:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO. 5 OF 2005 CONFIRMATION CASE NO. 5 OF 2005 CONFIRMATION CASE NO. 5 OF 2005 IN IN IN SESSIONS CASE NO. 112 OF 2004 SESSIONS CASE NO. 112 OF 2004 SESSIONS CASE NO. 112 OF 2004 The State of Maharashtra ..Appellants (Ori.Complainants) versus 1. Assis Domnic Warawale 2. Clint Ernish Fernandes ..Respondents (Ori.Accused 1 & 2) Mr. D. S. Mhaispurkar, APP for the Appellants - Original Complainants. Mr. Majeed Memon, for the Respondents - Original Accused No. 1 and 2. WITH WITH WITH CRIMINAL APPEAL NO. 48 OF 2006 CRIMINAL APPEAL NO. 48 OF 2006 CRIMINAL APPEAL NO. 48 OF 2006 IN IN IN SESSIONS CASE NO. 112 OF 2004 SESSIONS CASE NO. 112 OF 2004 SESSIONS CASE NO. 112 OF 2004 1. Assis Domnic Warawale 2. Clint Ernish Fernandes ..Appellants (Ori.Accused 1 & 2) versus State of Maharashtra ..Respondents (Ori. Complainants) Mr. Majeed Memon for the Appellants -Original Accused Nos. 1 and 2. Mr. D. S. Mhaispurkar, APP for the Respondents - Original Complainants. :2: AND AND AND CRIMINAL APPEAL NO. 184 OF 2006 CRIMINAL APPEAL NO. 184 OF 2006 CRIMINAL APPEAL NO. 184 OF 2006 Wilfred Francis Dias ..Appellant (Ori. Accused No.3) versus State of Maharashtra ..Respondents (Ori. Complainants) Mr. Naveen Chomal for the Appellant - Original Accused No. 3. Mr. D. S. Mhaispurkar, APP for the State. AND AND AND CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 355 OF 2006 APPEAL NO. 355 OF 2006 APPEAL NO. 355 OF 2006 AND AND AND CRIMINAL APPEAL NO. OF 2006 CRIMINAL APPEAL NO. OF 2006 CRIMINAL APPEAL NO. OF 2006 State of Maharashtra ..Appellants (Ori. Complainants) versus Wilfred Francis Dias ..Respondent (Ori. Accused No. 3) CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & S. A. BOBDE,JJ. S. A. BOBDE,JJ. S. A. BOBDE,JJ. DATE : 9TH AUGUST, 2006 DATE : 9TH AUGUST, 2006 DATE : 9TH AUGUST, 2006 ORAL JUDGMENT (Per. D. G. Deshpande, J.) : ORAL JUDGMENT (Per. D. G. Deshpande, J.) : ORAL JUDGMENT (Per. D. G. Deshpande, J.) : 1. Heard learned counsels for the Accused and the learned APP for the State. :3: 2. Five persons were involved in crime in this case. Out of them, three were major and therefore they were charge sheeted vide Sessions Case No. 112 of 2004. Trial of two accused, who were minors and were covered by The Juvenile Justice (Care and Protection of Children) Act, 2000, and were to be tried before the Court under the said Act. The names of Juvenile offenders are Clinton and Karan Khanna. The Confirmation Case is therefore arising out of the trial of three accused, i.e. Accused Nos. 1, 2 and 3. Accused No.1 and accused No.2 have been sentenced to death under section 302 read with 34,392 read with 34, 120 read with 34 of Indian Penal Code. Accused No.3 is convicted under Section 120B and 120B read with 392 of Indian Penal Code. 3. To be specific accused No.1 is convicted under section 302 read with 34 of IPC for committing murder of Mrs. Leticia Mendes and sentenced to death. Then accused No.1 is again convicted under Section 302 read with 34 of IPC for committing murder of infant of one and half years Master Dylon Sunil Lobo, and is sentenced to death. Accused No.1 is convicted under Section 307 read with 34 IPC for attempting to commit murder of Mrs. Glenda Sunil :4: Lobo and sentenced to 10 years and fine of Rupees Five Hundred, in default to undergo imprisonment for six months. Then accused No.1 is again convicted under Section 392 read with 34 of IPC and sentenced to R.I. for seven years and fine of Rupees Five Hundred, in default to suffer imprisonment for six months. Accused No.1 is also convicted under Section 120 B and Section 120B read with 392 of IPC and Section 449 read with 34 of IPC, but no separate sentences are awarded. 4. Accused No.2 is convicted under Section 302 read with 34 of IPC for committing murder of Mrs. Leticia Mendes and sentenced to death; he is also convicted under Section 302 read with 34 for committing murder of infant Master Dylon Sunil Lobo and sentenced to death. He is also convicted under Section 307 read with 34 of IPC for attempting to commit murder of Mrs. Glenda Sunil Lobo and sentenced to R.I. for 10 years; he is also convicted under Section 392 read with 34 of IPC and sentenced to R.I. for seven years and fine of Rupees Five hundred, in default, to undergo imprisonment for six months; he is also convicted under Section 394 of IPC and sentenced to R.I. for :5: seven years and fine of rupees Five Hundred, in default, to undergo imprisonment for six months; and also convicted under Section 120B and 120B read with 392 of IPC and 449 read with 34 of IPC, but no separate sentences are awarded. 5. Accused No.3 is convicted under Section 120B and 120B read with 392 of IPC and sentenced to undergo R.I. for five years each under the two sections and to pay a composite fine of rupees five thousand, in default, he shall suffer imprisonment for six months. 6. Since two out of the three accused were sentenced to death, the Additional Sessions Judge, Greater Bombay R. B. Malik has made this Reference for confirmation of the death sentence. Accused Nos. 1 and 2 have filed an appeal challenging their conviction. Similarly accused No.3 has filed his separate appeal. At the same time, the State has filed appeal against acquittal of accused No.3 Wilfred Dias from the offences under Section 302 etc. and have also filed another Appeal for enhancement of sentence of accused No.3 Wilfred Dias from 5 years under Section 120 read with 302 of IPC. :6: We heard all these matters together. 7. The facts giving rise to the Sessions Case are as under: 8. Deceased Leticia Mendes, an old women of 50 years of age, was staying at Borivli, Flat No.6, Lopes Manor, 2nd floor, I.C. Colony, Borivali (West), Mumbai 400 103. Her husband Peter Zavier Mendes was at the relevant time working at Abu Dhabi. Clifton the son of deceased Leticia (i.e. brother of Glenda Sunil Lobo - P.W. 18) was at the relevant time working at Dubai. P.W. 18 Glenda Lobo was her daughter, she was married and used to stay at Pune but had come to Bombay at or near the time when the incident occurred. Glenda Lobo had a child by name Dylon Lobo, he was one and half years of age, he was a sucking child. 9. According to the prosecution, the deceased Leticia Mendes was running coaching classes for teaching cookery and bakery. She used to give advertisements for that purpose and students or those interested in learning that skill, used to approach her. According to the prosecution all the :7: five persons i.e. three accused before this court and 2 juveniles (It is clarified here that the role of two juvenile boys has not to be discussed while appreciating the prosecution case. There is no discussion of any evidence against them nor any finding because juveniles are facing their trial independently before the juvenile court). 10. All these five persons entered into a conspiracy to rob the deceased Leticia Mendes and according to conspirators she had lot of money and valuables. Therefore, the conspiracy was hatched and it was witnessed by one Wayne Denzil Pereira (P.W 17) who was the cousin of accused No.2, but P.W. 17 did not participate in this conspiracy because of fear. 11. In pursuance of this conspiracy, according to the prosecution, these accused along with juvenile boys went to deceased Leticia Mendes on 17.11.2003, they decided to join her cooking classes. At that time Glenda Lobo (P.W. 18) was also present, she noted down necessary particulars in diary and the contact telephone numbers of these boys. Then, according to the prosecution on :8: 19.11.2003 when deceased Leticia Mendes and her daughter Glenda Lobo (P.W. 18) were at their house, the accused went there in the afternoon i.e. after lunch. Some of the boys were sent by deceased Leticia Mendes to bring articles necessary for the classes and then when those articles were brought, all of them entered the kitchen. P.W. 18 Glenda Lobo went to bedroom to feed her child i.e. deceased Master Dylon Lobo. At about 3.30 p.m. Glenda Lobo heard the shrieks of her mother, she rushed to that spot and she found that her mother was lying in a pool of blood with several stab injuries in a passage near the kitchen. All the accused and the boys juvenile had weapons in their hand, when they saw Glenda Lobo, accused No.1 gagged her and dealt a blow on her head with the knife. She also saw her mother Leticia Mendes struggling but firmly held by juvenile boy Karan Khanna, therefore accused Nos. 1 and 2 dragged Glenda Lobo (P.W. 18) to the hall and accused No.2 inflicted blow of the knife on her throat, before felling down she saw that accused Nos. 1 and 2 and juvenile boy Karan Khanna rushed to the bedroom. 12. After sometime Glenda Lobo regained :9: consciousness and started yelling. Thereafter, accused No. 1 and juvenile boy Karan Khanna came out of the bedroom and Karan Khanna tried to suffocate her. Glenda Lobo pretended to be dead to avoid any further attack. She found afterwards that her mother was lying in a pool of blood and dead. She also saw her infant child Master Dylon Lobo hanging with the ceiling fan with a telephone cord. She also saw that cupboards etc. were opened and valuables from the house were missing. 13. According to the prosecution, Glenda Lobo rushed to the first floor, went to the flat of Adrin Gabrial Lopes (P.W.1). She narrated what had happened to her. At that time, sister of P.W. 1 Mrs. Pamera Jirar Lopes (P.W. 12) was present. She gave Glenda Lobo a piece of paper and then Glenda informed that four boys from Rizvi Caterers were responsible for this incident. 14. In the mean time Adrin Lopes (P.W. 1) had informed MHB Colony Police Station. By that time his sister Pamera Lopes (P.W. 12) had gone to the flat of deceased Leticia Mendes and found that Leticia Mendes was dead and the infant boy Master :10: Dylon Lobo was hanging to the ceiling fan. 15. Thereafter, P.W. 1 went to the police station, gave information, and in that background offences under Section 302 came to be registered. 16. Police immediately came to the spot, they found Leticia Mendes and infant child Master Dylon Lobo, dead. Glenda Lobo (P.W. 18) was removed to Bhagwati Hospital. Thereafter, investigation proceeded, spot panchnamas were made, dead bodies were sent for post mortem, photographs were taken and at about 8.30 in the night statement of Glenda Lobo came to be recorded after doctor found that she was fit to give a statement. 17. By that time accused Nos. 1, 3 and the juvenile boy Clinton Fernandes, were arrested. Thereafter, accused No.2 and juvenile boy Karan Khanna were arrested. Their clothes were seized under the panchnama. Finger print expert was called. Accused while in custody made statements from time to time under Section 27 of the Evidence Act and consequently incriminating articles were seized under Section 27 including weapons and :11: valuables. By that time, as per the prosecution case, the husband and only son of deceased Leticia Mendes had rushed to India. They identified the valuables. Glenda Lobo was discharged from the hospital on 27.11.2003. All those seized articles were sent for chemical analysis, and, in due course of time, charge sheet came to be filed. 18. Different charges against the accused Nos.1 to 3 were framed. They all pleaded not guilty. Thereafter, prosecution examined in all 25 witnesses to bring home the guilt of the accused. 19. Statements of the accused under Section 313 of Criminal Procedure Code, were recorded. Accused did not led any evidence in defence, arguments were heard, and, the trial court came to the conclusion about the guilt of these accused and sentenced them accordingly, as stated above. Therefore this reference for Confirmation of death sentence, Appeal filed by the accused Nos. 1 and 2, Appeal filed by the accused No. 3 for acquittal and Appeals filed by the State for enhancement of sentence of accused No.3 and acquittal of accused No.3 under Sections 120B read with 302 of IPC. :12: 20. Evidence, that is, tendered by the prosecution to bring home the guilt of the accused, and, which is accepted and relied upon by the trial court in convicting the accused, is of the following type and nature. 21. P.W. 1 Adrin Lopes - occupant of the first floor of the same building, to whom Glenda Lobo in her injured condition approached and narrated the incident and who lodged FIR - Exhibit 12. P.W. 12 Pamera Lopes who took down the information given by Glenda Lobo in injured condition is at Exhibit 54. Then different witnesses on panchnama, enquest, recovery and discovery under Section 27 of the Indian Evidence Act, then P.W. 18 Glenda Lobo - daughter of deceased Leticia Mendes and mother of deceased infant boy Master Dylon Lobo, husband of Leticia to identify the jewellery and articles, doctors who conducted post mortem on both the bodies, Finger Print Expert to prove the finger prints of accused No. 1 and investigating officers, coupled with the report of Chemical Analyser regarding different articles, referred to in and the recovery of weapons and the jewellery at the :13: instance of the accused. 22. We heard Mr. Majeed Memon for the accused Nos. 1 and 2, Mr. Naveen Chomal for accused No. 3, so also Mr. D. S. Mhaispurkar, learned A.P.P. for the State, at length. We were taken through the entire evidence and the proved documents and circumstances. 23. The main contention of Mr. Memon was that when these accused are convicted by the trial court, the trial of juvenile accused is not yet commenced. It was not certain what type of evidence will appear before that court, whether the witnesses who had deposed here against the accused would support the prosecution in that case and in such a situation, his first contention was that this Reference as well as Appeal were required to be stayed. When this submission was made on the first day of hearing, we rejected the same and thereafter the matters on merits were heard. However, Mr. Memon again contended that looking to the fact that two out of the five persons have been sentenced to death and the trial of two juvenile boys yet to start, confirmation of death sentence would be too risky :14: without waiting for the trial of juvenile offenders. He also contended, though alternatively, that if the role of each accused is seen, then from the evidence of Glenda, it would appear that both the juvenile offenders were responsible for the murder of Leticia Mendes and Master Dylon Lobo, and these three accused had no role to play in both the murders, and, therefore, sentencing accused Nos. 1 and 2 to death for all the offences when two major offenders i.e. juvenile boys would not get any sentence for their acts or commission, was something that require this Court to stay the Reference and hearing of the Appeal. 24. As against this, learned APP pointed out that there was no provision either in Criminal Procedure Code or in The Juvenile Justice (Care and Protection of Children) Act, 2000, that if two trials are simultaneously going on against the present accused and the juvenile offenders in two different courts, then one should be stayed till the disposal of the other. The learned APP also pointed out that the trial court has restricted its finding to the role played by these three accused and has not touched at all the case against the two juvenile :15: offenders, and, the same can be done by this court irrespective of the fact that the trial of two juvenile offenders is yet to begin. He, therefore, contended that there was no proprietary nor legal requirement in postponing the hearing of the Reference and the Appeal or staying the proceedings before this Court. 25. So far merits of the matters are concerned, Mr. Memon firstly urged that the only eye witness in this case is P.W. 18 Glenda Lobo. According to him she has made an innumerable omissions and contradictions in the deposition and her testimony was liable to be rejected on account of the grave suspicion that arises about her truthfulness because of those omissions and contradictions. He also stated that conduct of Glenda Lobo in noting down the names and telephone numbers of five boys on 17.11.2003 in a notebook and its seizure were all doubtful and were all suspicious. He contended that this notebook was prepared subsequent to the release of Glenda Lobo from the hospital on 27.11.2003 to strengthen the prosecution case. 26. He also contended that when Glenda’s :16: statement was recorded on 19.11.2003 by Investigating Officers at 8.30 p.m. she was not at all fit to give any such statement and there is no evidence in that regard. Therefore, according to him, Glenda’s statement which was recorded as a dying declaration could not be used by the prosecution for corroboration. He also challenged the Glenda’s evidence on number of other aspects, with which, we will deal in detail, later on. 27. So far as evidence of P.W. 1 Adrin Lopes and her sister P.W. 12 Pamera Lopes, are concerned, he contended that the vital document i.e. note prepared by P.W. 12 can also be stated to be an after thought and creation of a forged document because if this document was with P.W. 12 Pamera Lopes on 19.11.2003 itself, there was no reason for her to keep it with her till the next day. He also pointed out that the evidence of Investigating Officer and P.W. 12 Pamera Lopes, in this regard regarding Exhibit 54, was highly suspicious and doubtful. 28. So far as evidence of conspiracy given by P.W. 17 Wayne Denzil Pereira is concerned, Mr. :17: Memon contended that he is also a got up witness and his conduct is highly suspicious. According to Mr. Memon, if P.W. 17 Wayne Pereira was a witness to the talk of conspiracy amongst other accused, there was no reason for him to remain silent till the conspiracy was materialised by the other accused. He also said that there were serious discrepancies regarding the time of the conspiracy and the presence of the accused at the house of Leticia Menedes on 17.11.2003. Therefore, according to him, his evidence was also liable to be doubted and rejected. 29. So far as recovery of three weapons are concerned, Mr. Memon contended that all the three weapons were knives, and they were easily available at the house of deceased Leticia looking to the fact that she was conducting cooking classes, and, that there was no evidence on record to show that when the accused entered the house of deceased Leticia Mendes on 19.11.2003 in the afternoon they were not carrying any weapons. Therefore, according to him, there is a doubt as to whether the weapons recovered were the weapons used in the offence. Secondly there was no evidence that accused had carried the :18: weapons with them, and, thirdly, the recovery of the weapons was also doubtful. 30. So far as recovery of jewellery from the different accused is concerned, Mr. Memon contended that the evidence in that regard was not at all satisfactory and convincing and did not satisfy the requirements of the Evidence Act. Some of those recoveries were from open place and therefore all evidence of recovery, was liable to be rejected. 31. Mr. Memon also seriously criticised the role of different police officers examined in this case. He contended that FIR which is allegedly lodged by P.W. 1 Adrin Lopes was not at all FIR and should not have been taken into consideration because information about commission of murders was admittedly given to the police on telephone. He also criticised the manner in which Glenda’s statement came to be recorded on 19.11.2003. According to him, it was unheard of that one police officer was to put questions to Glenda and the other officers of the equal rank of Sub Inspector was recording the statement. :19: 32. So far as dying declaration (which is not now the dying declaration because Glenda Lobo survived the attack). Mr. Memon contended that looking to the injury suffered by Glenda it was impossible that she was in a condition to give such a statement to the police at 8 p.m. on 19.11.2003. He contended that certificate of doctor produced by the prosecution and proved at Exhibit 105 was introduced at the stage of trial and it was a got up document because it was not filed with the charge sheet. He also contended that on dying declaration of Glenda, there is no certificate of doctor and there was no explanation why the so-called certificate of fitness was obtained on a separate piece of paper. 33. Mr. Memon also contended that it was surprising to note that even though names of none of the accused became known to the police till the recording of statement of Glenda at 8.30 p.m. on 19.11.2003, Accused were arrested. According to him, this was therefore a case where police had arrested the accused before getting information from a person who was a witness in the incident or to the incident and, it is therefore a case where accused :20: could be said to have been falsely implicated because of the hue and cry that was raised in media with reference to brutality of double murders. 34. Alternatively, Mr. Memon submitted that even if the prosecution case is accepted as it is, at the most it can be said to be a case of conspiracy for robbery and no conspiracy for murder and it might be according to him that because of resistance the accused inflicted blows upon Leticia Mendes and in the said heat of passion hanged the child to the ceiling fan with telephone cord. 35. Mr. Chomal while arguing Appeal for accused No.3 contended that accused No.3 has been falsely implicated. According to him, the murder of Leticia and the child Master Dylon Lobo, had invited wide publicity in media and newspapers, there was pressure upon the police officers to trace culprits and under that pressure the police with the help of P. W. 17 Wayne Denzil Pereira implicated the accused No.3. According to him, the entire theory of conspiracy is bogus. Firstly, as argued by Mr. Memon the difference of time coming in the evidence of P. W. 18 Glenda and P.W. 17 Wayne Pereira is :21: not at all explained by the prosecution. If version is true that these boys came to her house on 17.11.2003 at 8.30 a.m. then version of P.W. 17 Wayne Pereira that they met for the purpose of conspiracy at 9.30 a.m. and then they went to the house of Glenda, gets falsified. He stated that P. W. 17 was educated boy and therefore he could not have committed mistake of two hours in mentioning the time of his meeting and going to the house of Leticia. He, therefore, urged that if P. W. 18 Glenda is to be believed, then evidence of P.W. 17 Wayne Pereira becomes suspicious and if P. W. 17 is believed then Glenda’s evidence, becomes suspicious. Further, according to him, there are number of contradictions and omissions and vital