accused no.1 when she injected drug to the deceased
Dr. Deepak Mahajan. The act of holding the deceased to enable
the Accused to the inject drug is no doubt the participation in
the crime or offence. However, these two witnesses cannot be
labelled as accomplice in true sense due to another unfolded
layer of evidence of their employment in Blue Bird Detective
Agency. The Accused have informed them that it being a detective
agency, their task was to record the statement of a Doctor
involved in Kidney scandal. Such acts are required to be done by
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the detective agency. Running a detective agency is neither an
illegal act, nor an incriminating circumstance, if taken in isolation.
To run a detective agency and to commit offence under the garb of
the work of the detective agency is a brilliant devilish idea which
was implemented by the Accused. Public advertisement in the
newspaper about employment in detective agency and regular
office in Pune, has definitely created confidence in the minds of
these witnesses, who believed the story of involvement of the
deceased doctor in the kidney scandal and an idea to abduct
him for the purpose of recording his statement by the head of the
detective agency who was Bombay based was believed to be
genuine by them. Therefore, as per the bonafide belief of PW-1
and CW-1 their participation was a part of their duty being the
employees of a detective agency. Their evidence fully corroborates
with the evidence of many other circumstances. It is not the case
that besides the evidence of these two witnesses on the point of
abduction, no evidence is tendered by the prosecution. Evidence of
PW-4 (Vikas Harischandra Garad) who was the Manager of
Shantanu Lodge has identified the photographs of PW-1 on the
application forms for employment in Blue Bird Detective Agency. The
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application forms of these two witnesses were found in the file
which was found and seized at the time of Panchanama of
Uttamnagar Room. This file contains many application forms of the
candidates for employment in Blue Bird Detective Agency, out of
which these two application forms, Form- Exh.23 is of PW-1-Ketan
Kale and Exh.230 of CW-1 are evident to show that they were
really employed in Blue Bird Detective Agency by the Accused. PW-2
Ashok Jagannath Magar and PW-3 Pravin Dayanand Kamble
corroborates the evidence of PW-1 and CW-1.
77. Dr. Deeak Mahajan came to Shantanu Lodge on
Activa Scooter and said scooter was taken by CW-1 Rahul Bhosale
and was kept at Shivajinagar and it was informed telephonically to
PW-11 Dr. Smita Mahajan. The said scooter was not found at the
first instance to the police but was found subsequently by PW-46-
Investigating Officer-Bharat Patil at the spot which was informed by
the Accused to Dr. Smita Mahajan. Evidence of PW-12- Preet Babil
Panch of the Panchanama of Uttamnagar room corroborates the
details given by PW-1 and CW-1 that the needle was bent so
Accused no.1 threw that bent needle and used other needle to
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inject drug to Dr.Mahajan. One bent needle and syringe were
found and seized at the time of Panchanama at Uttamnagar. The
fact of change of appearance and looks is proved by the prosecution
through the witnesses and also by seizure of the articles of
makeup. Hence, the Sessions Judge was correct in believing PW-1.
The evidence of CW-1 has come before us afresh and we found it
unshaken and reliable. Thus the prosecution has established that
the Accused Nos. 1 and 2 had conspired to abduct Dr. Deepak
Mahajan and had abducted him on 2.7.2006 from Shantanu Lodge
and have committed various offences in order to commit abduction.
78. We shall have to consider the offence under
varies sections with which the Accused are charged. Section 364-A
deals with abducting a person for ransom. The essential ingredients
of the section are as follows:
(i) That the Accused kidnapped or abducted a person; or
(ii) That the Accused kept such person under his detention;
(iii)That the Accused threatened to cause death or hurt to such
person or caused death or hurt to him;
(iv)That the Accused did commit so to compel
(a) the Government; or
(b) any foreign state; or
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(c) Inter government organisation; or
(d) any other person
(v) That the Accused compelled to do or abstain from doing any
act or to pay any ransom.
In the present case the prosecution has proved all the
ingredients of Section 364-A that Accused No.1 and 2 have conspired
to abduct and have abducted Dr. Deepak Mahajan. While taking
Dr. Deepak Mahajan, the Accused Nos 1 and 2 have made him
unconscious and kept him under their detention in Room No. 7 of
Shantanu Lodge and thereafter in their Matiz car. Further, the
Accused have threatened to cause death or hurt to Dr. Deepak
Mahajan and they did this to compel Dr. Smita Mahajan to pay
ransom of Rs.25 Lakhs. Both, Accused No.1 and Accused No.2
shared common intention and have planned a sinister design to
abduct Dr. Deepak Mahajan. The conspiracy is absolutely evident
and proved.
79. On the point of demand of ransom, the prosecution
relied on the telephonic conversion which was heard by Dr. Smita
and and Investigating Officer PW-46 at the police station. In
telephonic talk, the person talking on the other end had
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81
threatened Dr. Smita. As per their instructions – if she wanted the
Doctor alive she should pay Rs.25 lacs. It was argued by the
defence that as per the evidence of the prosecution witness, the said
demand of Rs.25/- lacs was neither pressed nor there was actual
handing over of the money and thus, in fact there was no intention
of demanding ransom while Dr. Deepak Mahajan was abducted and
hence the act of the Accused will not fall under Section 364-A of
the Criminal Procedure Code. Section 364-A does not require the
amount of ransom is to be actually parted with from the
complainant to the Accused. It requires only a threat of death or
hurt or even reasonable hurt that the person may be put to death
or hurt to pay ransom. The Accused, by attending telephone/
Mobile of Dr. Deepak Mahajan gave threats on the same phone to
Dr. Smita which confirmed the fact of abduction and also give rise
to reasonable apprehension to Dr. Smita that Dr. Mahajan may be
put to death or hurt and simultaneously ransom of Rs.25/- lacs
was demanded with specific threat of killing Dr. Deepak Mahajan.
80. ‘Abduction’ is defined under Section 362 of he
Indian Penal Code. Section 364A is an aggravated form of
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82
abduction under which the punishment of death or imprisonment
for life so also fine is prescribed. The learned Sessions Judge has
sentenced both the Accused to be hanged by neck until they are
dead subject to conformation of the High Court. As we hold both
the Accused guilty of Section 364-A we need to hear the Accused on
the point of sentence of death.
81. The Accused are also charged under Section 387 of
the Indian Penal Code for the commission of offence of extortion
which requires putting or attempting to put any person in fear of
death or grievous hurt to that person or any other, for which
punishment of imprisonment upto 7 years is prescribed. Evidence
adduced in respect of Section 365-A and Section 387 is relied for
the propose of proving of offence under Section 387 read with
120 (b) of the Indian penal Code. The learned Sessions held the
Accused guilt of the same and has awarded sentence of seven
years rigorous imprisonment and to pay fine of Rs.10,000/- each, in
default rigorous imprisonment for three months. We agree with the
said sentence.
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83
82. Under Section 328 of the Indian penal Code, if a
person administers to or causes to be taken by the any person any
poison or any stupefying, intoxicating or unwholesome drug or other
thing with intent to cause hurt to such person, with intent to
commit or facilitate commission of an offence or knowing it to be
likely that he will thereby cause hurt, the offence is committed. It
is to be noted that the offence under this section is complete even
if no hurt is caused to the victim. Mere administration of the
poison or unwholesome drug or other things is sufficient to bring
the offender under this section. Intention to cause hurt to such
person to commit or to facilitate to commit an offence or
knowledge that hurt will be caused should be present.
Thipentone/sodium thisol as discussed above is not a poison but it
is a drug having effect of paralyzing the function of the brain.
Thipentone is required to be injected through intravenously. This
drug is to be injected slowly and it cannot be given in the muscle
and therefore, the administration of this drug itself needs a lot of
caution and basic medical knowledge and specialized knowledge of
injecting the drug in the vein. If the drug is administered quickly,
then it may have adverse effect. The prosecution has brought this
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84
through the evidence PW- 28 Shri Milind Potnis and PW-45
Balasaheb Dagdu Pande who have deposed that it can cause a
decrease in blood pressure and its may result in respiratory arrest
or cardiac arrest and after injecting it affects the brain and
nervous system of the body. Hence offence under Section 328 of
IPC is proved beyond reasonable doubt. For this offence, the
learned Sessions Judge has sentenced the Accused to undergo
rigorous imprisonment for seven years and pay fine of Rs.7,000/-
each, and in default awarded further rigorous imprisonment for
three months. We agree with the extent of sentence given by the
learned Sessions Judge.
83. It is submitted that the prosecution has proved that
the Accused have committed the offence of forgery in respect of
creating and using fake driving licence in the name of Rui Raj
Mathur and thus has committed offence under Section 465 and
468 of the Indian Penal Code. Section 465 is the penal section. For
committing offence of forgery a false document i.e. driving licence
in the name of Rui Raj Mathur was prepared and used. While
committing forgery the Accused Nos. 1 and 2 had intention that the
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85
said document would be used for the purpose of cheating. The
prosecution could prove that the driving licence which stood in
the name of Rui Raj Mathur was used for the purpose of obtaining
Mobile SIM card from the Cell Phone Company and thus, the
prosecution could establish the offence under Section 465 and 468
of the Indian penal Code. Punishment given by the learned
Sessions Judge of two months rigorous imprisonment and fine of
Rs.5000/-, and in default to suffer RI for three months for the
offence proved under section 465 read with section 120-b of the IPC
and the punishment of five years rigorous imprisonment and
fine of Rs.10,000/- in default, 3 months for the offence punishable
under Section 468 is appropriate.
84. Offence under Section 419 of IPC – Section 406 of
the IPC defines cheating by personation. Offence under Section
429 is completed if person cheats by personation. The Accused Nos.
1 and 2 both have represented themselves with different names.
However, it is to be noted that just to represent oneself by changing
name does not constitute offence of personation under section 419
of the IPC but it should be clubbed with cheating. In the present
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86
case, there was a cheating by Accused Nos. 1 and 2 as they made
efforts to made others believe that they were different entities.
Thus, the offence under Section 419 is also proved by the
prosecution. The learned Sessions Judge has punished them to
suffer rigorous imprisonment for three years and to pay fine of Rs.
10,000/- each and in default to suffer rigorous imprisonment for
three months. We find no need to disturb the finding.
85.
Section 342 speaks about wrongful confinement. Dr.
Deepak Mahajan was wrongfully confined by the Accused and the
said fat was proved through the witnesses. We agree with the
punishment given by the learned Sessions Judge which is of one
year rigorous imprisonment and fine of Rs.1000/each and in default
to suffer rigorous imprisonment for one month.
86. The Accused Nos. 1 and 2 have also been charged
for the offence punishable under Section 471 of the Indian Penal
Code. If the person uses a forged document with knowledge, as
genuine, then he commits offence under Section 471 of IPC.
Driving licence in the name of Rui Raj Mathur was forged
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87
document and by producing that document Mobile SIM Card was
obtained by the Accused. Thus, it was used as genuine. So also
the Accused have prepared a letter Exh.28 in the name of Omkar
Charitable Trust giving the offer of job to Dr. Deepak Mahajan
for the post of orthopedic surgeon. There was no such offer in
reality for Dr. Deepak Mahajan to join as Head in the
Orthopedic department in Sanjivani Hospital run by Omkar
Charitable Trust. However, this particular offer was faked by creating
/forging a false letter. The said fake letter was used as a bait to
lure Dr. Deepak Mahajan who was made to believe that forged
document as genuine and became prey to the sinister design of the
Accused. The Sessions Judge rightly convicted the Accused Nos. 1
and 2 for the offence punishable under Section 471 read with
Section 120-B of the IPC and sentenced to undergo rigorous
imprisonment for three years and to fine of Rs.3000/- each, in
default to suffer further IR for three months. We concur with the
finding and the punishment awarded by the learned Sessions
Judge.
87. There is no eye witness to the fact of murder of Dr.
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88
Deepak Mahajan. The case of the prosecution is based only on the
following circumstantial evidence, direct and indirect, which can be
summarised as under:
i. Last seen together
ii. Discovery of body parts at the instance of Accused No.2
iii. (a) Room at Uttamnagar
(b) Panchanama of Uttamnagar Room and the
articles/weapons found therein.
iv. DNA ( para 90, 91 and 92)
v. Discovery of Matiz Carvi. Arrest Panchanama
vii. Case diary (-)
88. To destroy the case of the prosecution on the point
of identification of the body of Dr. Deepak Mahajan, the defence has
pointed out the circumstances / loopholes in the case of the
prosecutions which can be sumamrised as follows.
POINTS RAISED BY DEFENCE
(1) Identification of the body in absence of head and
hands
(2) Specious DNA
(3) Cause of death not established
(4) Planting of shirt of Dr. Mahajan
(5) Challenge to discovery Panchanama
(6) Blood group of Dr. Deepak Mahajan is not
brought on record.
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89
(7) Forensic Panchanama of Room at Uttamnagar not
done.
(8) Purse Panchanama.
(9) Delay in finding Matiz Car of more than two
months
(10) Unsolved mystery of five days.
89. In the present case there is no eye witness. The
theory of last seen together was pressed into service by the
learned special prosecutor. Ld. Counsel Mr. Mundargi has argued
that Doctor Deepak Mahajan was seen last in the company of
Accused Nos. 1 and 2. PW-1 and C-1 are the witnesses on this vital
point. To establish the offence of murder, the prosecution has
heavily relied on the ‘last seen together’ theory and contended
that in the absence of any explanation as to when the Accused
left the company of Dr. Mahajan, Section 106 of the Indian Penal
Code is to be invoked.
90. It is the defence of the Accused that these two
witnesses PW-1 and CW-1 have committed murder with the help of
Ratansingh and were involved in the murder of Dr. Deepak
Mahajan. The other defence was also suggested at the most it can
be said that these two Accused ladies abducted the deceased
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90
Doctor and handed him over to other persons namely Ratansingh,
Bismilla and Ganu who might have killed the Doctor and cut the
body of the Doctor into parts. Thirdly, at the time of recording
further statement under Section 313, while answering Question No.
87, Accused no.2 answered that one Jayashree Vipradas and
Sadanand Kenge have committed murder and fourthly through the
arguments names of Dr. Smita and Parag Mahajan were suggested
as the culprits. Thus the explanation given by the defence
appears to be inconsistent and imaginary. In this back ground and
considering the proof of the other circumstantial evidence we
assess how far the prosecution can get the benefit of under
Section 106 of the Evidence Act.
91. Section 106 states that “when any fact is especially
within the knowledge of any person, the burden of proving that fact
is upon him”. Section 106 cannot be freely applied to the
Accused in the criminal trial. The Accused may be covered under
the phrase “any person”. However the applicability of the section
is restricted by the basic principle of criminal jurisprudence that the
burden on the prosecution to prove the facts never shifts. In fact,
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91
the real culprit knows the fact about the commission of offence,
yet, Section 106 cannot be applied to the Accused because there is
every possibility of false implication of the person, either by the
complainant or by the police. To hold the innocent guilty is a
serious miscarriage of justice. Therefore, the Accused is always
insulated with the right to silence. Disclosure of the subsequent
facts within the knowledge of the Accused thereafter takes colour
of the confession which is barred under section 25 of the Evidence
Act.
92. On the point of “last seen together, the prosecution
has relied on the case of State of Rajasthan Vs. Kashi Ram Vs. (2006
12 SCC 254 ) in which it is observed that:
“19. Before adverting to the decisions relied upon by the
counsel for the State, we may observe that whether an
inference ought to be drawn under Section 106 Evidence
Act is a question which must be determined by reference
to proved. It is ultimately a matter of appreciation of
evidence and, therefore, each case must rest on its own
facts”
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92
“In a case resting on circumstantial evidence if the
Accused fails to offer a reasonable explanation in discharge
of the burden placed on him, that itself provides an
additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of
proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the Accused
does not throw any light upon facts which are especially
within his knowledge and which could not support any
theory or hypothesis compatible with his innocence, the
Court can consider his failure to adduce any explanation,
as an additional link which completes the chain. The
principles has been succinctly stated in Naina Mohd.(AIR
1960 Mad. 218:1960 Cri. LJ 620:
93. The provisions of Section 106 of the Evidence act
itself are unambiguous and categoric and lay down that when any
fact is specially within the knowledge of a person, the burden of
proving that fact is upon the him. Thus, if a person is last seen
with the deceased, then it is expected that he should offer an
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93
explanation as to how and when he parted company with the
deceased. If he does so, he must be held to have discharged his
burden. If he fails to offer an explanation on the basis of facts
within his special knowledge, he fails to discharge the burden cast
upon him by Section 106 of the Evidence Act. Even if the
Accused fails to discharge any burden under section 106, it is not
a principal or major burden, but its just an additional
circumstance against the Accused. It cannot be replaced for missing
chain of the prosecution.
94. In the decision rendered by the Hon’ble Supreme
Court in the case of Sucha Singh Vs. State of Punjab, (
2001 SCC
(Cri.) 717), it was observed in para 15 of the judgment as under:
“15. The abductors alone could tell the court as to
what happened to the deceased after they were abducted.
When the abductors withheld that information from the
Court there is every justification for drawing the inference
in the light of all the preceding and succeeding
circumstances adverted to above that the abductors arethe murderers of the deceased.”
( Referred (2000) 8 SCC 382 State W..B. Vs. Mir Mohd.
Omar)/ 31. The pristine rule that the burden of proof
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94should not be taken as a fossilised doctrine as though it
admits no process of intelligent reasoning. The doctrine ofpresumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if thetraditional rule relating to burden of proof of the
prosecution is allowed to be wrapped in pedantic coverage,
the offenders in serious offences would be the majorbeneficiaries and the society would be the casualty.”
95. Prosecution has further placed reliance on the ratio
laid down in the case of State of Maharashtra Vs. Suresh, reported
in (200) 1 Supreme Court Cases 471, in which the Supreme Court,
while discussing the value of evidence tendered under section 27
of the Indian Evidence Act have observed that:
“We too countenance three possibilities when an
Accused points out the place where a dead body or
an incriminating material was concealed without stating
that it was concealed by himself. One is that hehimself would have concealed it. Second is that he
would have seen somebody else concealing it. And
third is that he would have been told by anotherperson that it was concealed there. But if the Accused
declines to tell the criminal court that his knowledge
about the concealment was on account of one of the
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95that it was concealed by the Accused himself. This is
because the Accused is the only person who can offerthe explanation as to how else he came to know of
such concealment and if he chooses to refrain fromtelling the court as to how else he came to know of it,
the presumption is a well justified course to be adopted
by the criminal Court that the concealment was madeby himself. Such an interpretation is not consistent
with the principle embodied in Section 27 of theEvidence Act.
In the case of State of Maharashtra Vs. Suresh (Supra) the
Accused had raped and murdered four years old girl child and the
mangled body of the child was dumped in the field. The Accused
and victim were last seen together by three prosecution witnesses.
The body of child was recovered from the cotton field in
pursuance of the information given by the Accused. In the medical
examination of the Accused the injuries consistent with the theory
of the rape were found on the private parts of the Accused. In the
present case there was a gap of five days between the incident of
abduction of Dr. Deepak Mahajan and discovery of the parts of male
body and the identification of the body was seriously in dispute for
want of head of the body. Thus the ratio laid down by the
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96
Supreme Court in the cases of Sucha Singh and State of
Maharashtra Vs. Suresh cannot be applied to the present case
which is distinguishable due to unusual circumstantial evidence and
the passive and shoddy investigation.
96. In the case of Hatti Singh Vs. State of Harayana
reported in 2008 (3) SCC (Cri.) 246, the Hon’ble Supreme Court
observed that:
“The evidence of last seen by itself apart from having not
been proved in this case cannot be of much significance. It
may provide for a link in the chain but unless the time gap
between the deceased of having been last seen in the company
of the Accused person and the murder is proximate, it is
difficult to prove the guilt of the Accused only on that basis.”
97. In the present case as per the prosecution discovery
of the body parts in pieces at the instance of Accused No.2 is an
authentic nexus between offence of murder and the Accused.
In the postmortem report, Dr. Milind Sharad Wable (PW- 36 )
has opined that it was male body and the parts of the body may
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97
be of one male human body. The death was two to five days prior
to the postmortem. Finding of body in one piece is a normal
circumstance in the cases of murder though the murder itself is
abnormal. In this case, the body was found in parts wrapped in
six similar/identical blue plastic bags. If the body parts would have
been found scattered at different places and not in the packed or
wrapped condition, then it would have been inferred that some
stray animals or birds have taken away same parts of the body
and eaten and so the body was found in pieces. However, in this
case, it is to be concluded that it was an act of human being.
Finding of four packets at Katraj Ghat and then finding of two
packets at a long distance i.e. at Bhosari is also another
important consideration. These two places Katrajghat and Bhosari
are away from the residential area of Pune city.
98. PW-12 Preet Babil is examined for the discovery of
the body parts. (Panchanama under Section 27 of the Evidence Act).
Dfence could not demolish his evidence. This Panchanama is
proved and we have no hesitation to hold that body parts were
found consequent to the information given by Accused No.2.
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98
Normally while investigating the murder, if the victim and Accused
are last seen together and thereafter the body is found at the
instance of the Accused, then the prosecution is successful in
proving the murder and the Accused at whose instance the body is
found can be held guilt for the offence of murder of the said victim.
However, in the present case, there are some abnormal
circumstances which constrain us to question the case of the
prosecution on the point of murder. The fact of last seen together
and the discovery of body parts are two circumstances necessary
to be joined with the circumstance i.e. identification of the body.
Identification of the body can be proved by various ways. The most
natural and common is by face. It may also be with the help of
marks on the body or due to the peculiarity of the limbs or if the
body is de-composed, then on the basis of forensic evidence.
99. As per Section 27 of the Indian Evidence Act, the
information given by the Accused is made admissible only for the
limited purpose. The total ban on accepting confession is
partially lifted under this section, if the fact is actually discovered in
consequence of the information given by the Accused and it affords
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99
some guarantee of truth of that part only. Rest of the information
is always inadmissible. The statement of the Accused No.2 that “I
will show the place where the body parts were lying” is the only
admissible portion in the memorandum panchanama. Parts are of
the body of Deepak Mahajan should have been proved through
other independent evidence. Further details will amount to
confessional statement and admissibility of it is strictly barred
under Section 25 of the Evidence Act.
100. The fact of keeping certain object at a particular
spot is always within the exclusive knowledge of the Accused
because it is the tendency of the criminal to hide the object used
in crime and therefore it is known to the Accused only and the
Accused only can point out the place where the object is kept.
Therefore, in the absence of discovery of any object, the statement
can not be considered as memo under Section 27 of the Evidence
Act and hence the mere pointing of the spot is not admissible.
Therefore, when the body parts are found one cannot jump to the
conclusion that these body parts are of Dr. Deepak Mahajan
because the body parts are found after the information given by
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100
Accused No.2. Such degree of evidence is not sufficient to satisfy the
legal mind. The degree of standard of proof required to prove the
identification of the body is always high. Drawing inference on
the basis of conjectures and surmises.
101. On the point of identification of dead body reliance
is placed on Kesav Vs. State of Maharashtra, reported in 2008 (3) LJ
Soft. (SC) 91 in which the Supreme Court observed and held as
follows:
“All parts of the dead body including small intestine
were missing. The dead body was lying in an open
field at least for four days. How apparels and clothes
purported to be belonging to deceased had been foundnear the dead body separately is beyond any
comprehension. If he was killed by using a hard and
blunt substance on his head as it appears from the
postmortem report, portion of the clothes of thedeceased would still be found over the skeleton and not
at a distance from it. If the body was eaten away by
vultures or other animals the garments would have alsobeen found in torn conditions and beyond recognition.
In this situation the evidence that the garments have
been recognized by the mother and wife of the
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101body to be that of deceased cannot be accepted.”
102. The Accused stayed in the rented room at
Uttamnagar- Warje Malwadi and it was established by concrete
evidence of the landlord PW 5 -Maroti Bajirao Gawande who let
out the said room at Uttamnagar. PW-6 Sharda Takbhate was the
neighbour and she is examined on this point. She has stated about
the residence of Accused nos. 1 and 2 in the said room at
Uttamnagar, their Matiz Car and foul smell emanating from the
said room in the first week of July, 2007. The defence has
pointed out a material omission in the evidence of PW-6 that she
has admitted that she did not state to the police at the time of
recording her statement that she has seen the Accused Nos. 1 and 2
removing very heavy article wrapped in blue plastic cover from their
Car and then after some time keeping small packets in blue
plastic bags in their car. The prosecution on the basis of this
evidence wanted to create indirect circumstance showing
connection between the use of blue plastic bags and Accused
taking out heavy article from the Car to their house and after
two days taking out something in the blue packets. However,
this evidence is not believable. Evidence of PW-6 Mrs. Sharda
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102Takbhate did not disclose any relevant reliable fact throwing light
on the point of murder or bringing of Dr. Deepak Mahajan at
Uttamnagar. No reliable evidence is tendered by the prosecution
to show that the said room was used for killing Dr. Deepak
Mahajan. The Room of Uttamnagar was sealed and Panchanama
was carried out and in the said Panchanama (Exh. 69/75) many
articles were found.
103.
The relevant articles i.e. Full pant(Court Article-29,
blood stained Blue Shirt (Court Article-30), Pair of socks(Court
Article-31) Black leather belt (Court Article 32), Spectacles (Court
Article-23). Knife-Article 45, Blade of Spade-Article 46, Knife-E3
Article 47, human hair-Article 41, pieces of cloth- Article 17, blood
stained Kurta-Article 50, Blood stained Salwar-Article 53, Latex Hand
gloves Article 40 and Article 16 underwear were found in the room
of Uttamnagar and they were sent for the Chemical Analysis (CA).
It was pointed by the Learned Special Prosecutor that in the
Panchanama of Uttamnagar room one piece of blue colour cloth
(Exh.51) having design of the triangles was found and three pieces
of blue colour cloth having design of triangles were found with
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103
the body parts. Learned prosecutor tried to connect these three
pieces of cloth and one piece of cloth and has argued that as the
as these four pieces of cloth are of one and the same cloth, this is
an incriminating circumstance against the accused. While
appreciating this evidence, we found that the said pieces of cloth
were not before the Court and they all were not sent to C.A.
The police should have done forensic Panchanama of the three
pieces of cloth and one piece of cloth showing that they are the
pieces of one and the same cloth. Three pieces and one piece of
cloth, all should have been sent to the C.A. No evidence of Panch
PW-12 Preet Babil was tendered on the point that Article 51
( one piece of cloth) and other three pieces of cloth were
matching and they are of one and the same cloth. Moreover, the
result of all these articles which were sent to C.A. though was ”
human blood detected”, the opinion about the blood group was
inconclusive. Though leads were available to the police, they could
not exploit the same properly by taking investigation to the
logical end. The Prosecution has failed to bring on record even the
blood group of the deceased and the blood group of Accused no.2.
If the evidence in respect of the blood group of the Accused and
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104
the blood group of the deceased is not produced, in that event
possibility of Accused and the deceased having same blood group
is not overruled. Finding blood stains on the clothes of a female is
not abnormal. However, finding blood stains on the articles
which were identified by the PW-11- wife of the deceased as that of
the deceased is not a normal but an incriminating circumstance.
Article 46, Green Knife of uneven pointed edge of blade was
found and if anything is cut with that blade then because of
the design of the edge the cut will not be smooth but it may be
zigzag.
104. Rabbits play interesting role in the entire episode.
Accused have admitted that they are fond of rabbits and they had
kept rabbits in their house at Uttamnagar. In the panchanama, two
rabbits and cage were found in the room at Uttamnagar. . The
Accused on complaint of foul smell by PW-6 Sharda Takbhate
told her that due to the rabbits there was a foul smell in the
room and they would clean it. The prosecution, on the basis of
evidence of Mrs. Takbhate-PW6, tried to tender indirect evidence
on the point of place of killing and dismembering the body part
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105
of the deceased. However, this effort of the prosecution is weak and
imaginary and only suggestive. The Investigating officer in fact
should have summoned Forensic experts for scientific examination
of the said room which could have corroborated the prosecution
case that deceased was done to death and his body was
dismembered in the room. We find that except the recovery and
seizure of the articles and statement of PW- 6, no efforts were taken
by the Investigating officer to establish the spot of the murder.
105. Murder of Dr. Deepak Mahajan is seriously
challenged by the defence on the ground that prosecution has failed
to prove the death of Dr. Mahajan . The fact that some body parts
were sent for the postmortem examination on 7.7.2006 at 10 p.m.
to the Sasoon Hospital Pune and Dr. Milind Sharad Wagale has
conducted postmortem on those body parts on 8.7.2006 is not denied
by the defence. However, the head and the hands of the body
were not found and therefore the identification of the said parts
of the body was challenged. In support of their case of last seen
together, prosecution could not solve a mystery of five days as to
what happened to Dr. Deepak Mahajan after he was abducted. When
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106
and where he was killed ? On going through the case diary we
find the officers concerned in the investigation have not focused
on these important aspect and no evidence is brought on record.
It only demonstrates improper and ineffective investigation on
behalf of the State on this crucial aspect.
106. In the background of this challenge, the evidence of
Dr. Milind Sharad Vable, PW-36 who conducted autopsy is to be
looked into. He has mentioned that the body was brought in six
packets. He observed that maggots were present on the body. The
cut ends of the bone showed sharp zigzag edges at places. The
heart was cut at the base of aorta. The right leg, left leg and feet
were dismembered. Blood was not found. It is to be noted that
cutting of the body in pieces cannot prove the murder, unless the
cutting of body was proved to be antemortem. The Doctor has
opined that the parts were cut probably after death. He has opined
that exact cause of death cannot be given. It was mentioned that
the parts apparently might be of one person and as the male organs
were found, it is to be inferred that it was a male body. A
person might have died a natural death and subsequently the
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107
body could have been cut into the parts. The cause of death could
not be determined as the heart was empty and the body was
decomposed. Thipentone does not leave any mark or
characteristics. That is already discussed. But this does not lead us
to hold conclusively that Dr. Deepak Mahajan died due to Thisol
Sodium/Thipentone. Through evidence of Dr. Wable, prosecution
has established that the said body parts were of male person and
they were apparently of one person and the time of the death was
approximately two to five days before the postmortem examination.
So it may be between 3rd to 6th July, 2006. The opinion of Dr.
Wable is found consistent with the case of the prosecution on
the point of approximate period of death of Dr. Mahajan though it
does not prove conclusively the identification of the body.
107. It was argued that the prosecution could not prove
that the body parts recovered by the police in Katraj Ghat and at
Bhosari are of Dr. Deepak Mahajan. The submissions are based on
the quality of the experts evidence on the point of DNA, a chemical
of which human chromosomes are made. The Prosecution has
produced the report of the DNA test. For the purpose of DNA test,
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108
blood samples of PW-31- Shridhar Mahajan Mrs. Shridhar Mahajan
i.e. parents of the deceased were collected. PW-31 has stated
accordingly. Thus the controlled blood of parents – PW31 and his
wife were collected and sent for DNA test. For the purpose of
comparison of the DNA, the prosecution has sent blood stained blue
shirt of Dr. Deepak Mahajan which marked as Court Article-30 and
the samples of body parts i.e. hair, skin, tissues, left femur, left tibia,
right femur, right tibia, right hip bone were sent to the DNA experts.
108. The learned amicus curiae and the Accused no.1,
while assailing the evidence of PW-32- Shrikant Hanumant Lade
and PW-33 Dilip Yashwantrao desai who were working in DNA
Laboratory Kalina, challenged the competency of DNA experts for
want of requisite qualification.
109. PW-33 Dr. Dilip Desai has used STR (Short Tendem
Repeats) method for DNA analysis and the “Negative” report
which is marked as Exh.274 dated 6.10.2006 is produced before the
Court . It is said in the report that “no interpretable profile is
possible” In the cross examination, the witnesses PW-32 and PW-33
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109
have admitted at the second round of recording evidence that the
Police have sent letter Exh.153 dated 30.10.2006, that the body parts
were to be sent to Hyderabad for CDSD Test and though there
were specific directions, we fail to understand why the tests were
carried out at Kalina Mumbai. The learned counsel for the
prosecution gave explanation that the Laboratory at Hyderabad
and the experts working there were burdened so heavily that they
could not spare time to perform the test on the body parts sent
by the police. PW-32 has admitted that he went to Hyderabad.
These samples were forwarded to the Laboratory at Hyderabad on
10.11.2006 by their letter. After receipt of the samples, the
technicians of Kalina Lab informed the police that they require
controlled blood sample of Shridhar Mahajan(PW-21). However, no
samples were sent to Hyderabad and the Hyderabad Laboratory
refused to carry out the examination of the samples due to the
work load. He has also stated that the Hyderabad Laboratory did
not communicate any reason in writing. He went to Hyderabad on
13.11.2006. He stayed there from 13.11.2006 to 21.11.2006 and the
purpose of the visit to the Hyderabad was training programme of
DNA Isolation from bone samples. Kalina Laboratory have received
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110
samples from the Hyderabad Laboratory on 24.11.2006 i.e. after the
witness completed his training and came back. The Learned Special
Prosecutor has argued that the witness Shrikant Hanmant Lade
(PW-32) has carried out DNA analysis by using Y-STR (Y-Short
Tandem Repeats) method. He has explained in the evidence that
STR method is automatic. In STR method, analysis of DNA profile
by using electro phonogram of the exhibits is done and Y-STR
method is used if the samples are degraded.
110. PW-32 has admitted that DNA technique is in
developing stage. PW-32 has opined that DNA profile of bone
samples and DNA profile of Shridhar Mahajan are from same
paternal progeny and he on the basis of that has made report
that deceased Dr. Deepak Mahajan is the biological son of
Shridhar Mahajan. ( 432/433). In his chief, he has said that he
carried out the test of DNA extract from the Blue Shirt of Dr.
Deepak Mahajan (Exh.8) and controlled blood samples of Shridhar
Mahajan and Charushila Mahajan (father and mother of deceased)
by using STR method. He has opined that STR small DNA
fragments which are present in every human being are highly
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111
individual specific and he has given is opinion on the basis of
comparison of these articles with the DNA i.e. Blood stains on the
shirts (Exh.8) that they (blood stain on shirts ) are of the biological
offspring of Mr. and Mrs. Shreedhar Mahajan. In the entire evidence
of DNA or CA, the prosecution did not bother to bring the blood
group of Dr. Deepak Mahajan.
111. In the cross examination, the defence could
successfully bring a number of discrepancies in the evidence of
PW-32 and PW-33. In respect of the evidence of PW-32 Shrikant
Lade, especially in the background of his admission that though
there were specific directions by the police that DNA was to be
carried out at Hyderabad and not in their laboratory at Kalina and
the seal of the samples was not to be opened at Kalina, the DNA
was carried out at Kalina. In the first round when carried out by
PW-33-Dilip Yashwantrao Desai- it gave negative result. The DNA
test which was finally carried out by PW-32 at Kalina of the
samples of the body parts is not found reliable. He has not said
anything about the use of Y-STR method and why he did it and
how Y-STR method was useful to arrive at the positive conclusion in
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112
respect of DNA test of the body parts which were found at Katraj
Ghat. We will be committing an error if we accept two conflicting
DNA reports particularly when the experts have failed to establish
that DNA of the dead body matched with that of father of Dr.
Mahajan conclusively.
112. DNA, is considered as a science of precision and
accuracy to establish the biological relationship between human
beings. We are constrained to observe that how, when and where
the samples of blood are sent by the police to the Laboratory and
when the analysis was made in what method and when the report
was sent should all be brought on record very systematically by the
prosecution. These institutions are working as an extended arm of
the Police investigation. If so, the communication between the
Laboratory and the Police should be in writing. In the present case,
the prosecution could not justify why Shrikant Lade went to
Hyderabad for training and why the samples of the body parts of
Deceased and of the samples of controlled blood of the parents
of deceased Dr. Deepak Mahajan sent by the police for DNA test
were not tested at Hyderabad. Moreover, if such samples were sent
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113
to Hyderabad and again they were sent back to Kalina without
performing any test, then why no letter in writing was obtained
from the said Laboratory at Hyderabad. Mere statement of the police
or Laboratory technicians at Kalina cannot be accepted. DNA tests
are to be seriously conducted with optimum care as it provide
unshakable and concrete scientific evidence against the Accused.
Moreover no satisfactory explanation is advanced how first DNA
test failed and why second DNA was carried out.
113. It was argued by Accused No.1 that Shridhar
Mahajan is having one more son viz. Parag Mahajan and one
daughter, so there is possibility that the police might have taken the
blood of their other two children and could have planted on the
blue shirt and therefore, DNA technician has given report that
the DNA of the blood stains on Blue shirt (Exh.8) are of
biological offspring of Mr. And Mrs. Shridhar Mahajan (parents of
deceased). This argument though not convincing, indicates some
possibility. Moreover, the Police have proved the fact of seizure of
the Blue shirt from the rented room of the Accused at Uttamnagar
and Dr. Smita Mahajan (wife of the deceased) has identified the
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114
said shirt as a shirt of her husband and such identification of the
shirt of the husband by the wife is sufficient to prove the fact that
said shirt belonged to Dr. Mahajan. It is to be mentioned that
besides the shirt in the said room at Uttamnagar, police found
number of articles at the time of Panchanama (Exh.75-Panchanama
of Uttamnagar room) through PW-12- Preet Babil- Panch. Total 96
articles were recovered and out of those articles Yellowish Colour
Full pant (Court Article-29, Blue Shirt (Article-30), Pair of
socks(Article-31) Black leather belt (Article 32), Spectacles
(Article-23) were found and these articles were identified by D.r
Smita Mahajan(PW-11) wife of the deceased and Shridhar Mahajan
(PW-31)-father of the deceased. These articles were found in the
room of the Accused. There is cross examination as this score and
incriminating circumstance against the Accused remains
unchallenged by the defence.
114. The Learned Special Prosecutor on the point of
circumstantial evidence has relied on the case of Anant Chintaman
Lagu Vs. State of Bombay AIR 1960 SC 5 00 (IV) 47 C-8 5 , in which
it is held that :
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115
” Circumstantial evidence in this context means a
combination of facts creating of network through whichthere is no escape for the Accused because the facts
taken as a whole do not admit of any inference but ofhis guilt. To rely upon the findings of the medical man
who conducted the postmortem and of the chemical
analyzer as decisive of the matter is to render theother evidence entirely fruitless. While the
circumstances often speak with unerring certainty, theautopsy and the chemical analysis taken by themselves
may be most misleading. No doubt, due weight mustbe given to the negative findings at such examination.
But bearing in mind the difficult task which the manof medicine performs and the limitations under which
he works, his failure should not be taken as the end of
the cause for good and probative circumstances andirresistible inference on guilt can be drawn.”
115. In the case of Anant Chintaman Lagu (Supra) the
cause of the death of the deceased Laxmibai, given by Dr. Jhala
was due to diabetic Coma. However the said postmortem was
conducted not as a medico legal case and the Dr. Has admitted that
his opinion might be inaccurate. However, Dr. H. S. Mehta, as an
expert has opined that the death was probably due to
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116
administration of some unrecognizable poison. While appreciating
the circumstance in the case of Anant Chintaman as a guideline for
appreciation of circumstantial evidence and especially in the case
of death due to poisoning. We must be aware of the fact that in
the present case, the circumstance which has remained
unexplained and not proved is the identification of the body itself.
The DNA evidence which is produced by the prosecution is found
unreliable and though it was proved that thipentone was
administered to the deceased in the absence of the identification
of the body and cause of his death in the opinion of Dr. Wable
who performed PM, this ruling cannot be of any use to the
prosecution.
116. Even if discovery panchanama (though it does not
inspire confidence) is accepted, it only proves that some parts of
male body were discovered at the instance of Accused no.2. The
important link that the said parts of the dead body were
conclusively of Dr. Deepak Mahajan is not established. However, the
prosecution could not tender reliable evidence on the point of DNA
or any other evidence to draw conclusion that the said body parts
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117
were not of any other person but of Dr. Deepak Mahajan. The
doubt, howsoever feeble it may be, it destroys the link between
the Accused and discovery of the body parts of Dr. Deepak
Mahajan. The doubt puts a question mark. In the present case on
the point of identification of the body of Dr. Mahajan, the
prosecution has not brought any accurate concrete evidence.
117. The Accused were arrested at 12.35 p.m. on 7.7.2006
and immediately five minutes after the arrest the police drew the
panchanama- memorandum under Section 27 of the Indian Evidence
Act. It is argued by the defence that no such statement could have
been made by the Accused soon after their arrest. As per the
prosecution case, the Police had apprehended both the Accused on
7.7.2006 at around 10 to 10.30 a.m. Obviously the police have
interrogated the Accused with a view to ascertain the involvement
of the Accused in the commission of the crime. The Police have
power to interrogate the suspects and after verifying the
involvement, upon their satisfaction, the police can register the
offence against the suspects. There was every possibility that after
facing interrogation of the police for two hours, the Accused No.2,
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118
immediately after the arrest has made statement that she would
show the places where the body parts were lying.
118. The prosecution though has proved that Thipentone
or Thisol Sodium was administered and Dr. Deepak Mahajan was
made unconscious and was taken away by the Accused 1 and 2 in
their Matiz Car. However, the prosecution is absolutely silent on
the vital point as to what happened to the Doctor thereafter. It
is the case of the prosecution that Dr. Mahajan was taken to the
room at Uttamnagar and in that room these two ladies killed Dr.
Deepak Mahajan and dismembered his body. No eye witness is
examined by the prosecution to prove this fact. There is no direct
or indirect evidence on the point of murder and no efforts have
been made by the prosecution to prove these important and
crucial aspects of the case, as already observed by us.
119. The prosecution witnesses PW-11 Dr. Smita Mahajan
and PW-10 Pramod Prabhakar Falgune-brother of Accused No.2,
both have confirmed that around 12.30 news about the recovery of
the body parts of the deceased Doctor at the instance of
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119
Accused, was telecasted on T. V. Channels.
120. The Learned Special Prosecutor has submitted that
the police have arranged investigation van of the Police with
Camera at the spot to collect the evidence and to shoot the
recovery. However, that shooting was defective and they could not
shoot and so nothing was seen in that CD. Hence it does not form
a part of chargesheet. The submission is very perfunctory and made
just to hush up the matter. However, the Learned Special Prosecutor
has conceded that such disclosure by the police in respect of their
leads, while collecting evidence to Print/Electronic Media
adversely affected the quality of investigation and subsequently
due to media interference in the investigation, the authenticity of
the investigation is questioned and lot of material is used by the
Accused in the cross examination to impeach the credibility of the
investigating officer and eye witnesses with the help of such
premature disclosure and unwarranted publicity. When the
investigation is in embryo stage, the police should eschew
themselves from any publicity. It is high time for the police officer
to understand their responsibility not to approach the media to get
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120
cheap and objectionable publicity which makes the criminal justice
system not transparent but patchy and hazy. Right to information
is wrongly interpreted by the police as right to inform. High degree
of secrecy is a must when the investigation is in process. The
publication of the matter in the print/electronic media and
highhanded telecast and immature comments of the anchors of
the TV media may mislead the people as public opinion is bound
to be influenced by the manner the case is projected and
ultimately affect the sanctity and fairness of the criminal trial. The
overzealous efforts made by the prosecution to telecast the
investigation i.e. discovery panchanama dilutes the investigation and
lends support to the argument of the defence that the police from
the beginning were not fair in the investigation.
121. The ownership of the Matiz Car and its recovery is
not disputed. The prosecution has also proved through the oral
and documentary evidence that Car Bearing No.MH02-254 stands
in the name of Accused No.1. This car was used for the purpose of
taking away the Doctor in unconscious condition. This car was
found by the police in the first week of September 2006 when a
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121
member of one Cooperative Housing society phoned and
informed Police that a Matiz Car parked outside their housing
society was unattended since many days. In the Matiz Car Cell
Phone handsets of Nokia having IMEI Nos.. 351486609417510 and
35253600483225 were found.
122. It is the case of the prosecution that Accused No.1
was holding a purse and number of articles were found in it on
which the prosecution has relied. It was necessary for the
investigating officer to seize the said purse under the Panchanama.
If the police were short of time, then the purse could have been
sealed by the police and the panchanama of the said purse could
have been carried out subsequently. However, unfortunately the
police failed to do so. The Learned Special Prosecutor could not give
any plausible explanation about this error committed by the police.
It is evident that the police, at the time of investigation have not
taken necessary care to prove each step of their investigation
before the Court. The Learned Special Counsel Mr. Mundargi has
submitted that though he cannot justify the seizure of the purse
without panchanama, the articles found in the purse are such that
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no planting of such articles was possible for the police. We do
understand and accept the substance in this submission.
123. In the present case, the articles viz. Alkatel Mobile
Handset IMEI No. 35130741540560, Bank pass book in the name of
Accused no.2-Dahisar address, visiting Card of Ratansing (Blue Bird
Agency), visiting Card of Shantanu Lodge, etc. found in the purse
of Accused No.1 are incriminating. All the articles found in the
purse are of such nature that planting is difficult. Moreover, the
articles found in the room at Uttamnagar, the fact of opening Blue
Bird Detective agency and the articles found in the search of the
Flat at Krishna Watika, Dahisar of the Accused are intrinsically
related to each other and the seizure of those articles is
independently established with the help of the panchas. It is to be
noted that this is a case in which no witness has turned hostile; all
the witnesses have supported the case of the prosecution.
124. Accused No.1 has argued they were not arrested
on 7.7.2006 but both of them were detained in the police custody
two to three days earlier and Accused no.1 was beaten up by the
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police and accordingly she made complaint of the injuries on her
person to the Magistrate. She has further submitted that she was
sent for medical examination and there medical report was given.
Medical report discloses that there were nearly 13 to 14 injuries of
minor abrasion or contusion. Medical certificate discloses that
injuries were found on the person of Accused No1. Learned
Special Prosecutor pointed out that the Accused, when the
Accused made the complaint of injury to the magistrate, they did
not make any grievance that they were confined for two to three
days prior to their arrest. He has further submitted that this total
silence about their grievance does show that they were never
detained prior to their arrest i.e. 7.7.2006. Moreover, no question was
put to PW-40- Balkrishna Bhikaji Agashe on the point detention
and beating. Thus the submissions of the learned special prosecutor
are correct and therefore, we do not find any force in the
submissions of the Accused that they were arrested prior to 7.7.2006.
125. While hearing appeal, on the submissions of the
Accused on the point of their arrest and interrogations we went
through the case diary of Investigating officer. It has already
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mentioned that the time of the arrest of the Accused is shown as
12.30 p.m. and within five minutes thereafter memorandum under
Section 27 of the Evidence Act was recorded and we, therefore,
wanted to know at what time and day the police apprehended
the Accused. We wanted to know when and how they found CW-1
and PW-1 and other leads. While going through the case diary we
realized that the diary was written very casually. Investigating officer
has not mentioned the details of the steps taken in investigation.
Police official- PW-40 Balkrishna Bhikaji Agashe who actually
apprehended the Accused has filed an affidavit before us that he
did not maintain any diary.
126. The Learned Special Prosecutor had submitted that
all the police working in Crime branch or DCB CID are not
required to maintain the case diary prescribed under Section 172 of
the Criminal Procedure Code. He has explained that such
exemption to the crime branch police is necessary because utmost
secrecy is required to be maintained by Crime Branch during
investigation. There is urgency to take quick steps and hence they
are excused from maintaining the case diary under Section 172 of
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the Criminal procedure Code. In support of submissions he has
relied on the Maharashtra Police Rules 1999. Chapter 6, Clause
225 (1) and (2) pertains to maintenance of Case diary under
Section 172 of the Criminal Procedure Code. As per the said clause
exemption is not given from writing case diary, however the
exemption is given in respect of procedure to submit the case diary
to the higher officer and their supervision on the Police officers
from the crime branch. Accused no.1, after going through the
Maharashtra Police Rules-1999, has rightly pointed out that the
said rules never absolve the police officers from crime branch of
their duty to write and maintain the case diary under Section 172
of the Criminal Procedure Code.
127. Section 172 (1) of the Criminal Procedure Code
reads as under:
“S.172. Diary of proceeding in
investigation. – (1) Every police officer
making an investigation under this Chapter
shall day by day enter his proceedings inthe investigation in a diary, setting forth
the time at which the information reached
him, the time at which he began and
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126visited by him and a statement of the
circumstances ascertained through hisinvestigation.”
Section 172 (1) starts with the words “every police officer
making an investigation”. Sub Section 2 and 3 of Section 172 is
in respect of limited use of the diary by the police Officer. The
submissions of Accused No.1 are absolutely correct and it is
mandatory for all the police officer irrespective of their assignment
in any branch to maintain case diary as prescribed under Section
172 of the Criminal Procedure Code.
128. On the point of maintenance of case diary, we rely
on the case of Bhagwant Singh Vs. Commissioner of Police, Delhi,
reported in 1983 Cri. L. J. 1081, in which the Hon’ble Supreme
Court has observed as under:
” The haphazard maintenance of a police case diary not
only does no credit to those responsible for maintaining it but
defeats the very purpose for which it is required to bemaintained. The entries in the police case diary should be
made with promptness, in sufficient detail, mentioning all
significant facts in careful chronological order and with
complete objectivity.”
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The prosecution has also relied on the case of Zahiruddin
Vs. Emperor, reported in AIR (34) 1947 PC 75, in which it is held
that:
“(9) The objection to the conviction founded on the
failure of the police witnesses to keep a diary as
required by Section 172(1), Criminal P. C., may beconveniently disposed of at this stage. It was contended
by learned counsel for the appellant that the evidenceof he officers was inadmissible. This contention was not
supported by reference to the statute or to authority,nor was it the view taken by the Magistrate. In the
opinion of their Lordships, a contravention of Section172, lays the evidence of the police officers open to
adverse criticism and may diminish its value, but it
does not have the effect of making that evidenceinadmissible.”
129. In view of the fact that PW-40-Balkrishna Bhikaji
Agashe did not maintain case diary and for want of evidence
the prosecution has failed to bring on record what the police did
on arresting the accused person from the office of Blue Bird
Detective Agency at or about 10 a.m. to 10.30 a.m. on 7.7.2006 till
they came to be formally arrested by PW-43 Uttam Yadav-PSI of
Deccan Police station. This is indicative of the fact that the
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prosecution has no explanation to offer for the delay in showing
formal arrest of the accused persons and cast a shadow on the
drawing of memorandum under Section 27 of the Evidence Act and
the consequential recoveries of the parts of human body and
further search and seizures.
130. Accused- 2 was sent to Forensic Laboratory,
Bangalore for Narco analysis, 10 to 12 days after her arrest. Brain
mapping test was carried out. The Police record shows the
transcript of the questions ( Exhs. 304, 305 and 306) put by one Dr.
Malini who is specialized in conducting narco test and answers
given to her by Accused no.2 during the narco test. The
prosecution has filed an application Exh.247 on 30.9.2006 that they
do not want to rely on narco test of Accused no.2. However, the
Accused have said that the report of narco test be considered along
with the report of Dr. Malini of Forensic Laboratory, Bangalore.
131. On the point of reliability and admissibility of
narco test, the Learned Trial Judge has committed an error. Though
the learned trial Judge has mentioned in the judgment that the
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129
prosecution did not rely on the narco test, the Learned Judge has
considered the evidence given by PW-46-Investigating Officer on
this point. Learned Trial Judge ought not to have relied upon or
referred any evidence tendered by PW-46 on narco test conducted
by Dr. Malini. The contents of a written opinion given by the
expert are required to be proved by the proving the said
document. That can be done by direct oral evidence of the author
of the document. Hence, the evidence on the narco test was not
admissible except through Dr. Malini who has conducted the narco
test. We find that in the examination in chief, the Learned
Prosecutor put a number of questions to the Investigating officer
PW-46, and the investigating officer went on deposing the contents
and the outcome of the narco test in detail. Such evidence ought
not to have been recorded by the learned Trial Judge. It is the
duty of the trial court to record only the admissible evidence as per
the principles laid down under the Indian Evidence Act.
132. It is clear that the prosecution did not want to
rely on the narco test as the prosecution found that the said
evidence is not going to help them. The Accused wanted to
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130
rely on the CD of narco test and the evidence on the narco test, in
the sessions Court and also at the time of hearing of the appeal. It
is the duty of the prosecution to produce the chargesheet consisting
of the record of their entire investigation. However, whether to rely
on a particular piece of evidence or not is the discretion of the
prosecution and this liberty is given to the prosecutor as the
prosecutor navigates the case of the prosecution and is aware
which evidence is helpful to build up the case and which witness
may dilute the case of the prosecution. The evidence collected by
the Investigating officer is to be properly arranged and then to be
presented in the Court. While doing so, the prosecutor has to decide
the sequence in which the witnesses are to be examined. The
prosecutor may objectively delete any witness to keep back
irrelevant or inadmissible evidence collected by the police. The
prosecution enjoys the privilege to be selective to produce such
evidence to reveal the truth of the case. In the present case
the police have formed an opinion that the evidence of narco
analysis is of no worth due to the falsity involved in it. If at all
the defence wanted to rely on it, the defence could have examined
Dr. Malini. However, that was not done and, therefore, we cannot
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consider any such evidence. The learned Trial Judge should not
have recorded that evidence and should have refrained himself from
discussing the said evidence. We would like to mention that
whether the narco test gives only a lead to the police for the
investigation or is substantive evidence admissible in the trial is the
issue pending before the Supreme Court. We do not express any
opinion on this issue as the Supreme Court is in seisin of that
matter.
133. The Learned Trial Judge has considered that the
demand of ransom amount of Rs. 25 lakhs was the motive for
abduction. Accused No.1 argued that it was not so. That, she
argued, can be seen from the fact that during the conversation
with Dr. Smita Mahajan the culprits did not tell her where and how
the money was to be handed over. There was no repetition of the
demand. Hence, in the absence of proof of motive, it was argued
that the edifice of the story of murder is without any foundation.
It is expected from the prosecution to bring the motive on record
to prove the offence. However, failure of the prosecution to establish
the motive will not destroy the entire case of the prosecution. On
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certain occasions, prosecution experiences an impasse as motive is
so deep or mercurious to detect and collect. Under such
circumstances, if offence of murder is proved with other evidence,
then absence of motive in the case will not be fatal to the case
of the prosecution. In the case of Manikumar Thapa Vs. State of
Sikkim, reported in (2002) 7 Supreme Court Cases 157, when motive
was absent and corpus was also not found, the Supreme Court has
taken a following view:
“Assuming that this evidence is insufficient to establish
the motive for murder even then if the prosecution isable to establish beyond all reasonable doubt from
other circumstantial evidence that it is the Accused
(including the appellant) alone who could havecommitted the murder, the absence of motive will not
hamper a safe conviction.”
It is the prosecution’s case that the demand of money was
verbally made by the Accused to PW-11, pursuant to Dr. Deepak
Mahajan’s abduction. Hence demand of ransom was expressed. From
such expression, the intention can be gathered. Subsequently
change in the intention may be possible. In such a case the proof
of such motive cannot be brought on record. This would not be
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133
fatal to the prosecution. At this state we may note that though the
conversation with the complainant and the suspects took place in
the presence of Police officers they failed to record the same, which
could have helped the prosecution in identifying the suspects as
accused before the Court.
134. The above discussion takes us to the final
conclusion, the heinous crime has been committed but when there
is no satisfactory proof of the guilt we have to take safe approach
and we are constrained to give benefit of doubt to the Accused. We
have no hesitation to conclude that the appellants/accused are guilty
of having committed offence under Sections 364-A, 419, 465, 468, 328,
342 and 187 read with 120(b) of the Indian penal Code. The finding
of the Trial Court is not disturbed in respect of extent of p unishment,
except under Section 364-A of the Indian Penal Code. In so far as
the charges of having committed offence under sections 302 and 201
read with Section 120(b) of the IPC are concerned, the prosecution
having failed to establish their guilt beyond reasonable doubt, the
Accused are entitled to be acquitted of the said charges and to this
extent the findings of the Trial Court are quashed and set aside.
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On 30 th September, 2009
135. After pronouncing our judgment we have called
upon the prosecution and the appellants to address us on the point
of sentences particularly in respect of offence under Section 364-A
read with Section 120-B of the IPC, wherein the Trial Court has
imposed capital punishment and has submitted the matter to the
High Court for confirmation.
136.
The learned Special Public Prosecutor submitted that
in view of the fact that this Court has acquitted the appellants of
the charge of having committed murder and causing disappearance
of evidence, the State do not want to press capital sentence in so
far as offence under Section 364 A is concerned and as sentence
for life is the minimum punishment that would meet ends of justice.
The learned Special Public Prosecutor submitted that the discretion
used by the trial Court in case of imposing punishment on various
other counts does not appear to be unreasonable and that the
learned trial Court has kept in mind the principal of proportionality
while imposing the punishment and, therefore, it does not call for
any interference particularly when this Court in appeal has upheld
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the conviction of the appellants by holding them guilty of such
charges.
137. Mrs. Leena Devasthali and Ms. Deepti Devasthali
submitted that they not only want but insist for capital punishment
being imposed on them by sentencing them to death and say they
should be punished with death. For taking such a stand this Court
made a specific query from them as they are appearing in person as
to why they are insisting that they should be punished with death
as the Court want to understand whether this submission is made
because the Court has partly allowed their appeal or otherwise.
Amongst the appellants Ms. Deepti Devasthali (original accused no. 1)
stated that if death sentence is awarded their appeal before the
Supreme Court will be taken up on priority otherwise they will be
required to languish in jail and it is uncertain when the Supreme
Court will take up their appeal for hearing and by the time their
appeal is taken up for hearing and in case they are acquitted they
will come out as free citizens by actually undergoing the sentence
of life imprisonment.
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136
138. In our view, this cannot be the basis for imposing
extreme penalty of death. Therefore, such a contention cannot be
accepted.
139. On going through the judgment of the trial Court,
what we find is that the trial Court while justifying imposing of
capital punishment on both the counts i.e. under section 364-A and
302 of the IPC read with Section 120 B, has taken into consideration
decisions of the Supreme Court on the issue, viz., Mohan and others
vs. State of Tamilnadu, reported in 1998 (5) Supreme Court Cases
336, Machchisiingh vs. State of Punjab, reported in 1983 Supreme
Court Cases (Cri.) 681, Bachan Singh vs. State of Punjab reported in
1980 Supreme Court 898, Renuka @ Rinku and another vs. State of
Maharashtra reported in A.I.R. 2006 and Daya Nand Bisto vs. State
of Orissa reported in 2003 (5) Supreme Court Cases page 74 which
reveal that the trial Court was well conversant in respect of the
guidelines in order to take a decision as to whether in the given
facts and circumstances of the case, death sentence deserves to be
imposed or not? What we find from the reasoning given by the
trial Court is that though the trial Court was conscious of the fact
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that death sentence in murder case is permissible in rarest of rare
cases and only for special reasons, it has erred in ascertaining the
existence of special reasons in that context and has given undue
importance to matters which do not require consideration for the
said purpose, particularly when it has taken into consideration
family background of the deceased and observed that one can
understand the pain and agony of the father that he has to perform
the last rites of his son who was brought up as a doctor and he
was killed mercilessly while he was leading well to do life apart
from being blessed with two young children left behind as orphans.
140. Further, it laid unnecessary emphasis on the
evidence of PW-12 Prabhakar Phalgune, brother of accused Leena,
who in his evidence rather attacked the character of his sister and
that she was a problematic child and on one occasion both the
accused have approached Dr. Deepak Mahajan to give certificate
that Maltibai’s (i.e. mother of accused no. 2) death was un-natural
to bring him and their other sister Jayashri in trouble and also
erred in taking into consideration the evidence of the Investigating
Officer PW-46 that the appellants-accused have adopted the same
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modus operandi in committing the crime like Jassi and Sardarji in
Crime No. 630/2006 registered with Deccan Police Station. In our
view this was not germane for taking into consideration whether the
accused deserve to be sentenced to death.
141. The Trial Court should understand that Section 302,
I.P.C. casts a heavy duty on the Court to choose between death and
imprisonment for life. When the Court is called upon to choose
between the convict’s cry ‘I want to live’ and the prosecutor’s
demand ‘he deserves to die’ it goes without saying that the Court
must show a high degree of concern and sensitiveness in the choice
of sentence. In the justice delivery system several difficult decisions
are left to the presiding officers, sometimes without providing the
scales or the weights for the same. In cases of murder, however,
since the choice is between capital punishment and life
imprisonment the legislature has provided a guideline in the form of
sub-sec (3) of S. 354. This provision makes it obligatory in cases of
conviction for an offence punishable with death or with
imprisonment for life or for a term of years to assign reasons in
support of the sentence awarded to the convict and further ordains
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139
that in case the judge awards the death penalty, “special reasons”
for such sentence shall be stated in the judgment. When it casts a
duty on the judge to state reasons, it follows that he is under a
legal obligation to explain his choice of the sentence. It may seem
trite to say so, but the existence of the ‘special reasons clause’ in S.
354(3), Cr.P.C. implies that the Court can in fit cases impose the
extreme penalty of death which negatives the plea that there never
can be a valid reason to visit an offender with the death penalty,
no matter how cruel, gruesome or shocking the crime may be. In
order that the sentences may be properly graded to fit the degree
of gravity of each case, it is necessary that the maximum sentence
prescribed by law should be reserved for the rarest of rare cases
which are of an exceptional nature. Unless the nature of the crime
and the circumstances of the offender reveal that the criminal is a
menace to the society and the sentence of life imprisonment would
be altogether inadequate, the Court should ordinarily impose the
lesser punishment and not the extreme punishment of death which
should be reserved for exceptional cases only. (Alauddin Mian v.
State of Bihar, AIR 1989 SC 1456).
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140
142. In our opinin, the learned Special Public Prosecutor,
has been quite fair while submitting that as this Court has acquitted
the appellants-accused of the charge of committing murder of Dr.
Mahajan by extending benefit of doubt, the State does not insist for
capital punishment for the offence under Section 364 A of IPC.
143. Section 364-A has been inserted by Section 2 of
Amending Act 42 of 1993 providing severe punishments in cases of
kidnapping or abduction for ransom which says that whoever
kidnaps or abducts any person or keeps a person in detention after
such kidnapping or abduction and threatens to cause death or hurt
to such person, or by his conduct given rise to a reasonable
apprehension that such person may be put to death or hurt, or
causes hurt or death to such person in order to compel the
Government or any foreign State or international inter-governmental
organisation or and other person to do or abstain from doing any
act or to pay a ransom as demanded by the accused. The later part
of Section 364 – A came to be inserted by section (2) of the
Amending Act 42 of 1995 which lay emphasis on “any foreign State
or international inter-governmental organisation” which is indicative
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of the fact that the Legislature has taken cognizance of activities
like kidnapping or abduction being made a serious offence on par
with other offences under the Indian Penal Code which are
punishable with death or imprisonment for life as it was noticed
that kidnappings and abductions are at times done of certain
persons in order to compel the government or foreign State by
involving inter-governmental organisations apart from any other
persons either by terrorist organisation or organised crime syndicate
and in such cases death sentence may be justified, otherwise
imprisonment for life sufficiently meets the ends of justice. As in
the earlier section i.e. Section 364 what is contemplated is the
person charged with the offence had the intention at the time of
kidnapping or abducting that the person kidnapped or abducted will
be killed or may be so disposed of as to be put in danger of being
murdered and which provides for imposition of punishment of
imprisonment for life or rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.
144. In the facts and circumstances of the present case
as the accused-appellants have been charged with the offence under
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Section 364 A and this Court has upheld the finding of the trial
Court on this count, imprisonment for life would meet the ends of
justice.
145. In so far as the sentence imposed by the trial Court
on finding the appellants-accused guilty of the other charges is
concerned, we find no reason to interfere as the trial Court has
taken into consideration the principles of proportionality and
imposed sentence of imprisonment with appropriate variation in the
period of imprisonment and fine. Hence, we have no hesitation to
pronounce the following sentences for the offences for which we
have held the appellants-accused guilty and they stand convicted for.
Hence we proceed to pass the following order:
1. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 364-A read with Section 120-B of the Indian Penal
Code and they are sentenced to imprisonment for life and to
pay fine of Rs.10,000/- (Rs. Ten thousand) each, in default to
suffer imprisonment for three months.
2. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 387 read with Section 120-B of the Indian Penal Code
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143
and they are sentenced to undergo rigorous imprisonment
for seven years to pay fine of Rs.10,000/- (Rs. Ten thousand)
each, in default to suffer imprisonment for three months.
3. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 419 read with Section 120-B of the Indian Penal Code
and they are sentenced to undergo rigorous imprisonment for
three years to pay fine of Rs.10,000/- (Rs. Ten thousand) each,
in default to suffer imprisonment for three months.
4.
Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 465 read with Section 120-B of the Indian Penal Code
and they are sentenced to undergo rigorous imprisonment for
two years to pay fine of Rs.5,000/- (Rs. Five thousand) each, in
default to suffer imprisonment for three months.
5. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 468 read with Section 120-B of the Indian Penal Code
and they are sentenced to undergo rigorous imprisonment
for five years to pay fine of Rs.10,000/- (Rs. Ten thousand)
each, in default to suffer imprisonment for three months.
6. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
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Section 471 read with Section 120-B of the Indian Penal Code
and they are sentenced to undergo rigorous imprisonment
for three years to pay fine of Rs.3,000/- (Rs. Three thousand)
each, in default to suffer imprisonment for three months.
7. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 328 read with Section 120-B of the Indian Penal Code
and they are sentenced to undergo rigorous imprisonment for
seven years to pay fine of Rs.10,000/- (Rs. Ten thousand) each,
in default to suffer imprisonment for one months.
8. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held guilty of the offence punishable under
Section 342 read with Section 120-B of the Indian Penal Code
and they are sentenced to undergo rigorous imprisonment for
one years to pay fine of Rs.1,000/- (Rs. One thousand) each,in
default to suffer imprisonment for one months.
9. Substantive sentences awarded to both the accused shall run
concurrently.
10. If fine amount is paid, then the amount be paid to the
children of the deceased, viz. Arjun Deepak Mahajn and
Rashmi Deepak Mahajan.
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11. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali are held not guilty of the offences punishable
under Section 302 read with Section 120-B and Section 201
read with Section 120-B of the Indian Penal Code and both of
them are acquitted for the same.
12. Accused No.1 Deepti Anil Devasthali and Accused No.2 Leena
Anil Devasthali, both are in jail since 7.7.2006 and they are
entitled for set off under Section 428 of the Criminal
Procedure Code.
13.
The Appeal is partly allowed.
14. The submission for confirmation of capital sentence by the Trial
Court i.e. Confirmation Case No. 1 of 2008 is dismissed.
15. The Muddemal seized in the case be disposed of in terms of
the order passed by Trial Court after the period of appeal is
over.
16. The convicts be lodged in Yerwada Central Prison after 9 th
October, 2009.
17. Certified copy of the judgment and order would be furnished
to the appellants on or before 9th October, 2009, free of cost.
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18. The appellants who are appearing in person are informed that
they have a right to prefer appeal against the judgment and
order of the Court to the Supreme Court of India at New
Delhi through their Advocate or Superintendent of the Prison.
19. The appellants are also informed that they can take assistance
of the Supreme Court Legal Aid Committee for preferring their
appeal and represent them before the Hon’ble Supreme Court
of India, if they so
( MRIDULA BHATKAR, J) (J. N. PATEL, J.
jpc/-
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