{"id":114360,"date":"2009-09-30T00:00:00","date_gmt":"2009-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/leena-anil-devastnali-vs-state-of-maharashtra-on-30-september-2009"},"modified":"2016-04-17T01:16:44","modified_gmt":"2016-04-16T19:46:44","slug":"leena-anil-devastnali-vs-state-of-maharashtra-on-30-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/leena-anil-devastnali-vs-state-of-maharashtra-on-30-september-2009","title":{"rendered":"Leena Anil Devastnali vs State Of Maharashtra on 30 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Leena Anil Devastnali vs State Of Maharashtra on 30 September, 2009<\/div>\n
Bench: J.N. Patel, Mridula Bhatkar<\/div>\n
                                           1\n\n            IN THE HIGH COURT  OF JUDICATURE AT BOMBAY\n                      CRIMINAL APPELALTE JURISDICTION\n\n\n\n\n                                                                                     \n                       CRMINAL APPEAL NO. 173 OF 2008\n                                ALONGWITH\n\n\n\n\n                                                             \n                       CONFIRMATION CASE NO.1 OF 2008\n\n\n    Deepti Anil Devasthali and\n\n\n\n\n                                                            \n    Leena Anil Devastnali                             .. Appellants\n    Vs. \n    State of Maharashtra                              .. Respondent\n\n\n\n\n                                               \n    Ms. Rohini Salin, Amicus curiae\n    Convicts\/Appellants  present in person\n                               \n    Shri Mundargi, Special Prosecutor with  Ms. U. K. Kejriwal and \n    Ms. S.D. Shinde APPs. For the State \n    Mr. S.V. Marwadi for the Applicant  in Application No.1 of 2008\n                              \n                                CORAM: J. N. Patel &  \n                                       Mrs. Mridula Bhatkar, JJ.\n<\/pre>\n
                                DATE:  30th September, 2009<\/p>\n
     P. C . (Mrs. Mridula Bhatkar, J.)<\/p>\n
    1.              Accused   no.1   Deepti   Anil   Devasthali   (daughter   of <\/p>\n
    Accused no.2) and Accused no.2 Leena Anil Devasthali  are convicted <\/p>\n
    by the learned Ad Hoc Sessions Judge,Pune by judgment and order <\/p>\n
    dated 27th  December, 2007 for committing the offence of abduction <\/p>\n
    and   murder   of   one   Dr.Deepak   Mahajan   alongwith   other   offences.\n<\/p>\n
    They   are   sentenced   to   death   for   the   offences   of   abduction   for <\/p>\n
    ransom and murder. Hence this appeal against the conviction filed <\/p>\n
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\n                                            2<\/span><\/p>\n
    by both the Accused and the  reference  for confirmation.\n<\/p>\n
    2.              As per the case of the prosecution Accused no.1 Deepti <\/p>\n
    and Accused no.2  Leena who are related as daughter and mother <\/p>\n
    conspired     to   abduct     Dr.   Deepak   Mahajan   in   order   to   demand <\/p>\n
    ransom and commit his murder. Both the ladies started a detective <\/p>\n
    agency   by   name   Blue   Bird   Detective  Agency   having   its  office   at <\/p>\n
    Shaniwar Peth, Near Omkareshwar Temple, Pune. On 11\/6\/2006 they <\/p>\n
    gave   an   advertisement   in   newspaper   Sakal   that   they   wanted   to <\/p>\n
    employ young, healthy and clever men to work in their detective <\/p>\n
    agency. In response to their advertisement, PW-3 Pravin Dnyaneshwar <\/p>\n
    Kamble,   PW-2-   Ashok   Jagannath   Magar,   PW-1   Ketan   Pramod   Kale <\/p>\n
    and Court witness(CW-1) Rahul Abhimanyu Bhosale  amongst others <\/p>\n
    have applied and were interviewed by Accused no.1 and Accused no.\n<\/p>\n
    2. Accused no.1 and Accused no.2  did not disclose their identity and <\/p>\n
    real names but they represented to be one Joshi Madam and Miss <\/p>\n
    Pradnya Kale. In furtherance of the conspiracy out of these four <\/p>\n
    persons PW-2 Ashok Jagannath Magar had accompanied Accused no.\n<\/p>\n
    1   Deepti   to   Yashwantrao   Chavan   Memorial   Hospital   (in   short <\/p>\n
    Y.C.M.Hospital)   and   introduced   himself   as   Yogendra   Shirke   to   Dr. <\/p>\n
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\n                                             3<\/span><\/p>\n
    Deepak   Mahajan.   While   visiting   Y.C.M.Hospital   Accused   no.1   had <\/p>\n
    changed her appearance with Wig, dentures, and spectacles, looking <\/p>\n
    like   a   character   in   one   Hindi   Serial   which   was   aired   on   the <\/p>\n
    television earlier by name Jassi Jaisi Koi Nahi.\n<\/p>\n
    3.              In the year 2006 Dr. Deepak Mahajan was working as <\/p>\n
    the   Head  of Orthopedic Department  in Y.C.M.Hospital at  Pimpri, <\/p>\n
    Pune.   On   29\/6\/2006,   Accused   No.1   wearing   wig,   spectacles   and <\/p>\n
    dentures had visited YCM Hospital and handed over one envelope <\/p>\n
    to his colleague Dr. Ajay Bajirao Sonawane with message that the <\/p>\n
    said   envelope   was     to   be   given   to   Dr.   Deepak   Mahajan.   It   was <\/p>\n
    containing   a   letter   from   Omkar   Charitable   Trust   requesting   Dr. <\/p>\n
    Deepak   Mahajan   to   accept   a   post   of   Honorary   Surgeon   in   the <\/p>\n
    hospital proposed to be run by the said Trust on honorarium of Rs.\n<\/p>\n
    15,000\/- per month. On 30.6.2006 Dr.Deepak Mahajan was contacted <\/p>\n
    in Y.C.M.hospital by Accused No.1 and PW-2 Ashok Jagannath Magar <\/p>\n
    and who introduced himself as Yogesh Shirke, the signatory of the <\/p>\n
    said letter and they both again handed over copy of a similar letter <\/p>\n
    to Dr.Mahajan. Dr.Mahajan sought time to think over the offer.\n<\/p>\n
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\n                                            4<\/span><\/p>\n
    4.              PW-1 Ketan Pramod Kale and CW-1 Rahul Abhimanyu <\/p>\n
    Bhosale were employed in the Blue Bird Detective Agency by the <\/p>\n
    Accused. They were told that they have to abduct one doctor who <\/p>\n
    was involved in kidney scandal  and he was to be interviewed by <\/p>\n
    the   Head   of   their   detective   agency.   On   1\/7\/2006   the   Accused <\/p>\n
    alongwith PW-1 Ketan Kale and C.W-1 Rahul Bhosale  searched for a <\/p>\n
    lodging house and booked room no.7 in one lodge named Shantanu <\/p>\n
    Lodge   on   2\/7\/2006.   On   the   previous   day   i.e.   on   1\/7\/2006   the <\/p>\n
    Accused with the help of P.W.1 Ketan Kale and C.W-1 Rahul Bhosale <\/p>\n
    performed   rehearsal   of   overpowering   the   doctor   as   soon   as   he <\/p>\n
    would enter the room. Accused no.1 told P.W.1 Ketan Kale and CW-1 <\/p>\n
    Rahul   Bhosale     how   to   hold   the   mouth   and   legs   of   Dr.Deepak <\/p>\n
    Mahajan   after   the   signal   was   received   by   them.     It   is   the <\/p>\n
    prosecution’s   case   that   the   Accused   in   the   course   of   their <\/p>\n
    preparation   had   purchased     drug   by   name   Thisol   Sodium\/ <\/p>\n
    Pentathol\/Thipentone   from   the   chemists   by   name   Darpan   and <\/p>\n
    Tashiba Medical & General Stores, Nasik. This drug is used to give <\/p>\n
    anesthesia   and   also   to   put   the   animals   to   sleep   in   Veterinary <\/p>\n
    hospitals.\n<\/p>\n
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\n                                            5<\/span><\/p>\n
    5.              On 2\/7\/2009 the Accused persons contacted Dr.Deepak <\/p>\n
    Mahajan and invited him for lunch at Durvankur Hotel, at Pune.\n<\/p>\n
    However,the   doctor   did   not   accept   the   invitation   for   lunch   but <\/p>\n
    agreed   to   have   meeting   at   around   4’O   clock.   Dr.Mahajan   had <\/p>\n
    discussion with his wife  Dr. Smita Mahajan  about this offer from <\/p>\n
    Omkar Charitable Trust and his meeting with the Trust people. Dr. <\/p>\n
    Deepak Mahajan left  home around 3.45 p.m. on an Activa scooter <\/p>\n
    and went to Shantanu Lodge. At that time Accused no.1 Deepti who <\/p>\n
    had changed her identity like Jassi, received him at Shantanu Lodge <\/p>\n
    and brought him to room no.7 where CW-1 Rahul Bhosale and PW-1 <\/p>\n
    Ketan Kale shut his mouth and held him as per their plan. Accused <\/p>\n
    no.1 Deepti injected drug Thiosol Sodium in the wrist of Dr.Mahajan <\/p>\n
    due to which   Dr. Deepak Mahajan became unconscious within a <\/p>\n
    minute in the said room. Accused no.1 with the help of PW-1 Ketan <\/p>\n
    Kale and CW1-Rahul Bhosale lifted him and put him in her Matiz <\/p>\n
    Car with changed  registration number, which she had parked at the <\/p>\n
    gate of the Shantanu Lodge. Dr.Mahajan was kept in sitting position <\/p>\n
    on the back side seat between Ketan Kale and Rahul Bhosale and <\/p>\n
    Accused no.1 drove her Car towards Karve road, where Accused No.2 <\/p>\n
    was waiting for them. Ketan Kale and Rahul Bhosale were asked to <\/p>\n
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\n                                             6<\/span><\/p>\n
    get down from the vehicle and both the Accused along with Dr. <\/p>\n
    Deepak Mahajan drove away.\n<\/p>\n
    6.              Dr.   Smita   Mahajan,   wife   of   Deepak   Mahajan   was <\/p>\n
    worried as her husband was not responding on his phone and some <\/p>\n
    other   person  spoke   to   her   and  threatened   in  muffled   voice   that <\/p>\n
    doctor was abducted by them and told her to follow their orders, if <\/p>\n
    she wanted him alive. Dr. Smita Mahajan thereafter contacted Dr. <\/p>\n
    Parag Mahajan, the brother of Dr. Deepak Mahajan and Dr. Deepak’s <\/p>\n
    brother in law Mr. Phansalkar who also tried to contact Dr. Deepak <\/p>\n
    Mahajan   on   his   cell.   However,   they   could   not.   When   Dr.Smita <\/p>\n
    Mahajan again contacted the cell phone of Dr. Deepak Mahajan the <\/p>\n
    person on the other end told that they had abducted Dr .Deepak <\/p>\n
    Mahajan   and   want   a   sum   of   Rs.25   Lacs   .   Dr.Smita   Mahajan <\/p>\n
    thereafter   rushed   to   Prabhat   Road   police   chowky   under   Deccan <\/p>\n
    Gymkhana Police station and lodged complaint about missing and <\/p>\n
    abduction of her husband and demand of ransom. P.S.I. Mr .Yadav <\/p>\n
    registered the offence at C.R.No. 386\/06 under sections 366,384 of the <\/p>\n
    Indian  Penal  Code and  forwarded  it  to Deccan Gymkhana police <\/p>\n
    station   for   further   investigation.   Police  Inspector   Shri.V.R.Patil  took <\/p>\n
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\n                                             7<\/span><\/p>\n
    charge of the investigation and police officer Mr. Agashe from Anti <\/p>\n
    Extortion Cell also tried to find out the details of the phone number <\/p>\n
    9960224773    which   was   written   on  the  backside  of  the  letter   of <\/p>\n
    Omkar Charitable Trust.   On that basis Mr.Agashe could trace P.W.3 <\/p>\n
    Pravin   Kamble   who   had   come   for   the   interview   in   Blue   Bird <\/p>\n
    Detective Agency. On the same night police could trace Shantanu <\/p>\n
    Lodge  and   found  that   Dr.   Deepak  Mahajan   had   visited   Shantanu <\/p>\n
    lodge   on   that   day.     On   7.7.2006   with   the   help   of   PW-3   Pravin <\/p>\n
    Kamble and other clues they laid a trap in front of the office of <\/p>\n
    Blue Bird Detective Agency. On   the very day, Accused no.1 and 2 <\/p>\n
    visited   their   office   of   Blue   Bird   agency   and   they   came   to   be <\/p>\n
    arrested   by the police in the morning. Immediately thereafter on <\/p>\n
    the basis of disclosure by Accused no.2 parts of the body of Deepak <\/p>\n
    Mahajan  except the head and hands were recovered by the police <\/p>\n
    under panchanama from different spots at Katraj Ghat and some <\/p>\n
    parts of the body were found in two plastic bags at Bhosari. The <\/p>\n
    Police   in   the   presence   of   Panchas   prepared   an   Inquest     and <\/p>\n
    Recovery   Panchanamas.   The   parts   of   Human   Body   were   sent   for <\/p>\n
    autopsy   to   Sasoon   Hospital   Pune.   Thereafter   the   offence   under <\/p>\n
    section   302   of   the     Indian   Penal   Code   was   registered   against <\/p>\n
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\n                                             8<\/span><\/p>\n
    Accused no.1 and 2 alongwith offences under Section 366 and  384 <\/p>\n
    of the Indian Penal Code and they were arrested for an offence of <\/p>\n
    murder   of   Dr.Deepak   Mahajan.   The   police   during   the   course   of <\/p>\n
    investigation recovered articles from the room at Uttamnagar under <\/p>\n
    panchanama and also searched the residence of the Accused persons <\/p>\n
    in  Shrikrishna Watika, at Dahisar. The police  were able to locate <\/p>\n
    Chemist   Darpan   and   Tashiba     at   Nashik   from   where   the   drug <\/p>\n
    sodium thiosol was purchased by the Accused.   In   the course of <\/p>\n
    investigation,  police recorded statements of witnesses and recovered <\/p>\n
    property   and     Activa   Scooter.     Matiz   Car   was   recovered   in   the <\/p>\n
    month   of   September,  2006   i.e.   two  months  after  the  date  of   the <\/p>\n
    incident. The police filed   chargesheet against   Accused No.1 and <\/p>\n
    Accused No.2. After committal of the case learned Ad Hoc Additional <\/p>\n
    Sessions  Judge,  Pune  framed  charges  and  tried  the  Accused.  The <\/p>\n
    Accused persons did not engage advocate of their choice. So the <\/p>\n
    learned trial Judge offered and made them aware of the facility of <\/p>\n
    the legal aid service. However,both the ladies refused to avail of <\/p>\n
    legal aid facility. Accordingly the learned trial Judge has maintained <\/p>\n
    the   record   and   finally   went   on   with   the   trial   and   examined   46 <\/p>\n
    witnesses. The Accused had cross examined first 12 to 13 witnesses <\/p>\n
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\n                                           9<\/span><\/p>\n
    and thereafter they  declined to cross examine other witnesses.  The <\/p>\n
    learned Trial Judge sentenced both the Accused to death on count <\/p>\n
    of abduction for  ransom and murder.  The trial court also awarded <\/p>\n
    different punishments for the charges, they were found guilty.\n<\/p>\n
    7.             When the Criminal appeal filed by the  Accused  was <\/p>\n
    heard  by this Court, the Division Bench found certain lapses in the <\/p>\n
    trial viz. some important witnesses were not cross examined. One <\/p>\n
    Rahul Bhosale deserved   to be examined. Therefore, it held that <\/p>\n
    Accused   should   have   been   given   proper   opportunity   to   defend <\/p>\n
    themselves. The Division Bench remanded the case for recording of <\/p>\n
    evidence and cross examination of material witnesses under section <\/p>\n
    367 of the Criminal Procedure Code.\n<\/p>\n
    8.             The learned Sessions Judge, thereafter recalled PW-1, <\/p>\n
    PW-4, PW-6, PW-8, PW-30, PW-32, PW-33, PW-40, PW-43, PW-5 and <\/p>\n
    PW-46 and examined Rahul Bhosale as Court Witness No.1. Both the <\/p>\n
    Accused, in the second round of the trial, engaged their respective <\/p>\n
    Advocates. Cross examination of the witnesses recalled was taken <\/p>\n
    extensively.   Both,   the   prosecution   and   the   Accused,   were   given <\/p>\n
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\n                                           10<\/span><\/p>\n
    opportunity   to   cross   examine   the   Court   Witness   (CW-1)   Rahul <\/p>\n
    Bhosale. After recording of evidence and further statement of the <\/p>\n
    Accused under Section 313, the matter was sent to the High Court.\n<\/p>\n
    The appeal  and the reference thereafter came to be assigned  for <\/p>\n
    hearing  before our Bench by  Hon’ble the Chief Justice.\n<\/p>\n
    9.              When  we took up the appeal and  the   submission <\/p>\n
    for  confirmation of capital punishment it come to our notice that <\/p>\n
    both the Accused have discharged their previous Counsel and while <\/p>\n
    answering   question   No.   85   of   their   further     statement   recorded <\/p>\n
    under Section 313 of the Criminal Procedure Code,  they had  stated <\/p>\n
    that  they wanted to give evidence on oath. However,  they did not <\/p>\n
    press for the same before us but insisted     that they wanted to <\/p>\n
    argue   in person. However,   this being an appeal against capital <\/p>\n
    sentence and a confirmation matter, it was our duty to   take care <\/p>\n
    that  the Accused  should be adequately defended through counsel.\n<\/p>\n
    So,  Ms. Rohini Salian was appointed as amicus curiae   to defend <\/p>\n
    them.  The Accused,  though   did not make any  grievance about <\/p>\n
    appointment of the amicus curiae, insisted that they be also given <\/p>\n
    opportunity to argue their case in person as it is a matter of their <\/p>\n
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\n                                            11<\/span><\/p>\n
    life and death, which was  allowed.\n<\/p>\n
    10.                The Sessions Judge did  endeavor to give legal aid <\/p>\n
    to appoint   Advocate from the Panel of the legal aid   which is <\/p>\n
    brought on record by examining PW-38-Sanjay Kadu.  However, the <\/p>\n
    Accused did not want  him  to  represent them  in the Court  but <\/p>\n
    wanted only   his legal advice.   The lawyer (PW-38) has stated on <\/p>\n
    oath that he was not in position to give correct legal advice without <\/p>\n
    going through the Court papers and  cooperation from the  Accused <\/p>\n
    and therefore, some important witnesses were not cross examined <\/p>\n
    in the first round of the Trial and the Accused were not properly <\/p>\n
    defended in the beginning.\n<\/p>\n
    11.                Evidence tendered by the Prosecution is of a very <\/p>\n
    peculiar nature. The facts and circumstances  brought on record of <\/p>\n
    this   case     reflect   on     the     manner   in   which   investigation   was <\/p>\n
    carried     out   leaving a number     of loose ends   between   the <\/p>\n
    commission of offence and the   Accused.   In the present case the <\/p>\n
    crime is committed   not in a usual\/conventional manner, but the <\/p>\n
    crime   has   been   committed   by     exploring   novel   and   different <\/p>\n
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\n                                          12<\/span><\/p>\n
    methods.   Peculiar   situations  have    come  on  record   sufficient    to <\/p>\n
    mislead everybody.\n<\/p>\n
    12.             In the present case, the main attack of defence was <\/p>\n
    on   the dishonest, shoddy   and incomplete investigation   by the <\/p>\n
    Police. The   defence     has highlighted   some points to which the <\/p>\n
    prosecution could not give any answer.  The lacunae reflecting the <\/p>\n
    quality of the investigation   and how far they are fatal   to the <\/p>\n
    prosecution  is to be examined.\n<\/p>\n
    13.             Accused   Nos.   1   and   2   have   been   charged   for   the <\/p>\n
    offence of conspiracy under Section 120-B of the IPC in committing <\/p>\n
    offence  viz. of cheating by  impersonation under Section, 419 of the <\/p>\n
    IPC,  forgery under Sections 564, 468 of the IPC and 471 of the IPC, <\/p>\n
    for causing hurt  with intent  to commit offence under  Section 328 <\/p>\n
    of the IPC,  wrongful confinement under Section 342 of the IPC, for <\/p>\n
    extortion and murder under Sections  387, 302 of the IPC and under <\/p>\n
    section 201 of the IPC for causing   disappearance of evidence or <\/p>\n
    giving false information to screen offender.  Abduction under Section <\/p>\n
    346-A of the IPC. Causing hurt  under Section 328 of the IPC  and <\/p>\n
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\n                                            13<\/span><\/p>\n
    of murder under section 302 of the IPC are major offences  and the <\/p>\n
    evidence is much interlinked with these charges.\n<\/p>\n
    Sr. No. Points for determination                            Findings
\n    (1)     Does   the   prosecution   prove   that   the            Yes
\n            Accused   No.1   and   2     have   conspired   to <\/p>\n
            abduct   Dr.   Deepak   Mahajan   and   have
\n            abducted     in   order     that   he   may   be
\n            murdered  or may  so disposed of as to be
\n            put   in   danger   of   being   murdered   under <\/p>\n
            Section 364-A read with  Section 120 (b) of
\n            the Indian penal Code.\n<\/p>\n
             Does   the   prosecution   prove   that   the                   Yes
\n             Accused   No.1   and   2   have     committed <\/p>\n
             offence   of extortion  under Section 387-A
\n             read   with     Section   120   (b)   of   the   Indian
\n             penal Code.\n<\/p>\n
    (2)      Does   the     prosecution   prove   that   the                 Yes<\/p>\n
             Accused   have     conspired       and   have
\n             committed   an   offence   of   cheating   by <\/p>\n
             personation,   punishable   under   Section   419
\n             read with   Section 120 (b) of the   Indian
\n             penal Code.\n<\/p>\n
    (3)      Does   the   prosecution   prove   that   the                   Yes
\n             Accused   have   conspired   and   have
\n             committed   forgery     for   the   purpose   of
\n             cheating and thereby   have committed an <\/p>\n
             offence punishable   under Section 465\/468
\n             read with   Section 120 (b) of the   Indian
\n             penal Code.\n<\/p>\n
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\n                                       14<\/span><\/p>\n
    (4)   Does   the   prosecution   prove   that   the                Yes
\n          Accused Nos. 1 and 2 have   committed an
\n          offence   of   causing   hurt   with   intent   to <\/p>\n
          commit an offence punishable under Section
\n          328   read   with     Section   120   (b)   of   the <\/p>\n
          Indian penal Code.\n<\/p>\n
    (5)   Does   the   prosecution   prove   that   the                Yes
\n          Accused Nos. 1 and 2 have  conspired and
\n          have   committed   an   offence     of   confining <\/p>\n
          wrongfully   Dr.   Deepak   Mahajan   which   is
\n          punishable   under   Section   342   read   with
\n          Section 120 (b) of the  Indian penal Code.\n<\/p>\n
    (6)   Does   the   prosecution   prove   that   the                Yes
\n          Accused Nos. 1 and 2 have   committed an <\/p>\n
          offence of extortion   by putting Dr. Smita
\n          Mahajan  under     the  fear   of   death   of   Dr.
\n          Deepak Mahajan and thereby committed an <\/p>\n
          offence punishable under Section  387 read
\n          with   Section 120 (b) of the   Indian penal
\n          Code.\n<\/p>\n
    (7)   Does   the   prosecution   prove   that   the                No
\n          Accused Nos. 1 and 2 have committed an <\/p>\n
          offence   of   causing   disappearance   of
\n          evidence to screen the offender, punishable
\n          under Section 201 read with   Section 120\n<\/p>\n
          (b) of the  Indian penal Code.\n<\/p>\n
    (8)   Does     the   prosecution   prove   that     Dr.            No
\n          Deepak Mahajan was murdered for ransom
\n          by accused person?\n<\/p>\n
    (9)   Does   the   prosecution   prove   that   the                No
\n          Accused have committed offence of murder
\n          punishable   under   Section   302   read   with
\n          Section 120 (b) of the  Indian penal Code.\n<\/p>\n
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\n                                             15<\/span><\/p>\n
    14.                 On     2nd  July,   2006,   after     4.00   p.m.   Dr.   Deepak <\/p>\n
    Mahajan  after he left home to attend  the meeting  with  Trustees <\/p>\n
    of Omkar Charitable Trust, his wife  Dr. Smita Mahajan learnt that <\/p>\n
    he has been actually  abducted and  his abductors were demanding <\/p>\n
    ransom   of   Rs.   25\/-  lacs.     Dr.   Smita   Mahajan   PW-11   gave   a   first <\/p>\n
    information in respect of  Dr. Deepak Mahajan on 2nd July, 2006 at <\/p>\n
    about 21.15 hours (FIR Exh. 58). She was aware that Dr. Mahajan had <\/p>\n
    received   an   offer   from   one   Omkar   Charitable   Trust   to   work   as <\/p>\n
    Honourary Orthopedic Surgeon in   Sanjivani Hospital run by the <\/p>\n
    said trust. She has stated that in that context the Doctor had left <\/p>\n
    his house at about   4 p.m. to meet the   person   concerned i.e. <\/p>\n
    trustees   of  Omkar  Charitable Trust.  She   also gave details  that <\/p>\n
    those   persons   had   invited       the   Doctor   for   lunch   at   Hotel <\/p>\n
    Durvankur. However, the Doctor opted to meet   them after having <\/p>\n
    his lunch at home.     PW-39   Atmacharan   Balasaheb Shinde who <\/p>\n
    was attached to   Vishram Baug Police Station has stated that he <\/p>\n
    received information   on 3.7.2006   about   registration     of offence <\/p>\n
    under Sections 366 and 364 of the Indian Penal Code at Deccan <\/p>\n
    Police Station of kidnapping Dr. Deepak Mahajan  and  as per the <\/p>\n
    directions   he conducted a surprise check of the lodges situated <\/p>\n
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\n                                             16<\/span><\/p>\n
    near   Hotel   Durvankur.   Photographs   of   Dr.   Deepak   Mahajan   were <\/p>\n
    supplied to them. On the   night intervening 2nd  and 3rd July, they <\/p>\n
    took search  of Shantanu Lodge   and on seeing the photograph of <\/p>\n
    Dr. Deepak  Mahajan,     Shri   Vikas   Harischandra Garad  (PW-4)-\n<\/p>\n
    Manager    of Shantanu Lodge had identified   the said photgraphs <\/p>\n
    and informed that in between 4 to 4.30  p.m. on the previous day, <\/p>\n
    Dr.   Deepak   Mahajan   had   been   to   their   Lodge     to   meet   Veena <\/p>\n
    Ranade who had booked room no.7. PW-4 Vikas Harischandra Garad <\/p>\n
    has     confirmed   the   visit of       PW-39-Atmacharan Shinde at <\/p>\n
    night   at   about     1   a.m.   and   also     he   supplied     him   the   said <\/p>\n
    information.     PW-4   Vikas   Garad     is   an   important   independent <\/p>\n
    witness on the point of visit of Dr. Deepak Majan   to Shantanu <\/p>\n
    Lodge   to meet Ms Veena Ranade.   He also mentioned that Dr. <\/p>\n
    Deepak Mahajan  came on  Activa Scooter  of Silver colour and he <\/p>\n
    saw him parking the scooter.   He has   seen Mrs. Ranade waiting <\/p>\n
    near  the main gate of Shantanu Lodge  and   then she   received <\/p>\n
    Dr. Mahajan   and  took him to Room No.7.   He had deposed that <\/p>\n
    one   lady who has introduced herself as Pathak Bai came to the <\/p>\n
    Lodge on 1.7.2006 and she enquired about   availability of a room <\/p>\n
    and she  informed that Mr. & Mrs. Ranade from Mumbai wants the <\/p>\n
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\n                                            17<\/span><\/p>\n
    room and she booked Room No.7.  PW-4 handed over  his visiting <\/p>\n
    card     (Exh.34)   of     Shantanu     Lodge,     which   was   subsequently <\/p>\n
    recovered   from   the   Accused.     PW-4   Vikas   Garad     identified <\/p>\n
    Accused No.1 as Mrs. Veena Ranade and has identified     Accused <\/p>\n
    No.2 as Pathak Bai.  He has also given  details about the clothes  of <\/p>\n
    Dr. Mahajan. He  has  described that Ms. Ranade and one person of <\/p>\n
    the age group of 30 years  had come  and he had an opportunity <\/p>\n
    to   see   that   person     and   Mrs.   Veena   Ranade.         In   the   cross <\/p>\n
    examination of Vikas Garad, the photograph on the application form <\/p>\n
    i.e.   Exh.23     was   shown     to     him   and   he   has   identified   the <\/p>\n
    photograph of  Ketan Kale as   the person who had visited  on that <\/p>\n
    day as Mr. Ranade, so also he has identified him as the     person <\/p>\n
    who used the telephone of  Shantanu Lodge  and talked with  the <\/p>\n
    person on the other end of the telephone and called him  at Hotel <\/p>\n
    Durvankur.  Thus,   the   visit   of   Dr.   Deepak   Mahajan   to   Shantanu <\/p>\n
    Lodge is established   by the prosecution through the   evidence of <\/p>\n
    Dr. Smita Mahajan,    Manager of Shantanu Lodge Shri Vikas Garad <\/p>\n
    and PSI  Atmacharan  Shinde.\n<\/p>\n
    15.              The   Learned   Amicus   curaie       has   challenged   the <\/p>\n
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\n                                           18<\/span><\/p>\n
    identification by Vikas Garad of Accused No.1 as Veena Ranade as <\/p>\n
    according to Vikas Garad Mrs. Veena Ranade was having Sadhana <\/p>\n
    Cut, protruded dentures and  round spectacles  and Vikas Garad at <\/p>\n
    any time had no opportunity  to see Accused No.1 in  her normal <\/p>\n
    look.\n<\/p>\n
    16.              PW-11- Dr. Smita Mahajan, in support of her evidence <\/p>\n
    about     the  offer     which   the   Doctor     had   received   from   Omkar <\/p>\n
    Charitable   Trust,   has   produced     the     letter   Exh.28.   PW-17-Dr.\n<\/p>\n
    Ashutosh  Vitthalrao Dabare, and PW-29- Dr. Ajay Bajirao Sonawane, <\/p>\n
    the colleagues of deceased Dr. Deepak Mahajan in YCM Hospital, <\/p>\n
    Pimpri, were examined on the point of  offer  given to deceased Dr. <\/p>\n
    Deepak Mahajan by Omkar Charitable Trust and handing over of <\/p>\n
    letter of Omkar Charitable Trust.  PW-17 Dr. Ashutosh Dabare   and <\/p>\n
    PW-29 Dr. Ajay Bajirao Sonawane corroborate   that   people from <\/p>\n
    Omkar Charitable Trust had contacted Dr. Depeak Mahajan  in the <\/p>\n
    month of June,   2006 and   both of them have   stated   that one <\/p>\n
    lady looking like Jassi had visited     Dr. Deepak Mahajan in YCM <\/p>\n
    Hospital. PW-29 Ajay Sonawane has referred that     said lady had <\/p>\n
    handed   over     one   letter   to   Dr.   Deepak   Mahajan.     Dr.   Ashutosh <\/p>\n
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\n                                           19<\/span><\/p>\n
    Dabare   mentioned that on 30.6.2006 one lady looking   like Jassi <\/p>\n
    had come alongwith  one male person and they had meeting with <\/p>\n
    Dr. Mahajan.\n<\/p>\n
    17.              PW-11 Dr. Smita   has further deposed     when she <\/p>\n
    tried   to contact     her husband   Dr. Deepak Mahajan   from   her <\/p>\n
    mobile No. 9822018863 on his  mobile  No.  9422511574    he  did <\/p>\n
    not  reply for a longtime and after some time some person replied <\/p>\n
    and disclosed that they had abducted Dr. Deepak Mahajan and there <\/p>\n
    was threat that if  she wanted Dr. Deepak Mahajan alive, then she <\/p>\n
    should act as per their directions.  After this call she contacted her <\/p>\n
    relative and,  alongwith  her relative went to Prabhat Road Police <\/p>\n
    Chowky and lodged the complaint about missing of her husband.\n<\/p>\n
    Thereafter again, when  Dr. Smita Mahajan and  Dr. Parag Mahajan-\n<\/p>\n
    brother of the  Dr. Deepak Mahajan, contacted on the Cell  of   Dr. <\/p>\n
    Deepak   Mahajan,     the   threats  were   repeated.   All   these   facts  are <\/p>\n
    incorporated in the FIR which is marked as Exhibit-58. Accordingly <\/p>\n
    the offence  of abduction under Section 366 read with Section 34 of <\/p>\n
    the   Indian   Penal   Code     was   registered.   Dr.   Smita   Mahajan   has <\/p>\n
    deposed that during the  night when she  was at the Police station, <\/p>\n
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\n                                            20<\/span><\/p>\n
    she received phone calls demanding Rs.25 lakhs ransom.\n<\/p>\n
    18.              PW-43,   Uttam   Yadav   who   was   attached   to   Prabhat <\/p>\n
    Road  Police Chowki   has corroborated  the evidence  of Dr. smita <\/p>\n
    Mahajan and has stated in his evidence   that the complainant (Dr.\n<\/p>\n
    Smita Mahajan)   has lodged the complaint   of kidnapping   of Dr. <\/p>\n
    Mahajan in   the late evening of 2.7.2006. He corroborates that the <\/p>\n
    complainant had called on the  Cell No. from Police Station and  he <\/p>\n
    could hear  threats  as the  phone was kept on loud speaker. Thus <\/p>\n
    the prosecution has established the fact of abduction of Dr. Deepak <\/p>\n
    Mahajan   under   the   pretext   of   giving   him   Honourary   Post   of <\/p>\n
    Orthopedic  Surgeon in the Hospital run  by them,  by the persons <\/p>\n
    who   were     related   to   Omkar   Charitable   Trust.         It   was   also <\/p>\n
    established  that the  Dr. Depeak Mahajan had visited    Shantanu <\/p>\n
    Lodge    around 4 to 4.30 on Activa Scooter and the couple  who <\/p>\n
    introduced themselves  as  Ms.  Veena Ranade and Mr. Ranade had <\/p>\n
    received the Doctor  and took him to room No. 7 of the Lodge.  All <\/p>\n
    these   facts     are   established   by   the   prosecution.     Nothing   was <\/p>\n
    brought in the  cross examination of PW-11 Dr. Smita Mahajan  and <\/p>\n
    also PW-4 Mr. Vikas Garad   to show   that their evidence on this <\/p>\n
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\n                                            21<\/span><\/p>\n
    aspect cannot be accepted.\n<\/p>\n
    19.              As per the evidence  of Dr. Smita Mahjan and PW-43 <\/p>\n
    Atmacharan Shinde, the complainant  Dr.  Smita  contacted on the <\/p>\n
    Cell No.  9422511574 of Dr. Deepak Mahajan on the night intervening <\/p>\n
    2nd  and 3rd  July 2007 and   that the person on the other end told <\/p>\n
    that  Activa Scooter  of Dr. Mahajan  was kept near Shivaji Nagar <\/p>\n
    ST stand, whereas the keys were kept  on the electric meter  at the <\/p>\n
    house situate near Tambdi Jogeshwari, Budhwar Peth, Pune i.e. the <\/p>\n
    house of the father of Dr. Deepak Mahajan.   Pursuant to this, the <\/p>\n
    Scooter    was  found  at  Shivaji  Nagar.  Thus  the   prosecution  has <\/p>\n
    proved that somebody has informed that somebody has abducted Mr. <\/p>\n
    Mahajan and  his scooter was taken from Shantano Lodge and was <\/p>\n
    left at Shivanagar by those persons, and the person who informed <\/p>\n
    about the key was aware that the said house was at Budhwar Peth <\/p>\n
    Pune.   PW-31- Shridhar Dattatraya Mahajan is the father   of   Dr. <\/p>\n
    Deepak   Mahajan   and   he   has   deposed     that   it   is   his   residential <\/p>\n
    address.\n<\/p>\n
    20.              Thus, in view of the above discussion,   the fact of <\/p>\n
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\n                                            22<\/span><\/p>\n
    abduction is proved by the prosecution. However, it is necessary for <\/p>\n
    the prosecution to prove further as to whether Dr.  Deepak Mahajan <\/p>\n
    was abducted by  Accused No.1 and 2.\n<\/p>\n
    21.              The   Prosecution   has   tendered   evidence   on     calls <\/p>\n
    made immediately after the abduction. There are   Exh.88- i.e. call <\/p>\n
    details of Cell No. 9422511574 (Cell Phone of Dr. Deepak Mahajan) <\/p>\n
    and  call details Exh.130-1 9960224773 (Cell No. in the name of Rui <\/p>\n
    Raj Mathur).  Call details of Cell No. 9422511574  are proved through <\/p>\n
    PW-14 Shailaja S. Kulkarni, Divisional Engineer of BSNL (Exh.88) and <\/p>\n
    call details of   Cell No. 9960224773 were proved by PW-25 Vijay <\/p>\n
    Eknath Shinde- Nodal Officer of Bharti Airtel Ltd. (Exh.130-1).   Dr. <\/p>\n
    Smita Mahajan, in her evidence has stated that she  went on calling <\/p>\n
    her husband  Dr. Deepak Mahajan- after she realized that  he has <\/p>\n
    not   come   back   on   the   time   given   by   him.       Her     phone   was <\/p>\n
    attended  not by Dr. Deepak Mahajan but it was attended by some <\/p>\n
    other persons.  Call details of Cell No. 9422511574 discloses incoming <\/p>\n
    calls from Cell No. 9822018863 (Cell of Dr. Smita Mahajan) which <\/p>\n
    corroborates the call details (Exh.190) of Cell No. 9822018863.\n<\/p>\n
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\n                                              23<\/span><\/p>\n
    22.               IMEI (International Mobile Equipment   Identification) <\/p>\n
    No. is given to a particular handset. Exh. 88 discloses that the call <\/p>\n
    received on 2.7.2006 at 17.44 hours  on Cell  phone 9422511574 of Dr. <\/p>\n
    Deepak Mahajan  was from the  residential phone No. 02025454699 <\/p>\n
    of Dr. Deepak Mahajan and the said  call was made  by Arjun-Son <\/p>\n
    of Dr. Deepak Mahajan.  It was attended  on the Nokia handset of <\/p>\n
    Dr.   Deepak   Mahajan   having     IMEI   No.     35253600483225.   However, <\/p>\n
    after   one   minute   i.e.   at   17.45   Dr.   Smita   Mahajan   contacted   Dr. <\/p>\n
    Deepak   Mahajan     from     her     Cell   No.   and   it   was   attended   by <\/p>\n
    another person who     disclosed that Dr. Deepak Mahajan was in <\/p>\n
    their custody and  IMEI No.  was changed as 351130741540560.\n<\/p>\n
    23.               Letter Exh.28 was the first lead in the hands of the <\/p>\n
    Police.         The   letter   Exh.28   produced   by  Dr.   Smita,   wife   of   the <\/p>\n
    deceased   was the master key which  opened the first door of the <\/p>\n
    investigation. Cell Phone No. 9960224773  written on the rear  side <\/p>\n
    of Exh.28 was the first lead the police found. Production of the said <\/p>\n
    letter by Dr. Smita   Mahajan on 2nd  July, 2006 was challenged  by <\/p>\n
    the  defence.\n<\/p>\n
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\n                                            24<\/span><\/p>\n
    24.              It was argued that Exh.-28 is not proved as  none of <\/p>\n
    the witnesses has   stated about  its  authorship.  As per section  61 <\/p>\n
    of the evidence Act,   the document may be   proved   either by <\/p>\n
    primary   or   by   secondary   evidence.     If     the   document   itself   is <\/p>\n
    produced for the inspection of the Court,  it is a primary evidence.\n<\/p>\n
    In the present case Exh. 28  produced by the prosecution and PW-2 <\/p>\n
    Ashok Jagannath Magar has stated about the contents of the said <\/p>\n
    letter. He deposed that Accused No.1 has told him that a letter of <\/p>\n
    Omkar   Charitable   Trust   was   to   be   handed   over   to   Dr.   Deepak <\/p>\n
    Mahajan   in YCM Hospital and she also explained him that letter <\/p>\n
    was pertaining to  appointment of Dr. Deepak Mahajan in Sanjavani <\/p>\n
    Hospital run by Omkar Charitable Trust. He has further deposed that <\/p>\n
    he   had gone through  the contents of the letter and the name of <\/p>\n
    one Yogendra Shirke   as trustee was appearing on the letter.  He <\/p>\n
    has admitted that Accused no.1 introduced him as Yogendra Shirke <\/p>\n
    and she took that letter from him and handed it over to Dr. Deepak <\/p>\n
    Mahajan. Further, the said letter Exh.28 was shown to him and he <\/p>\n
    deposed that signature of Yogendra Shirke  was not made by him.\n<\/p>\n
    Section 60 is about  direct oral evidence. PW-2 has seen  and read <\/p>\n
    that   document   and   has   used   the   document   and   therefore,   he   is <\/p>\n
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\n                                            25<\/span><\/p>\n
    competent witness to prove the said document.   Section 67  is in <\/p>\n
    respect of proof of the signature and   handwriting of the person <\/p>\n
    alleged to have signed or written the documents produced. However, <\/p>\n
    in   this   case,   the   prosecution   has     proved   the   contents   of   the <\/p>\n
    document   and   not   the   handwriting   and   the   signatory   of   the <\/p>\n
    document. Thus, in the present case,  who signed that document as <\/p>\n
    Yogendra   Shirke   though   is   not   proved,   the   contents   of   the <\/p>\n
    documents   are   proved   as   the   said   letter   is   produced   before   the <\/p>\n
    Court by  PW-2 who was aware of the contents of the letter as  he <\/p>\n
    himself had read it, and  he was asked to introduce himself  as a <\/p>\n
    signatory of the said letter.      The prosecution has tendered the <\/p>\n
    evidence of PW-26 Sukdeo   Nana Gaikwad   who was working as <\/p>\n
    Inspector  in  Public Trust Registration Office. He has deposed that <\/p>\n
    there   was     no   person     by   name   Yogendra   Shirke  as   Trustee   of <\/p>\n
    Omkar   Charitable   Trust,   Mumbai,   though   he   found   that   Omkar <\/p>\n
    Charitable Trust was registered under Bombay Public Trust Act at <\/p>\n
    the   address Shivaji Park Mumbai and the   names of the trustees <\/p>\n
    of the Omkar Charitable Trust were   Mr. and Mrs. Vaze and one <\/p>\n
    Mahadeo   Katre.       Thus,   Exh.28     is   a   forged   letter   with   bogus <\/p>\n
    contents, used by the Accused.\n<\/p>\n
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\n                                            26<\/span><\/p>\n
    25.               It was  argued that Uttam Krishna Yadav (PW-43) did <\/p>\n
    not mention  about  the letter  Exh.28 in Exh.193 Yadi (list) dated <\/p>\n
    2.7.2006 and the said letter was also not sent to the handwriting <\/p>\n
    expert. PW-11 (Dr. Smita Mahajan) has stated in her evidence that <\/p>\n
    she has produced the  letter Exh.28 to the police not at the time of <\/p>\n
    giving the FIR as she did not bring that letter  when she gave the <\/p>\n
    FIR but she produced it one hour later.   The omission to record in <\/p>\n
    her supplementary statement to that effect is not   put   to her or <\/p>\n
    the   police     officer   who   recorded   the   supplementary   statement.\n<\/p>\n
    Hence,   no   opportunity   was   given   to   the   witness   to   explain   the <\/p>\n
    circumstance.\n<\/p>\n
    26.               Accused No. 1 pointed out  a  mistake at the time of <\/p>\n
    the   recording   of   the   evidence.   On   Page   No.   493     i.e.   Cross <\/p>\n
    examination of PW-43- Uttam Krishna Yadav, in para 29, initially a <\/p>\n
    sentence was typed  as ” she has produced  that letter after about <\/p>\n
    one   year    from   lodging   the   complaint”   (emphasis   placed).   This <\/p>\n
    evidence was recorded by the Sessions Judge, Pune on 29.12.2008, of <\/p>\n
    which the Accused applied for certified copy  and the certified copy <\/p>\n
    of the said evidence was supplied to the Accused on 7 th  January, <\/p>\n
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\n                                            27<\/span><\/p>\n
    2009, which shows the   word   as  “year”. However, in the paper  <\/p>\n
    book, the word  “year” is scored off  and “hour”   is written.  The <\/p>\n
    learned Judge has put her initial after   correcting the word. Hence, <\/p>\n
    it is evident that the correction in the evidence was carried   out <\/p>\n
    after 7th  January, 2009.   The Accused, by   pointing out   these two <\/p>\n
    documents, has submitted that the     Sessions Judge has wrongly <\/p>\n
    made correction as “hour” instead of “year” at the instance of the <\/p>\n
    prosecution,   because   the   said   letter   Exh.28,   in   fact,   was   not <\/p>\n
    submitted by the wife of the deceased, Dr. Smita Mahajan. After she <\/p>\n
    gave the  F.I.R. and   letter Exh.28 was  deliberately suppressed and <\/p>\n
    kept     back   by   PW-11   Dr.   Smita   Mahajan   from   the   police.   The <\/p>\n
    Accused NO.1, in the course of her argument, pointed out that Exh.\n<\/p>\n
    193 Yadi ( list) dated   2.7.2006 was prepared by the Police person <\/p>\n
    Uttam Krishna Yadav (PW-43) while sending  FIR.  However in that <\/p>\n
    Yadi (Exh.193), there is no mention of Exh.28.\n<\/p>\n
    27.                Further,   the   said   letter     was   never   sent   to   the <\/p>\n
    handwriting   expert   though   it   bears   the   signature   of   Yogendra <\/p>\n
    Shirke- the alleged Director of Omkar Charitable Trust.   The PW-11-\n<\/p>\n
    has not deposed that   her supplementary statement was recorded <\/p>\n
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\n                                              28<\/span><\/p>\n
    when she handed over the letter   of   Omkar Charitable Trust. On <\/p>\n
    the back side of the said letter Cell No. 9960224773 was written and <\/p>\n
    the said number,  as per the case of the prosecution, was of  Rui <\/p>\n
    Raj   Mathur   and   on   the   basis   of   that   Cell   Number,   prosecution <\/p>\n
    claimed to trace   Cell No.   of one Shri   Vikrant Ghone who is <\/p>\n
    relative of PW No.3- Mr. Pravin Dnyanehwar Kamble from   whose <\/p>\n
    Cell No. he has  phoned  to  Cell No.  of Accused No.1. Thus, letter <\/p>\n
    Exh.   28   is   very   important.   However,   this   letter   was   not   sent   to <\/p>\n
    handwriting expert.\n<\/p>\n
                                  The     two   letters   having   signature   of <\/p>\n
    Yogendra Shirke were available with the prosecution, one is dated <\/p>\n
    23.6.2006 and another is of 30.6.2006 (Exh.28). The prosecution  opted <\/p>\n
    to send the first letter i.e. letter   dated 23.6.2006 as the signature <\/p>\n
    appearing on both the documents were of one and the same person <\/p>\n
    i.e.   Yogendra Shirke. The prosecution kept back   the letter Exh.28 <\/p>\n
    on which  the material Cell No.  was  written.\n<\/p>\n
    28.               Secondly, it appears that Learned Sessions Judge has <\/p>\n
    corrected the evidence  definitely after 7th January, 2009.   However, <\/p>\n
    it cannot be said  that it is done at the instance of the prosecution, <\/p>\n
    as the learned Judge   who records the evidence   is supposed to <\/p>\n
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\n                                             29<\/span><\/p>\n
    correct   the   typographical,   arithmetical     or   spelling   mistakes   after <\/p>\n
    recording of the evidence, preferably immediately before signing  the <\/p>\n
    record. If it is     not done so then   after pointing out the said <\/p>\n
    mistake     to  both   the   parties   evidence  is   to  be   corrected.  If   the <\/p>\n
    mistake is innocuous,     after comparing the evidence recorded in <\/p>\n
    vernacular  language i.e. in Marathi, the learned Judge can correct <\/p>\n
    that particular innocuous and obvious mistake.   The   record   in <\/p>\n
    vernacular   language     i.e.     in   Marathi     is   always   considered   as <\/p>\n
    authentic.   We,   therefore,     perused   Marathi   record   to   compare <\/p>\n
    whether  the said word is   ”  hour”  or  “year”. We found  that in <\/p>\n
    Marathi the word  “hour”  was recorded. Hence there is no doubt <\/p>\n
    that it was sent not after a year, but after an hour and no fault can <\/p>\n
    be   attributed   to   the   learned   Sessions   Judge.   The   Accused   have <\/p>\n
    unnecessarily tried to capitalize this circumstance in their favour. We <\/p>\n
    cannot   nullify   Exh.28   which   is     most   formidable     incriminating <\/p>\n
    evidence.\n<\/p>\n
    29.               Cell No. 9960224773 of Rui Raj Mathur- Letter from <\/p>\n
    C.P. to Airtel Cellular (Exh.185). How P. I. Barge was sent to Dahisar <\/p>\n
    on 5th July, 2006 when P. I. Balkrishna Bhikaji Agashe (PW- 40) has <\/p>\n
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\n                                              30<\/span><\/p>\n
    admitted that he received call details of Cell No. 9821486650-Cell No. <\/p>\n
    of Deepti- Accused-No.1 on 6th July, 2006.   Details of Other Cell No. <\/p>\n
    i.e.    9890565992 of Deepti were received  on 5th  July, 2006. There <\/p>\n
    were three calls – one of 36 Seconds,  and two of 15 seconds  each <\/p>\n
    from   the cell No.  9821486650   on Cell No.  9890060496- Cell of <\/p>\n
    Vikrant Ghone and   as per   the   admissions given by Mr. Agashe <\/p>\n
    (PW-40) there were several calls  of longer duration from Cell No. <\/p>\n
    9821486650 of Deepti as per the call details.  Learned  Amicus Curie <\/p>\n
    Ms. Salian has argued that though it was admitted that there was <\/p>\n
    no   contact   between   Cell   No.   9821486650     (Deepti)   and   Cell   No. <\/p>\n
    9890060496 (Vikrant Ghone ) for a period of 8 days prior to 6th July, <\/p>\n
    2006, why   the Police suspected Vikrant Ghone ? Learned   Special <\/p>\n
    prosecutor Mr. Mundargi, in reply, has submitted that Police have <\/p>\n
    collected   all   the   call   details     urgently   and     then   they   verified <\/p>\n
    income\/outgoing     calls   and   used   the   process   of   elimination.\n<\/p>\n
    However,   out   of   those   calls,   the   call   details   of     Phone   No.   of <\/p>\n
    Vikrant Ghone was the   relevant  and material evidence as PW-3 <\/p>\n
    Dnyaneshwar Kamble   was found on the   phone No. of   Vikrant <\/p>\n
    Ghone, PW-3 corroborates the same and he was the one who  first <\/p>\n
    disclosed     to   the   police   about     the   connection   of   Blue   Bird <\/p>\n
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\n                                            31<\/span><\/p>\n
    Detective   Agency   and   the   Accused.   The     defence   could   not <\/p>\n
    demolish the evidence of PW-3.\n<\/p>\n
    30.              The prosecution has produced     clinching evidence <\/p>\n
    which the defence could not shatter on the point  of phone calls. It <\/p>\n
    is earlier discussed that SIM Card having  Cell No. 9960224773 was <\/p>\n
    purchased in the name of Rui Raj Mathur. PW-15- Bhavarlal Kojaram <\/p>\n
    Mali  who was seller of SIM card and recharge voucher for Airtel <\/p>\n
    has deposed and confirmed that he had sold a charger of Alkatel <\/p>\n
    mobile   and   on   the   next   day   two   ladies   have   asked     for   Nokia <\/p>\n
    handset   and   they   have   purchased     SIM   Card   by   filling   the <\/p>\n
    application form (Exh.98) in the name of Rui Raj Mathur and driving <\/p>\n
    licence (Exh.98\/2) and photograph were given   by them.   On the <\/p>\n
    basis of  copy of the driving licence and  photograph, the SIM card <\/p>\n
    which was initially not activated, was subsequently activated. PW-25 <\/p>\n
    Vijay Eknath Dhinde-   from Bharti Airtel has   proved   Ex. 98 i.e. <\/p>\n
    mobile     enrollment   form   filled   in   by   Rui   Raj   Mathur   wherein <\/p>\n
    residential   address   was   given   as   80-90,   MG   Road,   Yeotmal.   He <\/p>\n
    corroborated   that   the   form   was     submitted   to   retailer   Mahavir <\/p>\n
    Photoshop which was run by PW-25 Bhawarlal Kojaram Mali.   He <\/p>\n
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\n                                               32<\/span><\/p>\n
    corroborates   Cell   No.   9960224773     and     that   the   SIM   card   was <\/p>\n
    activated   on   26.5.2006(   Call   Details   Exh.130).   The   Prosecution   has <\/p>\n
    examined   PW-35   Sudhakar     Pillewar.   Prosecution     witness   PW-35 <\/p>\n
    who was working as Head clerk at RTO Yeotmal proved that no <\/p>\n
    such driving licence was issued in the name of Rui Raj Mathur on <\/p>\n
    10.1.2006 and the address has also  appeared to be wrong. He also <\/p>\n
    confirmed that the   validity period shown on the licence of two <\/p>\n
    years  is found wrong as the validity is always for a period of five <\/p>\n
    years     or     till   the   age   of   50   years.     With   this   evidence     the <\/p>\n
    prosecution could   successfully prove that the said   licence in the <\/p>\n
    name  of Rui Raj Mathur was false  and that  the  SIM card was <\/p>\n
    obtained on the fake identity.\n<\/p>\n
    31.                 Learned     Amicus     curiae   Ms.   Rohini   Salian   has <\/p>\n
    submitted that the evidence of Mr. Agashe (PW-40) that they have <\/p>\n
    intercepted Cell 9821486650 or any   other Cell numbers which are <\/p>\n
    involved  in this  matter  is  incorrect  because    for  keeping  phones <\/p>\n
    under observation one needs requisite permission of the Government <\/p>\n
    under Section 5   of the Indian Posts and Telegraphic Act.   It was <\/p>\n
    further argued that the statement of Vikant Ghone is not recorded.\n<\/p>\n
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\n                                            33<\/span><\/p>\n
    Police have arbitrarily connected Kamble, Vikrant Ghone and Cell <\/p>\n
    No. of Rui Raj Mathur (9960224773). Cell No. in the Advertisement <\/p>\n
    of Blue Bird Agency was 9821486650. Call details   at  Exhs. 127, 128 <\/p>\n
    and 130  are suspicious. Exh.88 shows transfer of Phone No. of Dr. <\/p>\n
    Mahajan- 9422511574 to   IMEI No. 351307415405600 Mobile Handset <\/p>\n
    of Deepti Devasthali.        The evidence of Tower location though was <\/p>\n
    available   to   the   Police,     if   is   not       brought   on   record   why <\/p>\n
    locations were so frequently  changed while 14 calls   were made <\/p>\n
    from  9890565992 to 9821486650.             Original   Papers   of   Cell   No. <\/p>\n
    9821486650   are     not   produced.   The   documents   Exh.127\/2   i.e.   BPL <\/p>\n
    Mobile  Application Form  and Exh.127\/3- Outgoing calls  –  all are <\/p>\n
    false and fabricated. Sanjay Kamble- PW 24 (Nodal Officer- on BPL <\/p>\n
    Mobile ) is not a witness on facts and he does not know anything.\n<\/p>\n
    The entries made in Exh.88  at Serial No.111-  dated 1st July, 2006 of <\/p>\n
    Cell No. Dr. Mahajan  –  9422511574   and the   IMEI No.   do not  <\/p>\n
    match.     When   Dr. Smita Mahajan, in her evidence has deposed <\/p>\n
    that Dr. Deepak Mahajan was having only one handset, then how <\/p>\n
    call details of his Cell No. 9422511574 disclose different IMEI Nos.\n<\/p>\n
    showing use of more than   one handset by   changing SIM cards.\n<\/p>\n
    Why Police  have not taken out    the call details of Phone No. of <\/p>\n
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\n                                         34<\/span><\/p>\n
    Dr. Smita Mahajan.   It was argued by the Accused No.1 that even <\/p>\n
    Page Nos. 2 and 3 of Exh. 88 disclose   that   at the same time, <\/p>\n
    there are   calls   to two cell Numbers.     Thus, there was   use of <\/p>\n
    SIM Card of Cell No. 9422511574 of Dr. Deepak Mahajan on different <\/p>\n
    handset   having     changed   IMEI   Nos.351307415405600.     It   was <\/p>\n
    submitted that   the   entire episode   very suspicious. It is further <\/p>\n
    argued  by Ms. Salian  that,  the claim of the Police that they could <\/p>\n
    trace  Vikrant Ghone, Pravin Kamble and then Accused  on the basis <\/p>\n
    of  call details of   9960224773 is  false and she  prayed that the <\/p>\n
    Court may discard this evidence .\n<\/p>\n
    32.              PW-40-     Balkrishna   Bhikaji   Agashe   has   said   that <\/p>\n
    Complainant Dr. Smita Mahajan had phoned him  and informed that <\/p>\n
    Cell No. 9960224773 was of one Ms. Joshi. Accused No.1 has raised <\/p>\n
    question  how Dr. Smita Mahajan knew the name of Joshi when she <\/p>\n
    has not stated in her   evidence   that her     husband   has   ever <\/p>\n
    mentioned  the  name of the lady as Joshi from Omkar Charitable <\/p>\n
    Trust.   Accused No. 1 indicated that  if Dr. Smita Mahajan said so <\/p>\n
    then  on the basis of this discrepancy,  Smita Mahajan herself was <\/p>\n
    involved     and knew the names of the persons who abducted Dr. <\/p>\n
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\n                                            35<\/span><\/p>\n
    Deepak Mahajan because there was no reason for  PW-40 Balkrishna <\/p>\n
    Bhikaji Agashe  to state that  Cell No.9960224773  belonged to Ms. <\/p>\n
    Joshi. Dr. Smita Mahajan had not claimed in her evidence that she <\/p>\n
    knew such name   as Ms. Joshi. It is   PW-40   Balkrishna Bhikaji <\/p>\n
    Agashe     who     has     put   that   name   in   the   mouth   of   Dr.   Smita <\/p>\n
    Mahajan. Thus it can only be said that   PW-40 Agashe, on the basis <\/p>\n
    of his   investigation, call details and information   had formed the <\/p>\n
    opinion  that it was  a phone  number of Ms. Joshi and therefore, <\/p>\n
    at  the time   of  giving evidence,  he   has deposed  that  the  said <\/p>\n
    phone  number belonged to Ms. Joshi.    Evidence on the point of <\/p>\n
    IMEI Nos., SIM Card and change of those  numbers the Call details, <\/p>\n
    exhibits of  respective witnesses is  explained   by the prosecution <\/p>\n
    with the help of charts.  Hence,  the submissions of the Ms. Salian <\/p>\n
    and Accused No.1 cannot be accepted.\n<\/p>\n
    33.                  Learned   Trial   Judge     has   dealt   with   all   the <\/p>\n
    telephone Nos. and has properly analyzed  the evidence  on the Cell <\/p>\n
    numbers of the deceased, Dr. Smita Mahajan, and of three SIM cards <\/p>\n
    and   two   mobile   handsets   used   by   the   Accused   at   the   time   of <\/p>\n
    commission of the offence. Manipulation  and fabrication of the call <\/p>\n
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\n                                              36<\/span><\/p>\n
    details is the main line of defence adopted by the Accused, which is <\/p>\n
    not accepted by us as the accuracy found after tallying incoming <\/p>\n
    \/outgoing calls, IMEI Nos. disclosing use of particular handset.\n<\/p>\n
    34.               Learned   Prosecutor     Mrs.   Kejriwal     has   produced <\/p>\n
    separate   charts   showing       connections   of   the   phone   numbers.\n<\/p>\n
    Through   the   evidence   of   PW-40-   Balkrishna   Bhikaji   Agashe   and <\/p>\n
    PW-25- Vijay Eknath Shinde, the prosecution could bring on record <\/p>\n
    that the Cell No. 9960224773 stands in the name of Rui Raj Mathur <\/p>\n
    on   Yaotmal   address.   Exh.   130\/1   is   the     call   details   of   Cell   No. <\/p>\n
    9960224773 and     ownership of SIM of Cell no. 9960224773. Exh.\n<\/p>\n
    129\/2 is  enrollment form of Airtel Cell No. 9890565992.  Two Mobile <\/p>\n
    phones of Bharti Airtel belongs to Accused No.1. The investigating <\/p>\n
    officer has sent  letter to this mobile Company i.e. Bharti Airtel and <\/p>\n
    call details of these phones were  furnished  accordingly.\n<\/p>\n
    35.               The ownership of the Mobile handsets is denied and <\/p>\n
    challenged by the Accused.      One handset  of Alkatel Company <\/p>\n
    was   found   in   the   purse   of   Accused   No.   1,   having   its   IMEI   No. <\/p>\n
    351307415405600 and  another one  was found in the Matiz Car of <\/p>\n
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\n                                               37<\/span><\/p>\n
    the Accused.  It was of  Saffron Colour  of Nokia Company having <\/p>\n
    IMEI No. 351486609417510. Purse was neither sealed nor seized under <\/p>\n
    the   Panchanama.   Recovery   of   handsets   in   the   Matiz   Car   is <\/p>\n
    mentioned in the Panchanama.  If a person is not found in physical <\/p>\n
    possession   of   a   particular   article,   then   it   cannot     always   be <\/p>\n
    contended   that   said   article   does   belong   to   that   person.       If   an <\/p>\n
    article carries any identification mark and   the link  between  that <\/p>\n
    identification mark and the identity of the person is associated then <\/p>\n
    it   can   be   said   that   article   belongs   to     that   person.   Purchase   of <\/p>\n
    handsets, if proved, by the prosecution in the name of Accused no.1, <\/p>\n
    it can safely be said that two handsets belong to Accused No. 1 <\/p>\n
    36.                  Three handsets   and four SIM cards are  relevant <\/p>\n
    articles  and police have produced   consistent evidence to show the <\/p>\n
    ownership of the Cell No.  and the handsets through representatives <\/p>\n
    of the mobile Companies i.e. PW-24 Sanjay Dagdu Kamble of BPL <\/p>\n
    Mobile,    PW-25-   Vijay   Eknath   Shinde  of   Bharti  Airtel   and   PW-41 <\/p>\n
    Sachin Shinde of Idea Cellular Company.   Accused no.1 was having <\/p>\n
    two handsets one Alkatel and other Nokia. They are   seized and <\/p>\n
    produced before the Court. Their IMEI  Nos.  are as follows:\n<\/p>\n
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\n                                              38<\/span><\/p>\n
                 Name of subscriber         Mobile No.             IMEI No. \n    1.           Deepti   Anil   Devasthali 9890565992             351486609417510\n\n\n\n\n                                                                                        \n                 (Accused No.1)\n    2.           Deepti   Anil   Devasthali 9821486650             3151307415405600\n\n\n\n\n                                                                \n                 (Accused No.1)\n    3.           Rui Raj Mathur             9960224773             351486609417510\n     \n\n\n\n\n                                                               \n<\/pre>\n
           Dr. Deepak  Mahajan was having handset of Nokia with IMEI <\/p>\n
    No. 35253600483225  and  SIM of Airtel,  Mobile No. 9422511574.\n<\/p>\n
    37.<\/p>\n
                      Call   details   of   Cell   phone   of   Dr.   Deepak   Mahajan <\/p>\n
    Exh.-88  are proved through PW-14 Shaileja Kulkarni.  In the entire <\/p>\n
    episode, the evidence of   call details   has played   a crucial role.\n<\/p>\n
    Rather  this evidence is connecting  the Cell Numbers of Dr. Deepak <\/p>\n
    Mahajan,   Dr.   Smita   Mahajan   and   Accused   by   use   of   different <\/p>\n
    handsets,   change   of   handsets   and   SIM   Cards.   Two   handsets   of <\/p>\n
    Accused no.1 and use of three SIM cards   by Accused No.1, so also <\/p>\n
    use of SIM Card of Dr. Deepak Mahajan in the handset owned by <\/p>\n
    Accused No.1 unmistakably establishes the nexus of the Accused with <\/p>\n
    the offence. It reveals that Accused No. 1 and 2 were constantly in <\/p>\n
    touch   with   Dr.   Smita-PW-11     after   4.30   p.m.   on   2.7.2006.     If   the <\/p>\n
    prosecution establishes   the missing of the person and thereafter <\/p>\n
    demand of ransom   amount through   a particular Mobile phone <\/p>\n
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\n                                            39<\/span><\/p>\n
    which   is   owned   by   the   Accused,   then   it   invariably   connects   the <\/p>\n
    Accused with the missing person. It is always within the knowledge <\/p>\n
    of the Accused first and then  known to the family members of the <\/p>\n
    person missing.\n<\/p>\n
    38.               The   police   have   issued   letters   to   the   concerned <\/p>\n
    telephone\/Mobile companies i.e. Airtel, BPL and BSNL for the supply <\/p>\n
    of  the call details in respect of  Cell Nos. of  the Accused and also <\/p>\n
    Dr. Deepak Mahajan and pursuant to  these letters, information was <\/p>\n
    supplied and   also the   information of the subscription form and <\/p>\n
    the   call details was furnished. However, the statement giving call <\/p>\n
    details of  incoming  and outgoing calls of a particular Cell Phone <\/p>\n
    are   electronically printed.   So,   the possibility of manipulation by <\/p>\n
    human being   is overruled. The Accused had pointed out in the <\/p>\n
    course of the argument     that all these statements were given on <\/p>\n
    the date which is much after the date of the forwarding letter by <\/p>\n
    the Company and so, it was submitted that the dates appearing on <\/p>\n
    these statements are after the date of the forwarding letter and no <\/p>\n
    explanation   is   tendered   by   the   witnesses\/representatives   of   the <\/p>\n
    respective   telephone   companies,   then    it   is  to   be   presumed   that <\/p>\n
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\n                                            40<\/span><\/p>\n
    these call details supplied by the company were replaced by the <\/p>\n
    police and the fabricated call details  were attached  and produced.\n<\/p>\n
    The  discrepancy   is   shown   in   the   dates       appearing   on   the   call <\/p>\n
    details and   the dates of forwarding letter. For example, forwarding <\/p>\n
    letters of Airtel Company    is marked  as Exh 129 and   the Call <\/p>\n
    details  of Cell No.9890565992 is marked as Exh. 129\/4. Forwarding <\/p>\n
    letter is dated 19.6.2006 and at the   foot of the statement of the <\/p>\n
    calls details (Exh.129\/4)  the date is appearing 9\/27\/2006 (27.9.2006).\n<\/p>\n
    Though this fact is true,   it can only be said that the company <\/p>\n
    has forwarded  the call details   along with the letter  which  was <\/p>\n
    prepared earlier or the company has sent  this forwarding letter and <\/p>\n
    independently  further provided these call details. The submission of <\/p>\n
    the Accused that the dates   at the foot of the statements   of the <\/p>\n
    call details  are not in consonance with the dates of the forwarding <\/p>\n
    letter as they are beyond the dates of the forwarding letter and  so <\/p>\n
    they  are  fabricated is  too technical  and incorrect so cannot be <\/p>\n
    accepted. The details in respect of Cell numbers, IMEI Nos.  and call <\/p>\n
    details   are   established   through   cogent     and   consistent   oral <\/p>\n
    evidence,hence we hold that these   call details are   genuine and <\/p>\n
    authentic. When two contradictory   circumstances are pointed out <\/p>\n
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\n                                            41<\/span><\/p>\n
    and it is evident that they cannot   coexist but one negates   the <\/p>\n
    other,   then   it   is   not   always   a     case   to   apply   the   principle <\/p>\n
    mechanically     that   when   two   inferences   are   possible     then   one <\/p>\n
    favourable   to   the   Accused     be   adopted.   The   Court   needs     to <\/p>\n
    examine  on the  basis of   other independent evidence how such <\/p>\n
    circumstance   can   exist     otherwise.   Court   should   not     go   by <\/p>\n
    fallacious   logic   or     take   a   narrow   approach   while   applying   the <\/p>\n
    above   principle.   Two plus two is four   is a simple arithmetical <\/p>\n
    calculation.  However, other calculation viz.  one plus three  is also <\/p>\n
    four and five minus one is also four  are to be taken into account <\/p>\n
    while appreciating evidence  if  such other evidence is available.\n<\/p>\n
    39.              The submissions advanced by Accused No.1 and Ld.\n<\/p>\n
    amicus curiae Ms. Rohini Salian about the non finding of the exact <\/p>\n
    tower location on   IMEI No. 35130741540560. Sometime it  appears <\/p>\n
    as 600 or some times appears as 5608 is minor electronic error as <\/p>\n
    other   digits are same and call details, if   tallied are correct. The <\/p>\n
    defence, while assailing the said evidence  raised perfunctory points <\/p>\n
    which were explained by the prosecution.   Learned Trial Judge has <\/p>\n
    scrutinised this evidence in depth and we do not find any fault or <\/p>\n
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\n                                       42<\/span><\/p>\n
    illegality in it. The prosecution could explain   all   the call details <\/p>\n
    and also could successfully prove the same. The evidence on   the <\/p>\n
    point of  Phones and call details can be summarised as follows.\n<\/p>\n
                  Relevant Witnesses on Call details.\n<\/p>\n
           Exh.  Name of the          Role of the witnesses\n\n\n\n\n                                                      \n           Nos. witnesses\n     PW-14 88    Shailaja S.          Divisional Engineer,  BSNL\n                 Kulkarni \n     PW-24 127-3 Sanjay D.            Senior Executive BPL Mobile \n\n\n\n\n                                          \n                 Kamble\n     PW-25       Vijay E. Shinde\n                             ig       Nodal Officer Bharti Airtel Ltd.\n           129                        Letter from Airtel regarding \n                                      information of Mobile No. \n                           \n                                      9890565992(Deepti Devasthali \n                                      Nashik Address) SIM  Card \n                                      activated on 16.10.2004\n             129-2                    Airtel Prepaid Enrollment form \n        \n\n                                      of Deeptia Devasthali\n             129-4                    Call Details  report of Mobile \n     \n\n\n\n                                      No.9890565992 of A-1 (Nashik \n                                      address)\n             98                       Airtel Prepaid Enrollment form \n\n\n\n\n\n                                      of Ruiraj Mathur- Yavatmal \n                                      address, SIM card activated on \n                                      26.5.2006\n             130-1                    Call details report  of Mobile no. \n                                      9960224773 of Rui Raj Mathur \n\n\n\n\n\n                                      (Yavatmal address)\n     PW-41 190       Sachin M.        Woking with IDEA Cellular Co. \n                     shinde           call details of  Mobile No. \n                                      9822018863 of Dr. Smita Mahajan\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 15:08:09 :::<\/span>\n                                           43<\/span>\n\n           Exh.  Name of the              Role of the witnesses\n           Nos. witnesses\n\n\n\n\n                                                                                     \n     PW-15 98    Bhavarlal K.             Selling SIM Card Vouchers\/ \n                 Mali                     Recharge vouchers\/ accessories \n                                          of mobile, in 2006 was selling \n\n\n\n\n                                                             \n                                          Airtel Co. SIM  card.\n\n                                   Enrollment Form in the name of \n                                   Ruiraj Mathur.\n\n\n\n\n                                                            \n     PW-11         Dr. Smita       Wife of deceased-complainant. \n                   Mahajan         After Dr. Deepak Mahajan was \n                                   abducted,  calls made and \n                                   received on  her mobile No. \n\n\n\n\n                                               \n                                   9822018863 ( Exh.190)\n<\/pre>\n
    Accused No.1 had used the Mobile\/SIM  No. 9960224773 (Rui Raj <\/p>\n
    Mathur)\n<\/p>\n
      (i) Call   details   of   Mobile   \/SIM     No   9890565992   (Accused   -1 <\/p>\n
         Nashik address)  Exh.129-4 – Call details for the period  April,
\n         2006 to 4th July, 2006<\/p>\n
      (ii) Call Details of Mobile \/SIM No. 9960224773-Rui Raj Mathur, <\/p>\n
         Exh.130-1 Cal details for the period  from 1.6.2006 to 2.7.2006,
\n         it   shows   that   for   the   said   SIM   Card   the   handset   used   is <\/p>\n
         having IMEI No. 3514866094 17510<\/p>\n
      (iii)Call details report of Mobile\/SIM No. 9890565992 (Accused No.
\n         1 ) for the period from  April, 2006 to July, 2006  – Exh.129-4  <\/p>\n
         shows that  April, 2006, May, 2006, 24th June to 30th June, 2006
\n         and 1st July 2006 to 4th July, 2006, the hand set  used for the
\n         said SIM card is having IMEI No. 351486609417510<\/p>\n
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\n                                          44<\/span><\/p>\n
    Ransom  Demand<\/p>\n
     (i)    The   call details Exh.88 at page 2, 4th     calls from bottom
\n            show that Mobile\/SIM   No.9422511574 Dr. Deepak Mahajan <\/p>\n
            was having handset bearing  IMEI No. 3525360048 3225.\n<\/p>\n
     (ii)   At page  2 sr. No. 3 onwards i.e.  2.7.2006 at 17.45, the said <\/p>\n
            SIM   Card   was   now   used   in   handset   having   IMEI   No.
\n            351307415405600, this shows that the handset is changed and
\n            Doctor’s Moble\/SIM Number is used in the changed handset.\n<\/p>\n
     (iii) The Call Details of Dr. Deepak Mahajan at Sr. No. 88  shows
\n            that various calls were made and received upto 6.7.2006 and <\/p>\n
            the   handset   which   was   used   was   having   IMEI   No.
\n            351307415405600.\n<\/p>\n
     (iv)   The   above   said   call   details   show   that   the   Dr.   Deepak <\/p>\n
            Mahajan was in the custody of the person i.e. Accused  who
\n            was using handset having IMEI No. 351307415405600.\n<\/p>\n
     (v)    Exh.129-4 (Mobile\/ SIM No.  9890565992 of Accused No.1) the
\n            call details of 12.6.2006 show that the said handset having
\n            IMEI   No.   351307415405600   was   used   by   Accused   No.1   for <\/p>\n
            Mobile No.  9890565992  clearly  reveals that  handset  having
\n            IMEI   No.   351307415405600   was   also   used   by   Accused   No.1
\n            much prior to the incident.\n<\/p>\n
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\n                                            45<\/span><\/p>\n
      (vi)   Call details Ex.130-1 of Mobile SIM Card No. 9960224773 of
\n             Rui Raj Mathur for the period 1.7.2006 and 2.7.2006 shows <\/p>\n
             that calls were made to deceased Dr. Deepak Mahajan on his
\n             mobile number by using the same handset having IMEI No. <\/p>\n
             351307415405600.\n<\/p>\n
      (vii) This clearly indicates that the calls made from Mobile\/SIM <\/p>\n
             Card No. 9960224773 (Rui Raj Mathur) to Dr. Deepak Mahajan
\n             on 1.7.2006 and 2.7.2006 was in use by Accused No.1 only and <\/p>\n
             none else   as the SIM Card which stands in the name of
\n             RUI Raj Mathur was also used in the handset having IMEI <\/p>\n
             No.   351307415405600   on   1.6.2006   and   2.6.2006   as   the   call
\n             details of Mobile No. 9890565992 at Exh.129-4 for the period <\/p>\n
             April, 2006 to   4.7.2006 shows that the handset n use was
\n             having IMEI No. 351486609417510.\n<\/p>\n
      (viii) Ex. 190 the call details of Dr. Smita  Mahajan Shows various <\/p>\n
             calls received  to Dr. Deepak Mahajan on 2.7.2006  and tallies
\n             with Exh. 88 i.e. Call details of Dr. Deepak Mahajan.\n<\/p>\n
    40.                The SIM having Cell No. 9960224773  which stands <\/p>\n
    in the name of Rui Raj Mathur was found with Accused No.1. There <\/p>\n
    was no reason to hold  SIM card of any other person by name Rui <\/p>\n
    Raj Mathur  and make use of said said SIM Card in the handset of <\/p>\n
    Accused No.1. This circumstance establishes  that Rui Raj  was none <\/p>\n
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\n                                          46<\/span><\/p>\n
    but   a fictitious name     on which a SIM card was acquired by <\/p>\n
    Accused   No.1   by   furnishing   false   information   to   the     Mobile <\/p>\n
    Company.\n<\/p>\n
    41.             On   seizure   of     the   register   of   Shantanu   lodge <\/p>\n
    (Article\/Exh.35),   Accused   No.1   in   the   course   of   argument   was <\/p>\n
    successful in  raising doubt. As per the case of the prosecution, the <\/p>\n
    evidence given by PW-16- Namdeo Narayan Kunjer-Panch and PW-4 <\/p>\n
    Vikas Garad- Manager of  Shantanu Lodge about seizure of Register <\/p>\n
    of Shantanu lodge on 4.7.2006 under the Punchanama Exh.12.  The <\/p>\n
    entry  appearing at Serial No.16 disclosing signature of Meena Joshi <\/p>\n
    of  Room No.7 on 2nd July  was marked and  was proved by PW-4.\n<\/p>\n
    It is the case of the Investigating   officer   PW-46 that the police <\/p>\n
    seized   the  said   register   of   Shantanu  lodge  showing  the  entry  of <\/p>\n
    booking room No.7 by alleged Meena Joshi   of 2nd July, 2007. The <\/p>\n
    Police could trace   Shantanu Lodge and room No.7 which is the <\/p>\n
    place   from where   Dr.   Deepak Mahajan was abducted     in the <\/p>\n
    night intervening 2nd and 3rd  July, 2006. How the police could reach <\/p>\n
    Shantanu Lodge without any specific  information  was explained by <\/p>\n
    the learned counsel for the prosecution that  the orders of search of <\/p>\n
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\n                                               47<\/span><\/p>\n
    the lodges and Hotel at  random were given and pursuant to this <\/p>\n
    direction, the police   took  search in the Hotels and  lodges near <\/p>\n
    Hotel Durvankur where Dr. Mahajan was invited for the lunch. After <\/p>\n
    getting   trace   of   Shantanu   lodge   and   information   from   Mr.   Vikas <\/p>\n
    Garad,   the   said   register   was   seized   on   4th  July,   2006.   When   the <\/p>\n
    register was seized on 4th  July, then obviously, no entires of   the <\/p>\n
    future date i.e  entries after 4th July, 2006 could appear in the said <\/p>\n
    register. However, though the witnesses have signed at the end of <\/p>\n
    the page at the time of panchanama, on the next page the entires <\/p>\n
    are appearing upto 6th  July, 2006.   The entires of 5th  and 6th  July, <\/p>\n
    2006 are appearing. Thus,   the submissions     were made by the <\/p>\n
    defence that under this circumstance, the seizure of the register at <\/p>\n
    Shantanu Lodge is false and the register is bogus and the police <\/p>\n
    have planted this   register against the Accused.   This argument is <\/p>\n
    definitely   based on sound logic and it is to be accepted that the <\/p>\n
    said seizure was not taken on  4th th July, 2006 and the claim of the <\/p>\n
    police  of the seizure  of the register on that day is false. However, <\/p>\n
    it   will   not   nullify   the   register   itself     and   the   entires   appearing <\/p>\n
    therein  due to other   evidence  adduced by the witnesses.\n<\/p>\n
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\n                                           48<\/span><\/p>\n
    42.              In experts evidence, the prosecution has relied on the <\/p>\n
    evidence   of   the   hand   writing   expert     PW-30   Deepak   Uttamrao <\/p>\n
    Pandit.   The signature of Yogendra Shirke appearing on the letter <\/p>\n
    dated 23.6.2006   on the letter head of Omkar Charitable Trust was <\/p>\n
    a questioned document (and   the letter   Exh.28 ) and the entry <\/p>\n
    appearing     in   the   register   of   Shantau   lodge     of   Veena   Ranade <\/p>\n
    appearing of the said register were   disputed   documents. Along <\/p>\n
    with these documents the specimen of the natural handwriting of <\/p>\n
    the Accused Nos. 1 and 2 were sent  to the handwriting expert for <\/p>\n
    comparison.\n<\/p>\n
    Entry in the Shantano lodge  register    marked as Ex.Q-1<\/p>\n
    Signature of Veena Ranade  in the said register is marked as Ex.Q-2<\/p>\n
    Signature of   Yogendra Shirke  was marked as Ex. Q-3.\n<\/p>\n
              The opinion  of the  handwriting expert which is marked
\n              as Exh.145 discloses that Q-1  was  in the handwriting of <\/p>\n
              B-1  to B-6 i.e. Accused.\n<\/p>\n
           The handwriting expert  could not   opine about  Article Q-2 <\/p>\n
    and Q-3 i.e. signature of Signature of Veena Ranade  and signature <\/p>\n
    of Yogendra Shirke. Hence, the evidence about Exh.Q-2 and Exh. Q-3 <\/p>\n
    is negative.\n<\/p>\n
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\n                                            49<\/span><\/p>\n
    43.              The   document   which     was   sent     as   a   natural <\/p>\n
    handwriting is a   portion of the confessional statement  of Accused <\/p>\n
    no. 2.    The police need  to send the natural handwriting so also <\/p>\n
    the   specimen   handwriting.   The   specimen   handwriting   is   always <\/p>\n
    collected   in   the   presence   of   Panchas.   However,   the   natural <\/p>\n
    handwriting   is     the   handwriting   on   the   document   which   the <\/p>\n
    Accused     has   earlier     written\/signed.     Sending   confessional <\/p>\n
    statement of the Accused no.2 as a natural handwriting  is callous <\/p>\n
    on the part of the police. Such statement   is inadmissible under <\/p>\n
    Section 25 of the Evidence Act.To make the use of the confessional <\/p>\n
    statement     as  a   natural  handwriting  is  to  be  strictly   avoided.   It <\/p>\n
    leads   to   create   bias   against   the   Accused   in   the   mind   of   the <\/p>\n
    handwriting   expert,   which   may   tend   to   give   opinion   against   the <\/p>\n
    Accused. In this back ground alone, we  discard the evidence of the <\/p>\n
    handwriting expert.\n<\/p>\n
    44.              Section 73 of the Evidence Act enables the Court to <\/p>\n
    compare the   handwriting.     The handwriting   on the register of <\/p>\n
    Shantanu   lodge   and   the   specimen   handwriting   appear     different <\/p>\n
    with naked eye and therefore   Section 73 of the Evidence Act   is <\/p>\n
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\n                                             50<\/span><\/p>\n
    not helpful   to the prosecution. The   fact of handwriting in the <\/p>\n
    lodge register i.e. the entry marked Exh. 30 is independently proved <\/p>\n
    by   PW-4   Vikas Garad.   Entry at Sr. No.16   dated 7.6.2006 in the <\/p>\n
    register   is   identified   by   PW-4   as   that     of   Mrs.   Veena     Ranade-\n<\/p>\n
    Accused no.1 who was present in the Court.   He deposed about <\/p>\n
    wearing a wig  of shoulder cut with hair on the forehead and use <\/p>\n
    of upper dentures of protruded  teeth outside lips by Accused No.1.\n<\/p>\n
    45.<\/p>\n
                      PW-1 Ketan Kale has deposed that he has acted as <\/p>\n
    husband of Joshi Madam who has taken   name as Veena Ranade <\/p>\n
    and has   filed in the register of the Lodge.   CW-1 Rahul Bhosale <\/p>\n
    corroborates  the  booking room at Shantanu Lodge and thus, the <\/p>\n
    fact of booking room in Shantanu     lodge and making the entry <\/p>\n
    by   name   Veena   Ranade   is   independently   proved     by   the   other <\/p>\n
    witness.   The   entry     in   the   register   is   a   contemporaneous <\/p>\n
    documentary evidence which corroborates  the  ocular  evidence.\n<\/p>\n
    46.               Opening   of   Blue   Bird   Detective   Agency   and <\/p>\n
    employment   in   the   said     agency     is     another   major   evidence <\/p>\n
    tendered by the prosecution. Evidence of PW-19 Atmaram  Namdeo <\/p>\n
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\n                                            51<\/span><\/p>\n
    Ingawale   who let out the office premises for Blue Bird Detective <\/p>\n
    Agency     has   identified   the   Accused   as   they   have   taken   office <\/p>\n
    premises from him on rental basis. The set of four witnesses i.e. <\/p>\n
    PW-1-Ketan Pramod Kale, PW-2-Ashok Jagannath Magar, PW-3-Pravin <\/p>\n
    Dnyaneshwar   Kamble     and   CW-1-Rahul   Abhimanyu   Bhosale <\/p>\n
    established   the   fact     that     Accused   have   given   advertisement   in <\/p>\n
    newspaper Sakal dated 11.6.2006 regarding employment in Blue Bird <\/p>\n
    Detective     Agency.     Accused   have   denied   the   fact   of   giving <\/p>\n
    advertisement   in   Sakal.     Cutting   of   advertisement     in     Sakal <\/p>\n
    newspaper   found   in the room at Uttamnagar discloses     Phone <\/p>\n
    No.  9821486650 of Deepti- Accused No.1   as a contact number.  In <\/p>\n
    response to this advertisement   all the above four witnesses- i.e. <\/p>\n
    PW-1, PW-2, PW-3 and CW-1-  have contacted Accused no.1.\n<\/p>\n
    47.               The prosecution  has tendered  evidence about the <\/p>\n
    residence   of   the   Accused     at   Nashik   and   also   at   Krishnawatika <\/p>\n
    Dahisar. PW-34  has acted as Panch  in the Panchnama  of residence <\/p>\n
    of     Accused   at   Krishnawatika   Dahsir.     Airtel   Prepaid   Enrollment <\/p>\n
    Form Exh.-98 discloses  their addresses at Yeotmal.\n<\/p>\n
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\n                                       52<\/span><\/p>\n
    48.            Exh.127\/3 i.e.   mobile No. 9821486650 belongs   BPL <\/p>\n
    company. PW-24 Sanjay Dagdu Kamble-Nodal Officer of BPL   has <\/p>\n
    proved Exh.127\/3, Prepaid Card Form and the call details  discloses <\/p>\n
    address of Accused No.1 at Krishnawatika Dahisar. So, the Accused <\/p>\n
    have two residences, one at Nashik and one at Dahisir ,Mumbai.\n<\/p>\n
    49.              Temporary   residence of the Accused in the first <\/p>\n
    first week of June i.e. from 1.6.2006 to 6.6.2006 was in Hotel Ratna <\/p>\n
    Regency, Pimpri (PW-2 Mansi Sandip Vinod) and another temporary <\/p>\n
    residence was at Uttamnagar, Kondwa which was taken on rental <\/p>\n
    basis for a period of   one month in the last week of   May, 2006.\n<\/p>\n
    PW-5 Maroti Bajirao Gawande is the owner of the Uttamnagar room.\n<\/p>\n
    PW-5 has deposed  that both ladies have resided in that room for a <\/p>\n
    period of one month in June, 2006. Evidence of   these temporary <\/p>\n
    residences and  Panchanama  of the property recovered  from the <\/p>\n
    Krishnawatika-Dahisar   residence   of   the   Accused     is   concrete <\/p>\n
    circumstantial evidence establishing link  between the Accused and <\/p>\n
    the commission of offence.\n<\/p>\n
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\n                                           53<\/span><\/p>\n
    50.                 Accused   No.   1,   as   per   the   prosecution,   used   to <\/p>\n
    change   her   appearance   and   looks   by   wearing   wig,   dentures   of <\/p>\n
    protruded teeth and round black  frame spectacles.  On the point of <\/p>\n
    change appearance- PW-20- Mansi Sandip Vinod  has  deposed that <\/p>\n
    Accused no.1 sometimes   used to change her look by using these <\/p>\n
    three articles   i.e.   wig, denture of protruded teeth, round black <\/p>\n
    frame spectacles. PW-20 is the witness who has seen the Accused in <\/p>\n
    her normal  normal look and also in her changed look and there is <\/p>\n
    no reason to discard her evidence.\n<\/p>\n
    51.             Panchanama   Exh.69 was drawn   by   the Police of <\/p>\n
    the room at Uttamnagar   on the same date   of   arrest i.e. on 7th <\/p>\n
    July,   2006.   The   said   panchanama   was   proved   by   PW-12-   Preet <\/p>\n
    Chandrakant  Babil. PW-12 is B.Com. MBA (Finance) and serving in <\/p>\n
    ICICI Bank in   Risk  Analysis Department. This panch-PW-12 is an <\/p>\n
    independent, educated witness and has given consistent and reliable <\/p>\n
    evidence on the point of Panchanama   which was drawn in three <\/p>\n
    parts started at 12.46 on 7.7.2006 and ended at 22.15 Exh. 68,69 & 75.\n<\/p>\n
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\n                                              54<\/span><\/p>\n
    52.               After recording  memorandum of panchanama under <\/p>\n
    Section 27 of the Evidence Act, the police went  to the room at <\/p>\n
    Uttamngar   where   the   Accused   have   resided   for   a   period   of   one <\/p>\n
    month.   In the said Panchanama (Exh.75), many articles were found <\/p>\n
    and list of the  articles prepared.  In the said room three wigs, two <\/p>\n
    dentures,   round   black   frame     spectacles,   beard,   mustaches   were <\/p>\n
    found. Thus, seizure of these article and description given by the <\/p>\n
    witness Mansi Sandip Vinod(PW-20), PW-4 Vikash Garad and    Dr. <\/p>\n
    Ashutosh Dabre (PW-17) corroborate each other and prove the fact <\/p>\n
    that the Accused No.1 used to  change hear appearance and looks <\/p>\n
    with   the   help   of   these   articles   i.e.     artificial   wig,   dentures   of <\/p>\n
    protruded teeth and  round black  frame spectacles.\n<\/p>\n
    53.               Accused   No.1   has   challenged     her   identification   as <\/p>\n
    Jassi   by   PW-4-Vikas   Garad   and   PW-17   Dr.   Ashutosh   Vitthalrao <\/p>\n
    Dabare. It was argued that if these witnesses had  never seen her in <\/p>\n
    her normal look, then  assuming that  she had changed her looks <\/p>\n
    and appearance by using     different wig, dentures and spectacles, <\/p>\n
    these witnesses cannot identify her when she is in the normal look <\/p>\n
    in the Court. She has submitted that such identification in the Court <\/p>\n
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\n                                             55<\/span><\/p>\n
    is tutor by the Police and   is to be disbelieved. This argument is <\/p>\n
    very logical and it is to be accepted.  If a person  was never seen <\/p>\n
    in   his\/her     normal   look,   then   identification   of   that   person     in <\/p>\n
    makeup and   changed   look, disguising   the original look, by the <\/p>\n
    person   who had no opportunity to see that person earlier in the <\/p>\n
    original look cannot be believed.   In this context we  notice that <\/p>\n
    the police have  shown over enthusiasm in asking the Accused  no.1 <\/p>\n
    to   wear   the   wig   and   spectacles   and     put   on   the   dentures   and <\/p>\n
    shoot it and prepared  a CD, disclosing  the  goofy look of Accused <\/p>\n
    no.1   in the character    “Jassi”.   Learned Sessions Judge was also <\/p>\n
    swayed   and allowed the identification of Accused no.1   as Jassi <\/p>\n
    by the witness  believing  the CD at the time of  trial.                    Article <\/p>\n
    20(3) of the Constitution   of India states that no Accused   of any <\/p>\n
    offence shall be compelled to be a witness against himself.   Asking <\/p>\n
    the Accused  in the police custody to  change the  makeup for the <\/p>\n
    purpose of making CD  amounts to compelling the Accused  to give <\/p>\n
    incriminating  evidence  against  herself  which    is  prohibited  under <\/p>\n
    Article 20 (3) of the Constitution. It is to be noted that   if the <\/p>\n
    Accused is having  a peculiar look i.e. lame or having  curly  hair <\/p>\n
    or   squint eye, then for the purpose of identification parade   the <\/p>\n
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\n                                              56<\/span><\/p>\n
    police have to     find out the persons   similar to the look of the <\/p>\n
    Accused and   among those, the witness is to be asked to identify <\/p>\n
    the  person\/Accused.  In the present case, the Accused was made to <\/p>\n
    put\/wear  all these accessories to show how she was looking at the <\/p>\n
    time   of   incident.   This   may   be     relevant   but     it   is   an   evidence <\/p>\n
    illegally   collected   and     inadmissible   in   law.     Suspicion   however <\/p>\n
    grave it may be,  cannot take place of legal proof.\n<\/p>\n
    54.<\/p>\n
                       Curiously, through out the evidence, the Investigating <\/p>\n
    officer and all the witnesses   have described this  changed look of <\/p>\n
    Accused No.1 as  “Jassi”  which is   explained as the well known <\/p>\n
    fictitious character in the popular contemporary TV serial namely <\/p>\n
    “Jassi Jaisi Koi Nahin”.  The Accused have  objected to the use of  <\/p>\n
    this word “Jassi” by the  witnesses when deposed and pointed out <\/p>\n
    that     it is improved by them in the Court. Though the witnesses <\/p>\n
    have not used the   word  ‘Jassi’  at the time of recording   their  <\/p>\n
    statement and have admitted the improvement, it does not reduce <\/p>\n
    the credibility of the witnesses   on the proved fact that   Accused <\/p>\n
    No.1 used   to change her looks and appearance with the help of <\/p>\n
    the accessories  as mentioned above.   The word ‘Jassi’ was  coined <\/p>\n
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\n                                             57<\/span><\/p>\n
    by   the   Police and  the  Police have described  her  appearance as <\/p>\n
    Jassi. Wearing  a typical wig having hair style which was popularly <\/p>\n
    known as Sadhana Cut, dentures with protruded   teeth and round <\/p>\n
    frame   black     spectacles   gives   a   distinguishable   look   to  a   person <\/p>\n
    and that look was very much  like the  fictitious character  “Jassi”\n<\/p>\n
    and, therefore, all the witnesses have used this word.  However, the <\/p>\n
    fact   of   the   change   of   the   appearance       is   proved   by   all   the <\/p>\n
    witnesses.\n<\/p>\n
    55.                 While   assessing the evidence of the prosecution, <\/p>\n
    on the point of  abduction  one has to take note of the conduct of <\/p>\n
    the Accused  under Section 8 of the Evidence Act.  The prosecution <\/p>\n
    has tendered sufficient and reliable evidence  through the witnesses <\/p>\n
    on the point of   conduct of the Accused and their peculiar  modus <\/p>\n
    operandi   of   using     different   names,   preparing   and   using   forged <\/p>\n
    documents to stage-manage the incidents  under disguise.\n<\/p>\n
    56.              Deceased   Dr.   Deepak   Mahajan     was   admittedly <\/p>\n
    related to the Accused Nos. 1 and 2.     Relationship between the <\/p>\n
    Accused and the deceased is proved by PW-10 Pramod Falgune, who <\/p>\n
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\n                                           58<\/span><\/p>\n
    happens   to   be   a   real   brother   of   Accused   No.2.   He   has   given <\/p>\n
    evidence that Shridhar Mahajan-father of Dr. Deepak Mahajan was <\/p>\n
    maternal brother of the mother of Accused No.2. Shridhar Mahajan <\/p>\n
    who is PW-31 has supported   PW-10 on the point of relation with <\/p>\n
    Accused Nos. 1 and 2. Thus, Accused No.1 was  distantly related to <\/p>\n
    deceased Dr. Deepak Mahajan through Accused no.2.     PW-31 has <\/p>\n
    stated  about the  visit and meeting of Accused Nos. 1 and 2 with <\/p>\n
    deceased   Dr. Deepak Mahajan   and they both requested   him to <\/p>\n
    give one false certificate in respect of cause of death of  the mother <\/p>\n
    of Accused no.2 which was refused by Dr. Deepak Mahajan.   That <\/p>\n
    discloses that Dr. Deepak  Mahajan has seen Accused  No.1  in her <\/p>\n
    normal look and she was known to deceased.   Thus, it is to be <\/p>\n
    safely inferred  that previous acquaintance of the Accused no.1  and <\/p>\n
    the deceased is the reason  for Accused no.1  to change her looks <\/p>\n
    and appearance.       Accused No.1 wanted to present herself in a <\/p>\n
    goofy look so that her identity should not be revealed.\n<\/p>\n
    57.                It was argued that if the prosecution   witness like <\/p>\n
    Mansi Sandip Vinod(PW-20) and PW-2 Vikas Gard   could  identify <\/p>\n
    Accused No.1 in her changed look then Dr. Deepak Mahajan   who <\/p>\n
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\n                                            59<\/span><\/p>\n
    was related to her should have identified her. This argument is not <\/p>\n
    tenable if the   back ground of the said meeting at YCM Hospital <\/p>\n
    and at Shantanu Lodge is taken into account. Dr. Deepak Mahajan <\/p>\n
    was   given   the   offer   of   an     Honorary   Post   in   the     Orthopedic <\/p>\n
    department   at   Sanjivani   Hospital   run   by   Omkar   Charitable   Trust.\n<\/p>\n
    He was given the impression that trustees of the said trust were  to <\/p>\n
    meet him. Under such circumstances, naturally  Dr. Deepak Mahajan <\/p>\n
    believed   the   information   ex-facie   and   accepted     it.   One   cannot <\/p>\n
    imagine   that any distant relative may   approach as a person in <\/p>\n
    disguise.   Moreover,       the   deceased   is   not       closely   related   to <\/p>\n
    Accused no.1 but was distantly related and     was not in constant <\/p>\n
    touch   with   Accused   no.1.   Further   the   capacity   to   identify   the <\/p>\n
    disguise and to identify the person behind the mask differs from <\/p>\n
    man   to   man.   If   a   person   is   very   simple   and     naive,     cannot <\/p>\n
    imagine   such   goofy   look   and   so   it   is   not   unnatural   for   the <\/p>\n
    deceased to accept Accused no.1 in  the manner  in which she had <\/p>\n
    presented  herself. This disguised personality was one of the means <\/p>\n
    to commit the offence of abduction.\n<\/p>\n
    58.              Learned Prosecutor has submitted that the opening of <\/p>\n
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\n                                             60<\/span><\/p>\n
    Blue   Bird   Detective   Agency   was   the   part   of   the   conspiracy   of <\/p>\n
    abduction   of   Dr.   Deepak   Mahajan.   On   the  pretext   of     Blue   Bird <\/p>\n
    Agency, the Accused could hire the service of PW-1, PW-2 and CW-1.\n<\/p>\n
    Opening of Blue Bird Detective Agency in fact went unchallenged by <\/p>\n
    the   defence.   There   is     mere   denial   of   evidence.   However,     the <\/p>\n
    evidence of the set of  four witnesses(PW-1,PW-2,PW-3 and C-1) who <\/p>\n
    have applied to Blue Bird Detective  Agency is consistent on certain <\/p>\n
    facts   that   after   reading   the   advertisement   in   Sakal   of   Blue   Bird <\/p>\n
    Detective Agency  they found Cell Phone No. 9821486650 as contact <\/p>\n
    No.   and   thereafter     on   the   basis   of   that   advertisement   they <\/p>\n
    contacted   Accused   Nos.   1   and   2.     All   the   four   witnesses   have <\/p>\n
    identified Accused Nos. 1 and 2 as the persons who were  running <\/p>\n
    Blue Bird Detective Agency.\n<\/p>\n
    59.                Among the set of these four witnesses, evidence of <\/p>\n
    PW-1   and   CW-1   can   be   considered   later.   Witnesses   PW-2   Ashok <\/p>\n
    Jagannath   Magar   and   PW-3   Pravin   Dnyaneshwar     Kamble   have <\/p>\n
    deposed that they had gone to  meet these ladies at the office of <\/p>\n
    Blue   Bird   Detective   Agency   near   Vaibhaveshwar   Mandir,   Shanivar <\/p>\n
    Peth, Pune and Accused No.1 has  informed them that in Pune City, <\/p>\n
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\n                                            61<\/span><\/p>\n
    some   medical   practitioners   were   involved   in   Kidney   scandal   and <\/p>\n
    they had to   catch     those Doctors and collect information from <\/p>\n
    them. Both of them have submitted their bio-data and filled up  the <\/p>\n
    forms.   PW-3   has   deposed   that   Accused   No.1   told   him   that   one <\/p>\n
    Doctor from YCM Hospital was   to be  contacted for the purpose <\/p>\n
    of giving invitation and some papers   were to be handed over to <\/p>\n
    the said Doctor. The presentation of the letter and conversation with <\/p>\n
    the   Doctor   was     practiced.   PW-3   has   stated   that   Accused   no.1 <\/p>\n
    applied  white colour to her hair and also instructed that he should <\/p>\n
    apply     the colour to his hair like a senior person. However,   he <\/p>\n
    took objection. At that time, Accused No.1 convinced him that he <\/p>\n
    was doing the work for the Nation. However, he left the job.\n<\/p>\n
    60.                PW-2  Ashok Jagannath Magar corroborates all the <\/p>\n
    details in respect   of giving invitation and papers to Dr. Deepak <\/p>\n
    Mahajan. However, Accused  did not ask him to  change his looks.\n<\/p>\n
    He has deposed that Accused no.1 changed her identity\/looks by <\/p>\n
    using   makeup   accessories   and     was   looking   like     Jassi.   He   has <\/p>\n
    deposed that he acted as a person by name Yogendra Shirke whose <\/p>\n
    name   was     appearing   as   signatory     of   Exh.28.     PW-2   has  given <\/p>\n
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\n                                             62<\/span><\/p>\n
    details of his  meeting along with Accused No.1 in her goofy looks <\/p>\n
    to   deceased Dr. Deepak Mahajan and handing over letter to   Dr. <\/p>\n
    Deepak Mahajan on 30th June, 2006.\n<\/p>\n
    61.                 Both the witnesses PW-2 and PW-3 corroborate on <\/p>\n
    the material aspect of advertisement  of  employment in  Blue Bird <\/p>\n
    Detective   Agency   given   by   the   Accused,   the   interviews   taken   by <\/p>\n
    Accused of the candidates and  story of  Kidney Scandal in respect <\/p>\n
    of Dr. Deepak Mahajan who was working in YCM Hospital so also <\/p>\n
    the change of looks with make-up and  and handing over of letter <\/p>\n
    Exh. 28 to the Doctor.\n<\/p>\n
    62.               PW-2 and PW-3 were cross examined by the Accused <\/p>\n
    Nos. 1 and 2 in person.  Nothing damaging was brought in the cross <\/p>\n
    examination   of   these   two   witnesses.     In   this   background,   the <\/p>\n
    contention of the  Accused that the Police  have not conducted the <\/p>\n
    TI   parade     and     the   identification   in  the   Court   is   not   properly <\/p>\n
    proved, does not hold  substance.  When the witnesses have enough <\/p>\n
    opportunity to see the Accused Nos. 1 and 2 on different occasions <\/p>\n
    in   their   normal   look   and   Accused   No.1   in   her   changed   look   on <\/p>\n
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\n                                           63<\/span><\/p>\n
    certain   occasions   and   they   have   specifically   stated   about   her <\/p>\n
    distinguishable identity, then identification parade is not necessary.\n<\/p>\n
    The fact of   identity   is proved by the prosecution independently.\n<\/p>\n
    The purpose of Test Identification parade is to test the memory and <\/p>\n
    retention capacity of the  witnesses and to  rule out the possibility <\/p>\n
    of   mistaken   identity,   when   the   witnesses   have   seen   the   Accused <\/p>\n
    only once and had no   chance to see     them on more occasions <\/p>\n
    prior to the incident or  after the incident. This,  should ensure  the <\/p>\n
    correctness   of investigation to   eliminate the   error of mistaken <\/p>\n
    identity.   If correctly identified, it definitely gives assurance to the <\/p>\n
    investigating   machinery   about   the   proper   direction   of   the <\/p>\n
    investigation.\n<\/p>\n
    63.              Learned amicus curiae  and the Accused  No.1, both <\/p>\n
    have challenged the  evidence of both the eye witnesses (PW1 and <\/p>\n
    CW-1)  on various grounds. It was argued that  if the case of the <\/p>\n
    prosecution is accepted  as it is, then these two witnesses- PW-1 and <\/p>\n
    CW-1 are  the accomplice and  the evidence of accomplice  is not <\/p>\n
    admissible in the absence of corroboration. It is further submitted <\/p>\n
    that the corroboration of one accomplice  to the other accomplice is <\/p>\n
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\n                                            64<\/span><\/p>\n
    of no use and such evidence  is not  credit-worthy. Section 133 and <\/p>\n
    illustration of Section 114 of the Evidence Act were referred.\n<\/p>\n
          “Illustration   of   Section   114-     That   an   accomplice   is <\/p>\n
          unworthy of  credit, unless he is corroborated in material
\n          particulars.”\n<\/p><\/blockquote>\n
          “Section     133   :   An   accomplice   shall   be   a   competent <\/p>\n
          witness against an Accused person; and a conviction is not
\n          illegal   merely   because   it   proceeds   upon   the
\n          uncorroborated testimony of an accomplice.”\n<\/p><\/blockquote>\n
    64.              However, before we begin to assess the evidence of <\/p>\n
    PW-1 and CW-1 it is necessary to fix their status; whether  they are <\/p>\n
    accomplice or not ? As per their own evidence, they were employed <\/p>\n
    in Blue Bird Detective Agency  by both the Accused and they  have <\/p>\n
    participated   in   the   actual   act   of   abduction.     The   deceased   was <\/p>\n
    abducted by making  him unconscious and  they have participated <\/p>\n
    actively and  put him in the Matiz Car of the Accused.\n<\/p>\n
    65.              The learned  Trial Judge has discussed  the evidence <\/p>\n
    of   PW-1     at   length   as   to   how   he   and   Accused   No.1   went   to <\/p>\n
    Shantanu   Lodge.   Accused   No.2   has     booked   room   No.7   in   the <\/p>\n
    Shantanu Lodge. He stated the details of the role played by CW-1 as <\/p>\n
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\n                                             65<\/span><\/p>\n
    he was throughout  present alongwith  PW-1. The incident was   to <\/p>\n
    take place on 1st  July, 2006. However   the Accused No.1 could not <\/p>\n
    book the room in the   Hotel   of their choice and they got   the <\/p>\n
    booking in Shantanu lodge on 2nd July, 2006. Dr. Deepak Mahajan <\/p>\n
    was called for lunch. However, he did not accept the invitation for <\/p>\n
    lunch at Durvankur Hotel which was near Shantanu Lodge. PW-1 <\/p>\n
    has deposed about the presence of Accused No.1 in goofy look like <\/p>\n
    Jassi.   He   mentions   about   the   phone   calls   made   to     Dr.   Deepak <\/p>\n
    Mahajan from Shantanu Lodge on 2nd July, 2006. He deposed about <\/p>\n
    the rehearsal taken by the Accused Nos. 1 and 2  of PW-1 and CW-1 <\/p>\n
    of holding legs, hands and mouth of   Dr. Deepak Mahajan on the <\/p>\n
    previous day. He  says   how Accused No.1 had received  the Doctor <\/p>\n
    outside   Shantanu Lodge. The  Accused were having a Matiz Car of <\/p>\n
    grey colour. He has further deposed that the Doctor was  received <\/p>\n
    and brought in the  room   by Accused No.1. He came  on Activa <\/p>\n
    Scooter. PW-1 and CW-1, after receiving signal from Accused No.1, <\/p>\n
    both   caught   hold   of   the   Doctor   and   the   Accused   No.1   took   out <\/p>\n
    injection         and     inserted   in   the   hand   of     Dr.   Mahajan.     He <\/p>\n
    elaborately   described   further   that   when   the  Doctor   resisted,    the <\/p>\n
    needle which was inserted in the hand of  Dr. Mahajan   bent.   Dr. <\/p>\n
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\n                                            66<\/span><\/p>\n
    Mahajan bit  the Accused no.1 on her wrist  so she could not inject <\/p>\n
    the medicine in the body of  the Dr . Mahajan. The Accused threw <\/p>\n
    that bent  needle and took out another needle and used  another <\/p>\n
    needle for  injecting the medicine in the hand\/body of the Doctor <\/p>\n
    and thereafter  they  both lifted the Doctor  and put him into the <\/p>\n
    Matiz Car and took him to the  corner of Karve Road.\n<\/p>\n
    66.              While assailing the evidence of PW-1 and CW-1, the <\/p>\n
    prosecution   could   not   answer   satisfactorily     regarding   delay   in <\/p>\n
    recording statement of these witnesses. The Accused were arrested <\/p>\n
    on   7.7.2006.   Search   of   Uttamnagar   room   was   carried   out   on   the <\/p>\n
    same   day   and     the   file   containing   of   the   applications   of   the <\/p>\n
    candidates   who   have   applied     for   employment   in   Blue   Bird <\/p>\n
    Detective Agency was recovered.  Learned prosecutor has submitted <\/p>\n
    that on the basis of those applications in the file, they could trace <\/p>\n
    PW-1-   Ketan   Kale,   PW-2-   Ashok   Magar,   PW-3   Pravin   Kamble   and <\/p>\n
    CW-1 Rahul Bhosale. Statement of PW-2 was recorded in the last <\/p>\n
    week of July, 2006 and the statement of  both PW-1 and CW-1 were <\/p>\n
    recorded on 15\/9\/2006. Thus, nearly two months and one week after <\/p>\n
    the recovery of the file and arrest  of the Accused  the statement of <\/p>\n
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\n                                           67<\/span><\/p>\n
    these   witnesses   were   recorded.   The   learned   prosecutor   tried   to <\/p>\n
    explain   that besides the applications of these two persons there <\/p>\n
    were applications of other candidates   also and   the Police took <\/p>\n
    time to trace out the other persons. The Police interrogated them <\/p>\n
    and   it took time in getting these two candidates.   It was further <\/p>\n
    explained that the Police did not look into it and tried to investigate <\/p>\n
    on that line.   Thus, even though we accept these explanations, it <\/p>\n
    reveals  a gross negligence on the  part of the Investigating officer <\/p>\n
    who failed to be alert and  prompt.  We have  to treat it as  failure <\/p>\n
    of the investigating officer  to  study and analyze  the evidence  in <\/p>\n
    hand  diligently.  Similarly this throws light on the  disapprovable <\/p>\n
    conduct   of   these   two   witnesses.     They   both   have   admitted   that <\/p>\n
    after the incident of abduction and their participation in the said act <\/p>\n
    they came across the  news of murder of  Dr. Mahajan and arrest of <\/p>\n
    these two ladies and  it  shows that they realized that  they  have <\/p>\n
    committed a wrong  by getting involved in the commission of the <\/p>\n
    offence.   It is the tendency of the human being to stay away  from <\/p>\n
    any problematic  situation where he is likely to get entangled and <\/p>\n
    will have to  face the police.  However  any good citizen respecting <\/p>\n
    rule of law will come forward and approach the police. It would <\/p>\n
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\n                                             68<\/span><\/p>\n
    have  appreciated if these persons would have been approached the <\/p>\n
    police of their own and  informed them about  such participation.\n<\/p>\n
    However, it did not happen.  Both of them tried to hide themselves.\n<\/p>\n
    67.              It   is   required   to   be     mentioned   that,   in   the   first <\/p>\n
    round of trial the CW-1 was  not examined but  was examined on <\/p>\n
    the direction given by the High Court. The evidence of  CW-1 was <\/p>\n
    not available to the Trial Court. Non examination of this witness <\/p>\n
    was   also     a   loophole   in   the   case   of   the   prosecution.   While <\/p>\n
    explaining   the   reason,   Mr.   Mundergi   has   pointed   out   that   the <\/p>\n
    Accused have written two letters separately to PW1-Ketan Kale and <\/p>\n
    CW-1 Rahul  Bhosale that they should not support the prosecution <\/p>\n
    under the pressure of police. These  two letters are not denied by <\/p>\n
    the   Accused.   It   is   to   be   remembered   that   the   conduct   of   the <\/p>\n
    Accused during the trial should not be mixed up by the Trial Judge <\/p>\n
    under   Section   8   as   a   conduct   which   is   to   be   taken   as   an <\/p>\n
    incriminating   circumstance   and   relate   it   to   the   commission   of <\/p>\n
    offence. However, as the contents in the said letters are admitted by <\/p>\n
    the Accused, it shows  the prior acquaintance of the Accused with <\/p>\n
    these   two   witnesses.     Learned   Prosecutor   has  submitted   that   the <\/p>\n
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\n                                             69<\/span><\/p>\n
    evidence  of PW-1 Katen Kale  along with evidence of PW-3 Pravin <\/p>\n
    Kamble, PW- 2 Ashok Jagannth Magar is sufficient to prove the fact <\/p>\n
    of abduction and therefore to avoid repetition, CW-1 Rahul Bhosale <\/p>\n
    was   dropped. Though the explanation of dropping CW-1 is given, <\/p>\n
    the delay in tracing  PW-1 and CW-1 and recording their statements <\/p>\n
    by the police officer discloses  lethargy of the  Investigating Officer.\n<\/p>\n
    We  hold     the  Investigating  officer   PW-46     responsible    for  such <\/p>\n
    tardy and loose investigation.\n<\/p>\n
    68.               Witness CW-1 was examined in the second round of <\/p>\n
    the   trial   when   the   matter   was   sent     for     recording   of   further <\/p>\n
    evidence. He has corroborated   PW-1, in all   material particulars <\/p>\n
    except     very   minor   discrepancies   like   the   name   of   the   Accused.\n<\/p>\n
    However the identity of Accused No.1 and Accused 2 can be  fixed <\/p>\n
    on the basis of   the acts   attributed   to them by the witnesses <\/p>\n
    which   corroborates   with   the evidence of PW-1. At the time of <\/p>\n
    kidnapping the deceased was given anesthesia   and was made to <\/p>\n
    sleep by the Accused. For the  purpose of giving  general anesthesia, <\/p>\n
    the  drug- Thipentone was used. The said drug is available in the <\/p>\n
    market in white powder in the quantity of 500 mg   or 1000 mg.\n<\/p>\n
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\n                                            70<\/span><\/p>\n
    69.                To   prove   the   purchase   of   the   drug   namely <\/p>\n
    thipentone or Sodium   Pentothol\/Thisol prosecution has examined <\/p>\n
    five   witnesses.   PW-7   Vishal   Vaswani-   Owner   of   Darpan   Medical <\/p>\n
    General Store and   and PW8- Jayesh Dilipkumar  Magetia owner <\/p>\n
    of   Kashiba   Medical   and   General   Stores.   Thereafter   PW-9     Ajit <\/p>\n
    Bhagwan Mandle-  Panch witness,  PW-28 Milind Somnath Potnis a <\/p>\n
    service   Manager   in   Neon     Laboratory   and   I.   O.   PW-46   were <\/p>\n
    examined. The Bills  pertaining to date 23.4.2006  25.4.2006, 29.4.2006 <\/p>\n
    from   PW-8   Jayesh Majethia   i.e Exh. 46 to 49   from Kashiba <\/p>\n
    Medical  and General Store were proved through panch.\n<\/p>\n
    70.                  Learned     Special   prosecutor   has   submitted   that <\/p>\n
    Mr.   Milind   Somnath     Potnis-   PW-28   has     deposed   that   Neon <\/p>\n
    Laboratory is manufacturing thipentone  drug and said drug is used <\/p>\n
    for the purpose of anesthesia     and also he has confirmed that <\/p>\n
    batch   no.   172134   was   supplied   to   the   Distributors   at   Pune   and <\/p>\n
    Mumbai.   He   has   identified   the     seven   bottles   of   Thipentone <\/p>\n
    injections,   two   bottles   powder   and   five   empty   bottles     and <\/p>\n
    confirmed the Batch No. 172134 on the labels of those bottles.  Ld.\n<\/p>\n
    Prosecutor has further submitted that   PW-7 has deposed that in <\/p>\n
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\n                                              71<\/span><\/p>\n
    June, 2006 he   was having the stock of Sodium Pentathol   and <\/p>\n
    19.4.2006 he had sold one vial of Sodium Pentathol   to   D.   A.\n<\/p>\n
    Devasthali on the  prescription of one Dr. G. Patil  and he has also <\/p>\n
    issued the bill accordingly and he has deposed that the said lady is <\/p>\n
    before the Court. Further  learned Prosecutor pointed out that PW-8 <\/p>\n
    has  given the evidence on the similar lines that  he has purchased <\/p>\n
    25 vials of Sodium Pentathol   from Neon Laboratories     of Batch <\/p>\n
    172134   from Neyon   and on 13.9.06   Police had come alongiwth <\/p>\n
    Accused no.1 and he identified Accused no.1 as the lady  who had <\/p>\n
    come  on 24.4.2004 and have  purchased six vials  of thisol  sodium <\/p>\n
    of batch no. 172134 alongwith  six bottles of distilled water so also <\/p>\n
    on 25.4.2006 and  29.4.2006  both of them have purchased   Injection <\/p>\n
    Thisol Sodium   500 gms.  from  batch no. 172134, seven vials  and <\/p>\n
    four   vials     and   so   also     bottles   of   distill   water.       PW-8   has <\/p>\n
    identified the Accused No. 1and also the  bills issued in the name of <\/p>\n
    Deepti   Devasthali   were   proved   by   them.   Ld.   Prosecutor   has <\/p>\n
    submitted   that     in   the   search   of   the   house   of   the   Accused   at <\/p>\n
    Krishniwatika,   Police   has   seized   a   box     vials   of     the   injections <\/p>\n
    sodium   Pentathol   and     thus   the     prosecution   has   proved     that <\/p>\n
    Accused   no.1   has   purchased   sodium   pentathol     from     Nashik.\n<\/p>\n
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\n                                             72<\/span><\/p>\n
    Learned     counsel   Rohini   Salian   appearing   for     the   Accused   has <\/p>\n
    drawn our attention to the cross examination of these  two medical <\/p>\n
    shopkeepers PW-7 and PW-8.\n<\/p>\n
    71.              Accused   No.1   and   Accused   No.2   both   have   cross <\/p>\n
    examined these two witnesses at length. In the cross examination <\/p>\n
    PW-7 has admitted that  nearly  40 to 50 persons purchased   drug <\/p>\n
    from   his   shop   through   the   day   and     he   did   not   recollect   that <\/p>\n
    Accused   had purchased any drug from his shop on any occasion.\n<\/p>\n
    He saw  Accused no.1 only once   i.e. on 19.4.06 and thereafter, on <\/p>\n
    13.9.06 he identified her. He has also admitted the overwriting of the <\/p>\n
    date   of   the   bills     Exh.41   and   43.   Similarly   PW-8     has   given <\/p>\n
    admission   that       prescription   of   Dr.   Patil   were   used   to   come <\/p>\n
    regularly to his shop and he  knew that  Dr. Patil and Dr. Gaikwad <\/p>\n
    were from veterinary hospital.   He has also given   admission that <\/p>\n
    one or two   injunctions are prescribed  for  the purpose of   one <\/p>\n
    operation   by   the   Doctor   and   he   did   not   ask     the   reason   for <\/p>\n
    purchase of injection in bulk quantity  to the Accused.\n<\/p>\n
    72.                 The Learned Amicus  curiae and also Accused no.\n<\/p>\n
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\n                                            73<\/span><\/p>\n
    1 on the basis of these submissions   argued that  the prosecution <\/p>\n
    have not examined Dr. Gaikwad or Dr. Patil. Though their statements <\/p>\n
    were recorded   it was necessary for the prosecution to show that <\/p>\n
    the prescriptions were false. Identification  by both the witnesses of <\/p>\n
    the Accused is also challenged.\n<\/p>\n
    73.              Medical Bills   Exh.41   and  43   show   overwriting   and <\/p>\n
    alteration in the date.   It is   not possible for   the chemist   to <\/p>\n
    remember the face of the  person  who has visited to his shop only <\/p>\n
    once   after   four   months.     The   submissions   of   Accused   no.   1   and <\/p>\n
    learned  amicus curiae Ms.  Rohini Salian   on known examination <\/p>\n
    of Dr. Patil and Dr. Gaikwad are convincing.  The bills  41, 43  so <\/p>\n
    also Exh. 48 appear manipulated document and there was no reason <\/p>\n
    for these two chemists  to remember the face of the Accused in the <\/p>\n
    absence   of   any   special     incident.   Hence   the     evidence   of   the <\/p>\n
    purchase of thisol sodium of PW-7 and PW-8   by the Accused is <\/p>\n
    found not reliable. The prosecution has, therefore,   failed   on this <\/p>\n
    point of purchase of thisol sodium from PW-7 and PW-8.\n<\/p>\n
    74.              The   learned   special   prosecutor   has   successfully <\/p>\n
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\n                                               74<\/span><\/p>\n
    connected the articles which were found  in the Uttamnagar room <\/p>\n
    during the panchanama of seizure with the use of thipentone   by <\/p>\n
    the Accused.   Article 22. Exh.69- seven bottles were found in one <\/p>\n
    hand bag  of 500 mg. of Neon Laboratory of which two bottles were <\/p>\n
    sealed containing white powder and five bottles were empty having <\/p>\n
    batch  No.  172134 manufacturing date  October,  2005.  PW-34 in the <\/p>\n
    Panchanama Exh.163 dated 11.7.2008 of Krishna Vatika, Dahisar Flat <\/p>\n
    No.   1,   a   Box   of   25   bottles,   12   bottles   were   used   and   13     were <\/p>\n
    containing powder, 15 Bottles   of distilled water were found.   Exh.\n<\/p>\n
    163- Thisol   having batch No. 172134 manufacturing date October <\/p>\n
    2005.   The defence could not demolish this concrete circumstantial <\/p>\n
    evidence.   Thus   seizure   of   thisol   in   Uttamngar     and     at   Krishna <\/p>\n
    Vatika and  use of Thisol at the time of commission of  offence  by <\/p>\n
    the   Accused is proved by the prosecution by leading   consistent <\/p>\n
    and cogent evidence.\n<\/p>\n
    75.                We are required to see whether the prosecution has <\/p>\n
    proved   that   Accused   no.   1   and   2     have   committed     culpable <\/p>\n
    homicide amounting to murder  punishable under Section 302 read <\/p>\n
    with Section 34 of the Indian Penal Code ?    The exact cause of <\/p>\n
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\n                                           75<\/span><\/p>\n
    death could not be given as the whole body was not available for <\/p>\n
    postmortem  examination and  the parts available were decomposed.\n<\/p>\n
    The body parts were cut probably after  the death. All these parts <\/p>\n
    may  be of one person.  Separation of the parts is  possible with <\/p>\n
    the knife which was shown  i.e. Articles  45\/47  recovered from  the <\/p>\n
    room hired by the Accused at Uttamnagar.  On the characteristic  of <\/p>\n
    Thipentone  drug   and method  of its  use PW 28-Milind Somkant <\/p>\n
    Potnis and  PW-45-Balasaheb Dagdu Pande  both have corroborated <\/p>\n
    that the effect  of the  drug is based on the quantity of the dose.\n<\/p>\n
    It is to be administered Intravenously  (IV). Over dose of thipentone <\/p>\n
    affects   respiratory   system   and   sudden     fall   of   blood     pressure <\/p>\n
    resulting in death. It is important to  note that   thipentone  is the <\/p>\n
    drug     which   does   not   leave   its   trace.   This   drug,       when <\/p>\n
    administered, within 15 to 30 second affects the brain  so that the <\/p>\n
    person goes to sleep. Thereafter the drug  is  distributed\/spread in <\/p>\n
    the body and is  detoxified in the   liver. The drug thipentone  has <\/p>\n
    unique characteristic  that after a period of some  hours it  leaves <\/p>\n
    no  trace of it in the blood or body.   It is to be remembered that <\/p>\n
    the thipentone is a drug mainly used for induction of anaesthesia <\/p>\n
    and  it is not a poison.   However there is no  conclusive proof  to <\/p>\n
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\n                                           76<\/span><\/p>\n
    accept that Dr.  Mahajan died due to the said drug only.  It  only <\/p>\n
    can be said     Dr. Mahajan might have died due to overdose of <\/p>\n
    thipentone.\n<\/p>\n
    76.              A   person   can   be   said     to   be   an   accomplice   who \n\n\n\n\n                                                            \n    actually  participates in the    commission  of offence  and  shares  a \n\n<\/pre>\n
    similar intention to do so along with the Accused. If a person is <\/p>\n
    hired for the commission of offence by paying some money and  he <\/p>\n
    accepts   to commit the crime, then that person   is an accomplice.\n<\/p>\n
    CW1 and PW-1, as per the case of the prosecution, have   actually <\/p>\n
    participated in abducting  Dr. Mahajan which is an illegal act. They <\/p>\n
    both helped   Accused no.1 when she injected drug to  the deceased <\/p>\n
    Dr. Deepak Mahajan.    The act of holding the deceased to enable <\/p>\n
    the Accused to the inject drug is no doubt   the participation  in <\/p>\n
    the   crime     or   offence.   However,   these   two   witnesses   cannot   be <\/p>\n
    labelled as   accomplice in   true sense   due to another unfolded <\/p>\n
    layer   of   evidence     of   their   employment   in   Blue   Bird   Detective <\/p>\n
    Agency.  The Accused have  informed them that it being a detective <\/p>\n
    agency, their task was to   record the   statement of     a Doctor <\/p>\n
    involved in Kidney scandal. Such   acts are required to be done  by <\/p>\n
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\n                                            77<\/span><\/p>\n
    the   detective   agency.     Running   a   detective   agency   is   neither   an <\/p>\n
    illegal act, nor an incriminating circumstance, if taken in isolation.\n<\/p>\n
    To run a detective agency  and to commit offence under the garb of <\/p>\n
    the work of the detective agency is a brilliant devilish idea which <\/p>\n
    was   implemented   by   the   Accused.   Public   advertisement   in   the <\/p>\n
    newspaper   about   employment   in     detective   agency   and     regular <\/p>\n
    office in Pune, has definitely  created confidence in the minds of <\/p>\n
    these   witnesses, who believed the story  of involvement  of   the <\/p>\n
    deceased doctor in the   kidney   scandal and an idea   to   abduct <\/p>\n
    him for the purpose of  recording  his statement by the head of the <\/p>\n
    detective     agency   who   was     Bombay   based   was   believed   to   be <\/p>\n
    genuine by them.   Therefore,   as per the bonafide belief of PW-1 <\/p>\n
    and CW-1  their  participation  was a part of  their duty being the <\/p>\n
    employees of a detective agency.  Their  evidence fully corroborates <\/p>\n
    with the evidence of many other circumstances.  It is not the case <\/p>\n
    that besides the evidence of these two witnesses on the point of <\/p>\n
    abduction, no evidence is tendered by the prosecution.  Evidence of <\/p>\n
    PW-4   (Vikas   Harischandra   Garad)   who   was     the   Manager   of <\/p>\n
    Shantanu Lodge has identified the photographs of PW-1   on the <\/p>\n
    application forms for employment in Blue Bird Detective Agency. The <\/p>\n
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\n                                             78<\/span><\/p>\n
    application   forms   of   these   two   witnesses   were   found   in   the   file <\/p>\n
    which   was  found     and     seized     at   the  time  of   Panchanama  of <\/p>\n
    Uttamnagar Room. This file contains many application forms of the <\/p>\n
    candidates for   employment in Blue Bird Detective Agency, out of <\/p>\n
    which these two application forms,  Form- Exh.23 is of PW-1-Ketan <\/p>\n
    Kale and     Exh.230 of CW-1 are evident to show that they were <\/p>\n
    really employed in Blue Bird Detective Agency by the Accused. PW-2 <\/p>\n
    Ashok   Jagannath   Magar   and     PW-3   Pravin   Dayanand   Kamble <\/p>\n
    corroborates  the evidence of  PW-1 and CW-1.\n<\/p>\n
    77.               Dr.   Deeak   Mahajan     came   to   Shantanu   Lodge   on <\/p>\n
    Activa Scooter and said scooter was taken  by  CW-1 Rahul Bhosale <\/p>\n
    and was kept at Shivajinagar and it was informed telephonically to <\/p>\n
    PW-11 Dr. Smita Mahajan. The said scooter was not found at the <\/p>\n
    first instance to the police  but was found subsequently by PW-46-\n<\/p>\n
    Investigating Officer-Bharat  Patil at the spot which was informed by <\/p>\n
    the Accused to Dr. Smita Mahajan. Evidence of  PW-12- Preet Babil <\/p>\n
    Panch   of   the   Panchanama   of   Uttamnagar   room   corroborates   the <\/p>\n
    details   given   by   PW-1   and   CW-1   that   the   needle   was   bent   so <\/p>\n
    Accused  no.1  threw that  bent    needle and  used  other  needle to <\/p>\n
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\n                                            79<\/span><\/p>\n
    inject     drug   to   Dr.Mahajan.     One   bent   needle   and   syringe   were <\/p>\n
    found and seized   at the time of Panchanama at Uttamnagar. The <\/p>\n
    fact of change of appearance and looks is proved by the prosecution <\/p>\n
    through   the   witnesses   and   also   by   seizure     of   the   articles   of <\/p>\n
    makeup.    Hence, the Sessions Judge was correct in believing PW-1.\n<\/p>\n
    The  evidence of CW-1 has come before  us  afresh and we found it <\/p>\n
    unshaken   and reliable. Thus the prosecution has established that <\/p>\n
    the Accused  Nos.  1  and   2 had  conspired   to abduct   Dr.   Deepak <\/p>\n
    Mahajan and had  abducted him on 2.7.2006 from Shantanu Lodge <\/p>\n
    and have  committed various offences in order to commit abduction.\n<\/p>\n
    78.                 We    shall  have  to   consider     the  offence  under <\/p>\n
    varies  sections with which the Accused  are charged. Section  364-A <\/p>\n
    deals with abducting  a person for ransom. The essential ingredients <\/p>\n
    of the section are as follows:\n<\/p>\n
          (i) That the Accused kidnapped or abducted a person; or\n<\/p><\/blockquote>\n
          (ii)  That the Accused kept such person under his detention;\n<\/p><\/blockquote>\n
          (iii)That the Accused threatened to cause death or hurt to such <\/p>\n
             person or caused death or hurt to him;\n<\/p><\/blockquote>\n
          (iv)That the Accused did commit so to compel\n<\/p><\/blockquote>\n
             (a)  the Government; or\n<\/p><\/blockquote>\n
             (b) any foreign state; or<\/p>\n
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\n                                             80<\/span><\/p>\n<\/blockquote>\n
             (c) Inter government organisation; or\n<\/p><\/blockquote>\n
             (d) any other person<\/p>\n<\/blockquote>\n
          (v) That the Accused compelled to do or abstain from  doing any
\n             act or to pay any ransom.<\/p><\/blockquote>\n
            In   the   present     case   the   prosecution   has   proved     all   the <\/p>\n
    ingredients of Section 364-A that Accused No.1 and 2 have conspired <\/p>\n
    to   abduct  and have abducted  Dr. Deepak Mahajan. While taking <\/p>\n
    Dr. Deepak Mahajan, the Accused Nos 1 and 2 have   made him <\/p>\n
    unconscious and kept him under their detention in Room No. 7 of <\/p>\n
    Shantanu Lodge and thereafter  in   their Matiz car. Further,   the <\/p>\n
    Accused have threatened to cause death or    hurt to   Dr. Deepak <\/p>\n
    Mahajan  and they  did this to  compel Dr. Smita Mahajan to pay <\/p>\n
    ransom   of   Rs.25   Lakhs.     Both,   Accused   No.1   and   Accused   No.2 <\/p>\n
    shared common intention and have planned a   sinister design to <\/p>\n
    abduct Dr. Deepak Mahajan. The conspiracy is   absolutely evident <\/p>\n
    and proved.\n<\/p>\n
    79.               On the point of demand of ransom, the prosecution <\/p>\n
    relied  on the telephonic conversion which was  heard by Dr. Smita <\/p>\n
    and     and Investigating Officer PW-46 at the police station.       In <\/p>\n
    telephonic   talk,   the     person   talking   on   the     other   end     had <\/p>\n
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\n                                           81<\/span><\/p>\n
    threatened Dr. Smita.  As per their  instructions – if she wanted the <\/p>\n
    Doctor  alive  she  should  pay  Rs.25   lacs.      It   was  argued  by   the <\/p>\n
    defence that as per the evidence of the prosecution witness, the said <\/p>\n
    demand  of Rs.25\/- lacs was neither pressed nor  there was actual <\/p>\n
    handing over of the money and thus, in fact there was no intention <\/p>\n
    of demanding ransom while  Dr. Deepak Mahajan was abducted and <\/p>\n
    hence the act of the  Accused will not fall under Section  364-A of <\/p>\n
    the Criminal Procedure Code. Section 364-A   does not require the <\/p>\n
    amount   of   ransom   is   to   be     actually   parted   with   from   the <\/p>\n
    complainant to the Accused. It requires only a threat  of death or <\/p>\n
    hurt or even reasonable hurt that the person may be put to death <\/p>\n
    or hurt  to pay ransom.  The  Accused,   by   attending   telephone\/ <\/p>\n
    Mobile  of  Dr. Deepak Mahajan gave threats on the same phone to <\/p>\n
    Dr. Smita  which confirmed the fact of abduction and also give rise <\/p>\n
    to reasonable apprehension  to Dr. Smita that Dr. Mahajan may be <\/p>\n
    put to death or   hurt and simultaneously   ransom of Rs.25\/- lacs <\/p>\n
    was demanded with specific threat of killing Dr. Deepak Mahajan.\n<\/p>\n
    80.              ‘Abduction’   is   defined   under   Section   362   of   he <\/p>\n
    Indian   Penal   Code.   Section   364A     is   an   aggravated       form   of <\/p>\n
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\n                                              82<\/span><\/p>\n
    abduction under which the punishment  of death  or imprisonment <\/p>\n
    for life so also  fine is prescribed.  The learned Sessions Judge has <\/p>\n
    sentenced  both the Accused   to be hanged by neck until  they are <\/p>\n
    dead subject to conformation of the High Court.  As we hold both <\/p>\n
    the Accused guilty of Section 364-A we need to hear the Accused on <\/p>\n
    the point of sentence of death.\n<\/p>\n
    81.               The Accused are also charged  under Section 387 of <\/p>\n
    the Indian Penal Code for the commission of offence of extortion <\/p>\n
    which requires  putting or attempting  to put any person in fear of <\/p>\n
    death   or   grievous   hurt     to   that   person   or   any   other,   for   which <\/p>\n
    punishment  of imprisonment upto 7 years is prescribed.   Evidence <\/p>\n
    adduced  in respect of Section  365-A and Section 387  is relied for <\/p>\n
    the propose of  proving of  offence under Section  387 read with <\/p>\n
    120 (b) of the Indian penal Code. The learned Sessions   held the <\/p>\n
    Accused guilt of the same   and has awarded   sentence  of seven <\/p>\n
    years rigorous imprisonment and to pay fine of Rs.10,000\/- each, in <\/p>\n
    default rigorous imprisonment for three months. We agree with the <\/p>\n
    said  sentence.\n<\/p>\n
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\n                                             83<\/span><\/p>\n
    82.               Under Section 328 of the Indian penal Code,   if a <\/p>\n
    person administers to or causes to  be taken by the any person any <\/p>\n
    poison or any stupefying, intoxicating or unwholesome drug or other <\/p>\n
    thing with   intent to cause hurt   to such   person, with intent to <\/p>\n
    commit or facilitate  commission of an offence or  knowing it to be <\/p>\n
    likely that he will thereby  cause  hurt, the offence  is committed. It <\/p>\n
    is to be noted that the offence under this  section is  complete even <\/p>\n
    if   no   hurt   is  caused   to   the  victim.   Mere     administration   of   the <\/p>\n
    poison or unwholesome drug or other  things is sufficient to bring <\/p>\n
    the offender   under this section.  Intention to cause  hurt  to such <\/p>\n
    person   to   commit   or   to   facilitate   to   commit   an   offence   or <\/p>\n
    knowledge   that     hurt   will   be   caused   should   be   present.\n<\/p>\n
    Thipentone\/sodium thisol as discussed above is not a poison but  it <\/p>\n
    is a drug having   effect of paralyzing   the function of the brain.\n<\/p>\n
    Thipentone   is required to be injected through intravenously. This <\/p>\n
    drug is to be injected slowly  and it cannot be given  in the muscle <\/p>\n
    and therefore, the administration of  this drug itself needs a lot of <\/p>\n
    caution and basic medical knowledge and specialized  knowledge of <\/p>\n
    injecting the  drug  in the  vein. If the drug is administered quickly, <\/p>\n
    then it may  have adverse effect. The prosecution has  brought this <\/p>\n
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\n                                           84<\/span><\/p>\n
    through   the   evidence     PW-   28   Shri   Milind     Potnis   and   PW-45 <\/p>\n
    Balasaheb Dagdu Pande  who have deposed that it can cause    a <\/p>\n
    decrease in blood pressure and its  may result in respiratory arrest <\/p>\n
    or   cardiac   arrest and   after injecting it   affects the brain and <\/p>\n
    nervous   system of the body. Hence offence under Section   328 of <\/p>\n
    IPC     is proved beyond reasonable doubt.       For this offence, the <\/p>\n
    learned  Sessions Judge has sentenced  the   Accused    to  undergo <\/p>\n
    rigorous imprisonment   for seven years and pay fine of Rs.7,000\/-\n<\/p>\n
    each,   and   in default awarded further rigorous imprisonment for <\/p>\n
    three months. We agree with the  extent of sentence given by the <\/p>\n
    learned Sessions Judge.\n<\/p>\n
    83.              It is submitted that the prosecution has proved  that <\/p>\n
    the Accused have committed the offence of forgery in respect of <\/p>\n
    creating   and using   fake driving licence in the name of Rui Raj <\/p>\n
    Mathur  and  thus has committed offence under Section  465  and <\/p>\n
    468 of the Indian Penal Code.   Section 465 is the penal section. For <\/p>\n
    committing offence of  forgery a false document i.e. driving licence <\/p>\n
    in   the   name   of   Rui   Raj   Mathur   was   prepared   and   used.   While <\/p>\n
    committing forgery the Accused Nos. 1 and 2 had intention that the <\/p>\n
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\n                                           85<\/span><\/p>\n
    said document would be used for the   purpose of cheating. The <\/p>\n
    prosecution could prove that the  driving  licence  which stood in <\/p>\n
    the name of Rui Raj Mathur was used for the purpose of obtaining <\/p>\n
    Mobile   SIM   card   from   the   Cell   Phone   Company   and   thus,   the <\/p>\n
    prosecution could establish the offence  under Section 465 and 468 <\/p>\n
    of   the   Indian   penal   Code.     Punishment   given   by   the   learned <\/p>\n
    Sessions Judge of  two months  rigorous imprisonment and fine of <\/p>\n
    Rs.5000\/-, and in default   to suffer RI for three   months   for the <\/p>\n
    offence proved under section 465 read with section 120-b of the IPC <\/p>\n
    and  the punishment   of five years  rigorous imprisonment  and <\/p>\n
    fine of  Rs.10,000\/-  in default, 3 months  for the offence punishable <\/p>\n
    under Section 468 is appropriate.\n<\/p>\n
    84.              Offence under Section 419 of IPC  – Section 406 of <\/p>\n
    the IPC   defines cheating by personation.   Offence under Section <\/p>\n
    429 is completed if person cheats by personation. The Accused Nos.\n<\/p>\n
    1   and   2   both   have   represented   themselves   with   different   names.\n<\/p>\n
    However, it is to be noted that just to represent oneself by changing <\/p>\n
    name does not constitute  offence of personation under section 419 <\/p>\n
    of the IPC  but it should be clubbed with cheating.   In the present <\/p>\n
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\n                                            86<\/span><\/p>\n
    case, there was  a cheating by Accused Nos.  1 and 2 as they made <\/p>\n
    efforts  to  made   others   believe    that   they   were   different   entities.\n<\/p>\n
    Thus,   the     offence   under   Section   419   is   also   proved   by   the <\/p>\n
    prosecution. The   learned Sessions Judge   has punished them to <\/p>\n
    suffer rigorous imprisonment for three years and to pay fine of Rs.\n<\/p>\n
    10,000\/-   each   and   in   default   to   suffer   rigorous   imprisonment  for <\/p>\n
    three months.  We find no  need to disturb the  finding.\n<\/p>\n
    85.<\/p>\n
                     Section  342 speaks about wrongful  confinement. Dr. <\/p>\n
    Deepak Mahajan was  wrongfully confined  by the  Accused and the <\/p>\n
    said fat was proved through the witnesses.     We   agree with the <\/p>\n
    punishment   given by the learned Sessions Judge which is of one <\/p>\n
    year  rigorous imprisonment and fine of Rs.1000\/each and in default <\/p>\n
    to suffer rigorous imprisonment  for one month.\n<\/p>\n
    86.              The Accused Nos. 1 and 2  have  also  been charged <\/p>\n
    for the offence punishable under Section 471 of the Indian Penal <\/p>\n
    Code.   If   the person uses a forged document with knowledge, as <\/p>\n
    genuine,   then   he   commits     offence   under   Section   471   of     IPC.\n<\/p>\n
    Driving   licence     in   the   name   of     Rui   Raj   Mathur   was   forged <\/p>\n
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\n                                           87<\/span><\/p>\n
    document  and by producing that document Mobile SIM Card  was <\/p>\n
    obtained by the Accused. Thus, it     was used as genuine. So also <\/p>\n
    the Accused have prepared a letter Exh.28 in the name of Omkar <\/p>\n
    Charitable Trust  giving the offer  of  job  to Dr. Deepak Mahajan <\/p>\n
    for the post of  orthopedic surgeon.  There was no  such  offer in <\/p>\n
    reality   for   Dr.   Deepak   Mahajan   to     join   as     Head   in   the <\/p>\n
    Orthopedic   department   in   Sanjivani   Hospital   run   by   Omkar <\/p>\n
    Charitable Trust. However, this particular offer was faked by creating <\/p>\n
    \/forging a false letter. The said fake letter was  used as a bait to <\/p>\n
    lure Dr. Deepak Mahajan who was made to believe   that forged <\/p>\n
    document as genuine and became prey to the sinister  design of the <\/p>\n
    Accused. The Sessions Judge rightly convicted the Accused   Nos. 1 <\/p>\n
    and   2   for   the   offence   punishable   under   Section   471   read   with <\/p>\n
    Section   120-B   of   the   IPC   and     sentenced   to   undergo     rigorous <\/p>\n
    imprisonment   for   three  years    and   to  fine  of   Rs.3000\/-   each,  in <\/p>\n
    default to suffer  further IR for three months. We concur with the <\/p>\n
    finding   and     the   punishment   awarded   by   the   learned   Sessions <\/p>\n
    Judge.\n<\/p>\n
    87.              There is  no eye witness to the fact of murder of Dr. <\/p>\n
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\n                                             88<\/span><\/p>\n
    Deepak Mahajan.  The case of the prosecution is based only on the <\/p>\n
    following circumstantial evidence, direct and indirect, which can be <\/p>\n
    summarised as under:\n<\/p>\n
          i. Last seen together
\n          ii. Discovery of body parts at the instance of Accused No.2
\n          iii.    (a)  Room at Uttamnagar<\/p>\n<\/blockquote>\n
                 (b) Panchanama of  Uttamnagar Room and the
\n                    articles\/weapons found therein.\n<\/p><\/blockquote>\n
          iv. DNA ( para 90, 91 and 92)
\n          v.  Discovery of Matiz Car <\/p>\n
          vi. Arrest Panchanama
\n          vii. Case diary (-)<\/p>\n<\/blockquote>\n
    88.                To destroy the case of the prosecution on the point <\/p>\n
    of identification of the body of Dr. Deepak Mahajan, the defence has <\/p>\n
    pointed   out   the   circumstances   \/   loopholes   in   the   case     of   the <\/p>\n
    prosecutions   which can be sumamrised as follows.<\/p>\n
\n\n\n\n\n\n                            POINTS RAISED BY DEFENCE \n    (1)                 Identification of the body in absence of head and \n                        hands\n    (2)                 Specious DNA\n\n\n\n\n\n    (3)                 Cause of death not established\n    (4)                 Planting of shirt of Dr. Mahajan\n    (5)                 Challenge to discovery Panchanama\n    (6)                 Blood   group   of         Dr.   Deepak   Mahajan   is   not \n                        brought on record.\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 15:08:10 :::<\/span>\n                                            89<\/span>\n\n    (7)               Forensic Panchanama of   Room at Uttamnagar not \n                      done.\n\n\n\n\n                                                                                      \n    (8)               Purse  Panchanama.\n    (9)               Delay   in   finding   Matiz   Car   of   more   than   two \n\n\n\n\n                                                              \n                      months\n    (10)              Unsolved mystery of five days.\n\n<\/pre>\n
    89.              In   the   present   case   there   is   no   eye   witness.   The <\/p>\n
    theory   of   last   seen     together   was   pressed   into   service   by   the <\/p>\n
    learned special prosecutor.   Ld. Counsel Mr. Mundargi has   argued <\/p>\n
    that    Doctor Deepak Mahajan  was seen last  in the company of <\/p>\n
    Accused Nos. 1 and 2. PW-1 and C-1 are the witnesses on this vital <\/p>\n
    point.   To establish the     offence of murder, the   prosecution has <\/p>\n
    heavily relied on the  ‘last seen together’   theory  and  contended <\/p>\n
    that in the absence of   any  explanation as to when the Accused <\/p>\n
    left the company of Dr. Mahajan,   Section 106 of the Indian Penal <\/p>\n
    Code is to be invoked.\n<\/p>\n
    90.               It is the defence of the Accused that   these   two <\/p>\n
    witnesses PW-1 and CW-1 have  committed murder with the help of <\/p>\n
    Ratansingh     and   were   involved   in   the   murder   of   Dr.   Deepak <\/p>\n
    Mahajan. The other defence was also suggested at the most it can <\/p>\n
    be said   that these two Accused ladies     abducted the deceased <\/p>\n
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\n                                             90<\/span><\/p>\n
    Doctor  and handed him over to other persons namely Ratansingh, <\/p>\n
    Bismilla and Ganu who might have killed the Doctor and cut the <\/p>\n
    body of the Doctor into parts.   Thirdly,  at the time of recording <\/p>\n
    further statement under Section  313, while answering Question No.<\/p>\n
    87,     Accused   no.2   answered     that   one   Jayashree     Vipradas   and <\/p>\n
    Sadanand Kenge have committed  murder and fourthly  through the <\/p>\n
    arguments names of  Dr. Smita and  Parag Mahajan  were suggested <\/p>\n
    as   the     culprits.     Thus   the     explanation   given   by   the   defence <\/p>\n
    appears to be inconsistent and imaginary.  In this  back ground and <\/p>\n
    considering   the   proof   of     the   other   circumstantial   evidence   we <\/p>\n
    assess   how   far   the   prosecution   can   get   the     benefit   of     under <\/p>\n
    Section 106 of the Evidence Act.\n<\/p>\n
    91.              Section 106 states that  “when  any fact is especially <\/p>\n
    within the knowledge of any person, the burden of proving that fact <\/p>\n
    is   upon   him”.       Section 106 cannot be freely applied to the  <\/p>\n
    Accused in the criminal trial. The Accused may be covered under <\/p>\n
    the phrase “any person”. However the applicability  of the  section  <\/p>\n
    is restricted by the basic principle of criminal jurisprudence that the <\/p>\n
    burden on the prosecution to prove the facts  never shifts.  In fact, <\/p>\n
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\n                                             91<\/span><\/p>\n
    the real culprit   knows the fact about the commission of offence, <\/p>\n
    yet, Section 106 cannot be  applied to the Accused because there is <\/p>\n
    every possibility of   false implication of the person, either by the <\/p>\n
    complainant   or   by   the   police.   To   hold   the   innocent   guilty   is   a <\/p>\n
    serious   miscarriage   of   justice.   Therefore,   the   Accused   is   always <\/p>\n
    insulated with the  right to silence.   Disclosure  of the  subsequent <\/p>\n
    facts within the knowledge of the Accused thereafter takes colour <\/p>\n
    of the confession which is barred under section 25 of the  Evidence <\/p>\n
    Act.\n<\/p>\n
    92.               On the point of  “last seen together,  the prosecution <\/p>\n
    has relied on the case of State of Rajasthan Vs. Kashi Ram Vs. (2006 <\/p>\n
    12 SCC 254 )  in which it is observed that:\n<\/p>\n
               “19.  Before adverting to the decisions relied upon by the <\/p>\n
               counsel for the State, we may observe that   whether an <\/p>\n
               inference ought to be drawn under Section 106 Evidence <\/p>\n
               Act is a question which must be determined by reference <\/p>\n
               to proved.   It is ultimately a matter   of appreciation of <\/p>\n
               evidence and, therefore, each case must rest on its own <\/p>\n
               facts”\n<\/p><\/blockquote>\n
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\n                                             92<\/span><\/p>\n
               “In   a     case   resting   on   circumstantial   evidence   if   the <\/p>\n
               Accused fails to offer a reasonable explanation in discharge <\/p>\n
               of   the   burden   placed   on   him,   that   itself   provides   an <\/p>\n
               additional   link   in   the   chain   of     circumstances   proved <\/p>\n
               against   him.     Section   106   does   not   shift   the   burden   of <\/p>\n
               proof   in   a   criminal   trial,   which   is   always   upon   the <\/p>\n
               prosecution.  It lays down the rule that when the Accused <\/p>\n
               does not throw any light upon facts which are especially <\/p>\n
               within   his knowledge and which could not support any <\/p>\n
               theory   or   hypothesis   compatible   with   his   innocence,   the <\/p>\n
               Court can consider his failure to adduce any explanation, <\/p>\n
               as   an   additional   link   which   completes   the   chain.   The <\/p>\n
               principles has been succinctly stated in   Naina Mohd.(AIR <\/p>\n
               1960 Mad. 218:1960 Cri. LJ 620:\n<\/p><\/blockquote>\n
    93.                   The provisions of  Section 106 of the Evidence act <\/p>\n
    itself are unambiguous and categoric and lay down that when any <\/p>\n
    fact is specially within the knowledge of a person, the burden of <\/p>\n
    proving that fact is upon the   him. Thus, if a person is last seen <\/p>\n
    with   the   deceased,   then   it   is   expected   that   he   should   offer   an <\/p>\n
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\n                                          93<\/span><\/p>\n
    explanation   as   to   how   and   when   he   parted   company   with   the <\/p>\n
    deceased.   If he does  so, he must  be held to have discharged his <\/p>\n
    burden.   If he fails to offer an explanation on the basis of facts <\/p>\n
    within his special knowledge, he fails to discharge the burden cast <\/p>\n
    upon him by Section 106 of the Evidence Act.           Even   if   the <\/p>\n
    Accused fails to discharge any   burden  under section 106, it is not <\/p>\n
    a   principal   or   major   burden,     but   its     just   an   additional <\/p>\n
    circumstance against the Accused. It cannot be replaced for missing <\/p>\n
    chain of the prosecution.\n<\/p>\n
    94.             In   the   decision   rendered   by   the   Hon’ble   Supreme <\/p>\n
    Court   in the case of  Sucha Singh Vs. State of Punjab, (
\n                                                              2001 SCC<\/p>\n
    (Cri.) 717), it was  observed in para 15 of the judgment as under:\n<\/p>\n
                 “15.     The abductors alone could tell the court as to
\n              what happened to the  deceased after they were abducted.\n<\/p><\/blockquote>\n
              When   the   abductors  withheld   that   information   from   the
\n              Court there is every justification for drawing the inference
\n              in   the   light   of   all   the   preceding   and   succeeding
\n              circumstances adverted   to above that the abductors are <\/p>\n
              the murderers of the deceased.”\n<\/p><\/blockquote>\n
              ( Referred   (2000) 8 SCC  382 State  W..B. Vs. Mir Mohd.
\n              Omar)\/    31. The pristine  rule that the burden of proof
\n              is on the prosecution to prove the guilt of the Accused <\/p>\n
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\n                                            94<\/span><\/p>\n
               should not be taken as a fossilised doctrine as  though it
\n               admits no process of intelligent reasoning. The doctrine of <\/p>\n
               presumption is not alien to the above rule, nor would it
\n               impair the temper of the rule.  On the other hand, if the <\/p>\n
               traditional   rule   relating   to   burden   of   proof   of   the
\n               prosecution is allowed to be wrapped in pedantic coverage,
\n               the     offenders   in   serious   offences   would   be   the   major <\/p>\n
               beneficiaries and the society would be the casualty.”\n<\/p><\/blockquote>\n
    95.              Prosecution has further placed reliance  on the ratio <\/p>\n
    laid down  in the case of State of Maharashtra Vs. Suresh, reported <\/p>\n
    in (200) 1 Supreme Court Cases 471, in which  the Supreme Court, <\/p>\n
    while discussing the  value  of  evidence  tendered under section 27 <\/p>\n
    of the Indian Evidence Act  have observed that:\n<\/p>\n
          “We       too countenance three possibilities   when an <\/p>\n
          Accused points out the place   where  a dead body or
\n          an incriminating material was concealed without stating
\n          that   it   was   concealed   by   himself.   One   is   that     he <\/p>\n
          himself   would   have   concealed   it.   Second   is     that   he
\n          would   have   seen     somebody   else   concealing   it.   And
\n          third   is   that   he   would   have   been   told   by   another <\/p>\n
          person that it was concealed there.   But if the Accused
\n          declines to tell the criminal court that his knowledge
\n          about the concealment was  on account of one of the
\n          last   two   possibilities,   the   criminal   court   can   presume <\/p>\n
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\n                                           95<\/span><\/p>\n
         that it was   concealed by the Accused himself. This is
\n         because the Accused is the  only person who can offer <\/p>\n
         the explanation as to how else he came to know of
\n         such   concealment   and   if   he   chooses   to   refrain   from <\/p>\n
         telling the court as to how else he came to know of it,
\n         the presumption is a well justified course to be adopted
\n         by the criminal Court that the concealment was made <\/p>\n
         by   himself.     Such   an   interpretation   is   not   consistent
\n         with   the   principle   embodied   in   Section   27   of   the <\/p>\n
         Evidence Act.<\/p><\/blockquote>\n
           In the case of State of Maharashtra Vs. Suresh (Supra) the <\/p>\n
    Accused had raped and murdered  four years old girl child and the <\/p>\n
    mangled body of the child was dumped  in the field. The Accused <\/p>\n
    and victim were last seen together by three prosecution witnesses.\n<\/p>\n
    The   body   of   child   was   recovered   from   the   cotton   field       in <\/p>\n
    pursuance of  the information given by the Accused. In the medical <\/p>\n
    examination of  the Accused the injuries  consistent with the theory <\/p>\n
    of the rape were found on the  private parts of the Accused.  In the <\/p>\n
    present case there was a gap of five days between the incident of <\/p>\n
    abduction of Dr. Deepak Mahajan and discovery of the parts of male <\/p>\n
    body and the identification of the body was  seriously in dispute for <\/p>\n
    want of head   of the body.   Thus   the ratio laid down by the <\/p>\n
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\n                                              96<\/span><\/p>\n
    Supreme   Court   in   the   cases   of   Sucha   Singh   and   State   of <\/p>\n
    Maharashtra Vs. Suresh     cannot be applied to the present  case <\/p>\n
    which is  distinguishable due to unusual circumstantial evidence and <\/p>\n
    the passive and shoddy  investigation.\n<\/p>\n
    96.                In   the   case  of  Hatti   Singh   Vs.   State   of   Harayana <\/p>\n
    reported in   2008 (3) SCC (Cri.) 246, the Hon’ble Supreme Court <\/p>\n
    observed that:\n<\/p>\n
          “The evidence of last seen by itself   apart from having   not <\/p>\n
          been proved in this case   cannot be of much significance.   It <\/p>\n
          may provide for a link in the chain but unless the time gap <\/p>\n
          between the deceased of having been last seen  in the company <\/p>\n
          of   the   Accused   person     and   the   murder   is   proximate,   it   is <\/p>\n
          difficult to prove  the guilt of the Accused only on that basis.”\n<\/p><\/blockquote>\n
    97.                In the present case  as per the prosecution discovery <\/p>\n
    of the body parts in pieces at the instance of Accused No.2 is an <\/p>\n
    authentic  nexus between  offence   of  murder and the Accused.\n<\/p>\n
    In the postmortem report,       Dr. Milind Sharad Wable (PW- 36   ) <\/p>\n
    has opined  that it was male body and the parts of the body may <\/p>\n
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\n                                             97<\/span><\/p>\n
    be of one male human body.  The death was two to five days prior <\/p>\n
    to   the   postmortem.   Finding   of   body   in   one   piece   is   a   normal <\/p>\n
    circumstance in the  cases of  murder  though  the murder  itself  is <\/p>\n
    abnormal. In this case, the body was found in  parts  wrapped  in <\/p>\n
    six similar\/identical blue plastic bags.  If the body parts would have <\/p>\n
    been found scattered at different places and not  in the packed or <\/p>\n
    wrapped condition, then it would have been inferred   that some <\/p>\n
    stray animals or birds   have   taken away same parts of the body <\/p>\n
    and eaten and so the body was found in pieces. However, in this <\/p>\n
    case, it is to be concluded that  it was  an act of  human being.\n<\/p>\n
    Finding of four packets at  Katraj Ghat and  then finding  of two <\/p>\n
    packets   at   a   long   distance     i.e.   at   Bhosari   is   also       another <\/p>\n
    important   consideration.   These   two   places   Katrajghat   and   Bhosari <\/p>\n
    are away from the residential area of Pune city.\n<\/p>\n
    98.               PW-12 Preet Babil  is examined for the discovery of <\/p>\n
    the body parts. (Panchanama under Section 27 of the Evidence Act).\n<\/p>\n
    Dfence   could   not demolish his   evidence.   This   Panchanama is <\/p>\n
    proved and we have no hesitation to hold   that body parts were <\/p>\n
    found   consequent     to   the   information   given   by   Accused   No.2.\n<\/p>\n
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\n                                            98<\/span><\/p>\n
    Normally while investigating the murder, if the victim and Accused <\/p>\n
    are last  seen together   and thereafter  the body  is found  at  the <\/p>\n
    instance   of   the   Accused,   then   the   prosecution   is   successful   in <\/p>\n
    proving the murder  and the Accused at whose instance the body is <\/p>\n
    found can be held guilt for the offence of murder of the said victim.\n<\/p>\n
    However,   in   the   present   case,   there   are   some   abnormal <\/p>\n
    circumstances   which   constrain   us   to     question   the   case     of   the <\/p>\n
    prosecution on the point of  murder.  The fact of last seen together <\/p>\n
    and  the discovery of body parts are  two circumstances necessary <\/p>\n
    to be   joined with the  circumstance i.e.  identification of the body.\n<\/p>\n
    Identification of the body  can be proved by various ways. The most <\/p>\n
    natural and common is by face.  It may also be  with the help of <\/p>\n
    marks on the body or due to  the peculiarity  of the limbs or if the <\/p>\n
    body is de-composed, then on the basis of forensic evidence.\n<\/p>\n
    99.               As per Section 27 of the Indian Evidence Act, the <\/p>\n
    information given by the Accused is  made admissible only for the <\/p>\n
    limited   purpose.     The   total   ban   on      accepting   confession       is <\/p>\n
    partially lifted under this section, if the fact is actually discovered in <\/p>\n
    consequence of the information given by the Accused and it affords <\/p>\n
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\n                                             99<\/span><\/p>\n
    some  guarantee of truth of that part only.  Rest of the information <\/p>\n
    is always  inadmissible. The statement of the Accused No.2 that  “I <\/p>\n
    will show the place where the body parts were lying”  is the only <\/p>\n
    admissible portion in the memorandum panchanama.   Parts  are of <\/p>\n
    the   body   of   Deepak   Mahajan   should   have   been   proved   through <\/p>\n
    other   independent   evidence.   Further     details     will   amount     to <\/p>\n
    confessional   statement     and   admissibility   of   it   is   strictly   barred <\/p>\n
    under Section 25 of the Evidence Act.\n<\/p>\n
    100.               The   fact of keeping certain object at a particular <\/p>\n
    spot   is   always   within   the   exclusive   knowledge   of   the   Accused <\/p>\n
    because  it is the tendency of the criminal  to hide the object used <\/p>\n
    in crime and therefore it is known to the Accused only and   the <\/p>\n
    Accused only can point out the place where   the   object is kept.\n<\/p>\n
    Therefore, in the absence of discovery of  any object, the statement <\/p>\n
    can  not be considered as memo  under Section 27  of the Evidence <\/p>\n
    Act   and   hence   the   mere   pointing   of   the   spot   is   not   admissible.\n<\/p>\n
    Therefore, when the body parts are found  one cannot jump to the <\/p>\n
    conclusion that  these   body  parts are  of     Dr. Deepak  Mahajan <\/p>\n
    because the body parts are found after the information given by <\/p>\n
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\n                                           100<\/span><\/p>\n
    Accused No.2. Such degree of evidence is not sufficient to satisfy the <\/p>\n
    legal mind. The degree of standard of proof required to prove the <\/p>\n
    identification of the body is    always high. Drawing  inference on <\/p>\n
    the basis of conjectures and surmises.\n<\/p>\n
    101.              On the point of identification of dead body  reliance <\/p>\n
    is placed on  Kesav Vs. State of Maharashtra, reported in 2008 (3) LJ <\/p>\n
    Soft. (SC) 91 in which the   Supreme Court observed   and held as <\/p>\n
    follows:\n<\/p>\n
           “All   parts of the dead body including small intestine <\/p>\n
           were missing. The     dead body was lying in an open
\n           field at least for four days. How apparels and clothes
\n           purported to be belonging to  deceased had been found <\/p>\n
           near   the   dead   body   separately   is   beyond     any <\/p>\n
           comprehension. If he was killed by using a hard and
\n           blunt   substance   on   his   head   as   it   appears   from   the
\n           postmortem   report,   portion   of   the   clothes   of   the <\/p>\n
           deceased would still be found over the skeleton and not
\n           at a distance from it.  If the body was  eaten away by
\n           vultures or other animals the garments would have also <\/p>\n
           been found in torn conditions and beyond recognition.
\n           In this situation   the evidence that the garments have
\n           been   recognized   by   the   mother   and   wife   of   the
\n           deceased for the purpose of identification of the dead <\/p>\n
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\n                                              101<\/span><\/p>\n
           body to be that of deceased cannot be accepted.”\n<\/p><\/blockquote>\n
    102.                The     Accused     stayed     in   the   rented   room   at \n\n\n\n\n                                                                 \n    Uttamnagar-   Warje   Malwadi   and   it   was   established     by   concrete \n\n<\/pre>\n
    evidence of the landlord   PW 5 -Maroti Bajirao Gawande who let <\/p>\n
    out the said room at Uttamnagar.  PW-6 Sharda  Takbhate was the <\/p>\n
    neighbour and she  is examined on this point. She has stated about <\/p>\n
    the   residence   of   Accused   nos.   1   and   2   in   the   said   room   at <\/p>\n
    Uttamnagar, their Matiz Car and foul smell emanating   from the <\/p>\n
    said   room   in   the   first   week   of   July,   2007.       The   defence     has <\/p>\n
    pointed out a material omission in the evidence of PW-6 that she <\/p>\n
    has admitted that she did not state to the police at the time of <\/p>\n
    recording her statement that she has seen the Accused Nos. 1 and 2 <\/p>\n
    removing very heavy article wrapped in blue plastic cover from their <\/p>\n
    Car and   then after some time keeping  small    packets in  blue <\/p>\n
    plastic   bags   in   their   car.   The   prosecution     on   the   basis   of   this <\/p>\n
    evidence   wanted     to   create     indirect   circumstance     showing <\/p>\n
    connection   between   the   use   of   blue   plastic   bags   and   Accused <\/p>\n
    taking out  heavy article  from the  Car to their house  and after <\/p>\n
    two days   taking     out something in the blue packets. However, <\/p>\n
    this evidence  is    not  believable.  Evidence of PW-6     Mrs.   Sharda <\/p>\n
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\n                                             102<\/span><\/p>\n
    Takbhate did not disclose any relevant reliable  fact throwing light <\/p>\n
    on the point of murder   or bringing of Dr. Deepak Mahajan   at <\/p>\n
    Uttamnagar.  No  reliable evidence is  tendered by the prosecution <\/p>\n
    to   show     that     the   said   room   was   used   for   killing   Dr.   Deepak <\/p>\n
    Mahajan.   The Room of Uttamnagar was   sealed and Panchanama <\/p>\n
    was   carried  out and  in the said Panchanama  (Exh. 69\/75) many <\/p>\n
    articles  were found.\n<\/p><\/blockquote>\n
    103.<\/p>\n
                       The relevant articles   i.e. Full pant(Court Article-29, <\/p>\n
    blood   stained   Blue   Shirt   (Court   Article-30),   Pair   of   socks(Court <\/p>\n
    Article-31) Black     leather belt (Court Article 32), Spectacles (Court <\/p>\n
    Article-23).     Knife-Article   45,   Blade   of   Spade-Article   46,   Knife-E3 <\/p>\n
    Article 47,  human hair-Article 41, pieces of cloth- Article 17,  blood <\/p>\n
    stained Kurta-Article 50, Blood stained Salwar-Article 53, Latex Hand <\/p>\n
    gloves Article 40 and Article 16 underwear were  found in the room <\/p>\n
    of Uttamnagar and they were sent for  the  Chemical Analysis  (CA).\n<\/p>\n
    It   was   pointed   by   the   Learned   Special   Prosecutor     that   in   the <\/p>\n
    Panchanama of Uttamnagar room one   piece of blue colour cloth <\/p>\n
    (Exh.51) having design of the triangles was found and  three pieces <\/p>\n
    of blue colour  cloth having design of triangles  were found  with <\/p>\n
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\n                                       103<\/span><\/p>\n
    the body parts.     Learned prosecutor tried to connect these three <\/p>\n
    pieces of cloth and one piece of cloth  and has argued that  as the <\/p>\n
    as these four pieces of cloth are  of one and the same cloth, this is <\/p>\n
    an     incriminating   circumstance     against   the   accused.   While <\/p>\n
    appreciating this evidence, we found that the said pieces of cloth <\/p>\n
    were not before the Court and     they all   were not sent to C.A.\n<\/p>\n
    The police should have done  forensic  Panchanama  of the  three <\/p>\n
    pieces of cloth and one piece of cloth showing that  they are  the <\/p>\n
    pieces of one and the same cloth. Three  pieces and  one piece of <\/p>\n
    cloth, all should have been sent to the   C.A. No evidence of  Panch <\/p>\n
    PW-12  Preet Babil  was tendered    on the point that Article  51 <\/p>\n
    ( one piece of cloth) and other three pieces     of   cloth   were <\/p>\n
    matching and they are of one and the same cloth. Moreover, the <\/p>\n
    result  of   all these articles which were sent to C.A.  though was ”\n<\/p>\n
    human blood detected”,   the opinion about the blood group was <\/p>\n
    inconclusive. Though leads were available to the police, they could <\/p>\n
    not   exploit   the same properly by taking   investigation to the <\/p>\n
    logical end. The  Prosecution has failed to bring on record even the <\/p>\n
    blood group of the deceased and the blood group of Accused no.2.\n<\/p>\n
    If the  evidence in respect of the blood group of the Accused and <\/p>\n
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\n                                            104<\/span><\/p>\n
    the blood group of the deceased is not produced,   in that event <\/p>\n
    possibility   of Accused and  the deceased having same blood group <\/p>\n
    is not overruled. Finding blood stains  on the clothes of a female is <\/p>\n
    not   abnormal.       However, finding blood stains   on the articles <\/p>\n
    which were identified by the PW-11- wife of the deceased as that of <\/p>\n
    the deceased  is not a normal but an  incriminating  circumstance.\n<\/p>\n
    Article   46,  Green   Knife   of   uneven   pointed     edge     of   blade   was <\/p>\n
    found  and if anything  is cut with that blade  then   because of <\/p>\n
    the design of the edge  the cut will not be smooth but it may be <\/p>\n
    zigzag.\n<\/p>\n
    104.                Rabbits play interesting role in the  entire episode.\n<\/p>\n
    Accused have admitted that they are fond of rabbits and they had <\/p>\n
    kept rabbits in their house at Uttamnagar. In the panchanama, two <\/p>\n
    rabbits and cage   were found in the room at Uttamnagar. .   The <\/p>\n
    Accused on complaint of   foul smell   by PW-6 Sharda Takbhate <\/p>\n
    told her     that due to the rabbits there was a foul smell in the <\/p>\n
    room and they   would clean it. The prosecution, on the basis of <\/p>\n
    evidence of   Mrs. Takbhate-PW6, tried to  tender indirect evidence <\/p>\n
    on the point of place  of killing and  dismembering the body part <\/p>\n
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\n                                            105<\/span><\/p>\n
    of the deceased. However, this effort of the prosecution is weak and <\/p>\n
    imaginary   and   only   suggestive.     The   Investigating   officer   in   fact <\/p>\n
    should have  summoned  Forensic experts for  scientific examination <\/p>\n
    of  the said room which could have  corroborated the prosecution <\/p>\n
    case   that   deceased   was   done   to   death   and   his   body   was <\/p>\n
    dismembered in the room.   We find that except the recovery and <\/p>\n
    seizure of the articles and statement of PW- 6, no efforts were taken <\/p>\n
    by the Investigating officer to establish the spot of the murder.\n<\/p>\n
    105.              Murder     of     Dr.   Deepak   Mahajan     is   seriously <\/p>\n
    challenged by the defence on the ground that prosecution has failed <\/p>\n
    to prove the death  of Dr. Mahajan . The fact that  some body parts <\/p>\n
    were   sent for the postmortem examination on 7.7.2006  at 10 p.m. <\/p>\n
    to   the Sasoon Hospital Pune and Dr. Milind Sharad Wagale has <\/p>\n
    conducted postmortem on those body parts on 8.7.2006 is not denied <\/p>\n
    by the defence.  However,  the head  and the hands of  the body <\/p>\n
    were not found  and therefore  the identification of the  said parts <\/p>\n
    of the body  was challenged.   In support of their case of last seen <\/p>\n
    together, prosecution could not solve a mystery  of five  days as to <\/p>\n
    what happened to Dr. Deepak Mahajan after he was abducted. When <\/p>\n
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\n                                         106<\/span><\/p>\n
    and where he was killed ? On going through   the case diary we <\/p>\n
    find the officers concerned  in the investigation  have not   focused <\/p>\n
    on these important aspect and no evidence is brought on   record.\n<\/p>\n
    It   only   demonstrates   improper   and   ineffective   investigation   on <\/p>\n
    behalf of the  State on this crucial aspect.\n<\/p>\n
    106.             In the background of this challenge, the evidence of <\/p>\n
    Dr. Milind Sharad Vable, PW-36 who   conducted autopsy is to be <\/p>\n
    looked into. He has mentioned that  the body  was brought in six <\/p>\n
    packets. He   observed that maggots were present on the body.  The <\/p>\n
    cut ends of the bone   showed sharp zigzag edges at places. The <\/p>\n
    heart was cut at the  base of aorta. The right leg, left leg and  feet <\/p>\n
    were dismembered.  Blood  was not found.  It is to be noted that <\/p>\n
    cutting of the body in pieces cannot prove the murder, unless the <\/p>\n
    cutting of   body was proved to be  antemortem. The Doctor has <\/p>\n
    opined that the parts were cut probably after death. He has opined <\/p>\n
    that  exact cause of death cannot be given. It was mentioned that <\/p>\n
    the parts apparently might be of one person and as the male organs <\/p>\n
    were found,     it is to be   inferred that   it was a male body. A <\/p>\n
    person might have died a natural   death   and   subsequently the <\/p>\n
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\n                                        107<\/span><\/p>\n
    body could have been cut into the parts. The cause of death  could <\/p>\n
    not be   determined as the   heart was empty and the   body was <\/p>\n
    decomposed.   Thipentone   does   not   leave   any     mark   or <\/p>\n
    characteristics. That is already discussed. But this does not lead us <\/p>\n
    to hold conclusively that Dr. Deepak Mahajan died due to Thisol <\/p>\n
    Sodium\/Thipentone.   Through     evidence   of   Dr.   Wable,   prosecution <\/p>\n
    has established that the said body parts were of male person  and <\/p>\n
    they were apparently of one person and the time of the death was <\/p>\n
    approximately two to five days before the postmortem examination.\n<\/p>\n
    So it may be between  3rd   to 6th July, 2006.  The  opinion of  Dr. <\/p>\n
    Wable  is found consistent  with the  case of the prosecution  on <\/p>\n
    the point of approximate period of death of  Dr. Mahajan  though it <\/p>\n
    does not  prove conclusively the identification of the body.\n<\/p>\n
    107.             It was argued that the prosecution could not prove <\/p>\n
    that  the body parts recovered by the police in Katraj Ghat and at <\/p>\n
    Bhosari are of Dr. Deepak Mahajan.  The submissions are based on <\/p>\n
    the quality of the experts evidence on the point of DNA, a chemical <\/p>\n
    of   which   human   chromosomes   are   made.   The   Prosecution   has <\/p>\n
    produced the report of the  DNA test. For the purpose of  DNA test, <\/p>\n
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\n                                              108<\/span><\/p>\n
    blood samples of PW-31- Shridhar Mahajan Mrs. Shridhar Mahajan <\/p>\n
    i.e.   parents     of   the   deceased   were   collected.   PW-31   has   stated <\/p>\n
    accordingly.   Thus the controlled  blood of parents – PW31 and his <\/p>\n
    wife were collected and  sent   for  DNA  test.  For the purpose of <\/p>\n
    comparison of the DNA, the prosecution has sent blood stained blue <\/p>\n
    shirt of Dr. Deepak Mahajan which marked as Court Article-30 and <\/p>\n
    the samples of body parts i.e. hair, skin,  tissues, left femur, left tibia, <\/p>\n
    right femur, right tibia, right hip bone were sent to the DNA experts.\n<\/p>\n
    108.                The   learned   amicus   curiae   and   the   Accused   no.1, <\/p>\n
    while assailing the evidence   of PW-32- Shrikant Hanumant Lade <\/p>\n
    and   PW-33   Dilip   Yashwantrao   desai   who   were   working   in   DNA <\/p>\n
    Laboratory Kalina, challenged the competency of DNA  experts  for <\/p>\n
    want  of requisite qualification.\n<\/p>\n
    109.                PW-33 Dr. Dilip Desai  has used STR (Short Tendem <\/p>\n
    Repeats) method     for DNA analysis and the    “Negative”  report <\/p>\n
    which is marked as Exh.274 dated 6.10.2006 is produced before the <\/p>\n
    Court   .   It   is  said  in   the   report   that   “no   interpretable  profile   is <\/p>\n
    possible”  In the cross examination, the witnesses PW-32 and PW-33 <\/p>\n
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\n                                             109<\/span><\/p>\n
    have admitted at the  second round of recording evidence  that the <\/p>\n
    Police have sent letter Exh.153 dated 30.10.2006, that  the body parts <\/p>\n
    were to be sent to Hyderabad for   CDSD Test and though there <\/p>\n
    were specific directions, we fail to understand why the tests were <\/p>\n
    carried   out   at   Kalina   Mumbai.   The   learned     counsel   for   the <\/p>\n
    prosecution gave explanation that the Laboratory     at Hyderabad <\/p>\n
    and the experts working there were burdened so heavily that they <\/p>\n
    could not   spare time to perform the test on the body parts sent <\/p>\n
    by  the police.    PW-32  has admitted   that   he  went   to Hyderabad.\n<\/p>\n
    These samples were forwarded to   the Laboratory at Hyderabad on <\/p>\n
    10.11.2006     by   their   letter.   After   receipt   of   the   samples,   the <\/p>\n
    technicians     of Kalina Lab informed the police that they require <\/p>\n
    controlled blood  sample  of  Shridhar Mahajan(PW-21). However, no <\/p>\n
    samples were sent to   Hyderabad and the Hyderabad   Laboratory <\/p>\n
    refused to carry out the   examination of the samples due to the <\/p>\n
    work load.   He has also stated that  the Hyderabad Laboratory did <\/p>\n
    not communicate any reason  in writing. He went  to Hyderabad on <\/p>\n
    13.11.2006.   He   stayed   there   from   13.11.2006   to   21.11.2006   and     the <\/p>\n
    purpose of the visit  to the Hyderabad was  training programme of <\/p>\n
    DNA Isolation  from bone samples. Kalina Laboratory have received <\/p>\n
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\n                                            110<\/span><\/p>\n
    samples from the  Hyderabad Laboratory  on 24.11.2006 i.e. after the <\/p>\n
    witness completed his training and came back.  The Learned Special <\/p>\n
    Prosecutor   has    argued   that   the   witness   Shrikant   Hanmant  Lade <\/p>\n
    (PW-32) has   carried out DNA   analysis    by using Y-STR (Y-Short <\/p>\n
    Tandem   Repeats) method. He has explained in the evidence that <\/p>\n
    STR method is automatic.  In STR method,  analysis of DNA profile <\/p>\n
    by using electro   phonogram of the exhibits   is done and   Y-STR <\/p>\n
    method is used if the samples are degraded.\n<\/p>\n
    110.               PW-32   has   admitted   that   DNA   technique   is   in <\/p>\n
    developing stage.   PW-32   has opined that DNA profile   of bone <\/p>\n
    samples   and   DNA   profile   of   Shridhar   Mahajan   are   from   same <\/p>\n
    paternal   progeny and he on the basis of that   has made report <\/p>\n
    that   deceased     Dr.   Deepak   Mahajan   is   the     biological   son   of <\/p>\n
    Shridhar   Mahajan.   (   432\/433).   In  his  chief,   he  has     said  that   he <\/p>\n
    carried out the test of DNA extract from the   Blue Shirt of Dr. <\/p>\n
    Deepak Mahajan (Exh.8) and controlled blood samples of Shridhar <\/p>\n
    Mahajan  and Charushila Mahajan   (father and mother of deceased) <\/p>\n
    by   using   STR   method.   He   has   opined     that   STR   small   DNA <\/p>\n
    fragments   which   are   present   in   every   human   being   are   highly <\/p>\n
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\n                                             111<\/span><\/p>\n
    individual   specific   and   he   has   given   is   opinion   on   the   basis   of <\/p>\n
    comparison of these articles  with the DNA i.e.   Blood stains on the <\/p>\n
    shirts (Exh.8) that they (blood stain on shirts ) are of the biological <\/p>\n
    offspring  of Mr. and Mrs. Shreedhar Mahajan. In the entire evidence <\/p>\n
    of DNA or CA, the prosecution did not bother to bring the blood <\/p>\n
    group of Dr. Deepak Mahajan.\n<\/p>\n
    111.               In   the   cross   examination,   the   defence   could <\/p>\n
    successfully bring a number of discrepancies     in the evidence of <\/p>\n
    PW-32   and   PW-33.   In   respect   of   the   evidence   of   PW-32   Shrikant <\/p>\n
    Lade, especially in the background of his admission   that though <\/p>\n
    there were specific directions by the police that   DNA was to be <\/p>\n
    carried out at Hyderabad  and not in their laboratory at Kalina and <\/p>\n
    the  seal of the  samples  was not to be opened at Kalina, the DNA <\/p>\n
    was carried out at Kalina. In the first  round  when  carried out by <\/p>\n
    PW-33-Dilip Yashwantrao Desai-  it gave negative result.  The DNA <\/p>\n
    test   which   was   finally   carried     out   by   PW-32   at   Kalina   of   the <\/p>\n
    samples of the body parts is not found reliable. He has not said <\/p>\n
    anything about the use of Y-STR method and why he did it and <\/p>\n
    how Y-STR method was useful to arrive at the positive conclusion in <\/p>\n
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\n                                           112<\/span><\/p>\n
    respect of DNA test of the body parts which were found at Katraj <\/p>\n
    Ghat.  We will be committing an error if we accept two conflicting <\/p>\n
    DNA reports particularly when  the experts have  failed to establish <\/p>\n
    that DNA of the dead body  matched with that of   father of Dr. <\/p>\n
    Mahajan  conclusively.\n<\/p>\n
    112.                DNA, is considered as a science   of precision and <\/p>\n
    accuracy   to     establish   the   biological   relationship   between   human <\/p>\n
    beings.  We are constrained to observe that  how, when and  where <\/p>\n
    the samples  of blood are sent  by the police to the Laboratory and <\/p>\n
    when the analysis was made in  what method and  when the report <\/p>\n
    was sent should all be brought on record  very systematically by the <\/p>\n
    prosecution. These institutions are working  as an extended arm  of <\/p>\n
    the Police investigation. If     so, the communication   between the <\/p>\n
    Laboratory and the Police should be in writing.  In the present case, <\/p>\n
    the   prosecution   could   not     justify     why   Shrikant   Lade   went   to <\/p>\n
    Hyderabad for training and  why the samples of the body parts  of <\/p>\n
    Deceased and of the  samples of   controlled blood of the   parents <\/p>\n
    of deceased Dr. Deepak Mahajan sent by the police   for DNA test <\/p>\n
    were not tested at Hyderabad. Moreover,  if such samples were sent <\/p>\n
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\n                                             113<\/span><\/p>\n
    to   Hyderabad   and   again   they   were   sent   back   to   Kalina   without <\/p>\n
    performing any test, then why no    letter  in writing  was obtained <\/p>\n
    from the said Laboratory at Hyderabad. Mere statement of the police <\/p>\n
    or Laboratory technicians at Kalina  cannot be accepted.  DNA tests <\/p>\n
    are   to   be   seriously   conducted   with   optimum   care   as   it   provide <\/p>\n
    unshakable and  concrete  scientific evidence  against the Accused.\n<\/p>\n
    Moreover no satisfactory explanation is advanced   how first DNA <\/p>\n
    test failed   and why second DNA was carried out.\n<\/p>\n
    113.               It   was   argued     by     Accused   No.1   that   Shridhar <\/p>\n
    Mahajan is having    one more son    viz. Parag Mahajan and one <\/p>\n
    daughter, so there is possibility that the police might have taken the <\/p>\n
    blood of their  other two children and could have planted  on the <\/p>\n
    blue shirt and therefore,  DNA  technician has  given  report that <\/p>\n
    the   DNA   of   the     blood   stains     on   Blue   shirt   (Exh.8)   are     of <\/p>\n
    biological offspring of Mr.   And Mrs. Shridhar Mahajan (parents of <\/p>\n
    deceased). This argument  though not convincing,  indicates  some <\/p>\n
    possibility. Moreover,  the Police have proved the fact of seizure of <\/p>\n
    the Blue shirt from the rented room of the Accused at Uttamnagar <\/p>\n
    and   Dr.   Smita Mahajan (wife of the deceased) has identified the <\/p>\n
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\n                                            114<\/span><\/p>\n
    said shirt as a shirt of her husband and such identification of the <\/p>\n
    shirt of the husband by the wife is sufficient to prove  the fact that <\/p>\n
    said shirt belonged to Dr. Mahajan.   It is to be mentioned   that <\/p>\n
    besides   the   shirt   in   the   said   room   at   Uttamnagar,   police   found <\/p>\n
    number of articles at the time of Panchanama (Exh.75-Panchanama <\/p>\n
    of Uttamnagar room) through PW-12- Preet Babil- Panch. Total 96 <\/p>\n
    articles were recovered   and out of those articles Yellowish Colour <\/p>\n
    Full   pant   (Court   Article-29,   Blue   Shirt   (Article-30),   Pair   of <\/p>\n
    socks(Article-31)   Black       leather   belt   (Article   32),   Spectacles <\/p>\n
    (Article-23) were found and     these articles were identified by D.r <\/p>\n
    Smita Mahajan(PW-11) wife of the deceased and  Shridhar Mahajan <\/p>\n
    (PW-31)-father of the deceased.   These articles were found in the <\/p>\n
    room of the Accused.  There is  cross examination as this score and <\/p>\n
    incriminating     circumstance   against   the   Accused     remains <\/p>\n
    unchallenged by the  defence.\n<\/p>\n
    114.              The   Learned     Special   Prosecutor   on   the   point   of <\/p>\n
    circumstantial evidence  has relied on the case of  Anant Chintaman <\/p>\n
    Lagu Vs. State of Bombay AIR 1960 SC 5 00 (IV) 47 C-8 5 , in which <\/p>\n
    it is held that :\n<\/p>\n
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\n                                         115<\/span><\/p>\n
           ”   Circumstantial   evidence   in   this   context   means   a
\n           combination of facts creating of network through which <\/p>\n
           there is no escape for the Accused because the facts
\n           taken as a whole do not admit of any inference but of <\/p>\n
           his guilt. To rely upon the findings of the  medical man
\n           who   conducted   the   postmortem   and   of   the   chemical
\n           analyzer as decisive    of the matter is to render  the <\/p>\n
           other     evidence   entirely     fruitless.   While   the
\n           circumstances often speak with unerring certainty, the <\/p>\n
           autopsy and the chemical analysis taken by themselves
\n           may be  most misleading.  No doubt, due  weight must <\/p>\n
           be given to the negative findings at such examination.
\n           But  bearing in mind the difficult task which the  man <\/p>\n
           of medicine performs and the limitations under which
\n           he works, his failure should not be taken as the end of
\n           the  cause for  good and probative circumstances and <\/p>\n
           irresistible inference on  guilt can be drawn.”\n<\/p><\/blockquote>\n
    115.             In the case of Anant Chintaman Lagu (Supra) the <\/p>\n
    cause of the death of the   deceased Laxmibai, given by Dr. Jhala <\/p>\n
    was   due   to   diabetic   Coma.   However   the   said   postmortem   was <\/p>\n
    conducted not as a medico legal case and the Dr. Has admitted that <\/p>\n
    his opinion might be inaccurate. However, Dr. H. S. Mehta, as an <\/p>\n
    expert   has   opined   that       the   death   was   probably   due   to <\/p>\n
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\n                                            116<\/span><\/p>\n
    administration   of   some   unrecognizable   poison.   While   appreciating <\/p>\n
    the circumstance in the case of Anant Chintaman as a  guideline for <\/p>\n
    appreciation of  circumstantial evidence  and especially in the case <\/p>\n
    of death due to poisoning.  We  must  be aware of the  fact that in <\/p>\n
    the   present   case,       the   circumstance   which   has   remained <\/p>\n
    unexplained and  not proved is the identification of the body itself.\n<\/p>\n
    The DNA evidence which is produced by the prosecution is found <\/p>\n
    unreliable     and     though   it   was   proved   that   thipentone   was <\/p>\n
    administered  to the deceased   in the absence of the identification <\/p>\n
    of the body and  cause of  his death in the  opinion of  Dr.  Wable <\/p>\n
    who   performed   PM,     this   ruling   cannot   be   of     any   use   to   the <\/p>\n
    prosecution.\n<\/p>\n
    116.              Even if  discovery panchanama (though it does not <\/p>\n
    inspire confidence) is accepted, it only proves that   some parts of <\/p>\n
    male body were discovered at the instance of Accused no.2. The <\/p>\n
    important   link   that   the   said   parts     of   the     dead   body   were <\/p>\n
    conclusively of Dr. Deepak Mahajan is not established. However, the <\/p>\n
    prosecution could not tender  reliable evidence on the point of DNA <\/p>\n
    or any other evidence to draw conclusion that the said body parts <\/p>\n
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\n                                             117<\/span><\/p>\n
    were not  of any other person but of Dr. Deepak Mahajan.    The <\/p>\n
    doubt, howsoever feeble   it may be, it destroys the   link between <\/p>\n
    the   Accused     and   discovery   of   the   body   parts   of   Dr.   Deepak <\/p>\n
    Mahajan.  The doubt  puts a question mark.  In the present case on <\/p>\n
    the   point   of   identification   of   the   body   of   Dr.   Mahajan,   the <\/p>\n
    prosecution has  not  brought any accurate concrete evidence.\n<\/p>\n
    117.                The Accused were arrested at 12.35 p.m.  on 7.7.2006 <\/p>\n
    and immediately five minutes after the arrest the  police drew the <\/p>\n
    panchanama- memorandum under Section 27 of the Indian Evidence <\/p>\n
    Act. It is argued  by the defence that no such statement could have <\/p>\n
    been     made   by   the   Accused   soon   after   their   arrest.   As   per   the <\/p>\n
    prosecution case, the Police had apprehended both the Accused on <\/p>\n
    7.7.2006   at   around   10  to   10.30   a.m.   Obviously     the     police  have <\/p>\n
    interrogated the Accused with a view to ascertain the  involvement <\/p>\n
    of the Accused in the commission of the crime.   The Police have <\/p>\n
    power   to   interrogate   the   suspects   and   after   verifying   the <\/p>\n
    involvement,  upon their satisfaction, the police can  register   the <\/p>\n
    offence against the suspects.  There was every possibility that after <\/p>\n
    facing interrogation of the police for two hours, the Accused No.2, <\/p>\n
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\n                                            118<\/span><\/p>\n
    immediately after the arrest has made statement that she   would <\/p>\n
    show the places where the  body parts were lying.\n<\/p>\n
    118.              The prosecution though has proved that Thipentone <\/p>\n
    or Thisol Sodium  was administered and Dr.  Deepak Mahajan was <\/p>\n
    made unconscious and was taken away by the Accused 1 and 2 in <\/p>\n
    their Matiz Car. However,     the prosecution is absolutely silent on <\/p>\n
    the vital point as to what happened  to   the Doctor  thereafter. It <\/p>\n
    is  the case of the prosecution that Dr. Mahajan was taken to the <\/p>\n
    room at Uttamnagar and in that room these two ladies killed Dr. <\/p>\n
    Deepak Mahajan and dismembered   his body.   No eye witness is <\/p>\n
    examined by the prosecution to prove this fact. There is no  direct <\/p>\n
    or indirect evidence on the point of murder and no efforts   have <\/p>\n
    been     made   by   the     prosecution   to   prove   these   important   and <\/p>\n
    crucial aspects of the case, as already observed by us.\n<\/p>\n
    119.               The prosecution witnesses PW-11 Dr. Smita Mahajan <\/p>\n
    and   PW-10 Pramod Prabhakar   Falgune-brother of Accused No.2, <\/p>\n
    both have confirmed that around 12.30 news about the recovery of <\/p>\n
    the   body   parts   of   the   deceased   Doctor       at   the     instance   of <\/p>\n
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\n                                           119<\/span><\/p>\n
    Accused, was telecasted on T. V. Channels.\n<\/p>\n
    120.              The  Learned Special Prosecutor  has submitted that <\/p>\n
    the   police   have   arranged   investigation   van   of   the     Police   with <\/p>\n
    Camera   at   the   spot   to   collect   the   evidence   and   to   shoot   the <\/p>\n
    recovery. However, that shooting was defective  and they could not <\/p>\n
    shoot  and so nothing was seen in that CD. Hence it does not form <\/p>\n
    a part of chargesheet. The submission  is very perfunctory and made <\/p>\n
    just to hush up the matter. However, the Learned  Special Prosecutor <\/p>\n
    has conceded that such disclosure by the police in respect of  their <\/p>\n
    leads,   while   collecting     evidence     to     Print\/Electronic   Media <\/p>\n
    adversely affected   the quality of   investigation and subsequently <\/p>\n
    due to media interference in the investigation, the authenticity of <\/p>\n
    the investigation is questioned and  lot of material is used  by the <\/p>\n
    Accused in the cross examination to impeach the credibility  of the <\/p>\n
    investigating   officer   and     eye   witnesses   with   the   help   of   such <\/p>\n
    premature   disclosure   and   unwarranted   publicity.     When   the <\/p>\n
    investigation   is   in   embryo   stage,   the   police   should     eschew <\/p>\n
    themselves from  any publicity. It is high time for the police officer <\/p>\n
    to understand their responsibility  not to approach the media to get <\/p>\n
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\n                                           120<\/span><\/p>\n
    cheap and objectionable publicity which makes the criminal justice <\/p>\n
    system not transparent but patchy and hazy.   Right to information <\/p>\n
    is wrongly interpreted by the police as  right to inform. High degree <\/p>\n
    of   secrecy   is  a  must   when  the  investigation   is  in  process.    The <\/p>\n
    publication   of     the   matter   in   the   print\/electronic   media   and <\/p>\n
    highhanded telecast  and   immature comments of the   anchors of <\/p>\n
    the TV media  may mislead the people as public opinion is bound <\/p>\n
    to   be   influenced   by   the       manner   the   case   is   projected   and <\/p>\n
    ultimately affect the sanctity and  fairness of the criminal trial. The <\/p>\n
    overzealous   efforts   made   by   the   prosecution   to   telecast   the <\/p>\n
    investigation i.e. discovery panchanama dilutes the investigation and <\/p>\n
    lends  support to the argument of the defence that the police from <\/p>\n
    the beginning  were not fair in the investigation.\n<\/p>\n
    121.              The ownership of the Matiz Car  and  its recovery is <\/p>\n
    not disputed. The prosecution has also proved    through the oral <\/p>\n
    and documentary evidence that   Car  Bearing No.MH02-254 stands <\/p>\n
    in the name of Accused No.1. This  car was used for the purpose of <\/p>\n
    taking   away   the   Doctor   in   unconscious   condition.   This   car   was <\/p>\n
    found by the police in the  first week of  September 2006 when a <\/p>\n
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\n                                          121<\/span><\/p>\n
    member   of     one   Cooperative   Housing   society       phoned   and <\/p>\n
    informed Police that   a   Matiz Car   parked outside their housing <\/p>\n
    society was  unattended since many days.      In the Matiz Car Cell <\/p>\n
    Phone   handsets   of Nokia having IMEI Nos.. 351486609417510 and <\/p>\n
    35253600483225 were found.\n<\/p>\n
    122.             It is the case of the prosecution that Accused No.1 <\/p>\n
    was holding a purse   and number of articles were found in it on <\/p>\n
    which     the   prosecution   has   relied.   It   was   necessary   for   the <\/p>\n
    investigating officer  to seize the said purse under the Panchanama.\n<\/p>\n
    If the police were short of time, then  the purse could have been <\/p>\n
    sealed by the police and the panchanama of the  said purse could <\/p>\n
    have   been   carried   out   subsequently.   However,     unfortunately   the <\/p>\n
    police failed to do so. The Learned Special Prosecutor could not give <\/p>\n
    any plausible explanation  about this error committed by the police.\n<\/p>\n
    It is evident that the police, at the time of investigation have not <\/p>\n
    taken necessary   care   to prove   each step of their investigation <\/p>\n
    before the  Court. The Learned Special Counsel Mr. Mundargi  has <\/p>\n
    submitted  that though he cannot justify the seizure  of the  purse <\/p>\n
    without panchanama, the articles found in the purse are such that <\/p>\n
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\n                                           122<\/span><\/p>\n
    no planting of such articles was possible for the police. We   do <\/p>\n
    understand and accept the substance in this submission.\n<\/p>\n
    123.              In the present case,  the articles viz. Alkatel Mobile <\/p>\n
    Handset IMEI No. 35130741540560, Bank pass book in the name of <\/p>\n
    Accused no.2-Dahisar address,  visiting Card of Ratansing (Blue Bird <\/p>\n
    Agency), visiting Card of Shantanu Lodge,  etc. found in the  purse <\/p>\n
    of Accused   No.1   are incriminating. All the articles   found in the <\/p>\n
    purse are of   such nature that   planting is difficult. Moreover, the <\/p>\n
    articles found in the room at Uttamnagar, the fact of opening Blue <\/p>\n
    Bird Detective agency and the articles found in the search of the <\/p>\n
    Flat at   Krishna Watika, Dahisar   of the Accused are intrinsically <\/p>\n
    related   to   each   other   and     the   seizure   of   those   articles   is <\/p>\n
    independently established with the help of the panchas.  It is to be <\/p>\n
    noted that this is a case in which no witness has turned hostile; all <\/p>\n
    the witnesses have supported the case of the prosecution.\n<\/p>\n
    124.              Accused   No.1 has argued  they were not arrested <\/p>\n
    on 7.7.2006 but  both of them were detained in the police custody <\/p>\n
    two to three  days earlier and  Accused no.1 was beaten up by the <\/p>\n
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\n                                            123<\/span><\/p>\n
    police and accordingly she  made complaint of  the  injuries on her <\/p>\n
    person to the Magistrate. She has further submitted that she was <\/p>\n
    sent for medical examination and there medical report was given.\n<\/p>\n
    Medical report discloses that there were nearly 13 to 14 injuries of <\/p>\n
    minor abrasion or contusion.   Medical   certificate   discloses   that <\/p>\n
    injuries   were   found   on   the   person   of   Accused   No1.       Learned <\/p>\n
    Special   Prosecutor   pointed     out   that   the   Accused,     when   the <\/p>\n
    Accused made  the complaint of injury to the magistrate, they did <\/p>\n
    not make any grievance  that they were confined  for two to three <\/p>\n
    days prior to  their arrest.   He has further submitted that this total <\/p>\n
    silence   about   their   grievance   does   show     that   they   were   never <\/p>\n
    detained prior to their arrest i.e. 7.7.2006. Moreover, no question was <\/p>\n
    put to PW-40- Balkrishna Bhikaji Agashe on the point   detention <\/p>\n
    and beating. Thus the submissions of the learned  special prosecutor <\/p>\n
    are   correct   and   therefore,   we   do   not   find   any     force   in   the <\/p>\n
    submissions of the Accused that they were arrested prior to 7.7.2006.\n<\/p>\n
    125.              While   hearing  appeal,  on  the  submissions  of  the <\/p>\n
    Accused on the point of their arrest and interrogations we went <\/p>\n
    through   the   case   diary   of     Investigating   officer.   It   has   already <\/p>\n
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\n                                            124<\/span><\/p>\n
    mentioned that  the time of the arrest  of the Accused is shown as <\/p>\n
    12.30 p.m. and within five minutes thereafter memorandum under <\/p>\n
    Section   27   of   the   Evidence   Act   was   recorded   and   we,   therefore, <\/p>\n
    wanted to know  at what time  and day  the police apprehended <\/p>\n
    the Accused.  We  wanted to know when and how they found CW-1 <\/p>\n
    and PW-1 and other leads. While going through the case diary we <\/p>\n
    realized that the diary was written very casually. Investigating officer <\/p>\n
    has  not mentioned the details of the steps  taken in investigation.\n<\/p>\n
    Police   official-   PW-40   Balkrishna   Bhikaji   Agashe     who   actually <\/p>\n
    apprehended the Accused has filed an  affidavit before  us that he <\/p>\n
    did not maintain any diary.\n<\/p>\n
    126.              The Learned Special Prosecutor  had submitted that <\/p>\n
    all the police working     in   Crime branch or DCB CID are not <\/p>\n
    required to maintain  the case diary prescribed under Section 172 of <\/p>\n
    the Criminal Procedure Code.  He   has   explained   that       such <\/p>\n
    exemption to the crime branch police is necessary because  utmost <\/p>\n
    secrecy is required   to be maintained   by  Crime Branch during <\/p>\n
    investigation. There is urgency to take quick steps and hence they <\/p>\n
    are excused from maintaining the  case diary under  Section 172 of <\/p>\n
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\n                                           125<\/span><\/p>\n
    the   Criminal procedure Code.   In support of submissions  he has <\/p>\n
    relied on the Maharashtra Police Rules 1999.     Chapter 6,   Clause <\/p>\n
    225   (1) and   (2)   pertains  to maintenance of     Case  diary   under <\/p>\n
    Section 172 of the Criminal Procedure Code. As per the said clause <\/p>\n
    exemption   is   not   given   from   writing   case   diary,   however   the <\/p>\n
    exemption is given in respect of procedure  to submit the case diary <\/p>\n
    to the higher officer and   their supervision on the Police officers <\/p>\n
    from   the   crime   branch.     Accused   no.1,   after   going   through   the <\/p>\n
    Maharashtra   Police   Rules-1999,     has   rightly   pointed   out   that   the <\/p>\n
    said rules never absolve the police officers   from crime branch of <\/p>\n
    their duty to write  and maintain the case diary under Section  172 <\/p>\n
    of the  Criminal Procedure Code.\n<\/p>\n
    127.              Section   172 (1)   of the Criminal Procedure Code
\n    reads as under:\n<\/p>\n
                “S.172.   Diary   of   proceeding   in
\n                investigation.   –   (1)   Every   police   officer
\n                making an investigation under this Chapter
\n                shall day by day enter  his proceedings in <\/p>\n
                the investigation in a diary, setting   forth
\n                the time at which the information reached
\n                him,   the   time   at   which     he   began   and
\n                closed his investigation, the pace or places <\/p>\n
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\n                                            126<\/span><\/p>\n
                visited   by   him   and   a   statement   of   the
\n                circumstances   ascertained   through   his <\/p>\n
                investigation.”<\/p><\/blockquote>\n
           Section  172 (1) starts with the words   “every  police officer <\/p>\n
    making an investigation”.   Sub Section 2 and 3  of Section 172 is <\/p>\n
    in respect of  limited  use of the  diary  by the police Officer.  The <\/p>\n
    submissions   of   Accused     No.1     are   absolutely   correct   and   it   is <\/p>\n
    mandatory for all the police officer irrespective of their assignment <\/p>\n
    in any branch  to maintain  case diary as prescribed under Section <\/p>\n
    172 of the Criminal Procedure Code.\n<\/p>\n
    128.              On the point of maintenance of case diary, we rely <\/p>\n
    on  the   case of Bhagwant Singh Vs. Commissioner of Police, Delhi, <\/p>\n
    reported in   1983 Cri. L. J. 1081, in which the Hon’ble Supreme <\/p>\n
    Court has observed as under:\n<\/p>\n
           ”  The   haphazard maintenance of a police case diary  not
\n           only does no credit to those responsible for maintaining it but
\n           defeats   the   very   purpose   for   which   it   is   required   to   be <\/p>\n
           maintained.  The entries  in  the  police  case  diary  should  be
\n           made   with   promptness,   in   sufficient   detail,   mentioning   all
\n           significant   facts   in     careful   chronological   order   and   with
\n           complete objectivity.”<\/p><\/blockquote>\n
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\n                                              127<\/span><\/p>\n
             The prosecution has also relied on the case of    Zahiruddin <\/p>\n
    Vs. Emperor, reported in  AIR (34) 1947 PC 75,  in which it is held <\/p>\n
    that:\n<\/p>\n
               “(9) The objection to the conviction founded  on the
\n             failure   of   the   police   witnesses   to   keep   a   diary   as
\n             required   by   Section   172(1),   Criminal   P.   C.,   may   be <\/p>\n
             conveniently disposed of at this stage. It was contended
\n             by learned counsel for the appellant that the evidence <\/p>\n
             of he officers was inadmissible. This contention was not
\n             supported by reference to the statute or to  authority, <\/p>\n
             nor was it the view taken by the Magistrate. In the
\n             opinion of their Lordships, a contravention of Section <\/p>\n
             172, lays  the evidence  of the  police  officers open  to
\n             adverse   criticism   and   may   diminish   its   value,   but   it
\n             does not have   the   effect of making that evidence <\/p>\n
             inadmissible.”\n<\/p><\/blockquote>\n
    129.                In view of the   fact that PW-40-Balkrishna Bhikaji <\/p>\n
    Agashe  did not  maintain case diary and  for want of   evidence <\/p>\n
    the prosecution has failed to bring on record what the  police did <\/p>\n
    on   arresting   the   accused   person   from   the   office   of   Blue   Bird <\/p>\n
    Detective Agency at or about 10 a.m. to 10.30 a.m. on 7.7.2006  till <\/p>\n
    they  came to be formally  arrested by PW-43 Uttam Yadav-PSI of <\/p>\n
    Deccan   Police   station.   This   is   indicative     of   the     fact   that   the <\/p>\n
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\n                                            128<\/span><\/p>\n
    prosecution has no explanation to offer   for the delay in showing <\/p>\n
    formal arrest of the accused persons and  cast a  shadow on  the <\/p>\n
    drawing of memorandum under Section 27 of the Evidence Act and <\/p>\n
    the     consequential   recoveries   of   the   parts   of   human   body   and <\/p>\n
    further  search  and seizures.\n<\/p>\n
    130.              Accused-   2   was   sent   to     Forensic   Laboratory, <\/p>\n
    Bangalore for Narco  analysis, 10 to 12 days after  her arrest.  Brain <\/p>\n
    mapping   test   was   carried   out.   The     Police   record     shows   the <\/p>\n
    transcript of the questions ( Exhs. 304, 305 and 306) put  by one Dr. <\/p>\n
    Malini who is specialized in conducting narco test   and answers <\/p>\n
    given   to   her   by   Accused   no.2       during   the     narco   test.   The <\/p>\n
    prosecution has filed an application Exh.247 on 30.9.2006 that they <\/p>\n
    do not  want to rely on narco test  of Accused no.2. However, the <\/p>\n
    Accused have said that the report of narco test be considered along <\/p>\n
    with the  report of Dr. Malini of Forensic  Laboratory, Bangalore.\n<\/p>\n
    131.              On   the   point   of     reliability   and   admissibility     of <\/p>\n
    narco test, the Learned Trial Judge has committed  an error. Though <\/p>\n
    the learned   trial Judge has mentioned in the judgment that the <\/p>\n
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\n                                             129<\/span><\/p>\n
    prosecution  did not rely on the narco test, the Learned Judge has <\/p>\n
    considered  the  evidence given  by  PW-46-Investigating Officer    on <\/p>\n
    this point.  Learned Trial Judge ought not to have   relied upon or <\/p>\n
    referred any evidence   tendered by PW-46 on  narco test conducted <\/p>\n
    by   Dr.   Malini.   The   contents   of   a   written   opinion     given   by   the <\/p>\n
    expert     are     required   to   be   proved     by   the   proving   the     said <\/p>\n
    document.  That can be done  by direct oral evidence of the author <\/p>\n
    of the document. Hence,   the evidence on the narco test was not <\/p>\n
    admissible except through Dr.  Malini  who has conducted the narco <\/p>\n
    test.     We   find   that     in     the   examination   in   chief,   the   Learned <\/p>\n
    Prosecutor put a number of questions to the Investigating officer <\/p>\n
    PW-46, and the investigating officer went on deposing the contents <\/p>\n
    and the outcome of the narco test in detail.  Such  evidence ought <\/p>\n
    not to have been recorded by the learned   Trial Judge. It   is the <\/p>\n
    duty of the trial court to record only the admissible evidence as per <\/p>\n
    the  principles laid down under the Indian Evidence Act.\n<\/p>\n
    132.               It is   clear   that the prosecution did not want to <\/p>\n
    rely on the narco test   as the prosecution found that the   said <\/p>\n
    evidence is not going to   help   them.     The   Accused wanted to <\/p>\n
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\n                                             130<\/span><\/p>\n
    rely on the CD of narco test and the evidence  on the narco test, in <\/p>\n
    the sessions Court and also at the time of hearing of the appeal. It <\/p>\n
    is the duty of the prosecution to produce the chargesheet consisting <\/p>\n
    of the record of their entire investigation. However,  whether to rely <\/p>\n
    on a particular piece of evidence or not   is the discretion of the <\/p>\n
    prosecution   and     this   liberty   is   given   to   the   prosecutor   as   the <\/p>\n
    prosecutor navigates     the   case of the prosecution and is aware <\/p>\n
    which evidence is helpful to  build up the case and which  witness <\/p>\n
    may dilute   the case of the  prosecution. The evidence collected by <\/p>\n
    the Investigating officer is  to be properly arranged and then to be <\/p>\n
    presented in the Court. While doing so, the prosecutor has to decide <\/p>\n
    the sequence in which   the witnesses are to be examined.   The <\/p>\n
    prosecutor   may     objectively     delete   any   witness     to   keep   back <\/p>\n
    irrelevant or   inadmissible evidence collected by the police.     The <\/p>\n
    prosecution   enjoys   the   privilege   to   be   selective   to   produce   such <\/p>\n
    evidence   to reveal the truth of the case.     In the   present case <\/p>\n
    the   police   have   formed   an   opinion   that     the   evidence   of   narco <\/p>\n
    analysis  is of no worth due to   the falsity involved in it.  If at all <\/p>\n
    the defence wanted to rely on it, the defence could have examined <\/p>\n
    Dr. Malini. However, that was not done and, therefore, we cannot <\/p>\n
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\n                                         131<\/span><\/p>\n
    consider   any such evidence. The learned   Trial Judge should not <\/p>\n
    have recorded that evidence and should have refrained himself from <\/p>\n
    discussing   the   said   evidence.   We   would   like   to   mention   that <\/p>\n
    whether the  narco test   gives only a lead to the  police  for the <\/p>\n
    investigation or is  substantive evidence admissible in the trial is the <\/p>\n
    issue  pending  before the Supreme Court. We do not express any <\/p>\n
    opinion on this issue as the   Supreme Court is in seisin of that <\/p>\n
    matter.\n<\/p>\n
    133.             The Learned Trial Judge has considered that   the <\/p>\n
    demand of ransom amount of Rs. 25   lakhs   was the motive for <\/p>\n
    abduction.  Accused No.1  argued that it was  not so.   That, she <\/p>\n
    argued, can be seen from the   fact that during the conversation <\/p>\n
    with Dr. Smita Mahajan the culprits did not tell her where and how <\/p>\n
    the money was to be handed over. There was no repetition of  the <\/p>\n
    demand. Hence, in the absence of proof  of motive, it was argued <\/p>\n
    that the  edifice  of the story of murder is without any  foundation.\n<\/p>\n
    It is  expected  from the prosecution to bring the motive on record <\/p>\n
    to prove the offence. However, failure of the prosecution to establish <\/p>\n
    the motive will not destroy the entire case of the prosecution.  On <\/p>\n
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\n                                          132<\/span><\/p>\n
    certain occasions, prosecution  experiences an impasse  as motive is <\/p>\n
    so   deep   or   mercurious   to   detect   and   collect.   Under   such <\/p>\n
    circumstances,  if offence of murder is proved with other evidence, <\/p>\n
    then absence  of motive in the case   will not be fatal to  the case <\/p>\n
    of the prosecution.  In the case of   Manikumar Thapa Vs. State of <\/p>\n
    Sikkim, reported in  (2002) 7 Supreme Court Cases 157, when motive <\/p>\n
    was absent and corpus was also not found, the Supreme Court has <\/p>\n
    taken a following view:\n<\/p>\n
           “Assuming that this evidence is insufficient to establish
\n           the motive for murder even then if the prosecution is <\/p>\n
           able   to   establish   beyond   all   reasonable   doubt   from
\n           other   circumstantial   evidence   that   it   is   the   Accused
\n           (including   the   appellant)   alone   who   could   have <\/p>\n
           committed the murder, the absence of motive will not <\/p>\n
           hamper a safe conviction.”<\/p><\/blockquote>\n
          It is the prosecution’s case that the demand of money was <\/p>\n
    verbally made by the Accused to PW-11,   pursuant to Dr. Deepak <\/p>\n
    Mahajan’s abduction. Hence demand of ransom was expressed. From <\/p>\n
    such   expression,   the     intention   can   be   gathered.   Subsequently <\/p>\n
    change in the intention may be possible. In  such a case the proof <\/p>\n
    of   such motive cannot be brought on record.  This would not be <\/p>\n
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\n                                        133<\/span><\/p>\n
    fatal to the prosecution. At this state we may note  that though the <\/p>\n
    conversation with the complainant and the  suspects took place in <\/p>\n
    the presence of Police officers they failed to  record the same, which <\/p>\n
    could have helped the prosecution in   identifying   the suspects as <\/p>\n
    accused before the Court.\n<\/p>\n
    134.            The   above     discussion   takes   us     to   the   final <\/p>\n
    conclusion,  the heinous  crime has been committed but when there <\/p>\n
    is no satisfactory proof of the guilt we have to take safe approach <\/p>\n
    and we are constrained to give benefit of doubt to the Accused.  We <\/p>\n
    have no hesitation to conclude that the appellants\/accused are guilty <\/p>\n
    of having committed offence under Sections 364-A, 419, 465, 468, 328, <\/p>\n
    342 and 187 read with 120(b) of the Indian penal Code. The finding <\/p>\n
    of the Trial Court is not disturbed in respect of extent of p unishment, <\/p>\n
    except under Section 364-A of the Indian Penal Code. In so far as <\/p>\n
    the charges of having committed offence under sections 302 and 201 <\/p>\n
    read with Section 120(b) of the IPC  are  concerned, the prosecution <\/p>\n
    having failed to establish  their  guilt beyond reasonable doubt, the <\/p>\n
    Accused are entitled to be acquitted of the said charges and to  this <\/p>\n
    extent the  findings of the Trial Court are quashed and set aside.\n<\/p>\n
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\n                                           134<\/span><\/p>\n
     On 30  th  September, 2009 <\/p>\n
    135.                After  pronouncing   our judgment we have called <\/p>\n
    upon the prosecution and the appellants to address us on the point <\/p>\n
    of  sentences  particularly in respect of offence under Section 364-A <\/p>\n
    read with Section 120-B of   the IPC, wherein the Trial Court has <\/p>\n
    imposed capital punishment and has submitted the matter to   the <\/p>\n
    High Court for confirmation.\n<\/p>\n
    136.<\/p>\n
                      The learned Special Public Prosecutor submitted that <\/p>\n
    in view of the fact that this Court has acquitted the appellants of <\/p>\n
    the charge of having committed murder and causing disappearance <\/p>\n
    of evidence, the State do not want to press capital sentence in so <\/p>\n
    far as offence under Section 364 A is concerned and as   sentence <\/p>\n
    for life is the minimum punishment that would meet ends of justice.\n<\/p>\n
    The learned Special Public Prosecutor submitted that the discretion <\/p>\n
    used by the trial Court in case of imposing punishment on various <\/p>\n
    other   counts   does   not   appear   to   be   unreasonable   and   that   the <\/p>\n
    learned trial Court has kept in mind the principal of proportionality <\/p>\n
    while imposing the punishment and, therefore, it does not call for <\/p>\n
    any interference particularly when this Court in appeal  has upheld <\/p>\n
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\n                                            135<\/span><\/p>\n
    the   conviction   of   the   appellants   by   holding   them   guilty   of   such <\/p>\n
    charges.\n<\/p>\n
    137.               Mrs.   Leena   Devasthali   and   Ms.   Deepti   Devasthali <\/p>\n
    submitted that they not only want but insist for capital punishment <\/p>\n
    being imposed on them by sentencing them to death and say they <\/p>\n
    should be punished with death.  For taking such a stand this Court <\/p>\n
    made a specific query from them as they are appearing in person as <\/p>\n
    to why they are insisting that they should be  punished with death <\/p>\n
    as the Court want to understand whether this submission is made <\/p>\n
    because   the   Court   has   partly   allowed   their   appeal   or   otherwise.\n<\/p>\n
    Amongst the appellants Ms. Deepti Devasthali (original accused no. 1) <\/p>\n
    stated  that  if  death  sentence is  awarded  their  appeal before  the <\/p>\n
    Supreme Court will be taken up on priority otherwise they will be <\/p>\n
    required to languish in jail and it is uncertain when the Supreme <\/p>\n
    Court will take up their appeal for hearing and by the time their <\/p>\n
    appeal is taken up for hearing and in case they are acquitted they <\/p>\n
    will come out as free citizens by actually undergoing the sentence <\/p>\n
    of life imprisonment.\n<\/p>\n
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\n                                     136<\/span><\/p>\n
    138.           In our view, this cannot be the basis for imposing <\/p>\n
    extreme penalty of death.   Therefore, such a contention cannot be <\/p>\n
    accepted.\n<\/p>\n
    139.           On going through the judgment of the trial Court, <\/p>\n
    what we find is that the trial Court while justifying imposing of <\/p>\n
    capital punishment on both the counts i.e. under section 364-A and <\/p>\n
    302 of the IPC read with Section 120 B, has taken into consideration <\/p>\n
    decisions of the Supreme Court on the issue, viz., Mohan and others <\/p>\n
    vs. State of Tamilnadu, reported in 1998 (5) Supreme Court Cases <\/p>\n
    336, Machchisiingh  vs.  State of Punjab, reported  in 1983 Supreme <\/p>\n
    Court Cases (Cri.) 681, Bachan Singh vs. State of Punjab reported in <\/p>\n
    1980 Supreme Court 898, Renuka @ Rinku and another vs. State of <\/p>\n
    Maharashtra reported in A.I.R. 2006 and  Daya Nand Bisto vs. State <\/p>\n
    of Orissa reported in 2003 (5) Supreme Court Cases page 74 which <\/p>\n
    reveal that the trial Court was well conversant in respect of the <\/p>\n
    guidelines in order to take a decision as to whether in the given <\/p>\n
    facts and circumstances of the case, death sentence deserves to be <\/p>\n
    imposed or not?   What we find from the reasoning given by the <\/p>\n
    trial Court is that though the trial Court was conscious of the fact <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                          137<\/span><\/p>\n
    that death sentence in murder case is permissible in rarest of rare <\/p>\n
    cases and only for special reasons, it has erred in ascertaining the <\/p>\n
    existence of special reasons  in that context and has given undue <\/p>\n
    importance to matters which do not require consideration for the <\/p>\n
    said   purpose,   particularly   when   it   has   taken   into   consideration <\/p>\n
    family   background   of   the   deceased   and   observed   that   one   can <\/p>\n
    understand the pain and agony of the father that he has to perform <\/p>\n
    the last rites of his son who was brought up as a doctor and he <\/p>\n
    was killed mercilessly while he was leading well to do life apart <\/p>\n
    from being blessed with two young children left behind as orphans.\n<\/p>\n
    140.              Further,   it   laid   unnecessary   emphasis   on   the <\/p>\n
    evidence of PW-12   Prabhakar Phalgune, brother of accused Leena, <\/p>\n
    who in his evidence rather attacked the character of his sister and <\/p>\n
    that she was a problematic  child and  on one occasion both the <\/p>\n
    accused have approached Dr.   Deepak Mahajan to give certificate <\/p>\n
    that Maltibai’s (i.e. mother of accused no. 2) death was   un-natural <\/p>\n
    to  bring  him  and   their   other   sister  Jayashri in trouble  and   also <\/p>\n
    erred in taking into consideration the evidence of the Investigating <\/p>\n
    Officer PW-46 that the appellants-accused have adopted the same <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                             138<\/span><\/p>\n
    modus operandi in committing the crime like Jassi and Sardarji in <\/p>\n
    Crime No. 630\/2006 registered with Deccan Police Station.   In our <\/p>\n
    view this was not germane for taking into consideration whether the <\/p>\n
    accused deserve to be sentenced to death.\n<\/p>\n
    141.               The Trial Court should understand that Section 302, <\/p>\n
    I.P.C. casts a heavy duty on the Court to choose between death and <\/p>\n
    imprisonment for life.   When the Court is called upon to choose <\/p>\n
    between   the   convict’s     cry   ‘I   want   to   live’   and   the   prosecutor’s <\/p>\n
    demand ‘he deserves to die’ it goes without saying that the Court <\/p>\n
    must show a high degree of concern and sensitiveness in the choice <\/p>\n
    of sentence.  In the justice delivery system several difficult decisions <\/p>\n
    are left to the presiding officers, sometimes without providing the <\/p>\n
    scales or the weights for the same.   In cases of murder, however, <\/p>\n
    since   the   choice   is   between   capital   punishment   and   life <\/p>\n
    imprisonment the legislature has provided a guideline in the form of <\/p>\n
    sub-sec (3) of S. 354.  This provision makes it obligatory in cases of <\/p>\n
    conviction   for   an   offence   punishable   with   death   or   with <\/p>\n
    imprisonment for life or for   a term of years to assign reasons in <\/p>\n
    support of the sentence awarded to the convict and further ordains <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                              139<\/span><\/p>\n
    that in case the judge awards the death penalty, “special reasons”\n<\/p>\n
    for such sentence shall be stated in the judgment.  When it casts a <\/p>\n
    duty on the judge to state reasons, it follows that he is under a <\/p>\n
    legal obligation to explain his choice of the sentence.  It may seem <\/p>\n
    trite to say so, but the existence of the ‘special reasons clause’ in S.\n<\/p>\n
    354(3),   Cr.P.C.   implies   that   the   Court   can   in   fit   cases   impose   the <\/p>\n
    extreme penalty of death which negatives the plea that there never <\/p>\n
    can be a valid reason to visit an offender with the death penalty, <\/p>\n
    no matter how cruel, gruesome or shocking the crime may be.  In <\/p>\n
    order that the sentences may be properly graded to fit the degree <\/p>\n
    of gravity of each case, it is necessary that the maximum sentence <\/p>\n
    prescribed by law should be reserved for the rarest of rare cases <\/p>\n
    which are of an exceptional nature.  Unless the nature of  the crime <\/p>\n
    and the circumstances of the offender reveal that the criminal is a <\/p>\n
    menace to the society and the sentence of life imprisonment would <\/p>\n
    be   altogether   inadequate,   the   Court   should   ordinarily   impose   the <\/p>\n
    lesser punishment and not the extreme punishment of death which <\/p>\n
    should be reserved for exceptional cases only.   (Alauddin Mian v.\n<\/p>\n
    State of Bihar, AIR 1989 SC 1456).\n<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                             140<\/span><\/p>\n
    142.               In our opinin, the learned Special Public Prosecutor, <\/p>\n
    has been quite fair while submitting that as this Court has acquitted <\/p>\n
    the appellants-accused of the charge of committing murder of Dr. <\/p>\n
    Mahajan by extending benefit of doubt, the State does not insist for <\/p>\n
    capital punishment for the offence under Section 364 A of IPC.\n<\/p>\n
    143.               Section   364-A   has   been   inserted   by   Section   2   of <\/p>\n
    Amending Act 42 of 1993 providing severe punishments in cases of <\/p>\n
    kidnapping   or   abduction   for   ransom   which   says   that   whoever <\/p>\n
    kidnaps or abducts any person or keeps a person in detention after <\/p>\n
    such kidnapping or abduction and threatens to cause death or hurt <\/p>\n
    to   such   person,   or   by   his   conduct   given   rise   to   a   reasonable <\/p>\n
    apprehension that  such  person  may  be put   to death  or  hurt,  or <\/p>\n
    causes   hurt   or   death   to   such   person   in   order   to   compel   the <\/p>\n
    Government or any foreign State or international inter-governmental <\/p>\n
    organisation or and other person to do or abstain from doing any <\/p>\n
    act or to pay a ransom as demanded by the accused.  The later part <\/p>\n
    of   Section   364   –   A   came   to   be   inserted   by   section   (2)   of   the <\/p>\n
    Amending Act 42 of 1995 which lay emphasis on “any foreign State <\/p>\n
    or international inter-governmental organisation” which is indicative <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                            141<\/span><\/p>\n
    of the fact that the Legislature has taken cognizance of activities <\/p>\n
    like kidnapping or abduction being made a serious offence on par <\/p>\n
    with   other   offences   under   the   Indian   Penal   Code   which   are <\/p>\n
    punishable with death or imprisonment for life as it was noticed <\/p>\n
    that   kidnappings   and   abductions   are   at   times   done   of   certain <\/p>\n
    persons   in   order   to   compel   the   government   or   foreign   State   by <\/p>\n
    involving   inter-governmental   organisations   apart   from   any   other <\/p>\n
    persons either by terrorist organisation or organised crime syndicate <\/p>\n
    and   in   such   cases   death   sentence   may   be   justified,     otherwise <\/p>\n
    imprisonment for life sufficiently meets the ends of justice.   As in <\/p>\n
    the   earlier   section   i.e.   Section   364   what   is   contemplated   is   the <\/p>\n
    person charged with the offence had the intention at the time of <\/p>\n
    kidnapping or abducting that the person kidnapped or abducted will <\/p>\n
    be killed or may be so disposed of as to be put in danger of being <\/p>\n
    murdered   and   which   provides   for   imposition   of   punishment   of <\/p>\n
    imprisonment for life or rigorous imprisonment for a term which <\/p>\n
    may extend to ten years, and shall also be liable to fine.\n<\/p>\n
    144.               In the facts and circumstances of the present case <\/p>\n
    as the accused-appellants have been charged with the offence under <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                            142<\/span><\/p>\n
    Section 364 A and this Court has upheld the finding of the trial <\/p>\n
    Court on this count, imprisonment for life would meet the ends of <\/p>\n
    justice.\n<\/p>\n
    145.              In so far as the sentence imposed by the trial Court <\/p>\n
    on   finding   the   appellants-accused   guilty   of   the   other   charges   is <\/p>\n
    concerned, we find no reason to interfere as the trial Court has <\/p>\n
    taken   into   consideration   the   principles   of   proportionality   and <\/p>\n
    imposed sentence of imprisonment with appropriate variation in the <\/p>\n
    period of imprisonment and fine.  Hence, we have no hesitation to <\/p>\n
    pronounce the following sentences for the offences for which we <\/p>\n
    have held the appellants-accused guilty and they stand convicted for.\n<\/p>\n
    Hence we proceed to pass the following order:\n<\/p>\n
    1.     Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n           Anil Devasthali are  held guilty of the offence punishable under <\/p>\n
           Section 364-A  read with   Section 120-B of the Indian Penal
\n           Code  and they are sentenced to imprisonment for life  and to
\n           pay fine of Rs.10,000\/- (Rs. Ten thousand) each, in default to
\n           suffer  imprisonment  for three months.\n<\/p>\n
    2.     Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n           Anil Devasthali are  held guilty of the offence punishable under
\n           Section 387 read with  Section 120-B of the Indian Penal  Code <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                      143<\/span><\/p>\n
         and they are sentenced to   undergo  rigorous   imprisonment
\n         for   seven years to pay fine of Rs.10,000\/- (Rs. Ten thousand) <\/p>\n
         each, in default to suffer  imprisonment  for three months.\n<\/p>\n
    3.   Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n         Anil Devasthali are  held guilty of the offence punishable under
\n         Section 419 read with  Section 120-B of the Indian Penal  Code <\/p>\n
         and they are sentenced to   undergo rigorous imprisonment for
\n         three years to pay fine of Rs.10,000\/- (Rs. Ten thousand) each,
\n         in default to suffer  imprisonment  for three months.\n<\/p>\n
    4.<\/p>\n
         Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n         Anil Devasthali are  held guilty of the offence punishable under <\/p>\n
         Section 465 read with  Section 120-B of the Indian Penal  Code
\n         and they are sentenced to   undergo rigorous imprisonment for
\n         two years to pay fine of Rs.5,000\/- (Rs. Five thousand) each, in <\/p>\n
         default to suffer  imprisonment  for three months.\n<\/p>\n
    5.   Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n         Anil Devasthali are  held guilty of the offence punishable under <\/p>\n
         Section 468 read with  Section 120-B of the Indian Penal  Code
\n         and they are sentenced to   undergo rigorous   imprisonment
\n         for   five years to pay fine of Rs.10,000\/- (Rs. Ten thousand) <\/p>\n
         each, in default to suffer  imprisonment  for three months.\n<\/p>\n
    6.   Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n         Anil Devasthali are  held guilty of the offence punishable under <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                      144<\/span><\/p>\n
         Section 471 read with  Section 120-B of the Indian Penal  Code
\n         and they are sentenced to   undergo rigorous   imprisonment <\/p>\n
         for  three years to pay fine of Rs.3,000\/- (Rs. Three thousand)
\n         each, in default to suffer  imprisonment  for three months.\n<\/p>\n
    7.   Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena
\n         Anil Devasthali are  held guilty of the offence punishable under <\/p>\n
         Section 328 read with  Section 120-B of the Indian Penal  Code
\n         and they are sentenced to   undergo rigorous imprisonment for <\/p>\n
         seven years to pay fine of Rs.10,000\/- (Rs. Ten thousand) each,
\n         in default to suffer  imprisonment  for one months.\n<\/p>\n
    8.   Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena <\/p>\n
         Anil Devasthali are held guilty of the offence punishable under
\n         Section 342 read with Section 120-B of the Indian Penal  Code
\n         and they are sentenced to   undergo rigorous imprisonment for <\/p>\n
         one years to pay fine of Rs.1,000\/- (Rs. One thousand) each,in <\/p>\n
         default to suffer imprisonment for one months.\n<\/p>\n
    9.   Substantive sentences awarded to both the accused shall run <\/p>\n
         concurrently.\n<\/p>\n
    10. If fine amount   is paid,   then   the amount be paid to the <\/p>\n
         children of the deceased,     viz. Arjun Deepak Mahajn   and
\n         Rashmi Deepak Mahajan.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                           145<\/span><\/p>\n
    11.   Accused No.1  Deepti Anil Devasthali and Accused No.2  Leena
\n          Anil Devasthali are  held not guilty of the offences punishable <\/p>\n
          under Section 302 read with  Section 120-B  and  Section 201
\n          read with Section 120-B of the Indian Penal  Code and both of <\/p>\n
          them  are acquitted for the same.\n<\/p>\n
    12.   Accused No.1   Deepti Anil Devasthali and Accused No.2 Leena <\/p>\n
          Anil Devasthali, both are in jail since 7.7.2006 and   they are
\n          entitled   for   set   off     under   Section   428   of   the   Criminal <\/p>\n
          Procedure Code.\n<\/p>\n
    13.<\/p>\n
          The Appeal is  partly allowed.\n<\/p>\n
    14.   The submission for confirmation of capital sentence by the Trial
\n          Court  i.e. Confirmation Case No. 1 of 2008 is dismissed.\n<\/p>\n
    15.   The   Muddemal seized in the case  be disposed of in terms of <\/p>\n
          the order passed by Trial Court  after the period of appeal is
\n          over.\n<\/p>\n
    16.   The convicts be lodged in Yerwada   Central Prison after 9 th
\n          October, 2009.\n<\/p>\n
    17.   Certified copy of the judgment and order  would be furnished
\n          to the appellants on or before 9th October, 2009, free of cost.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span>
\n                                        146<\/span><\/p>\n
    18.     The appellants who are appearing in person are informed that
\n            they have a right to  prefer appeal against the judgment and <\/p>\n
            order of the Court to the Supreme Court of India   at New
\n            Delhi through their Advocate or  Superintendent of the Prison.\n<\/p>\n
    19. The appellants are also informed that they  can take assistance
\n            of the Supreme Court Legal Aid Committee for preferring their <\/p>\n
            appeal and  represent them before the Hon’ble Supreme Court
\n            of  India, if they so<\/p>\n
      ( MRIDULA BHATKAR, J)                            (J. N. PATEL, J.\n<\/p>\n
    jpc\/-\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:08:13 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Leena Anil Devastnali vs State Of Maharashtra on 30 September, 2009 Bench: J.N. Patel, Mridula Bhatkar 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-114360","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLeena Anil Devastnali vs State Of Maharashtra on 30 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/leena-anil-devastnali-vs-state-of-maharashtra-on-30-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Leena Anil Devastnali vs State Of Maharashtra on 30 September, 2009 - 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