TaxTMI 
TaxTMI 
2025 (1) TMI 1535
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....Appellant. The Trial Court convicted the Appellant for the offences punishable Under Sections 302, 364, 366, 376(2)(m), 376A, 392 read with Section 397 and 201 of the Indian Penal Code (for short 'IPC'). For the offences punishable; Under Section 302 Indian Penal Code, the Appellant was sentenced to death; Under Section 364 Indian Penal Code, rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment of one year; Under Section 366 Indian Penal Code, a sentence of ten years RI and to pay a fine of Rs. 10,000/-, in default RI for one year; Under Section 376(2)(m) Indian Penal Code, a sentence of RI for ten years; Under Section 376A Indian Penal Code, RI for life which was to mean imprisonment for remainder of his natural life; Under Section 392 read with 397 Indian Penal Code, a sentence of RI for seven years and Under Section 201 Indian Penal Code, he was sentenced to RI of seven years. All the sentences were to run concurrently. The Appellant was directed to pay a sum of Rs. 50,000/- as compensation to be payable to the parents of the deceased. The case of the Prosecution: 2. The deceased is a 23 year old young wo....
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....cience Laboratory (FSL). He made arrangements for lighting and conducted the inquest Panchnama which is marked as Exh.84 and seized the ring of yellow metal (Article 27) and thereafter he sent the body for post-mortem. A spot Panchnama was also drawn in the presence of two panchas. While PW-2 Bapu Mahadev Adsul deposed with regard to spot Panchnama (Exh.38), PW-6 Nirmala Vilas Kadu testified for the inquest Panchnama (Exh. 84). PW-30 further testified that on the spot a mobile phone of Samsung company with two sim cards, one grey colour scarf, red colour T- shirt, bunch of hair, one knicker and one wrist-watch having a broken belt were found and seized. He collected the blood samples, the grass and the mud from the spot with the help of FSL persons. He deposed that the back portion of the body and chest were decomposed and that the chest was looking like half burnt. He deposed further that the leg was half burnt. 5. PW-25 Dr. Gajanan Shirserao Chavan, Assistant Professor, Forensic Medicine Department, J.J. Hospital conducted the post-mortem between 11:00 AM and 12:30 PM on 17.01.2014. The dead body was received at 05:45 AM. According to the doctor, the dead body showed a black c....
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....igned) 1) Contusion over LT Left fronto temporal area 4 x 5 cm, blackish red colour 2) Contusion over lower lip right side against canines - blackish red in colour 2 x 2 cm. Both contusions confirmed by cut section. 18 Other injuries discovered by external examination or perlustration as fractures etc. No ante mortem fracture. 22 Opinion as to the cause probable cause of death Evidence of blunt injuries over body and genital injuries seen. However, final opinion reserved pending for C.A. of samples. 6. The provisional cause of death was given as evidence of blunt injuries over the body and genital injuries were noticed. However, final opinion was reserved pending chemical analysis of samples. After receipt of the chemical analysis report, final cause of death was given as death due to head injury with smothering associated with genital injuries. 7. Most importantly, the time of death was estimated to be 8-10 days before the post-mortem date as no maggots or pupa were seen on the body. The post-mortem date was 17.01.2014. The defence has a case based on this that death would have occurred anytime between 07.01.2014 and 09.01.2014. The Appellant also rai....
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....an as mentioned in column No. 15 could be caused due to decomposition? Answer: peruse the answer given at Sr. No. 1. Sd/- (Illegible) (Dr. M.M. Jawle) Assistant Professor Deptt. Of Forensic Medicine Grant Medical College, Mumbai-08 Sd/- (Illegible) (Dr. G.D. Nithurkar) Assistant Professor Deptt. Of Forensic Medicine Grant Medical College, Mumbai-08 Sd/- (Illegible) (Dr.G.S. Chavan) Deptt. Of Forensic Medicine Grant Medical College, Mumbai-08" 10. The defence also states that no semen was found on any articles received from the spot or the biological samples of the deceased since the chemical analysis Reports (Exh. 17 to Exh.34) indicates that on the scarf, T-shirt, knicker with cotton pad, burnt cloth pieces and in the partly burnt cloth pieces and grass, no semen was detected. 11. Having carefully perused the evidence of PW-25 and the Exh.127 to Exh.130, we have no reason to dislodge the findings of the courts below that the death is homicidal in nature. The doctors have clearly opined that the final cause of death was due to head injury with smothering associated with genital injuries and clarified that injuries to the genitals are possib....
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....o the Accused on this score. All the witnesses have been examined only after all the charges were in position. 13. Between 16.01.2014 and 02.03.2014, investigation was carried on and the prosecution claims that the pen drive of the CCTV footage for the date 05.01.2014 between 4:00 AM and 07:00 AM were taken on 18.01.2014 from the Lokmanya Tilak Terminus; then the father of the deceased was contacted with the pen drive for identification of deceased EA and statements of witnesses were recorded. Chargesheet was filed after obtaining the FSL report for offences mentioned above. At the trial, the prosecution examined 39 witnesses and marked approximately 200 exhibits. The defence examined four witnesses. DW-1 to DW-3 reporters and editors who are associated with newspapers and DW-4 the official from the mobile company who spoke of CDR details and marked approximately eight exhibits. The Appellant was examined Under Section 313 and in answer to the last question as to whether he wanted to say anything more, the Appellant stated that he was falsely implicated in the case and added that in February 2014, the Kurla Police detained him for 15 days. 14. We have heard Mr. Shri Singh, le....
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....e Accused. 16. Keeping in mind the above principles, we have approached the case at hand. The High Court has tabulated the following circumstances to sustain the conviction in Para 40 of the Judgment: (i) The deceased EA who was working with TCS Andheri, Mumbai and a resident of Vijayawada, Andhra Pradesh has boarded the train from Vijayawada to LTT, Kurla on 4th January 2014. (ii) Phone calls made by her father to EA on 5th January were not answered and she did not reach her hostel located in Andheri. (iii) A partly burnt decomposed body was found on 16th January 2014 near the service road of Eastern Express Highway near Kanjur Marg which came to be identified by PW No. 26 as to be of his missing daughter EA. (iv) The post mortem report establish that the death of the deceased was homicidal and there was injury to her private parts, thereby establishing that she was raped. (v) The Inquest Panchnama and Post Mortem report establish that the body was partly burnt and attempt was made to destroy the evidence by burning the body. (vi) The Accused consumed liquor at the residence of PW No. 12 in the company of PW No. 9 and then l....
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....nding that PW-26 was indeed the father of the deceased EA; that deceased EA was dropped at the station in Vijayawada on 04.01.2014 by PW-26; that deceased called PW-26 when the train was crossing Solapur Station on 04.01.2014 at 09:00 PM and that the deceased died due to the injuries mentioned by the experts in the report. 19. PW-28 Shrikant Hanumant Lade also testified about the DNA profile of PW-26 - the father matching with the paternal alleles in the source, DNA of the deceased. His report is marked as Exh. 22. He compared the DNA profiles from the blood sample of PW-26 and the DNA extracted from the sweat detected on Exh.1 - ID card with belt, Exh.2-spectacles and the bone sample of the deceased. Notwithstanding our finding recorded later on on the alleged recovery aspect of the ID card from the sister, as far as this DNA matching is concerned, considering that the DNA has matched with the blood sample of PW-26 with that of the DNA profiles of the deceased, we have no reason to doubt that PW-26 is the father of the deceased EA. 20. The defence feebly questioned the chain of custody with regard to the blood samples of PW-26 and about the lack of underlying scientific basi....
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....m, was taken from the camera installed at the Lokmanya Tilak Terminus to establish the fact that the Appellant was last seen with the deceased at around 05:00 AM in the morning of 05.01.2014. To establish this fact, the prosecution has examined PW-1 Girish Rajeshwar Mishra, PW-31 Chandramani Sitaram Pandey, PW-33 Vishal Bhaskar Patil and PW-34 Nishikant Vishwanath Tungare, the Police Inspector. 25. According to PW-1, the data for 05.01.2014 between 04:00 AM to 07:00 AM consisting of the CCTV footage for that time was copied in two pen drives on 18.01.2014. He has deposed that PW- 31 Chandramani Sitaram Pandey searched for the particular date and copied the footage to the pen drives and in this way the footage was copied from the computer in two pen drives. In all 425 files were copied, according to the witness. The witness states that he signed the Panchnama and thereafter PW-34 Nishikant Vishwanath Tungare sealed the articles and stamped it. Mr. Tungare told PW-1 that one pen drive was for the court and one was for operational purpose. The Panchnama was marked as Exh.36. In Exh.36 Panchnama the following description of digital video recorder 1 and digital video recorder 2 is gi....
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....DVR-II. I cannot say why it is mentioned in the statement. The portion marked 'B' in my statement is not stated by me. 13. Sixteen cameras are from platform Nos. 1 to 5 in DVR - II. It is correct to say that the cameras of DVR I is located in outer side of the platform. It is correct to say that 16 cameras which are mentioned in DVR- II covers the half platform and the bridge. It is correct to say that the limitation for saving the data in these 16 cameras are 12 days. I cannot say the date whether the police came to L.T.T. railway station on 18/01/2014. It is correct to say that the date of 5th March will be deleted on 17th March at night automatically.... 15. ... Before 18th the police from Kurla police station never contacted me. RPF also did not call me during the period of 05/01/14 to 18/01/14. It is correct to say that any video can be edited at any stage but not from the server. One can edit the recording from the Pen Drive. He further admitted that he gave the recording in the pen drive from the server. What is of significance is that the recording on platform Nos. 1 to 5 is in DVR-II where the life span is 12 days and also that the DVR-I camera....
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....sed to the following effect: 8. During the investigation, it was found that one person who is working in salt office which is near the spot is having some important information with him. Therefore, I asked the team to call him in the police station. I called him and I recorded his statement. His name is Prahlad Yadav. On 05/01/14 Prahlad Yadav saw that one person was trying to start his motorcycle near the spot. I recorded his statement on 19/01/14. 9. I have recorded the statement of the ASI who has taken the samples to the forensic lab. When I was watching the CCTV footage in pen drive, I found that one person was talking with somebody therefore I gave the instructions to inquire said person. Said person was seen in said CCTV footage for many times and he was having a bottle of soft drink in his hand. After inquiry, I came to know that said person was talking with the person who was the A.C. mechanic of the railway and his name is Nair. I called him in the police station, inquired him and I recorded his statement on 22/01/14. 10. During inquiry, the investigating team found that said soft drink bottle was purchased by him from one of the stalls in railw....
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....d and PW-21 Ganesh Krishna Shetty were also not shown the CCTV footage since they claim to have seen the Appellant with the deceased. No sketch or photograph of the person in the CCTV footage was also prepared and the footage was also not sent for forensic analysis. 33. According to the learned Counsel, the CCTV footage will not tantamount to "last seen together evidence" as identification of the Appellant and the deceased in the same footage has not been proved. Learned Counsel submits that no witness identified both the deceased and the Appellant in the CCTV footage and the two witnesses to whom the CCTV footage was shown Singavarapa Jonathan Surendra Prasad PW-26 (who identified his daughter) and PW-27 who identified the Appellant have not established the fact that the identifications were in the same footage. PW-26 identified only his daughter coming out with her bag and with an unknown person on platform No. 4 of LTT Station and PW-27 saw the footage and identified the Appellant, in one footage with the cold drink bottle and in another with the trolley bag but did not mention presence of any girl, contends the learned Counsel. Learned Counsel contends that PW-27's ident....
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....roduced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-sectio....
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....e of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. -- For the purposes of this Section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process. 36. Mr. Shri Singh learned Counsel for the Appellant fairly submits that when the CCTV footage was introduced as evidence through PW-1 on 28.08.2014, the judgment of this Court in State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 was holding the field. In Navjot Sandhu (supra), this Court held as follows: 150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that ....
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....by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. 38. According to the learned Counsel, since the exhibits were marked before 18.09.2014, the Appellant did not have the benefit of the decision of the Anvar P.V. (supra) when the footages were marked. 39. In Shafhi Mohammad v. The State of Himachal Pradesh (2018) 2 SCC 801 (delivered on 30.01.2018), a two Judge Bench of this Court after noticing Anvar P.V. (supra) held that a party who is not in possession of device from which the document is produced cannot be required to produce the certificate Under Section 65-B(4) of the Indian Evidence Act. It also held that applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. 40. In Sonu @ Amar v. State of Haryana (2017) 8 SCC 570, (delivered on 18.07.2017) the following paragraphs being crucial are extracted hereinbelow: 30. In R.V.E. Venkatachala Gounder [R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752], this Court held as follow....
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....e objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior court. 31. It would be relevant to refer to another case decided by this Court in P.C. Purushothama Reddiar v. S. Perumal [P.C. Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9]. The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that: (SCC p. 15, para 19) 19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the Respondent. He contended that the police reports referred to earlier are inadmissibl....
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....the opposite party to rectify the defect. It was also held that the documents were not inherently inadmissible in evidence. 41. In this case, learned Counsel Mr. Shri Singh contends that even though there was no objection when PW-1 marked the exhibits; question was put to PW-38 Vyanket Bhanudas Patil about the need for Section 65-B certificate and its absence in the case of CCTV footage particularly when Section 65-B certificate was furnished for CDR report by the police. Relevant part of the deposition of PW-38 reads as under: It is correct to say that while calling the CDR reports, I called the certificates Under Section 65-B of Evidence Act. It is correct to say that I was aware that while collecting the electronic evidence, the certificate is required. It is correct to say that I have not collected the certificate for CCTV footage. It is correct to say that I have not taken any authority letter from railway or said company to show that Chandramani Pandey has authority to handle the CCTV server. It is correct to say that the papers which were received from the Kanjur Marg police station, no such certificate was received. 42. The deposition of PW-38, when this ques....
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.... v. State of H.P., (2018) 2 SCC 801: (2018) 2 SCC (Civ) 346: (2018) 1 SCC (Cri) 860] needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter. 48. The reference came to be answered in the judgment reported in (2020) 7 SCC 1 by a three-Judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. The relevant portions of which are as under: 45. Thus, it is clear that the major premise of Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801: (2018) 2 SCC 807: (2018) 2 SCC (Civ) 346: (2018) 2 SCC (Civ) 351: (2018) 1 SCC (Cri) 860: (2018) 1 SCC (Cri) 865] that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person Under Section 65-B(4) in cases in which such person refuses to give it. 46. R....
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....h certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the Accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant Sections of the Code of Criminal Procedure. 56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an Accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the Accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution Under Sections 91 or 31....
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....Cri) 704], do not lay down the law correctly and are therefore overruled. 73.2. The clarification referred to above is that the required certificate Under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate Under Section 65-B(4). The last sentence in para 24 in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: (2015) 1 SCC (Civ) 27: (2015) 1 SCC (Cri) 24: (2015) 1 SCC (L&S) 108] which reads as "... if an electronic record as such is used as primary evidence Under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words ....
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....nstant matter. The subsequent judgments of the High Court and this Court were passed on 13.9.2007 and 10.8.2011 respectively affirming the award of death sentence. These two judgments were delivered prior to the decision of this Court in Anvar P.V. which was given on 18.9.2014. The judgments by the trial Court, High Court and this Court were thus well before the decision in Anvar P.V. and were essentially in the backdrop of law laid down in Navjot Sandhu. If we go by the principle accepted in paragraph 32 of the decision in Sonu alias Amar, the matter may stand on a completely different footing. It is for this reason that stand on has been placed on certain decisions of this Court to submit that the matter need not be reopened on issues which were dealt with in accordance with the law then prevailing. However, since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V. and Arjun Panditrao. 25. Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate Under Section 65-B(4) of the Evidence....
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....i and the said man told that he was having vehicle. He described the man as having a broad moustache and was bald from front side, about 5'5'' tall and wearing T-shirt and blue jeans pant. He was about 35 years of age. He deposes that police came to enquire regularly and used to pressurize the taxi drivers. He states that his friend Ganesh Shetty (PW-21) came to him and told him that he visited the police station and gave statement to the police about the said lady. At that time, PW-20 said that he also saw that girl and was ready to give his statement. Thereafter, he went with his friend to Crime Branch on 20.03.2014 and gave his statement that he saw the girl going with one person. On 25.03.2014, he speaks of the TI parade held to identify the Appellant. He deposes in cross-examination that the drivers of pre-paid taxi never called passengers like normal taxi driver and also that about 500-600 persons would get down from the train and leave in a hurry. He further deposed that many people were having thick moustache. 55. PW-20 claimed that he was watching them for two minutes from a distance. He claimed that the girl was wearing T-shirt, jeans and Dupatta though he ....
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.... the police asked him to give the list of vehicles which were parked in the parking area on the night of 04.01.2014 to 05.01.2014. He further deposed that he used to put the number when the vehicle entered the parking place. He however deposed that since the receipt of the vehicle of the Accused was not prepared, he did not mention the number on any receipt. He admits that no action or complaint was lodged against the Appellant for not paying parking charges and did not try to catch him. 58. He however states that when he met PW-20 Ramesh Rathod, he did not tell him that he went to the police and did not talk with Ramesh about the recording of his statement. He states that the passage of exit was 2.5 feet and passage was always crowded after the arrival of train and further added that if two persons pass together, it is not necessary that they have arrived together. 59. Mr. Shri Singh, learned Counsel for Appellant mounts a scathing attack on the evidence of PW-20 and PW-21 labelling them as unreliable witnesses. Learned Counsel submits that PW- 21's statement was recorded on 04.03.2014 and PW-20's statement was recorded on 20.03.2014 about two to two and a half month....
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....orks in the canteen at Kurla Terminus since 24.12.2013. According to him, the stall where he was working was at platform No. 4 and 5 facing towards Kalyan Railway Station. He deposes that on 08.02.2014, the Kanjur Marg Police came to him. The police asked him whether any person came to him for purchasing cold drink or water on 05.01.2014. He deposes that he told that thousands of people come to him and as to how could he tell them as to who came. He states thereafter that he remembered that on 05.01.2014 one person came to him after opening the stall and he purchased thums-up for Rs. 34/-; that the said person gave him currency note of Rs. 100/-; that he asked him to give change of Rs. 4/-; that he was not having change of Rs. 4/- therefore he gave chocolate. The witness deposes that at that time the person started abusing him and for 10-15 minutes he was debating with him and thereafter he gave a change of Rs. 4/- to him. Ordinarily, if a person in this scenario asked for a change of four, one would have assumed that he wanted to return a round figure of Rs. 70/- and if the change Rs. 4/- was not given he ought to return a figure of Rs. 6/- and it is unclear as to how after the ex....
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....seriously questioned the reliability of PW-18 and PW-19. At the outset, learned Counsel states that the witnesses cannot be classified as persons who have last seen the deceased with the Appellant since they merely claim to have sighted the Appellant alone at the LTT Railway Station on 05.01.2014. Learned Counsel submits that while PW-18's statement was recorded, nearly after a month from 05.01.2014 (the statement was recorded on 08.02.2014) and PW- 19's statement was recorded on 22.01.2014. Learned Counsel claims that it is unnatural for either of them to remember the Appellant based on any brief, chance encounter and canvassed that it was surprising that identical detailed descriptions of height, clothes worn were provided by the witnesses. 66. Admittedly, according to the learned Counsel, CCTV footage was not shown to the witnesses and as such it was unclear as to on what basis the Police knew that the person they were speaking of, was the same man in the footage. Learned Counsel further questions that TI Parade was of no value since as was submitted earlier, the photographs were widely circulated in the Media from as early as 04.03.2014. 67. Learned Counsel conten....
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....bout his statement. PW-21 denies any such happening. The way his physical features are remembered also does not inspire confidence. It should not be forgotten that they are referring to a time when the Station would have been bustling with hectic activity, when the train would have arrived and people would be departing in hordes in a hurried manner. To recollect something that happened two and a half months back in this situation would be a tall order. The Identification Parade conducted by PW-39 Vishnu Janu Kanhekar also lacks steam since the photographs of the Appellant were admittedly published earlier in the newspapers as deposed by DWs 1, 2 and 3. 73. In Suryamoorthi and Anr. v. Govindaswamy and Ors. (1989) 3 SCC 24, this Court in Para 10 held as under: 10. Two identification parades were held in the course of investigation. At the first identification parade PW 1 identified all the seven Accused persons whereas PW 2 identified three of them, namely, Accused 2, 6 and 7 alone. It is, however, in evidence that before the identification parades were held the photographs of the Accused persons had appeared in the local daily newspapers. Besides, the Accused persons wer....
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....cused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the Accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the Accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the Accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such Accused persons. Hence, if the prosecution proves that in the light of the facts and circumstance....
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.... actor. 29. In our opinion it is extremely difficult to believe that a person engaged in the business of hawking would remember what was sold to a customer almost two months after the transaction and that too without identity of the goods sold having been established. Evidence of the Dog Walker PW-23 to establish presence of the Appellant in the vicinity of the crime and evidence of PW-13: 78. PW-23 Prahlad Kumar Yadav claims that he works in the Salt Office between Kanjur Marg and Bhandup. One of his jobs is to wake up in the morning at 5:30 and take the five dogs for a stroll. According to this witness, on 19.01.2014, one constable came to him and took him to the Police Station and inquired whether he saw any person near the service road on 05.01.2014. He replied stating that he saw one person 100 meters away from the service road. The Police further inquired whether he saw any person starting the Bike near the service road and he replied that he saw one person starting the bike. 79. PW-23 further states that he asked the person who was starting the bike whether he had a problem in starting the bike and the person nodded his head in agreement. The witness adds t....
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.....01.2024 he remembered about what happened on 05.01.2024, when he does not remember other past information is surprising. Here again, PW-23 is not the witness in the last seen category. He only claims to have seen the Appellant under circumstances which are doubtful and to sustain a conviction on the basis of his evidence will be very unsafe. Hence, we discard the evidence of PW-23. As stated earlier, the TI Parade also is vitiated because admittedly the Photographs were all over the place from 04.03.2014. The other infirmities pointed out by the Appellant have also not been met by the prosecution. That on 19.01.2024, PW-23 remembers that on 05.01.2014 he met a person in the early morning who had mud on the shoulders is too big of a pill to swallow. We need to say nothing more on this witness. 82. So far as PW-13 Mohammad Usman Lalmiyan Khan is concerned, a main portion of his examination in chief is as follows: I saw the Accused for many times. I saw him coming to society for many times. On 05/01/14 at 9.00 a.m. I saw the Accused going with his mother when I was standing with Chairman with other persons near the water room. (The witness started the statement saying tha....
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....his on the register. He submitted that he had not brought the register maintained before and after this register. He also admitted that there is no entry in the register after 09.03.2014. He further stated that the names of the persons who came to him on 07.01.2014 are not mentioned in the register. Further the names of persons who came from 13.01.2014 to 14.01.2014 for performing Puja are also not mentioned. He stated that he is not able to say who came on 07.01.2014. He admitted that there are different hand writings of six to seven persons in the register and there is no signature of any person under the entry and that he cannot say that which entry is made by whom. He also stated that there are several strikings in Exhibit 112. He says that except the signature on Exhibit 112 there is no signature on any page of the register. He stated that he cannot say how many persons have performed Puja on 06.01.2014. He admitted that he had not stated in his statement that after mother left the house, the Appellant asked him about anything. 87. PW-15 Ashok Kumar Harivilas Pandey is a resident of Mumbai. According to his evidence, on 10.03.2014, Police constable Sanjay Jadhav called him ....
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.... 5 to 10 persons come daily and 25 persons would come in a week and he cannot say the description and names of the said persons since he did not maintain any register. 89. Mr. Shri Singh, learned Counsel for the Appellant submits that the statements attributed to the Appellant are vague and generic and did not link the Appellant to the crime. Learned Counsel submits that on 02.03.2014, when the Appellant was arrested the Police claim that the horoscope was in his back pocket and the Police took eight days to investigate the horoscope, particularly, when the Police travelled to Nasik on 03.03.2014 to allegedly recover the trolley bag. The Appellant's visit to PW-16 has also not been proved. 90. We are really at a loss to understand as to what the prosecution seeks to establish. The priest has no systematic account of maintaining registers and on summoning of the Police, he seems to appear before the Police and produced the register out of the bag. It is also intriguing why the Appellant would carry the horoscope as late as on 02.03.2014. In any case, the evidence given by PWs -15, 16 and 17 do not constitute circumstantial evidence having any nexus with the commission of t....
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....g liquor from 10:30 to 11:30 PM. He states that at about 11:32 PM, the Appellant nick named Chokya came there and was having a parcel with him and also sat there for consuming liquor. He states that till 1:30AM they were sitting there. Thereafter, according to him, the Appellant told him that he was hungry and asked for some eatables. Since, they were not having anything to eat, the Appellant asked for the key of his Motorcycle and he gave the key of his Motorcycle. 94. According to him, the Appellant took the key and went at 01:30 AM. He states that he waited for 40-45 Minutes but since the Appellant did not return back, he went to his house and went to sleep. He states that next day morning at 7:30 AM, he received a phone call from the room of the Appellant; that he went to the house of the Appellant; that the mother and the sister of the Appellant were present in the house; that one hand bag and one trolley bag were there and he found that the clothes were there in the said bag; that one white colour T-shirt which was stained with mud was lying there. He states that the Appellant came with him after wearing the clothes and when PW-9 asked him for the key, the Appellant told h....
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....W-9 told him, that he could not disclose to anybody and disconnected the phone. PW-9 states that again on 07.01.2014 he called him on his Mobile and gave threats that he would kill his family members. Thereafter, PW-9 states that he did not receive call and he was threatened and since he knew that he is of quarrelsome nature and 2 to 3 crimes were registered against him hence, he did not disclose it to anybody. 96. PW-9 states that on 15.01.2014 he again called him but he did not receive his call. Thereafter, since PW-9's mother's health was not good he went to Nasik and after taking Rs. 2500/- from his brother-in-law he went to his native place. PW-9 states that on 11.02.2014 and 13.02.2014 he went to Nasik. He states that on 04.03.2014 he came to know that Police from crime branch called him and therefore, on 06.03.2014 he went to crime branch and gave his statement. In cross-examination PW-9 deposed that Police from crime branch office had called his wife and that Police met him for the first time and disclosed to him about the case on 04.03.2014. 97. PW-9 admitted in cross-examination that in his statement he had not stated that when he asked about the key to the ....
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....ested him. 101. It is also relevant to deal with the evidence of PW-3 Boga Rama More who was the Panch witness for the recovery of the Motorcycle, as also PW-36 Pravin Sarjerao Patil (API DCB CID) who also speaks of the recovery of the Motorcycle. PW-36 Pravin Sarjerao Patil who was API attached to the crime branch unit 7, states that he was present when the Accused was arrested on 02.03.2014 and he interrogated the Accused on 03.03.2014 till 6:30 PM. According to him, the Accused showed his willingness to make voluntary statement. PW-36 asked constable Shetty to bring Panch witnesses and recorded the statement under Exhibit 42. He states that thereafter, they went in the Police Vehicle along with Accused, Appellant, API Sawant, two constables and the Panch witnesses. The Accused asked the vehicle to be stopped at Karve Nagar at Kanjur Marg. On his instruction, the vehicle was stopped in front of one library the Accused by walk took them in front of Rose Beauty Parlour. In front of the Beauty Parlour one Motorcycle was parked bearing No. MH03-AY-0241. He recorded the engine No. and chassis No. When asked about the key, the Appellant told that his friend is having the key who is ....
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....make these threats admittedly belong to one Sagar Kakkar; and the claim of the Police that Sagar Kakkar is the Appellant's brother-in-law is not supported with any proof nor was any investigation done to relate the number to the Appellant; that the version of the prosecution as to how PW-9 joined the investigation is contradicted by the record inasmuch as while prosecution's case is that the Police met PW-9 for the first time on 06.03.2014, the real fact is that PW-9 is taken into custody by Police in January, 2014, as spoken by the PW-22; further that the newspaper reporting (Article 41 Exhibited by DW-2 Shiva Sukhranyam Davnath) of 04.03.2014 mentioned his name thereby indicating that the Police were aware of him atleast 2 days before they claim to have first spoken with him. 104. In view of all these, it was contended that PW-9's testimony regarding the extra judicial confession which is inherently a weak piece of evidence is completely unreliable particularly when prosecution's own witness speaks of his being taken into custody and, in any event, 2 days before the recording of the statement it being publicly announced that Nandkishore (PW-9) was already in co....
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.... 9 has not stated in his statement that thereafter he has not received phone calls from the Accused as he was frightened and having quarrelsome nature. He has not stated in his statement that he did not receive the phone call. He has not stated in his statement that he went to Nasik on 13/01/14.5. 106. Learned Counsel, further contended that the evidence of PW- 9 and PW-22 contradicted each other. While PW-9 states he did not tell PW-22 anything, PW-22 depose that PW-9 told him that he needed the Motorcycle since his friend's Motorcycle was parked on the highway; further PW-22 admitted to not disclosing to the Police this fact when they first inquired from him on 05.01.2014. 107. The learned Counsel for the Appellant further contended that the Motorcycle theory appears to have been introduced to create a role for PW-9 and it was unnatural for the Appellant to call PW-9 and take PW-22's Motorcycle for transferring petrol when PW-9 admitted that their house was 20 to 25 minutes away by walking from the spot and there was a petrol pump near the bridge 5 minutes away from his house. 108. We have carefully considered the efficacy of the extra judicial confession of PW-9....
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.... (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law. 110. Further, from DW-2 read with Article 41, it is clear there are reasonable grounds to believe that PW-9 was in interaction with Police in some capacity. In any event, discounting all that, from the cross-examination portion extracted above of PW-38 with so many omissions in the statement of PW-9, we do not feel it prudent to sustain the conviction based on the purported extra judicial confession given to PW-9. Moreover, there is no corroboration in material particulars and hence we are inclined to reject the extra judicial confession purportedly given to PW-9. 111. In the case of Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319, this Court held as under: 26.....
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....the face of the Accused was covered with black cloth that she gave the thumb impression as per the say of the Police; that many times Panchvati Police came there and used to drive them out. Most importantly, PW-24 stated that the Police came to her and told her to show the bag otherwise they would arrest her; that the Police told her to depose and that Police told her to identify the person shown on the screen of VC. 116. PW-4 Abdul Sattar Sayyed Ali Shaikh is a resident of Ghatkopar, Mumbai and he was the Panch witness for the recovery of the bag from the elderly lady. No effort was made to associate a local Panch witness and PW-4 was taken all the way from Mumbai. The learned Counsel for the Appellant argued that the prosecution case is that ACP Bhonsle came to know during the investigation that the Appellant was found in Kharve Nagar, Kanjur Marg West. So he along with Senior Police Inspector Patil and Officer Sawant reached Kharve Marg and arrested the Accused at 23.05 hours on 02.03.2014; that the Appellant in his disclosure statement Exh.44 stated that he gave a trolley bag to one poor lady in Nasik and that he would show the said 'lady'; however, PW-4 and PW-35 de....
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....rial details like the description of articles or the place where they were allegedly kept; that the theory that the Appellant retain the ID card of her college for over 2 months was unnatural since according to prosecution he went as far as Nasik to get rid of the trolley bag. According to the learned Counsel, PW-5 was an unreliable witness who had acted as a Panch witness before and knew PW-38. That none of the items were linked to the Appellant, argues learned Counsel. 120. We are not able to sustain the conviction based on this recovery for the same reason as we are not impressed by the mere purported recovery of the trolley bag from PW-24. The prosecution has not answered the infirmities pointed out by the learned Counsel for the Appellant. As to why the college identity card of the deceased EA would be preserved by the Accused and kept in custody of the sister nearly two months after the incident, is something we find very intriguing. 121. All these facts cumulatively constrain us to conclude that there are gaping holes in the prosecution story leading to the irresistible conclusion that there is something more than what meets the eye in this case. While the old adage, w....