IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL APPEAL NO. 7 OF 2002. WITH CRIMINAL REVISION APPLICATION NO. 6 OF 2003. CRIMINAL APPEAL NO. 7 OF 2002. State. ... Appellant. Versus 1. Sanjay Thakran, r/o 4-4, Vibhavnagar, Agra, Uttar Pradesh. 2. Mrs. Anjani Thakran, r/o 4-4, Vibhavnagar, Agra, Uttar Pradesh. ... Respondents. Mr. Sirish Gupte, Senior Counsel as Special Public Prosecutor with Ms. Winnie Coutinho, Additional Public Prosecutor, Mrs. Rabinder Sabarwal, Mr. Subodh Desai, Mr. John Fernandes and Mr. Amol Patankar, Advocates for the Appellant/State. Mr. S.D. Lotlikar, Senior Advocate with Mr. A.D. Bhobe, Advocate for the Respondent No. 1. Mr. Satish Manshinde with Mr. Gopal Kanekar, Advocates for the Respondent No. 2. CRIMINAL REVISION APPLICATION NO. 6 OF 2003. Shri Subhashchandra Nanda, residing at A-1/22, Sector 8 Deepali Rohini, New Delhi. Versus 1. Sanjay Thakran, r/at Plot No. 2, Ganeshpuri, Housing Board Colony, Mapusa. 2. Mrs. Anjani Thakran, r/at Plot No. 2, Ganeshpuri, Housing - 1A - Board Colony, Mapusa. 3. State of Goa. ... Respondents. Mr. Subodh Dessai and Mr. John Fernandes, Advocates for the Applicant. Mr. S.D. Lotlikar, Senior Advocate with Mr. A.D. Bhobe, Advocate for the Respondent No. 1. Mr. Satish Manshinde with Mr. Gopal Kanekar, Advocates for the Respondent No. 2. Ms. Winnie Coutinho, Additional Government Advocate for the Respondent No. 3/State. Coram : R.J. KOCHAR AND P.V. HARDAS, JJ. Date : 30th September 2003. J U D G M E N T (PER HARDAS, J.) The dead body of Priya alias Kavita Nanda was discovered on the Vagator Beach, on 28th February 1999. The dead body of her husband Vikas Nanda was discovered on the Benaulim Beach, also on 28th February 1999. The two places where the dead bodies were discovered are at a distance of nearly 50 to 60 kilometres from each other. Priya and Vikas Nanda were married on 22nd January 1999. After their marriage, they proceeded to Vaishno Devi to seek the blessings of the Goddess. From - 2 - Vaishno Devi, after staying at Delhi for some days, the newly married couple proceeded to Mumbai. After staying in Mumbai for two days destiny brought them inexorably to Goa. The hand of fate brought them to Goa but it was the hand of man which snuffed their lives at Goa after a few days. The State, being aggrieved by the Judgment of the IInd Additional Sessions Judge, Panaji, dated 9th January 2002, in Sessions Case No. 24 of 2000, acquitting the respondents/accused for the murder of Vikas and Priya, has filed the present appeal. 2. The facts as are necessary for the decision of this appeal are set out hereunder:- On 28th February 1999, P.W.38 P.S.I. Sandesh Chodankar, who was attached to the Anjuna Police Station, received information from the Anjuna Police Station that P.W.2 Charles Mills had filed a report at Exhibit 15 that a dead body of an ‘unknown female’ was found at the Vagator Beach. On the basis of the said information, P.W.38 P.S.I. Chodankar registered UD No. 5 of 1999 under Section 174 of the Criminal Procedure Code and visited the scene. He secured the presence of P.W.3 Satchit Nayak and another panch witness and drew the panchanama of the scene, which is at Exhibit 17. In the presence of two panchas, the inquest panchanama of the dead body of the unidentified female, at Exhibit - 3 - 107, was drawn. On 1st March 1999, P.W.26 Dr. Silvano Sapeco, who is working in the Department of Forensic Medicine, conducted the postmortem. He found (1) red bruise 20 cms. diameter on left mid upper arm; (2) red bruise 1 1/2 cms. diameter on right inner aspect of upper third region of thigh; (3) red bruise 1 1/2 cms. diameter on left mid thigh at inner aspect; (4) red bruise 1 1/4 cms. diameter on right mid lower leg at calf region and (5) red bruise 1 1/4 cms. diameter on left mid lower leg at calf region. He also found plenty of beach sand particles present within lumen of larynx and trachea and bronchioles. He opined that death was due to asphyxia as a result of drowning in the beach sand waters. The postmortem report of the dead body of Priya is at Exhibit 80. Meanwhile on 5th March 1999 P.W.4 A.C. Duggal, who had retired as General Manager of Union Bank of India, Mumbai, arrived at Goa and lodged a complaint, at Exhibit 21. In the said complaint, it was stated that his nephew Vikas Nanda, aged 26 years, was married to Priya, aged 23 years, on 23rd January 1999. they had left Mumbai to go to Goa on 25th January 1999 by bus and were staying in Seema Guest House, Ribandar. The report further stated that he was informed by the Manager of the Seema Guest House that Priya Nanda had checked out from the hotel on 27th February 1999 at about 11.40 p.m. accompanied by another person having stout built, bald from front, with - 4 - a fair complexion. They had come to the Seema Guest House in a white maruti car with Delhi registration. The report also expressed an apprehension that since the dead bodies of the couple had been found at places nearly 60 kilometres away from each other, the newly married couple must have been lured by some disgruntled mischievous element, who had done away with them for their ornaments, as all the ornaments of gold were missing. P.W.38 P.S.I Chodankar, therefore, registered an offence Vide Crime No. 33 of 1999 under Sections 363, 302 read with 34 of the Indian Penal Code. 3. On the next day P.W.38 P.S.I. Chodankar recorded the statement of P.W.5 Kishan Valecha, brother of deceased Priya Nanda and on 7th March 1999, recorded the statement of P.W.6 Amit Banerjee, receptionist of Seema Guest House. Meanwhile, on 28th February 1999, inquest panchanama, at Exhibit 85, in the presence of P.W.27 Valley D’Souza, was drawn regarding the dead body of Vikas Nanda. On 1st March 1999 postmortem examination on the dead body of Vikas Nanda was conducted by P.W.31 Dr. Avinash Pujari, attached to the Hospicio Hospital, Margao. He noticed the following injuries:- (1) Abrasion red and fresh of size 6 x 4 cms. on right side face over cheek below outer end of lower - 5 - eyelid. (2) Abrasion red and fresh of size 2.5 x 1 cms. on the nose in the mid line below the bridge of nose. (3) Abrasion red and fresh 5 x 3 cms. on left side face below lower eyelid over maxilla. (4) Abrasion red and fresh 3 x 2 cms. on back over right side scapula above spine. 4. He opined that all the injuries were caused by hard and rough object and were antemortem in nature. he opined that the cause of death was asphyxial death due to drowning in water. His report is at Exhibit 93. It appears that since viscera had not been preserved, a second inquest panchanama on the dead body of Vikas Nanda, at Exhibit 87, in the presence of P.W.28 Nelson Noronha, was drawn. The second postmortem was conducted, by P.W.32 Dr. E.J. Rodrigues, on 5th March 1999. He noticed the following injures:- (1) Abrasion reddish and fresh of 6 x 4.5 cms. present on upper outer part on right side face between outer orbital margin, 2 cms. in front of right tragus of ear and extending on outer part of right cheek bone. - 6 - (2) Abrasion reddish and fresh of 2.5 x 1 cms. placed vertically on the ridge of nose. (3) Abrasion reddish and fresh of 5 x 3 cms. on left side upper part of face 2 cms. in front of left tragus of ear extending upto left outer orbital margin and also on outer part of left cheek bone. (4) Abrasion reddish and fresh of 0.5 x 0.5 cms. one cm. above outer end of right eyebrow. (5) Abrasion reddish and fresh of 0.5 x 0.5 cms., 1.5 cms. above outer end of left eyebrow. (6) Abrasion reddish and fresh of 3 x 2 cms. upper middle back of right shoulder. (7) Abrasion reddish and fresh of 2 x 1.5 cms., upper back of left shoulder at acromial process region. 5. He opined that all these injuries were antemortem in nature and were caused by blunt surface. In respect of the injuries from nos. 8 to 13, noted by him in the report, he opined that they were postmortem in nature. The cause of death, according to him, was asphyxia as a result of drowning in water. Viscera was - 7 - preserved for chemical analysis. The report of the second postmortem is at Exhibit 95. 6. A flat belonging to the respondents/accused at Sapana Residency, Colva, was sealed under the Orders of the Civil Court. P.W.38 P.S.I. Chodankar, therefore, on 14th November 1999, vide Exhibit 108 Colly, applied to the Judicial Magistrate, First Class, Margao, for issuance of a search warrant in his name, authorising him to take search of the said flat in the presence of the bailiff of the Court. The Judicial Magistrate, First Class, Margao, by his Order, dated 17th December 1999, at Exhibit 108 Colly, directed that the bailiff of the Court shall accompany P.W.38 P.S.I. Chodankar and, in the presence of two respectable panchas from the locality, the seal of the Court shall be opened and inventory of the movable articles and fixtures found in the flat shall be made in the presence of the panchas. The flat shall, thereafter, be re-sealed/locked and the bailiff shall file a report to the Court. Accordingly, P.W.38 P.S.I. Chodankar, on 17th December 1999, in the presence of P.W.1 Ereckeo Fernandes and one Ibrahim Shaikh, took a search of the flat No. B2 F3 at Sapana Residency, Colva, and attached the passports of the respondents and their two children, two visiting cards of P.W.19 Subrato Padhi, visiting card of Iguana Restaurant and one laminated photograph. A panchanama - 8 - of the entire sequence was drawn and is at Exhibit 13. The flat was, accordingly, re-sealed. 7. P.W.38 P.S.I. Chodankar moved another application, on 18th January 2000, for conducting search of the said flat in the presence of the father of the deceased Vikas Nanda. Notices were issued and the matter was pending and, on 30th January 2000, in the morning at about 11.05 a.m., he received a message from P.W.39 Dy.S.P. Arvind Gawas that the respondents/accused, who were suspected in the Nanda murder case, were seen somewhere in Agra. On the same day in the afternoon P.W.38 P.S.I. Chodankar accompanied P.W.29 Dy.S.P. Gawas to Delhi and thence from Delhi to Agra. They reached Agra Sadar Police Station, at about 11.30 p.m.. At Agra they were informed by P.W.15 P.I. Navrang Singh that he had arrested both the accused for an offence punishable under the Arms Act and during the house search, one churidhar set, one ladies purse and some newspapers having connection with the case under investigation were recovered by him. P.W.38 P.S.I. Chodankar and P.W.29 Dy.S.P. Gawas interrogated the respondents/accused and were satisfied about their complicity in the crime. On 31st January 2000, P.W.38 P.S.I. Chodankar moved an application before the Chief Judicial Magistrate, Agra for grant of custody of the respondents/accused. The - 9 - said application is at Exhibit 109 Colly. The learned Chief Judicial Magistrate, Agra, granted 5 days transit remand and custody of the respondents/accused. On 1st February 2000, both the accused were brought to Goa and they were formally arrested in Crime No. 33 of 1999. The property recovered by the Sadar Agra Police Station were brought alongwith the accused. 8. P.W.38 P.S.I. Chodankar filed an application, dated 3rd February 2000, before P.W.24 Vinayak Alornekar, Special Judicial Magistrate, for conducting the test identification parade of the respondents/accused. The test identification parade was conducted by P.W.24 Alornekar on 7th February 2000 in Court Hall ‘A’, Panaji. The request letter and the memorandum of the test identification parade held, on 7th February 2000, is at Exhibit 70 Colly. On 8th February 2000, respondent no. 1/original accused no. 1 is alleged to have made a disclosure statement, in the presence of P.W.8 Sanjay Naik and one Alfonso D’Souza, showing his willingness to point out the belongings like clothes and jewellery of the deceased. The said belongings had been kept in flat B2 F3 at Sapana Residency, Colva. P.W.38 P.S.I. Chodankar, therefore, immediately submitted an application to the IIIrd Additional District and Sessions Judge, Margao, on 9th February 2000. The learned IIIrd Additional District - 10 - and Sessions Judge, Margao, granted permission and directed that the flat be opened in the presence of the bailiff on 11th February 2000. On 9th February 2000, P.W.38 P.S.I. Chodankar, also moved P.W.24 Alornekar for holding the test identification parade of the articles seized in the crime. Accordingly, P.W.24 Alornekar conducted the test identification parade on 10th February 2000 in Court Room ‘A’, at Panaji. The memorandum of the test identification parade is at Exhibit 71 Colly. 9. On 11th February 2000, in the presence of Peter Fernandes, a bailiff of the Court and also in the presence of P.W.8 Sanjay and the other pancha, the seal of the Court affixed to the flat was opened and in the presence of the bailiff and the panch witnesses, original accused no. 1 handed over the jewellery consisting of 8 yellow colour metal bangles, 1 pair of ear top and 1 finger ring. The said articles were sealed, seized and taken in possession. The panchanama of the entire sequence of events is at Exhibit 34. Accused no. 1 had also produced a white colour full sleeve shirt, one saffron colour ladies kameez with creamish colour salvar, one green colour sari with blouse, one light cream colour silkish pyjama kurta, one light green colour shining salwar kameez and one black designed full sleeve shirt. All the clothes were put in - 11 - a pillow cover and sealed. The application of P.W.38 P.S.I. Chodankar and the Order of the Court permitting him to open the seal of the Court are at Exhibit 112 Colly. 10. During interrogation, on 13th February 2000, original accused no. 2 disclosed, in the presence of P.W.3 Satchit Nayak and one Richard John Paul, that she would point out the goldsmith at Khareband, Margao, to whom she had sold the gold ornaments. The disclosure statement/panchanama is at Exhibit 77. As per the directions of original accused no. 2, the police party including the panchas reached to the shop of P.W.12 Ulhas Lotlikar. P.W.12 Lotlikar produced two bangles having identification mark "RK 22 KL", weighing 23.5 gms. The seizure is evidenced in the latter part of the panchanama at Exhibit 77. 11. On 14th February 2000, P.W.38 P.S.I. Chodankar sent another letter to P.W.24 Alornekar for holding the identification parade in respect of the gold ornaments and clothes. The identification parade was conducted by P.W.24 Alornekar on 19th February 2000 in ‘A’ Court, at Mapusa. The memorandum of the identification parade is at Exhibit 72 Colly. The viscera was forwarded for analysis alongwith the covering letter at Exhibit 114. P.W.38 P.S.I. - 12 - Chodankar filed the charge-sheet on 29th April 2000. After the filing of the charge-sheet, on 22nd May 2000, vide Exhibit 63, in the presence of P.W.20 Premanand Gad, the register of Hotel Seema came to be attached. The said register is at Exhibit 29. At Exhibit 33 Colly are the bills of telephone, etc.. The investigation was, thereafter, conducted by P.W.36 P.I. Naresh Mhamal, who recorded the statements of P.W.14 Calvert Gonsalves on 24th June 2000 and of P.W.11 Dinesh Adhikari on 27th June 2000. He also recorded the statements of P.W.22 Norbert Fernandes, P.W.23 Rosario Albuquerque and, thereafter, filed the supplementary charge-sheet. 12. On committal of the case to the Court of Sessions, the learned IInd Additional Sessions Judge, Panaji, vide Exhibit 7A, framed a charge against the respondents/accused for offences punishable under Sections 120-B, 364, 302, and 392 read with Section 34 of the Indian Penal Code. The respondents/accused denied their guilt and claimed to be tried. The prosecution in support of its case examined 39 witnesses. The defence of the accused is of denial. The learned trial Court on appreciation of the evidence of the prosecution returned the verdict of not guilty and the State, thus being aggrieved, has filed the present appeal. - 13 - 13. The entire case of the prosecution rests on circumstantial evidence. The learned trial Court has found the following circumstances against the accused, which are:- (1) Last seen; (2) Identification of the accused in the test identification parade; (3) Recoveries of incriminating articles; (4) Medical evidence and (5) Motive. 14. In the appeal before us Special Public Prosecutor Mr. Sirish Gupte, Senior Counsel has represented the State. Respondent no. 1 is represented by Mr. S.D. Lotlikar, learned Senior Counsel and Respondent no. 2 is represented by Mr. Satish Manshinde. At the outset, we record our appreciation for the assistance rendered to this Court by the learned counsel. 15. Before we advert to the evidence relating to the various circumstances, which the prosecution - 14 - contends to form a complete chain of circumstantial evidence, we may usefully advert to the evidence of P.W.4 Duggal, P.W.5 Valecha, P.W.6 Banerjee, P.W.13 Adhikari and P.W.20 Gad regarding the visit of the deceased newly wedded couple to Goa. 16. P.W.5 Valecha, the brother of deceased Priya alias Kavita Nanda, states that deceased Kavita was married to deceased Vikas Nanda on 22nd January 1999. After her marriage, the name of Kavita was changed to Priya. After their marriage Vikas and Priya went to Vaishno Devi and after their visit from Vaishno Devi, both of them stayed in Delhi for some days and, thereafter, left for Mumbai for their stay with P.W.4 Duggal. They stayed in Mumbai for one or two days and, thereafter, proceeded to Goa for their honeymoon. Before they left Delhi they were requested to phone regularly and inform their whereabouts. For about 4 to 5 days no telephone call was received from them after they had left Mumbai for Goa. P.W.5 Valecha was worried and began to make inquiries about the couple. P.W.33 Subhash Nanda, father of deceased Vikas Nanda, had received a telephone call from Vikas on 26th February 1999. P.W.33 Subhash had asked Vikas Nanda to meet one Subrant Padhi and Vikas had informed him that he had been to meet Padhi, but could not meet him. Vikas and Priya were scheduled to return to Delhi, on 1st March - 15 - 1999, for celebrating ‘Holi’ and since they did not come back, P.W.33 Subhash telephoned P.W.4 Duggal, who is the brother-in-law of P.W.33 Subhash and inquired about Vikas and Priya. P.W.4 Duggal promised that he would make inquiries and find out. P.W.33 Subhash also telephoned Subrant Padhi and has asked him whether Vikas had contacted him, but Padhi had answered in the negative. On 4th March 1999 P.W.33 Subhash received a telephone call from P.W.4 Duggal informing him that Duggal was proceeding to Goa and would inform him about the whereabouts of Vikas and Priya. On the same day, in the evening, P.W.4 Duggal informed P.W.33 Subhash that the dead body of his son Vikas was found and requested that they all should come to Goa. P.W.33 Subhash, accordingly, informed P.W.5 Valecha and requested him to go to Goa. P.W.5 Valecha reached Goa on 5th March 1999 and contacted P.W.4 Duggal, who informed him that a dead body was found. He accompanied P.W.4 Duggal for identification of the body to the Goa Medical College. While P.W.5 Valecha was on his way to Goa, P.W.33 Subhash received information that the dead body of Priya alias Kavita was also found. P.W.5 Valecha, accordingly, identified the dead bodies of Vikas and Priya in the morgue of Goa Medical College. On 6th March 1999, the dead bodies of Vikas and Priya were taken to Delhi for performing the last rites. - 16 - 17. P.W.6 Banerjee was working as hotel receptionist at Hotel Seema at Ribandar. According to him, on 26th February 1999, Vikas Nanda and his wife had checked-in in their hotel, in a room which was reserved for the Union Bank of India as its holiday home. P.W.4 Duggal had arranged for the stay of Vikas and Priya in the said Hotel Seema. They were allotted room no. 216, located on the second floor of the hotel. He has proved the entries in the check-in register at Serial No. 1570, in the register Exhibit 29. Priya and Vikas had checked-in in the hotel at about 11.30 a.m. and at 1.30 p.m. they went in the car driven by P.W.13 Vicent Dias for sight seeing. They returned between 9.00 to 9.30 p.m.. On the next day, that is, on 27th February 1999, both Vikas and Priya again went in the same car at about 12.00 noon for sight seeing. Thereafter Vikas did not return to the hotel but, at about 11.30 p.m., Priya Nanda returned accompanied by an unknown person and checked-out of the hotel. P.W.13 Vincent states about taking the couple for sight seeing trips on 26th February 1999 and, thereafter, on 27th February 1999. He states that Priya was wearing a blue colour skirt and blouse while Vikas was wearing a pant and shirt. He had taken them to Ozran at Vagator. At about 2.30 p.m. Vikas came wearing only an underwear and told him that they had met friends from Delhi. As the car was required by an Officer named Murari, P.W.13 Vincent - 17 - returned to Panaji. 18. P.W.4 Duggal came in search of his nephew Vikas to Goa as on inquiries he had learnt from Mr. Murari that the couple had checked-out on Saturday night. On 3rd March 1999, during the late hours, he had been informed by Murari that a dead body of a male person had been found and, therefore, had to rush to Goa immediately. From the Airport he rushed straight to the morgue of the Goa Medical College, where he identified the dead body of Vikas Nanda. He had requested his friend Mr. Murari to lodge a missing report, which is at Exhibit 20. He made inquiries at Hotel Seema, where he was informed that, on 27th February 1999, at about 11.30 p.m. Priya alias Kavita had checked-out alone from the Hotel accompanied by a tall person with a moustache. She had been driven in a white maruti car with Delhi registration. He, accordingly, informed P.W.33 Subhash and then lodged his report at Exhibit 21. 19. From the evidence of these witnesses, the prosecution has established that the newly married couple Vikas and Priya had come to Goa on 26th February 1999 for their honeymoon. 20. We shall now advert to the various circumstances enumerated by us above. We will examine - 18 - the evidence tendered by the prosecution. A - LAST SEEN. 21. In respect of this circumstance the prosecution has adduced the evidence of P.W.13 Vincent, P.W.6 Banerjee, P.W.7 Ganpat Govekar, P.W.11 Adhikari, P.W.14 Gonsalves and P.W.30 Suhasini Govekar. 22. P.W.13 Vincent states that on 26th February 1999 he had taken the deceased couple in the car for sight seeing. On 27th February 1999, at about 1.00 p.m. he had taken deceased Vikas and Priya to Ozran at Vagator. Deceased Priya was wearing a blue colour skirt and blouse. While the couple went to the beach, he waited where he had parked his car. At about 2.30 p.m. Vikas came wearing an underwear and informed him that they had met friends from Delhi. Since the car was required by Mr. Murari, P.W.13 Vincent returned to Panaji. He had informed Vikas that he would not be able to come before 10.00 a.m. on the next day as he wanted to go to Church and attend Mass. 23. P.W.6 Banerjee states that he was working as receptionist in Hotel Seema at