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 Maharashtra .. Respondent Ms. Rohini Salin, Amicus curiae Convicts/Appellants present in person Shri Mundargi, Special Prosecutor with Ms. U. K. Kejriwal and Ms. S.D. Shinde APPs. For the State Mr. S.V. Marwadi for the Applicant in Application No.1 of 2008 CORAM: J. N. Patel & Mrs. Mridula Bhatkar, JJ. DATE: 30th September, 2009 P. C . (Mrs. Mridula Bhatkar, J.) 1. Accused no.1 Deepti Anil Devasthali (daughter of Accused no.2) and Accused no.2 Leena Anil Devasthali are convicted by the learned Ad Hoc Sessions Judge,Pune by judgment and order dated 27th December, 2007 for committing the offence of abduction and murder of one Dr.Deepak Mahajan alongwith other offences. They are sentenced to death for the offences of abduction for ransom and murder. Hence this appeal against the conviction filed 2 by both the Accused and the reference for confirmation. 2. As per the case of the prosecution Accused no.1 Deepti and Accused no.2 Leena who are related as daughter and mother conspired to abduct Dr. Deepak Mahajan in order to demand ransom and commit his murder. Both the ladies started a detective agency by name Blue Bird Detective Agency having its office at Shaniwar Peth, Near Omkareshwar Temple, Pune. On 11/6/2006 they gave an advertisement in newspaper Sakal that they wanted to employ young, healthy and clever men to work in their detective agency. In response to their advertisement, PW­3 Pravin Dnyaneshwar Kamble, PW­2­ Ashok Jagannath Magar, PW­1 Ketan Pramod Kale and Court witness(CW­1) Rahul Abhimanyu Bhosale amongst others have applied and were interviewed by Accused no.1 and Accused no. 2. Accused no.1 and Accused no.2 did not disclose their identity and real names but they represented to be one Joshi Madam and Miss Pradnya Kale. In furtherance of the conspiracy out of these four persons PW­2 Ashok Jagannath Magar had accompanied Accused no. 1 Deepti to Yashwantrao Chavan Memorial Hospital (in short Y.C.M.Hospital) and introduced himself as Yogendra Shirke to Dr. 3 Deepak Mahajan. While visiting Y.C.M.Hospital Accused no.1 had changed her appearance with Wig, dentures, and spectacles, looking like a character in one Hindi Serial which was aired on the television earlier by name Jassi Jaisi Koi Nahi. 3. In the year 2006 Dr. Deepak Mahajan was working as the Head of Orthopedic Department in Y.C.M.Hospital at Pimpri, Pune. On 29/6/2006, Accused No.1 wearing wig, spectacles and dentures had visited YCM Hospital and handed over one envelope to his colleague Dr. Ajay Bajirao Sonawane with message that the said envelope was to be given to Dr. Deepak Mahajan. It was containing a letter from Omkar Charitable Trust requesting Dr. Deepak Mahajan to accept a post of Honorary Surgeon in the hospital proposed to be run by the said Trust on honorarium of Rs. 15,000/­ per month. On 30.6.2006 Dr.Deepak Mahajan was contacted in Y.C.M.hospital by Accused No.1 and PW­2 Ashok Jagannath Magar and who introduced himself as Yogesh Shirke, the signatory of the said letter and they both again handed over copy of a similar letter to Dr.Mahajan. Dr.Mahajan sought time to think over the offer. 4 4. PW­1 Ketan Pramod Kale and CW­1 Rahul Abhimanyu Bhosale were employed in the Blue Bird Detective Agency by the Accused. They were told that they have to abduct one doctor who was involved in kidney scandal and he was to be interviewed by the Head of their detective agency. On 1/7/2006 the Accused alongwith PW­1 Ketan Kale and C.W­1 Rahul Bhosale searched for a lodging house and booked room no.7 in one lodge named Shantanu Lodge on 2/7/2006. On the previous day i.e. on 1/7/2006 the Accused with the help of P.W.1 Ketan Kale and C.W­1 Rahul Bhosale performed rehearsal of overpowering the doctor as soon as he would enter the room. Accused no.1 told P.W.1 Ketan Kale and CW­1 Rahul Bhosale how to hold the mouth and legs of Dr.Deepak Mahajan after the signal was received by them. It is the prosecution s case that the Accused in the course of their ’ preparation had purchased drug by name Thisol Sodium/ Pentathol/Thipentone from the chemists by name Darpan and Tashiba Medical & General Stores, Nasik. This drug is used to give anesthesia and also to put the animals to sleep in Veterinary hospitals. 5 5. On 2/7/2009 the Accused persons contacted Dr.Deepak Mahajan and invited him for lunch at Durvankur Hotel, at Pune. However,the doctor did not accept the invitation for lunch but agreed to have meeting at around 4 O clock. Dr.Mahajan had ’ discussion with his wife Dr. Smita Mahajan about this offer from Omkar Charitable Trust and his meeting with the Trust people. Dr. Deepak Mahajan left home around 3.45 p.m. on an Activa scooter and went to Shantanu Lodge. At that time Accused no.1 Deepti who had changed her identity like Jassi, received him at Shantanu Lodge and brought him to room no.7 where CW­1 Rahul Bhosale and PW­1 Ketan Kale shut his mouth and held him as per their plan. Accused no.1 Deepti injected drug Thiosol Sodium in the wrist of Dr.Mahajan due to which Dr. Deepak Mahajan became unconscious within a minute in the said room. Accused no.1 with the help of PW­1 Ketan Kale and CW1­Rahul Bhosale lifted him and put him in her Matiz Car with changed registration number, which she had parked at the gate of the Shantanu Lodge. Dr.Mahajan was kept in sitting position on the back side seat between Ketan Kale and Rahul Bhosale and Accused no.1 drove her Car towards Karve road, where Accused No.2 was waiting for them. Ketan Kale and Rahul Bhosale were asked to 6 get down from the vehicle and both the Accused along with Dr. Deepak Mahajan drove away. 6. Dr. Smita Mahajan, wife of Deepak Mahajan was worried as her husband was not responding on his phone and some other person spoke to her and threatened in muffled voice that doctor was abducted by them and told her to follow their orders, if she wanted him alive. Dr. Smita Mahajan thereafter contacted Dr. Parag Mahajan, the brother of Dr. Deepak Mahajan and Dr. Deepak s’ brother in law Mr. Phansalkar who also tried to contact Dr. Deepak Mahajan on his cell. However, they could not. When Dr.Smita Mahajan again contacted the cell phone of Dr. Deepak Mahajan the person on the other end told that they had abducted Dr .Deepak Mahajan and want a sum of Rs.25 Lacs . Dr.Smita Mahajan thereafter rushed to Prabhat Road police chowky under Deccan Gymkhana Police station and lodged complaint about missing and abduction of her husband and demand of ransom. P.S.I. Mr .Yadav registered the offence at C.R.No. 386/06 under sections 366,384 of the Indian Penal Code and forwarded it to Deccan Gymkhana police station for further investigation. Police Inspector Shri.V.R.Patil took 7 charge of the investigation and police officer Mr. Agashe from Anti Extortion Cell also tried to find out the details of the phone number 9960224773 which was written on the backside of the letter of Omkar Charitable Trust. On that basis Mr.Agashe could trace P.W.3 Pravin Kamble who had come for the interview in Blue Bird Detective Agency. On the same night police could trace Shantanu Lodge and found that Dr. Deepak Mahajan had visited Shantanu lodge on that day. On 7.7.2006 with the help of PW­3 Pravin Kamble and other clues they laid a trap in front of the office of Blue Bird Detective Agency. On the very day, Accused no.1 and 2 visited their office of Blue Bird agency and they came to be arrested by the police in the morning. Immediately thereafter on the basis of disclosure by Accused no.2 parts of the body of Deepak Mahajan except the head and hands were recovered by the police under panchanama from different spots at Katraj Ghat and some parts of the body were found in two plastic bags at Bhosari. The Police in the presence of Panchas prepared an Inquest and Recovery Panchanamas. The parts of Human Body were sent for autopsy to Sasoon Hospital Pune. Thereafter the offence under section 302 of the Indian Penal Code was registered against 8 Accused no.1 and 2 alongwith offences under Section 366 and 384 of the Indian Penal Code and they were arrested for an offence of murder of Dr.Deepak Mahajan. The police during the course of investigation recovered articles from the room at Uttamnagar under panchanama and also searched the residence of the Accused persons in Shrikrishna Watika, at Dahisar. The police were able to locate Chemist Darpan and Tashiba at Nashik from where the drug sodium thiosol was purchased by the Accused. In the course of investigation, police recorded statements of witnesses and recovered property and Activa Scooter. Matiz Car was recovered in the month of September, 2006 i.e. two months after the date of the incident. The police filed chargesheet against Accused No.1 and Accused No.2. After committal of the case learned Ad Hoc Additional Sessions Judge, Pune framed charges and tried the Accused. The Accused persons did not engage advocate of their choice. So the learned trial Judge offered and made them aware of the facility of the legal aid service. However,both the ladies refused to avail of legal aid facility. Accordingly the learned trial Judge has maintained the record and finally went on with the trial and examined 46 witnesses. The Accused had cross examined first 12 to 13 witnesses 9 and thereafter they declined to cross examine other witnesses. The learned Trial Judge sentenced both the Accused to death on count of abduction for ransom and murder. The trial court also awarded different punishments for the charges, they were found guilty. 7. When the Criminal appeal filed by the Accused was heard by this Court, the Division Bench found certain lapses in the trial viz. some important witnesses were not cross examined. One Rahul Bhosale deserved to be examined. Therefore, it held that Accused should have been given proper opportunity to defend themselves. The Division Bench remanded the case for recording of evidence and cross examination of material witnesses under section 367 of the Criminal Procedure Code. 8. The learned Sessions Judge, thereafter recalled PW­1, PW­4, PW­6, PW­8, PW­30, PW­32, PW­33, PW­40, PW­43, PW­5 and PW­46 and examined Rahul Bhosale as Court Witness No.1. Both the Accused, in the second round of the trial, engaged their respective Advocates. Cross examination of the witnesses recalled was taken extensively. Both, the prosecution and the Accused, were given 10 opportunity to cross examine the Court Witness (CW­1) Rahul Bhosale. After recording of evidence and further statement of the Accused under Section 313, the matter was sent to the High Court. The appeal and the reference thereafter came to be assigned for hearing before our Bench by Hon ble the Chief Justice. ’ 9. When we took up the appeal and the submission for confirmation of capital punishment it come to our notice that both the Accused have discharged their previous Counsel and while answering question No. 85 of their further statement recorded under Section 313 of the Criminal Procedure Code, they had stated that they wanted to give evidence on oath. However, they did not press for the same before us but insisted that they wanted to argue in person. However, this being an appeal against capital sentence and a confirmation matter, it was our duty to take care that the Accused should be adequately defended through counsel. So, Ms. Rohini Salian was appointed as amicus curiae to defend them. The Accused, though did not make any grievance about appointment of the amicus curiae, insisted that they be also given opportunity to argue their case in person as it is a matter of their 11 life and death, which was allowed. 10. The Sessions Judge did endeavor to give legal aid to appoint Advocate from the Panel of the legal aid which is brought on record by examining PW­38­Sanjay Kadu. However, the Accused did not want him to represent them in the Court but wanted only his legal advice. The lawyer (PW­38) has stated on oath that he was not in position to give correct legal advice without going through the Court papers and cooperation from the Accused and therefore, some important witnesses were not cross examined in the first round of the Trial and the Accused were not properly defended in the beginning. 11. Evidence tendered by the Prosecution is of a very peculiar nature. The facts and circumstances brought on record of this case reflect on the manner in which investigation was carried out leaving a number of loose ends between the commission of offence and the Accused. In the present case the crime is committed not in a usual/conventional manner, but the crime has been committed by exploring novel and different 12 methods. Peculiar situations have come on record sufficient to mislead everybody. 12. In the present case, the main attack of defence was on the dishonest, shoddy and incomplete investigation by the Police. The defence has highlighted some points to which the prosecution could not give any answer. The lacunae reflecting the quality of the investigation and how far they are fatal to the prosecution is to be examined. 13. Accused Nos. 1 and 2 have been charged for the offence of conspiracy under Section 120­B of the IPC in committing offence viz. of cheating by impersonation under Section, 419 of the IPC, forgery under Sections 564, 468 of the IPC and 471 of the IPC, for causing hurt with intent to commit offence under Section 328 of the IPC, wrongful confinement under Section 342 of the IPC, for extortion and murder under Sections 387, 302 of the IPC and under section 201 of the IPC for causing disappearance of evidence or giving false information to screen offender. Abduction under Section 346­A of the IPC. Causing hurt under Section 328 of the IPC and 13 of murder under section 302 of the IPC are major offences and the evidence is much interlinked with these charges. Sr. No. Points for determination Findings (1) Does the prosecution prove that the Accused No.1 and 2 have conspired to abduct Dr. Deepak Mahajan and have abducted in order that he may be murdered or may so disposed of as to be put in danger of being murdered under Section 364­A read with Section 120 (b) of the Indian penal Code. Yes Does the prosecution prove that the Accused No.1 and 2 have committed offence of extortion under Section 387­A read with Section 120 (b) of the Indian penal Code. Yes (2) Does the prosecution prove that the Accused have conspired and have committed an offence of cheating by personation, punishable under Section 419 read with Section 120 (b) of the Indian penal Code. Yes (3) Does the prosecution prove that the Accused have conspired and have committed forgery for the purpose of cheating and thereby have committed an offence punishable under Section 465/468 read with Section 120 (b) of the Indian penal Code. Yes 14 (4) Does the prosecution prove that the Accused Nos. 1 and 2 have committed an offence of causing hurt with intent to commit an offence punishable under Section 328 read with Section 120 (b) of the Indian penal Code. Yes (5) Does the prosecution prove that the Accused Nos. 1 and 2 have conspired and have committed an offence of confining wrongfully Dr. Deepak Mahajan which is punishable under Section 342 read with Section 120 (b) of the Indian penal Code. Yes (6) Does the prosecution prove that the Accused Nos. 1 and 2 have committed an offence of extortion by putting Dr. Smita Mahajan under the fear of death of Dr. Deepak Mahajan and thereby committed an offence punishable under Section 387 read with Section 120 (b) of the Indian penal Code. Yes (7) Does the prosecution prove that the Accused Nos. 1 and 2 have committed an offence of causing disappearance of evidence to screen the offender, punishable under Section 201 read with Section 120 (b) of the Indian penal Code. No (8) Does the prosecution prove that Dr. Deepak Mahajan was murdered for ransom by accused person? No (9) Does the prosecution prove that the Accused have committed offence of murder punishable under Section 302 read with Section 120 (b) of the Indian penal Code. No 15 14. On 2nd July, 2006, after 4.00 p.m. Dr. Deepak Mahajan after he left home to attend the meeting with Trustees of Omkar Charitable Trust, his wife Dr. Smita Mahajan learnt that he has been actually abducted and his abductors were demanding ransom of Rs. 25/­ lacs. Dr. Smita Mahajan PW­11 gave a first information in respect of Dr. Deepak Mahajan on 2nd July, 2006 at about 21.15 hours (FIR Exh. 58). She was aware that Dr. Mahajan had received an offer from one Omkar Charitable Trust to work as Honourary Orthopedic Surgeon in Sanjivani Hospital run by the said trust. She has stated that in that context the Doctor had left his house at about 4 p.m. to meet the person concerned i.e. trustees of Omkar Charitable Trust. She also gave details that those persons had invited the Doctor for lunch at Hotel Durvankur. However, the Doctor opted to meet them after having his lunch at home. PW­39 Atmacharan Balasaheb Shinde who was attached to Vishram Baug Police Station has stated that he received information on 3.7.2006 about registration of offence under Sections 366 and 364 of the Indian Penal Code at Deccan Police Station of kidnapping Dr. Deepak Mahajan and as per the directions he conducted a surprise check of the lodges situated 16 near Hotel Durvankur. Photographs of Dr. Deepak Mahajan were supplied to them. On the night intervening 2nd and 3rd July, they took search of Shantanu Lodge and on seeing the photograph of Dr. Deepak Mahajan, Shri Vikas Harischandra Garad (PW­4)­ Manager of Shantanu Lodge had identified the said photgraphs and informed that in between 4 to 4.30 p.m. on the previous day, Dr. Deepak Mahajan had been to their Lodge to meet Veena Ranade who had booked room no.7. PW­4 Vikas Harischandra Garad has confirmed the visit of PW­39­Atmacharan Shinde at night at about 1 a.m. and also he supplied him the said information. PW­4 Vikas Garad is an important independent witness on the point of visit of Dr. Deepak Majan to Shantanu Lodge to meet Ms Veena Ranade. He also mentioned that Dr. Deepak Mahajan came on Activa Scooter of Silver colour and he saw him parking the scooter. He has seen Mrs. Ranade waiting near the main gate of Shantanu Lodge and then she received Dr. Mahajan and took him to Room No.7. He had deposed that one lady who has introduced herself as Pathak Bai came to the Lodge on 1.7.2006 and she enquired about availability of a room and she informed that Mr. & Mrs. Ranade from Mumbai wants the 17 room and she booked Room No.7. PW­4 handed over his visiting card (Exh.34) of Shantanu Lodge, which was subsequently recovered from the Accused. PW­4 Vikas Garad identified Accused No.1 as Mrs. Veena Ranade and has identified Accused No.2 as Pathak Bai. He has also given details about the clothes of Dr. Mahajan. He has described that Ms. Ranade and one person of the age group of 30 years had come and he had an opportunity to see that person and Mrs. Veena Ranade. In the cross examination of Vikas Garad, the photograph on the application form i.e. Exh.23 was shown to him and he has identified the photograph of Ketan Kale as the person who had visited on that day as Mr. Ranade, so also he has identified him as the person who used the telephone of Shantanu Lodge and talked with the person on the other end of the telephone and called him at Hotel Durvankur. Thus, the visit of Dr. Deepak Mahajan to Shantanu Lodge is established by the prosecution through the evidence of Dr. Smita Mahajan, Manager of Shantanu Lodge Shri Vikas Garad and PSI Atmacharan Shinde. 15. The Learned Amicus curaie has challenged the 18 identification by Vikas Garad of Accused No.1 as Veena Ranade as according to Vikas Garad Mrs. Veena Ranade was having Sadhana Cut, protruded dentures and round spectacles and Vikas Garad at any time had no opportunity to see Accused No.1 in her normal look. 16. PW­11­ Dr. Smita Mahajan, in support of her evidence about the offer which the Doctor had received from Omkar Charitable Trust, has produced the letter Exh.28. PW­17­Dr. Ashutosh Vitthalrao Dabare, and PW­29­ Dr. Ajay Bajirao Sonawane, the colleagues of deceased Dr. Deepak Mahajan in YCM Hospital, Pimpri, were examined on the point of offer given to deceased Dr. Deepak Mahajan by Omkar Charitable Trust and handing over of letter of Omkar Charitable Trust. PW­17 Dr. Ashutosh Dabare and PW­29 Dr. Ajay Bajirao Sonawane corroborate that people from Omkar Charitable Trust had contacted Dr. Depeak Mahajan in the month of June, 2006 and both of them have stated that one lady looking like Jassi had visited Dr. Deepak Mahajan in YCM Hospital. PW­29 Ajay Sonawane has referred that said lady had handed over one letter to Dr. Deepak Mahajan. Dr. Ashutosh 19 Dabare mentioned that on 30.6.2006 one lady looking like Jassi had come alongwith one male person and they had meeting with Dr. Mahajan. 17. PW­11 Dr. Smita has further deposed when she tried to contact her husband Dr. Deepak Mahajan from her mobile No. 9822018863 on his mobile No. 9422511574 he did not reply for a longtime and after some time some person replied and disclosed that they had abducted Dr. Deepak Mahajan and there was threat that if she wanted Dr. Deepak Mahajan alive, then she should act as per their directions. After this call she contacted her relative and, alongwith her relative went to Prabhat Road Police Chowky and lodged the complaint about missing of her husband. Thereafter again, when Dr. Smita Mahajan and Dr. Parag Mahajan­ brother of the Dr. Deepak Mahajan, contacted on the Cell of Dr. Deepak Mahajan, the threats were repeated. All these facts are incorporated in the FIR which is marked as Exhibit­58. Accordingly the offence of abduction under Section 366 read with Section 34 of the Indian Penal Code was registered. Dr. Smita Mahajan has deposed that during the night when she was at the Police station, 20 she received phone calls demanding Rs.25 lakhs ransom. 18. PW­43, Uttam Yadav who was attached to Prabhat Road Police Chowki has corroborated the evidence of Dr. smita Mahajan and has stated in his evidence that the complainant (Dr. Smita Mahajan) has lodged the complaint of kidnapping of Dr. Mahajan in the late evening of 2.7.2006. He corroborates that the complainant had called on the Cell No. from Police Station and he could hear threats as the phone was kept on loud speaker. Thus the prosecution has established the fact of abduction of Dr. Deepak Mahajan under the pretext of giving him Honourary Post of Orthopedic Surgeon in the Hospital run by them, by the persons who were related to Omkar Charitable Trust. It was also established that the Dr. Depeak Mahajan had visited Shantanu Lodge around 4 to 4.30 on Activa Scooter and the couple who introduced themselves as Ms. Veena Ranade and Mr. Ranade had received the Doctor and took him to room No. 7 of the Lodge. All these facts are established by the prosecution. Nothing was brought in the cross examination of PW­11 Dr. Smita Mahajan and also PW­4 Mr. Vikas Garad to show that their evidence on this 21 aspect cannot be accepted. 19. As per the evidence of Dr. Smita Mahjan and PW­43 Atmacharan Shinde, the complainant Dr. Smita contacted on the Cell No. 9422511574 of Dr. Deepak Mahajan on