1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 2108 OF 2009 IN CRIMINAL APPEAL NO. 203 OF 2009 MAHENDRA SHRIKISAN DABRIYA .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. H. E. Mooman for the applicant Ms. P. H. Kantharia, APP CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ. DATED: 18/7/2009 P.C. The applicant is original accused 2. He was tried along with two others by the Court of Sessions at Sewree, Mumbai in Sessions Case No. 656 of 2006 for offences punishable under Section 397, 302 r/w Section 34 and Section 201 read with Section 34 of the Indian Penal Code (“I.P.C.” for short). 2 2. Original accused 1 Raju is the brother of the applicant. By judgment and order dated 6/1/2009 learned Sessions Judge inter alia convicted the accused under Section 302 read with Section 34 of the I.P.C. and sentenced them to suffer R.I. for life. Being aggrieved by this judgment, the applicant has filed appeal which is admitted. This is applicant’s bail application. 3. According to the prosecution deceased Ravi was doing business of sales and purchase of old cars under the name and style of “Ravi Motors” situated at Flank Road, G.T.B. Nagar, Mumbai – 37. PW 24 Tarlochan Singh was working with deceased Ravi as Manager. PW 22 Manmohan Singh was working with him as office-boy. PW 15 Kannan Madhavan Devendra is the brother of deceased Ravi. 4. According to the prosecution on 22/4/06 deceased Ravi left at about 9-15 a.m. in his Tata Safari Car bearing No. MH-02-NA-2977 (“the said car” for short). Deceased Ravi did not return. PW 22 Manmohan Singh had gone to Tilak Nagar from under the bridge on 22/4/06, after working in his office till 2 a.m. He was standing near Kurla bridge. He saw the said car. He thought that the deceased might be in the said car. However, he saw accused 1 sitting in it. He 3 asked him where the deceased had gone and accused 1 told him that the deceased has sold the said car to him, taken Rs.3,90,000/- from him and had left in a rickshaw. Manmohan Singh asked him about the papers of the said car. He told him that he will take the papers later on after making payment of Rs. 10,000/-. Manmohan Singh then contacted PW 15 Kannan, brother of the deceased. Kannan came there. He asked accused 1 some questions. Accused 1 told him the same story. Kannan took the accused to the Tilak Nagar Police Station. At the Tilak Nagar Police Station accused 1 confessed that he had talked with the deceased on his mobile phone regarding purchase of the said car by him and he had asked the deceased to come with the said car. The deceased had accordingly visited the factory of the 1st accused. The deceased refused to deliver the said car to him as he did not pay the entire purchase price. Accused 1 further stated that at about 10 p.m. his younger brother i.e. the applicant came there. After hearing the dispute the applicant pressed the neck of the deceased from the back with the help of a towel. Accused 1 assaulted the deceased with iron rod on his head. The applicant inserted the towel in the mouth of the deceased so that nobody should hear the shouts. When both were convinced that Ravi had died they kept his body in white colour plastic bag and took it to the said car. The dead body of the deceased was taken to the creek and thrown in the creek from old bridge of Vasai between 1 a.m. to 1-30 a.m. 4 On the basis of this statement made by accused 1, PW 15 Kannan lodged a complaint and offence was registered against accused 1 and the applicant and one more accused under Section 302, 201 read with Section 34 of the Indian Penal Code. 5. According to the prosecution accused 1 showed the police the spot at the bridge from where the body of the deceased was thrown in the creek. However, the body could not be discovered. It is the case of the prosecution that on 26/4/2006 the applicant showed willingness to discover the mobile phone of the deceased. He led the police and the panchas to Vatsala Naik Road, Chembur, Mumbai. He took the police party to Everest Co-operative Housing Society. He pointed out to a gutter which was open. PW 10 Sachin Kamble, who was working as a sweeper went inside the gutter and took out the mobile phone. According to the prosecution the said mobile phone was identified by PW 15 Kannan as the mobile phone of the deceased. It was also identified by PW 24 Tarlochan Singh and PW 22 Manmohan Singh as the mobile phone of the deceased. 6. The prosecution examined as many as 31 witnesses. Learned Sessions Judge upon perusal of the said evidence came to a conclusion that the applicant 5 had committed murder of the deceased along with his brother Raju and one more accused and convicted them as aforesaid. 7. We have heard learned counsel, Mr. Mooman, who is appearing for the applicant. Mr. Mooman submitted that so far as the applicant is concerned there is absolutely no evidence on record which can establish his involvement in the murder of deceased Ravi. He submitted that PW 15 Kannan has no doubt named the applicant in the complaint but the complaint came to be lodged after accused 1 allegedly confessed to the crime in the police station. Therefore, unless there is cogent evidence on record to establish the guilt of the applicant he cannot be convicted of murder. Learned counsel submitted that the police took charge of the said car on 23/4/06. The said car remained with PW 15 Kannan till it was seized. Blood scraping was taken from the said car on 24/4/06. Since the said car remained with PW 15 till it was seized, the alleged finding of blood in the said car loses its significance. Learned counsel submitted that on 24/4/06 blood scraping is stated to have been sent to the Chemical Analyser but according to the prosecution it is on 30/4/06 that the chemical analyser came to the police station, went to the said car and took blood scraping. Learned counsel pointed out that on 25/4/06 bloodstained clothes of the deceased are said to have been taken charge of by the police. Learned 6 counsel pointed out that it is not clear as to from where those bloodstained clothes were recovered. There is nothing on record to establish that the room from which the clothes were seized belonged to the 1st accused and the 2nd accused was staying in the said room. Learned counsel pointed out that PW 7 Salim Shaikh is the panch to Exhibit 35 dated 26/4/06 under which the mobile phone was taken out from the gutter. He has stated that one sweeper searched for the said mobile phone and one mobile phone of Chocklati colour of Nokia make bearing model No. 32303 was found by him in the gutter. It was seized. He has stated that the applicant showed the gutter. In the cross-examination, however, this witness has stated that he was called by the police for panchnama of a mobile phone and he had taken that mobile phone in his hand. Learned counsel submitted that, therefore, this panchnama is in fact created at the police station. Learned counsel pointed out that PW 10 Sachin Kamble, the sweeper has turned hostile and, therefore, his evidence has no value. In fact the taking out of the mobile phone at the instance of the applicant is not proved at all. 8. Learned counsel pointed out that PW 22 Manmohan Singh stated in his evidence that on 23/4/06 he was called to the police station. He was shown a mobile phone in the police station, it was of coffee colour and he identified it as the mobile phone of deceased Ravi. He stated that the police prepared 7 panchnama Exhibit-57. Learned counsel submitted that, therefore, whereas it is the case of the PW 7 Salim Shaikh, the pancha that the mobile phone was recovered on 26/4/06, according to this witness i.e. PW 22 Manmohan Singh it is on 23/4/06 that he was shown a mobile phone at the police station. Therefore, whether the mobile phone was in fact recovered at the instance of the applicant is doubtful. Learned counsel submitted that apart from this, there is no evidence indicating involvement of the applicant. 9. Learned counsel pointed out that PW 22 Manmohan Singh stated that the deceased and accused 1 had come to their office. He had told Manmohan Singh that he had got money with him and asked Manmohan Singh to call deceased Ravi. Manmohan Singh stated that he had phoned the deceased and the deceased had told him that he was coming to the office. Accused 1 told Manmohan Singh that money was with the applicant who was standing outside the office. He stated that he would call his brother but his brother had left. Learned counsel submitted that, therefore, it is clear that the applicant was not at any time present when the negotiations about the purchase of the said car were going on. Nobody has stated so. Therefore, on the basis of alleged recovery of mobile phone at his instance which is also not proved beyond reasonable doubt, the applicant cannot be convicted. He submitted that, 8 therefore, this is a fit case where the applicant should be released on bail. 10. Ms. Kantharia, learned APP on the other hand has strenuously opposed the grant of bail. She submitted that the evidence on record clearly indicates that accused 1 wanted to purchase the said car. The said car was found in his possession. PW 22 Manmohan Singh has stated that he was told by the 1st accused that his brother had come with the money and was standing outside. Though the applicant had left the office this fact indicates that the applicant was also involved in the deal of purchase of the said car. Ms. Kantharia submitted that recovery of mobile phone of the deceased at the instance of the applicant is significant. The mobile phone is identified by PW 15, Kannan, PW 24 Tarlochan Singh and PW 22 Manmohan Singh as that of the deceased. Minor discrepancies do not disprove the discovery. Ms. Kantharia submitted that the body of the deceased could not be traced, therefore, the murder is not committed by only one person. Unless there is participation of more than one person such an offence is not possible. Ms. Kantharia submitted that the circumstances unerringly point to the guilt of the applicant and hence the application be rejected. 11. Exh.-35 is a memorandum of statement dated 26/4/06. It records 9 statement made by the applicant that he will take out mobile phone of the deceased which he had thrown in the gutter at Ashoknagar Chembur. Exh.-36 is the panchnama of the same date. It states that the applicant led the police, the panchas and sweepers to Ashoknagar Co-operative Housing Society. The car was stopped there. The applicant led the police party, the panchas and the sweepers to Everest Co-operative Housing Society and showed them a closed gutter and told them that the mobile phone was thrown by him in that gutter. The sweepers then took out the mobile phone. The mobile phone is described as; NOKIA NOKIA CORPORATION CE 168 TYPH - RM51 Model - 3230 FCC10 - QT KRM – 51 1C 66 IAD RM51 MADE BY NOKIA 355694 / 00 / 88411714 CODE – 0527556 0013702C000F 12.PW 7 Salim Shaikh is a pancha to Exh.-36. He has deposed about the 10 discovery of the mobile phone at the instance of the applicant. He has stated that the sweeper took out one choklati colour mobile phone of Nokia make bearing model No. 3320. Salim Shaikh has stated that the applicant stated that he would show the place where he had thrown the battery and the sim card. He showed the place but the battery and the sim card was not found. He identified his signature on Exh.-36. He also identified mobile Art. 1 when it was shown to him. 13.It is pertinent to note that Salim Shaikh has stated that on 24/4/06, he was called to the police station. The police showed him a mobile phone. It was not marked by the police and it was of black colour. Thus Salim Shaikh was not shown Art. 1 on 24/4/06 as is sought to be suggested. This will be more clear a little later. 14.PW 10 Sachin is the sweeper who took out the mobile phone from the gutter. He has turned hostile. But the prosecution can always rely on that part of the evidence which supports it. He has admitted that he took out a mobile phone from a gutter. When Art. 1 was shown to him he identified it as the same mobile phone of Nokia company which he had taken out of the gutter. Therefore, on 26/4/06 mobile phone of Nokia company Art. 1 11 was taken out from the gutter. 15.PW 15 Kannan, brother of the deceased has stated in this evidence that the deceased was using mobile phone of Nokia company and it was of coffee colour. He has stated that on 27/4/06 he was called to the police station. One Nokia mobile phone was shown to him. He identified it as the mobile phone of his brother. When mobile phone Art. 1 was shown to him, he identified it as the same mobile phone. 16.It is now necessary to go to Panchnama Exh.-57. It is dated 24/4/06. Under this panchnama two mobile phones were taken charge of from accused 1. One mobile phone is described in the panchnama as of Reliance Company and the other mobile phone is described as of Samsung Company. PW 22 Manmohan Singh is a pancha to this panchnama. He has stated in his evidence that he was called to the police station on 24/4/06 and he was shown a mobile phone of coffee colour. He has further stated that the deceased had a mobile phone of coffee colour. Mr. Mooman, learned counsel for the applicant contended that, if PW 22 Manmohan Singh visited the police station on 24/4/06 and he was shown the deceased’s mobile phone then the discovery allegedly 12 effected on 26/4/06 is a false discovery. 17.It is not possible for us to accept this submission. Prima facie, we find it difficult to conclude that on 24/4/06 Manmohan Singh was shown mobile phone Art. 1. Manmohan Singh has not clearly stated that mobile phone which was shown to him on 24/4/06 was of the deceased. On 24/4/06 panchnama Exh. 53 was made in which two other mobile phones were recovered. Obviously Manmohan Singh being a panch to it he is speaking about mobile phone seized under that panchnama. It appears to us that he has committed a mistake while describing the colour. From this evidence it is not possible for us to hold that Nokia mobile phone was not recovered on 26/4/06 and that Exh.-36 is a fabricated document. 18.PW 24 Tarlochan Singh,Manager of the deceased has also stated that Mobile Phone 3230 of the deceased was shown to him. He has stated that it was of coffee colour and it was in a dirty pouch. Therefore, Nokia phone Art. 1 cannot be confused with mobile phones of Reliance and Samsung companies. In our prima facie opinion, the prosecution has proved the discovery of the Nokia mobile phone at the instance of the applicant. This is a clinching circumstance. 13 19.The applicant is the brother of accused 1 who it prima facie appears has masterminded this heinous crime. The body of the deceased is not recovered. Such crime cannot be committed by one person. From the evidence of PW 22 Manmohan Singh it appears that the appellant had gone with money to the deceased along with accused 1. Prima facie he appears to be concerned with the deal regarding purchase of the said car. The other alleged discrepancies pointed out by Mr. Mooman do not persuade us to hold that the prosecution has failed to establish its case qua the applicant. 20.In our prima facie opinion the applicant’s involvement in the crime is established. 21.Hence bail application is rejected. (Smt. Ranjana Desai, J.) (R. G. Ketkar, J.)