[1] IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 283 OF 1999 APPEAL NO. 283 OF 1999 APPEAL NO. 283 OF 1999 Smt. Ushadevi Munna Upadhyay ] aged about 36 years,housewife] permanent resident of :- ] Room No.38, Adarsanagar No.1,] Maharashtra Housing Board, ] Appellant/ Linking Road, Jogeshwari (W) ] ori.accused ] No.1 versus 01. The Senior Inspector of ] Police, Malad Police Stn. ] Original Mumbai - 400 064 ] complainant 02. State of Maharashtra ] C/of The Public Prosecutor ] High Court, Mumbai. ] Respondent ----- Shri J.N. Shetty, Advocate for appellant. Smt. Usha Kejariwal, APP for Respondents. [2] W I T H I T H I T H CRIMINAL CRIMINAL CRIMINAL APPEAL NO.324 OF 1999 APPEAL NO.324 OF 1999 APPEAL NO.324 OF 1999 01. Laxman Indersingh Rawat ] R/o Dindayal Upadhayay Nagar, ] MIDC Road No.19, Andheri (W) ] Mumbai - 400 093. ] 02. Mahadeo @ Pinto Baburao Kamble] R/of Dindayal Upadhaya Nagar, ] MIDC Road No.19,Andheri (W) ] Mumbai - 400093 ] 03. Natvarlal Kanhyalal Jaiswal ] R/of Dindayal Upadhayay Nagar,] Near Rationing Shop, MIDC Rd. ] Appellants/ No.19, Andheri (East), ] orig.accused Mumbai - 400 093/ ] Nos.2,3, & 6. versus The State of Maharashtra ] (at the instance of Malad ] [3] Police Station in Cr.No. ] 421 of 1997). ] Shri M. J. Bhat, Advocate for appellant No. 1. Smt. Anjali Patil,Advocate for appellant Nos.2 & 3. Smt.Usha Kejariwal, APP for the Respondent-State. --------- Coram Coram Coram : N.V. DABHOLKAR & : N.V. DABHOLKAR & : N.V. DABHOLKAR & SMT.V.K. SMT.V.K. SMT.V.K. TAHILRAMANI, JJ. TAHILRAMANI, JJ. TAHILRAMANI, JJ. Reserved Reserved Reserved on : 10.02.2006 on : 10.02.2006 on : 10.02.2006 Pronounced Pronounced Pronounced on : 03.03.2006 on : 03.03.2006 on : 03.03.2006 JUDGMENT (Per: Dabholkar, J.) 1. Both these appeals by original accused persons challenge the judgment and order in Sessions Case No.1257 of 1997, dated 10.2.1999, delivered by Additional Sessions Judge, Greater Bombay. By the impugned judgment, all appellants are held guilty for offence punishable under Section 302 read with 34 of [4] Indian Penal Code, in connection with C.R. No.421 of 1997 of Malad Police Station. All of them are sentenced to life imprisonment (rigorous), fine of Rs.5000/- each, in default, further rigorous imprisonment for three months. They are given set off, to the extent of under-trial prison. 2. According to the prosecution story, the incident in question is said to have taken place on 20.8.1997 at about 23.40 hours, at a location in front of Sri Lanka Zopadpatti, Malad (West). The victim of the incident was one Rajivkumar Bhattacharya. The victim was brother-in-law of one Anupkumar Das. . As is evident from the charge, Anupkumar Das was the 5th accused in the case. However, he expired before framing charge and, therefore, charge is framed only against four accused i.e. appellants in the two appeals, but by reference to participation of said Anupkumar Das. . All five accused, including the deceased, are said to have conspired and committed murder of deceased Rajivkumar, in furtherance of common object of the conspiracy. In addition to charge under Section 302 [5] read with section 120-B of IPC, accused were also charged for offence punishable under Section 302 read with 34 IPC, in the alternative. . The deceased Anupkumar was in the employment of Air India, in its computer department and was also dealing in sale-purchase of immovable properties. Ranu, sister of victim, was serving with Damaniya shipping and deceased Anupkumar desired to marry her. It is said that Ranu was not willing to marry Anupkumar and hence, he indulged into pressure tactics, by managing to lodge some false complaints against Ranu and her brother, through his trusted friends (PW-8 Madhukar Shinde and PW-10 Sanjay Shelar), in the courts of Metropolitan Mangistrates. Raju Iyer was servant of said Anupkumar. Ultimately, intervention of PW-8 Shinde brought amicable settlement between Anupkumar and Ranu and the couple got married on 23.10.1996 on certain conditions, including that, Ranu would not cohabit with Anupkumar for initial period of six months, after the marriage. . On 25.12.1996, Anupkumar filed a report with D.N.Nagar Police Station against Ranu, that she had eloped with cash worth Rs.15,00,000/- and gold ornaments worth Rs. 5,00,000/=. A publication to that effect was [6] also placed in circulation through local English dailies. It is said that the deceased Rajivkumar remained faithful to Anupkumar in searching Ranu. It is said that, Anupkumar was nurturing doubts against Rajivkumar, under the belief that he had helped Ranu to elope and also reported against Rajivkumar to CBI, resulting into a raid. The alleged incident is said to be execution of plan of Anupkumar to eliminate victim Rajivkumar. . Services of contract killers were utilised through servant Raju Iyer. At the request of Raju Iyer, accused No.1 Ushadevi, a self proclaimed social worker, agreed to work out the plan for a consideration of Rs.2,00,000/= towards which, earnest of Rs.1,00,000/= was paid to her. It is the prosecution story that Raju Iyer and accused No.1 Ushadevi, took the victim Rajivkumar in Tata Siera, bearing registration No.MH-01/R-3166, to the location, near Sri Lanka Zopadpatti, where accused Nos.2 to 4 were waiting. They were given lift in the vehicle, whereafter accused Nos. 1 to 4 stabbed Rajivkumar with knives at about 23.40 hours on 28.8.1997. . It appears that the police machinery learnt [7] about the incident by an accident. PW-1 Amroj, who was on duty as driver of police jeep No.MH-01/M721 (Peter-1), attached to Malad Police Station, accompanied by gunman Chandrakant Tambe (PW-2), on the night of 20.8.1997, had been to the residence of PI Shri Patil, in order to reach Shri Patil home, and at the material time, while two were returning to Malad Police Station by link road, while near China link building, Malad (West) at about 23.05 hours, PW-1 Amroj saw three persons running and boarding a stationery rickshaw, near a scrap shop. They were followed by a woman, who also boarded the said rickshaw. Somehow, PW-1 Amroj suspected this situation. As there was a road divider, he took U turn and stopped his vehicle near the rickshaw. PW Nos.1 and 2 noticed that clothes worn by three boys and the woman, were stained with human blood. Upon enquiries, with some firmness in the voice, one of the three boys narrated that they had stabbed a person in the area nearby the bridge, at the instruction of the said woman. It is said that the said boy guided the two policemen to the location. Three boys, the woman, the rickshaw driver and PWs 1 and 2, proceeded to link road bridge, the location was pointed out by the boys. Tata Siera bearing registration No.MH-01/R-3166 was standing there. One person was seen lying behind the said [8] vehicle in injured condition. PW-1 enquired the victim, who disclosed his name as Rajiv Bhattacharya. The victim also pointed towards woman and three boys (accused Nos. 1 to 4), as his assailants. . PW-1 Amroj contacted wireless control room and sought assistance. Within short time, wireless mobile, Malad-I, arrived on the scene and injured was shifted to Bhagwati hospital, Borivali, in the said vehicle. PW-1 Amroj and PW-2 Chandrakant, returned to Malad Police Station with the rickshaw driver and the four passengers. As PW-1 Amroj learnt, by message of wireless that injured Rajivkumar succumbed to the injuries in the hospital, he rushed to Bhagwati hospital. PSI Wanjale (PW-23) recorded statement of Amroj at Bhagwati (Exh.11), which was treated as FIR. . It was PSI Wanjale, who, upon receipt of wireless message from PW-1, had proceeded to the spot, where he learnt that the injured was taken to Bhagwati Hospital and hence, he reached the said hospital. By that time, doctors had examined the injured and he was declared dead. While registering the complaint (Exh.11) of PW-1 Amroj, PSI Wanjale learnt name of the deceased to be Rajivkumar Bhattacharya. Shri Wanjale drew [9] inquest in presence of couple of panchas, including Mahesh (PW-19). While drawing inquest (Exh.40), several other articles found on the deceased, were seized. Thereafter, Wanjale proceeded to spot, along with PW-1 Amroj and learnt that API Farande (PW-24) had completed the proceedings of spot panchanama. . At the police station, all four accused were interrogated, blood stained clothes worn by accused were seized under panchanama (Exh.37) drawn in presence of Sangita (PW-18). During interrogation, accused No.1 Ushadevi disclosed that, an amount of Rs.1,00,000/= was kept concealed by her at home and showed willingness to point out the same. After recording memorandum to that effect (Exh.38), police, along with panchas, proceeded to the residence of accused No. 1, where she gave out cash of Rs.1,00,000/= from a steel cupboard. Those were ten bundles of 100 pieces of Rs.100/- denomination each. The cash was attached, by drawing a panchanama, by PSI Chandrakant Bangar (PW-25). . After being sent by the police, dead body was subjected to post mortem by Dr.Shivaji Kachare (PW-22), on 23.8.1997. In the post mortem notes (Exh.60) [10] prepared by him, Dr.Kachare opined that, the death was caused by shock due to haemorrhage due to stab injury. shock due to haemorrhage due to stab injury. shock due to haemorrhage due to stab injury. It was unfortunate that nobody claimed the dead body and, therefore, police constable Shri H.V.Rajam (PW-14) performed funeral of the same on 12.9.1997. . After completing investigation, including recording of statements of various witnesses, charge sheet was filed in the court of Additional Chief Metropolitan Magistrate, 24th Court, Borivali, by PI Shantaram Sagre (PW-27) on 15.11.1997. Apart from four convicted appellants, Anupkumar Das and Munna Chauthi Upadhyay, were also shown as co-accused persons in the charge-sheet. 3. The prosecution has in all examined 27 witnesses, and for the sake of convenient consideration, they can be referred to in groups as follows. . PW-1 Amroj D’Souza, the driver of the police jeep, is the main witness, who, by chance; apprehended all four accused, on suspicion. His evidence is important, because he claims that the accused had shown him the spot and the injured, and the injured having confirmed the four accused being the assailants. PW-2 [11] Chandrakant was gunman and accompanied with PW-1, when they were on the trip to reach PI Patil, home. PW-3 Chhotelal Verma is the rickshaw driver. The accused were in the process of boarding his rickshaw, when they were apprehended by PWs 1 and 2. Consequently, Chandrakant and Chhotelal provided evidence about the same part of the prosecution story, i.e. apprehension of accused, of their showing the victim and the place of occurrence and oral dying declaration by the victim. PW-4 Mahendrakumar and PW-5 Bhaskar are also police personnel. On the night in question, they were on duty with mobile police vehicle called, " Malad Mobile-I" and "Malad Mobile-II". These are the vehicles convulsed at the location, upon request by PW-1 for assistance through wireless channel. Malad Mobile-I was used for shifting the injured to Bhagwati hospital, Borivali. PW-5 Bhaskar later on, had shown the spot to officers Shri Wanjale and Farande. . PW-7 Ajay Dinkar David is the income-tax consultant of Anupkumar Das. Eventually, on 20.8.1997, he was in the company of said Anupkumar and at his request, and had a discussion with Anupkumar regarding CBI matter, which Anupkumar was facing. After initial discussion at hotel Regency at Andheri, when one more [12] friend of Anupkumar, namely, Mr. Oza, was in company, only two of them (PW-7 and Anupkumar) proceeded to hotel Wong. However, instead of directly proceeding to hotel, Anupkumar diverted to his residence at Mittal park. Anupkumar enquired about his servant Raju, with the watchman and learnt that Raju had still not returned. When the couple (Anupkumar and PW-7 Ajay David) turned back for going to hotel, servant Raju met them at a distance of about 100 yards, and Anupkumar sought confirmation from Raju that the job was completed (--------------------------------). Thereafter, Raju also accompanied them to hotel Wong, but occupied a seat in the dining hall, away from these two. At the insistence of Anupkumar, PW-7 halted at the residence of Anupkumar on that night, since it was about 2.30 or 3.00 a.m. by the time they left the hotel. PW-7 was shocked, when they were woken up in the morning at 7.30 a.m. by police, who informed Anupkumar about murder of Rajivkumar, and were making enquiries with Anupkumar. . PW-15 Rajeshkumar was the watchman at Mittal park on that night. He confirms return of Anupkumar along with servant Raju and one friend (PW-7) at about 3.00 a.m. on the night between 20th and 21st August, 1997. He also states that the victim Rajivkumar was [13] also staying with Anupkumar. . PW-18 Sangita Manjal is a panch witness. Her evidence is important, because it is the claim of the prosecution that cash of Rs.1,00,000/= was discovered at the instance of information given by accused No.1 and Sangita is witness to drawing of memorandum and panchanama of these events, which are at Exhibit 38. Panchanama (Exh.37), regarding seizure of blood stained clothes of four accused persons was also drawn in her presence. . There are two Medical Officers on record. PW-16 Shashikala Nadkarni was on duty at Bhagwati hospital, who had examined the victim and declared him dead. PW-22 Dr.Shivaji Kachare had carried out post mortem. The report is at Exhibit 60 and he has opined that the death was due to shock due to haemorrhage due to due to shock due to haemorrhage due to due to shock due to haemorrhage due to multiple multiple multiple stab injuries. stab injuries. stab injuries. . PW-19 Mahesh Desai is the panch witness, who attended the inquest on dead body (Exh.40). PW-20 Nadar Harijan, as a panch witness, has attended the proceedings of drawing of spot panchanama, which is at Exh. 41. Narendra Dhemre (PW-17), at the request of [14] Investigating Officer, has drawn sketch of the location, which is at Exhibit 34. The witness is head draftsman at the office of civil defence. . There is a team of seven witnesses, which gave the background history of Anupkumar Das (deceased accused), who had performed marriage with Ranu (sister of the victim Rajivkumar). PW-6 Mohammd Salim and PW-11 Vijaya Shah, are the persons with whom, the deceased was staying, as paying guest for some period. He was paying guest with PW-6 from November 1995 to June 1996, and Mohammad Salim has identified the victim on the basis of photograph shown to him, by PI Sakhare. According to deposition of Vijaya Shah, deceased was staying with her from 10.6.1997 till the date of elopement by his sister. (In all probability, it must be from June-1996 and not June-1997, because the sister is said to have eloped in December-1996 as per the deposition of PW-8 Madhukar and the incident in question has taken place on 20.8.1997). . According to deposition of PW-9 Amit Thorat, he had cordial relations with Anupkumar and had attended the wedding of Anupkumr with Ranu and had also assisted the police in search of Ranu, when she eloped. He had identified the victim, on the basis of photograph shown [15] to him by the police. According to him, Tata Siera was being used and driven by the victim and on one occasion, the victim had complained him that Anupkumar was treating him worst than a servant. PW-13 Rakeshkumar was colleague of the victim, while the victim was serving with A & M Communications Private Limited. The victim had maintained relations with PW-13, although the victim had left that company. The victim thereafter had represented to this witness that he had joined Motorola company and that he was also doing course of business management, by seeking admission to N.M.College. He had seen the victim using different cars, including Tata Siera. Having thick relations with Anupkumar, PW-10 Sanjay was knowing Ranu, as also the victim. PW-10 admits to have lodged a complaint in Girgaon court against Ranu, her brother and mother, in May 1996 which was disposed off by compromise in November, 1996. . PW-8 Madhukar is employed as Senior Manager (Security) with Air India and, therefore, he was knowing Anupkumar, who was also employee of Air India. According to Madhukar, Anupkumar was working as computer engineer. Anupkumar was suspended in July 1994, because there was a raid on him and he was taken in custody by department of revenue intelligence. Madhukar had played [16] a role of mediator in settling marriage of Anupkumar with Ranu. This was after Anupkumar informed him, of being in love with Ranu. According to Madhukar, Ranu’s mother and brother were not in favour of this relation, as was learnt by him, when himself and his wife met Ranu and conveyed her, wishes of Anupkumar. Madhukar also confirms that Anupkumar adopted pressure tactics, by filing false complaints in the court, through some one. Anupkumar had also managed removal of Ranu from company, by writing to the management. He had conveyed Ranu’s wishes to Anupkumar that she was unwilling to marry Anupkumar and she had requested him (Anupkumar) to refrain from harassing her and leave her alone. . Madhukar had arranged a meeting between Anupkumar and Ranu and in that meeting, some agreement was arrived at, Ranu had agreed to marry Anupkumar after payment by him of Rs.10,00,000/= and assurance that all prosecutions would be withdrawn and no more would be filed. It is said that as per this agreement, Ranu was not to resume cohabitation for six months from the date of solemnization of marriage and she would be paid another amount of Rs.5,00,000/= by way of compensation for the harassment, to which she was subjected. [17] According to Madhukar, Anupkumar and Ranu married on 23.10.1996. The agreement, although signed on 21.6.1996, Anupkumar had predated it as 2.6.1996. On 5.12.1996, there was a quarrel between the couple, and on 11.12.1996, Madhukar was required to accompany Anupkumar to D.N.Nagar Police Station, for lodging missing report about Ranu. After this, Madhukar showed inclination to detach his relations with Anupkumar and he was required to face prosecution, as also arrest on 5.6.1997, on the basis of complaint filed by Anupkumar. PW-12 Subhash Budhwal is the marriage registrar, before whom registration of marriage of Anupkumar and Ranu took place. . PW-18 Hemantkumar, a police constable of Malad Police Station, was required to perform cremation of dead body of Rajivkumar on 12.9.1997, as no one claimed dead body. PW-23 Ashok Wanjale, PSI, PW-24 Laxman Farande, API, PW-25 Chandrakant Bangar, PSI, PW-26 Madhukar Kurne, PI and PW-27 Shantaram Sagre, PI, are the officers then attached to Malad Police Station, who had participated in the investigation of the case at different stages. 4. Exhibits 46, 48, 50, 52, 54 and 57, are the [18] reports from the Chemical Analyzer, of the articles forwarded along with forwarding letters at Exhibits 45, 47, 49, 51, 53, 55 and 56. The purport of the reports can be described as follows. . The two knives, articles 3 and 4, are stained with human blood of group B. Articles 5,6,7 i.e. shirt, full pant and jangia of the victim are also stained with human blood of group B. Articles 9 and 10 i.e. Sari and blouse are clothes of accused No.1. Similarly, articles 11 and 12 are clothes of accused No. 2, article Nos.13, 14 and 15 that of accused No.3, and 16,17 and 18 that of accused No.4. Articles 9 and 10 of accused No.1, article 12 of accused No.2, articles 13 and 15 of accused No.3, and 16 and 18 of accused No. 4, are stained with human blood of group B i.e. the same blood group as that of the victim. Reports at Exhibits 48, 50, 52 and 54 demonstrate that accused Nos. 3, 1, 2 and 4 are individuals of blood group O, A, B and A respectively. Exhibit 57 is the report, regarding analysis of blood of the victim for the purpose of detection of alcohol and no ethyl alcohol is detected, nor any other poisons were traced in the blood. This report should confirm that the deceased was not drunk at the material time, nor any poison had entered his blood. [19] . Statement of PW 1 Amroj purportedly recorded by PSI Wanjale is treated as FIR (Exh.11). The defence has raised a controversy around this Exhibit 11 by contending that what message Amroj gave on wireless channel was the FIR and, thus, prosecution has suppressed the FIR from the Court. By referring to proforma FIR, which is also filed as part and parcel of Exhibit 11, further challenges are posed because of existence of name of Raju as wanted accused person in column no.8. Exhibit 34 is sketch of the location drawn by head draughtsman in civil defence i.e. PW 17 Narendra. Exhibit 37 is the panchanama regarding seizure of the clothes of accused persons at Malad Police Station. This was drawn between 03-00 to 03-20 hours of 21.8.1997. Under Exhibit 38 collectively is memorandum regarding statement of accused no.1 Ushabai and panchanama regarding discovery of cash Rs.1,00,000/- from her residence at her instance. These proceedings are recorded to have taken place between 03-10 to 03-35 hours and 04-10 to 04-30 hours. For proving both these documents, services of PW 18 Sangita are utilised. Exhibit 40 is inquest of the dead body drawn at Bhagwati Hospital, Boriwali between 01-30 hours to 02-30 hours. It was proved by panch Mahesh (PW 19). The clothes and [20] other belongings in the pockets of the victim appear to have been seized under this panchanama. This is probably least controverted document on record. Spot panchanama (Exh.41) is proved by panch Nadar. It was drawn between 01-15 to 02-30 hours of 21.8.1997. Post mortem notes prepared by Dr.Shivaji Kachare (PW 22) are at Exhibit 60. The post mortem was performed between 16-00 to 17-00 hours of 21.8.1997. . Other documents on record such as marriage certificate regarding registration of marriage of Anupkumar Das (deceased accused) with Ranu (sister of the victim) or the agreements of paying guest executed in favour of the hosts by the victim are not of much significance. Evidence of PW 6 Mohd.Siddiqui and PW 11 Vijaya Shaha would have been necessary had the identity of victim not been established by belongings on his person recovered at the hospital. 5. The defence of all the accused is of total denial. All of them claimed that police have picked them up from their respective residences in the early morning hours of 21.8.1997. They were detained at Malad Police Station, without assigning any reason for detention and when their relatives contacted the police [21] station, they were asked to contact on 23.8.1997 in the court. All of them claimed that, clothes allegedly seized from them, are not their clothes. In addition, accused No.1 denied recovery of cash of Rs.1,00,000/= at her instance and she categorically claimed that the amount does not belong to her. All accused thus, claimed that they are innocent and implicated in a false case. 6. By taking into consideration evidence of PWs. 1,2,3, as also PWs. 6,7,8, 9 and 11, who were the persons having acquaintance with the deceased Rajivkumar Bhattacharya, who confirmed identity of the deceased as such, so also the documents found on the person of the deceased, such as, credit cards of the bank, hotel and customer club identity card, the trial court held that the identity of the deceased as Rajivkumar Bhattacharaya stands established. It is evident from the inquest (Exh.40) that the driving licence, three credit cards of Standard Chartered bank and customer club card of hotel Oberoi, so also identity card with photograph, of N.M. Institute of Management Studies, of the year 1996, were recovered in the bag of the victim. Relying upon evidence of Medical Officer Shashikala (PW-16), inquest (Exh.40) and Dr. Shivaji Kachare (Exh.22), which [22] indicated that the deceased had suffered multiple stab injures,